People v. Wilkes , 21 Mich. App. 169 ( 1969 )

21 Mich. App. 169 (1969) 175 N.W.2d 47

PEOPLE
v.
WILKES

Docket No. 6,694.

Michigan Court of Appeals.

Decided January 27, 1969. Leave to appeal denied August 18, 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.

Ted Vincent, for defendant on appeal.

Before: LESINSKI, C.J., and J.H. GILLIS and QUINN, JJ.

Leave to appeal denied August 18, 1970. 383 Mich. 819.

PER CURIAM.

Defendant Robert Wilkes was found guilty of first-degree murder following a jury trial. MCLA § 750.316 (Stat Ann 1954 Rev § 28.548). This appeal is brought as of right.

Numerous issues are raised on appeal concerning the conduct of the trial and the jury instructions. The issues raised regarding the conduct of the trial were not raised in the trial court and they cannot be raised for the first time on appeal. People v. Will (1966), 3 Mich. App. 330; People v. Dailey (1967), 6 Mich. App. 99. Moreover, although given the opportunity below, no objections to the instructions were raised by defendant. The failure of timely objection waives any possible right he might have had to object now to the instructions. People v. Allar (1969), 19 Mich. App. 675; People v. Mallory (1966), 2 Mich. App. 359; GCR 1963, 516.2.

Defendant also asserts that the prosecutor failed to indorse a res gestae witness known to the prosecution. Assuming arguendo^[*] the witness was a res gestae witness, a review of the record satisfies us that the prosecution was excused from indorsing or producing the witness after a diligent search by the police failed to locate the man or to uncover his complete identity. People v. Castelli (1963), 370 Mich. 147.

Finally, defendant questions the sufficiency of the evidence to prove him guilty beyond a reasonable doubt. The main contention is that there was a discrepancy between the testimony of the witnesses at the preliminary examination and at trial. Any discrepancy, however, worked in defendant's favor at trial. There was sufficient evidence, if believed by the jury, to justify a finding of guilt beyond a reasonable doubt. People v. Fred W. Thomas (1967), 7 Mich. App. 519.

Affirmed.

NOTES

[*] There is testimony in the record indicating that the unindorsed witness left the scene prior to the commission of the homicide.