PEOPLE
v.
BARRON.
Calendar No. 14, Docket No. 51,296.
Supreme Court of Michigan.
Decided December 27, 1968.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
Edward F. Bell and Richard J. Coon, for defendant.
*423 O'HARA, J.
The precise question presented by this appeal cannot arise again absent legislative action.[1] CL 1948, § 750.110 (Stat Ann 1962 Rev § 28.305), prior to amendment, imposed different penalties for breaking and entering with intent to commit any felony dependent upon whether such breaking and entering was committed in the daytime or nighttime. By PA 1964, No 133, effective August 28 of that year, the distinction was eliminated.
The issue before us is the quantum of proof necessary to the establishment of the corpus delicti of the crime of breaking and entering with felonious intent in the nighttime. Defendant contends this is crucial because the testimony which implicated him was supplied by an admitted participant in the offense. He argues that if the proof of the corpus delicti of the crime was not established independent of the testimony of the participant, it was not proper to receive that testimony. He contends that if the testimony other than that of the participant fell short of its purpose, the testimony implicating him was erroneously received and the case against him must fall. Certainly this is the settled rule as to the extrajudicial confession or admission of an accused himself. This is established in many cases in our State. We choose to cite People v. Kirby (1923), 223 Mich. 440. We choose it, though a split decision as to the degree of proof necessary before the admission of the confession, the divided Court was unanimous as to the proposition above stated.
Mr. Justice WIEST addressed himself to the principle:
*424 "This Court has ever been firm in requiring proof of the commission of a crime outside of an extrajudicial confession." Kirby, supra, p 449.
Further in the opinion he succinctly observed:
"There can be no criminal without a crime in fact committed." Kirby, supra, p 452.
For those Justices holding the degree of proof in that case sufficient to establish the corpus delicti dehors the confession the same basic rule is approved:
"The rule stated by Mr. Justice MOORE that the corpus delicti may not be proven by an extrajudicial confession alone seems to be well established in this State, since People v. Lane (1882), 49 Mich. 340, was decided. It has been consistently followed in the cases cited and quoted from by him." Kirby, supra, p 453.
Since then it is the settled rule that the corpus delicti cannot be established solely by the extrajudicial admission or confession of the accused, it would seem a logical contradiction to hold it could be established solely by the extrajudicial admission or confession of another who has admitted his participation in the events said to constitute the offense charged. We here so hold. This is not to say, and we would not be understood to mean that once the corpus delicti has been established that is that the elements of the offense charged have been established and hence that someone committed that offense extrajudicial admissions or confession of another participant are not admissible. They are. We have held that the weight and credibility of such admissions or confession are solely for the jury. Indeed, we have held that when properly admitted after the corpus delicti has been established, a jury *425 may convict upon the uncorroborated evidence of a professed accomplice.
"We think the credibility of an accomplice, like that of any other witness, is exclusively a question for the jury; and it is well settled that a jury may convict on such testimony alone without confirmation." People v. Jenness (1858), 5 Mich. 305, 330.
Perforce then we turn to the testimony and other evidence exclusive of that of the professed participant to determine whether such testimony and evidence established the corpus delicti of the crime of breaking and entering in the nighttime with intent to commit a felony. What are those elements? They are three. First, someone broke and entered the premises. Second, whoever did it entertained at the time a felonious intent. Third, the breaking and entering occurred in the nighttime.
Herewith the relevant facts. The building involved was a receiving station for a dry-cleaning establishment. Customers could drop off garments there and pick them up after cleaning. Its manager testified that a police officer phoned him around midnight on November 30, 1962 and informed him that the premises appeared to have been forcibly entered. He responded to the call. The officers were still there when he arrived. The whole back door was broken off and "smashed out completely." He entered and found clothes strewn around the floor; some were lying out in the alley. The company operating the establishment paid out $1,800 for clothes left there and for which receipt claim tickets had been issued but which were missing and could not be returned to the ticket holders. One employee left the premises at 3 p.m. She testified that at the time she left, the rear door was locked shut. The employee who followed her worked from 3 p.m. to 8 p.m. on Monday through Thursday and *426 until 9 p.m. on Fridays and Saturdays. She was no longer employed there at the time of trial and did not testify. Officers in a cruise car testified they were hailed by a citizen in the vicinity of the premises. After conversation with the citizen, the details of which are not part of the record, they went to the establishment and found the door broken in. Thereafter an arrest was made. It was after the arrest that one William Bryant admitted his complicity in the break-in and identified appellant as a participant. Bryant so testified on trial.
Very early in our reported cases we held:
"Direct proof of the corpus delicti cannot always be obtained. It and the defendant's guilt can rest together on one foundation of circumstantial evidence." People v. Hawksley (1890), 82 Mich. 71, 73.
Proof of the breaking and entering with felonious intent was ample. The smashed in door and the missing garments were adequate proof of these elements. The only remaining question is the time of the offense. As to this element we think the case falls within the reasonable holding of People v. Dupree (1893), 98 Mich. 26, in which the defendant raised the same question of proof. This Court said:
"The house was situated in a city. * * * Is it probable, considering the public character of the place, that the breaking and entering were done in the daylight? * * * Such crimes are not committed in broad daylight, but in the nighttime. The question was one for the jury." Dupree, supra, pp 28, 29.
The premises here were located at 8356 Twelfth street in the city of Detroit. Surely, we can take judicial notice of the fact that this is in a heavily populated area in our State's largest city. Entry was effected by breaking down a door. We think, as *427 did the Court of 1894, that the question of whether it took place in the nighttime was for the jury.
The corpus delicti was adequately established before the admission of the testimony of the admitted accomplice. That testimony was therefore properly admitted. We find no error. The judgment of conviction is affirmed.
DETHMERS, C.J., and KELLY, ADAMS, and T.E. BRENNAN, JJ., concurred with O'HARA, J.
BLACK and T.M. KAVANAGH, JJ., concurred in result.
NOTES
[1] An additional ground for leave to appeal was raised by the application. It concerned the mode of payment for the trial transcript by Wayne county. This issue was rendered moot by agreement of the parties.