text:
    PEOPLE v REYNOLDS
    Docket No. 78-1042.
    Submitted September 4, 1979, at Detroit.
    Decided November 6, 1979.
    Anthony Reynolds was convicted in Recorder’s Court of Detroit of unarmed robbery, Joseph A. Gillis, J. The defendant appeals, alleging that 1) the trial court improperly denied the defendant’s motion for an evidentiary hearing on the constitutionality of pretrial identification procedures used, 2) the prosecution improperly failed either to endorse or produce a res gestae witness, and 3) the trial court erred in allowing the prosecution to strike from the information the name of an endorsed witness. Held:

    1. A defendant is entitled to an evidentiary hearing where the admissibility of evidence is challenged on constitutional grounds. The trial court erred in denying the defendant’s motion. The matter is remanded to the trial court for an evidentiary hearing to determine whether there was an impermissibly suggestive photographic showup and whether the disparate age, weight and height characteristics of the other participants in a lineup denied the defendant due process of law.
    2. The prosecution did not endorse or produce a res gestae witness who had issued a warning to the complainant just before the robbery. On remand the trial court shall require the prosecution to produce the witness at a hearing to determine whether her testimony would have been cumulative. If the witness cannot be located, the trial court must decide whether the defendant was prejudiced by the nonproduction.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 222, 223.
    29 Am Jur 2d, Evidence § 371.
    Admissibility of evidence of lineup identification as affected by allegedly suggestive lineup procedures. 39 ALR3d 487.
    [2] 29 Am Jur 2d, Evidence § 371.
    5 Am Jur 2d, Appeal and Error §§ 778, 779, 798.
    [3] [No Reference]
    [4] 81 Am Jur 2d, Witnesses § 1.
    [5] 81 Am Jur 2d, Witnesses §§ 75, 76.
    [6, 7] 81 Am Jur 2d, Witnesses § 2.

      3. There is no showing that the prosecutor exercised due diligence in attempting to produce the investigating officer, who was an endorsed witness. On remand, the trial court shall determine whether the defendant was prejudiced by the non-production of the officer.
    Remanded for further proceedings.
    1. Criminal Law — Lineup — Constitutional Law — Evidentiary Hearing.
    A defendant is entitled to an evidentiary hearing where the admissibility of evidence is challenged on constitutional grounds; the right to such a hearing extends to a defendant’s claim of a constitutionally improper lineup.
    2. Criminal Law — Pretrial Identification — In-Court Identification — Independent Basis — Appeal and Error.
    An improper pretrial identification procedure may constitute harmless error if it is followed by an in-court identification which has an independent basis.
    3. Criminal Law — Witnesses — Identification — Improper Procedure — Independent Basis.
    The factors to be considered in determining whether there exists an independent basis for an in-court identification where there has been an improper pretrial identification are: (1) the identifying witness’s prior relationship with or knowledge of the defendant, (2) the witness’s opportunity to observe the offense, this includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act, (3) length of time between the offense and the disputed identification, (4) accuracy or discrepancies in the pre-lineup or showup description and the defendant’s actual description, (5) any previous proper identification or failure to identify the defendant, and (6) any identification prior to lineup or showup of another person as defendant.
    4. Witnesses — Res Gestae Witnesses — Definition.
    A res gestate witness is a witness to some event in the continuum of a criminal transaction whose testimony will aid in developing a full disclosure of the facts surrounding the commission of the alleged offense.

      5. Witnesses — Res Gestae Witnesses.
    A person need not be at the scene of a crime to be considered a res gestae witness.
    6. Witnesses — Res Gestae Witnesses — Endorsement — Statutes.
    The prosecution is statutorily required to endorse and produce res gestae witnesses (MCL 767.40; MSA 28.980).
    7. Witnesses — Criminal Law — Endorsed Witnesses — Production of Witnesses — Due Diligence.
    A criminal defendant is entitled to rely on the prosecution’s duty to produce an endorsed witness, even if the witness is not a res gestae witness; the prosecution’s failure to fulfill this duty is excused on a showing of due diligence.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Frank J. Bernacki, Assistant Prosecuting Attorney, for the people.

      Gerald S. Surowiec, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

The defendant was convicted by a jury of unarmed robbery, MCL 750.530; MSA 28.798. He was sentenced to a term of 4-15 years and appeals as of right.

The complainant, Terrance Hawkins, testified that he was standing near Kettering High School after a football game when a friend, Geraldine Hughes, warned him that she had overheard some people planning to "jump” him. He walked to a nearby market so he could telephone his brother. A group of 19-20 people followed him to the store. About seven persons came into the market. While the defendant approached him from the front, someone grabbed him from the back and took a bag containing clothes and money from his possession. The complainant did not report this incident until nine days later because he thought he could recover the property himself. He identified the defendant at a lineup which was held 21 days after the alleged robbery. The complainant stated that he had seen the defendant at school and knew him by sight. Ms. Hughes was not endorsed on the information and did not testify at the trial.

The defendant’s first assignment of error involves the trial court’s denial of a motion for an evidentiary hearing challenging the constitutionality of the lineup procedure. The defendant alleges that the lineup was tainted because the complainant was previously shown a photograph of the defendant only. The defendant also alleges that the lineup was unduly suggestive because of age and height differences between the defendant and the other participants.

In People v Wiejecha, 14 Mich App 486, 488; 165 NW2d 642 (1968), we held that a defendant is entitled to an evidentiary hearing where the admissibility of evidence is challenged on constitutional grounds. In People v Piscunere, 26 Mich App 52; 181 NW2d 782 (1970), we extended this rule to a defendant’s claim of a constitutionally improper lineup. The trial court erred in denying the defendant’s motion.

An improper pretrial identification procedure may constitute harmless error if followed by an in-court identification which has an independent basis. People v Hill, 88 Mich App 50, 64; 276 NW2d 512 (1979), People v Richmond, 84 Mich App 178, 182; 269 NW2d 521 (1978). The Court in People v Kachar, 400 Mich 78, 95; 252 NW2d 807 (1977), summarized the factors to be considered in determining whether there exists an independent basis for an in-court identification:

"1. Prior relationship with or knowledge of the defendant.
"2. The opportunity to observe the offense. This includes such factors as length of time of the observation, lighting, noise or other factor affecting sensory perception and proximity to the alleged criminal act.
"3. Length of time between the offense and the disputed identification. See [People v] Anderson, 389 Mich [155,] 214 [205 NW2d 461 (1973)], for analysis of the curve of forgetting.
"4. Accuracy or discrepancies in the pre-lineup or showup description and defendant’s actual description.
"5. Any previous proper identification or failure to identify the defendant.
"6. Any identification prior to lineup or showup of another person as defendant.

To these the Court added the considerations of state of mind of the witness and any idiosyncracies of defendant.

The record of the case at bar does not indicate whether an independent basis existed according to the criteria of Kachar, supra. The complainant testified that he had attended four different schools within the same year. He had seen the defendant in the halls but had never talked to him and did not know his name. The incident in question involved an assault of short duration by a large group of persons. The defendant did not report the incident for nine days. On the day he reported the alleged assault, he had come to the school office to report a stolen leather jacket. Apparently, he was shown an identification card with the defendant’s picture on it. There is no indication that any other pictures were shown to him, but the record on this matter is at best sparse. He never gave the police a description of the robbers at the market.

This case is therefore remanded to the trial court for an evidentiary hearing to determine whether there was an impermissibly suggestive photographic showup, and whether the disparate age, weight and height characteristics of the other lineup participants denied the defendant due process of law, People v Lee, 391 Mich 618, 625-626; 218 NW2d 655 (1974). See also, People v Wilson, 20 Mich App 410; 174 NW2d 79 (1969). The trial court should also determine whether the complainant’s in-court identification of the defendant had an independent basis under the test formulated in People v Kachar, supra, particularly in light of People v Krist, 93 Mich App 425; 287 NW2d 251 (1979). If the photographic showup or lineup was constitutionally defective and there was no independent basis for the in-court identification, the defendant is entitled to a new trial.

The defendant’s second allegation of error involves the prosecution’s failure either to endorse or produce Geraldine Hughes, a res gestae witness. A res gestae witness has been defined as an eyewitness to some event in the continuum of a criminal transaction whose testimony will aid in developing full disclosure of the facts surrounding the commission of the alleged offense, People v Hadley, 67 Mich App 688, 690; 242 NW2d 32 (1976). Ms. Hughes warned the complainant moments before the alleged assault that a certain group was planning to "jump” him. A person need not be at the scene of the crime to be considered a res gestae witness. People v Jelks, 33 Mich App 425; 190 NW2d 291 (1971). Ms. Hughes was a res gestae witness.

The prosecutor is statutorily required to endorse and produce res gestae witnesses, MCL 767.40; MSA 28.980. None of the exceptions enumerated in People v Bennett, 46 Mich App 598, 619-620; 208 NW2d 624 (1973), rev’d on other grounds 393 Mich 445; 224 NW2d 840 (1975), applies here. The defendant properly preserved the issue for appellate review by his motion for a new trial, as required by People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).

Therefore, on remand, the trial court shall require the prosecutor to produce Ms. Hughes at a hearing within 45 days of the release of this opinion. Ms. Hughes shall be examined to determine whether her testimony would have been cumulative. If Ms. Hughes cannot be located, the trial court must decide whether the defendant was prejudiced by her nonproduction as described in People v Willie Pearson, 404 Mich 698; 273 NW2d 856 (1979). In any case, the prosecutor must "bear the consequences” and the defendant shall be granted a new trial with an appropriate jury instruction concerning Ms. Hughes’ testimony. See People v Koehler, 54 Mich App 624, 640; 221 NW2d 398 (1974).

