People v. Blue, 204.

• Decision Date: 08 December 1931
• Docket Number: No. 204.,204.
• Citation: 255 Mich. 675,239 N.W. 361
• Parties: PEOPLE v. BLUE.
• Court: Michigan Supreme Court

255 Mich. 675

239 N.W. 361

PEOPLE

v.BLUE.

No. 204.

Supreme Court of Michigan.

Dec. 8, 1931.

Error to Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Lee Blue was convicted of partially destroying a theater building by means of explosives, and he brings error.

Affirmed.

Argued before the Entire Bench.

Edward N. Barnard, of Detroit, for appellant.

Paul W. Voorhies, Atty. Gen., and Bartel J. Jonkman, Pros. Atty., of Grand Rapids, for the People.

FEAD, J.

Defendant was convicted of partially destroying the Family Theater building in Grand Rapids by means of explosives. The people claimed defendant was hired to bomb the building by one Roe Lawton, principal witness for the prosecution.

On ample notice, trial was set for May 1st. April 26th, the people moved to indorse the names of several additional witnesses on the information after it had been filed. Notice of the motion was received by counsel for the defense at Detroit on April 28th. On May 1st, permission was granted to indorse the names, over defendant's objection that he had not had opportunity to ‘examine into’ the witnesses. No request for continuance was made.

Defendant contends that the Code of Criminal Procedure of 1927 (Pub. Acts No. 175, c. 7, § 40 as amended by Acts 1929, No. 24) C. L. 1929, § 17254, governing such indorsement of names, makes no change from the former rule provided in C. L. 1915, § 15761, and that a continuance should have been granted. The prosecuting attorney urges that the rule under the Code is that permission to add names may be granted in any case, except where it appears that the prosecution has been guilty of bad faith in withholding them. Both contentions are wrong. In People v. Tamosaitis, 244 Mich. 258, 221 N. W. 307, 308, this court, through Mr. Justice Sharpe, said: ‘The change made by the Legislature clearly indicates an intention to vest an even wider discretion in the trial court than proposed by the commission. This discretion is, of course, reviewable. The right of the defendant to know the witnesses to be called against him is a substantial one, and the statutory requirement should be faithfully observed by the prosecuting attorney.’

Under the Code, the indorsement of names after filing is wholly within the discretion of the court. The discretion, of course, is judicial, not personal, must be exercised with due regard to protection of the right of an accused to prepare his defense and to be accorded a fair trial, and is to be reviewed upon the showing made and in view of the circumstances. Motions to indorse should be supported under oath, unless oath is waived. Where trial is imminent or in progress, the prosecution has the burden of a showing of excuse for failure to sooner indorse. If the showing is sufficient prima facie, the defendant then has the burden of a showing in opposition to the indorsement or for continuance, which may be attacked by further showing of the prosecution. The ultimate...