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04/06/76 PEOPLE v. SHIPP

April 6, 1976

PEOPLE
v.
SHIPP



Appeal from Oakland, Frederick C. Ziem, J.

Leave to appeal denied, 397 Mich 826.

D. E. Holbrook, Jr., P. J., and D. E. Holbrook and T. M. Burns, JJ.

SYLLABUS BY THE COURT

1. -- Automobiles -- Unauthorized Driving Away -- Motorcycles -- Motor Vehicles -- Words and Phrases -- Statutes.

The question whether a motorcycle is a "motor vehicle", within the meaning of a statute prohibiting the unauthorized driving away of a motor vehicle, is a question of law for the trial court and not a factual issue for the jury (MCLA 750.412, 750.413; MSA 28.644, 28.645).

2. -- Automobiles -- Motor Vehicles -- Unauthorized Driving Away -- Elements -- Statutes.

The elements of the crime of unauthorized driving away of a motor vehicle are: (1) the possession of the vehicle must be taken, (2) there must be a driving away, (3) done wilfully, and (4) possession and the driving away must have been done without authority (MCLA 750.413; MSA 28.645).

3. -- Instructions to Jury -- Proper and Improper Instructions -- Presumptions.

It is presumed that a jury followed the improper jury instruction where a trial court has given a proper instruction, but subsequently gives an improper instruction.

4. -- Instructions to Jury -- Automobiles -- Motor Vehicles -- Unlawfully Driving Away -- Elements of Crime -- Failure to Object.

Jury instructions which removed two elements of the charged crime from the jury's consideration, in a trial for unlawfully driving away a motor vehicle, were reversibly erroneous where no additional instructions were given to repudiate the erroneous instructions, even though the trial court had properly instructed the jury on the elements of the crime before giving the erroneous instruction and even though defense counsel failed to object.

5. -- Prosecuting Attorneys -- Agreement Not to Prosecute.

A prosecutor's agreement not to prosecute a defendant if the defendant cooperated in procuring evidence for narcotic cases is binding on the prosecutor's office; therefore, a defendant is entitled to have an opportunity to establish such an agreement and the prosecutor's noncompliance therewith where the defendant has ...


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