The final issue in this appeal involves the trial court’s decision to allow the prosecutor to strike an endorsed witness, Officer Ruth Dilworth, from the information. Officer Dilworth was not a res gestae witness, but was the investigating officer in charge of the defendant’s case. A defendant is entitled to rely on the prosecutor’s duty to produce an endorsed witness, even if he was not a res gestae witness. The prosecutor is excused on a showing of due diligence in attempting to produce the endorsed witness. People v Kern, 6 Mich App 406; 149 NW2d 216 (1967). There was no showing of such due diligence in the case at bar. On remand, the trial court shall decide whether the defendant was prejudiced by the nonproduction of Officer Dilworth, as required in Pearson, supra.

Remanded for further proceedings consistent with this opinion. We retain jurisdiction.

       This case is distinguished from cases like People v Gillam, 93 Mich App 548; — NW2d — (1979), where only the defendant is aware of the identity of the res gestae witness. In such a case, the proseuction may be excused from endorsement and production by People v Buero, 59 Mich App 670; 229 NW2d 880 (1975). Here, the res gestae witness was known to and identified by the complainant, the prosecution’s own witness.


source: Caselaw Access Project

author: Per Curiam. T. M. Burns, J.

license: Public Domain

text:
    PEOPLE v ATKINS
    Docket No. 78-1063.
    Submitted September 4, 1979, at Grand Rapids.
    Decided November 6, 1979.
    Gordon Atkins was convicted, on his plea of guilty, of armed robbery and of possession of a firearm in the commission of a felony, Kent Circuit Court, John T. Letts, J. Defendant appeals, challenging the constitutionality of the felony-firearm statute and alleging that his conviction of the felony-firearm violation as an aider and abettor was improper. Held:

    1. The felony-firearm statute does not violate the constitutional guarantee against double jeopardy.
    2. A defendant may be convicted as an aider and abettor of a possessory crime such as felony-firearm where it can be shown that the defendant knowingly acted or encouraged, with the intent to aid, the possessor to obtain or retain possession of the firearm during the commission of a felony.
    3. The defendant, in his guilty plea, provided a sufficient factual basis to establish that he knowingly acted and encouraged his companions to obtain possession of a firearm and that he assisted and encouraged them to use the firearm during the commission of a felony.
    Affirmed.
    T. M. Burns, J., dissented. He would hold that the felony-firearm statute requires that a defendant personally carry or possess a firearm in order to be found guilty of a violation of the statute and that the defendant should not have been convicted of violating the felony-firearm statute as an aider and abettor.
    Opinion op the Court
    1. Criminal Law — Felony-Firearm — Aiding and Abetting — Statutes.
    The felony-firearm statute does not require proof of a defendant’s personal possession of a firearm used in the commission of a felony; however, in order for an accused to be convicted as an aider and abettor of this possessory crime, it must be shown that he knowingly acted or encouraged, with the intent to aid, the possessor to obtain, retain possession of, or use the firearm during the commission of a felony (MCL 750.227b; MSA 28.424[2]).

      References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 119-124.
    [3] 21 Am Jur 2d, Criminal Law § 17.
    73 Am Jur 2d, Statutes §§ 274-276.
    [4] 79 Am Jur 2d, Weapons and Firearms § 9.

      2. Criminal Law — Aiding and Abetting — Presence at Scene of Crime.
    An accused, in order to be convicted as an aider and abettor, need not be present at the scene of the crime; however, it is necessary to establish a sufficient factual basis to show that the accused procured, counseled, aided or abetted in the commission of the offense.
    Dissent by T. M. Burns, J.
    3. Criminal Law — Statutes — Strict Construction.

      Statutes that define criminal acts must be strictly construed.

    4. Criminal Law — Felony-Firearm — Possession of Firearm — Statutes.

      A defendant must personally carry or have in his possession a firearm during the commission of a felony in order to be found guilty under the felony-firearm statute (MCL 7B0.227b[l]; MSA 28.424[2][1]).

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for the people.

      George S. Buth, for defendant on appeal.
    Before: Allen, P.J., and R. B. Burns and T. M. Burns, JJ.
   Per Curiam.

On December 7, 1977, defendant pled guilty to robbery armed, contrary to MCL 750.529; MSA 28.797, and possession of a firearm in the commission thereof, contrary to MCL 750.227b; MSA 28.424(2). On January 23, 1978, he was sentenced to prison for 7-1/2 to 20 years for the robbery charge and to a mandatory two years consecutive imprisonment on the felony-firearm charge. Two issues are raised on appeal.

First, defendant claims that the felony-firearm statute is unconstitutional on grounds of double jeopardy. This claim was rejected by the Michigan Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979). We likewise reject the contention here.

The second issue raised by defendant-appellant questions whether he, as an aider and abettor, can be convicted under the felony-firearm statute where there is no indication that defendant personally carried, or had in his possession, a firearm at the time of the robbery. There is a difference of opinion in this Court on this issue. Compare People v Walter Johnson, 85 Mich App 654, 658; 272 NW2d 605 (1978), and People v Powell, 90 Mich App 273, 274-5; 282 NW2d 803 (1979), with People v Walter Johnson, supra at 672-673 (Kaufman, J., dissenting), People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), People v Powell, supra at 275-276 (Cynar, J., dissenting). Careful reading of People v Tavolacci, supra, and the relevant portions of Judge Kaufman’s dissenting opinion in People v Walter Johnson, supra, persuades us that MCL 750.227b; MSA 28.424(2) does not require proof of personal possession of the firearm when used in the commission of a felony. See United States v James, 528 F2d 999, 1015 (CA 5, 1976), reh den 532 F2d 1054 (1976), cf., United States v Brant, 448 F Supp 781 (WD Pa, 1978), United States v Giannoni, 472 F2d 136 (CA 9, 1973), cert den, 411 US 935; 93 S Ct 1911; 36 L Ed 2d 396 (1973).

However, in order that an accused may be convicted as an aider and abettor of a possessory crime such as felony-firearm, it must be shown that he knowingly acted or encouraged, with the intent to aid, the possessor to obtain or retain possession of or to use the firearm during the course of a felony. People v Doemer, 35 Mich App 149; 192 NW2d 330; 47 ALR3d 1236 (1971), and see, People v Pearce, 20 Mich App 289; 174 NW2d 19 (1969), People v Little, 58 Mich App 12; 226 NW2d 735 (1975).

Therefore, the question still remains whether defendant supplied a sufficient factual basis for the felony-firearm plea. GCR 1963, 785.7(3)(a). Although it is clear that the accused, as an aider and abettor, need not be present at the scene of the crime, it is necessary that a sufficient factual basis be provided to show that he procured, counseled, aided or abetted in the commission of the possessory offense. People v Tavolacci, supra, at 475. Thus, while we affirm defendant’s conviction on the armed robbery charge, People v Sharp, 57 Mich App 624; 226 NW2d 590 (1975), People v Spry, 74 Mich App 584, 595; 254 NW2d 782 (1977), it is necessary to examine the record of defendant’s guilty plea in order to determine if there was a sufficient factual basis provided for defendant’s conviction as an aider and abettor to "felony-firearm”. We find that there is.

Defendant admitted driving the stolen automobile used to transport him and his cohorts to a house where they all broke and entered, taking four guns, including a shotgun. Defendant and his companions subsequently used these guns to rob three business establishments. However, during the particular robbery for which defendant pled guilty, he did not enter the food store, but instead waited outside in the car. Despite his lack of personal, physical possession of the shotgun used to rob this establishment, defendant admits that he knew that his companions went into the store with a shotgun in order to rob someone. Moreover, the proceeds of the robbery were equally divided among defendant and his companions. This evidence is sufficient to establish that defendant knowingly acted and encouraged his companions to obtain possession of a firearm and that he assisted and encouraged them to use the firearm during the commission of a felony.

Affirmed.

T. M. Burns, J.

(dissenting). The operable language of the felony-firearm statute states that a person "who carries or has in his possession” a firearm at the time that he commits or attempts to commit a felony is guilty of a felony. MCL 750.227b(l); MSA 28.424(2)(1). Statutes that define criminal acts must be strictly construed. People v Hall, 391 Mich 175, 189; 215 NW2d 166 (1974). Therefore, I concur in the opinions of this Court in People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), which held that the felony-firearm statute requires that a defendant personally carry or have in his possession a firearm in order to be found guilty thereunder. I would hold that defendant cannot be convicted of violating the felony-firearm statute as an aider and abettor.


author: Per Curiam.

text:
    PEOPLE v MERRIWEATHER
    Docket No. 78-2407.
    Submitted September 4, 1979, at Grand Rapids.
    Decided November 6, 1979.
    Kenneth L. Merriweather was convicted of armed robbery, Kent Circuit Court, George V. Boucher, J. The judge had instructed the jury on aiding and abetting despite the fact that the prosecution failed to identify which of defendant’s two companions committed the principal crime and that the prosecution produced no evidence of discussions between the defendant and the alleged principal concerning the crime. Defendant appeals asserting that the trial court erred in submitting the question of aiding and abetting to the jury by reason of the failure of the prosecution to establish which of his companions committed the principal crime and/or by reason of the failure of the prosecution to produce evidence of discussions by the defendant with the principal concerning the crime. Held:

    1. The prosecution need not establish which of defendant’s two companions was the principal in order to submit the question of aiding and abetting to the jury. The prosecution need only prove that someone committed the crime and that defendant aided and abetted in the commission of the crime. Since the prosecution established that one of defendant’s two companions committed the principal crime, the trial court properly instructed the jury on aiding and abetting.
    2. Where the prosecution establishes a defendant’s requisite intent by means of the defendant’s actions and statements made during the commission of the crime, it is proper to instruct the jury on aiding and abetting despite the prosecution’s failure to produce evidence of discussions between the defendant and the alleged principal concerning the crime.
    Affirmed.
    1. Criminal Law — Aiding and Abetting — Instructions to Jury.
    An instruction to the jury on aiding and abetting is proper where, although the prosecution established that the principal crime was committed by one of defendant’s two companions, the prosecution failed to identify which of defendant’s two companions committed the principal crime; the prosecution need only prove that someone committed the crime and that defendant either committed or aided and abetted the commission of the crime.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 119, 127.
    75 Am Jur 2d, Trial § 724.
    [2] 21 Am Jur 2d, Criminal Law § 123.

