People v. Hood, Docket No. 9735
| Decision Date | 24 November 1971 |
| Docket Number | No. 2,Docket No. 9735,2 |
| Citation | 37 Mich.App. 195,194 N.W.2d 472 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Anderson HOOD, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
John T. Connolly, Flint, for defendant-appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Solicitor Gen., Robert F. Leonard, Prosecuting Atty., Donald A. Kuebler, Chief Asst. Pros. Atty., for plaintiff-appellee.
Before V. J. BRENNAN, P.J., and FITZGERALD and LEVIN, JJ.
After a jury trial in the Circuit Court of Genesee County, the defendant was convicted of carrying a concealed weapon in violation of M.C.L.A. § 750.227 (Stat.Ann.1962 Rev. § 28.424).
The defendant makes two assignments of error, the first of which is that the trial judge committed reversible error in allowing the testimony of Mrs. Mary Dawson to go to the jury.
On October 8, 1969, the defendant was arrested by an officer of the Flint Police Department. While searching the defendant, the officer found three .38-caliber bullets. The officer then made a search of the automobile and found a .38-caliber revolver. In the automobile at this time were two passengers, Mr. Hollis Scott and Mrs. Mary Dawson.
During the trial, Mr. Scott was called by the prosecution and testified that on the evening of the defendant's arrest, he had not seen the defendant in possession of the pistol. Mrs. Dawson was then called, but her testimony was to the effect that she had seen the defendant with the pistol. The defense then objected that the State was trying to impeach the testimony of its own witness, to wit: Hollis Scott.
The evidence elicited from Mrs. Dawson was not impeachment evidence, but was merely contradictory testimony of a material fact, and as such was properly admissible. People v. Lee (1943), 307 Mich. 743, 12 N.W.2d 418. Even assuming it was impeachment testimony, the prosecution was fully entitled to introduce such testimony according to M.C.L.A. § 767.40a (Stat.Ann.1954 Rev. § 28.980(1)) which provides:
'Witnesses whom the people are obliged by law to call as Res gestae witnesses may be impeached the same as though such witnesses had been called by the respondent.'
The defendant also feels that the testimony of Mrs. Dawson should have been excluded on the grounds that upon cross-examination the witness became confused and either could not or would not give positive answers to defense counsel's questions. The...
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