PEOPLE
v.
BARNES
Docket No. 8115.
Michigan Court of Appeals.
Decided February 17, 1971.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Robert A. Reuther, Assistant Prosecuting Attorney, for the people.
Charles G. Tangora, for defendant on appeal.
Before: LESINSKI, C.J., and LEVIN and O'HARA,[*] JJ.
LESINSKI, C.J.
Defendant Feaster Barnes was convicted by a jury of assault with intent to rob *588 being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). He appeals as of right claiming that the evidence was insufficient to warrant conviction on that charge.
The testimony at trial showed that defendant was hitchhiking when, in exchange for short-cut directions to the Michigan Central Depot, he was given a ride by the complaining witness. The complainant's testimony was that while defendant was giving the directions, en route, the following took place after 15 minutes had elapsed:
"A. Well, he told me to drive on down, and so I started going to the viaduct. He said, `No, don't go that way, turn here.' * * * So I made a left turn there and by the time I got half way of the block [sic] he put this object around my neck; it looked like a razor to me, shoved into a handle, and he said, `This is it, old man.'"
A struggle ensued, the car crashed, and defendant was apprehended by bystanders.
One witness testified that he heard complainant say, after exiting the crashed vehicle, "That man in there is trying to rob me". That testimony was not offered to prove the truth of the matter asserted, but to show that an accusation was made to which defendant did not respond.[1]
Complainant's testimony was:
"A. He didn't get no money off me [sic].
"Q. He didn't ask for any money, did he?
"A. He didn't ask for any.
"Q. I see.
"A. He just told me, `Old man, this is it.'"
*589 In order to sustain a conviction for assault with intent to rob, the specific intent must be proved. People v. Lilley (1880), 43 Mich 521; People v. Fleming (1934), 267 Mich 584. This intent may be inferred from facts in evidence. Roberts v. People (1870), 19 Mich 401.
In the instant case it cannot fairly be said that the facts in evidence support a finding of specific intent to rob. The phrase, "This is it, old man", in the context in which it was used could have signaled a number of intentions. Complainant's testimony belies defendant's intent to rob. The circumstances surrounding the assault standing alone do not justify an inference of that intent. The jury cannot be allowed to speculate on defendant's intent to commit robbery merely because an assault occurred.
Reversed.
LEVIN, J., concurred.
O'HARA, J. (dissenting).
I respectfully disagree with my colleagues.
Specific intent is a state of mind largely unprovable by extrinsic facts. It is almost invariably an inference to be drawn from other facts.
Defendant, in placing an object which resembled a razor at complainant's throat and saying, "This is it, old man," evidenced an intent less than amicable toward complainant. This assault coupled with the complainant's res gestae statement, "That man in there is trying to rob me", made within easy earshot of defendant, but undenied by him, furnished ample evidentiary basis for an inference of an intent to rob.
"Silence in face of an accusation is received in evidence under certain circumstances on the theory *590 that such silence indicates acquiescence in the accusation." People v. Gisondi (1967), 9 Mich App 289, 293.
There is no error. The conviction should be affirmed.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
[1] See People v. Todaro (1931), 253 Mich 367; Compare People v. Bigge (1939), 288 Mich 417. In light of the fact that defendant was in the crashed vehicle when complainant's statement was alleged to have been made, the probative value of this evidence is discounted since there was no showing that defendant heard the accusation or had an opportunity to respond. People v. Courtney (1913), 178 Mich 137, 149.