People v. Johnson ( 1970 )

Per Curiam.

Defendant was convicted by a recorder’s court jury of armed robbery. MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797).

The lone identifying witness was a 14-year-old girl who regularly worked in her father’s grocery store. On the day in question there was a fire outside the store and the girl was left alone in the store to wait on the customers. Defendant, a frequent customer, came in to make a purchase. When the girl opened the cash register, defendant took a gun from his pocket and removed some $300 from the register.

Defendant appeals as of right claiming an error in the instructions and that the evidence did not warrant a finding of guilt beyond a reasonable doubt.

During the instructions to the jury, the court made the following remarks:

“The presumption of innocence attaches therefore to the defendant at the beginning of the trial and remains with him, or with her, throughout your entire deliberations in the jury room, and until you and each of you is convinced by competent evidence, —what is competent evidence? It is the evidence which the court allows in and if we make a mistake we have the Supreme Court. Competence [sic] evidence beyond a reasonable doubt of the defendant’s guilt.”

Defendant claims that the statement “ * * * if we make a mistake we have the Supreme Court” relieved the jury of its duty to find facts. However, the context clearly indicates that the remark referred solely to decisions which the court had been required to make. There was no dilution of the final responsibility of the jury. People v. Harris (1889), 77 Mich 568. The comments in this case are more akin to those sanctioned in People v. Hahn (1921), 214 Mich 419. Moreover, there having been no objection to the instruction, it cannot now be assigned as error. GrCR 1963, 516.2.

The girl’s testimony as to the robbery was undisputed. Defendant presented only one witness, his wife, who testified in support of his claimed alibi. Identity became the only matter in dispute. Although the girl’s descriptions of the defendant varied in minor details, yet both she and the defendant’s wife testified that prior to the robbery the defendant had frequently been a customer of the store. The evidence was ample to warrant a finding of guilt beyond a reasonable doubt. People v. Williams (1962), 368 Mich 494.

Affirmed.