Appeal from Recorder's Court of Detroit, Susan D. Borman, J.
Leave to appeal applied for.
J. H. Gillis, P. J., and Quinn and R. E. Noble,* JJ. Quinn, J., concurred. R. E. Noble, J. (dissenting).
1. Witnesses -- -- Res Gestae Witnesses -- Cumulative Testimony -- Outcome of Trial.
A trial court's determination at an evidentiary hearing that the testimony of a res gestae witness, who was not called at trial because the prosecutor did not exercise due diligence, would not have affected the outcome of the trial because it merely corroborated in all pertinent parts the basic testimony of other prosecution witnesses who did appear, should be upheld on appeal where it is clear that the testimony would have been merely cumulative and would not have aided the defendant.
Dissent by R. E. Noble, J.
2. Witnesses -- -- Res Gestae Witnesses -- Endorsement -- Cumulative Testimony -- Same Events -- Further Assistance -- Jury.
An exception is made to the rule that all res gestae witnesses must be indorsed on the information and produced at trial where a witness's testimony would be merely cumulative, but the fact that a witness will give testimony about the same events that another witness has testified about does not make the second witness's testimony cumulative; only when testimony can offer no further assistance to a jury in determining what transpired can it be considered cumulative.
3. Witnesses -- -- Res Gestae Witnesses -- Evidentiary Hearings -- Courts -- Recognized Exceptions -- Value of Testimony.
Discrepancies in the testimony of two prosecution witnesses concerning the details of an alleged robbery which might have led the jury to accept the defendant's claim that he was framed should have been presented to the jury and subjected to cross-examination; when the testimony of a res gestae witness who was not produced at trial is taken at an evidentiary hearing, the court should decide only whether a recognized exception to the res gestae rule excused the prosecutor's nonproduction of the witness at trial, not the value of the testimony given.
The opinion of the court was delivered by: Gillis
Dwight Saunders was convicted of larceny from a person. Defendant moved for a new trial. Motion denied. Defendant appealed. Remanded for rehearing on the motion for new trial. Motion denied on rehearing. Defendant appeals.
A jury found defendant, charged with armed robbery, guilty of larceny from a person, MCLA 750.357; MSA 28.589. He received a sentence of 3-1/2 to 10 years imprisonment. On defendant's motion, this Court ordered a remand for a rehearing, in accordance with People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), to determine whether a new trial should be granted for failure of the prosecution to ...