People v. Hooper, Docket No. 9245

• Decision Date: 28 September 1971
• Docket Number: No. 1,Docket No. 9245,1
• Citation: 36 Mich.App. 123,193 N.W.2d 203
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Eugene HOOPER, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 203

193 N.W.2d 203

36 Mich.App. 123

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Lawrence Eugene HOOPER, Defendant-Appellant.

Docket No. 9245.

Court of Appeals of Michigan, Division No. 1.

Sept. 28, 1971.

Released for Publication Jan. 17, 1972.

Armand D. Bove, Harper Woods, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Leonard Meyers, Asst. Pros. Atty., for plaintiff-appelee.

Before T. M. BURNS, P.J., and HOLBROOK and McGREGOR, JJ.

On Rehearing

PER CURIAM.

Defendant was convicted by a jury in the Wayne County Circuit Court of the offenses of felonious assault, M.C.L.A. § 750.82 (Stat.Ann.1962 Rev. § 28.277), and carrying a concealed weapon, M.C.L.A. § 750.227 (Stat.Ann.1962 Rev. § 28.424). Defendant was sentenced upon conviction on the counts charged to terms of from 3 years, 11 months to 4 years, and from 4 years, 11 months to 5 years, respectively. The court appointed appellate counsel to represent defendant in post-conviction proceedings. From denial of defendant's motion for new trial, this appeal is taken as of right

We consider defendant's claims of error in the order presented.

Whether the trial court erred in not providing for a 'substantial period' intervening between the minimum and maximum terms of sentence.

The transcript of sentencing in the instant case reveals that the trial judge exercised discretion in imposing the sentences upon defendant, having evaluated defendant as an individual, People v. Lessard (1970), 22 Mich.App. 342, 177 N.W.2d 208. This Court has held that a sentence within the statutory maximum will not ordinarily be disturbed on appeal. People v. Stroble (1970), 28 Mich.App. 451, 453, 184 N.W.2d 520.

Whether sufficient credible evidence to sustain defendant's conviction for felonious assault was produced upon trial of this case.

In a case involving a charge of felonious assault, such as the present, it is necessary, in order to convict upon that charge, to prove only that an assault was made with a dangerous weapon. People v. Childs (1968), 11 Mich.App. 408, 411, 161 N.W.2d 428. A thorough review of the record convinces us that the jury's verdict was amply supported by the evidence. People v. Thomas (1967), 7 Mich.App. 103, 151 N.W.2d 186; People v. Dawson (1971), 29 Mich.App. 488, 185 N.W.2d 581.

Whether reversible error occurred when during the trial, a police officer testified, in the jury's presence, that he knew defendant 'from previous occasions'.

The testimony of the police officer, upon direct examination, that he knew defendant 'from previous occasions' was a voluntary and unresponsive answer to a proper question. As such, it was not reversible error. People v. Tutha (1936), 276 Mich. 387, 393, 267 N.W. 867.

Whether the trial court committed error in instructing the jury that the state must prove a matter involving circumstantial evidence beyond a reasonable doubt.

Defendant's allegation that the trial judge improperly instructed the jury as regards to the proof required on a matter involving circumstantial evidence, need not be considered for the first time on appeal, no objections to the court's instructions having been made at trial. People v. Floyd (1968), 15 Mich.App. 284, 166 N.W.2d 506; GCR 1963, 516.2.

Whether the trial court erroneously instructed the jury that the people did not have to prove that defendant did not have a license to carry a concealed weapon.

Defendant finally contends that the trial court, in regard to the charge of carrying a concealed weapon, committed error in instructing the jury that the State need not prove that defendant did not have a license to carry such a weapon. Defendant relies on the following language contained in People v. Kelsch (1969), 16 Mich.App. 244,...