People v. Mason , 29 Mich. App. 613 ( 1971 )

29 Mich. App. 613 (1971) 185 N.W.2d 822

PEOPLE
v.
MASON

Docket No. 8500.

Michigan Court of Appeals.

Decided January 21, 1971. Leave to appeal denied August 4, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.

Robert M. Hetchler, for defendant on appeal.

Before: DANHOF, P.J., and HOLBROOK and VANDER WAL,^[*] JJ.

Leave to appeal denied August 4, 1971. 385 Mich. 776.

HOLBROOK, J.

The defendant was convicted in the Recorder's Court for the City of Detroit before a jury of the crime of assault with intent to rob being armed, MCLA § 750.89 (Stat Ann 1962 Rev § 28.284), and sentenced to a term in prison of 7-1/2 to 15 years. Defendant has taken this appeal.

The following are the pertinent facts: On November 22, 1968, the complainant was walking along the street when two subjects approached her. One grabbed her around the throat with his left hand and held a cold object at her neck demanding her purse. The other man then went through her purse, and, finding nothing of value, the pair released her. The defendant was arrested by police near the scene shortly thereafter, and a .25-caliber pistol was found in his possession. Subsequently, at a police lineup, the complainant identified the defendant as the one who grabbed her around the throat with his left hand and held a cold object at her neck and demanded her purse. Another subject, a juvenile, was also arrested near the scene.

Defendant raises the following three issues for review:

1. Was the .25-caliber pistol found on defendant when arrested properly admitted into evidence?

2. Did the court's instructions overemphasize assault with intent to rob so that a fair consideration of lesser offenses was precluded?

3. Was the defendant denied a fair trial because of the remarks made by the court and the prosecuting attorney during the trial?

I

Defendant contends that the weapon found on him when arrested was not properly admitted into evidence because it was not sufficiently connected with the crime.

At the trial the complainant testified that the perpetrator placed a cold object on her neck. The arresting officer testified that the holdup occurred at approximately 6:30 p.m. and that he arrested defendant at 6:45 p.m. Another arresting officer testified that he found the pistol on the defendant at the time of the arrest.

The people cite the cases of People v. Hall (1969), 19 Mich. App. 95, and People v. Kerridge (1969), 20 Mich. App. 184, for the proposition that weapons found on an accused at the time of his arrest may be introduced into evidence without proof that they were the very weapons used by him in the crime, if they might have been the ones used.

However, in both Hall, supra and Kerridge, supra, and unlike the instant case, the type of weapon that was found on the accused was seen at the time of the crime. Here there was no weapon seen at the time of the crime; the only testimony as to a weapon was that of the complaining witness to the effect that a cold object was placed at her neck.

In other words, there was no testimony that it was in fact a gun that was held to the neck of the complaining witness.

In 22A CJS, Criminal Law, § 712, p 966 it is stated:

"However, a weapon or instrument found in the possession of accused or of his criminal associates which, although not identified as the one actually used, is similar in form and character thereto, or which, from the circumstances of the finding justifies an inference of the likelihood or possibility of its having been used, is admissible for the purpose of showing availability to accused of the means of committing the crime in the manner in which it is shown to have occurred." (Emphasis supplied.)

Thus, under the foregoing test, the gun would be admissible because the finding of the gun on the accused "from the circumstances of the finding justifies an inference of the likelihood or possibility of its having been used". This is especially so when one of the circumstances is that the gun was found on the defendant near the scene, only 15 minutes after the robbery, and there was no issue as to the identification of the defendant.

Further, MCLA § 750.89 (Stat Ann 1962 Rev § 28.284) provides:

"Any person, being armed with a dangerous weapon, or any article used or fashioned in a manner to lead a person so assaulted reasonably to believe it to be a dangerous weapon, who shall assault another with intent to rob and steal shall be guilty of a felony, punishable by imprisonment in the state prison for life, or for any term of years." (Emphasis supplied.)

