People v. Cormandy

• Decision Date: 25 March 1969
• Docket Number: 5861,Docket Nos. 5097,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles CORMANDY, Defendant-Appellant. PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David GAVAL, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 430

168 N.W.2d 430

16 Mich.App. 517

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles CORMANDY, Defendant-Appellant.

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. David GAVAL, Defendant-Appellant.

Docket Nos. 5097, 5861.

Court of Appeals of Michigan, Division No. 2.

March 25, 1969.

Leave to Appeals Denied May 23, 1969.

Released for Publication June 20, 1969.

Gerald M. Franklin, Franklin & Harris, Detroit, for Gaval.

Sauer & Girard, Pontiac, for Cormandy; Charles J. Porter, Bloomfield Hills, of counsel.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Thomas G. Plunkett, Jr., Pros. Atty., Oakland County, Pontiac, for plaintiff-appellee.

Before QUINN, P.J., and McGREGOR and V. J. BRENNAN, JJ.

McGREGOR, Judge.

The jury found defendants guilty of breaking and entering, M.C.L.A. § 750.110 (Stat.Ann.1968 Cum.Supp. § 28.305), and their subsequent appeals are consolidated in the present discussion. The first issue raised is whether the trial court committed reversible error by allowing the indorsement of additional witnesses to the information. Two days before the scheduled trial date, the court granted, without a formal order, the prosecutor's motion to add three Res gestate witnesses. Later, the court postponed the trial's commencement by two weeks. At trial, before the Voir dire examination, the prosecutor noted the earlier motion and moved for the addition of a fourth witness. Although defendants objected, the court granted the motion and denied defendants' motion for a continuance.

The indorsement of the three additional witnesses was not reversible error. Defendants did not make the necessary objection to the indorsement. People v. Qualls (1968) 9 Mich.App. 689, 158 N.W.2d 60, and they had approximately three weeks to interview the witnesses before trial testimony began. See People v. Hawks (1919), 206 Mich. 233, 172 N.W. 405. Similarly, the indorsement of a fourth witness was not reversible error. The addition of witnesses to the information is within the court's discretion, and a continuance may be granted to allow time to interview the witnesses. People v. Blue (1931), 255 Mich. 675, 239 N.W. 361. The prosecutor stated he did not know of the fourth additional witness at the time of filing the information, and thus the court did not abuse its discretion by allowing the addition. C.L.S.1961, § 767.40 (Stat.Ann.1969 Cum.Supp. § 28.980); People v. Bollman (1913), 178 Mich. 159, 144 N.W. 537. Moreover, defendants did not present sufficient reason to grant the continuance and there was ample time to interview the witness before his actual trial testimony began. After the prosecutor asked brief introductory questions of the fourth witness and deferred to defendants for cross-examination, the defendants had no questions. Thus, the minimal testimony of the witness, indorsed in compliance with the statutory requirement rather than for his substantive testimony, did not prejudice defendants.

The second issue raised is whether the court committed reversible error by allowing police testimony of binocular observation and identification of defendants, despite their objections and request that all testimony with regard to binoculars be stricken. Defendants contend on appeal that a proper foundation for the testimony was not laid. Defendants analogize binoculars to scientific instruments and contend that testimony regarding their correctness and trustworthiness was a prerequisite to the identification of de...