People v. Miniear, Docket No. 2183

• Citation: 8 Mich.App. 591,155 N.W.2d 222
• Decision Date: 01 December 1967
• Docket Number: Docket No. 2183,No. 3,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald MINIEAR, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 222

155 N.W.2d 222

8 Mich.App. 591

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Donald MINIEAR, Defendant-Appellant.

Docket No. 2183.

Court of Appeals of Michigan, Division No. 3.

Dec. 1, 1967.

Released for Publication Jan. 15, 1968.

Leave to Appeal Denied Feb. 19, 1968.

Floyd E. Wetmore, Francis & Wetmore, Midland, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Edward G. Durance, Pros. Atty., Midland County, Midland, for plaintiff-appellee.

Before FITZGERALD, P.J., and BURNS and HOLBROOK, JJ.

HOLBROOK, Judge.

Donald Miniear, defendant herein, was charged in an information filed January 11, 1966, with the crime of robbery armed. ¹ Defendant was convicted in a jury trial held in February, 1966, in which he was represented by court-appointed counsel. He was sentenced to a term of 7 1/2 to 15 years in prison.

Defendant appeals from the verdict and judgment of conviction, the sentence, and the trial court's denial of motion for new trial. Five questions, which are here restated, are raised for review:

1. May an accomplice be convicted of a crime for which the principal was never charged or convicted?

The defendant was convicted for his participation in the armed robbery of the Oil City Tavern on December 9, 1965, by one T. P. Myshock--the jury found defendant to have been driving the 'get away' car when the crime was committed. The principal, T. P. Myshock, testified as to defendant's participation.

It is defendant's contention that because (a) T. P. Myshock was never charged or convicted of the December 9th Oil City Tavern robbery and (b) the trial court failed to give an instruction which required the jury to find that principal Myshock committed the crime in question, he was not properly convicted.

(a) The applicable statute, C.L.1948, § 767.39 (Stat.Ann.1954 Rev. § 28.979), reads as follows:

'Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.'

In People v. Smith (1935), 271 Mich. 553, at p. 561, 260 N.W. 911, at p. 914, Mr. Justice POTTER stated:

'Before the enactment of the statute, the conviction of the principal was essential to the prosecution of the accessory. Now all are principals, and the guilt of one does not depend upon the guilt of the other. The effect of our statute is to permit the prosecution of one who aids and abets, without regard to the conviction or acquittal of one who, under the common law, would have been called the principal. That is what the statute intended to accomplish in abrogating the common-law rule. One who aids and abets may be charged and convicted as a principal. People v. Mangiapane, 219 Mich. 62, 188 N.W. 401.' (Emphasis supplied)

The information filed against defendant charges him as a principal. We find no error at this point.

(b) The case of People v. DeBolt (1934), 269 Mich. 39, at p. 45, 256 N.W. 615, at p. 617, cited by appellant, states:

'To sustain the charge of an accessory on the part of defendant, the guilt of the other defendants must have been established.' ²

The trial court gave no instruction to the jury relating to finding guilt on the part of Myshock in reaching a verdict as to the charge against appellant. Examination of this point leads us to conclude there was no error here for at least 2 reasons.

First, the guilt of principal Myshock was never put in issue. He admitted, and described in detail, the robbery. Witnesses testified concerning it. In short, no one ever claimed that someone other than Myshock committed the robbery.

Secondly, appellant's defense was premised entirely on alibi--viz: that defendant was at the Chat & Chew Restaurant in Midland, Michigan, at the time Myshock robbed the Oil City Tavern. A proper instruction as to the defense of alibi was given and also clarified at defense counsel's request by the trial court.

'As the court sees it, it boils down to pretty much that issue; was he (the defendant) there or wasn't he there; was he there and drove the car away and helped in the commission of the offense that he is charged with or wasn't he. And as the court sees it, that is about all the entire matter boils down to.'

At no time during trial did defense counsel question or put in issue the guilt of witness Myshock. Nor did defense counsel requested an instruction in this regard. Moreover, it has not been shown to this Court that without such an instruction the jury could not reach a true and just verdict.

2. Did the trial court improperly limit cross-examination of witness Myshock?

Defense counsel, on cross-examination of witness Myshock, asked:

'Didn't you rob a bar down in Flint on November 19, the M--54 Bar, with this same 30-30 caliber Marlin carbine--.'

