Opinion
Docket No. 9100.
Decided January 29, 1971. Leave to appeal denied April 20, 1971, 384 Mich. 832.
Appeal from Wayne, Nathan J. Kaufman, J. Submitted Division 1 December 11, 1970, at Detroit. (Docket No. 9100.) Decided January 29, 1971. Leave to appeal denied April 20, 1971, 384 Mich. 832.
Dennis Konvinski was convicted of armed robbery. 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 Luvenia D. Dockett, Assistant Prosecuting Attorney, for the people.
D. Michael Kratchman, for defendant on appeal.
Defendant was convicted by a jury of robbery armed, MCLA § 750.529 (Stat Ann 1970 Cum Supp § 28.797) and sentenced to serve one to two years' imprisonment. From that conviction and sentence he appeals.
Complainant testified at trial that he was walking home one night about 11 p.m. when a young man grabbed him, held a knife at his throat, and demanded money. Complainant said: "Take my money". A wallet containing $18, plus several other articles, was taken from him.
After the robbery complainant called the police. He told them that he did not know the name of the man who robbed him, but that he knew who he was as he had seen him around.
Two days later, complainant was walking around Cunningham's Drug Store in Hamtramck when he saw the man who robbed him. He went into a hardware store and called the police. When the police arrived complainant pointed the defendant out to them as the one who robbed him and the police placed Mr. Konvinski in custody. At trial, complainant again identified defendant as the guilty party.
From the time he was arrested, defendant claimed alibi. He contended that at the time of the robbery he was at his grandmother's house. At trial his mother-in-law and wife related that on the night of the robbery they had taken defendant to his grandmother's about 9:30 or 10 o'clock as they did every evening. Defendant's grandmother stated that Mr. Konvinski had come home as usual on the night of the robbery and gone to bed.
Defendant took the stand in his own defense stating the same alibi and generally denying his guilt. The case went to the jury which found the defendant guilty. From the denial of defendant's motion for a new trial he appeals.
Defendant first alleges that the trial court erred in failing to require the prosecutor to attempt to produce the two girls allegedly with defendant when he robbed the complainant as these girls were res gestae witnesses. A review of the record below reveals that this issue was not raised and therefore was not properly preserved for review. People v. Hutson (1970), 25 Mich. App. 109. In addition, it does not appear that the identity of these girls was known to the prosecution. The people are under no obligation to produce "unknown witnesses". People v. Todaro (1931), 253 Mich. 367. Accordingly, this issue lacks merit.
Defendant's second contention is that the trial court committed reversible error by his cross-examination of the defendant's alibi witness because in questioning this witness he showed partiality to the prosecution. Generally, the trial judge may question witnesses when he wishes in order to clear up matters during trial, People v. Noyes (1950), 328 Mich. 207, but the judge's questions should not make it apparent to the jury his belief or disbelief in a witness's testimony. People v. Young (1961), 364 Mich. 554. In the instant case a review of the record indicates that the judge's questions were not improper. Additionally, the defendant's counsel interposed no objections to these questions at trial. Moreover, in his instructions to the jury the trial judge stated that nothing he said should be considered by the jury as to how much credence they should give to the testimony of any witness. Thus the issue is without merit.
The testimony of the complainant if believed was clearly sufficient to support a finding of guilty beyond a reasonable doubt.
Affirmed.