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04/26/76 PEOPLE v. ELIJAH SMITH

April 26, 1976

PEOPLE
v.
ELIJAH SMITH



Appeal from Recorder's Court of Detroit, Elvin L. Davenport, J.

Leave to appeal applied for.

J. H. Gillis, P. J., and Allen and M. J. Kelly, JJ. Allen, J., concurred. M. J. Kelly, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. -- Sentencing -- Mitigating Circumstances -- Opportunity to Address Court -- Court Rules -- Allocution.

A defendant was afforded sufficient opportunity to inform the trial court of any specific or mitigating circumstances relevant to the imposition of sentence where the defendant and his counsel were both present at the sentencing proceeding and where, after some Discussion in which defense counsel participated, defense counsel was asked "anything more?" and replied in the negative; direct questioning of the defendant was not necessary in such a situation (GCR 1963, 785.8[2]).

Dissent by M. J. Kelly, J.

2. -- Evidence -- Sufficiency of Evidence -- Elements of Offense.

Evidence in a criminal trial is not sufficient to convict the defendant if it can not support a finding of guilty beyond a reasonable doubt because one or more of the essential elements of the crime is not proved.

3. Larceny -- Elements of Offense -- .

The elements of larceny are: (1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with a felonious intent, (4) the subject matter must be the goods or personal property of another, and (5) the taking must be without the consent and against the will of the owner.

4. Larceny -- Larceny from Person -- Elements of Offense -- Proofs Required -- .

A conviction of larceny from the person, in addition to requiring proof of the elements of larceny, requires proof that the goods or property taken were removed from the actual possession or custody of the person or his immediate presence.

5. Larceny -- -- Evidence -- Taking Without Consent.

Evidence that a complainant offered his money to a defendant only because the defendant was armed and because the complainant was afraid of being hurt if he did not turn over the money is sufficient to support a finding that the taking was ...


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