      2. Criminal Law — Aiding and Abetting — Intent — Evidence.
    Conviction on the theory of aiding and abetting does not require evidence of discussions between the defendant and the alleged principal concerning the crime where defendant’s requisite intent is adequately established by his actions and statements made during the commission of the crime.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, David H. Sawyer, Prosecuting Attorney, and Carol S. Irons, Assistant Prosecuting Attorney, for plaintiff.

      Buth, Wood & Weidaw (by George S. Buth and Stephen M. Tuuk), for defendant on appeal.
    Before: Allen, P.J., and R. B. Burns and T. M. Burns, JJ.
   Per Curiam.

Defendant was found guilty by a jury of armed robbery. MCL 750.529; MSA 28.797. He appeals and we affirm.

Defendant argues that it was error for the trial court to have instructed the jury on aiding and abetting since the prosecution’s evidence did not identify which of defendant’s two companions had committed the principal crime of armed robbery, though the prosecution did establish that the principal crime was committed by one of these two individuals.

In our opinion the evidence produced at trial was sufficient to establish which individual committed the principal crime, but even if defendant were correct on the facts his argument must fail.

In People v Mann, 395 Mich 472, 477-478; 236 NW2d 509 (1975), the Supreme Court provided the following guidance on the aiding and abetting instruction:

"In People v Palmer, 392 Mich 370, 378; 220 NW2d 393 (1974), we reaffirmed the rule that a person may be prosecuted for aiding and abetting without regard to the conviction or acquittal of the principal. '[Aiding and abetting] comprehends all words or deeds which may support, encourage or incite the commission of a crime.’ The conviction of the principal is not necessary to convict an accessory. What must be proven, however, is that the crime was committed by someone, and that the defendant either committed or aided and abetted the commission of that crime.”

Even under the facts as represented by defendant, the evidence was sufficient for the jury to have found that the crime of armed robbery had been committed and that defendant had aided or abetted in its commission.

Defendant next argues that the trial court erred in instructing on aiding and abetting because the evidence was insufficient to establish that there was a "commonality of interest” between defendant and the principal perpetrator of the crime. Though defendant may be correct in his assertion that the prosecution produced no evidence of discussions between the defendant and the alleged principal concerning the crime, a showing of the requisite intent on the part of defendant was adequately made through circumstantial evidence. From defendant’s actions and his statements during the commission of the offense, the jury could properly have concluded that defendant had aided and abetted the armed robbery. People v Macklin, 46 Mich App 297; 208 NW2d 62 (1973).

Affirmed.


author:
Per Curiam.
      MacKenzie, J.

text:
    INCH MEMORIALS v CITY OF PONTIAC
    Docket No. 78-2993.
    Submitted April 4, 1979, at Detroit.
    Decided November 6, 1979.
    Leave to appeal applied for.
    Plaintiffs, Inch Memorials (a Michigan copartnership) and Michigan Division Monument Builders of North America, Inc., filed suit in the Oakland Circuit Court to prohibit defendant, City of Pontiac, from selling grave markers and memorials for use in its municipal cemeteries in competition with plaintiff Inch and others. Plaintiffs alleged that the sales were beyond the authority of the municipality and that, by failing to charge the four percent sales tax, defendant was engaging in unfair price discrimination resulting in the establishment of an illegal monopoly under the fair trade act. The court, Richard D. Kuhn, J., held that the authority to sell grave markers was implicit within the municipal authority to own and operate cemeteries and that the sales did not constitute unfair competition and denied the request for injunctive relief. Plaintiffs appeal. Held:

    1. The provisions of the home rule cities act must be liberally construed in favor of municipalities. The Legislature’s grant of authority to municipalities to acquire, maintain, develop and operate cemeteries and to provide for the cost and expenses thereof should be interpreted to give a home rule city the power to sell grave markers in its own cemeteries.
    2. The fair trade act has no application to a municipality which, as an adjunct to its maintenance of a cemetery, sold grave markers without charging sales tax where: 1) there is no evidence of the municipality "combining” with another person in restraint of trade; and, 2) the buyers are not in competition with one another. The four percent differential produced by the nonpayment of sales tax is not so unreasonably great as to render the competition with private sellers unfair.

      References for Points in Headnotes
    [1, 2] 14 Am Jur, 2d Cemeteries §§ 3, 5.
    56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 126 et seq.

    [2, 4] 32 Am Jur 2d, Fair Trade Laws §§ 9, 13.
    68 Am Jur 2d, Sales and Use Taxes §§ 43, 118.
    [3] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions §§ 193-195.
    [4] 56 Am Jur 2d, Municipal Corporations, Counties, and Other Political Subdivisions § 212.

      Affirmed.
    Mackenzie, J., dissented. She would hold that the powers of municipal corporations are those 1) granted in express terms, 2) reasonably or fairly implied in or incident to the powers expressly granted, or 3) essential to the accomplishment of the declared objects and purposes of the corporation. Any fair, reasonable or substantial doubt concerning the existence of a power is to be resolved against the corporation. A municipality should not encroach upon the field of private enterprise where the articles provided are not of public necessity and are available from private enterprise. She would reverse.
    Opinion of the Court
    1. Municipal Corporations — Cemeteries — Sale of Grave Markers.
    The provisions of the home rule cities act must be liberally construed in favor of municipalities; the Legislature’s grant of authority to municipalities to acquire, maintain, develop and operate cemeteries and to provide for the cost and expenses thereof should be interpreted to give a home rule city the power to sell grave markers for its own cemeteries (MCL 117.1 et seq.; MSA 5.2071 et seq.).

    2. Municipal Corporations — Cemeteries — Sale of Grave Markers — Statutes.
    The fair trade act has no application to a municipality which, as an adjunct to its maintenance of a cemetery, sells grave markers without charging sales tax where: 1) there is no evidence of the municipality "combining” with another person in restraint of trade; and, 2) the buyers are not in competition with one another; the four percent differential produced by the nonpayment of sales tax is not so unreasonably great as to render the competition with private sellers unfair (MCL 445.701 et seq.; MSA 28.31 et seq.).

    Dissent by Mackenzie, J.
    3. Municipal Corporations — Powers of Municipal Corporations.

      The powers of municipal corporations are those 1) granted in express terms, 2) necessarily or fairly implied in or incident to the powers expressly granted, or 3) essential to the accomplishment of the declared objects and purposes of the corporation;

      and fair, reasonable or substantial doubt concerning the existence of a power is to be resolved against the corporation.

      4. Municipal Corporations — Municipal Sales — Public Use.

      The private sellers of grave markers who are capable of meeting the demand for markers meeting the specifications for placement in a municipal cemetery are entitled to be free from municipal competition; a municipality should not encroach upon the field of private enterprise where the articles provided are not of public necessity and are available from private enterprise.

      Bebout, Potere, Cox, Hughes & Cadieux, for plaintiffs.

      Rudy J. Nichols, for defendant.
    Before: T. M. Burns, P.J., and M. F. Cavanagh and Mackenzie, JJ.
   Per Curiam.

Plaintiffs appeal of right a lower court judgment denying them injunctive relief prohibiting defendant from selling grave markers and memorials for use in its own municipal cemeteries. We affirm.

Under the Michigan Constitution a municipal corporation may "acquire, own, establish and maintain” public cemeteries. Const 1963, art 7, § 23. This constitutional authority is not self-executing but requires enabling legislation. Wayne Village President v Wayne Village Clerk, 323 Mich 592; 36 NW2d 157; 8 ALR2d 357 (1949). The necessary statutory authority giving defendant the right to maintain its public cemeteries is found in the home rule cities act. MCL 117.1 et seq.; MSA 5.2071 et seq. In pertinent part, that act states that home rule cities may provide in their charters for the acquisition and operation of cemeteries and for the costs and expenses thereof. MCL 117.4e; MSA 5.2078.

In general, the powers that cities possess fall into three categories: those granted in express words; those necessarily or fairly implied in or incident to the powers expressly granted; and those essential to the accomplishment of the declared objects and purposes of the municipal corporation. Home Owners' Loan Corp v Detroit, 292 Mich 511; 290 NW 888 (1940), Toebe v City of Munising, 282 Mich 1; 275 NW 744 (1937). The power that defendant seeks in this case can be fairly implied from its authority to acquire, maintain, develop and operate its cemeteries and from its authority to provide for the costs and expenses thereof. We find this result supported by several considerations.

First, in accordance with the constitution, Const 1963, art 7, § 34, and with case law, 1426 Woodward Avenue Corp v Wolff, 312 Mich 352, 369; 20 NW2d 217 (1945), the provisions of the home rule cities act must be liberally construed in favor of municipalities. In light of this requirement, the Legislature’s grant of authority to municipalities to acquire, maintain, develop and operate cemeteries and to provide for the costs and expenses thereof should be interpreted to give defendant the power to sell grave markers in its own cemeteries. Cf. McIntosh v City of Muskegon, 88 Mich App 30; 276 NW2d 510 (1979).

We also note that the primary reason that defendant sells grave markers is to help finance its cemetery operations. In Wetherby v City of Jackson, 264 Mich 146, 151; 249 NW 484 (1933), the Supreme Court stated that such a reason would support an otherwise valid municipal regulation of a cemetery:

"The rule prohibiting the erection of the tents of private funeral directors for use at funerals and compelling the use of the tents of the city or of the cemetery board is a condition attached to the exercise of the right of burial, and may be justified under the police power which has to consider rights of other lot owners and those where burial is to take place, and may be justified upon the ground of public revenue for the care, support, and maintenance and ornamentation of the cemetery itself.” (Emphasis supplied)

In sum, we hold that the power to sell grave markers is reasonably related to the authority given defendant over its cemeteries.

