Opinion
Docket No. 4,794.
Decided February 26, 1969. Rehearing denied April 2, 1969.
Appeal from Wayne, George T. Martin, J. Submitted Division 1 January 10, 1969, at Detroit. (Docket No. 4,794.) Decided February 26, 1969. Rehearing denied April 2, 1969.
Ernest Mills, also known as Melvin R. Welsh, was convicted of rape. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Joseph C. Murphy, Assistant Prosecuting Attorney, for the people.
James A. Sullivan, for defendant.
BEFORE: LESINSKI, C.J., and J.H. GILLIS and T.M. BURNS, JJ.
Ernest Mills, alias Melvin R. Welsh, was convicted by a jury of rape, CLS 1961, § 750.520 (Stat Ann 1954 Rev § 28.788). He appeals the denial of a motion for a new trial.
Defendant's contention that the verdict was against the great weight of the evidence is not supported by the record. Complainant and defendant each testified and each was supported by friendly witnesses. Their stories were in direct conflict as to whether or not complainant consented to the intercourse, and the jury, having seen and heard the witnesses, was entitled to choose which side to believe. People v. Bonowski (1951), 330 Mich. 120, 129. The trial judge also viewed the witnesses and elected not to disturb the verdict. People v. Petty (1926), 234 Mich. 282. We will not do so on the basis of the record before us.
Defendant contends on appeal that there was error in the failure of the prosecutor to endorse certain res gestae witnesses on the information. CLS 1961, § 767.40 (Stat Ann 1969 Cum Supp § 28.980). A review of the record reveals that the witnesses who were not endorsed were arresting officers who arrested the defendant some two months after the alleged offense. We do not find these to be res gestae witnesses. Assuming arguendo these were res gestae witnesses, defendant cannot raise this point on motion for new trial or on appeal for the first time when he was aware that these witnesses did exist. People v. Rasmus (1967), 8 Mich. App. 239; People v. Dimitroff (1948), 321 Mich. 205.
Defendant further contends that the prosecutor's summation to the jury was prejudicial. The prosecutor's summation was perhaps overzealous, but we do not find that it prejudiced the jury against defendant. Since defendant did not object at time of trial or ask for cautionary instructions, we will not consider this assignment of error for the first time on appeal. See People v. Desimone (1928), 243 Mich. 539.
Affirmed.