People v. Harris

• Decision Date: 08 December 1971
• Docket Number: No. 1,Docket No. 10303,1
• Citation: People v. Harris, 195 N.W.2d 29, 37 Mich.App. 409 (Mich. App. 1971)
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brian Clement HARRIS, Defendant-Appellant
• Court: Court of Appeal of Michigan

Page 29

195 N.W.2d 29

37 Mich.App. 409

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Brian Clement HARRIS, Defendant-Appellant.

Docket No. 10303.

Court of Appeals of Michigan, Division No. 1.

Dec. 8, 1971.

Released for Publication March 9, 1972.

Carl Ziemba, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief Appellate Div., Thomas P. Smith, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and V. J. BRENNAN and O'HARA, ^* JJ.

PER CURIAM.

Defendant was tried and found guilty by a jury in Recorder's Court in the city of Detroit of a charge of armed robbery (M.C.L.A. § 750.529 (Stat.Ann.1971 Cum.Supp. § 28.797)). The defendant presents three arguments on appeal, of which we consider only one.

The prosecution's evidence that the crime charged had been committed was not contradicted by any testimony. The defendant based his defense on alibi. The defendant argues that the following portion of the judge's charge to the jury constitutes reversible error:

'Now, the People have in their proofs shown to you the first element of the offense, which they are bound to establish. They have shown with their evidence that there was an assault. They have also shown by their evidence that there was a larceny; that is a forceful and unlawful taking of the money. They have also shown that a dangerous weapon was used in the robbery; that is a rifle of some description or another. There has also been testimony, which they have shown to you, that two persons participated in the robbery.'

While the court may comment on the evidence (M.C.L.A. § 768.29 (Stat.Ann.1954 Rev. § 28.1052)), '(s)uch authority permits comment that evidence supporting a fact is undisputed, if this is the fact, but it does not permit stating as a fact that which the undisputed evidence tends to prove. People v. Pratt (1930), 251 Mich. 243, 231 N.W. 564.' People v. Wojnicz (1968), 12 Mich.App. 423, 425, 162 N.W.2d 904, 905.

Reversed and remanded.

* MICHAEL D. O'HARA, former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const.1963, art. 6, § 23 as amended in 1968.