People v. Wardell

• Court: Court of Appeal of Michigan
• Writing for the Court: Before LESINSKI; McGREGOR
• Citation: People v. Wardell, 181 N.W.2d 788, 26 Mich.App. 69 (Mich. App. 1970)
• Decision Date: 24 August 1970
• Docket Number: Docket No. 6660,No. 2,2
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph WARDELL, Defendant-Appellant

Page 788

181 N.W.2d 788

26 Mich.App. 69

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Joseph WARDELL, Defendant-Appellant.

Docket No. 6660.

Court of Appeals of Michigan, Division No. 2.

Aug. 24, 1970.

Released for Publication Dec. 28, 1970.

George Hamilton Foley, Stackable & Foley, Lansing, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Raymond L. Scodeller, Pros. Atty., for appellee.

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

McGREGOR, Judge.

A complaint and warrant were issued against defendant, charging that he did break and enter with intent to commit larceny therein a certain building, to wit: Robinson's Super City. C.L.1948, § 750.110, as amended by P.A.1964, No. 13 (Stat.Ann.1965 Cum.Supp. § 28.305.) Following his arrest, an examination was held and defendant was bound over to the circuit court. When defendant was arraigned, he stood mute and a plea of not guilty was entered for him. Prior to his trial, a motion to suppress evidence was filed; the motion was granted on the day of the trial. A jury returned a verdict of guilty as charged and defendant was sentenced. After denial of his motion for a new trial, defendant appealed by right.

It is undisputed that on April 7, 1968, Robinson's Super City was broken into and a number of guns were stolen. In the early morning hours after the robbery, three men, this defendant, Bob Ripley, and Roger Thayer, brought a box which contained some of the guns into the home of Carol Rist. The guns remained in the Rist home for about 3 days; during this time they had not been divided among the participants of the robbery nor had they been sold. Also during this time, a man came from Detroit who was going to buy the guns; Joseph Wardell was not there at that time and Bob Ripley showed him the guns. After Roger Thayer shot himself, apparently while engaging in 'Russian roulette,' the guns were taken out of the house in an attempt to conceal them.

During the trial, the prosecution called 9 witnesses. Of particular importance to this appeal is the testimony of several witnesses who gave testimony which directly implicated defendant Wardell. The only meritorious issues stem from hearsay statements made by the alleged participants of the breaking and entering, which were heard and related by witnesses at trial. One witness testified that one of the participants was her brother and that, on the day following the break-in of the store, she had a conversation with him in the presence of defendant Wardell and that the conversation was about some guns. She testified that she had asked her brother where he had obtained the guns and that he told her they had stolen the guns from Robinson's Super City. Defense counsel objected to the admission of this statement; the court over-ruled the objection.

Another witness testified to the effect that she was present at Carol Rist's home on the day following the robbery, that she heard the fellows talking, one of the fellows being this defendant, about getting some guns from Robinson's Super City, and that during the conversation, something was said about a hole in the wall. Other incriminating remarks were made during this conversation, although it was not known if any were made by this defendant. Defense counsel objected to the admission of this testimony and was again over-ruled by the court.

Defense contends that the clear and unmistakable import of these witnesses' statements were used to implicate the defendant in the crime charged, and asserts that the record does not support the proposition that this defendant acquiesced, by word or comment, in any of the...