People v. Ivy

• Decision Date: 27 May 1968
• Docket Number: Docket No. 2628,No. 1,1
• Citation: 11 Mich.App. 427,161 N.W.2d 403
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Ralph IVY, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 403

161 N.W.2d 403

11 Mich.App. 427

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. George Ralph IVY, Defendant-Appellant.

Docket No. 2628.

Court of Appeals of Michigan, Division No. 1.

May 27, 1968.

Released for Publication Oct. 11, 1968.

Arthur J. Koscinski, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Wayne County, Lansing, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for plaintiff-appellee.

Before KAVANAGH, P.J., and BURNS and FITZGERALD, JJ.

T. G. KAVANAGH, Presiding Judge.

Defendant was convicted by jury verdict of assault with intent to rob being armed. C.L.1948, § 750.89 (Stat.Ann.1962 Rev. § 28.284). He appeals, raising 3 questions.

The first is whether the court below committed reversible error in failing to instruct the jury that one of the possible verdicts they could render was guilty of the lesser offense of felonious assault (C.L.1948, § 750.82 (Stat.Ann.1962 Rev. § 28.277)), even though not such instruction was requested of the trial court.

The code of criminal procedure provides in pertinent part:

'The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused.' C.L.1948, § 768.29 (Stat.Ann.1964 Rev. § 28.1052).'

See, also, GCR 1963, 516.

In People v. Stevens (1968), 9 Mich.App. 531, 533, 534, 157 N.W.2d 495, 497, we said:

'If evidence has been presented to support a conviction of her lesser offense, the requested instructions must be given; failure to do so would constitute error. People v. Jones (1935), 273 Mich. 430, 263 N.W. 417. If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused. People v. Utter (1921), 217 Mich. 74, 185 N.W. 830; People v. Hearn (1958), 354 Mich. 468, 93 N.W.2d 302.

'Where no request to charge on the lesser offense has been made but evidence exists to support a conviction of the lesser offense, the trial judge may, sua sponte, instruct on the lesser offense. People v. Milhem (1957), 350 Mich. 497, 87 N.W.2d 151.' (Emphasis added).

See, also, People v. Jebb (1966), 3 Mich.App. 118, 141 N.W.2d 659. We hold that in the absence of a request the court did not err in failing to instruct on the offense of felonious assault.

Defendant next contends that there was error in the failure of the prosecutor to produce one of the witnesses whose name was indorsed on the information. By endorsing the name of a witness on the information the prosecutor becomes duty-bound to produce him at the trial, and the defendant is entitled to rely upon the prosecutor's duty. People v. Lummis (1932), 260 Mich. 170, 244 N.W. 438. The prosecutor may nevertheless be excused from producing the witness if he shows due diligence in attempting to produce him. People v. Kern (1967), 6 Mich.App. 406, 149 N.W.2d 216. The people submitted testimony for the purpose of showing due diligence to the effect that attempts to locate the witness were discontinued when it was learned that he had returned to his home somewhere in New York. In People v. Serra (1942), 301 Mich. 124, 3 N.W.2d 35, the Court said, with reference to the prosecutor's duty:

'One of the well-established exceptions is that a witness who is not subject to the process of our courts need not be produced if he refuses to attend voluntarily. It is not error for the court to refuse to compel the prosecution to call witnesses whose names are indorsed on the information who are not within the State and answerable to process of the court.'

In the case at bar, upon learning that the witness had gone to New York the prosecutor did nothing further to locate him and to determine if he would appear at the trial voluntarily. The court submitted to the jury the question whether the people had made a sufficient showing of due diligence and instructed them that if they should find that the people had failed to make such a showing, they could consider that the witness, if called, would be adverse to the people. Such...