People v. Johnson

Burns, P. J.

The late Judge Watts who was a member of the panel of judges to whom this case was. submitted for determination took no part in this decision.

Defendants appeal from their conviction and sentence for taking 2 knit suits from Paul Steketee & Sons, a Grand Rapids department store, in violation of CL 1948, § 750.360 (Stat Ann 1954 Rev § 28.592).

Defendants claim that reversible error was committed by the introduction of evidence of other independent offenses. Kathryn McPike, a buyer of a Kalamazoo department store, was questioned by the prosecutor as follows :

“Q: Do you know how he [the arresting officer] happened to be there [at the scene of the arrest]?

“A. Well, he kiiew that, we had called earlier, I mean he knew when I was following them, I had spoken to him, and told him I was following a shoplifter, and-asked him tú'help me.” (Emphasis supplied.)’'

The defendants made the- same claim as to the following testimony of Julia Amar, an employee of Wurzburg’s department store, who was a rebuttal witness:

“Q. How do you happen to remember that [Rae Johnson was in Wurzburg’s] ?

“A. Because we bought — she had tried on several suits, and we had just purchased these suits, and they just came in our department, and she was looking — it was $89.95, this suit, and she was looking at this suit, and the following evening, we were checking our suits. The suit was missing, and, I knew that this suspicious character that was in} I was — I quick told the department.” (Emphasis supplied.)

At the conclusion of both of the above answers the defense moved for mistrial. The motions- were denied.

The defendants have correctly stated the general rule which they contend should have compelled the trial court to grant their motions for mistrial. The general rule is that in a criminal prosecution testimony of other distinct offenses committed by the defendant cannot be introduced in evidence. The general rule, however, does not apply to the situation at hand.

Mrs. McPike’s descriptive language, “shoplifter,” came in response to a question necessary in laying the foundation for introduction of the allegedly stolen merchandise. Any prejudicial effect that Mrs. McPike’s statement ■ might have had certainly was cured when, upon cross-examination, she testified that nothing was taken from the department store where she was employed.

Miss Amar’s testimony was intended to impeach the defendant, Rae Johnson, who said she had never been in Wurzburg’s department store. In order to effectively discredit Miss Johnson’s testimony the prosecution had to point out to the jury why -Miss Amar so vividly recalled seeing her in Wurzburg’s.

We do not think that Miss Amar’s testimony tended to prove or did prove the commission of another offense, or that it had any prejudicial effect.

CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096) provides that no verdict shall he set aside on the ground of improper admission of evidence unless after an examination of the entire cause “it shall affirmatively appear that the error complained of has resulted in a miscarriage of justice.” We find no miscarriage of justice in this case.

Judgment affirmed.

Fitzgerald, J., concurred.