Summary
In People v. Cormandy, 16 Mich. App. 517, 519; 168 N.W.2d 430 (1969), lv. den, 382 Mich. 756 (1969), the prosecutor moved during trial for the indorsement of an additional witness.
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Docket Nos. 5,097, 5,861.
Decided March 25, 1969. Leave to appeal denied as to both defendants May 23, 1969. See 382 Mich. 756.
Appeal from Oakland, Arthur E. Moore, J. Submitted Division 2 February 5, 1969, at Lansing. (Docket Nos. 5,097, 5,861.) Decided March 25, 1969. Leave to appeal denied as to both defendants May 23, 1969. See 382 Mich. 756.
Charles Cormandy and David Gaval were convicted of breaking and entering. Defendants appeal. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, S. Jerome Bronson, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.
Sauer Girard ( J. Robert Sterling and Condit, Denison, Devine, Porter Bartush, of counsel), for defendant Cormandy.
Franklin Harris, for defendant Gaval.
BEFORE: QUINN, P.J., and McGREGOR and V.J. BRENNAN, JJ.
The jury found defendants guilty of breaking and entering, MCLA § 750.110 (Stat Ann 1968 Cum Supp § 28.305), and their subsequent appeals are consolidated in the present discussion. The first issue raised is whether the trial court committed reversible error by allowing the indorsement of additional witnesses to the information. Two days before the scheduled trial date the court granted, without a formal order, the prosecutor's motion to add three res gestae witnesses. Later, the court postponed the trial's commencement by two weeks. At trial, before the voir dire examination, the prosecutor noted the earlier motion and moved for the addition of a fourth witness. Although defendants objected, the court granted the motion and denied defendants' motion for a continuance.
The indorsement of the three additional witnesses was not reversible error. Defendants did not make the necessary objection to the indorsement, People v. Qualls (1968), 9 Mich. App. 689, and they had approximately three weeks to interview the witnesses before trial testimony began. See People v. Hawks (1919), 206 Mich. 233. Similarly, the indorsement of a fourth witness was not reversible error. The addition of witnesses to the information is within the court's discretion, and a continuance may be granted to allow time to interview the witnesses. People v. Blue (1931), 255 Mich. 675. The prosecutor stated he did not know of the fourth additional witnesses at the time of filing the information, and thus the court did not abuse its discretion by allowing the addition. CLS 1961, § 767.40 (Stat Ann 1969 Cum Supp § 28.980); People v. Bollman (1913), 178 Mich. 159. Moreover, defendants did not present sufficient reason to grant the continuance and there was ample time to interview the witness before his actual trial testimony began. After the prosecutor asked brief introductory questions of the fourth witness and deferred to defendants for cross-examination, the defendants had no questions. Thus, the minimal testimony of the witness, indorsed in compliance with the statutory requirement rather than for his substantive testimony, did not prejudice defendants.
The second issue raised is whether the court committed reversible error by allowing police testimony of binocular observation and identification of defendants, despite their objections and request that all testimony with regard to binoculars be stricken. Defendants contend on appeal that a proper foundation for the testimony was not laid. Defendants analogize binoculars to scientific instruments and contend that testimony regarding their correctness and trustworthiness was a prerequisite to the identification of defendants, according to 3 Wigmore, Evidence (3d ed), §§ 795, 795a. Their analogy is inapt; binoculars are not within the class of scientific instruments contemplated by the cited sections concerning X-ray apparatus and microscopes.
Although authority is scarce on the use of binocular testimony, the question of its propriety is not well posed by this appeal. When their objection was raised, defendants stated no grounds or reasons why the testimony should be stricken. The general rule that objections to evidence must be specific is firmly embedded in Michigan jurisprudence.
"It is the duty of a party objecting to the admission of evidence, to state the ground of his objection with perspicuity." Hoard v. Little (1859), 7 Mich. 468, 470.
The objections were not sufficiently explicit to preserve an appellate theory attacking the use of binoculars.
Defendants made no request to examine the binoculars and they did not cross-examine the witness concerning the quality of the binoculars used. Rather, they cross-examined the witness on the credibility of his testimony by asking questions concerning the illumination of the area and what he observed. If defendants had requested an examination of the binoculars, and the court had refused, their argument would have more merit. But defendants' general objections at trial cannot be transformed on hindsight into a specific objection that no foundation, by testimony concerning the binoculars' accuracy, was laid for the subsequent testimony identifying defendants. The objection was simply imprecise, vague, and properly overruled.
The remaining issues presented are unsubstantial.
Convictions affirmed.
All concurred.