People v. Young

Per Curiam.

The facts in this case are set forth in Judge Riley’s opinion and need not be repeated here. For the reasons stated in that opinion we concur in the conclusion that the defendant’s convictions for assault with intent to murder, MCL 750.83; MSA 28.278, and felony-firearm, MCL 750.227b; MSA 28.424(2), must be reversed. We are unable to concur, however, in the conclusion that the evidence presented at trial was insufficient to sustain the defendant’s conviction of the offense of armed robbery. MCL 750.529; MSA 28.797. That conclusion was based upon the "no inference upon an inference” rule which was applied by the Supreme Court in People v Atley, 392 Mich 298; 220 NW2d 465 (1974), as an alternative ground for reversing that defendant’s conviction of conspiracy to sell marijuana. In Atley, however, the Supreme Court acknowledged that the "’no inference upon an inference’ doctrine is a difficult concept at best”. Id., 315. Moreover, the doctrine has been severely criticized and generally discredited by legal scholars and by a number of courts which have given the matter extensive consideration. See People v Orsie, 83 Mich App 42, 46-48; 268 NW2d 278 (1978).

The essential determination which must be made by the trier of fact in a case in which the *64conviction is based upon circumstantial evidence is more accurately stated in the rule enunciated in Dirring v United States, 328 F2d 512, 515 (CA 1, 1964), cert den 377 US 1003; 84 S Ct 1939; 12 L Ed 2d 1052 (1964), reh den 379 US 874; 85 S Ct 27; 13 L Ed 2d 83 (1964):

"The rule is not that an inference, no matter how reasonable, is to be rejected if it, in turn, depends on another reasonable inference; rather the question is merely whether the total evidence, including reasonable inferences, when put together is sufficient to warrant a jury to conclude that defendant is guilty beyond a reasonable doubt.”1

We must determine, therefore, if there was sufficient circumstantial evidence presented at the trial in this casé to warrant the trier of fact in concluding, beyond a reasonable doubt, that the defendant knew that Bennett intended to commit a robbery and aided and abetted in the accomplishment of that intention. In our judgment there was sufficient evidence.

First of all, the defendant backed up the car he was driving to the loading platform of the premises which was subsequently robbed by Bennett. This was consistent with the story that Bennett told the complainant to the effect that he had some brass to sell. The defendant got out of the car as if to assist Bennett in unloading the brass, then, when Bennett jumped up on the loading platform, got back into the car and drove to the other side of the parking lot. Secondly, defendant *65lied to the hospital admitting clerk after driving Bennett to the hospital. Third, the defendant gave Bennett’s girl friend only some of the money which Bennett had in his possession after the robbery. And finally, defendant lied to the police in the first statements made to them.

Although there is no evidence that the defendant knew Bennett was carrying a gun, this does not preclude the conviction of the defendant for armed robbery. It is not necessary that the trier of fact infer from the evidence that the defendant knew that Bennett was armed. It is only necessary that the evidence be sufficient to sustain the conclusion by the trier of fact that the defendant knowingly aided and abetted in the commission of the robbery and that carrying or using a weapon to commit the robbery was fairly within the scope of the common unlawful enterprise, whether or not the defendant was actually aware of the fact that the principal was armed. Guilty Plea Cases, 395 Mich 96, 130; 235 NW2d 132 (1975). See also People v Lyle Brown, 37 Mich App 25; 194 NW2d 450 (1971).

Our review of the record persuades us that the evidence was sufficient to sustain the defendant’s conviction of armed robbery. Defendant’s conviction of that offense is affirmed. Defendant’s convictions of the offenses of assault with intent to murder and felony-firearm are reversed.

In People v Atley, 392 Mich 298, 315, fn 2; 220 NW2d 465 (1974), the Supreme Court advised that the language in the paragraph from Derring from which this rule was taken should be used with caution. The Court went on to specify those sentences in the paragraph which it thought may be misapplied. The rule quoted here, however, was not included in those cautionary remarks.