184 N.W.2d 533 | Mich. Ct. App. | 1970
PEOPLE
v.
WARE
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people.
Earl A. Mossner, for defendant on appeal.
*435 Before: FITZGERALD, P.J., and McGREGOR and O'HARA,[*] JJ.
PER CURIAM.
Defendant was found guilty by a jury of the offense of armed robbery, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797). The complaining witness was a cab driver who was robbed at gunpoint and immediately thereafter described his assailant to the police. When defendant was arrested, 13 days later, the complainant positively identified the defendant from a lineup of six men as the person who had robbed him. Defendant claims a defense of alibi.
Defendant contends that the lineup identification was tainted under the standards set forth in United States v. Wade (1967), 388 US 218 (87 S Ct 1926, 18 L Ed 2d 1149). Complainant's identification at the lineup was unequivocal, and the record does not support defendant's contention that complainant was shown his picture prior to the lineup. Furthermore, defendant's appearance at the lineup fairly approximated that of the description given by the complainant immediately after the robbery.
Although defendant sought to prove his claim of alibi, no written notice was given the people in regard to this defense, as is required by statute. MCLA § 768.20 (Stat Ann 1954 Rev § 28.1043). Furthermore, the people produced evidence regarding all the elements of the crime, which evidence, if believed by a jury, justified a finding of guilt beyond a reasonable doubt. People v. Fred W. Thomas (1967), 7 Mich App 519; People v. Weems (1969), 19 Mich App 553.
Affirmed.
NOTES
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.
