People v. Tamosaitis

• Decision Date: 01 October 1928
• Docket Number: No. 129.,129.
• Citation: 244 Mich. 258,221 N.W. 307
• Parties: PEOPLE v. TAMOSAITIS.
• Court: Michigan Supreme Court

244 Mich. 258

221 N.W. 307

PEOPLE

v.TAMOSAITIS.

No. 129.

Supreme Court of Michigan.

Oct. 1, 1928.

Error to Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Gabriel Tamosaitis was convicted of illegally possessing intoxicating liquor, and he brings error. Affirmed.

Argued before FEAD, C. J., and NORTH, FELLOWS, WIEST, CLARK, McDONALD, and SHARPE, JJ. Michael Garvey, of Grand Rapids, for appellant.

Earl W. Munshaw, Pros. Atty., of Grand Rapids, for the People.

SHARPE, J.

Defendant reviews his conviction by writ of error on a charge of illegal possession of intoxicating liquor.

1. A motion was made to suppress the evidence obtained under the search warrant under which defendant's premises were searched. No evidence was submitted in support of the motion. It was based, as stated therein, upon ‘the testimony produced at the preliminary examination.’ This testimony does not appear in the record. We cannot say that there was error in the denial of the motion.

2. After the defense had rested, the people called Robert Tetro as a witness in rebuttal. Objection was made because his name was not indorsed on the information. He was permitted to testify, after which a motion to strike out his testimony for the same reason was made and denied. Error is assigned on such action.

Under section 15761, 3 Comp. Laws 1915, the prosecuting attorney was required to indorse on the information ‘the names of the witnesses known to him at the time of filing the same.’ It also provided that:

‘At such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him.’

Section 40 of chapter 7 of Act No. 175, Pub. Acts 1927 (the Code of Criminal Procedure), requires the indorsement of the names of witnesses at the time of filing, as did the former law. It, however, provides:

‘Names of other witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.’

This Code was drafted by a commission appointed by the Governor under Act No. 15, Pub. Acts 1926 (extra session), to prepare ‘a complete codification of the laws pertaining to crime and criminal court procedure.’ Many changes were made in the procedure, the purpose of which was to extend the power of the trial court, and to eliminate requirements which in no way prejudiced the rights of the accused. When introduced in the Legislature, the last clause of section 40 read:

‘Names of other witnesses, not intentionally omitted from the information at the time of filing, may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.’ 1 House Journal 1927, 533.

The change made by the Legislature clearly indicates an intention to vest an even wider discretion in the trial court than that proposed by the commission....