244 N.W.2d 338 | Mich. Ct. App. | 1976
PEOPLE
v.
CARPENTER
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Patricia J. Boyle, Principal Attorney, Research, Training and Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
William A. Haley, Jr., for defendant.
Before: BASHARA, P.J., and R.B. BURNS and QUINN, JJ.
PER CURIAM.
Defendant was convicted by a jury of carrying an unlicensed pistol in a motor vehicle, MCLA 750.227; MSA 28.424, and appeals.
Defendant first contends that the police officers did not have probable cause to search the interior of his auto where the pistol was found. Testimony revealed that the officers were responding to a *83 radio dispatch regarding a fight. As they approached the scene, they observed a man with a towel around his eye standing next to defendant's auto. When officer Gocher neared the car, the man threw the towel inside the car. Officer Gocher ordered the occupants out of the car.
The officer observed a rifle case in plain view, which contained a .44-caliber magnum rifle. He searched the remainder of the car and found a .25-caliber pistol with 75 rounds of ammunition.
The defendant relies upon People v Smith, 393 Mich. 432; 225 NW2d 165 (1975), for the proposition that a long rifle is not a dangerous weapon, and hence, did not give the officers probable cause to search the remainder of the auto. In determining whether probable cause existed so as to render a search reasonable, only the facts, circumstances, and information known to the officers at the time of the arrest and seizure should be considered. People v Gonzales, 356 Mich. 247; 97 NW2d 16 (1959). At the time of the arrest in the instant case, a rifle was a dangerous weapon within the meaning of MCLA 750.227; MSA 28.424. People v Harper, 3 Mich. App. 316; 142 NW2d 496 (1966). People v Smith, supra, was decided subsequent to the arrest in this action.
Defendant next contends that the prosecutor's failure to endorse and produce various unknown persons standing around the car mandates a new trial. We reject this contention because the defendant failed to move for a new trial as mandated by People v Robinson, 390 Mich. 629; 213 NW2d 106 (1973), and applied in People v Ebejer, 66 Mich. App. 333; 239 NW2d 604 (1976).
Defendant's final contention is that the remarks made by the prosecutor were so prejudicial as to require a new trial. The prosecutor referred to the *84 fact that the defendant could have produced the occupant of the back seat of the car if he thought he would testify favorably to him.
An objection was sustained by the trial judge, who instructed the jury that it was to presume the witness would testify favorably for the defendant. He further stated that the defendant did not have the burden of producing any witnesses. We consider the remark adequately cured by proper instruction.
A second remark made by the prosecutor is claimed as error. However, there was no objection. Absent objection we would not reverse where the remarks could have been rectified by a curative instruction. People v Pacely, 51 Mich. App. 67; 214 NW2d 561 (1974), lv den 392 Mich. 786 (1974). A review of the prosecutor's statement convinces us that there was no prejudice to the defendant from the remark, nor was it error.
Affirmed.
