People v. Richardson

• Decision Date: 29 July 1927
• Docket Number: No. 98.,98.
• Citation: 239 Mich. 695,214 N.W. 965
• Parties: PEOPLE v. RICHARDSON.
• Court: Michigan Supreme Court

239 Mich. 695

214 N.W. 965

PEOPLE

v.RICHARDSON.

No. 98.

Supreme Court of Michigan.

July 29, 1927.

Error to Recorder's Court of Detroit; John V. Brennan, Judge.

Ray D. Richardson was convicted of robbery while armed, and he brings error. Affirmed.

Argued before the Entire Bench.

Walter M. Nelson, of Detroit, for appellant

William W. Potter, Atty. Gen., and Robert M. Toms, Pros. Atty., and Frank B. Ferguson, Asst. Pros. Atty., both of Detroit, for the People.

FELLOWS, J.

Defendant on this writ of error reviews his conviction of robbery while armed and the sentence imposed thereon. One Cummings and one Harmon were likewise implicated in the transaction although the information in the record only joins defendant and Cummings. By order of the court defendant was tried separately. The assignment of error first discussed grows out of this order, defendant insisting that he was entitled to a joint trial with Harmon. He did not ask to be tried jointly with Cummings. The record is not very satisfactory as to what was done as to Cummings and Harmon, but counsel for defendant states:

‘It is fairly deducible from the record that Harmon first applied for severance, which was granted. It also appears from the record that Collins Cummings applied for a severance, which was granted.’

If Cummings demanded a separate trial and Harmon was not jointly informed against with defendant, it is somewhat difficult to perceive how defendant could have been tried at all unless he was tried alone. We perceive no error in directing that he be tried alone.

Before the case was assigned by the presiding judge the prosecuting attorney was permitted to indorse the name of a witness on the information. The presiding judge states that this was consented to by defendant's counsel; the case was continued for a day and then for another day. It would appear from the statement of defendant's counsel, although the order is not before us in full, that it shows that it was made by consent. Defendant's counsel insists that the order does not speak the truth, and he insisted both before the presiding judge and the judge to whom the case was assigned that the order should be set aside and the witness, who was a res gestae witness, should not be permitted to testify. We must accept the statement of the presiding judge as appears in the bill of exceptions as to what took place in his court and in his presence. Fire Ins. Co. v. Circuit Judge, 227 Mich. 154, 198 N. W. 712.

It is insisted that there was no transcript of the testimony taken on the examination filed in the recorder's court before the information was filed or the trial begun. But the calendar entries show that defendant waived examination and was bound over for trial at the present term of court. It is also to be inferred from what appears in the record that Harmon had had an examination and that upon the cross-examination of the first witness on the trial of the instant case defendant's counsel was furnished with the transcript of the testimony given on his examination. Obviously the prosecution could not be required to file a transcript of testimony which was not taken upon an examination which had been waived and was not held. Quite as a matter of courtesy defendant's counsel was furnished with a transcript of the testimony of the witnesses given on the examination of Harmon being the same witnesses who were...