People v. Howard, Docket No. 7808
| Decision Date | 02 June 1970 |
| Docket Number | No. 1,Docket No. 7808,1 |
| Citation | 180 N.W.2d 203,24 Mich.App. 328 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Jimmie Lee HOWARD, Defendant-Appellant |
| Court | Court of Appeal of Michigan — District of US |
Thomas J. Olejnik, Detroit, for 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 appellee.
Before V. J. BRENNAN, P.J., and McGREGOR and AGER, * JJ.
Defendant was convicted of assault with intent to rob being armed. C.L.1948 § 750.89 (Stat.Ann.1962 Rev. § 28.284). Testimony was introduced at trial to show that on the night the store in question was robbed, the defendant had come into the store, bought a can of beer, and walked out; that several minutes later, two persons (who later were identified as participants in the crime) robbed the store. These two persons left the store and went in the same direction that the defendant had gone earlier. A police officer testified that he was a patrolman with the Detroit police department, and that while he and his partner were patrolling on the night the robbery took place, he saw two men run from the party store with guns in their hands, that these men ran across the street between two buildings, that they entered a car waiting in the alley, and that there was a driver in the car. They then followed the car and arrested the persons therein, including the defendant driver, who had been in the store several minutes before.
Defendant contends that it was error for the prosecution to fail to produce all the indorsed Res gestae witnesses. Although we agree with defendant that the prosecution has an affirmative duty to produce all indorsed Res gestae witnesses, the prosecution may be excused from producing these witnesses if it makes a showing of due diligence. People v. Tiner (1969), 17 Mich.App. 18, 20, 168 N.W.2d 411. The court in the instant case properly submitted the question of due diligence as to the production of these witnesses to the jury. People v. Kern (1967), 6 Mich.App. 406, 410, 149 N.W.2d 216.
The defense next claims that the prosecution committed error by inquiring into the past criminal record of a defense witness. This issue was not raised in the trial court and is deemed to have been waived on appeal. People v. Dailey (1967), 6 Mich.App. 99, 101, 148 N.W.2d 209.
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People v. Harris
...disposition by the jury is a proper alternative method. People v. Stephen, 31 Mich.App. 604, 188 N.W.2d 105 (1971); People v. Howard, 24 Mich.App. 328, 180 N.W.2d 203 (1970); People v. Kern, 6 Mich.App. 406, 149 N.W.2d 216 (1967). 3 But let us caution that this approach presupposes the exis......
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...trial. APPENDIX Cases recognizing the state's obligation to indorse all Res gestae witnesses include the following: People v. Howard (1970), 24 Mich.App. 328, 180 N.W.2d 203; People v. Haywood (1970), 28 Mich.App. 459, 184 N.W.2d 537; People v. Roland Robinson (1971), 30 Mich.App. 372, 186 ......
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