168 N.W.2d 422 | Mich. Ct. App. | 1970
PEOPLE
v.
KINSMAN
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Sherwin Venema and W.J. Nykamp, Assistant Prosecuting Attorneys, for the people.
George W. Crockett, III, and Richard James Coon, for defendant.
BEFORE: QUINN, P.J., and HOLBROOK and T.M. BURNS, JJ.
Leave to appeal granted January 21, 1970. See 383 Mich. 759
PER CURIAM:
Defendant, convicted by jury and sentenced for attempted[1] uttering and publishing a forged check,[2] appeals.
Defendant attempted to cash a forged check purportedly drawn by Peet Packing Company. The cashier to whom the check was presented had been alerted to watch for such a check. The cashier notified her superior and defendant was apprehended. The cashier was not produced at the preliminary examination.
The latter fact creates 2 of the issues raised on appeal. Defendant says this violated his constitutional right of confrontation. US Const, Am 6; Const 1963, art 1, § 20. The former commences "In all criminal prosecutions * * *"; the latter *613 commences "In every criminal prosecution * * *". This language precludes the violation here asserted.
"A prosecution is generally understood to be a criminal action; a proceeding instituted and carried on by due course of law before a competent tribunal for the purpose of determining the guilt or innocence of the person charged with some crime or offense." People v. Ellis (1918), 204 Mich. 157, at 161.
Defendant contends that without the testimony of the cashier there was insufficient evidence at the preliminary examination to prove the corpus delicti and that the binding over was improper. The test is whether the record is so insufficient that it was an abuse of discretion by the magistrate to bind defendant over. People v. Hirschfield (1935), 271 Mich. 20. We are unable to find abuse of discretion.
The other errors asserted relate to instructions. Although afforded the opportunity, defendant did not object to the charge as given on the grounds presently asserted. We do not consider such errors. GCR 1963, 516.2; People v. Mallory (1966), 2 Mich. App. 359.
Affirmed.
NOTES
[1] CL 1948, § 750.92 (Stat Ann 1962 Rev § 28.287).
[2] CL 1948, § 750.249 (Stat Ann 1962 Rev § 28.446).
