Opinion
Docket No. 9,502.
Decided December 2, 1970.
Appeal from Genesee, Donald R. Freeman, J. Submitted Division 2 October 16, 1970, at Marquette. (Docket No. 9,502.) Decided December 2, 1970.
Clifford Billings was convicted of assault with intent to do great bodily harm less than murder. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.
Carl H. Leiter, for defendant on appeal.
Defendant-appellant was charged with the offense of "assault with intent to commit murder," MCLA § 750.83 (Stat Ann 1962 Rev § 28.278). After trial, defendant was found guilty by a jury of "assault with intent to do great bodily harm less than the crime of murder," MCLA § 750.84 (Stat Ann 1962 Rev § 28.279). Subsequently, he was sentenced to serve life imprisonment with a recommendation that he be placed in solitary confinement and never be considered for pardon or parole. He brings this appeal of right.
This sentence followed defendant's conviction as a fourth offender under MCLA § 769.12 (Stat Ann 1954 Rev § 28.1084).
Defendant and another man, Mr. James Hanes, apparently broke into a saddlery company in Flint, Michigan, and left the scene in a truck. Officer Darby, of the Flint Police Department, testified that he spotted a truck matching a radioed description pulling into a driveway and moved his patrol car up behind it. The officer was met by defendant and Mr. Hanes in back of the truck and each produced a driver's license for identification. After returning to his patrol car to check further on the breaking and entering, the officer again emerged from his car whereupon the defendant allegedly drew a gun and stuck it into the officer's midsection. When defendant reached for the officer's gun, Officer Darby began wrestling with defendant, squirting him with Mace and eventually kicking defendant's gun away. During the struggle the defendant overcame the officer and was apparently about to get his gun when other officers arrived and subdued the defendant. A search of the immediate area produced a .25 caliber automatic which had been stolen from the saddlery company. Defendant's partner testified at trial but was not prosecuted. Defendant's motion for a new trial was denied.
Prior to this prosecution, defendant was convicted of breaking and entering the involved building. We mention this not because it is decisionally relevant per se, but informationally, because the weapon used by defendant in the alleged assault was identified as having been stolen from the saddlery company building.
Defendant raises multiple issues on appeal. We dispose of all but one under the court rule, statute, and settled case law that no judgment or verdict shall be set aside or reversed for errors or defects in proceedings which do not result in a miscarriage of justice.
GCR 1963, 529.1.
CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).
The Supreme Court has written specifically to the point:
"The import of both the rule and the statute is that on review courts should be concerned with substance, not with form, that the fundamental inquiry is whether there has been a miscarriage of justice". People v. Dunn (1968), 380 Mich. 693, 701.
We have reviewed the extensive trial transcript with care. We find no suggestion of a miscarriage of justice.
We direct ourselves now to the question raised by appellant relating to certain testimony, the admission of which is claimed to have resulted in error so prejudicial as to have been reversibly erroneous.
The testimony specifically claimed to be hearsay is that of Detective Hatchew who was called to the stand after the testimony of Mr. Hanes and testified as follows:
"Q. Did he [Hanes] tell you during this interrogation, at the time of the assault, that Mr. Billings reached into his pocket and pulled out a pistol, an automatic, and pointed it at Officer Darby?
"A. Yes, he did".
The testimony was obviously hearsay. It was not admissible for impeachment purposes because no proper basis for impeachment examination had been established. On direct examination the police officer alleged to be the subject of the assault testified:
"He put the gun almost directly in the stomach — wasn't touching me — but very close".
In view of the testimony above quoted and the prior testimony of Hanes, the hearsay was at best merely cumulative. Its admission was not reversibly erroneous. See People v. Hallaway (1970), 25 Mich. App. 604.
We have reviewed the whole record and find no reversible error. We commend appointed counsel and the prosecuting attorney for their well-considered and thorough briefs.
Finding no reversible error, the judgment of conviction is affirmed.
All concurred.