People v. Eichholzer

Per Curiam. Defendants were convicted by a jury of arson, CL 1948, § 750.73 (Stat Ann 1962 Rev § 28.268), and were sentenced. They prosecute this appeal as a matter of right. The first of two questions raised on appeal concerns,, the failure of the prosecution to endorse the names of two alleged eyewitnesses to the crime as required by statute. CLS 1961, § 767.40 (Stat Ann 1965 Cum Supp § 28.980). Certain facts must be noted in connection with this question. The only person who identified the defendants at the trial as the persons who committed the arson was a prosecution witness, Gerald Walter. He also testified that he gave the names of two persons he recognized in the crowd watching the fire to an investigating detective. The detective did not remember being given such information. Without some showing that the alleged res gestae witnesses were more than part of the crowd observ *145 ing the fire, this record does not establish that such witnesses were res gestae. People v. Hoffman (1908), 154 Mich 145. The second issue raised by defendants is that there was insufficient evidence to justify a finding of guilt beyond a reasonable doubt. The record discloses that witness Walter was present at the store when the arson took place; that the defendants were clearly visible igniting the fire; and that this witness was able to identify them. The jury, if it believed the testimony of witness Walter, had sufficient grounds to convict the defendants as charged. It is not the function of an appellate court to be a reviewing jury. Our proper role is to examine the record on appeal to determine whether or not a finding of fact by the jury was supported by credible evidence. People v. Arither Thomas (1967), 7 Mich App 103. Affirmed.