Plaintiffs also argue that by failing to charge sales tax on the monuments that it sells, defendant has engaged in unfair price discrimination resulting in the establishment of an illegal monopoly under the fair trade act, MCL 445.701 et seq.; MSA 28.31 et seq. We find this argument unpersuasive.

The fair trade act has no application to the instant case. There is no evidence that defendant has engaged in an illegal "combination” with another person in restraint of trade. MCL 445.701; MSA 28.31. Further, because defendant’s buyers are not in competition with one another, defendant cannot be said to have unfairly bestowed a competitive advantage upon one of its buyers to the disadvantage of that buyer’s competitors. Finally, the 4% differential produced by the nonpayment of sales tax is not so unreasonably great as to render defendant’s competition unfair and there is no evidence that defendant ever entertained the intent to "destroy” or "eliminate” private monument dealers in Pontiac.

Affirmed. No costs, a public question being involved.

MacKenzie, J.

(dissenting). I dissent. I am unable to conclude that the power to sell grave markers and memorials can be fairly implied from the authority to operate cemeteries. As noted by the majority, the power of municipalities fall into three separate categories: those granted in express words; those necessarily or fairly implied in or incident to the powers expressly granted; and, those essential to the accomplishment of the declared objects and purposes of the corporation. These categories were set forth in Toebe v City of Munising, 282 Mich 1, 15-16; 275 NW 744 (1937), which further stated that any fair, reasonable or substantial doubt concerning the existence of a power is resolved against the corporation, and the power is denied.

According to commentator McQuillin:

"The object of the creation of a municipal corporation is that it may perform certain local public functions as a subordinate branch of the state government; and, while it is invested with full power to do everything necessarily incident to a proper discharge thereof, no right to do more can ever be implied. In the absence of express legislative sanction, it has no authority to engage in any independent business enterprise or occupation such as is usually pursued by private individuals.” 12 McQuillin, Municipal Corporations (3d ed), § 36.02, p 502.

The principle that a party engaging in legitimate private business is entitled to be free from unauthorized proprietary business activity of a municipality has been adhered to by prior decisions in this state. In Toebe v City of Munising, supra, the Michigan Supreme Court held that the plaintiff was entitled to sell coal to a community free from municipal competition, despite the fact that the city had been the sole distributor of coal to the public for several years preceding the plaintiff’s entry into the field. The Court indicated that the selling of coal could not fairly be implied in a constitutional provision empowering cities to acquire, own, and operate "public utilities for supplying water, light, heat, power, and transportation”. The Court stated that a different situation existed where there was an emergency and the city had to provide fuel to prevent general suffering. In the case confronting it, however, an overruling public necessity did not exist justifying the private venture. See also Baker v City of Grand Rapids, 142 Mich 687; 106 NW 208 (1906), Attorney General v City Council of the City of Detroit, 150 Mich 310; 113 NW 1107 (1907).

Plaintiff Inch has sold monuments in Pontiac for approximately 80 years. It and its competitors in the private sector are apparently capable of selling an unlimited number of stones conforming to city regulations. There was no sign that, absent municipal participation, the public desire or need for monuments could not be met. The city’s late entry into the business indicates that the need was traditionally met by private suppliers.

The issue facing us was encountered by the Maine Supreme Court in Morrison v City of Portland, 286 A2d 334 (Me, 1972). The defendant municipality sold markers ostensibly under the authority of a Maine statute which provided:

"A municipality may raise or appropriate money:
3. Cemeteries. Providing for public cemeteries; maintaining private cemeteries established before 1880; caring for graves of veterans and maintaining fences around cemeteries in which veterans are buried.” 30 Me Rev Stat Ann 5103.

The Court held that the selling of grave markers could not be viewed as necessarily or reasonably incidental to the operation or maintenance of a cemetery by a municipality.

The Morrison Court employed a test set forth in Laughlin v City of Portland, 111 Me 486, 499; 90 A 318 (1914), for determining what constitutes a public use when municipal sales are involved:

"Its two tests are: first, the subject matter, or commodity, must be one 'of public necessity, convenience or welfare.’ * * * The second test is the difficulty which individuals have in providing it for themselves. The causes creating the difficulty may vary, but if the difficulty exists, the test is met.”

The Court concluded that the markers were not a public necessity and they were readily obtainable from private businesses. This is equally true of the markers and memorials sold by the plaintiff in the instant case. Unlike fuel, food, or housing, the markers do not constitute an important public need. Further, there is no indication that the public need for monuments could not be met by plaintiff and its competitors in the private sector.

Although provisions in the home rule cities act are to be liberally construed, City Comm of Jackson v Hirschman, 253 Mich 596, 599; 235 NW 265 (1931), a construction in the instant case in favor of the commercial activity by the defendant is outweighed by the principle that a municipality should not encroach upon the field of private enterprise where the articles provided are not of public necessity and are available from private enterprise.

Finally, the Michigan Supreme Court decision in Wetherby v City of Jackson, 264 Mich 146; 249 NW 484 (1933), does not mandate a different re-suit. In that case, the city had a regulation that completely prohibited the erection of tents of private funeral directors for use at funerals conducted at municipal cemeteries. That case did not involve a municipality competing in the field of private enterprise with private businesses. The ordinance permitting exclusive use of city tents was justified in large measure by the city’s inherent police power to protect the rights of the other lot owners.

I would reverse.


text:
    PEOPLE v FEATHERSTONE
    Docket No. 78-3129.
    Submitted September 4, 1979, at Detroit.
    Decided November 6, 1979.
    Herbert H. Featherstone was convicted of second-degree murder, Recorder’s Court of Detroit, Thomas L. Poindexter, J. At trial, defendant moved to suppress the admission of evidence of defendant’s prior conviction for manslaughter, a conviction for which release from confinement had occurred more than ten years prior to the date of this trial. The trial court denied the motion to suppress, and defendant did not testify. The trial court excused the prosecution from producing a res gestae witness and permitted the preliminary examination testimony of that witness to be read into the record at trial. Defendant appeals. Held:

    1. It is error to permit in a murder trial the admission of evidence of defendant’s prior conviction for manslaughter for the purpose of impeachment where defendant had been released from prison on the manslaughter conviction more than ten years prior to the murder trial. The prejudicial effect of such evidence outweighs the probative value, given the closely related nature of the prior conviction to the charged offense. Furthermore, the temporal remoteness of the prior conviction and incarceration renders evidence of the same stale and inadmissible under the Michigan Rules of Evidence. The erroneous denial of the motion to suppress cannot be said to be harmless error, since its denial may have influenced defendant’s decision not to testify.
    2. The prosecution will be excused from its duty to produce a res gestae witness where there is a showing that due diligence was used in attempting to secure the presence of the witness at trial. It is, however, an abuse of discretion for the trial court to excuse production of a res gestae witness where, prior to trial, there was no personal service of a subpoena upon the witness and where, when the witness failed to appear pursuant to a subpoena served on him on the second day of trial, the prosecution’s efforts to secure the presence of the witness were limited to inquiries made of neighbors and a relative and inquiries made at bars known to be frequented by the witness. Prejudice flowing from the nonproduction of the witness is apparent from the record, in that the damaging preliminary examination testimony of the nonproduced witness was admitted at trial.

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 320, 330.
    [2] 5 Am Jur 2d, Appeal and Error §§ 778, 779, 798.
    [3] 81 Am Jur 2d, Witnesses § 2.
    [4] 62 Am Jur 2d, Process § 44.
    [5] 21 Am Jur 2d, Criminal Law § 343.
    29 Am Jur 2d, Evidence §§ 739, 740.
    [6] 29 Am Jur 2d, Evidence §§ 638, 640.

      3. In the absence of any testimony that defendant exercised his right to remain silent, the admission of testimony that defendant was informed of his right to remain silent is harmless error. Since there is no probative value to testimony that defendant was informed of his right to remain silent, and since there is a potential for prejudice from that testimony, on retrial such testimony should be excluded.
    Reversed and remanded.
    1. Criminal Law — Evidence — Admissibility of Evidence — Impeachment — Prior Convictions — Rules of Evidence.
    It is error to admit, for the purpose of impeachment of a criminal defendant, evidence of a prior conviction for manslaughter in the defendant’s trial for murder where defendant had been released from prison on the manslaughter conviction more than ten years prior to the murder trial, since the prejudicial effect of such evidence outweighs its probative value and the evidence of the prior conviction is inadmissible under the Michigan Rules of Evidence (MRE 609[b]).
    2. Appeal and Error — Criminal Law — Evidence — Admissibility of Evidence — Impeachment — Prior Convictions — Harmless Error.
    The erroneous denial of a criminal defendant’s motion to suppress evidence of a prior conviction is not harmless error where the defendant did not testify at trial, since the erroneous denial of the motion to suppress may have influenced the defendant’s decision not to testify.
    3. Witnesses — Criminal Law — Res Gestae Witnesses — Production of Witnesses — Exceptions.
    The prosecution will be excused from its duty to produce a res gestae witness upon a showing that due diligence was used in attempting to secure the presence of the witness at trial; the level of diligence required is devoted and painstaking application to accomplish the undertaking to secure the presence of the witness.
    4. Witnesses — Criminal Law — Res Gestae Witnesses — Production of Witnesses — Due Diligence.
    It is an abuse of discretion on the part of a trial court to excuse the prosecution from producing at trial a res gestae witness where, prior to trial, there was no personal service of a subpoena upon the witness and where, when the witness failed to appear pursuant to a subpoena served on him on the second day of trial, the police talked to neighbors and a relative and looked in bars known to be frequented by the witness.
    5. Witnesses — Criminal Law — Res Gestae Witnesses — Production of Witnesses — Evidentiary Hearing — Preliminary Examination Testimony.
    Remand for a hearing to determine whether the nonproduction at trial of a res gesate witness was prejudicial is unnecessary where the prejudice to the defendant is apparent from the record, the damaging preliminary examination testimony of the nonproduced witness having been admitted at trial.
    6. Criminal Law — Privilege Against Self-Incrimination — Silence — Evidence — Admissibility — Harmless Error.
    The admission of testimony that defendant was informed of his right to remain silent is harmless error in the absence of any testimony that the defendant exercised his right to remain silent, however, since there is no probative value to such testimony and there is the potential for prejudice, such testimony generally should be excluded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, and Robert Sheiko, Assistant Prosecuting Attorney, for the people.

