People v. Rasmus

*241 Newblatt, J. Defendant was convicted by a -jury of attempted 1 breaking and entering 2 and was duly sentenced and now prosecutes' this appeal as a matter of right. Sometime shortly after 4 a.m. on May 30, 1965, a bar owner in Grand Rapids was cleaning, up after the bar had been closed when his attention was called by a barmaid who was still on the premises to the fact that someone was trying to break into the bar. The owner went to the door, saw a man whom he recognized,- and gave chase, but could not catch the fleeing man. Subsequently, the defendant was identified by the owner, arrested, tried, and convicted. The first of two questions raised on appeal concerns the failure of the prosecution to indorse the name of the barmaid upon the information as required by statute. OLS 1961, § 767.40 (Stat Ann 1965 Cum Supp § 28.980). 3 Certain additional record facts must be noted in connection with this question. The only, person who identified the defendant at the trial as the person who attempted to break into the bar was the owner. All the record evidence concerning the barmaid is as follows: At the preliminary examination, the owner testified that a barmaid (not further identified) called the owner’s attention to the fact that someone was outside the front door of the closed bar with a crowbar and that the barmaid called the police. Upon cross- *242 examination by defendant’s trial counsel, the owner was asked whether his attention was called to the .fact that someone was attempting to break in through the front door and the owner answered that the barmaid called it to his attention. Further on in the same cross-examination, the owner testified that he gave chase and told the barmaid to call the police. Nothing in the record indicates that the barmaid was further identified from the time of the examination until trial. At trial, on direct examination, the owner repeated that it was his barmaid.who first called to his attention that someone was trying to break in. Again, and still upon direct examination, the owner testified that after going to the door and seeing a man with a crowbár, he told his barmaid, “Pat”, to call the police. This is the first and only mention of the name of the barmaid. On cross-examination by defendant’s trial counsel, further oblique references were made to the barmaid. There was no other testimonial reference to the barmaid in either the preliminary examination or the trial. One last series of record events must be noted to complete recitation of every reference made regarding the barmaid and to place the facts in ruling perspective. The people rested, having called all the witnesses who had in fact been indorsed upon the information, and defendant’s trial counsel asked for an adjournment so he could have two witnesses present for the defense presentation. The trial court then recessed until 9 a.m. the next day. Tn defense counsel’s argument to the jury and in the trial judge’s charge, both defense counsel and the trial judge referred to the fact that the owner’s attention was called to the alleged attempted break-in by another .person. Defendant’s trial counsel at no time moved to have the barmaid indorsed upon the information *243 as a witness nor did he ever demand that she be produced as a witness. Tbe first and only time any questions concerning tbe barmaid as a witness were raised was on this appeal. Inasmuch as tbe record does show or imply tbat tbe barmaid did see someone at tbe door attempting to enter and tbe identification of tbe appellant was an issue, tbe barmaid was clearly such a witness as tbe prosecuting attorney was statutorily obligated to indorse upon tbe information and to produce at trial. People v. Castelli (1963), 370 Mich 147; People v. Blazenzitz (1920), 212 Mich 675; People v. Tann (1949), 326 Mich 361. As said in Tann on page 367: “Tbe purpose of tbe rule is to insure tbe whole of the res gestae and to protect the accused against tbe suppression of testimony favorable to him. “It is tbe duty of tbe prosecution to show tbe whole transaction as it was, regardless of whether it tends to establish guilt or innocence.” Tbe prosecutor having failed to comply with tbe statutory requirement, can a defendant and bis counsel who were both made aware of tbe existence of such a witness as early as tbe preliminary examination, who beard at trial further verification of tbe presence of tbe witness, and who, nevertheless, with tbat knowledge, failed to move to indorse such a witness or to demand tbe production of tbe witness at trial, now complain? Tbe answer is no. People v. Blazenzitz, supra (where it was noted tbat neither defendant, nor bis counsel, knew until after tbe trial of tbe existence of tbe witnesses); People v. Bartlett (1945), 312 Mich 648. In Castelli, tbe first tbat tbe defendant or bis counsel beard of the witness was at the trial and then a timely motion was made and denied by tbe trial court. People v. Prescott (1934), 268 Mich 606; People *244 v. Dimitroff (1948), 321 Mich. 205; People v. Turner (1952), 333 Mich 547. These eases all hold that it is too late to complain about the failure of the prosecutor to indorse a witness when the complaint is first made on appeal or on motion for a new trial in a situation where the witness was known at the trial and no motion to indorse or produce was made. For all the record shows, defendant’s trial counsel may have been overjoyed that the witness was neither indorsed nor presented and. deliberately failed to raise the question. This is all the more true here where there is no claim that the prosecutor sought intentionally to conceal the existence of the witness and where the record shows as early as the preliminary examination that the existence and the information within the knowledge of the witness were made known to both the appellant and his trial counsel. Defendant contends that receipt of testimony as to his arrest in the late afternoon after the attempted offense when he was in his hotel room and refused the officers entrance was prejudicial error. It must be noted that no incriminating statements were made nor was any evidence seized at the time of the arrest, only that the defendant refused the officers admission, talked to them through the space allowed by the extended chain-latch and was, one half hour later, taken into custody when the chain-latch was cut allowing the officers to enter. At the door at the original visit was the bar owner who testified that he identified the defendant when the defendant answered the door. Appellant’s sole claim was that the testimony about the arrest was irrelevant and prejudicial, but does not support such claim by a citation of authority. He argues that prejudice resulted in the jury being informed-that he refused the officers admission to his room on the naked request for admission. *245 Several points must be noted: (1) The testimony was admitted without objection by appellant’s trial counsel; (2) no damaging admissions were made nor evidence seized, claimed to be seized, or offered; (3) the owner’s identification of the appellant when he saw the defendant through the space allotted by the extended chain-latch was admissible. We can postulate that competent defense counsel could well have desired such testimony before the jury because of the total lack of incrimination thereby. At any rate, no objection having been made, we need not theorize as to the reason therefor. It is sufficient that it was admitted without objection or complaint. On appellate argument, defendant’s counsel asserted defendant’s claim that his appointed trial counsel was not competent. A careful examination of the entire record fails to support such an assertion. Affirmed. McGregor, P. J., and Burns, J., concurred. Footnotes [1] OL 1948, § 750.92 (Stat Ann 1962 Eev § 28.287). [2] CL 1948, § 750.110 (Stat Ann 1962 Eev § 28.305) as amended by PA 1964, No 133 (Stat Ann 1965 Cum Supp § 28.305). [3] “All informations shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by .the examining magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names of additional witnesses may be indorsed before or during the trial by leave of the eourt and upon sueh conditions as the court shall determine.”