People v. Threkeld
| Decision Date | 25 June 1973 |
| Docket Number | Docket No. 13059,No. 2,2 |
| Citation | 209 N.W.2d 852,47 Mich.App. 691 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Charles E. THRELKELD and George H. Penny, Jr., Defendants-Appellants |
| Court | Court of Appeal of Michigan — District of US |
Barry F. Keller, Wilson, Portnoy, Basso, Keller & Avadenka, Bloomfield Hills, for defendants-appellants.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., L. Brooks Patterson, Pros. Atty., for plaintiff-appellee.
Before FITZGERALD, P.J., and McGREGOR and TARGONSKI, * JJ.
The appellants were convicted of carrying concealed weapons without a license. 1 Both appellants were sentenced to a term of from 4 to 5 years in prison.
On July 6, 1970 at approximately 4:00 a.m., two officers of the Royal Oak Police Department responded to a call which indicated that a woman was screaming at Lincoln and Woodward Avenue. Upon arriving at the intersection, the officers pulled into a restaurant parking lot blocking the exit of an automobile which contained the two appellants and three females. The appellants were in the front seat of the vehicle and the women were in the back seat.
The officers got out their car and were approached by one of the woman who had gotten out of the back seat. At this point, the woman told one of the officers that she had been screaming at her boy friend for being with another woman. One of the appellants got out of the car and began to get out his identification.
Meanwhile, the second officer had approached the passenger side of the vehicle and when he turned the flashlight on to look at the passenger's hands, he observed the butt of a revolver protruding from under the right front seat. The officer opened the door, grabbed the gun, and asked the passenger in the front seat to step out of the car. After this request was complied with, the officer reached under the seat and found another revolver. The women passengers were removed from the car, arrested, and placed in a police car.
One of the officers returned to the car for the purpose of driving it back to the station and upon opening the door, he observed a third revolver between the door and the left front seat. When the officer arrived at the police station with the car, he looked into the glove compartment of the car and found a fourth revolver.
At trial, defense counsel moved to suppress the admission into evidence of the last three guns found by the police. This motion was denied.
The three females who were in the back seat of the appellant's car at the time of the arrest were not called by the people. At the close of the people's case, defense counsel moved to dismiss for failure to produce these women as Res gestae witnesses. This motion was denied by the trial court on the grounds that these witnesses were accomplices.
From these rulings, the appellants bring this appeal.
The appellants' first claim, that it was error to deny their motion to dismiss because of the prosecution's failure to endorse and call all of the occupants of the automobile as witnesses, is based on their claim the females were not accomplices because they were neither codefendants or ever charged with the crime.
It is well settled that the state has a duty to endorse upon the information and to produce all Res gestae witnesses. People v. Green, 34 Mich.App. 149, 190 N.W.2d 686 (1971); People v. June, 34 Mich.App. 313, 191 N.W.2d 52 (1971). However, it is equally well established that the prosecution is not obligated to endorse or produce accomplices. People v. Crown, 33 Mich.App. 266, 189 N.W.2d 810 (1971); People v. Moore, 29 Mich.App. 597, 185 N.W.2d 834 (1971). In People v. Raider, 256 Mich. 131, 135--136, 239 N.W. 387, 389 (1931), the rationale for the exceptions to the Res gestae rule was stated as follows:
'Obviously the exceptions were founded upon the recognized inclination or inducement of those close to the accused, by community of interest in the crime or relationship, to perjure themselves, if they deem it necessary, in his behalf, and the incongruity of requiring the prosecution to make such witnesses its own.'
This exception only applies if the witness was indeed an accomplice of the accused. Thus, in order to reach a proper disposition of this issue, it is necessary to determine whether a person must be charged with the crime in order to be an accomplice.
Research has disclosed that this question is not entirely foreign to this Court. In People v. Moore, 29 Mich.App. 597, 185 N.W.2d 834 (1971), the question was raised whether an accomplice should be made a Res gestae witness once the charges, are dropped. This Court, in concluding that such a witness need not be called stated:
'The reasons for the exception to the general rule apply with equal force Whether or not the witness has been charged, and whether or not the action, if any, against him is still pending.' (Emphasis added.) People v. Moore, Supra, at 601, 185 N.W.2d at 837.
This issue was again dealt with indirectly in People v. Fidel, 37 Mich.App. 338, 194 N.W.2d 732 (1971). In Fidel the prosecution called a witness who had not been charged with the crime but had admitted his participation in the crime. The prosecution called him as a Res gestae witness and proceeded to impeach him when he repudiated his previous inculpatory statements concerning the defendants. The Court held that it was error to allow the prosecutor to impeach this witness since he was an accomplice which relieved the prosecution of any duty to call him under the Res gestae rule.
Although these cases are not dispositive of this issue, they do stand for the proposition that a person may be treated as an accomplice, with respect to the Res jestae rule, even though he has not been formally charged or convicted of the crime.
In order to determine whether these witnesses were accomplices, it seems necessary to define what an accomplice is. This definition is stated in 23 C.J.S. Criminal Law § 786(1), pp. 3--4, as follows:
'The usual test by which to determine whether or not one is an accomplice of an accused on trial is whether or not he could be prosecuted and punished for the crime with which the accused is charged, or, as it otherwise has been expressed, whether his participation in the offense was criminally corrupt, or whether he is culpably implicated in the commission of the crime with which accused is charged; and 'accomplice' has been defined as one who is liable to prosecution for the identical offense charged against accused on trial in the cause in which the testimony of the accomplice is given.'
Thus, a person is an 'accomplice' if he Could be charged with the same offense as the accused is charged. Obviously, each case will have to be judged according to its own facts.
With respect to this case, the appellants were charged with carrying dangerous weapons. The elements of the crime and the proof needed for conviction were stated by this Court in People v. Jerome Smith, 21 Mich.App. 717, 722, 176 N.W.2d 430, 433 (1970), as follows:
'Thus, to convict one who is merely present in a car necessarily rests upon two inferences: (a) an inference that he knows a pistol is present; and (b) an inference that he is carrying the pistol.'
In the instant case the trial court, in denying the appellants' motion to dismiss, used the following reasoning for...
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