
    PEOPLE v. KORN.
    1. Criminal Law — Witnesses—Testimony Given on Examination — Trial.
    In a prosecution for receiving stolen property, prosecutor’s questioning of the complaining witness about his testimony at the examination might have been proper for the purpose of refreshing his recollection but not to get before the jury as substantive evidence what he testified to on examination, and the jury should have been warned, or at least instructed, as to the legitimate purpose of such questioning.
    2. Same — Argument oe Prosecutor — Failure to Request Ruling or Instruction.
    Although argument by the prosecutor was highly prejudicial, in the absence of any ruling or request to charge thereon, the Supreme Court, on error, can do no more than express disapproval thereof.
    3. Same — Trial—Exhibits.
    That the prosecutor had in the view of the jury more wearing apparel than was finally identified, held, not error.
    4. Same — Receiving Stolen Goods — Evidence—Duty to Explain Possession.
    Evidence of conduct on the part of defendant tending to show that he had knowledge that the goods had been stolen called upon him to explain his possession.
    5. Same — Trial—Instructions.
    The charge of the trial judge that the possession of stolen property “unsatisfactorily explained,” instead ¡of "unexplained,” is some evidence of guilt, while open to criticism, held, not reversible error.
    6. Same — Instructions Called Forth by Argument Not Error.
    Instruction by the trial judge that the question of the punishment to be meted out to defendant, if convicted, devolved upon the court, that whether he be placed on probation, or sentenced to a short or long term, if con-rioted, was a matter of responsibility that the court had to shoulder, field, not error, where brought forth by the argument of counsel.
    
      On knowledge necessary to convict one of receiving stolen property, see note in 22 L. R. A, (N. S.) 833.
    
      7. Same — “Simple Larceny” — Definition.
    “Simple larceny” is one not accompanied by any such circumstances as aggravate the offense and increase the punishment.
    8. Same — “Grand” and “Petit” Larceny.
    In this State there has never been any subdivision of simple larceny into grand and petit larceny.
    9. Same — Avoiding Imprisonment by Satisfaction to Injured Person Applicable in Simple Larceny — Statutes.
    The trial judge was in error in holding that 3 Comp. Laws 1915, § 15302, providing that upon a first conviction of the, offense of buying, receiving or aiding in the concealment of stolen goods, knowing the same to have been stolen, if the party convicted shall make satisfaction to the party injured he shall not be imprisoned in the State prison, when the act of stealing was a simple larceny, is not applicable where the value of the property stolen exceeds the sum of, $25, since it applies when the act of stealing is simple larceny, and has no reference to the value of the stolen property.
    10. Same — Accused to be Given Opportunity to Avoid Imphison- ' MENT.
    In order to avoid imprisonment in the State prison, under the statute,- one convicted of receiving stolen property should be given a reasonable opportunity to show that he has made satisfaction, and that it was his first offense.
    11. Same — Refusal to Accept Satisfaction Not to Defeat Statute.
    If the person from whom the property was stolen refuses to accept proper satisfaction, in accordance with the statute, the purpose of the statute may not be defeated thereby, but the money may he paid into court.
    Error to recorder’s court of Detroit; Heston (William M.), J.
    Submitted October 13, 1921.
    (Docket No. 177.)
    Decided December 22, 1921.
    
      Nathan Korn was convicted of receiving stolen goods, and sentenced to imprisonment for not less than 2 nor more than 5 years in the State prison at Jackson.
    Modified and affirmed.
    
      Edward N. Barnard, for appellant.
    
      Merlin Wiley, Attorney General, Paul W. Voorhies, Prosecuting Attorney, and Harry S. Toy, Assistant Prosecuting Attorney, for the people.
   Wiest, J.

Defendant was convicted of receiving stolen property. At the close of the people’s case he moved the court to direct a verdict of not guilty on the ground that there was not sufficient evidence to show that the goods found in his possession had been stolen. The motion was denied and defendant offered no evidence. While the question is a close one, we are not prepared to say, upon the whole record, that there was error in leaving the issue to the jury.

