People v. Williams

• Decision Date: 05 December 1974
• Docket Number: Docket No. 18426,No. 3,3
• Citation: 225 N.W.2d 691,57 Mich.App. 199
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Riley Roger WILLIAMS, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 691

225 N.W.2d 691

57 Mich.App. 199

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Riley Roger WILLIAMS, Defendant-Appellant.

Docket No. 18426.

Court of Appeals of Michigan, Division No. 3.

Dec. 5, 1974.

Released for Publication Feb. 20, 1975.

James R. Neuhard, State App. Defender, Detroit, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., William C. Buhl, Pros. Atty., for plaintiff-appellee.

Before T. M. BURNS, P.J., and R. B. BURNS and CARLAND,* JJ.

CARLAND, Judge.

Riley Roger Williams was convicted in a jury trial of obstructing, opposing, resisting and assaulting a police officer, M.C.L.A. § 750.479; M.S.A. § 28.747. Defendant denies the commission of the offense and appeals as a matter of right.

Endorsed on the information was the name of one James Williams. A subpoena was served on a James Williams at the correct address. By an unusual coincidence, two persons by the name of James Williams lived at that address. The James Williams upon whom the subpoena was served appeared at the trial and only upon being called to testify did it become apparent that the wrong person had been served. To compound the difficulty in which the prosecutor found himself, it appeared that the James Williams sought as a witness had left the state and was last heard of in Chicago, possibly even in jail. The defense counsel moved for a dismissal.

We need not concern ourselves as to the question of whether the endorsed witness was in fact a res gestae witness. He was endorsed upon the information and the prosecutor was bound to produce him, unless he was excused from doing so.

The trial court ruled due diligence had been exercised by the prosecutor in an attempt to obtain the presence of the real James Williams in court and therefore denied the motion to dismiss.

We thus address ourselves to the question of due diligence. A subpoena was issued and placed in the hands of the officer for service. A proof of service was filed and no irregularity appears upon the face of the return. There was nothing to alert either the officer or the prosecutor of any existing infirmity which might require the exercise of further action to insure the presence of the witness at trial. The fact remains, however, that no service was actually had on the endorsed witness. While it is true that due diligence may not be shown through the mere issuance of subpoena, in this case it would seem that the People took further steps through their attempt to serve the person whose name was endorsed on the information and had done all that should be required of them to do in the light of attendant circumstances.

'Due diligence in law means doing everything reasonable, not everything possible.' State v. Scott, 110 La. 369, 375, 34 So. 479, 481 (1903).

Citing Thomas v. People, 39 Mich. 309, 312 (1878), as authority, the Court in People v. O'Dell, 10 Mich.App. 87, 94, 158 N.W.2d 805 (1968), held that '(M)ere service of a subpoena does not constitute due diligence'. In Thomas, supra, the witness was subpoenaed but did not appear, but there was no showing that he was not available, and the Court then said, 'No effort seems then to have been made to produce him, and no impediment to doing so is shown.' This seems a far cry from that which is claimed by the defendant in the case at bar. In the instant case, it would seem that the prosecutor had done everything reasonable and only on the date of the trial did it appear that the witness was not available.

Although the defense counsel claimed surprise by the absence of the witness, he was no more surprised than was the prosecution. However, no motion for a continuance was made in order that further...