181 N.W.2d 633 | Mich. Ct. App. | 1970
PEOPLE
v.
GIBSON
Michigan Court of Appeals.
*623 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Kenneth A. Webb, for defendant on appeal.
Before: McGREGOR, P.J., and J.H. GILLIS and O'HARA,[*] JJ.
PER CURIAM.
Defendant was convicted of breaking and entering a doctor's office with intent to commit a larceny therein. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). At trial, the complaining witness testified, over defense counsel's objection, that, after the break-in, defendant came to him and asked that he not press charges because defendant had a bad criminal record. After reviewing the record, we are satisfied that the witness's remark was not anticipated or pressed for by the prosecutor. Under such circumstances, a new trial need not result where, as here, the trial court applies the proper corrective. People v. Smith (1970), 22 Mich App 133; People v. Podsiad (1940), 295 Mich 541; People v. Rozewicz (1924), 228 Mich 231.
Error also is claimed as to an unresponsive remark by an employee of the complaining witness, who discovered the defendant in the doctor's office. At trial, she was relating the events at the doctor's office, wherein she encountered the defendant and the defendant allegedly told her that he was merely investigating the break-in. The witness then rhetorically asked, "Why did he have on gloves, if that's *624 what he did?" Although error, we have examined the trial transcript and find that the other evidence of defendant's guilt is substantial and that no miscarriage of justice has resulted from the witness's unresponsive testimony. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).
Affirmed.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
