Defendants were convicted by a jury on January 31, 1973, of assault with intent to murder. MCLA 750.83; MSA 28.278. On February 21, 1973, both defendants were sentenced to 30 to 50 years imprisonment with appropriate credit for time already spent in jail. Defendants appeal as of right alleging that numerous errors were committed during the course of their trial. Further facts will be presented in our discussion of the issues.
Defendant Collins first contends that the trial court erred when it denied his request to sever his trial from that of defendant Clark. We find no error. In the absence of an affirmative showing that a joint trial prejudiced substantial rights of the defendant, denial of a motion fоr separate trials will not be disturbed on appeal.
People v Rowls,
Defendant Collins also claims that the trial court erred in refusing to grant his motion for mistrial when co-defendant Clark introduced evidence allegedly indicating that both defendants wanted to plead guilty but that the prosecutor would not consider such a plea. At the beginning of the trial, the trial court ruled that the evidence in question was inadmissible, and specifically instructed counsel for defendant Clark to that effect. Notwithstanding this fact, Clark’s attorney proceeded to introduce evidence with the intent to indicate to the jury that onе or both of the co-defendants had offered a plea of guilty which the prosecutor had rejected. The trial court, in accordance with its prior ruling, ruled this evidence inadmissible. While we are of the opinion that the actions of defendant Clark’s counsel were improper, we do not fеel that his actions make a mistrial necessary.
The test for a mistrial motion is not whether there were some irregularities but instead did the defendants have а fair and impartial trial.
People v Foster, supra, People v Watson,
Next, both defendants assert that numerous remarks of the prosecutor during closing and rebuttal argument were so prejudicial as to deny defendants a fair and impartial trial. However, defendants objected to only one of these statements. The question of the appropriateness of the other statements is not now properly before us, since we аre of the opinion that an objection and appropriate instruction could have cured any alleged prejudice resulting from the remarks in question.
People v Harrell,
The next contention raised by defendants is that the trial court erred in its instructions to the jury when it included a chаrge of aiding and abetting. Defendants argue that since the information filed by the prosecutor never included a charge of aiding and abetting, the charge was erroneous and resulted in a denial of due process.
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We disagree. We consider this Court’s statement in
People v Hooper,
"The first claim of error raised on appeal is that the information charged the defendant with larceny from a building but the trial court instructed the jury on aiding and abetting, despite the fact that he was not charged, in the information, as an aidеr and abettor. It is contended now that this procedure resulted in a denial of due process since he was not given notice of the charges against him.
"We do not agree. It is well settled that an aider and abettor may be indicted, tried, and on conviction punished as a principal and no deniаl of due process results from charging an aider and abetter as a principal. People v Lamson,44 Mich App 447 ;205 NW2d 189 (1973); People v Palmer,42 Mich App 549 ;202 NW2d 536 (1972); People v Dockery,20 Mich App 201 ;173 NW2d 726 (1969); People v Elmer Weatherspoon,6 Mich App 233 ;148 NW2d 891 (1967).”
The next contention raised by defendant Collins is that his conviction must be reversed due to the prosecutor’s reference to prior misconduct which did not result in conviction.
Defendant Collins failed to object to аny of the allegedly improper questions, and this precludes appellate review unless a manifest injustice is shown.
People v Hooper, supra, People v LeRoy Goodwin,
”Q. Did you fill out a request to purchase those guns?
"A. Yes, I did.
*345 "Q. What did you say on the form, where it asks, have you ever been convicted of a crime?
"A. I said no.
”Q. You lied, and you want the jury to believe your testimony tоday?
"A Yes, I do.”
It is important to note that the fact of the gun purchase and the existence of the witness’s prior convictions had already been brought out on direct examination by defendant Collins’ attorney.
Under these circumstances, we do not feel that a miscarriage of justice resulted from this questioning. Thе cross-examination in question does not indicate that the prosecutor was asking the witness about any prior convictions or offenses that did not result in conviction. The witness was not examined about any prior arrests. Rather, the witness was cross-examined concerning his direct testimony that he had purсhased the guns that were found at the scene and which were used in the shooting. It must be remembered that on direct examination, the witness admitted to having been convicted of several other crimes. It is our opinion that by this cross-examination, the prosecutor was not questioning the witness about prior misconduct which did not result in conviction, but rather was attempting to show to the jury that the witness had lied in filling out his request for a gun permit and thus was not a person worthy of beliеf. Therefore, we find that this questioning does not necessitate reversal.
Defendant Collins next argues that he is entitled to be resentenced because the trial court considered a constitutionally invalid prior conviction and mere arrests that did not result in conviction.
As to defendant Collins’ claim that thе court improperly considered a constitutionally invalid
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prior conviction, we refrain from considering that contention since defendant has nоt complied with the procedures set forth in
People v Moore,
Defendаnt Collins’ secondary claim that error resulted from the consideration at sentencing of arrests not resulting in conviction is without merit. Defendant Collins has not presented any evidence to show that the trial court relied in any way on these arrests in determining the sentence defendant was to receive, nоr does he challenge the arrests as being listed inaccurately. Therefore, it is our opinion that no error was committed requiring resentencing and thаt defendant has suffered no prejudice.
People v Robert Hall, supra, People v Pettis,
Finally, we have carefully considered defendants’ remaining assignments of error. No error warranting or requiring reversal of defendants’ convictions has been disclosed. These claims were either not preserved on appeal or do not require decisional discussion.
Affirmed, but without prejudice to defendant Collins to bring an appropriate motion in the trial court as permitted under
People v Moore,