      Robert E. Slameka, for defendant.
    Before: N. J. Kaufman, P.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

The defendant appeals as of right from his jury conviction of second-degree murder, MCL 750.317; MSA 28.549. The defendant was sentenced to life imprisonment.

The defendant and the decedent, Gloria Clark, lived together for about 1-1/2 years. On the night in question, neighbors testified that Ms. Clark and the defendant, who had been drinking, were having a loud and protracted argument. The defendant threatened to kill Ms. Clark in the presence of several other persons. He attempted to purchase a gun from another resident of the building. Neighbors summoned the police in the early morning hours because they heard a scream and a gun shot from the apartment. The defendant was sitting on a couch in the living room and denied that there had been a gun shot. The police officers left. Several hours later, Mr. Sims, the manager of the apartment building, called the police. The decedent was found lying on the floor in the bedroom, and there was no sign of a forcible entry. The cause of death was strangulation. The defendant was arrested at the apartment of a friend.

The defendant’s first issue involves the trial court’s denial of a motion to suppress the admission of evidence of defendant’s prior conviction for manslaughter. The trial court’s denial of the motion was erroneous for two reasons. First, it did not adhere to the guidelines announced in People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). The prior manslaughter conviction was so closely related to the charged offense of second-degree murder that the prejudicial effect of its admission outweighed its probative value. Furthermore, the defendant had a more recent conviction for larceny by conversion over $100 by which he could have been impeached.

The second reason involves MRE 609(b), which states that if more than 10 years have elapsed from the date of the conviction or the release of the witness from confinement, whichever is later, that conviction is inadmissible for the purpose of impeachment. The defendant herein was released from prison for the manslaughter conviction in 1967. The trial in question took place in 1978. Therefore, evidence of the conviction was stale and inadmissible under the rule.

This was not a case of harmless error, since the defendant did not testify at the trial. See, People v Denny, 86 Mich App 40; 272 NW2d 332 (1978). The conviction must be reversed and a new trial ordered.

Mr. Sims, the manager of the apartment building, testified at the preliminary examination. He stated that, on the morning in question, the defendant telephoned him and admitted that he had killed Ms. Clark. Mr. Sims was an endorsed res gestae witness, but was not produced at the trial. Before the trial, Mr. Sims was served by sliding a subpoena under his door. This did not satisfy the personal service requirement of GCR 1963, 105.1. See also, GCR 1963, 506.5. On the second day of the trial, Mr. Sims was properly served via personal in-hand delivery. When Mr. Sims still did not appear, a police officer talked with some neighbors, contacted Mr. Sims’ relative in the hospital, and looked for Mr. Sims in various bars on Mack Avenue which he was known to frequent. Mr. Sims had not moved from his listed address and was seen there by his daughter at approximately 6 a.m. on the day the police officer sought to find him.

The trial judge found that the prosecutor exercised due diligence and excused the production of Ronald Sims. Furthermore, the trial court admitted into evidence Mr. Sims’ testimony at the preliminary hearing.

It is the prosecutor’s duty to produce all res gestae witnesses at trial. MCL 767.40; MSA 28.980. The duty of the prosecution to produce a res gestae witness is excused under certain circumstances, including a showing that due diligence was used in attempting to produce the witness. People v Buero, 59 Mich App 670, 674; 229 NW2d 880 (1975), People v McPherson, 84 Mich App 81, 85; 269 NW2d 313 (1978). The level of diligence required by the prosecution is "devoted and painstaking application to accomplish the undertaking”. People v McPherson, supra.

The efforts expended by the prosecution herein were insufficient to constitute due diligence. See also, People v Eugene Harris, 43 Mich App 531; 204 NW2d 549 (1972), People v Hendrix, 81 Mich App 33, 35; 264 NW2d 108 (1978). The trial court abused its discretion in finding that due diligence was exercised in this case.

There is no need to remand this case for a hearing to determine whether the nonproduction of Mr. Sims was prejudicial, as required in People v Pearson, 404 Mich 698; 273 NW2d 856 (1979). Prejudice to the defendant is apparent from the record, since Mr. Sims’ damaging testimony at the preliminary examination was admitted erroneously. See People v Nieto, 33 Mich App 535; 190 NW2d 579 (1971), People v Williams #2, 45 Mich App 630, 637; 207 NW2d 180 (1973). At the new trial, the prosecutor must either produce Mr. Sims or demonstrate that due diligence was exercised.

The defendant contends that the prosecutor violated the rule announced in People v Bobo, 390 Mich 355; 212 NW2d 190 (1973), because he elicited testimony from a police officer that he had informed the defendant of his right to remain silent. There was no direct reference to defendant’s silence at the time of his arrest.

We find that this was at most harmless error. See People v Robinson, 386 Mich 551; 194 NW2d 709 (1972). However, on retrial, the trial court should follow the rule stated in People v Jablonski, 38 Mich App 33, 38; 195 NW2d 777 (1972):

"It would appear that the better rule is that there is absolutely no probative value/ in eliciting that the defendants were informed of their rights unless the prosecutor intends to offer a confession or statement made by the defendants. Since there is a potential prejudicial effect even from the mere mention of the rights statement, even in the absence of testimony that the defendant wished to exercise those rights, such statements should be excluded.”

The defendant’s final issue concerning a sua sponte jury instruction on intoxication is without merit.

Reversed and remanded for a new trial.


text:
    PEOPLE v GILLAM
    Docket No. 78-3423.
    Submitted September 4, 1979, at Detroit.
    Decided November 6, 1979.
    Vincent P. Gillam was convicted in Recorder’s Court of Detroit of i delivery of heroin, Robert L. Evans, J. The defendant appeals, alleging that 1) the prosecution failed to produce certain res gestae witnesses, and 2) a search warrant obtained and executed seven days after the delivery at issue was based on stale information. Held:

    1. The defendant presumably knew the identity of the res gestae witnesses in question but failed to disclose this information to the prosecution or to move for the production of the witnesses during trial. The prosecutor’s failure to produce was, at most, harmless error. Reversal on this basis is unnecessary.
    2. The defendant waived his right to challenge the validity of the search warrant. Assuming, arguendo, that the issue has been preserved for appeal, the warrant was not stale. Although there were seven days between the time that the police were originally informed and the time of the issuance of the warrant, there was corroborative information obtaihed just 24 hours before the warrant’s issuance.
    Affirmed.
    1. Witnesses — Res Gestae Witnesses — Criminal Law — Endorsement of Witnesses — Production of Witnesses — Statutes.
    Persons present at the scene of a crime are presumed to be res gestae witnesses able to testify regarding their observations; prosecutors are required to endorse on the information the names of all such persons and to produce these witnesses at trial (MCL 767.40; MSA 28.980).

      References for Points in Headnotes
    [1] 29 Am Jur 2d, Evidence §§ 723, 724.
    81 Am Jur 2d, Witnesses § 74.
    Admissibility in criminal case, as part of res gestae, of statements or Utterances of bystanders made at time of arrest. 78 ALR2d 300.
    [2] 41 Am Jur 2d, Indictments and Informations §§ 56, 60.
    58 Am Jur 2d, New Trial § 41.
    [3] 41 Am Jur 2d, Indictments and Information §§ 56, 60.
    [4-6] 68 Am Jur 2d, Searches and Seizures § 70.
    Search warrant: sufficiency of showing as to time of occurrence of facts relied on. 100 ALR2d 525.

      2. Witnesses — Res Gestae Witnesses — Criminal Law — Failure to Endorse — Failure to Produce — Motions.
    It is a defendant’s responsibility to move for a hearing during trial or for a new trial prior to seeking appellate review where a prosecutor has not fulfilled the requirement of endorsing and producing res gestae witnesses.
    3. Witnesses — Res Gestae Witnesses •— Criminal Law — Failure to Endorse — Failure to Produce.
    The prosecution is excused from endorsing and producing a res gestae witness where (1) the identity of the res gestae witness is made known to a defendant during or before trial, (2) the defendant does not move for endorsement or production of the witness and (3) the prosecution was previously unaware of the identity of the res gestae witness.
    4. Searches and Seizures — Search Warrants — Probable Cause — Stale Information.
    A search warrant may be quashed where it is based on outdated probable cause.
    5. Searches and Seizures — Search Warrants — Probable Cause — Stale Information.
    Probable cause supporting a search warrant must exist at the time the warrant is issued; the lapse of time between circumstances underlying a warrant and the execution of the warrant does not automatically indicate staleness.
    6. Searches and Seizures — Search Warrants — Stale Information — Probable Cause.
    The measure of a search warrant’s staleness rests not on whether there is recent factual information to confirm that a crime is being committed, but whether probable cause is sufficiently fresh to allow one to presume that the items sought remain on the premises.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Neis L. Olson, Assistant Prosecuting Attorney, for the people.

      Robert E. Slameka, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

Defendant was charged with and convicted of unlawful delivery of a controlled substance, heroin, MCL 335.341(l)(a); MSA 18.1070(41)(l)(a), and sentenced to 1 year in prison. Defendant’s motion for a new trial, based on the same issues raised here, was denied on August 14, 1978. He appeals as of right, claiming (1) that the prosecutor failed to produce res gestae witnesses and (2) that a search warrant obtained and executed seven days after the delivery at issue was based on stale information.

Persons present at the scene of a crime are presumed to be res gestae witnesses able to testify regarding their observations. People v Abdo, 81 Mich App 635, 642-644; 265 NW2d 779 (1978), People v Hicks, 63 Mich App 595, 597; 234 NW2d 720 (1975). Prosecutors are required to endorse all such persons’ names on the information, MCL 767.40; MSA 28.980, and to produce these witnesses at trial. See People v Hammack, 63 Mich App 87; 234 NW2d 415 (1975). However, if the prosecutor does not comply, it is the defendant’s responsibility to move for a hearing during trial or for a new trial prior to seeking appellate review. People v Robinson, 390 Mich 629; 213 NW2d 106 (1973).

