People v. Woody

25 Mich. App. 627 (1970) 181 N.W.2d 621

PEOPLE
v.
WOODY
PEOPLE
v.
JONES

Docket Nos. 7,477, 8,047.

Michigan Court of Appeals.

Decided July 31, 1970.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Patricia J. Pernick, Assistant Prosecuting Attorney, for the people.

Burton L. Borden, for defendants, on appeal.

Before: LESINSKI, C.J., and HOLBROOK and T.M. BURNS, JJ.

PER CURIAM.

Defendants James Woody and Robert Jones were found guilty of breaking and entering an occupied dwelling with intent to commit a larceny. MCLA § 750.110 (Stat Ann 1970 Cum Supp § 28.305). Defendants bring this appeal as of right.

Defendants raise several issues which we will consider in the order raised. First, defendants argue that their rights to due process were violated due to an allegedly unnecessary delay between their arrest and arraignment. Defendants were arrested on Saturday, January 18, 1969, at approximately 8:30 p.m. The complaint and warrant did not issue until Monday, January 20, 1970. On the same date defendants were arraigned on the warrant.

Defendants do not allege that they were held for the purposes of questioning or that they gave a confession during this period. Cf. People v. Walters (1967), 8 Mich App 400; People v. Hamilton (1960), 359 Mich 410. There is also no allegation that the result of the trial was affected in any way by the detention. Assuming, without deciding, that the detention was unnecessarily long, defendants were not prejudiced thereby and the delay does not constitute a ground for reversal. People v. Wavie Williams (1969), 19 Mich App 291; People v. Farmer (1968), 380 Mich 198.

Defendants also challenge the admissibility of a radio which was seized during a warrantless search, and which was admitted into evidence at trial. We do not reach the merits of this issue. Defendants did not object to the admission of the evidence below, thereby waiving the issue for appeal. People v. Boyd (1970), 21 Mich App 191.

Defendants further allege on appeal that the record does not disclose a knowing and intentional waiver of the right to trial by jury. The assertion is without merit. The trial court record includes a written "waiver of trial by jury" signed by defendants and their trial counsel. There is no allegation that the waiver was not made in open court, that defendant did not first consult with counsel or that they were in any way coerced into making the waiver. The waiver was valid and effective. People v. Rawls (1967), 6 Mich App 586; MCLA § 763.3 (Stat Ann 1954 Rev § 28.856).

Finally, defendant Jones argues that his constitutional right to obtain witnesses in his own behalf was violated when the trial court refused his request for an adjournment to file an alibi. The record reveals that defendant failed to file timely notice of this defense as required by statute. MCLA § 768.20 (Stat Ann 1954 Rev § 28.1043). The trial judge, therefore, could, in his discretion, have excluded evidence offered by defendant to establish the alibi. MCLA § 768.21 (Stat Ann 1954 Rev § 28.1044). The trial court, however, did allow defendant's main alibi witness to testify. Our review of the record satisfies us that no abuse of discretion occurred below.

The record reveals that defendants were given a fair and impartial trial and that no miscarriage of justice was committed.

Affirmed.