Summary
In Sacharczyk, it was held that the allowance of rebuttal evidence was improper because the witness there introduced had never been indorsed on the information, no explanation of failure to indorse was given, and the testimony itself was improper as it tended to prove surrounding circumstances of the crime.
Summary of this case from People v. BarbaraOpinion
Docket No. 3,219.
Decided April 21, 1969. Rehearing denied May 19, 1969. Leave to appeal denied December 24, 1969. See 383 Mich. 755.
Appeal from St. Clair, Halford I. Streeter, J. Submitted Division 2 April 15, 1969, at Lansing. (Docket No. 3,219.) Decided April 21, 1969. Rehearing denied May 19, 1969. Leave to appeal denied December 24, 1969. See 383 Mich. 755.
Walter Sacharczyk was convicted of resisting a police officer in the discharge of his duty. Defendant appeals. Reversed and remanded for a new trial.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James T. Corden, Prosecuting Attorney, and Walter W. Turton, Assistant Prosecuting Attorney, for the people.
Philip A. Gillis, for defendant.
BEFORE: McGREGOR, P.J., and R.B. BURNS and DANHOF, JJ.
Defendant appeals his jury conviction for resisting a police officer in discharge of his duty. MCLA § 750.479 (Stat Ann 1954 Rev § 28.747). At trial, after the defense rested, the prosecution, over defendant's objection, called two unindorsed res gestae witnesses in rebuttal. The allowance of their testimony was reversible error. The witnesses had not appeared before. Furthermore, no attempt had been made to indorse the witnesses and no legal cause explaining the prosecution's failure to indorse is evident in the record. See MCLA § 767.40 (Stat Ann 1969 Cum Supp § 28.980); People v. Honenberg (1936), 274 Mich. 698; People v. Rose (1934), 268 Mich. 529; People v. Rimson (1966), 3 Mich. App. 713. Finally, the rebutting testimony was improper, since it tended to prove surrounding circumstances of the crime. People v. Rose, supra, 540.
Our ruling above makes unnecessary either an enlargement of the facts or a dissection of other issues.
Reversed and remanded for a new trial.