In the case sub judice, although defendant most likely was aware of the several persons in his apartment at the time of the heroin delivery, he did not raise the production issue at trial. However, he did move for a new trial at the trial’s conclusion, properly perfecting the issue for appeal under the authority of Robinson, supra. Although defendant complied with preservation procedure, we find on the merits that witness presentation was excused under an established exception to the production rule.

" 'Where the identity of the res gestae witness is made known to the defendant during or before trial and defendant does not move for endorsement or production of the witness [presentation is excused].’ ” People v Hernandez, 84 Mich App 1, 14; 269 NW2d 322 (1978), quoting People v Buero, 59 Mich App 670, 674-675; 229 NW2d 880 (1975).

Defendant presumably knew the identity of the persons in his apartment, but failed to disclose this information to the prosecution or move for the production of the witnesses during trial. See Hernandez, supra. Whether this defendant actually delivered the heroin was never actually contested. Nor was there any question of identity. Any testimony that the witnesses could have given would not likely have affected the trial’s outcome. Therefore, we find that the prosecutor’s failure to produce was, at most, harmless and reversal on this basis is unnecessary. See Hernandez, supra, People v Phillips, 75 Mich App 690; 255 NW2d 733 (1977), People v Bennett, 68 Mich App 446; 243 NW2d 15 (1976).

Defendant further seeks reversal on the ground that the search warrant, obtained and executed seven days after the heroin delivery at issue, was based on stale information. There is authority for the quashing of a warrant based on outdated probable cause. People v Siemieniec, 368 Mich 405; 118 NW2d 430 (1962). However, as with the witness issue, the present defendant failed to object at trial. In fact, defense counsel specifically denied that the search would be challenged as illegal or improper. Thus, on the facts of this case we conclude that defendant effectively waived his right to challenge the search warrant.

Assuming, arguendo, that a post-trial motion for a new trial effectively preserved defendant’s appellate rights on the search warrant issue, we conclude that the warrant was not stale. It is well-settled that probable cause supporting the search warrant must exist at the time of its issuance. Sgro v United States, 287 US 206, 210; 53 S Ct 138; 77 L Ed 260 (1932). The lapse of time between the circumstances underlying the warrant and the warrant’s execution does not automatically indicate staleness. United States v Townsend, 394 F Supp 736 (ED Mich, 1975).

"There is no hard and fast rule as to how much time may intervene between the obtaining of the facts and the making of the affidavit upon which the search warrant is based” People v Mushlock, 226 Mich 600; 198 NW 203 (1924).

Certainly the passage of time is a consideration in judging a search warrant’s vitality. See People v Willis, 243 Mich 164; 219 NW 609 (1928), People v Mayes, 78 Mich App 618; 261 NW2d 22 (1977), People v Gould, 61 Mich App 614; 233 NW2d 109 (1975). One must look to the history of criminal activity involved; in a pattern of violations the lapse of time is less critical. Townsend, supra, at 744. Also necessary to consider is whether any supplemental information has been received to confirm the basic information supporting the warrant. See United States v Harris, 403 US 573; 91 S Ct 2075; 29 L Ed 2d 723 (1971). In the final analysis, the measure of a search warrant’s staleness rests not on whether there is recent information to confirm that a crime is being committed, but whether probable cause is sufficiently fresh to presume that the sought items remain on the premises. Townsend, supra, at 745.

In the instant case, the record reveals that the first delivery on January 10, 1978, which forms the basis of defendant’s conviction, was not an isolated occurrence. There was a second delivery on January 16, 1978, attested to in the affidavit accompanying the search warrant and in testimony at trial. Thus, although there were seven days between the original information and the search warrant of January 17th, there was corroborative information obtained just 24 hours before the warrant’s issuance. We cannot then say that the search warrant was stale.

We conclude that both of defendant’s arguments on appeal are without merit. Accordingly, his conviction is affirmed.

       In cases like the present, where only the defendant is aware of the witnesses’ identity, we are persuaded that the prosecutor is excused from endorsement and production by People v Buero, 59 Mich App 670; 229 NW2d 880 (1975). However, the Buero exception does not relieve the prosecutor of his duty to endorse res gestae witnesses of whose identity he is aware, without the necessity of a motion to endorse by defendant. See People v Reynolds, 93 Mich App 516; 286 NW2d 898.


text:
    PEOPLE v JOYNER
    Docket No. 78-3963.
    Submitted September 4, 1979, at Detroit.
    Decided November 7, 1979.
    John H. Joyner was convicted of first-degree felony murder, Recorder’s Court of Detroit, Patricia J. Boyle, J. The defendant appeals, alleging that 1) the information charging the defendant with felony murder should have been quashed since there was no proof of the underlying felony, 2) his confession was involuntary since it was obtained after an earlier refusal to talk and prior to arraignment, 3) there was no proper foundation laid for the admissibility of tracking-dog evidence, 4) the police entry into the defendant’s home and the subsequent seizure of the murder weapon was unlawful, 5) it was error for the trial court to allow the admission of evidence of the defendant’s prior convictions for the purpose of testing his credibility, 6) the trial court improperly excused the prosecution from its duty to produce an endorsed witness, and 7) the trial court erred in denying the defendant’s motion for a mistrial based on a possibly incriminating statement made by a 13-year-old witness. Held:

    1. The examining magistrate did not abuse his discretion in binding the defendant over on the felony-murder charge. There was sufficient evidence, independent of the defendant’s confession, to establish the corpus delicti of the underlying felony.
    2. The trial judge’s determination, after a Walker hearing, that the defendant’s confession was voluntary was not improper.
    3. There was no specific objection raised at trial to the lack of foundation for the admission of the tracking-dog evidence. There was no manifest injustice since all conditions precedent to the admission of the evidence were properly established on the record. The issue has not been preserved for appeal.

      References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 443-450.
    [2] 29 Am Jur 2d, Evidence §§ 582, 590.
    Constitutional aspects of procedure for determining voluntariness of pretrail confession. 1 ALR3d 1251.
    [3] 5 Am Jur 2d, Appeal and Error § 601 et seq.

    [4] 5 Am Jur 2d, Appeal and Error § 881.
    [5, 6] 81 Am Jur 2d, Witnesses § 2.

      4. The entry into the defendant’s house without a warrant was based on probable cause established by the tracking-dog evidence. Since the entry took place within a few minutes of the crime with no break in the chain of immediate pursuit, the entry qualifies under the "hot pursuit” exception to normal warrant requirements. Since the entry was proper, the officers’ subsequent sighting of the murder weapon in an open drawer was permissible under the "plain view” doctrine and the seizure of the knife was proper.
    5. Prior to allowing the admission of evidence of the defendant’s prior convictions, the trial judge noted her discretion on the matter and established on the record the factors underlying her ruling on the matter. The evidence was properly admitted.
    6. The testimony of - the endorsed witness, who was not produced by the prosecution, would not have been merely cumulative. However, under the circumstances of this case, the failure of the trial court to order the production of the witness was harmless error.
    7. The statement of the 13-year-old witness was not so inherently prejudicial as to require reversal, particularly since the trial judge directed the jury to disregard the remark.
    Affirmed.
    1. Criminal Law — Magistrates — Probable Cause — Preliminary Examinations — Discretion.
    A magistrate may bind a defendant over for trial if a crime has been perpetrated and if there is probable cause to believe that the defendant committed it; neither a trial court nor an appellate court should disturb the magistrate’s determination of probable cause, absent a clear showing of abuse of discretion.
    2. Criminal Law — Confessions — Voluntariness — Appeal and Error.
    An appellate court, when reviewing a trial court’s rulings on the voluntariness of a defendant’s confession, must examine the entire record and draw its own conclusions; however, if there is conflicting evidence and the determination of voluntariness is largely dependent on the credibility of witnesses, the appellate court should defer to the trial court’s finding.
    3. Criminal Law — Evidence — Appeal and Error — Manifest Injustice.
    Failure to particularize an objection to the admission of evidence precludes appellate review of the issue absent proof of manifest injustice.
    4. Criminal Law — Evidence — Prior Convictions — Discretion.
    A trial judge may, in the exercise of discretion, exclude evidence of a defendant’s prior convictions; it is error for the trial judge to fail to recognize his discretion and the factors underlying his decision on the record.
    5. Witnesses — Criminal Law — Excusing Production of Witness.
    Normally, a witness endorsed by the prosecution must be produced; however, the trial judge may excuse the prosecution from its duty to produce an endorsed witness and the Court of Appeals will not disturb the decision absent a showing of abuse of discretion.
    6. Witnesses — Criminal Law — Endorsed Witnesses — Excusing Production of Witness — Cumulative Testimony.
    A recognized basis for excusing the prosecution from its duty to produce an endorsed witness is that the witness’s testimony would be merely cumulative.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward R. Wilson, Principal Attorney, Appeals, and Robert T. Monk, Assistant Prosecuting Attorney, for the people.

      Robert E. Slamenka, for defendant on appeal.
    Before: N. J. Kaufman, P.J., and R. M. Maher and D. C. Riley, JJ.
   Per Curiam.

Defendant was charged with first-degree felony murder contrary to MCL 750.316; MSA 28.548, convicted following a jury trial, and sentenced to life imprisonment.

On appeal, defendant asserts that each of his numerous allegations of error requires reversal. We do not agree and concern ourselves first with defendant’s assertion that the information should have been quashed since there was no proof of the underlying felony of armed robbery, or attempted robbery armed, MCL 750.529; MSA 28.797, MCL 750.92; MSA 28.287. A magistrate may bind a defendant over for trial if a crime has been perpetrated and if there is probable cause to believe that the defendant committed it. Guilt need not be proven beyond a reasonable doubt. People v Asta, 337 Mich 590, 609-610; 60 NW2d 472 (1953), People v Goodchild, 68 Mich App 226; 242 NW2d 465 (1976). Neither the trial court nor an appellate court should disturb the magistrate’s probable cause determination absent a clear showing of abuse of discretion. People v Doss, 406 Mich 90, 101; 276 NW2d 9 (1979). We find no such abuse of discretion here.

