People v. Tamosaitis

Sharpe, J. Defendant reviews his- conviction by writ of error on a charge of illegal possession of intoxicating liquor. A motion was made to suppress the evidence obtained under the search warrant under which defendant’s premises were searched. No evidence was submitted in support of the motion. It was based, as stated therein, upon “the testimony produced at the preliminary examination. ’ ’ This testimony does *260 not appear in the record. We cannot say that there was error in the denial of the motion. After the defense had rested, the people called Robert Tetro as a witness in rebuttal. Objection was made because his name was not indorsed on the information. He was permitted to testify, after which a motion to strike out his testimony for the same reason was made and denied. Error is assigned on such action. Under section 15761, 3 Comp. Laws 1915, the prosecuting attorney was required to indorse on the information “the names of the witnesses known to him at the time of filing the same.” It also provided that “At such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him.” Section 40 of chapter 7 of Act No. 175, Pub. Acts 1927 (the code of criminal procedure), requires the indorsement of the names of witnesses at the time of 'filing, as did the former law. It, however, provides: “Names of other witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.” This code was drafted by a commission appointed by the governor under Act No. 15, Pub. Acts 1926 (extra session), to prepare “a complete codification of the laws pertaining to crime and criminal court procedure.” Many changes were made in the procedure, the purpose of which was to extend the power of the trial court and to eliminate requirements which in no way prejudiced the rights of the accused. When introduced in the legislature, the last clause of section 40 read: “Names of other witnesses, not intentionally omitted from the information at the time of filing, *261 may be indorsed before or during tbe trial by leave of tbe court and upon such conditions as tbe court shall determine.” 1 House Journal 1927, 533. The change made by the legislature clearly indicates an intention to vest an even wider discretion in the trial court than that proposed by the commission. This discretion is, of course, reviewable. The right of the defendant to know the witnesses to be called against him is a substantial one, and the statutory requirement should be faithfully observed by the prosecuting attorney. In the case before us it appears that the witness called in rebuttal was known to the prosecutor. He had made the complaint on which the search warrant issued, but was not present when the search was made. No duty was therefore imposed on the prosecutor to indorse his name thereon. When called as a witness, it was doubtless apparent to the' court that the prosecutor did not know that Tetro would be needed as a witness until after the defendant had himself testified. There was no abuse of discretion in permitting the witness to be sworn. When the objection was made and overruled, the trial court should have ordered the name to be indorsed, as provided for in the statute. But his omission to do so cannot be said to have resulted in any prejudice or injury to the defendant. The sentence of the court, as it appears in the printed record and in the bill of exceptions as settled by the trial court, was that the defendant be imprisoned “for a period of not to exceed two years and not less than one year and twenty-two months from and including this day. ’ ’ The clerk of the superior court has furnished us at our request a certified copy of the original record of sentence. From this it appears that the minimum sentence was fixed at *262 “one year and ten months.” No remand is therefore necessary. We have examined the errors in the charge which are complained of. They do not merit discussion. The judgment is affirmed. Fead, C. J., and North, Fellows, Wiest, Clark, and McDonald, JJ., concurred. Potter, J., did not sit.