Opinion
Docket No. 9059.
Decided April 24, 1972. Leave to appeal denied, 388 Mich. 795.
Appeal from Saginaw, Eugene Snow Huff, J. Submitted Division 3 April 4, 1972, at Lansing. (Docket No. 9059.) Decided April 24, 1972. Leave to appeal denied, 388 Mich. 795.
Jack R. Ross was convicted of breaking and entering with intent to commit a larceny and of possession of burglary tools. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George E. Thick II, Prosecuting Attorney, and Roy DeGesero, Assistant Prosecuting Attorney, for the people.
Henry L. Greenwood, for defendant on appeal.
A jury convicted defendant of breaking and entering with intent to commit a larceny, MCLA 750.110; MSA 28.305, and possession of burglary tools, MCLA 750.116; MSA 28.311. He was sentenced on each conviction and he appeals.
During his opening statement, the prosecuting attorney stated, "* * *, the prosecution will establish in the case of the people vs Jack Ross, beyond a reasonable doubt, that on April 17, 1969, the defendant was put under observation by members of the Michigan State Police Department; that the members of the Michigan State Police Department followed this defendant * * * ". Defendant objected and moved for a mistrial claiming that these remarks by implication and inference alluded to other crimes which the defendant may have committed and that this was reversible error. The trial court denied the motion on a finding that the remarks did not imply or infer other crimes which the defendant may have committed. In its instructions to the jury, the trial court instructed the jury to disregard the comment by the prosecutor in his opening statement that "the people would prove that they followed the defendant prior to his arrest near Gratiot Fuel and Lumber Company". There was no objection to this instruction or any other instruction.
The foregoing is the basis for two of the errors defendant urges on appeal. The trial court properly found that, fairly read, the objected to remark of the prosecuting attorney in his opening statement did not imply or infer other offenses. If such an implication or inference was possible from the remark, any error arising therefrom was corrected by the instruction quoted above, People v. Pruitt, 28 Mich. App. 270 (1970). Failure to object to the instruction, precludes defendant from now asserting error in the correcting instruction, GCR 1963, 516.2.
Defendant was arrested about 10 p.m. coming out of a fenced area surrounding Gratiot Fuel and Lumber Company on the date that it was broken into. When arrested, defendant had in his pocket a 3/4-inch chisel and a flashlight. At trial, the chisel, flashlight, and a hammer found near the scene of arrest were introduced into evidence over defendant's objection. The possession of the chisel was the basis for the charge against defendant of possession of burglary tools.
On appeal, defendant urges that it was reversible error to admit the chisel because no proper foundation was laid; it was error to admit the hammer because it was not connected in any way with defendant; it was error to admit the flashlight because it was not a burglary tool.
The proofs indicate that there were pry marks on the door and on the safe and that the glass in the door was broken. Defendant's possession of the chisel near the area of the offense and the pry marks on the door and on the safe were sufficient circumstances to support a jury finding that the chisel was adapted and designed for the purpose of breaking and entering. On authority of People v. Murphy, 28 Mich. App. 150, 156 (1970), it was not error to admit the chisel in evidence. The foregoing facts also support the admission of the flashlight in evidence.
While there is no direct evidence connecting defendant with the hammer, we do not find its admission in evidence to be reversible error on the facts of this case.
Affirmed.
All concurred.