People v. Ulbrick, Docket No. 6405

• Decision Date: 22 June 1970
• Docket Number: No. 1,Docket No. 6405,1
• Citation: 24 Mich.App. 437,180 N.W.2d 287
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Anthony ULBRICK, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 287

180 N.W.2d 287

24 Mich.App. 437

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Frank Anthony ULBRICK, Defendant-Appellant.

Docket No. 6405.

Court of Appeals of Michigan, Division No. 1.

June 22, 1970.

Released for Publication Oct. 26, 1970.

Fred A. Garon, Tauber & Garon, Detroit, for defendant-appellant.

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

Before FITZGERALD, P.J., and J. H. GILLIS and O'HARA, ^* JJ.

O'HARA, Judge.

On August 28, 1968, defendant was charged with reckless driving. M.C.L.A. § 257.626 (Stat.Ann.1968 Rev. § 9.2326). In October, 1968, he pled not guilty before a referee in the traffic and ordinance division of Detroit Recorder's Court. At trial, on October 9, 1968, defendant appeared with counsel and offered a plea of careless driving. The court, sitting without a jury, did not accept the plea but rather chose to 'hear the testimony and see how it develops.'

The arresting officer then testified as to the details surrounding the alleged violation. Following the officer's testimony, the defendant was offered an opportunity to testify. He declined. The court then questioned the defendant about his age and criminal record and also about his desire to enlist in the armed services. Defendant's attorney also questioned the accused. In part, the colloquy went as follows:

'MR. GARON: Outside your traffic record, you have never been in any difficulty.

'THE DEFENDANT: No.

'MR. GARON: Never been arrested or convicted for any crime in the state of Michigan, right?

'THE DEFENDANT: No, sir.

'MR. REUTHER: (Assistant Prosecuting Attorney):

'Your Honor. I believe the record is incomplete. The officer states that he had this gentleman here about a month ago, is that correct?

'THE COURT: Well, a month ago for what? Something else?'

'THE OFFICER: Reckless driving. It was reduced to careless driving.

'THE COURT: I see that here. That was in May. Well, at any rate * * * (We) (f)ind you guilty * * *' (emphasis added)

Defendant argues on appeal that the prosecutor's comments were prejudicial. However, defendant having failed to raise any objection at trial, the question has not been properly preserved for review. People v. Dodson (1967), 9 Mich.App. 123, 155 N.W.2d 876; People v. Will (1966), 3 Mich.App. 330, 142 N.W.2d 467; People v. Camak (1967), 5 Mich.App. 655, 147 N.W.2d 746.

Defendant also claims that he was wrongfully deprived of his right to trial by jury. However, defendant was here charged with an offense cognizable by a justice of the peace. M.C.L.A. § 774.1 (Stat.Ann.1954 Rev. § 28.1192). A waiver of jury trial in such a case need not be in writing. M.C.L.A. § 763.3 (Stat.Ann.1954 Rev. § 28.856); People v. Redman (1930), 250 Mich. 334, 230 N.W. 196. The record reveals that defendant was represented by counsel and went to trial without any indication of a desire for trial by jury. Under these circumstances, the defendant is deemed to have waived his right to jury trial.

Affirmed.

* MICHAEL D. O'HARA, former Associate Justice of the Michigan Supreme Court, appointed by the Supreme Court for the hearing month of May, 1970, pursuant to § 306 P.A.1964, No. 281.