DocketNumber： Docket 7,483
Citation Numbers： 181 N.W.2d 28, 25 Mich. App. 165, 1970 Mich. App. LEXIS 1538
Judges： Holbrook, Bronson, Munro
Filed Date： 6/30/1970
Status： Precedential
Modified Date： 10/19/2024
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Eugene C. Penzien, Prosecuting Attorney, for the people.
James G. Orford, for defendant on appeal.
Before: HOLBROOK, P.J., and BRONSON and MUNRO,[*] JJ.
PER CURIAM.
Defendant was tried before a jury in the Bay County Circuit Court for malicious destruction of property of another in excess of $100.[**] The offense occurred after a brawl in front of a restaurant run by complainant. The testimony of the complainant and his wife tended to show that defendant broke several plate-glass windows in the restaurant after the fight. Other res gestae witnesses *167 contradicted one another as to when and how many windows were broken.
The prosecutor was permitted to amend his complaint and warrant at the preliminary examination. Defendant argues that his motion to dismiss should have been granted at that time. Since defendant had not been placed in jeopardy at this point, we do not differentiate this procedure from that of permitting the prosecutor to dismiss a complaint and warrant, and then immediately issue a new one. Missaukee Prosecuting Attorney v. Missaukee Circuit Judge (1891), 85 Mich. 138; People v. Tillard (1947), 318 Mich. 619. Further, since the prosecutor's amendment merely substituted the "real property" destruction statute for the "personal property" destruction statute, we think the facts of this case are readily distinguishable from those which required our decision in People v. Mercer (1967), 6 Mich. App. 644.
Defendant next urges that unreasonable delay occurred before the holding of the preliminary examination. MCLA § 766.4 (Stat Ann 1954 Rev § 28.922). The record is not clear as to what happened to the defendant between January 8, 1969, when the complaint and warrant were issued, and January 22, 1969, when the preliminary examination was held. Even assuming a delay of the full 15 days, although this would be error, it would not require reversal. People v. Grasty (1970), 21 Mich. App. 106; People v. Linscott (1968), 14 Mich. App. 334; People v. Wickham (1968), 13 Mich. App. 650.
Defendant also maintains that the admission into evidence of the hammer with which he was alleged to have broken the windows was error since the prosecutor failed to show a chain of police custody. The gap occurred when the arresting officer was attempting to subdue the defendant, and the hammer *168 was tossed outside his visual scope. Another officer retrieved it, and turned it over to the arresting officer. The hammer was properly admitted; the jury could determine its probative value. People v. Smith (1941), 296 Mich. 176; People v. Eaves (1966), 4 Mich. App. 457.
Defendant's appellate counsel contends that the trial court erred in not instructing on insanity. If defendant committed the act as complainant described, he argues, he must have had a diseased mind at the time. Although defendant does not overlook the fact that this issue must be raised by pretrial notice under MCLA § 768.20 (Stat Ann 1954 Rev § 28.1043), he claims that the failure of his trial counsel to raise the issue properly deprived him of a fair trial and that he was thus denied effective representation. Because of this, he feels the trial court should have proceeded sua sponte to instruct on the issue of insanity. We stated in People v. Degraffenreid (1969), 19 Mich. App. 702, that defense counsel's mistake may be grounds for a new trial if serious enough. However, we do not mean to imply that any error or tactical omission at trial will require a new trial. In People v. Swanigan (1969), 20 Mich. App. 180, we determined that the trial court's failure to instruct the jury on the issue of insanity was not error where the issue was not properly raised by pretrial notice. We do not feel that defense counsel's failure to raise the issue of insanity here was error requiring a new trial.
Finally, defendant argues that the verdict is against the great weight of the evidence. The trial transcript shows that the basic issue for the jury was the credibility of the many contradictory witnesses presented. This was properly an issue for the jury to determine.
Affirmed.
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[**] MCLA § 750.380 (Stat Ann 1970 Cum Supp § 28.612).