Objection was made at this point as to the materiality of the question. In support of the inquiry, defense counsel stated: 'I'm testing the man's credibility'; on appeal, further explanation is offered that the purpose of the inquiry was to determine whether the witness would claim that defendant aided in previous robberies. After a brief recess, the objection was sustained. The trial judge stated as follows:

'The court is going to sustain the objection on the grounds that it is inquiring into collateral matter which the court does not feel is proper cross-examination here. If there is an arrest, that can be shown, or a conviction that can be shown. I think then it would be proper. But to get into a collateral matter that the court does not feel is at issue here in this particular case, it would not be proper, and therefore, the objection would be sustained. I have not found any authority to the contrary.'

Under Michigan law, the credibility of a witness may be impeached on cross-examination upon inquiring whether such witness has ever been charged, arrested or convicted. People v. Foley (1941), 299 Mich. 358, 300 N.W. 119, and cases cited therein. In People v. Hoffman (1965), 1 Mich.App. 557, 137 N.W.2d 304, this Court found no error where the trial court permitted the prosecutor to ask the defendant on cross-examination if he was presently under arrest for additional offenses. The distinction may be close, but to ask a witness whether or not he is guilty of a particular crime exceeds the permissible bounds of cross-examination where the purpose is impeachment of credibility. The trial judge did not abuse his discretion in sustaining the objection raised to defense counsel's inquiry. ³

Defendant points out 3 other instances where objections to cross-examination of witness Myshock were sustained. We fail to find any error in that the objections were properly made and sustained: the first objection was made to an argumentative question; the second objection was made to a question calling for an immaterial answer; and the third objection was made to a question calling for a conclusion by the witness.

3. Did witness Myshock's description of 1 crime at the preliminary examination and a different crime at trial deprive defendant of a preliminary examination?

Defendant failed to raise this question during his trial and in his motion for new trial. It cannot be considered now because an objection to alleged insufficiency or irregularity of a preliminary examination must be made prior to or during trial. There was no preservation of a right to appeal as to this matter in the record. People v. Willis (1965), 1 Mich.App. 428, 136 N.W.2d 723. Also, see, People v. Will (1966), 3 Mich.App. 330, 142 N.W.2d 467.

4. Did the trial judge err in permitting corroborating testimony by deputy sheriff Myron Whipple as to a conversation with witness Myshock?

Myron Whipple, a deputy sheriff, was called by the prosecution. Through his testimony, the prosecution attempted to rehabilitate witness Myshock's inconsistent testimony as brought out on cross-examination. The testimony was objected to by defense counsel as hearsay evidence since defendant was not present at the time of the conversation. The objection was overruled.

We are of the opinion that witness Whipple's testimony was admissible for the reason that it was within the so-called rule of recent contrivance or fabrication (also called the rehabilitation rule.) A consideration of this rule upon applying it to the admission of witness Whipple's testimony follows: ⁴ On direct examination witness Myshock testified as to the events of December 9, 1965.

'A. We stopped at a restaurant here in Midland to get something to eat.

'Q. I see. Do you know what restaurant it is?

'A. Yes. It was the Chat and Chew.

On cross-examination, defense counsel proved a prior inconsistent statement on the part of witness Myshock.

'Q. Do you remember my questions and your answers about whether you stopped anywhere and ate supper that night?

'A. Yes, I do.

'Q. And do you remember what your answer was?

'A. Yes, I do.

'Q. Well, tell us what your answer was, in general?

'A. I said I couldn't remember stopping.

'Q. Well, specifically, page 35: 'Q--Did you stop at any tavern or restaurant other than the Oil City bar on the night of December the 9th? A--Not that I can remember. Q--In none of your traveling around Isabella county or in your driving to and from Flint, you don't recall stopping? A--No, I do not. Q--Did you eat at your home? A--I can't remember whether we did or not.' Do you remember those questions and those answers?

'A. Yes, I do.'

At this point is cross-examination defense counsel had proved a prior inconsistent statement, thus impeaching the credibility of witness Myshock. However, and of utmost importance in regard to the rule of recent contrivance, defense counsel continued cross-examination and in so doing inferred that witness Myshock had a motive or motives for changing or falsifying his testimony upon trial, viz:...