The transcript of proceedings at the preliminary examination indicates that both the wife and son testified that the deceased always carried a wallet in which he kept his identification, a clip in which he carried his money, and a large "clump” of 30 or 40 keys.

On the day of the incident the victim was driven to the party store by his wife who, according to her testimony, saw her husband enter the party store with his keys. The transcript reveals further that both wife and son stated that while the victim was in the store he kept his keys in a cigar box next to the cash register. Immediately following the incident, the keys and wallet were discovered to be missing and the cigar box was found empty on the floor. The money clip was in the victim’s pocket but there was no money in the clip.

While it may well be argued that the missing wallet and the empty money clip require a pyramiding of inferences to form the basis for probable cause (even against the testimony of the employee from next door who testified that he saw the defendant flee the scene holding a "bulge” in his pants), the missing "clump” of keys does not require the inference upon an inference prohibited by People v Atley, 392 Mich 298; 220 NW2d 465 (1974), but rather derives its basis from separate and distinct facts which, when viewed together, dictate a certain result. People v Davidson, 88 Mich App 276, 278; 276 NW2d 580 (1979), People v Belcher, 29 Mich App 341, 344-345; 185 NW2d 440 (1971).

In addition, there is the testimony of the defendant’s girl friend that earlier in the day in question defendant had said that he wanted to "go get some money”. These facts combined establish the corpus delicti of the robbery independent of any confession of the defendant. Therefore, his claim of error premised on the lack of independent evidence must fail.

Defendant also maintains that since the confession was obtained after an earlier refusal to talk and prior to arraignment it was involuntary. After a Walker hearing on this matter, the trial judge determined that the confession was voluntary. When reviewing a trial court’s rulings, an appellate court must examine the entire record and draw its own conclusions. People v Crawford, 89 Mich App 30, 33; 279 NW2d 560 (1979). However, if there is conflicting evidence and the determination of voluntariness is largely dependent on the credibility of witnesses, the appellate court should defer to the trial court’s findings. People v Dixon, 84 Mich App 675, 681; 270 NW2d 488 (1978). The officers testified at trial that defendant had been fully advised of his Miranda rights, had received adequate food and sleep and had not been threatened or physically abused. It is defendant’s claim, however, that his statement was made as the result of threats made to him regarding his girl friend. Therefore, presented with a conflicting record, the trial judge viewed the video tape made of defendant’s confession, and, from the relaxed demeanor of defendant exhibited on said tape, the trial judge could reasonably conclude that the confession was voluntary. See People v Sparks, 82 Mich App 44; 266 NW2d 661 (1978). Although there was not as prompt an arraignment here as required by MCL 764.13; MSA 28.871(1), we find that the delay was not used solely to coerce a confession. People v White, 392 Mich 404, 424; 221 NW2d 357 (1974), People v Antonio Johnson, 85 Mich App 247, 252-253; 271 NW2d 177 (1978).

Defendant contends that there was no proper foundation laid for the admissibility of tracking-dog evidence. Here a tracking-dog was used to trace defendant to the home where he was discovered, a short distance from the scene of the crime. Initially we note that this issue has not been properly preserved for appeal, as no specific objection was made at the time of testimony. Failure to particularize an objection precludes appellate review absent proof of manifest injustice. People v Frederick Lester, 78 Mich App 21, 32; 259 NW2d 370 (1977), rev’d on other grounds 406 Mich 252; 277 NW2d 633 (1979). We find no manifest injustice in this case as all conditions precedent to admissibility were properly established on the record. See People v Harper, 43 Mich App 500, 508; 204 NW2d 263 (1972).

Defendant further maintains that the police entry into his home and subsequent seizure of the murder weapon were unlawful. We conclude, based on the record, that the tracking-dog evidence sufficiently constituted probable cause for the entry. Although this was an entry without a warrant, it took place within minutes of the murder. In light of this rapid follow-up and the fact that there was no break in the chain of immediate pursuit, we hold that the entry qualifies under the "hot pursuit” exception to normal warrant requirements. See Warden v Hayden, 387 US 294; 87 S Ct 1642; 18 L Ed 2d 782 (1967), United States v Holland, 511 F2d 38 (CA 6, 1975). Further, since the officers’ entry was proper, their subsequent sighting of the murder weapon in an open drawer was permissible under the "plain view” doctrine. See People v Whalen, 390 Mich 672; 213 NW2d 116 (1973), People v Harden, 54 Mich App 353; 220 NW2d 785 (1974). As the trial court’s ruling on the suppression of the knife was not clearly erroneous, People v Ulrich, 83 Mich App 19, 21; 268 NW2d 269 (1978), we will not reverse on this basis.

Defendant also asserts prejudicial error in the trial court’s admission of evidence of defendant’s prior convictions for the purpose of testing his credibility. Admissibility decisions are within the trial judge’s discretion, People v Jackson, 391 Mich 323, 336; 217 NW2d 22 (1974), and should be made according to the dictates of People v Crawford, 83 Mich App 35, 39; 268 NW2d 275 (1978). The judge should note his discretion and the factors underlying his decision on the record, or the record should specifically indicate his cognizance of the criteria, as in the instant case. In the case at bar, the court carried on an extensive colloquy with counsel pertaining to admission before the trial judge made her ruling. We hold that this exchange adequately complied with the Crawford standards.

Next, defendant alleges that the prosecution was improperly excused from its duty to produce an endorsed witness. Normally, a witness endorsed by the prosecutor must be produced. People v Buero, 59 Mich App 670, 673; 229 NW2d 880 (1975). However, the trial judge may excuse a witness, Buero, supra, at 675, and this Court will not disturb his decision absent a showing of abuse of discretion. People v Kaigler, 81 Mich App 340, 344; 265 NW2d 324 (1978). In the case sub judice, the trial judge’s proffered explanation for excusal was the probable cumulativeness of the witness’s testimony, a widely-recognized basis for exemption. Kaigler, supra, People v Mays, 64 Mich App 453, 459; 236 NW2d 513 (1975). However, our review of the evidence is not consonant with this conclusion. There was testimony in this case that type-0 blood was found at the scene of the crime, unlike the deceased’s type-A blood and the defendant’s type-AB blood. The technician who testified in this case indicated that type-AB blood would never show up as type-0 blood, although both the prosecutor and defense counsel seemed to think otherwise. This matter was never resolved at trial. Although the testifying technician claimed that she ran the same tests as the excused technician, this unset-tied matter leaves us unable to conclude that the missing technician’s testimony necessarily would have been cumulative. In such cases, we would normally be compelled to remand to the trial court for an evidentiary hearing on possible prejudice to the defendant. See People v Willie Pearson, 404 Mich 698; 273 NW2d 856 (1979), People v Wingfield, 62 Mich App 161; 233 NW2d 220 (1975). But, in this instance we are readily able to conclude that the missing testimony would have been of no assistance to the defendant.

First, the anticipated testimony of the missing witness would be more damaging to the defendant if, in fact, she were to testify that type-AB blood sometimes tests as type-O. Second, the defendant admitted stabbing the deceased; only the circumstances were in doubt. For these reasons, we conclude that it was harmless error to excuse the witness under the "cumulative evidence” exception, and that no evidentiary hearing is necessary. See Pearson, supra, Kaigler, supra.

Finally, defendant claims that the trial judge erred in denying a mistrial based on a witness’s possibly incriminating statement. The 13-year-old witness’s statement was not so inherently prejudicial that reversal is required, particularly since the trial judge directed the jury to disregard the remark. See People v Harry Fleish, 321 Mich 443, 463; 32 NW2d 700 (1948), People v Chambers #1, 64 Mich App 311, 313; 236 NW2d 702 (1975).

In light of the foregoing, we conclude that while defendant may not have had a perfect trial, he did, on balance, have a fair trial.

Affirmed.

         People v Walker (On Rehearing), 374 Mich 331; 132 NW2d 87 (1965).

        Miranda v Arizona, 384 US 436; 86 S Ct 1602; 16 L Ed 2d 694; 10 ALR3d 974 (1965).

       In this case, the Court enunciated the standard as follows:
      "The factors which the judge must weigh in making his determination include: (1) the nature of the prior offense (did it involve an offense which directly bears on credibility, such as perjury?), (2) whether it is for substantially the same conduct for which the defendant is on trial (are the offenses so closely related that the danger that the jury will consider the defendant a "bad man” or infer that because he was previously convicted he likely committed this crime, and therefore create prejudice which outweighs the probative value of the issue of credibility?), and (3) the effect on the decisional process if the accused does not testify out of fear of impeachment by prior convictions (are there alternative means of presenting a defense which would not require the defendant’s testimony, i.e., can his side of the story be presented, or are there alternative, less prejudicial means of impeaching the defendant?).” 83 Mich App 35, 39; 268 NW2d 275 (1978).


text:
    PEOPLE v BYNUM
    Docket Nos. 78-4649, 78-4650.
    Submitted September 4, 1979, at Grand Rapids.
    Decided November 7, 1979.
    Frederick Bynum was convicted, on his pleas of guilty, of breaking and entering an automobile with intent to commit larceny over the value of $5 and of robbery armed and possession of a firearm during the commission of a felony, Recorder’s Court of Detroit, Samuel C. Gardner, J. The defendant appeals from each conviction. The appeals were consolidated for review. Defendant contends that his plea was not made freely, voluntarily and understanding^, that the felony-firearm statute is unconstitutional and that he should not have been convicted as an aider and abettor because he did not have personal possession of a firearm. Held:

    1. The trial judge fully complied with the court rule requirements in accepting defendant’s plea.
    2. The felony-firearm statute does not violate the constitutional proscription against revision of a statute by reference to its title only.
    3. A defendant may be convicted of both armed robbery and of felony-firearm without double jeopardy violation because each statute requires legal proof of a fact which the other does not.
    4. Personal possession of the firearm used in an armed robbery is not necessary for a conviction as an aider and abettor in the commission of the crime.
    Affirmed.
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law §§ 485, 486.
    Validity of guilty pleas—Supreme Court cases. 25 L Ed 2d 1025.
    [2] 73 Am Jur 2d, Statutes §§ 137, 140.
    [3] 21 Am Jur 2d, Criminal Law § 189.
    [4, 7] 79 Am Jur 2d, Weapons and Firearms § 13.
    Statutory presumption of possession of weapon by occupants of place or vehicle where it was found. 87 ALR3d 949.
    [5] 21 Am Jur 2d, Criminal Law § 119.
    [6, 7] 21 Am Jur 2d, Criminal Law §§ 118-123.
    [8] 73 Am Jur 2d, Statutes §§ 274-276.

