People v. Allar

• Decision Date: 29 October 1969
• Docket Number: No. 1,Docket No. 5808,1
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Keith ALLAR, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 261

173 N.W.2d 261

19 Mich.App. 675

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Ronald Keith ALLAR, Defendant-Appellant.

Docket No. 5808.

Court of Appeals of Michigan, Division No. 1.

Oct. 29, 1969.

Released for Publication Jan. 9, 1970.

Leave to Appeal Denied Jan. 21, 1970.

Carl Levin, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer Wayne County, Arthur N. Bishop, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before LESINSKI, C.J., and DANHOF and GILLIS, JJ.

LESINSKI, Chief Judge.

Ronald Allar and another man were convicted after a jury trial of possession of a stolen motor vehicle and attempted driving away of a stolen motor vehicle in violation of M.C.L.A. § 257.254 (Stat.Ann. 1968 Rev. § 9.1954), and M.C.L.A. § 750.92 (Stat.Ann. 1962 Rev. § 28.287). This appeal is taken as of right.

The trial court's instructions to the jury included the following statement:

'In this case each of the defendants has elected to exercise his constitutional right to remain silent--to refrain from testifying. And neither defendant has called any witnesses. No conclusion is to be drawn by you from the failure of either of these defendants to testify.'

Defendant argues that this charge, in effect, told the jury they could draw a conclusion from the failure of defendant to call witnesses. This arises from the close reasoning that since the trial court pointed out that the defendants neither testified nor called witnesses, but only instructed the jury not to consider defendants' failure to testify, that they were told they could consider the lack of witnesses.

We disagree. Even if the jury had picked up this rather subtle negative implication, it cannot be classed as an affirmative instruction that the jury could consider the failure to call witnesses. The instant case is fundamentally different from People v. Hendrickson (1884), 53 Mich. 525, 19 N.W. 169, cited by defendant, where the trial court specifically instructed the jury that they were to consider as evidence defendant's failure to call a certain witness.

Moreover, although given the opportunity by the trial court, no objections to the instructions were raised by this defendant. Defendant's failure of timely objection waives his right to object to the instructions on appeal. People v. Jefferson (1969), 18 Mich.App. 9, 170 N.W.2d 476; People v. Mallory (1962), 2 Mich.App. 359, 139 N.W.2d 904; GCR 1963, 516.2.

There was some confusion below when the jury announced its verdict. To avoid misunderstanding, the court had the jury announce its verdict a second time, whereupon, the following took place:

'Jury Seat No. 12: We find Ronald Allar guilty first of possession, and second, attempting to drive away said vehicle. * * *

'Court Clerk: Okay. Now the rest of you jurors, will you rise and raise your right hands, please (indicating)?

'Jurors: (Indicating).

'Court Clerk: Members of the jury, harken to your verdict as recorded by the court: You do say upon your oaths that you find the defendant, Ronald K. Allar and William F. Lerchenfeld, guilty of possession and--

'The Court: (Interposing) Possession of a stolen motor vehicle.

'Court Clerk: (Continuing)--and attempted driving away a stolen motor vehicle. So say you, Mr. Foreman?

'Juror Seat No. 12: I do.'

Each member of the jury then affirmed this as his verdict.

Defendant argues that the verdict was not in the proper form, since there is no such crime as 'possession'. He further asserts that the question presented by the court clerk did not cure the error.

This case falls squarely within the rule set out in People v. Bastian (1951), 330 Mich. 457, 463, 47 N.W.2d 692, 695:

'The trial court in his charge to the...