People v. Hawkins , 17 Mich. App. 179 ( 1969 )

J. H. Gillis, P. J.

Defendant was convicted of willfully and without authority taking possession of and driving away an automobile belonging to another. CL 1948, § 750.413 (Stat Ann 1954 Rev § 28-.645). On appeal, he raises the following issues:

(1) Whether there was sufficient evidence to convince a jury beyond reasonable doubt that defendant committed the offense on the date charged?

(2) Whether the trial court erred by failing to instruct the jury that defendant’s failure to testify did not create any presumption against him and that no inference should be drawn from such failure to testify?

The information charged and the prosecutor in his opening statement alleged that the offense was committed on April 16, 1967. The arresting officer so testified. Defendant relies on the testimony of the owner of the automobile to the effect that the alleged offense occurred on April 17,1967. Defendant contends that the prosecution, having elected April 16, 1967, must stand or fall by the election and that there is insufficient evidence to prove beyond a reasonable doubt that the offense occurred on that date.

The transcript reveals that the owner of the automobile was somewhat confused as to dates and that he testified only as to the dates when he saw his car, not as to the date of the actual commission of the offense. Moreover, time is not of the essence of the offense alleged and no variance as to time shall be fatal unless time is of the essence of the offense. CL 1948, § 767.45 (Stat Ann 1954 Rev § 28.985); CL 1948, § 767.51 (Stat Ann 1954 Rev § 28.991). Defendant in this case could not have been misled as to the particular actions on his part on which the charge was based. Cf. People v. King (1962), 365 Mich 543. The verdict was supported by the evidence.

As for the second issue, defense counsel specifically agreed that no instruction be given with respect to defendant’s failure to testify. There was no error in the charge. CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052).

Affirmed.

All concurred.