People v. Hodges, Docket No. 9489

• Citation: 190 N.W.2d 703,34 Mich.App. 90
• Decision Date: 25 May 1971
• Docket Number: No. 2,Docket No. 9489,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Edward HODGES, a/k/a Buster Hodges, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 703

190 N.W.2d 703

34 Mich.App. 90

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. John Edward HODGES, a/k/a Buster Hodges, Defendant-Appellant.

Docket No. 9489.

Court of Appeals of Michigan, Division No. 2.

May 25, 1971.

Released for Publication Oct. 22, 1971.

William E. Bolle, Royal Oak, for defendant-appellant.

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

Before DANHOF, P.J., and FITZGERALD and QUINN, JJ.

PER CURIAM.

This is an appeal as of right from a jury conviction on a charge of breaking and entering with intent to commit larceny. ¹

After a two-day trial, defendant was found guilty and sentenced to serve from 7 1/2 to 15 years in prison. Defendant appeals this conviction contending that it was reversible error for the trial court to permit the prosecuting attorney to indorse additional witnesses just prior to the trial. Two of the late-indorsed witnesses were added two days before trial. The third witness was indorsed the day of the trial. Defendant objected to all three of the late indorsements. The people set forth no reason for the delay in the indorsements.

Generally, the permitting of late indorsement is within the discretion of the trial court and can be reversed only if there is an abuse of discretion. The burden to show the abuse is ordinarily upon the party asserting it. People v. Blue (1931), 255 Mich. 675, 239 N.W. 361; People v. McCrea (1942), 303 Mich. 213, 6 N.W.2d 489.

It is difficult to maintain the position that the late indorsements in the instant case were prejudicial to appellant. None of the late-indorsed witnesses were Res gestae witnesses. Additionally, the failure of appellant to ask for a continuance, or to take an adjournment as offered by the trial court, although not a strict requirement, tends to negate the argument that the late indorsement was prejudicial to appellant's case. People v. Lee (1943), 307 Mich. 743, 12 N.W.2d 418.

The appellant says the late indorsements were prejudicial but advances no reasons or fact indicating that they were so. In light of this failure to show prejudice to defendant, and the strengths of the other, uncontested proofs, the ruling by the trial court was not an abuse of discretion so as to constitute reversible error. People v. Rowls, (1970), 28 Mich.App. 190, 184 N.W.2d 332.

Affirmed.

1 M.C.L.A. § 759.110 (Stat.Ann.1971 Cum.Supp. § 28.305).