People v. Williams

Cynar, J.

Defendant was convicted by a jury of four counts of armed robbery, MCL 750.529; MSA 28.797, and one count of felony-firearm, MCL 750.227b; MSA 28.424(2). Defendant was sentenced to four concurrent terms of from 23 to 50 years imprisonment on the armed robbery conviction, with the mandatory two-year consecutive sentence imposed on the felony-firearm count. Defendant appeals as of right.

Defendant first contends that his conviction for felony-firearm is violative of double jeopardy protections. This issue has been resolved against defendant’s position in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979), app dis sub nom Brintley v Michigan, 444 US 948; 100 S Ct 418; 62 L Ed 2d 317 (1979).

Next, defendant argues that he was improperly charged with four counts of armed robbery instead of one count, where each count arose out of a single transaction, i.e., the robbing of a single bank. Defendant also contends that his convictions and sentences on the above charges violate double jeopardy protections.

*513In relation to his former contention defendant additionally argues that he should have been charged under MCL 750.531; MSA 28.799 with one count of bank robbery, as opposed to any charge of armed robbery. We find no abuse of prosecutorial discretion or error of law in charging defendant with armed robbery, as opposed to bank robbery, as it is clear that defendant could have been charged under either statute on the facts here. Genesee Prosecutor v Genesee Circuit Judge, 386 Mich 672, 683; 194 NW2d 693 (1972).

As to the multiple charge question, it is not so readily dismissed. The majority rule is that the taking of property from different sources at the same time and at the same place constitutes but one offense. Anno: Single or separate larceny predicated upon stealing property from different owners at the same time, 37 ALR3d 1407, 1410. Michigan apparently follows this rule, as shown by the language used by the Court in People v Johnson, 81 Mich 573, 576; 45 NW 1119 (1890). As we see it, the episode in question here constituted but one transaction, a single occurrence or offense, from which but a single charge of armed robbery could arise. Had bank robbery been charged, it is patently obvious that only one count thereof could have been charged. Granting the prosecutor discretion to charge armed robbery in lieu of bank robbery, it does not follow that the prosecutor may abuse that discretion by resort to the artifice of charging multiple counts of armed robbery from a unitary episode such as occurred in the case at bar.

Accordingly, we affirm defendant’s felony-firearm conviction, as well as one count of armed robbery, and the sentences imposed thereupon. We reverse defendant’s convictions for three counts of *514armed robbery and vacate the sentences given pursuant thereto.

Affirmed in part; reversed in part.

Mackenzie, J., concurred.