Against objection, the prosecutor was permitted to question the complaining witness about his testimony given at the examination. This might have been proper for the purpose of refreshing his recollection, but not to get before the jury as substantive evidence what he testified to on the examination. The jury should have been warned at the time, or at least instructed in the charge, of the only legitimate purpose of such questioning. We note, however, that this was not done, and that the prosecutor in his argument to the jury said:

“I will refer again to police court testimony on page 8, being the questions and answers of the complaining witness in this case. Am going to read it to you at this time for the purpose of letting you know whether or not the complaining witness in this case knew what was taken from him at that time and whether or not he knew he had sold the identical article to Nathan Korn. Here are the questions:
\Q. Did Korn buy nigbt gowns from you in tbe regular course of trade?
‘A. Yes.
‘Q. Isn’t tbis one of tbe nigbt gowns?
‘A. No, sir.
“ ‘Q. How doi you know that?
‘A. I know. I know tbe number be bought and tbe style be bought*
‘Q. Is it possible this nigbt gown was bought by someone else, because you haven’t tbe exclusive agency of this' nigbt gown in tbe United States?
‘A. I have tbe exclusive agency for this nigbt gown in Detroit.’
“Now, what, did he mean when he gave that testimony in police court? Did he mean at that time that he had sold two night gowns and whether one of these exhibits was a night gown he sold to Nathan Korn, and he said it was?”

This was highly prejudicial, but no ruling and no request to charge upon the matter or exception appearing, we can do no more than express disapproval thereof. We find no error in the prosecutor having more wearing apparel in the view of the jury than was finally identified.

Defendant’s counsel requested the court to charge and the court did charge:

“Mere possession of stolen goods, without evidence tending to show guilty knowledge, has no tendency to establish guilt.”

And the court added thereto:

“The Supreme Court of this State has so held, and the court has also held that recent possession of stolen property, unsatisfactorily explained, is some evidence of guilt.”

Both the request and the added instruction by the court stated abstract propositions of law. There was evidence of conduct on the part of the defendant tending to show he had knowledge that the goods had been stolen, and this called upon him to explain his possession. See People v. Tantenella, 212 Mich. 614. This he did not do. While the charge as given is open to the criticism that it stated “unsatisfactorily explained” instead of unexplained, we are not inclined to split hairs over this.

It is claimed it was error for the court to charge:

“There has also been some argument to you, gentlemen of the jury, by counsel here as to the punishment that might be meted out to this respondent if convicted by you. I want to say to you, gentlemen of the jury, that punishment is a responsibility and duty that devolves upon the court. That matter is not to be taken into consideration by you at all. That is a duty that you are free from. You are to take the evidence as submitted and determine what the true facts are, then be governed by the law, as the court gives the law to you, and then bring in a verdict according to the law and evidence submitted. Whether £>r not this man is placed on probation, if convicted, or whether he be sentenced to a short or long term, is a matter of responsibility that this court has to shoulder.”

It will be noted that this portion of the charge was brought forth by reason of something said in the argument of counsel, and that being true we discover no error.

The record discloses the following:

“The jury thereupon returned a verdict of guilty of receiving stolen property of the value of $30.
“Mr. Barnard: Your honor, under the provisions of section 15302 of the Compiled Laws of the State of Michigan for the year 1915, a man who is convicted of receiving stolen property for the first time; where the larceny of the property is simple, not aggravated, such as robbery from the person, armed, that if he shall make restitution to the party injured he shall not be imprisoned.
“The Court: Does it say anything about $25?
“Mr. Barnard: No, sir, it says simple larceny.

There is no law for petty larceny in the State of Michigan unless aggravated by such circumstances as—

“The Court: Your contention is that your client has a right to make restitution after conviction, and not within the power of the court to impose sentence — •
“Mr. Barnard: He shall not be imprisoned in the State prison but you have a right under the law to impose a sentence in the county jail.
“The Court: My interpretation is where the sum does not exceed $25. In other words, it is a misdemeanor.
“Mr. Barnard: Your honor, the Michigan Supreme Court, has held that larceny under $25 is a felony. The only larceny known in the State of Michigan— I have here the case of the People v. Hubbard [86 Mich. 440] — and here restitution was made before sentence and the amount involved was over $25, and still they held it—
“The Court: The court feels he is pretty well informed on the subject and will deny that motion.”

