People v. Schram , 23 Mich. App. 91 ( 1970 )

23 Mich. App. 91 (1970) 178 N.W.2d 93

PEOPLE
v.
SCHRAM

Docket No. 7,167.

Michigan Court of Appeals.

Decided March 30, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Arthur N. Bishop, Assistant Prosecuting Attorney, for the people.

Arthur Tarnow (Defenders' Office — Legal Aid and Defender Association of Detroit), for defendant on appeal.

Before: QUINN, P.J., and R.B. BURNS and FITZGERALD, JJ.

PER CURIAM.

Convicted by jury verdict and sentenced for armed robbery, MCLA § 750.529 (Stat Ann 1969 Cum Supp § 28.797), defendant appeals. He asserts two grounds of alleged reversible error, namely: improper admission of identification testimony and erroneous instruction.

No objection was made below either to the admission of the identification testimony or the instruction. These errors may not be raised for the first time on appeal, and this Court will not consider them except to avoid clear injustice. People v. Ivy (1968), 11 Mich. App. 427. This record demonstrates no injustice.

Two additional reasons dictate affirmance, however. Assuming arguendo that it was error to admit the identification testimony, it was not reversible error in view of identification by three other witnesses.

During its instructions, the trial court said, "I do not think there is any serious dispute that a crime in fact was committed." However, the question of whether a crime was committed was left to the jury for its determination. On this record, the court's statement was legitimate comment. People v. Pratt (1930), 251 Mich. 243, 247.

Affirmed.