168 N.W.2d 639 | Mich. Ct. App. | 1969
PEOPLE
v.
SACHARCZYK
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James T. Corden, *711 Prosecuting Attorney, and Walter W. Turton, Assistant Prosecuting Attorney, for the people.
Philip A. Gillis, for defendant.
BEFORE: McGREGOR, P.J., and R.B. BURNS and DANHOF, JJ.
Leave to appeal denied December 24, 1969. See 383 Mich. 755.
PER CURIAM:
Defendant appeals his jury conviction for resisting a police officer in discharge of his duty. MCLA § 750.479 (Stat Ann 1954 Rev § 28.747). At trial, after the defense rested, the prosecution, over defendant's objection, called two unindorsed res gestae witnesses in rebuttal. The allowance of their testimony was reversible error. The witnesses had not appeared before. Furthermore, no attempt had been made to indorse the witnesses and no legal cause explaining the prosecution's failure to indorse is evident in the record. See MCLA § 767.40 (Stat Ann 1969 Cum Supp § 28.980); People v. Honenberg (1936), 274 Mich. 698; People v. Rose (1934), 268 Mich. 529; People v. Rimson (1966), 3 Mich. App. 713. Finally, the rebutting testimony was improper, since it tended to prove surrounding circumstances of the crime. People v. Rose, supra, 540.
Our ruling above makes unnecessary either an enlargement of the facts or a dissection of other issues.
Reversed and remanded for a new trial.