People v. June , 34 Mich. App. 313 ( 1971 )

34 Mich. App. 313 (1971) 191 N.W.2d 52

PEOPLE
v.
JUNE

Docket No. 9460.

Michigan Court of Appeals.

Decided June 22, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and John Spires, Prosecuting Attorney, for the people.

Carl L. Bekofske, for defendant.

Before: McGREGOR, P.J., and BRONSON and O'HARA,^[*] JJ.

O'HARA, J.

On February 17, 1970, a jury in Lapeer County convicted the defendant on the charge of negligent homicide.^[1]

At approximately 9:00 a.m. on the morning of June 24, 1969, the defendant was involved in an accident near the intersection of highway M-24 and Dockham Road. Two eyewitnesses testified that defendant's car was traveling in the southbound lane of highway M-24 and rapidly came upon a white Chevrolet which was proceeding slowly in the same lane. Defendant swerved abruptly into the northbound lane as if to avoid the white Chevrolet and struck a northbound car driven by Robert McLandress, who died as a result of injuries sustained in the collision.

Defendant argues that the prosecutor committed reversible error by reading the applicable statute to the jury. A review of the record reveals that the prosecutor did read a portion of the negligent homicide statute in order to clarify what he claimed was a misstatement of law by defense counsel. The prosecutor's reading followed a brief conference with the judge.

It has long been the law of Michigan that it is improper for counsel to read law to the jury, but that counsel are entitled to argue their theory of the case, even though this necessitates occasional reference to the law of the case. In Fosdick v. Van Arsdale (1889), 74 Mich. 302, 305, the Supreme Court held flatly "the counsel have no right to read law to the jury". See, also People v. Holmes (1966), 2 Mich. App. 283; People v. Robinson (1924), 228 Mich. 64; and People v. Smith (1913), 177 Mich. 358. This rule establishes a standard of propriety separating the impartial role of the judge from the adversary roles of counsel. It ensures that the role of the judge in instructing on the law is not usurped by counsel, thereby destroying the impartiality of the forum. See, e.g., People v. Montague (1888), 71 Mich. 447, 457; and People v. Lambath (1941), 297 Mich. 349.

It might well have been a better practice for the learned trial judge to have read the law himself to settle the dispute between counsel as to the appropriate statutory degree of negligence. While the prosecutor's action may have been improper, defendant neither made timely objection to the action complained of nor has he demonstrated that the prosecutor's action in any way prejudiced him. Moreover, the record reveals that the trial judge properly instructed the jury on the law in his charge in chief. In view of these circumstances we conclude that no reversible error in this regard was committed.

The prosecutor was unable to locate the occupants of the white Chevrolet. Defendant contends that the state's failure to indorse the names of these witnesses on the information and failure to exercise due diligence in locating them are grounds for reversal. The prosecutor has no duty to indorse the names of witnesses whose identity he does not know. People v. Loggins (1969), 17 Mich. App. 388. Moreover, the record reveals that the prosecutor attempted to locate the occupants of the Chevrolet and that two other eyewitnesses to the accident testified at trial. On trial defendant's counsel made no objection to the prosecution's failure to indorse the names of the witnesses or his failure to exercise due diligence in searching for them. When the failure of the prosecution to indorse res gestae witnesses and produce them at trial is known to the defendant and no objection is made, the issue will not be considered on appeal. People v. Kaczor (1968), 14 Mich. App. 724; People v. Tiner (1969), 17 Mich. App. 18; People v. Rasmus (1967), 8 Mich. App. 239; and People v. Robert Robinson (1971), 30 Mich. App. 48.

Defendant claims that the officer who investigated the accident was not properly qualified to give his opinion as to the point of impact. Determination of whether a witness is qualified is for the trial court, and will be reversed only for abuse of discretion. People v. Charles Wilson (1970), 27 Mich. App. 171; and Cusumano v. The Stroh Brewery Co. (1970), 26 Mich. App. 549. The investigating officer had been a member of the Lapeer County Sheriff's Department for two years, had investigated more than 100 accidents, and had received training in accident investigation while attending the Flint Police Academy. See Dudek v. Popp (1964), 373 Mich. 300, 307.

There was no error.

Affirmed.

All concurred.

NOTES

[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.

[1] MCLA § 750.324 (Stat Ann 1971 Cum Supp § 28.556).