216 N.W.2d 460 | Mich. Ct. App. | 1974
PEOPLE
v.
LUCKETT
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, Donald A. Johnston III, Chief Appellate Attorney, and David A. Dodge, Assistant Appellate Attorney, for the people.
James S. Brady, for defendant on appeal.
Before: R.B. BURNS, P.J., and BRONSON and VAN VALKENBURG,[*] JJ.
R.B. BURNS, P.J.
Defendant was convicted of assault with intent to commit armed robbery, *34 MCLA 750.88; MSA 28.283. The sole issue on appeal concerns the admissibility of his alibi defense.
Defendant allegedly stole a watch at about 5 a.m. on March 31, 1972. Without having first filed a notice of alibi, the defense offered a witness who testified that he and the defendant were someplace else when the robbery allegedly occurred. The prosecutor made no objections to the introduction of this evidence. Instead, the trial proceeded to its conclusion and final arguments were heard without the admissibility question ever being raised by either side. However, the trial court, on its own motion, instructed the jury to disregard defendant's alibi evidence. This instruction was timely objected to by defendant.
It was error for the trial court to give such an instruction on its own initiative. The prosecution waives its objection to defendant's failure to provide alibi notice when it accepts the introduction of such evidence without protest. People v Miller, 250 Mich. 72, 74-75; 229 N.W. 475, 476 (1930).
Reversed and remanded for a new trial.
All concurred.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
