Narrative Opinion Summary
The case involves the conviction of a defendant for attempted breaking and entering with intent to commit larceny. During the trial, an issue arose regarding the non-production of a res gestae witness, Dick Todd, whose testimony was deemed potentially relevant. The defense argued that the trial court erred by not ordering the prosecution to indorse this witness. However, the court ruled that the defendant could not raise this issue on appeal as he failed to request the witness's indorsement or object to their absence during the trial. The court referenced MCLA 767.40, which requires known witnesses to be indorsed, but noted that there was no indication of prosecutorial misconduct in concealing the witness's existence. Additionally, the defendant challenged the jury instruction concerning the inference from the non-production of the witness. The court upheld the instruction, which allowed the jury to assume the testimony would be unfavorable to the prosecution, but stated they have discretion in applying this inference. The appellate court affirmed the trial court's decision, with all judges concurring, maintaining the conviction and sentence of the defendant.
Legal Issues Addressed
Indorsement and Production of Witnessessubscribe to see similar legal issues
Application: The court held that the defendant could not raise the issue of a missing res gestae witness on appeal because he did not request the indorsement or object to the absence of the witness during the trial.
Reasoning: The court concluded that the defendant's failure to request Todd's indorsement or object to his absence at trial precluded him from raising this issue on appeal.
Jury Instructions on Missing Witness Inferencesubscribe to see similar legal issues
Application: The court determined that the jury instruction regarding the potential inference from the prosecution's failure to produce a missing eyewitness was adequate and not erroneous.
Reasoning: The court found that the trial court's instruction adequately addressed the inference regarding the missing witness's potential testimony and was therefore not erroneous.