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05/17/76 PEOPLE v. EMBRY

May 17, 1976

PEOPLE
v.
EMBRY



Appeal from Calhoun, Ronald M. Ryan, J.

J. H. Gillis, P. J., and N. J. Kaufman and E. A. Quinnell,* JJ.

SYLLABUS BY THE COURT

1. -- Appeal and Error -- Criminal Records -- Redirect Examination -- Objections.

It is not reversible error to allow the prosecutor on redirect examination of a prosecution witness to elicit testimony concerning the defendant's criminal record, although defendant's objection to the same testimony had been upheld on direct examination and the testimony had been ordered stricken, where the challenged testimony had been brought out on cross-examination of the same witness conducted by the defense counsel.

2. -- Prosecutors -- Witnesses -- Credibility.

The prosecutor may argue the credence of witnesses to the jury where the testimony is conflicting and the result depends on which of two witnesses is to be believed; however, a prosecutor may not place the weight of his office behind the prosecution or vouch for the credibility of the prosecution's witnesses or evidence.

3. -- Instructions to Jury -- Lesser Included Offenses -- Order of Considering Verdicts.

It is not the law that a jury must consider possible verdicts in any particular order; although an instruction to this effect is undesirable and expressly discouraged it is not reversibly erroneous unless the jury is instructed that it must first decide on the greater of two or more offenses and reach a unanimous agreement on it before it can consider a lesser offense.

The opinion of the court was delivered by: Kaufman

Howard L. Embry was convicted of breaking and entering with intent to commit larceny. Defendant appeals.

Defendant was convicted by a Calhoun County Circuit Court jury of breaking and entering with intent to commit larceny, MCLA 750.110; MSA 28.305. He was subsequently sentenced to a term of from 4 to 15 years in prison and now appeals as of right.

At trial, James Stone, the complainant, testified that, at about 2:30 or 3 a.m. on the morning of October 28, 1973, he was sleeping in the living room of his house and was awakened by noise from his bedroom. He saw defendant, whom Stone had known since defendant was a child, rifling a set of drawers. When Stone tried to stop defendant, the two scuffled and defendant ran out of the house. The complainant testified that, although he had locked the rear door of his house when he retired, after the crime he found that the latch on that door and the one on his bedroom door had been torn open. Soon after defendant ran out, Stone called the police and reported the loss of a check and some half-dollars.

Defendant took the stand in his own behalf. After admitting two prior criminal convictions, he claimed that earlier in the evening of the alleged robbery he had been invited to the Stone residence by a Sandra Taylor who also lived there. According to defendant, when he arrived at the house he found the door open, knocked and walked in where he observed Mr. Stone lying on the couch. After trying to awaken Mr. Stone, defendant was "turning around, looking around and hollering for somebody else" when Mr. Stone arose, scuffled with defendant, and forced defendant to flee the premises.

On appeal, defendant propounds three claims of error. First, defendant contends that the trial court committed reversible error by allowing, over defense objection, the investigating officer to make mention of defendant's mug shots. Before defendant had taken the stand and admitted prior convictions, the prosecutor called Officer McGaha, the investigating officer. McGaha testified that, while he was responding to the call from Mr. Stone, he saw defendant standing at an ...


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