People v. Thomas , 34 Mich. App. 30 ( 1971 )

34 Mich. App. 30 (1971) 190 N.W.2d 681

PEOPLE
v.
THOMAS

Docket No. 5730.

Michigan Court of Appeals.

Decided May 24, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Michael R. Mueller, Assistant Prosecuting Attorney, for the people.

Charles E. Fonville, for defendant on appeal.

Before: T.M. BURNS, P.J., and FITZGERALD and R.B. BURNS, JJ.

PER CURIAM.

Defendant and two others were convicted of assault with intent to rob while being armed. MCLA § 750.89 (Stat Ann 1962 Rev § 28.284). They all waived trial by jury. Defendant was sentenced to not less than five years nor more than ten years imprisonment by Detroit Recorder's Court Judge Crockett. The codefendants both were placed on two years probation and fined $250.

Defendant was at all times represented by counsel. Defendant brings this appeal as of right and raises three allegations of error: (1) failure of the prosecution to indorse a witness; (2) failure to determine the origin of the in-court identification of defendant; and (3) the evidence was not sufficient to support a verdict of guilty beyond a reasonable doubt.

The people have filed a motion to affirm the conviction and sentence.

When defendant and his friends fled the scene of the crime they entered a nearby apartment. A woman later admitted police to the apartment. Defendant contends that the failure to indorse a witness prevented the defendant from having a fair trial because the witness could have presented an alibi defense for defendant. The trial transcript belies this contention. In his closing argument to the court, defendant's attorney flatly admitted that defendant was present with three other men when the complainant was put in fear of being robbed. The only defense offered at trial was that the complainant misconstrued the actions of the four men since they were only engaging in a prank with no intent to rob. It is clear that the witness was not a res gestae witness since her testimony was not necessary to protect defendant against false accusation. People v. Kayne (1934), 268 Mich. 186; People v. Dickinson (1966), 2 Mich. App. 646. Under MCLA § 767.40 (Stat Ann 1971 Cum Supp § 28.980) the duty of the prosecutor is limited to the indorsement of res gestae witnesses. People v. Kayne, supra; People v. Dickinson, supra. Further, defendant's attempt to establish the defense of alibi comes too late. MCLA § 768.20 (Stat Ann 1954 Rev § 28.1043); People v. Williams (1968), 11 Mich. App. 62.

Testimony of the complaining witness clearly does show that the in-court identification of defendant had an independent origin, i.e., the witness's clear view of defendant during the attempted armed robbery, contrary to the allegation of defendant's brief. In such case the face-to-face confrontation of defendant by the complainant in the apartment to which defendant fled was not a denial of due process. People v. Cartwright (1970), 26 Mich App 687; People v. Serra (1942), 301 Mich. 124; People v. Floyd (1968), 15 Mich. App. 284.

A careful review of the record reveals that there was more than sufficient evidence from which the trial judge sitting without a jury could find defendant guilty beyond a reasonable doubt. All of the elements of the crime charged were testified to by the complaining witness and, if believed by the trial judge, such testimony was sufficient to support a conviction. Where the trial judge sits as trier of fact this Court cannot interfere with his findings, because a reviewing court cannot weigh conflicting evidence in a nonjury case. People v. Bennett (1966), 3 Mich. App. 326; People v. Szymanski (1948), 321 Mich. 248.

The motion to affirm is granted.