People v. Lazaroff
| Decision Date | 24 August 1973 |
| Docket Number | Docket Nos. 13397--13399,No. 2,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Andrew J. LAZAROFF et al., Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Jerome A. Susskind, Jackson, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Bruce A. Barton, Pros. Atty., for plaintiff-appellee.
Before QUINN, P.J., and BRONSON and O'HARA,* JJ.
December 1, 1971, a jury convicted defendants of conspiracy to collect off-track bets in violation of M.C.L.A. § 750.157a; M.S.A. § 28.354(1) and M.C.L.A. § 750.301; M.S.A. § 28.533. They were sentenced and they appeal.
The first issue raised relates to defendants' statutory right to waive a jury trial. M.C.L.A. § 763.3; M.S.A. § 28.856 provides for waiver of jury trial and the manner of accomplishing it. The record discloses that the statutory method for obtaining the waiver was not followed, and we find that the issue is not properly before this Court.
The second issue relates to jury instructions. Defendants did not object to the instructions given and the issue is not preserved for appeal, GCR 1963, 516.2, nor does the record demonstrate the manifest injustice which sometimes causes an appeallate court to overlook the rule.
The third issue also relates to instructions. The instruction complained of is substantially identical to the instruction requested by defendants, and it is not an erroneous instruction. No error is shown.
Defendants state their fourth issue as follows: 'Was it error for the court to deny defendants' motion for adjournment when the prosecutor failed to comply with the requested bill of particulars?'
Adjournment of a criminal case is permitted 'for good cause shown', M.C.L.A. § 768.2; M.S.A. § 28.1025. The grant or denial of a requested adjournment is discretionary, and abuse of discretion must be shown for appellate relief. If this record discloses that defendants showed good cause for the requested adjournment, its denial would constitute an abuse of discretion.
The provision for a bill of particulars is contained in a proviso at the end of the statutory section on short forms of indictment, M.C.L.A. § 767.44; M.S.A. § 28.984. In this case, the indictment was in the common-law long form and it sufficiently advised defendants of the offense charged against them. In such a situation, the provision relative to bills of particulars is not mandatory, People v. O'Hara, 278 Mich. 281, 270 N.W. 298 (1936). The fact that the prosecuting attorney did not comply with the request for a bill of particulars did not constitute 'good cause shown' for the requested adjournment and it was not an abuse of discretion to deny it.
We find no merit in the defendants' contention that statements of the prosecutor in closing argument deprived defendants of a fair trial.
In a supplemental brief, defendants raise two additional issues. Prior to trial, defendants moved to obtain the grand jury minutes of the testimony of witnesses to be presented against them. The trial judge followed the statute then in effect, M.C.L.A. § 767.19g; M.S.A. § 28.959(7), and denied the motion. This was not error, and trial counsel conceded at the opening of the trial that the ruling was correct. Neither People v. Bellanca, 386 Mich. 708, 194 N.W.2d 863 (1972) nor GCR 1963, 787 (effective March 3, 1972) provide for retroactive application.
While the record does not clearly substantiate defendants' claim that they demanded preliminary examination...
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