Docket No. 3,219 | Mich. Ct. App. | Apr 21, 1969
Defendant appeals his jury conviction for resisting a police officer in discharge of his duty. MOLA § 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 MOLA § 767.40 (Stat Ann 1969 Cum Supp § 28.980); People v. Honenberg (1936), 274 Mich. 698" date_filed="1936-03-02" court="Mich." case_name="People v. Hanenberg">274 Mich 698; People v. Rose (1934), 268 Mich 529; People v. Rimson (1966), 3 Mich. App. 713" date_filed="1966-07-12" court="Mich. Ct. App." case_name="People v. Rimson">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.