People v. Collier , 16 Mich. App. 695 ( 1969 )

16 Mich. App. 695 (1969) 168 N.W.2d 623

PEOPLE
v.
COLLIER

Docket No. 5,283.

Michigan Court of Appeals.

Decided March 28, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George E. Thick, II, Prosecuting Attorney, and Bruce J. Scorsone, Chief Assistant Prosecuting Attorney, for the people.

Merritt R. Jones, for defendant.

BEFORE: McGREGOR, P.J. and R.B. BURNS and DANHOF, JJ.

PER CURIAM:

Defendant, convicted of attempted breaking and entering, MCLA §§ 750.92, 750.110 (Stat Ann 1962 Rev § 28.287 and 1968 Cum Supp § 28.305), contends the lower court incorrectly denied defense counsel's motion for a continuance. Defendant avers an important witness was absent from the trial jurisdiction, and argues the court should have allowed a continuance until the witness returned to testify.

Continuances are discretionary. The movant must show both materiality of the absent witness's testimony and a diligent effort to secure the witness's appearance. GCR 1963, 503.2. Defendant did not specify the materiality of the absent witness's testimony until filing an appellate brief. Furthermore, he did not attempt to subpoena the witness until the day before trial. Thus, defendant did not comply with the court rule guidelines, and the court correctly denied the continuance motion.

Conviction affirmed.