People v. Zesk, 63.

• Citation: 309 Mich. 129,14 N.W.2d 808
• Decision Date: 05 June 1944
• Docket Number: No. 63.,63.
• Parties: PEOPLE v. ZESK.
• Court: Supreme Court of Michigan

309 Mich. 129

14 N.W.2d 808

PEOPLE

v.ZESK.

No. 63.

Supreme Court of Michigan.

June 5, 1944.

Frank Raymond Zesk was convicted of murder in the first degree, and he appeals.

Affirmed.

Appeal from Circuit Court, Shiawassee County; Joseph H. Collins, judge.

Before the Entire Bench.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and James A. Quayle, Pros. Atty., County of Shiawassee, of Corunna, for the People.

Frederick P. Alexander, of Detroit, for respondent and appellant.

BUTZEL, Justice.

Defendant was convicted of murder in the first degree. It was shown that he and one Tony Kozakiewiecz robbed a gasoline station in Owosso, Michigan, on the night of July 20, 1943; that while defendant kept watch outside, Kozakiewiecz entered the station and shot George shaw, the attendant, who died a few days later. Kozakiewiecz and defendant divided the proceeeds of the robbery, approximately $30. It is unnecessary to set forth the many other details of the robbery in view of the questions involved as propounded by appellant and to which we limit our opinion.

It is claimed that the acting prosecutor, both in the opening and closing addresses to the jury, indulged in such highly inflammatory and prejudicial remarks so that defendant did not have a fair trial, and that objections on the part of defendant's counsel would not have eradicated the harm done. Defendant's counsel at the time of the trial made no objections to the remarks.

We have carefully examined the remarks. We find that they were not so prejudicial or improper as to call for reversal particularly in view of the fact that no objections were made. They did not call for any exception to the general rule that objections to argument not made at the trial but made for the first time on appeal will not be considered. People v. Goldberg, 248 Mich. 553, 227 N.W. 708;People v. Connors, 251 Mich. 99, 230 N.W. 931;People v. Korn, 217 Mich. 170, 185 N.W. 817.

Counsel for defendant claims that there was error in the introduction of certain sworn statements made and signed by Kozakiewiecz and two other parties by the names of Jolly and Losey. Kozakiewiecz made a number of statements that contain inconsistencies. His first one did not implicate defendant. He excuses the omission on the ground that he was fearful of bodily harm from defendant. His other two statements not only show that he and defendant perpetrated the robbery in question but others as well. Two statements of Donald Jolly also contain glaring inconsistencies but they do set forth many other crimes in which he said defendant was an active participant. Losey also made a written statement to the effect that he and defendant committed a number of larcenies. These statements undoubtedly had a very damaging effect. They were introduced, not by the prosecution, but by the attorney for defendant. He asked that the entire statements be introduced. No error can be complained of under the circumstances.

The sole witness against defendant was Kozakiewiecz. He pleaded guilty to the crime. He described the minute details in connection with the robbery and murder, and defendant's active participation in it. Notwithstanding any inconsistencies in his previous statements, he was positive in his testimony. Defendant took the witness...