172 N.W.2d 875 | Mich. Ct. App. | 1969
CITY OF DETROIT
v.
O'CONNELL
Michigan Court of Appeals.
*539 Robert Reese, Corporation Counsel, and Cornel Smith, Assistant Corporation Counsel, for the city of Detroit.
Peter C. Sulser, for defendant.
Before: FITZGERALD, P.J., and McGREGOR and V.J. BRENNAN, JJ.
Leave to appeal denied January 27, 1970. See 383 Mich 762.
PER CURIAM.
This is an appeal from a jury verdict in recorder's court for the city of Detroit, traffic and ordinance division, finding defendant guilty of a violation of the building code of the city of Detroit. Appellant contends that testimony of other building code violations, with which he was charged, necessitated a new trial when these companion charges were stricken. He also contends that prejudicial error occurred when a witness for the city referred to building code violations he had found on a prior inspection.
With reference to the striking of the five companion offenses, we note that all of these charges were based upon substantially the same transactions and that all of the acts occurred within the same period and were related to the same real estate.
The court, in dismissing these charges, found that the prosecution had not sustained the burden of proof in these charges sufficiently to go to the jury.
"The court may at any time before, during, or after the trial amend the indictment in respect to *540 any defect, imperfection or omission in form or substance or any variance with the evidence." MCLA § 767.76 (Stat Ann 1954 Rev § 28.1016).
We find as to the above that no prejudicial error occurred. The record indicates that proper instructions were given to the jury by the court cautioning the jurors to consider only that evidence pertaining to the remaining charge during their deliberations.
Regarding the statement made by the city's witness, there was no prejudicial error committed here in that the testimony was stricken and the court charged the jury on this point sufficiently to correct any defect that might have arisen.
"A voluntary and irresponsive answer to a proper question does not ordinarily constitute error." People v. Todaro (1931), 253 Mich 367, 375.
"If there was error in the admission of this testimony, it was not prejudicial because when stricken out the error was cured." People v. Mitchell (1941), 298 Mich 172, 181.
This Court finds no prejudicial error. Affirmed.