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12/08/75 PEOPLE v. MCGEE

December 8, 1975

PEOPLE
v.
MCGEE



Appeal from Recorder's Court of Detroit, Samuel C. Gardner, J.

V. J. Brennan, P. J., and Bashara and R. M. Maher, JJ.

SYLLABUS BY THE COURT

1. -- Jury -- Prosecutor's Remarks -- Facts Not In Evidence.

It is improper for a prosecuting attorney to make a statement to the jury of a fact which has not been introduced into evidence.

2. -- Appeal and Error -- Prosecutor's Remarks -- Miscarriage of Justice -- Statutes.

A conviction will not be reversed unless a miscarriage of Justice affirmatively appears from the record taken as a whole where a defendant failed to object to an improper statement of a prosecutor (MCLA 769.26; MSA 28.1096).

3. -- Appeal and Error -- Prosecutor's Remarks -- Failure to Object -- Curative Instructions.

Failure to object to a prosecutor's remarks is fatal to a claim of error on appeal where a simple curative instruction could easily have rectified whatever prejudicial effect the remarks might have had.

4. -- Courts -- Instructions to Jury -- Error -- Evidence -- Mutual Fight.

A court's refusal to instruct on the doctrine of mutual fight was not error where there was no evidence introduced to support a theory of mutual fight.

5. -- Courts -- Lesser Included Offenses -- Request to Charge -- Refusal -- Error -- Evidence.

A court's refusal of a defendant's request to charge on the lesser included offenses of aggravated assault and assault and battery in a trial for assault with intent to commit murder was not error where there was no evidence upon which the jury could have based a conviction of the lesser offenses.

The opinion of the court was delivered by: Brennan

Barbara McGee was convicted of assault with intent to commit murder. Defendant appeals.

On April 2, 1974, Barbara McGee was convicted by a jury of assault with intent to commit murder in violation of MCLA 750.83; MSA 28.278. Defendant was subsequently sentenced to serve 3 to 15 years in the Detroit House of Correction and now appeals as of right.

The events in question took place on September 9, 1973, shortly after midnight. Emma Lamar, the complainant, was picked up by one Otis Burgess at her home and driven to the residence of defendant, Barbara McGee. Complainant testified that the purpose of the visit was to pick up a ring which belonged to her. Mrs. Lamar had previously pawned the ring and, needing more money, gave the pawn ticket to Mr. Burgess as security for a further loan. Mr. Burgess redeemed the ticket, apparently in contravention of the understanding, and complainant therefore spoke to Mrs. Burgess on the phone in an effort to enlist her aid in regaining possession of the ring. During one of these conversations complainant apparently divulged information regarding a relationship between Mr. Burgess and another woman, defendant Barbara McGee.

When complainant and Mr. Burgess arrived at defendant's home, defendant emerged and entered the front seat of the Burgess automobile. Complainant was thus seated between Burgess and defendant in the front seat. Burgess confronted complainant with the fact that she had told his wife about his relationship with defendant. The following testimony was then elicited from complainant by the prosecutor:

"Q. Well, when he stated that you had told his wife about him and ...


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