People v. DeSmyther

• Decision Date: 30 March 1970
• Docket Number: Docket No. 6572,No. 2,2
• Citation: People v. DeSmyther, 178 N.W.2d 83, 23 Mich.App. 48 (Mich. App. 1970)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Danny DeSMYTHER, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 83

178 N.W.2d 83

23 Mich.App. 48

PEOPLE of the State of Michigan, Plaintiff-Appellee, v.Danny DeSMYTHER, Defendant-Appellant.

Docket No. 6572.

Court of Appeals of Michigan, Division No. 2.

March 30, 1970.

Released for Publication July 2, 1970.

Thomas E. Ackerman, Southfield, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol.Gen., George N. Parris, Pros.Atty., Thaddeus F. Hamera, Chief Appellate Lawyer, Stephen F. Osinski, Asst. Pros.Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and QUINN and V. J. BRENNAN, JJ.

PER CURIAM.

Defendant's jury trial resulted in his conviction of breaking and entering in violation of M.C.L.A. § 750.110(Stat.Ann.1968 Cum.Supp. § 28.305).He was sentenced and he appeals.The substantiality of the appeal is demonstrated by defendant's first issue and certain facts of record.

Defendant first asks, 'Was the court's denial of defendant's motion to endorse additional res gestae witnesses error?'.The record indicates that the alleged additional 'res gestae' witnesses are two police officers from an adjoining community who were called to a hospital in that community to arrest defendant about two hours after the offense occurred.The offense took place in Macomb county.The hospital where defendant was arrested was in Detroit and all arresting officers were Detroit policemen.There is nothing in the record to indicate that the so-called 'res gestae' witnesses had any knowledge of or connection with the offense other than as hereinbefore indicated.

Neither physically nor legally can one raise himself by his own boot straps.Calling a witness 'res gestae' in brief or argument does not make that witness res gestae.That determination is made from facts, and on this record, the alleged 'res gestae' witnesses were not such.

At the close of the prosecution's case, defendant moved to dismiss.On appeal, he contends that denial of this motion was not only error, but it deprived him of due process contrary to U.S.Const.Am. 5.On the strength of a conflict in testimony relating to the identification of defendant, he now argues that the essential elements of the crime were not established, hence his motion should have been granted.The resolution of the conflicting testimony with respect to identification was for the jury, and the record contains ample evidence to establish all elements of the offense.The motion was properly denied.

During his examination by the prosecuting attorney,...