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01/06/76 PEOPLE v. GILLMAN

January 6, 1976

PEOPLE
v.
GILLMAN



Appeal from Lenawee, Rex B. Martin, J.

R. B. Burns, P. J., and D. E. Holbrook and D. F. Walsh, JJ.

SYLLABUS BY THE COURT

1. Witnesses -- -- Alibi -- Rebuttal -- Materiality of Testimony.

Alibi testimony is testimony which is offered to prove that a defendant was somewhere other than at the scene of a crime when the crime occurred; therefore, a witness who does not give any testimony as to a defendant's whereabouts at any time material to the theories of proof in a case is not an alibi witness.

2. Witnesses -- -- Alibi -- Impeachment -- Contradictory Testimony -- Rebuttal.

A witness who is called solely to impeach the testimony of an alibi witness and who does not offer testimony contradicting the actual alibi testimony given is not a rebuttal witness to the alibi and, therefore, is not subject to the four-day notice to opposing counsel provision for alibi rebuttal witnesses.

3. Larceny -- Breaking and Entering -- Elements -- Entry -- Part of Body.

It is sufficient if any part of a defendant's body is introduced within the premises where an entering is a necessary element of a criminal offense.

4. Larceny -- Breaking and Entering -- Absolute Barriers -- Wooden Bars -- Negating Elements.

Wooden bars which were spaced far enough apart to allow a defendant to stick his arm through the window they covered and which were purposely designed so that they could be easily removed did not constitute an absolute barrier to entry which would negate the element of entry in a charge of breaking and entering.

The opinion of the court was delivered by: Holbrook

Archie Gillman was convicted of breaking and entering. Defendant appeals.

Defendant was convicted by a jury of breaking and entering, contrary to MCLA 750.110; MSA 28.305. He was sentenced to 3-1/2 to 10 years in prison and appeals as of right.

At trial, the break-in was alleged to have occurred at a certain sporting goods store in Adrian Township, Lenawee County. The first witness called by the prosecution was the manager of the store, Mr. Johnson. He testified that he lived next to the store. He further testified that on April 1, 1974, he was awakened at "right around" 4:15 a.m. by the burglar alarm at the store. Mr. Johnson rushed to investigate. At the store, he noticed that a plastic covering which had been over one of the windows had been torn off. He saw that the window had been shattered, and that some bottles and a can of wood stain, which had been inside the window, were now laying on the ground outside of the building. Mr. Johnson was asked how the burglar alarm device worked. He explained that wooden bars covered the window openings, and that there were wires attached to the bars. When one of the bars was moved, a circuit was broken and the alarm was set off. These bars were located approximately three inches inside the window, four bars to a window. Mr. Johnson testified that the ...


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