Appeal from Recorder's Court of Detroit, John P. O'Brien, J.
Leave to appeal applied for.
V. J. Brennan, P. J., and Bashara and R. M. Maher, JJ. Bashara, J., concurred. V. J. Brennan, P. J. (dissenting).
1. -- Unlawfully Driving Vehicle -- Elements -- Circumstantial Evidence -- Innocent Theory -- Burden of Proof.
A charge of unlawfully driving away a motor vehicle requires that the prosecution prove that the accused (1) took possession of the vehicle, (2) drove or took it away, (3) willfully, and (4) without authority; where the people's case is based on circumstantial evidence the prosecution has the burden of proving that there is no possible innocent theory which will, without violation of reason, accord with the facts.
2. -- Evidence -- Circumstantial Evidence -- Impelling Certainty -- Reasonable Theory of Innocence.
It cannot be said with impelling certainty that persons seen taking baked goods from a parked truck had previously participated in unlawfully driving the truck away; where the evidence presented leaves a reasonable possibility that the truck was taken by someone else and abandoned prior to the defendants' acts, the prosecution has failed to negate every reasonable theory consistent with defendants' innocence and reversal is required.
Dissent by V.J. Brennan, P.J.
3. -- Evidence -- Unlawfully Driving Vehicle -- Circumstantial Evidence -- Reasonable Hypothesis of Innocence.
A jury may draw reasonable inferences from facts established by circumstantial evidence and may infer guilt from such evidence where the facts proven tending to show guilt are consistent with each other, clearly indicate the guilt of the defendant, and are inconsistent with any other reasonable hypothesis upon which defendant's innocence may be maintained; there is no reasonable hypothesis which could reasonably explain the presence of three defendants in an alley removing goods from a truck stolen five or ten minutes earlier which is consistent with their innocence, and it cannot be said that anyone else was as likely to have unlawfully driven the truck away.
The opinion of the court was delivered by: Maher
Duane E. Talley, James Cunningham and Carl R. Cotton were convicted of unlawfully driving away a motor vehicle. Defendants appeal.
Defendants were initially charged with unlawfully driving away a motor vehicle, MCLA 750.413; MSA 28.645, and receiving or concealing stolen property valued in excess of $100, MCLA 750.535; MSA 28.803. At the preliminary examination, the value of the property was established at less than $100 and the prosecution moved to dismiss count two, receiving or concealing stolen property. The motion was granted and defendants were bound over for trial on the charge of unlawfully driving away a motor vehicle. A jury ...