158 N.W.2d 794 (Mich. Ct. App. 1968)
Defendants and two female companions were admitted to the home of an 80-year old woman, Gatzmeyer. One defendant had been to the home on a number of prior occasions, ostensibly as a handyman. On this occasion, defendants sought to hire themselves out to do chimney work. A neighbor saw the defendants’ car parked outside and called the police out of suspicion. Two officers arrived and entered the home along with the neighbor. Defendants were found in the rear of the house near the basement steps while the two women were talking to Gatzmeyer in the living room. The bedroom was in a state of disarray. The police ordered the defendants to the living room. Later, an officer found two of Gatzmeyer’s rings by the TV where one defendant was sitting, jewelry behind the couch pillows, and a necklace was found on the basement staircase.
Defendants were convicted of attempted larceny in a building. The judge did not charge the jury on the necessity of finding an overt act, instead charging that the jury could convict if it found that defendants came to or entered the house with the intention of committing larceny.
Did the defendants, when they came to the house with the intent to commit larceny, commit an overt act that would support their conviction of attempted larceny?
No. Reversed and remanded for a new trial. An overt act must manifest, or be symbolic of, the crime.
The elements of attempted larceny are a felonious intent to commit larceny and an overt act going beyond mere preparation towards the commission of the crime. The law does not punish evil intent. Based on the judge’s jury instructions, the defendant’s action of entering Gatzymeyer’s house with intent to commit larceny must have constituted an overt act to uphold the convictions. But this was not an overt act, considering that one defendant and other helpers had rightfully been in the house on prior occasions and were allowed into the house by Gatzmeyer on the night in question. Thus, the nature of the act was ambiguous—their mere presence did not “manifest or symbolize” the crime they were convicted of attempting to commit. It was only the later alleged acts of ransacking the house (for which there were no findings from the jury) that were not ambiguous.