Opinion
Docket No. 9489.
Decided May 25, 1971. Leave to appeal denied, 387 Mich. 759.
Appeal from Oakland, Clark J. Adams, J. Submitted Division 2 May 10, 1971, at Lansing. (Docket No. 9489.) Decided May 25, 1971. Leave to appeal denied, 387 Mich. 759.
John Edward Hodges was convicted of breaking and entering with the intent to commit larceny. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Thomas G. Plunkett, Prosecuting Attorney, and Frank R. Knox, Assistant Prosecuting Attorney, for the people. William E. Bolle and Alan W. Stevenson, for defendant on appeal.
Before: DANHOF, P.J., and FITZGERALD and QUINN, JJ.
This is an appeal as of right from a jury conviction on a charge of breaking and entering with intent to commit larceny.
MCLA § 750.110 (Stat Ann 1971 Cum Supp § 28.305).
After a two-day trial, defendant was found guilty and sentenced to serve from 7-1/2 to 15 years in prison. Defendant appeals this conviction contending that it was reversible error for the trial court to permit the prosecuting attorney to indorse additional witnesses just prior to the trial. Two of the late-indorsed witnesses were added two days before trial. The third witness was indorsed the day of the trial. Defendant objected to all three of the late indorsements. The people set forth no reason for the delay in the indorsements.
Generally, the permitting of late indorsement is within the discretion of the trial court and can be reversed only if there is an abuse of discretion. The burden to show the abuse is ordinarily upon the party asserting it. People v. Blue (1931), 255 Mich. 675; People v. McCrea (1942), 303 Mich. 213.
It is difficult to maintain the position that the late indorsements in the instant case were prejudicial to appellant. None of the late-indorsed witnesses were res gestae witnesses. Additionally, the failure of appellant to ask for a continuance, or to take an adjournment as offered by the trial court, although not a strict requirement, tends to negate the argument that the late indorsement was prejudicial to appellant's case. People v. Lee (1943), 307 Mich. 743.
The appellant says the late indorsements were prejudicial but advances no reasons or fact indicating that they were so. In light of this failure to show prejudice to defendant, and the strengths of the other, uncontested proofs, the ruling by the trial court was not an abuse of discretion so as to constitute reversible error. People v. Rowls (1970), 28 Mich. App. 190.
Affirmed.