Docket 9248 | Mich. Ct. App. | Apr 28, 1971
PEOPLE
v.
BOWMAN
Michigan Court of Appeals.
*263 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
Earle S. Clark, II, for defendant.
Before: DANHOF, P.J., and McGREGOR and LEVIN, JJ.
PER CURIAM.
Robert Bowman and a codefendant were tried for and convicted of the crime of breaking and entering on May 13, 1969, after a two-day jury trial. Defendant's motion for a new trial in the circuit court was denied February 17, 1970, and he appeals as of right.
A witness observed from his bedroom window on the second floor of an apartment building, defendant and his codefendant, on February 19, 1969, from about 5:15 a.m. until 5:30 a.m. The two men had driven into the parking lot reserved for tenants of the apartment building and, after waiting in their car for a short while, walked across the parking lot, climbed a fence, and broke in the rear door of a nearby building, a drive-through dairy. The witness immediately called the police, who apprehended both men while they were attempting to conceal themselves within the building. The rear door bore evidence of having been forced and broken open.
Defendant assigns several issues for our consideration, none of which were raised at trial by appropriate objection or request. He also asks us to review the exercise of discretion of the trial judge *264 on his motion for a new trial and to find an abuse thereof. People v. Love (1969), 18 Mich. App. 228" court="Mich. Ct. App." date_filed="1969-06-26" href="https://app.midpage.ai/document/people-v-love-1848439?utm_source=webapp" opinion_id="1848439">18 Mich. App. 228.
Defendant's first issue involves the alleged failure of the prosecutor to indorse on the information and call an alleged res gestae witness. There is nothing in the record to show that the prosecutor was aware of the witness before the trial, or that the witness, if called, could have given relevant testimony. The defendant's attorney did not request an adjournment nor did he move for indorsement of the witness. There is no reversible error.
An arresting police officer testified that he found a gun on the premises near where defendant and his codefendant were discovered trying to conceal themselves. The gun was never presented as evidence, nor mentioned again at the trial. The defendant's attorney did not object to the officer's testimony nor move to strike it. Again, we find no reversible error. See People v. Ivy (1968), 11 Mich. App. 427" court="Mich. Ct. App." date_filed="1968-05-27" href="https://app.midpage.ai/document/people-v-ivy-1280672?utm_source=webapp" opinion_id="1280672">11 Mich. App. 427.
The trial court instructed the jury on the primary offense, breaking and entering, and the included offenses of entering without breaking with intent to commit a larceny and entering a building without breaking and without permission. Defendant now claims reversible error for the court's failure to instruct on attempted breaking and entering. The omission on the part of the trial court, however, not only appears to have been warranted by the specific facts of the case, but did not amount to an affirmative exclusion, as was found in People v. Jones (1935), 273 Mich. 430" court="Mich." date_filed="1935-11-12" href="https://app.midpage.ai/document/people-v-jones-3501224?utm_source=webapp" opinion_id="3501224">273 Mich. 430, and People v. Lemmons (1970), 384 Mich. 1" court="Mich." date_filed="1970-09-22" href="https://app.midpage.ai/document/people-v-lemmons-1939310?utm_source=webapp" opinion_id="1939310">384 Mich. 1. The claim of defendant lacks merit. See People v. Allie (1921), 216 Mich. 133" court="Mich." date_filed="1921-10-07" href="https://app.midpage.ai/document/people-v-allie-7951445?utm_source=webapp" opinion_id="7951445">216 Mich. 133, and People v. Jebb (1966), 3 Mich. App. 118" court="Mich. Ct. App." date_filed="1966-04-26" href="https://app.midpage.ai/document/people-v-jebb-1799676?utm_source=webapp" opinion_id="1799676">3 Mich. App. 118, 121.
Defendant's last claim of error is that the trial court's instruction regarding defendant's right not *265 to testify gave undue emphasis to the fact that he had not testified. This claim is devoid of merit.
Conviction affirmed.