People v. Davis

32 Mich. App. 704 (1971) 189 N.W.2d 132

PEOPLE
v.
DAVIS

Docket No. 9801.

Michigan Court of Appeals.

Decided April 23, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Frank R. Knox, Assistant Prosecuting Attorney, for the people.

J. William Locke, for defendant on appeal.

Before: R.B. BURNS, P.J., and J.H. GILLIS and T.M. BURNS, JJ.

Leave to appeal denied, 385 Mich. 774.

R.B. BURNS, P.J.

The defendant appeals his conviction by a jury of the crime of breaking and entering.^[1] Defendant's contention that the trial judge erred in instructing the jury on aiding and abetting,^[2] when the evidence did not support this additional theory, has merit. No evidence tending to support such a charge was presented at trial level; thus it was reversible error for the trial judge to explain aiding and abetting to the jury. People v. Ware (1968), 12 Mich. App. 512.

Defendant's argument that the case should be dismissed since he was denied his right to a speedy trial^[3] is without merit. Contrary to defendant's view the "180-day rule" of MCLA § 780.131 (Stat Ann 1971 Cum Supp § 28.969[1]), is inapplicable since there is no evidence that the Department of Corrections received notice of the breaking and entering charge. In addition defendant has not presented credible evidence that he was prejudiced by his delayed trial. Prejudice as a result of delay, not the delay itself, is the guideline this Court has adopted. People v. Hernandez (1968), 15 Mich. App. 141. See, also, People v. Albert White (1970), 27 Mich. App. 432; People v. Rios (1970), 27 Mich. App. 54. The United States Supreme Court has also indicated that actual prejudice must be shown. Dickey v. Florida (1970), 398 U.S. 30 (90 S. Ct. 1564, 26 L. Ed. 2d 26).

We also find that on remand the following testimony of the police officer complained of by the defendant should be excluded ("He" refers to the defendant):

"He says, ``You think you had trouble with me before, you are really going to have trouble with me now. I guess I will have to go back to busting safes again to make expenses. There isn't a safe in Oakland County that I can't open. I have never tried to bust one yet that I haven't succeeded doing,' and at this time the only question we had asked is, ``How do you know so much about safes?'

"He says, ``I worked for the Mosler Safe Company in Ohio for six months.'"

It has very little probative value and tends to interfere with the presumption of innocence.

Reversed and remanded for a new trial.

All concurred.

NOTES

[1] MCLA 1971 Cum Supp § 750.110 (Stat Ann 1971 Cum Supp § 28.305).

[2] MCLA § 767.39 (Stat Ann 1954 Rev § 28.979).

[3] US Const, Am 6; Const 1963, art 1, § 20.