A jury convicted defendant of first-degree murder, MCLA 750.316; MSA 28.548, and he was sentenced. His application for delayed appeal was granted.
On May 18, 1970, a residential fire occurred at 1554 Lemay in Detroit which claimed the lives of two young girls. A cause of the fire was a Molotov cocktail thrown at the residence by one Meadows. The prosecution claimed that defendant aided and abetted Meadows by acting as a lookout while the latter threw the Molotov cocktail. Other facts will *299 be noted in the discussion of the issues raised on appeal.
The first issue is a weight of the evidence question. Our inquiry is, was evidence produced which, if believed, could certainly lead to a reasonable inference that defendant was a party to the offense?,
People v Ford,
During final argument, the prosecuting attorney commented on the failure of defendant to produce additional alibi witnesses. Defendant now claims that this constitutes an impermissible inference of guilt. No objection to the comment was made at trial. The defense was alibi and the one alibi witness produced named others who were present when defendant was allegedly in the presence of the alibi witness. It was not shown that the others were unavailable. That the comment complained of was proper see
People v Falkner,
We find no merit in defendant’s contentions that the trial court affirmatively mislead the jury with respect to sentence and that sentence constituted cruel and unusual punishment.
At trial, defendant offered to stipulate that a burning took place and that two deaths occurred as a result thereof. The prosecuting attorney declined the offer and put in his proof of these facts. Defendant asserts error because he claims the
*300
prosecuting attorney’s refusal permitted prejudicial and unnecessary evidence to be heard by the jury. The refusal to accept the offer cannot be the basis of error, however. As stated in
People v MacPherson,
"Furthermore, the prosecutor had the right to prove by competent testimony the facts material to the people’s case. Counsel for defendant could not preclude the exercise of such right by undertaking to make an admission on behalf of his client.”
The testimony of witness Coleman was crucial to the prosecution. It is apparent from the record that Coleman had a juvenile record, in addition to his current record of being in the youth home for running away from home. Defendant concedes that no request for this record was made to the prosecuting attorney. The record does not disclose that the prosecuting attorney had Coleman’s past juvenile record or that the prosecuting attorney knew of this record. Defendant now contends that his due process rights were violated because the prosecuting attorney failed to disclose a record it is not shown the prosecuting attorney had or knew about. If the trial record disclosed that the prosecuting attorney had, controlled, or knew of Coleman’s past juvenile record, we would reverse,
People v Nettles,
In addition, on cross-examination of Coleman, defense counsel voluntarily stopped the cross-examination after Coleman had acknowledged that his current residence was the youth home and that he was there as a runaway. Further inquiry could well have disclosed the prior juvenile record.
*301 During Coleman’s testimony, he gave the unresponsive conclusion that Fuller was "watching out for Zerious [Meadows]”. No objection was made to this conclusionary statement. The issue was not preserved for appeal.
Affirmed.