People v. McClain , 25 Mich. App. 691 ( 1970 )

25 Mich. App. 691 (1970) 181 N.W.2d 589

PEOPLE
v.
McCLAIN

Docket No. 8,643.

Michigan Court of Appeals.

Decided August 4, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Paula Hosick, Assistant Prosecuting Attorney, for the people.

Hugh B. McVicker, Jr., for defendant on appeal.

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

PER CURIAM.

On the day of his trial for prison escape,^[*] defendant requested a continuance, contending that the defense was not ready for trial, petitioned for another appointed attorney, and stated he was not ready to conduct his own defense. He gave no reason for this sudden change and would not elaborate.

The court made the following statement:

"Well, you will not tell me why. I cannot grant any motion on that basis without any basis for your motion. You just say you are not ready for trial, and don't know how long this has been around — since April. No indication of any reason as to why you are not ready for trial. Been ample opportunity to prepare. The court will hear the case."

The trial date was August 13, 1969. It is not a denial of defendant's constitutional rights or an abuse of discretion on the part of the trial judge to deny adjournment where "the defendant fails to request an adjournment prior to the day of trial, particularly where he had some two and one-half months to obtain counsel". People v. Clark (1968), 9 Mich. App. 602. See People v. Stinson (1967), 6 Mich. App. 648; People v. Gibbs (1970), 21 Mich. App. 137. No error or abuse of discretion is found where the defendant, as in the instant case, was dissatisfied with his appointed counsel and sought his dismissal at the outset of the trial and the request was denied. People v. Edwards (1969), 18 Mich. App. 526; People v. Miller (1970), 21 Mich. App. 113.

Trial testimony established that the defendant unlawfully left the Waterloo prison camp without permission. This is sufficient to constitute prison escape. Such evidence, if believed by the jury, supports the defendant's conviction. An appellate court may not act as a reviewing jury on review of a criminal prosecution and may not disturb the jury's findings of fact unless the evidence fails to support such findings. People v. Arither Thomas (1967), 7 Mich. App. 103; People v. Heard (1969), 19 Mich. App. 516; People v. Ford (1969), 19 Mich. App. 519; People v. Mays (1969), 19 Mich. App. 588. Reviewing the record, we find there was sufficient evidence, if believed, to justify a finding of guilt beyond a reasonable doubt. People v. Bynum (1970), 21 Mich. App. 596, 602.

Affirmed.

NOTES

[*] CL 1948, § 750.193 (Stat Ann 1970 Cum Supp § 28.390).