Thе defendant, Arthur Goldberg, was arrested charged with robbery аrmed, with intent, if resisted, to kill and maim. On trial he was convicted, *555 and brings error. He claims tbe trial court erred in charging the offense was established, and the only question was the claimed participation of defendant, and in giving undue prominence to the people’s witnesses. He clаims the argument of the prosecuting attorney was prejudicial, and the court erred in failing to properly charge as to the weight to be given defendant’s testimony, and in denying defendant’s motion for a new trial.
The question raisеd by defendant’s first assignment of error has been ruled adversely to his contention in this State.
People
v.
Bryan,
The statute, Act No. 175, Pub. Acts 1927, chap. 8, § 29, gives-the court the right, in his charge to “make such cоmment on the evidence, the testimony and character of any witness, as in his opinion the interest of justice may require.”
Defendant complains that the court charged that in determining the credibility of the witnesses the jury was to take into consideration the surroundings of the witnesses for the people and their ability to absolutely identify defendant. The charge was warranted by the facts, and was as favorable to defendant as he was entitled to. Thе court said they were to take these things into considеration with the other testimony in the case, and chargеd that, when they had considered the testimony, one of two verdicts could be rendered. We do not think the court еrred to defendant’s prejudice.
Defendant contеnds there was error in the argument of the prosecuting attorney. There is nothing in the record indicating the court’s attention was called to the alleged erroneous argument during the trial; that he was given any opportunity to сorrect
*556
the same; that any ruling was requested, or any еxceptions taken to the claimed erroneоus argument at the time. Under such circumstances, this court will nоt consider the question.
People
v.
Giddings,
Defendant’s counsel may not sit by аnd listen to the claimed prejudicial argument of the рrosecuting attorney, relying upon his ability to reply thereto, and, when the verdict is adverse, take a post mortem excеption thereto. If there was anything in the argument prejudicial to defendant, it was the right of defendant’s counsel tо object thereto and assign error thereon.
The аssignment based upon the failure of the court to give the defendant’s sixth request to charge is without merit. The subject wаs properly covered by the charge as given. Dеfendant’s rights were not prejudiced., It is claimed the court erred in not granting a motion for a new trial. The motion fоr a new trial was based upon the affidavit of one Chаrles Chester Howard, while he was a prisoner in Marquettе, which affidavit is.not signed by Howard. Under the circumstances, we do not think the court abused his discretion in denying defendant a new trial.
People
v.
Francis,
Conviction affirmed.