People v. Lazaroff ( 1973 )

50 Mich. App. 84 (1973) 212 N.W.2d 743

PEOPLE
v.
LAZAROFF
PEOPLE
v.
HANDS

Docket Nos. 13397-13399.

Michigan Court of Appeals.

Decided August 24, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Bruce A. Barton, Prosecuting Attorney, and Richard A. Cooley, Jr., and Thomas J. Fleischmann, Assistants Prosecuting Attorney, for the people.

Domke, Marcoux, Allen & Beaman (by Jerome A. Susskind), for defendants on appeal.

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

PER CURIAM.

December 1, 1971, a jury convicted defendants of conspiracy to collect off-track bets in violation of MCLA 750.157a; MSA 28.354(1) and MCLA 750.301; MSA 28.533. They were sentenced and they appeal.

The first issue raised relates to defendants' statutory right to waive a jury trial. MCLA 763.3; MSA 28.856 provides for waiver of jury trial and the manner of accomplishing it. The record discloses that the statutory method for obtaining the waiver was not followed, and we find that the issue is not properly before this Court.

The second issue relates to jury instructions. Defendants did not object to the instructions given and the issue is not preserved for appeal, GCR 1963, 516.2, nor does the record demonstrate the manifest injustice which sometimes causes an appellate court to overlook the rule.

The third issue also relates to instructions. The instruction complained of is substantially identical to the instruction requested by defendants, and it is not an erroneous instruction. No error is shown.

Defendants state their fourth issue as follows: "Was it error for the court to deny defendants' motion for adjournment when the prosecutor failed to comply with the requested bill of particulars?"

Adjournment of a criminal case is permitted "for good cause shown", MCLA 768.2; MSA 28.1025. The grant or denial of a requested adjournment is discretionary, and abuse of discretion must be shown for appellate relief. If this record discloses that defendants showed good cause for the requested adjournment, its denial would constitute an abuse of discretion.

The provision for a bill of particulars is contained in a proviso at the end of the statutory section on short forms of indictment, MCLA 767.44; MSA 28.984. In this case, the indictment was in the common-law long form and it sufficiently advised defendants of the offense charged against them. In such a situation, the provision relative to bills of particulars is not mandatory, People v O'Hara, 278 Mich 281; 270 NW 298 (1936). The fact that the prosecuting attorney did not comply with the request for a bill of particulars did not constitute "good cause shown" for the requested adjournment and it was not an abuse of discretion to deny it.

We find no merit in the defendants' contention that statements of the prosecutor in closing argument deprived defendants of a fair trial.

In a supplemental brief, defendants raise two additional issues. Prior to trial, defendants moved to obtain the grand jury minutes of the testimony of witnesses to be presented against them. The trial judge followed the statute then in effect, MCLA 767.19g; MSA 28.959(7), and denied the motion. This was not error, and trial counsel conceded at the opening of the trial that the ruling was correct. Neither People v Bellanca, 386 Mich 708; 194 NW2d 863 (1972), nor GCR 1963, 787 (effective March 3, 1972) provide for retroactive application.

While the record does not clearly substantiate defendants' claim that they demanded preliminary examination following indictment by a grand jury, we accept the claim as true to decide the error that defendants say occurred by denial of the demand. Prior to People v Duncan, 388 Mich 489; 201 NW2d 629 (1972), there was no right to a preliminary examination following indictment by a grand jury, Duncan at 499; 201 NW2d at 633. If the holding of Duncan is legally sustainable, it has no application to this case which was tried approximately 11 months prior to Duncan. The Court said in Duncan, "We hold that in each case, and in all pending cases in which the right to a preliminary examination was asserted prior to trial and is presently being asserted, such right shall be accorded to the defendant. In all future cases wherein a defendant is accused of a felony, the right to a preliminary examination shall exist." We do not read this language as requiring application of Duncan to a case tried before Duncan.

Affirmed.

NOTES

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