When defendant was called up for sentence the record shows the following:

“Mr. Sehlissel: Your honor, Mr. Barnard is coming over. Said he wants to make a motion before passing sentence.
“The Court: He has made four or five motions now. He detained- me in this court about a half hour.
“Mr. Sehlissel: Your honor, if you don’t care to wait for Mr. Barnard, want to repeat one motion. Under the Comlpiled Laws, section 15302, I m,ake an offer of two hundred dollars, the amount that is claimed to have been stolen from Mr. Botvinich on that date in satisfaction of the claim. I offered it to Botvinich and he didn’t take it. I now make an offer in open court of Federal reserve notes to save our right in case we have one. Here is the money, in legal tender of the United States. (Mr. Sehlissel then counted out the money and laid it on the court’s desk, which was refused and returned to him.)”

Thereupon defendant was sentenced to State prison.

The statute provides:

“Upon a first conviction of the offense mentioned in the preceding section, and when the act of stealing property was a simple larceny, if the party convicted of buying, receiving or aiding in the concealment of such stolen property shall make satisfaction to the party injured tol the full value of the property stolen and not restored, he shall not be imprisoned in the State prison.” 3 Comp. Laws, 1915, § 15302.

The trial judge was in error in holding that the statute did not apply in case| the value of the property stolen exceeded $25. The statute applies when the act of stealing property was a simple larceny.

Mr. Justice Cooley said in Pitcher v. People, 16 Mich. 142:

“I apprehend, that when the words ‘simple larceny’ are employed by the statute in reference to the punishment of receivers, they have reference only to such larcenies as are not accompanied by any such circumstances as aggravate the offense and increase the punishment, whether they be technically enumerated as larcenies or not.”

In 4 Blackstone’s Comm. p. 229, it is said:

“Larceny, or theft, * * * is distinguished by the law into two sorts: The one called simple larceny, or plain theft, unaccompanied with any other atrocious circumstances; and mixed or compound larceny, which also includes in it the aggravation of a taking from one’s house or person.”

And in Tiffany on Cr. Law (5th Ed.), p. 902, it is said:

“Larceny is divided into simple, which is the larceny of goods only without any other aggravating circumstances; and compound larceny, that is, where it is accompanied by aggravating circumstances, such' as stealing in a dwelling house or other building, or from the person, or at a fire.”

In this State there has never been any subdivision of simple larceny into grand and petit larceny. Boody v. People, 43 Mich. 34.

Upon the meaning of simple larceny see 18 Am. & Eng. Enc. Law (2d Ed.), p. 460.

Passing the question of whether the tender of the money in court with a statement that the party refused to take the same constituted satisfaction, the court was clearly in error, not only in the construction of the law, but as well in depriving the defendant of a right granted him by statute. The defendant should have been given a reasonable opportunity to make satisfaction and a showing that it was his first offense. It has been held that in order to avoid imprisonment in the State prison under the statute, one convicted of receiving stolen property must make a showing to the court, before sentence, that it is his first offense. People v. Smith, 94 Mich. 644; People v. Hubbard, 86 Mich. 440.

Our records show that a few days after the sentence we admitted the defendant to bail. The sentence as passed, and the holding of the trial court that the statute invoked by the defendant had no application, deprived the defendant of his right under the statute to make-satisfaction and show it was his first offense, and thereby avoid the very sentence pronounced upon him.

The conviction is affirmed but the sentence is set aside and the court below directed to proceed to judgment, giving the defendant a reasonable opportunity to show that he has made satisfaction and that it was his first offense. If the party from whom the property was stolen refuses to accept proper satisfaction, in accordance with the statute, we are of the opinion that the purpose of the statute may not be defeated thereby, but the money may be paid into court.

Steere, C. J., and Stone, Clark, Bird, and Sharpe, JJ., concurred. Moore and Fellows, JJ., did not sit.  