People v. Farley

13 Mich. App. 132 (1968) 163 N.W.2d 692

PEOPLE
v.
FARLEY.

Docket No. 3,806.

Michigan Court of Appeals.

Decided August 29, 1968. Leave to appeal denied May 23, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney and S.J. Venema, Assistant Prosecuting Attorney, for the people.

Stewart A. Christian, for defendant on appeal.

J.H. GILLIS, J.

Defendant was convicted by a jury of committing the crime of larceny in a building^[*] and sentenced to prison. Defendant has appealed contending that reversible error occurred in that an alleged res gestae witness was not indorsed on the information or called as a witness by the people. Defendant further contends that one of the witnesses for the people, on direct examination, raised the possibility of the existence of another offense. The remaining issues presented pertain to the delay of more than 10 days from arrest and warrant to examination and also to the failure of the trial court to delay the trial for 6 months in order that a possible defense witness might be located.

We find no reversible error in this record. The claimed res gestae witness was not present at the time of the larceny but was present some time later when the defendant and an acquaintance looked over some of the goods taken in the larceny. The people contend they first learned of this event during the trial and the defendant does not dispute this contention. Neither the people nor the defense asked, at this point in the trial, for an adjournment in order to bring in the witness. See People v. Rasmus (1967), 8 Mich. App. 239; People v. Dickinson (1966), 2 Mich. App. 646.

An acquaintance of the defendant who was indorsed as a res gestae witness testified that the day following the larceny he and the defendant left for Kansas City. When asked by the prosecutor why they went to Kansas City, the witness answered: "The reason I went, I had difficulty with my wife, and he wanted to go because he had an offense against him." The defense requested that the remarks be stricken on the basis that the answer was a conclusion. The court sustained the objection as to that portion of the answer which pertained to the defendant.

The delay in conducting the examination was adequately explained by the prosecutor. While the delay was unfortunate, it did not forestall the defendant's attempt to adjourn the trial for 6 months to locate an alleged witness known by a first name only. The trial court properly denied this request when defendant failed to show how the witness could possibly be located. The purpose of presenting this witness — what she would testify to if located — is not shown in this record.

The conviction is affirmed.

FITZGERALD, P.J., and McGREGOR, J., concurred.

NOTES

[*] CL 1948, § 750.360 (Stat Ann 1954 Rev § 28.592).