People v. De Smyther

Per Curiam.

Defendant’s jury trial resulted in his conviction of breaking and entering in violation of MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305). He was sentenced and he appeals. The substantiality of the appeal is demonstrated by defendant’s first issue and certain facts of record.

Defendant first asks, “Was the court’s denial of defendant’s motion to endorse additional res gestae witnesses error?”. The record indicates that the alleged additional “res gestae” witnesses are two police officers from an adjoining community who were called to a hospital in that community to arrest defendant about two hours after the offense occurred. The offense took place in Macomb County. The hospital where defendant was arrested was in Detroit and all arresting officers were Detroit policemen. There is nothing in the record to indicate that the so-called “res gestae” witnesses had any knowledge of or connection with the offense other than as hereinbefore indicated.

Neither physically nor legally can one raise himself by his own bootstraps. Calling a witness “res gestae” in brief or argument does not make that witness res gestae. That determination is made from facts, and on this record, the alleged “res gestae” witnesses were not such.

At the close of the prosecution’s case, defendant moved to dismiss. On appeal, he contends that denial of this motion was not only error, but it deprived him of due process contrary to US Const, Am 5. On the strength of a conflict in testimony relating to the identification of defendant, he now argues that the essential elements of the crime were not established, hence his motion should have been granted. The resolution of the conflicting testimony with respect to identification was for the jury, and the record contains ample evidence to establish all elements of the offense. The motion was properly denied.

During his examination by the prosecuting attorney, a police officer gave a voluntary and unresponsive answer relating to another witness. Defendant moved for mistrial, which was denied, but the court immediately ordered the answer stricken and instructed the jury to disregard it. The alleged error is no longer a reversible error on this record. People v. Podsiad (1940), 295 Mich 541.

There was ample evidence, if believed by the jury, to establish defendant’s guilt beyond a reasonable doubt.

Affirmed.