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02/26/76 PEOPLE v. CAIN

February 26, 1976

PEOPLE
v.
CAIN



Appeal from Saginaw, Joseph R. McDonald, J.

Leave to appeal denied, 397 Mich .

D. E. Holbrook, P. J., and R. M. Maher and D. F. Walsh, JJ.

SYLLABUS BY THE COURT

1. -- Instructions to Jury -- Manifest InJustice -- Preserving Question -- Appeal and Error.

Reversal of a defendant's conviction because of an erroneous jury instruction is not warranted absent a showing of manifest inJustice where no objection to the instruction was made at trial.

2. -- Defenses -- Alibi -- Instructions to Jury -- Burden of Proof -- Reasonable Doubt.

An instruction to the jury on the defense of alibi which included a statement that the defense was a proper one "if proven" did not place the burden of proving the alibi on the defendant where the instruction also clearly indicated that if any reasonable doubt existed as to the presence of the defendant at the scene of the crime he should be acquitted.

3. -- Identification -- Photographic Identification -- Right to Counsel -- Presence of Counsel -- Custody.

The right to counsel for purposes of photo identification attaches only when the suspect is in custody; therefore, a trial court properly refused to suppress identification evidence obtained from a photographic identification of the defendant, at which no counsel for defendant was present, which was made by the victims of the crime prior to the arrest of the defendant.

4. -- Trial -- Warnings to Counsel -- Judge's Discretion.

A cautionary statement by a trial court warning counsel to keep away from objectionable arguments so that there would be no unnecessary interruptions of the trial does not constitute an abuse of discretion where the language used by the court is not unduly restrictive and contains no prohibition on counsel making objections.

The opinion of the court was delivered by: Holbrook

Joseph K. Cain was convicted of armed robbery. Defendant appeals.

Defendant and two others were charged with an armed robbery which occurred on December 5, 1972. MCLA 750.529; MSA 28.797. On July 12, 1973 a hearing was held on defendant's motion to suppress evidence which was discovered in a search of co-defendant Jackson's apartment. The court ruled that the search was valid because Jackson had given his consent, and that in any case, only Jackson had standing to attack the validity of the search. All three ...


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