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People v. T.J. Smith

Michigan Court of Appeals
Apr 30, 1971
33 Mich. App. 360 (Mich. Ct. App. 1971)

Summary

In People v. T J Smith, 33 Mich. App. 360, 361 (1971), the defendant claimed on appeal that reversible error occurred when his counsel failed to make an opening statement.

Summary of this case from People v. Hempton

Opinion

Docket No. 11068.

Decided April 30, 1971.

Appeal from Recorder's Court of Detroit, Frank G. Schemanske, J. Submitted Division 1 March 16, 1971, at Grand Rapids. (Docket No. 11068.) Decided April 30, 1971.

T.J. Smith was convicted of larceny in a store. Defendant appeals. Affirmed.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Leonard Meyers, Assistant Prosecuting Attorney, for the people.

Marshall C. Disner, for defendant on appeal.

Before: HOLBROOK, P.J., and FITZGERALD and T.M. BURNS, JJ.


Defendant was tried by a jury and convicted on the charge of larceny in a store contrary to MCLA § 750.360 (Stat Ann 1954 Rev § 28.592). On April 28, 1970, he was sentenced to a term of 2-1/2 to 4 years imprisonment by Judge Donald S. Leonard sitting in the absence of Judge Frank G. Schemanske of the Recorder's Court. With the assistance of court-appointed appellate counsel, a timely claim of appeal has been filed and grounded on three allegations of error. First, it is contended that reversible error occurred when defense counsel failed to make an opening statement. Second, it is contended that the jury returned an improper verdict. Third, it is contended that reversible error occurred when the lower court failed to obtain a proper waiver from the defendant of his right to confront all of the witnesses against him. The people have filed a motion to affirm the conviction and sentence.

At the commencement of trial defense counsel indicated to the court that he desired to withhold opening remarks. Although the record demonstrates that defense counsel failed to make any opening remarks before presenting the defense to the jury, no authority has been presented which suggests that this procedure was error. Moreover, the defendant does not contend nor does the record suggest that the defense was prejudiced by this procedure.

Defendant's second contention is grounded on the rule enunciated in People v. Smith (1968), 14 Mich. App. 502, that when a verdict of a jury has sufficient language in it to sustain a lesser offense, such lesser offense is the limit of the verdict that may be accepted by the court. Contrary to the contention of the defendant, the record of the verdict in this case clearly indicates that the jury returned a verdict of guilty as to the original charge of larceny in a store.

The final contention of the defendant is that reversible error occurred when the prosecutor failed to offer at trial all witnesses who were indorsed on the information. The record demonstrates that defense counsel expressly waived the production of these witnesses. The issue is without merit.

The motion to affirm is granted.


Summaries of

People v. T.J. Smith

Michigan Court of Appeals
Apr 30, 1971
33 Mich. App. 360 (Mich. Ct. App. 1971)

In People v. T J Smith, 33 Mich. App. 360, 361 (1971), the defendant claimed on appeal that reversible error occurred when his counsel failed to make an opening statement.

Summary of this case from People v. Hempton
Case details for

People v. T.J. Smith

Case Details

Full title:PEOPLE v. T.J. SMITH

Court:Michigan Court of Appeals

Date published: Apr 30, 1971

Citations

33 Mich. App. 360 (Mich. Ct. App. 1971)
189 N.W.2d 819

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