People v. Elkins, Docket No. 11876

• Decision Date: 29 March 1972
• Docket Number: Docket No. 11876,No. 2,2
• Citation: 198 N.W.2d 31,39 Mich.App. 603
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James ELKINS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 31

198 N.W.2d 31

39 Mich.App. 603

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. James ELKINS, Defendant-Appellant.

Docket No. 11876.

Court of Appeals of Michigan, Division No. 2.

March 29, 1972.

Released for Publication June 8, 1972.

Leave to Appeal Denied June 15, 1972.

Douglas A. Chartrand, Pontiac, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Thomas G. Plunkett, Pros. Atty., for plaintiff-appellee.

Before McGREGOR, P.J., and J. H. GILLIS and O'HARA, ^* JJ.

PER CURIAM.

Defendant was convicted by a jury verdict of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797.

On appeal, defendant contends that the trial court committed reversible error by failing to instruct the jury that each and every element of armed robbery must be proved beyond a reasonable doubt.

On appellate review, jury instructions must be read in their entirety. People v. Dye, 356 Mich. 271, 279, 96 N.W.2d 788 (1959); People v. Iron, 26 Mich.App. 235, 241, 182 N.W.2d 342 (1970). The trial court instructed the jury as to the elements of armed robbery, and he then instructed the jury as follows:

'Take the evidence and weigh it conscientiously and carefully and thoroughly. If you are satisfied beyond a reasonable doubt and to a moral certainty That the people have proven their case as the court has defined it for you, find the respondents guilty accordingly of armed robbery. If not, if the elements constituting armed robbery have not been proved beyond a reasonable doubt and to a moral certainty, your verdict should be not guilty.' (Emphasis added.)

Consideration of the instructions in their entirety fails to disclose any reversible error.

Defendant further alleges that reversible error was committed when the prosecutor failed to establish a sufficient foundation for the admission of defendant's prior admissions for the purpose of impeachment. Defendant contends that a proper foundation as to the time, place, and person involved must be established before a witness can be impeached. While defendant's argument is correct with respect to a witness this rule has no application to a party. Wigmore on Evidence states:

'The rule requiring that the witness must have been warned when on the stand, and asked whether he had made the statement about to be offered as a self-contradiction, has always been understood not to be applicable to the use of a party's admissions, I.e., they may be offered without a prior warning to the party.' 4 Wigmore on Evidence (3rd ed.), § 1051, p. 8.

Corpus Juris Secundum states the rule as follows:

'No foundation need be laid for the introduction of evidence of declarations or admissions of a party in a civil action or an accused in a criminal prosecution which are admissible against him as independent evidence, even though such declarations or admissions are inconsistent with, or contradictory of, the testimony of such party as a witness; but where the sole purpose of the evidence is to impeach the party, a proper foundation must be laid.

'Where such statements are admissible against him as admissions or declarations, even though they are inconsistent with, or contradictory of, his testimony, no foundation need be laid for the introduction in evidence of oral testimony of extrajudicial declarations or admissions of a party in a civil action, or of accused in a criminal prosecution.' 98 C.J.S. Witnesses, § 600, p. 591.

While Michigan has no case law holding that a foundation need be laid to introduce a prior contradictory statement of a defendant in a criminal case, the rule in Michigan is that no foundation need be laid in a civil case. Cady v. Doxtator, 193 Mich. 170, 173, 159 N.W. 151 (1916); Zylstra v. Graham, 244 Mich. 319, 326, 221 N.W. 318 (1929); Schwartz v. Triff, 2 Mich.App. 379, 385, 139 N.W.2d 907 (1966); Selph v. Evenoff, 28 Mich.App. 201, 204, 184...