People v. Rasmus

• Court: Court of Appeal of Michigan
• Writing for the Court: NEWBLATT
• Citation: People v. Rasmus, 154 N.W.2d 590, 8 Mich.App. 239 (Mich. App. 1967)
• Decision Date: 27 November 1967
• Docket Number: No. 3,Docket No. 1688,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph P. RASMUS, Defendant-Appellant

Page 590

154 N.W.2d 590

8 Mich.App. 239

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph P. RASMUS, Defendant-Appellant.

Docket No. 1688.

Court of Appeals of Michigan, Division No. 3.

Nov. 27, 1967.

Leave to Appeal Denied Feb. 13, 1968.

Vernon D. Kortering, Marcus, McCroskey, Libner, Reamon, Williams & Dilley, Muskegon, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, James K. Miller, Pros. Atty., Kent County, Grand Rapids, for appellee.

Before McGREGOR, P.J., and BURNS and NEWBLATT, ^* JJ.

NEWBLATT, Judge.

Defendant was convicted by a jury of attempted ¹ breaking and entering ² and was duly sentenced and now prosecutes this appeal as a matter of right.

Sometime shortly after 4 a.m. on May 30, 1965, a bar owner in Grand Rapids was cleaning up after the bar had been closed when his attention was called by a barmaid who was still on the premises to the fact that someone was trying to break into the bar. The owner went to the door, saw a man whom he recognized, and gave chase, but could not catch the fleeing man. Subsequently, the defendant was identified by the owner, arrested, tried, and convicted.

The first of two questions raised on appeal concerns the failure of the prosecution to indorse the name of the barmaid upon the information as required by statute. C.L.S.1961, § 767.40 (Stat.Ann.1965 Cum.Supp.1965 § 28.980). ³ Certain additional record facts must be noted in connection with this question. The only person who identified the defendant at the trial as the person who attempted to break into the bar was the owner. All the record evidence concerning the barmaid is as follows: At the preliminary examination, the owner testified that a barmaid (not further identified) called the owner's attention to the fact that someone was outside the front door of the closed bar with a crowbar and that the barmaid called the police. Upon cross- examination by defendant's trial counsel, the owner was asked whether his attention was called to the fact that someone was attempting to break in through the front door and the owner answered that the barmaid called it to his attention. Further on in the same cross-examination, the owner testified that he gave chase and told the barmaid to call the police. Nothing in the record indicates that the barmaid was further identified from the time of the examination until trial. At trial, on direct examination, the owner repeated that it was his barmaid who first called to his attention that someone was trying to break in. Again, and still upon direct examination, the owner testified that after going to the door and seeing a man with a crowbar, he told his barmaid, 'Pat', to call the police. This is the first and only mention of the name of the barmaid. On cross-examination by defendant's trial counsel, further oblique references were made to the barmaid. There was no other testimonial reference to the barmaid in either the preliminary examination or the trial.

One last series of record events must be noted to complete recitation of every reference made regarding the barmaid and to place the facts in ruling perspective. The people rested, having called all the witnesses who had in fact been indorsed upon the information, and defendant's trial counsel asked for an adjournment so he could have two witnesses present for the defense presentation. The trial court then recessed until 9 a.m. the next day. In defense counsel's argument to the jury and in the trial judge's charge, both defense counsel and the trial judge referred to the fact that the owner's attention was called to the alleged attempted break-in by another person.

Defendant's trial counsel at no time moved to have the barmaid indorsed upon the information as a witness nor did he ever demand that she be produced as a witness. The first and only time any questions concerning the barmaid as a witness were raised was on this appeal.

Inasmuch as the record does show or imply that the barmaid did see someone at the door attempting to enter and the identification of the appellant was an issue, the barmaid was clearly such a witness as the prosecuting attorney was statutorily obligated to indorse upon the information and to produce at trial. People v. Castelli (1963), 370 Mich. 147, 121 N.W.2d 438; People v. Blazenzitz (1920), 212 Mich. 675, 180 N.W. 370; People v. Tann (1949), 326 Mich. 361, 40 N.W.2d 184. As said in Tann on page 367, on page 186 of 40 N.W.2d:

'The purpose of the rule is to insure the whole of the res gestae and to protect the accused against the suppression of testimony favorable to him.

'It is the duty of the prosecution to show the whole transaction as it was, regardless of whether it tends to establish guilt or innocence.'

The prosecutor having failed to comply with the statutory requirement, can a defendant and his counsel who were both made aware of the existence of such a witness as early as the preliminary examination, who heard at trial further verification of the presence of the witness, and who, nevertheless, with that knowledge, failed to move to indorse such a witness or to demand the production of the witness at trial, now complain? The answer is no. People v. Blazenzitz, supra, (where it was noted that neither defendant, nor his counsel, knew until after the trial of the existence of the witnesses); People v. Bartlett (1945), 312 Mich. 648, 20 N.W.2d 758. In Castelli, the first that the defendant or his counsel heard of the witness was at the trial and then a timely motion was made and denied by the trial court. People v. Prescott (1934), 268 Mich. 606, 256 N.W. 564; People v. Dimitroff (1948), 321 Mich. 205, 32 N.W.2d 444; People v. Turner (1952), 333 Mich. 547, 53 N.W.2d 372.

These cases all hold that it is...