172 N.W.2d 494 | Mich. Ct. App. | 1969
PEOPLE
v.
BILLINGS
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, *349 Prosecuting Attorney, and Donald A. Kuebler, Chief Appellate Lawyer, for the people.
William J. Hayes, for defendant on appeal.
Before: HOLBROOK, P.J., and FITZGERALD and T.M. BURNS, JJ.
PER CURIAM.
Clifford Billings was tried by a jury and convicted on the charge of breaking and entering with intent to commit larceny contrary to CL 1948, § 750.110 as amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp § 28.305). The sole issue raised on appeal is the contention that the trial court erred in failing to instruct the jury to weigh the testimony of defendant's accomplice with caution. The people have filed a motion to affirm the conviction.
The rule in Michigan regarding instructions to the jury on the testimony of an accomplice in a criminal case was clearly stated and followed in the case of People v. Sawicki (1966), 4 Mich. App. 467, 474, 475:
"The comparatively recent case of People v. Zesk (1944), 309 Mich. 129, appears to be analogous to the case at hand. Therein the sole witness against defendant was the accomplice Kozakiewiecz. The defendant's defense to the charge of murder was an alibi, and he produced 9 witnesses, who claimed he was elsewhere than the scene of the crime at the time of the murder. The jury chose to believe the accomplice and returned with a verdict of guilty. On appeal defendant claimed error in the trial judge's failure to direct the jury to look with suspicion upon the testimony of the accomplice, a self-confessed murderer. In affirming the conviction, the Supreme Court quoted from 1 Gillespie, Michigan Criminal Law & Procedure, § 379, as follows:
*350 "The credibility of an accomplice, like that of any other witness, is exclusively a question for the jury, and it is well settled that a jury may convict on such testimony alone, and it is not error for the court to refuse to charge that it is not safe to convict a defendant, on the uncorroborated testimony of an accomplice.'
Also, see, People v. Wallin (1885), 55 Mich. 497; People v. Dumas (1910), 161 Mich. 45; and People v. McCrea (1942), 303 Mich. 213."
It is against this clear precedent that defendant urges this Court to adopt a contrary rule which exists in other jurisdictions. Moreover, the defendant would also have us ignore the fact that no objection was raised at trial and that defense counsel stated affirmatively his belief that the instruction was adequate. See People v. Fortuna (1968), 13 Mich. App. 245; GCR 1963, 516.2.
The motion to affirm the conviction in the trial court is granted.
