Appeal from Oakland, William P. Hampton, J.
Quinn, P. J., and R. B. Burns and D. E. Holbrook, Jr., JJ.
1. Witnesses -- -- Res Gestae Witnesses -- Endorsement of Witnesses -- Production of Witnesses.
All res gestae witnesses are to be indorsed on the information and produced at trial by the prosecution, as a general rule (MCLA 767.40; MSA 28.980).
2. Witnesses -- -- Res Gestae Witnesses -- Production of Witnesses -- Jury Instructions -- Presumptions.
A defendant is entitled to an instruction that it should be presumed that any missing res gestae witnesses would have testified favorably to the defendant where the prosecution has failed to produce all of the res gestae witnesses; however, it is necessary to give this requested instruction only when it would be reversible error not to produce the witness.
3. Witnesses -- -- Res Gestae Witnesses -- Endorsement of Witnesses -- Production of Witnesses -- Exceptions.
The failure of a defendant to move for the endorsement and production of res gestae witnesses known to the defendant is an exception to the general rule which requires the prosecution to indorse on the information and produce at trial all res gestae witnesses.
4. Witnesses -- -- Res Gestae Witnesses -- Motion for New Trial.
The issue of nonproduction of res gestae witnesses must be raised in a motion for a new trial.
5. Witnesses -- -- Res Gestae Witnesses -- Failure to Indorse and Produce -- Jury Instructions -- Abuse of Discretion.
A trial court did not abuse its discretion in denying a defendant's request for an instruction on the failure of the prosecution to indorse and produce certain prisoners as res gestae witnesses where the defendant made no motion to compel the endorsement of the prisoners, to compel discovery of the prisoners' names, or for a new trial.
The opinion of the court was delivered by: Holbrook
Gregory E. Bennett was convicted of simple assault. ...