People v. Boynton

46 Mich. App. 748 (1973) 208 N.W.2d 523

PEOPLE
v.
BOYNTON

Docket No. 11429.

Michigan Court of Appeals.

Decided April 26, 1973.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Eugene C. Penzien, Prosecuting Attorney, and George B. Mullison, Assistant Prosecuting Attorney, for the people.

James G. Orford, for defendant.

Before: DANHOF, P.J., and HOLBROOK and BASHARA, JJ.

PER CURIAM.

Defendant was convicted of uttering and publishing and sentenced to from 4 to 14 years imprisonment.

Defendant first contends that the evidence adduced at trial was not sufficient to support a finding of guilty beyond a reasonable doubt. Defendant argues that the identification by the bartender who cashed the check should not have been believed and that, in light of the testimony by his alibi witnesses, the evidence was insufficient. Claims of mistaken identification by a witness and alibi are matters which deal with the credibility of witnesses and generally are questions to be decided by the jury. People v Caldwell, 20 Mich. App. 224 (1969); People v Hughes, 26 Mich. App. 355 (1970).

Furthermore the test used by this Court in reviewing a jury verdict in a criminal case is whether or not there was sufficient evidence upon which, if believed by the jury, the defendant could be found guilty beyond a reasonable doubt. People v Floyd, 15 Mich. App. 284 (1968); People v Stewart, 36 Mich. App. 93 (1971). A review of the testimony in the instant case reveals ample evidence, if believed, to support a verdict of guilty.

Defendant further contends that the trial court erred in denying his motion for a new trial based on newly discovered evidence.

A new trial will be granted for newly discovered evidence only if there is a showing: (a) that the evidence is newly discovered; (b) that the evidence is not merely cumulative; (c) that the evidence is such as to render a different result probable on retrial; and (d) that the defendant could not with reasonable diligence have produced it at trial. People v Cummings 42 Mich. App. 108, 110 (1972); People v Kennedy, 22 Mich. App. 524, 528 (1970).

The newly discovered evidence in the instant case does not relate to defendant's guilt as was the case in People v McAllister, 16 Mich. App. 217 (1969). The newly discovered evidence would, at best, serve only to impeach the bartender's credibility, which we have generally held is not sufficient to make a different result probable on retrial. People v Kennedy, supra; People v Winstanley, 20 Mich. App. 528 (1969). We feel this rule is applicable to the case at bar and do not believe that a different result would occur on retrial.

Affirmed.