Aftеr successfully appealing his first conviction, defendant seeks review of a conviction rendered upon retrial. On July 6, 1966, defendant was convicted by jury verdict of robbery armed in violation of MCLA 750.529; MSA 28.797. This сonviction was affirmed in
People v Henderson,
From this conviction defendant appeals, raising three allegations of error: (1) did the trial judge *55 commit reversible error by denying defendant’s motion to indorse an accomplice as a res gestae witness, (2) did the trial judge commit reversible error by improperly instructing the jury on the lesser offenses included in the charged crime, and (3) did the prosecutor deny defendant a fair trial by cross-examining defendant and an accomplice testifying for the defense in a prejudicial manner?
The facts establishing thе actual commission of the robbery are not disputed and coincide with those set forth in this Court’s previous opinion. Restated briefly, Gleeson Buzzard, an elderly attendant of a Tulsa gas station located in Port Huron, was robbed of approximately $50 by two young men on March 16, 1966. Since defendant was not identified as one of the assailants, the second trial, like its predecessor, attempted to establish defendant’s participation in the crime by evidence that he drove the getaway car and accepted a portion of the proceeds. The prоsecution offered the testimony of Donald Armstrong, 1 an admitted accomplice, for this purpose. This witness, age 16 when the robbery was committed, testified that defendant and one David Harris invited his рarticipation in the robbery of the Tulsa gas station. Defendant gave him a dime to make a telephone call for purposes of distracting the attendant’s attention and Harris obtained a rubber-headed hammer from the trunk of defendant’s car. While defendant waited in the car, this witness accompanied Harris to the gas station. During his pretended telephone conversatiоn, Harris struck the attendant twice with the hammer and took the money from his victim. The duo *56 returned to the car and defendant drove to his home where the "take” was divided three ways.
Unlike the first triál, David Harris testified for the defense. 2 This witness denied defendant’s participation in the crime and related an entirely different story. He described borrowing defendant’s car on the pretense of needing transportation to visit his son who was hospitalized in Warren, Michigan. After driving around he encountered Donald Armstrong, an acquaintance, and suggested they rob the Tulsa gas station. He described the actuаl performance of the robbery in conformity with Armstrong’s testimony, but denied informing defendant of the robbery or sharing the money with him. Upon taking the stand defendant verified Harris’ testimony that the car was borrowed and denied either knowledge of or participation in the robbery. At the conclusion of trial, the jury found the defendant guilty as charged.
Defendant’s first allegation of error effectively chаllenges the prosecutor’s failure to indorse David Harris as a res gestae witness. The prosecutor chose to indorse only the accomplice testifying for the people. Since defendant could secure Harris’ favorable testimony only by offering him as a defense witness, defendant argued that prejudice resulted and filed a motion requesting the prosecution to indоrse Harris. We find no error in the trial judge’s denial of this motion and decline defendant’s invitation to revise the currently recognized exception that the people need not indorse aсcomplices as res gestae witnesses.
People v Toneff,
Defendant further asserts that the trial judge improperly instructed the jury regarding the lesser offenses included in the crime charged. The trial judge instructed the jury that there were three possible verdicts: (1) guilty of armed robbery, (2) guilty of attempted armed robbery, or (3) not guilty. At the time these instructions were given defendant neither requested additional instructions nor challenged the instructiоns as given. The specific difficulty upon which defendant’s claim is predicated occurred when the jury returned from deliberations to ask the trial judge a question; to-wit, "Why are we trying Mr. Henderson on armed robbery when Mr. Harris is already convicted on [sic] an unarmed robbery?” The trial judge responded with the following statement:
"I cannot answer to [sic] this question. Your verdict is to be based upon the evidence and the law given to you in my instructions to you.”
Although this response failed to specifically answer the jury’s question, it did not constitute an improper or misleading instruction requiring reversal. But see,
People v Jones,
Defendant finally alleges that he was denied a fair trial by the prosecutor’s prejudicial cross-examination of him and an aсcomplice testifying for the defense. This preserved challenge is directed toward the manner in which the examination was conducted and the intimation that their testimony was not credible. The prosecutor prefaced many of his questions to defendant and David Harris with phrases such as "Isn’t it true” or "Would you have this jury believe”. Our review of the record indicates that both the proseсutor and defense counsel were confronted with an extraordinary case. The issue of defendant’s participation in the robbery depended exclusively upon the competing tеstimony of Donald Armstrong and David Harris, each an admitted participant in the charged crime. The diametrically opposed testimony of these witnesses not only made credibility the key issue, but сreated an unusual situation in which one of the witnesses was obviously giving false testimony. This situation justified the use of zealous and probing cross-examination techniques. These techr
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ñiques were similarly employed by defense counsel when cross-examining Donald Armstrong. The scope of cross-examination and control of the trial proceedings fall within the trial judge’s discretion.
People v Taylor,
This allegation is further based upon the prosecutor’s intimation that defendant and Donald Harris were committing perjury. The prosecutor questioned Mr. Harris regarding a conspiracy with defendant to cover up for him. Similarly, the prosecutor questioned defendant regarding his friendship with Mr. Harris and the possible creation of their story within the last 48 hours. This Court has been sensitive to defendants’ need for protection from improper references to their credibility and the credibility of witnesses testifying in their behalf. In
People v Montevecchio,
Since defendant failed to establish a meritorious basis for reversal, defendant’s conviction is affirmed.
Affirmed.
Notes
The prosecutor agreed to the nolle prosequi of the armed robbery charge against Donald Armstrong entered on November 30, 1966. This dismissal was contingent upon Donald Armstrong’s entry into the military service, which he fulfilled.
This witness was convicted for his participation in the transaction by a guilty plea to the lesser included offense of unarmed robbery. He stated that his testimony was withheld until the second trial because of a fear that his admission of guilt would prejudice his pending appeal.
Contrast, People v Tarpley,