Opinion
Docket No. 10752.
Decided October 27, 1971. Leave to appeal denied, 386 Mich. 774.
Appeal from Ingham, Marvin J. Salmon, J. Submitted Division 2 October 14, 1971, at Lansing. (Docket No. 10752.) Decided October 27, 1971. Leave to appeal denied, 386 Mich. 774.
William Bernstein was convicted of knowingly keeping, maintaining, and suffering a gambling establishment. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Raymond L. Scodeller, Prosecuting Attorney, and James R. Ramsey, Assistant Prosecuting Attorney, for the people.
Farhat Burns, for defendant.
Defendant and Herbert R. Fisher were charged with a two-count violation of MCLA § 750.303 (Stat Ann 1954 Rev § 28.535) in that they knowingly kept and maintained and suffered a gambling establishment. At the close of the people's proofs in a nonjury trial, a motion to dismiss was granted and an acquittal entered as to Herbert Fisher. Defendant was then convicted and sentenced to 2 years probation, $500 in fines, $250 in costs, and 60 days in the county jail. Defendant appeals from this conviction.
The evidence at the trial showed that the defendant owned the premises in question, that the defendant was present when the gaming activities took place, and that a cut was taken from the pot during each hand "for the house". The trial court found this was prima facie evidence that the crimes charged had been committed. The defendant's own testimony also tended to confirm that the crimes were committed.
The evidence presented by the people was sufficient, if believed, to prove each and every element required to justify the conviction of defendant of violating MCLA § 750.303 (Stat Ann 1954 Rev § 28.535). People v. Johns (1953), 336 Mich. 617. The trial court properly denied defendant's motion to dismiss.
The use and confidentiality of presentence reports is clearly established under both Michigan law and the United States Constitution. People v. Camak (1967), 5 Mich. App. 655; People v. Beard (1969), 17 Mich. App. 409; People v. Giacalone (1970), 23 Mich. App. 163; People v. Moton (1970), 25 Mich. App. 383; People v. Stardevant (1971), 33 Mich. App. 252; and Williams v. New York (1949), 337 U.S. 241 ( 69 S Ct 1079, 93 L Ed 1337).
The instant case is similar to the case of People v. Camak, supra, wherein we stated at pp 661, 662 as follows:
"The record discloses no request by defendant or his counsel of the court to examine the presentence report, and as pointed out by defendant the record fails to disclose an offer by the court to defendant to examine it at the time of sentence."
Therein we ruled that there was no error in failing to furnish defendant the presentence report at the time of sentencing or prior thereto.
Furthermore, under the latest decision of our Supreme Court, People v. Malkowski (1971), 385 Mich. 244, the granting or denial of a request by the defendant to see the presentence report is discretionary with the court. Defendant has failed to show any abuse of discretion by the trial court in the instant case.
Affirmed.