People v. Tiner, Docket No. 6056
| Citation | 17 Mich.App. 18,168 N.W.2d 911 |
| Decision Date | 21 April 1969 |
| Docket Number | No. 2,Docket No. 6056,2 |
| Parties | PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Chester TINER, Defendant-Appellant |
| Court | Court of Appeal of Michigan (US) |
William J. Hayes, Flint, for appellant.
Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Robert F. Leonard, Pros. Atty., Donald A. Kuebler, Asst. Pros. Atty., Genesee County, Flint, for appellee.
Before LESINSKI, C.J., and BURNS and KELLEY *, JJ.
Appellant was charged with the shooting death of Charlie Coleman contrary to the provisions of C.L.1948, § 750.316 (Stat.Ann.1954 Rev. § 28.548). A jury trial was had in the Genesee county circuit court, Stewart A. Newblatt, J., on February 28 and 29 1968, with the jury returning a verdict of guilty of murder in the second degree on March 1, 1968. 1 On April 30, 1968, appellant was sentenced to a term of 19 to 35 years in prison. The sole contention of error, upon which appellant claims on appeal that he is entitled to a reversal of his conviction and a new trial, is that the prosecution failed to produce an indorsed witness.
The appellant claims that the witness, an expert from the Michigan State Crime Laboratory in East Lansing, might have supported his defense that the shooting was accidental. Appellant asserts that the cases of People v. Kayne (1934), 268 Mich. 186, 255 N.W. 758, and People v. Dickinson (1966), 2 Mich.App. 646, 141 N.W.2d 360, impose a positive duty on the prosecution to indorse and call all Res gestae witnesses to protect the accused against a false accusation and on that basis alone calls for reversal.
From the record it appears that witness in question was indorsed by the prosecution and called but failed to appear. 2 We do not consider it necessary to decide whether or not the witness was Res gestae as asserted by the defendant since once a witness is indorsed it is the duty of the prosecution to secure his presence in court. See People v. Kern (1967), 6 Mich.App. 406, 149 N.W.2d 216. Yet, as we have noted in previous cases the prosecution may be excused from producing that witness if it makes a showing of due diligence. People v. Kern, Supra, p. 410, 149 N.W.2d 216. This question of diligence in production of indorsed witnesses is a matter within the discretion of the trial court, subject to being overturned on appeal only for clear abuse. People v. Gibson (1931), 253 Mich. 476, 235 N.W. 225; People v. Hunley (1946), 313 Mich. 688, 21 N.W.2d 923; and People v. Kern, Supra. We find no such abuse here.
We would point out from the record that it appears the prosecution was just as surprised as the defense at the failure of this witness to appear. We would also point out that in the cases which the parties cite, People v. Dickinson (1966), 2 Mich.App. 646, 141 N.W.2d 360, and People v. Semchena (1967), 7 Mich.App. 302, 151 N.W.2d 895, the defense strenuously objected to the failure of the prosecution to present the witnesses. Here, however, the defense failed to raise this point until it made its motion for a new trial after the verdict was in. The defense made no application for a continuance; therefore, there was no error saved for appeal. People v. Gibson (1931), 253 Mich. 476, 235 N.W. 225; People v. Woods (1966), 5 Mich.App. 356, 146 N.W.2d 679. There is more than ample evidence in the record to convince beyond a reasonable doubt that defendant was guilty of murder in the second degree. People v. Williams (1962), 368 Mich. 494, 118 N.W.2d 391; People v. Ovalle (1968), 10 Mich.App. 540, 159 N.W.2d 847. This Court will not reverse a trial court unless we are convinced that there was error committed which deprived the defendant of substantial rights of which resulted in a miscarriage of justice. See People v. Amos (1968), 10 Mich.App. 533, 159 N.W.2d 855; People v. Thomas (1967), 7 Mich.App. 519, 152 N.W.2d 166; C.L.1948, § 769.26 (Stat.Ann.1954 Rev. § 28.1096).
We find no such error here. We find no substantial merit in the questions sought to be reviewed and, therefore, affirm the conviction.
* JAMES J. KELLEY, Jr., Circuit Judge for the County of Monroe,...
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People v. Barker
...we cannot help but find that the trial court erred in its finding that there was due diligence under the facts of this case. See also People v. Tiner, Supra. This case seems to us to be paradigmatic of the command set down in People v. Kayne, Supra, p. 194, 255 N.W. p. 761, under 'the state......
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People v. Alexander, Docket No. 7411
...is a matter within the discretion of the trial court, subject to being overturned on appeal only for clear abuse. People v. Tiner (1969), 17 Mich.App. 18, 168 N.W.2d 911; People v. Kern, Supra; People v. Hunley (1946), 313 Mich. 688, 21 N.W.2d 923; People v. Gibson (1931), 253 Mich. 476, 23......
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...court erred in permitting the testimony to stand, 6 we fail to find any prejudice to defendant resulting therefrom. People v. Tiner (1969), 17 Mich.App. 18, 168 N.W.2d 911. Finally, Grimmett claims that the trial court's sentence of fourteen years and eleven months to fifteen years violates......
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People v. McNary
...refusal to instruct the jury on the significance of the prosecution's failure to produce a Res gestae witness. People v. Tiner, 17 Mich.App. 18, 20--21, 168 N.W.2d 911, 912 (1969), gives us the applicable law on this question: 'We do not consider it necessary to decide whether or not the wi......