People v. Wheeler

7 Mich. App. 576 | Mich. Ct. App. | 1967

Levin, J.

Charles Wheeler was charged with larceny in a store, CL 1948, § 750.360 (Stat Ann 1954 Rev § 28.592). He waived trial by jury and was tried by the judge, convicted and sentenced.

At the trial a department store detective testified that she saw the defendant, whom she had known previously, reach behind the sweater counter in the store, remove three sweaters from the shelves behind the counter, put them under his coat and leave. She claimed that she followed him for a short time, and then lost him. The defendant was arrested áp-' proximately one month later when'he was again in the store. He denied the charge. ' ‘

The defendant’s assertion that the prosecution failed to prove the corpus delicti is without merit. The testimony of the department' store' detective was sufficient to establish the same. The underlying issue is credibility, which is an issue confided for resolution to the trier of fact (in this case the trial judge) and not to us. See People v. Szymanski (1948), 321 Mich 248, 253; and People v. White (1965), 2 Mich App 104, 106.

The defendant also asserts for the first time on this appeal that he was deprived of the assistance of counsel in violation of the Sixth Amendment of the United States Constitution. He cites Escobedo v. Illinois (1964), 378 US 478 (84 S Ct 1758, 12 L ed 2d 977) in support of this contention. Escobedo held inadmissible under the circumstances there before the court an incriminatory statement obtained from a defendant not represented by counsel; The defendant in this case was represented by counsel both at the preliminary examination and at the trial. He steadfastly maintained his innocence, neither confessing nor making any incriminatory statement. Such statements as he may have made during his interrogation by the police were not used in evidence. Thus, although he did not have counsel prior to the preliminary examination,- the holding in Escobedo does not apply.

The defendant asserts that the failure of the prosecution to find an alibi witness and to produce such witness at the time of trial entitles him to a new trial. The defendant gave notice of alibi in the manner required by the statute.¹ The defendant was released on bond several months before the trial and testified at the time of trial that he made an effort between his release and the time of trial to locate the proposed alibi witness, and that his lack of success was attributable to insufficient money and inadequate time to continue the search.² Before the trial, the Detroit police department made an effort to locate the proposed alibi witness without success — the police were informed by the defendant’s sister that the proposed alibi witness had departed the jurisdiction and that she did not know the witness’ current location. It is not claimed that additional investigative effort by the police or prosecutor was sought prior to trial and refused, or that .the prosecution had information which it withheld concerning the location of the witness.

Affirmed.

Lesinski, C. J., and Burns, J., concurred.

1 CL 1948, § 768.20 (Stat Ami 1954 Lev § 28.1043).

2 Counsel was appointed for the defendant on Ms claim of indigency. The defendant’s claim that lack of money was a faetor in his failure to locate the witness was first asserted at the time of trial. There is no evidence of any request to the trial judge for assistance in locating the witness.

The question discussed in “Right to. Aid in Addition to Counsel for Indigent Criminal Defendants” (1963), 47 Minn Law Rev 1054, was not raised in the trial court nor has it been briefed or argued to us. See, also, Dickerson, Model Defense of Needy Persons Act, 4 Harvard Journal on Legislation 3 (1966), regarding provisions for supplying investigative and other pretrial preparatory services to indigents in criminal cases.

See CL 1948, § 775.15 (Stat Ann 1954 Rev § 28.1252), which sets forth the procedure for service of subpoenas for indigents.