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01/08/76 PEOPLE v. KELLY

January 8, 1976

PEOPLE
v.
KELLY



Appeal from Recorder's Court of Detroit, Joseph A. Gillis.

Bashara, P. J., and D. F. Walsh and W. S. White,* JJ.

SYLLABUS BY THE COURT

1. -- Defendant as Witness -- Impeachment -- Prior Convictions -- Discretion of Court -- Record.

A trial court has discretion to permit a defendant who has elected to testify to be cross-examined for impeachment purposes concerning his prior felony convictions, but the court must not act arbitrarily, must consider the prior convictions as they relate to the pending charge and must positively indicate and identify its exercise of discretion on the record.

2. -- Defendant as Witness -- Impeachment -- Prior Convictions -- Credibility of Witnesses.

A trial Judge properly allowed the impeachment of a defendant's testimony by the introduction of his prior felony convictions where the case had narrowed to the credibility of the defendant and an opposing witness, and there was, therefore, a compelling reason for exploring all avenues which would shed light on the credibility of the two witnesses.

3. Witnesses -- -- Res Gestae Witnesses -- Failure to Produce -- Motion for New Trial -- Procedure.

A defendant desiring reversal or a new trial because of a failure of the prosecution to produce an unindorsed or indorsed res gestae witness shall, before filing his brief on appeal, move the trial court for a new trial.

4. Witnesses -- Scope of Cross-Examination -- Impeachment -- Discretion of Court -- Prior Arrests -- No Conviction.

The extent of allowable cross-examination on collateral matters for the purpose of impeaching a witness's credibility rests with the discretion of the trial Judge, but no examination or cross-examination of any witness may be made regarding prior arrests or charges which did not result in a conviction.

The opinion of the court was delivered by: Per Curiam

Dennis Kelly, Jr., was convicted of larceny under $100. Defendant appeals.

Defendant was convicted by a jury of larceny under $100, MCLA 750.356; MSA 28.588, and appeals.

On July 15, 1974, the defendant entered the Medicine Chest Drug Store. The defendant asked to see the pharmacist and was directed to the rear of the store. He was subsequently seen by a security ...


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