It is reasonable to assume that the weapon found on the defendant was the one placed upon complainant's neck, especially considering the fact that no identification problem was presented. The fact that the type of weapon used was not specifically noted at the time of the crime would not appear to bar the weapon seized from evidence because the weapon seized might have been the one so used. There was no error committed by the trial court in admitting the gun into evidence.

II

Defendant contends that the trial court's instructions overemphasized the charge of assault with intent to rob so as to preclude a fair consideration of the lesser included offenses.

Defendant did not make timely objection to the instructions at the trial. Defendant's counsel specifically stated that he had no objection to the instructions. Therefore, defendant should be precluded from raising this issue on appeal. People v. Lewis (1970), 26 Mich. App. 290; People v. Allar (1969), 19 Mich. App. 675; GCR 1963, 516.2.

Notwithstanding the fact that the issue is not properly raised, a review of the entire charge does not support the contention that it was unfair and prejudicial. The charge covers some 9-1/2 pages of the trial transcript, with approximately three devoted to the main charge of assault with intent to rob being armed.

The charge, when read in its entirety, was not prejudicial.

III

Defendant contends that the prosecutor and judge in the trial court made certain remarks that were of a prejudicial nature.

Defendant claims error in what the assistant prosecutor stated in his final argument. The contested statement was as follows:

"Mr. Conklin: The fact that the other individual involved who was arrested, happens to be a juvenile, has no bearing on this case. That is taken care of by the juvenile unit and has nothing to do with this case. The defendant is on trial here before you, ladies and gentlemen, for this particular crime, what is done or what the boy's age, or a man's age is, is immaterial. That is taken care of elsewhere, but just remember 5'10" or 5'11" is the height of the second man."

The prosecutor specifically stated that the other person arrested, who was a juvenile, had no bearing on the case. Additionally, the trial court then instructed the jury that the only question before them was the guilt or innocence of the defendant on trial. Furthermore, all of the evidence argued by the prosecutor was testimony that had been admitted into evidence. In addition, a review of the testimony of the juvenile indicates that it does not appear to be of much help in defendant's defense. With these considerations in mind, it appears that the trial court was correct in denying defendant's motion for a mistrial.

Defendant claims error in a comment made by the trial judge during the direct examination of the defendant. The testimony in part is as follows:

(By Mr. Harris, defense attorney):

"Q. When you were arrested, did you have a weapon on you?

"A. Yes.

"Q. What did you have on you?

"A. A .25 automatic. I mean the one that is in the courtroom today.

"Q. You had that weapon?

"A. Yes.

"Q. Why did you have it on you?

"Mr. Stevens (assistant prosecutor): If the court please, I am going to object to object to this type of testimony. I am going to object, it would serve no purpose in this case. The charge here is assault with intent to rob while being armed.

"The Court: Whatever reason it is, members of the jury, doesn't give anyone permission to carry a gun, unless he has a license to carry a gun. But, the weight of it is for the jury. I will let him answer the question, but the weight of it is for the jury. All right.

"Q. (By Mr. Harris continuing): Why did you have that gun on you?

"A. I had the gun on me because I had been beaten prior to my arrest, two days ago.

"Q. I didn't hear you.

"A. I were beaten and robbed of my money approximately two days prior to my arrest, which I haven't confronted anybody, or anyone about it, and I carried the gun because it scared me that someone would hurt me. You know, being robbed again. That's the reason why I had it on me.

"Q. Robbed two days before that?

"A. Right.

"Q. You didn't use that gun to rob anybody, or attempt to rob anybody?

"A. No."

Although the remark was not necessary to rule upon the objection, it cannot be said that under the circumstances the remark was reversible error or prejudicial to the defendant. In addition, the defendant made no objection to the trial court's remark when it was made. It cannot now be properly raised on appeal. People v. Lewis (1970), 26 Mich. App. 290; People v. Allar (1969), 19 Mich. App. 675.

Affirmed.

All concurred.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.