People v. Rosborough, Docket No. 4902

• Decision Date: 23 March 1970
• Docket Number: No. 1,Docket No. 4902,1
• Citation: 22 Mich.App. 410,177 N.W.2d 697
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myrene ROSBOROUGH et al., Defendants-Appellants
• Court: Court of Appeal of Michigan — District of US

Page 697

177 N.W.2d 697

22 Mich.App. 410

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Myrene ROSBOROUGH et al., Defendants-Appellants.

Docket No. 4902.

Court of Appeals of Michigan, Division No. 1.

March 23, 1970.

Released for Publication June 26, 1970.

Philip A. Gillis, Detroit, for defendants-appellants.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William L. Cahalan, Pros. Atty., Dominick R. Carnovale, Chief, Appellate Div., Patricia J. Pernick, Asst. Pros. Atty., for plaintiff-appellee.

Before LESINSKI, C.J., and QUINN and V. J. BRENNAN, JJ.

QUINN, Judge.

October 11, 1966, a jury convicted defendants of conspiracy to violate gambling laws.* After sentence, they moved for a new trial which was denied, and they appeal.

Defendants contend they were prejudiced by repeated prejudicial remarks of the prosecuting attorney and police witnesses, persistent attempts by the prosecuting attorney to introduce incompetent evidence and improper closing argument by the prosecuting attorney. As to the latter point, no objection thereto was made at trial and it is not considered on appeal. People v. Hider (1968), 12 Mich.App. 526, 163 N.W.2d 273.

Our review of the record does not disclose either repeated prejudicial remarks by the prosecuting attorney or his persistent attempts to introduce incompetent evidence. With respect to the latter, the record indicates that the prosecuting attorney's efforts to introduce evidence already excluded by the trial judge could have arisen from the prosecuting attorney's misunderstanding of the exclusionary ruling as well as from a deliberate attempt to introduce incompetent evidence, as defendants allege. In such a situation, the curative instruction given by the trial judge after he denied defendants' motion for mistrial was sufficient to overcome any prejudice to defendants of a reversible nature.

Next, defendants claim they were deprived of a fair trial because the trial judge disallowed questions put by the defense without objection thereto by the prosecuting attorney and the trial judge did not extend similar treatment to the prosecuting attorney. Implicit in this claim is the assertion that the trial judge must treat both sides equally, otherwise the jury may consider him an ally of the people.

The duty of a trial judge at trial is specified in C.L.1948, § 768.29 (Stat.Ann.1954 Rev. § 28.1052). Exercise of this duty entails wide discretion on the part of the trial judge, and it is only where an abuse of discretion is shown that an appellate court should interfere with the result of an exercise of that duty. People v. Shaw (1968), 9 Mich.App. 558, 157 N.W.2d 811. Abuse of discretion is demonstrated not by alleged unequal treatment of defendants as opposed to the prosecution but rather by a showing that defendants had an unfair trial. We did not find such to be the case in People v. Lloyd (1967), 5 Mich.App. 717, 147 N.W.2d 740, nor do we find it here.

Defendants state their next issue as: 'Were defendants prejudiced by being required to answer charges not made in the information?' We consider this to be a 'straw man' created by defendants for the purpose of knocking it down. The basis for the issue and defendants' argument on it is the fact that a police officer was permitted to testify as to how a mutual combine operates. The trial court properly instructed the jury that the testimony was only a general explanation of how the system worked. In addition, the present question was not presented to the court below.

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