DocketNumber： Docket 7,493
Judges： Fitzgerald, Gtllis, O'Hara
Filed Date： 6/1/1970
Status： Precedential
Modified Date： 11/10/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
*295 M. Hector Cisneros, for defendant on appeal.
Before: FITZGERALD, P.J., and J.H. GILLIS and O'HARA,[*] JJ.
PER CURIAM.
Defendant was convicted in a nonjury trial of breaking and entering a factory with intent to commit larceny therein. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). On appeal, defendant contends that the trial court erred in allowing an unindorsed res gestae witness to testify at trial over defense counsel's objection. The witness was indorsed during trial upon motion of the prosecutor. The trial judge permitted the indorsement; he was satisfied that the prosecutor had sufficiently explained failure to indorse sooner. By statute, MCLA § 767.40 (Stat Ann 1970 Cum Supp § 28.980), additional witnesses may be indorsed during trial by leave of the court. A review of the record fails to establish that the trial court abused its statutory discretion in allowing the witness to testify. People v. McCrea (1942), 303 Mich. 213.
Defendant also contends that the evidence was insufficient to establish a prima facie breaking and entering. There was testimony that the factory was locked on the evening of the alleged offense; that plywood covering broken windows at the rear of the building had been removed, and that defendant was found hiding in the factory by police officers. Defendant's contention that the people's evidence did not establish breaking and entering is without merit. People v. Lambo (1967), 8 Mich. App. 320.
Affirmed.
[*] Former Supreme Court Justice, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.