Opinion
Docket No. 7886.
Decided February 23, 1971.
Appeal from Muskegon, Albert J. Engel, J. Submitted Division 3 January 5, 1971, at Grand Rapids. (Docket No. 7886.) Decided February 23, 1971.
Rufus Harris was convicted of felonious assault. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Paul M. Ladas, Prosecuting Attorney, for the people.
Halbower Ruck, for defendant.
Before: HOLBROOK, P.J., and McGREGOR and T.M. BURNS, JJ.
Defendant's jury trial on a charge of felonious assault, MCLA § 750.82 (Stat Ann 1962 Rev § 28.277), resulted in his conviction of the offense charged. He was sentenced, his motions for new trial on the basis of prejudicial remarks to the jury by the prosecutor and newly-discovered evidence were denied, and he appeals. The appeal raises two issues: (1) should the trial court have granted defendant's motion for a new trial on the basis of prejudicial remarks to the jury by the prosecutor?; and (2) should the trial court have granted defendant's motion for a new trial on the basis of newly-discovered evidence?
The failure of the prosecution to indorse names of res gestae witnesses on an information cannot be raised for the first time in a motion for a new trial. People v. Prescott (1934), 268 Mich. 606; People v. Dimitroff (1948), 321 Mich. 205; People v. Amos (1968), 10 Mich. App. 533.
Remarks by a prosecutor, even if improper, do not constitute reversible error where made primarily in response to matters previously discussed by defense counsel. People v. George (1965), 375 Mich. 262; People v. Thomas (1969), 17 Mich. App. 740.
Grant of a motion for new trial on the basis of newly-discovered evidence is discretionary. People v. Bauman (1952), 332 Mich. 198; People v. Dailey (1967), 6 Mich. App. 99; People v. Keiswetter (1967), 7 Mich. App. 334. Appellate relief from a denial of a motion for a new trial on basis of newly-discovered evidence is granted if it is demonstrated that the trial court abused its discretion in such denial. "Abuse" in such a case would be evidenced by a result that is palpably and grossly violative of fact and logic, such that it evidences "not the exercise of judgment but the defiance thereof, not the exercise of reason but rather of passion or bias". People v. Wolschon (1966), 2 Mich. App. 186, 188.
In this case the newly-discovered evidence was the confession of the defendant's brother to the crime for which the defendant was convicted and to his own perjury at the defendant's trial. The rule in Michigan is that a new trial on grounds of newly-discovered evidence will not be granted on testimony tending to show the perjury of a witness. People v. Smallwood (1943), 306 Mich. 49; People v. Andrews (1960), 360 Mich. 572; People v. Dailey, supra; People v. Miniear (1967), 8 Mich. App. 591.
The record shows that the trial judge did not violate the well-established standard of judicial discretion in denying defendant's motion for new trial based on newly-discovered evidence. The trial judge is in a better position to determine whether new evidence would tend to produce a probable different result on a retrial. People v. Keiswetter, supra; People v. Bennett (1966), 3 Mich. App. 326; People v. Miniear, supra. There is no showing that the claimed newly-discovered evidence would probably produce a different result on retrial.
Affirmed.