      T. M. Burns, J., dissents. He would hold that penal statutes should be strictly construed. The felony-firearm statute provides that a person "who carries or has in his possession a firearm at the time he commits or attempts a felony” is guilty of a felony; therefore, an aider and abettor in an armed robbery, who was not armed, may not be convicted of violation of the felony-firearm statute.
    Opinion of the Court
    1. Criminal Law — Pleas of Guilty — Acceptance of Plea — Appeal and Error — Court Rules.
    A guilty plea conviction should not be set aside as improperly taken where the plea acceptance record reflects that the plea was freely, voluntarily and understandingly made and that the trial judge accepted the plea after full compliance with the court rule (GCR 1963, 785.7).
    2. Constitutional Law — Criminal Law — Statutes — Felony-Firearm — Title-Object Clause.
    The felony-firearm statute is an act complete within itself, and as such it does not violate the constitutional proscription against revision of a statute by reference to its title only (Const 1963, art 4, § 25, MCL 750.227b; MSA 28.424[2]).
    3. Criminal Law — Double Jeopardy — Firearms — Armed Robbery — Felony-Firearm — Statutes.
    Convicting a defendant of armed robbery and of carrying or possessing a firearm during the armed robbery does not violate the rule against double punishment; each of the statutes legally requires proof of a fact which the other does not (MCL 750.227b, 750.529; MSA 28.424[2], 28.797).
    4. Criminal Law — Felony-Firearm — Firearms — Personal Possession — Statutes.
    The felony-firearm statute does not require proof of personal possession of a firearm when the firearm is used in the commission of a felony (MCL 750.227b; MSA 28.424[2]).
    5. Criminal Law — Weapons — Felony-Firearm — Common Enterprise — Aiding and Abetting.
    An accused may be convicted as an aider and abettor of a possessory crime such as felony-firearm where it is shown that he knowingly acted or encouraged, with intent to aid, the possessor to obtain or retain possession of or to use the firearm during the course of a felony.

      6. Criminal Law — Weapons — Common Enterprise — Criminal Participation — Inferences — Evidence — Aiding and Abetting.
    Evidence is sufficient to give rise to an inculpatory inference that a defendant knew his companion was armed with a firearm during the commission of a felony where the defendant took a ring and a watch from the complainant while his codefendant held the gun; defendant’s participation in the armed robbery was sufficient encouragement and assistance in the commission of the crime to constitute aiding and abetting.
    Dissent by T. M. Burns, J.
    7. Criminal Law — Statutes — Felony-Firearm — Weapons — Armed Robbery ■— Aiders and Abettors.

      The felony-ñrearm statute requires a defendant to carry or have in his possession a ñrearm at the time he commits or attempts to commit a felony; an aider and abettor in an armed robbery, who was not armed, may not be convicted of violation of the felony-ñrearm statute (MCL 750.227b; MSA 28.424[2]).

    8. Criminal Law — Statutes — Felony-Firearm — Weapons — Aiders and Abettors — Penal Statutes — Strict Construction.

      The unique nature of the felony-ñrearm statute and the distinct social harm that it was intended to prevent requires strict statutory construction; the statute provides that a defendant personally carry or have in his possession a ñrearm in order to be guilty thereunder; judicial expansion, to include aiders and abettors who do not carry or have ñrearms in their possession, goes beyond the scope and plain meaning of the statute and should not be made without clear legislative directive.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Principal Attorney, Appeals, and Brian Marzec, Assistant Prosecuting Attorney, for the people.

      Rosenberg, Hartsook & Spuhler, for defendant.
    Before: Allen, P.J., and R. B. Burns and T. M. Burns, JJ.
   Per Curiam.

On August 29, 1978, defendant pled guilty to breaking and entering an automobile with the intent to commit larceny over the value of $5, contrary to MCL 750.356a; MSA 28.588(1), robbery armed, contrary to MCL 750.529; MSA 28.797, and possession of a firearm during the commission of a felony, contrary to MCL 750.227b; MSA 28.424(2). On September 7, 1978, he was sentenced to concurrent terms of five years imprisonment on the breaking and entering charge and the robbery charge, and to a two-year consecutive sentence on the felony-firearm charge. Four issues are raised on appeal.

First, defendant contends that the trial court erred by failing to comply with GCR 1963, 785.7, because the court failed to ascertain that the plea was made freely, voluntarily and understandingly. We disagree. The record clearly reflects that the trial judge accepted defendant’s guilty plea after full compliance with GCR 1963, 785.7, as applied by our Supreme Court in Guilty Plea Cases, 395 Mich 96; 235 NW2d 132 (1975).

Second, defendant contends that his felony-firearm conviction must be vacated because it is based upon a statute that is unconstitutional on the ground that it improperly amends existing law by implication. Const 1963, art 4, § 25. This Court has consistently rejected such a contention, and we do so here. People v Walter Johnson, 85 Mich App 654, 659-660; 272 NW2d 605 (1978), People v Gary Hughes, 85 Mich App 674, 680-681; 272 NW2d 567 (1978), People v Blount, 87 Mich App 501, 504-505; 275 NW2d 21 (1978), People v Harris, 88 Mich App 280, 282; 276 NW2d 582 (1979), People v Tavolacci, 88 Mich App 470, 472; 276 NW2d 919 (1979), Wayne County Prosecutor v Recorder’s Court Judge, 92 Mich App 119; 284 NW2d 507 (1979).

Third, defendant claims that the felony-firearm statute is unconstitutional because it violates his right against double jeopardy. This claim has been rejected by the Supreme Court in Wayne County Prosecutor v Recorder’s Court Judge, 406 Mich 374; 280 NW2d 793 (1979).

Finally, defendant argues that he may not be convicted as an aider and abettor of felony-firearm, since the requisite element of personal possession of a firearm by the defendant is missing. This Court has considered the issue, and there is a difference of opinion. Compare, People v Walter Johnson, 85 Mich App 654, 658; 272 NW2d 605 (1978), and People v Powell, 90 Mich App 273, 274-75; 282 NW2d 803 (1979), with, People v Walter Johnson, supra, at 672-673 (Kaufman, J., dissenting), People v Tavolacci, 88 Mich App 470; 276 NW2d 919 (1979), People v Powell, supra, at 275-276 (Cynar, J., dissenting). However, careful reading of People v Tavolacci, supra, and the relevant portions of Judge Kaufman’s dissenting opinion in People v Walter Johnson, supra, persuades us that MCL 750.227b; MSA 28.424(2) does not require proof of personal possession of the firearm when used in the commission of a felony. See United States v James, 528 F2d 999, 1015 (CA 5, 1976), reh den, 532 F2d 1054 (1976), People v James Napoleon Taylor (Docket No. 77-1734, decided February 10, 1978 [unreported]), cf. United States v Brant, 448 F Supp 781 (WD Pa, 1978), United States v Giannoni, 472 F2d 136 (CA 9, 1973), cert den, 411 US 935; 93 S Ct 1911; 36 L Ed 2d 396 (1973).

However, in order that an accused may be convicted as an aider and abettor of a possessory crime such as felony-firearm, it must be shown that he knowingly acted or encouraged, with the intent to aid, the possessor to obtain or retain possession of, or to use the firearm during the course of a felony. People v Doemer, 35 Mich App 149; 192 NW2d 330; 47 ALR3d 1236 (1971), and see, People v Pearce, 20 Mich App 289; 174 NW2d 19 (1969), People v Little, 58 Mich App 12; 226 NW2d 735 (1975).

Therefore, the question still remains whether defendant supplied a sufficient factual basis for the felony-firearm plea. GCR 1963, 785.7(3)(a). The record of defendant’s plea indicates that defendant actively participated in the armed robbery by taking a ring and a watch from the complainant while his codefendant held the gun. This evidence is sufficient to give rise to the inculpatory inference that defendant knew his companion was armed with a firearm during the commission of a felony. Defendant’s participation in the armed robbery is sufficient encouragement and assistance in the commission of the crime to constitute "aiding and abetting”.

Affirmed.

T. M. Burns, J.

(dissenting). I dissent and would hold that defendant cannot be convicted of violating the felony-firearm statute as an aider and abettor. The pertinent language of that statute provides that a person "who carries or has in his possession a firearm at the time he commits or attempts a felony” is guilty of a felony. MCL 750.227b(l); MSA 28.424(2)(1). I concur in the opinion of this Court in People v Powell, 90 Mich App 273; 282 NW2d 803 (1979), and People v Walter Johnson, 85 Mich App 654; 272 NW2d 605 (1978), which held that this statute requires that a defendant personally carry or have in his possession a firearm in order to be guilty thereunder. This conclusion comports with and follows from the well-recognized rule of statutory construction that criminal statutes must be strictly construed. People v Hall, 391 Mich 175, 189; 215 NW2d 166 (1974). Given the unique nature of the felony-firearm statute and the distinct social harm that it was intended to prevent, we should not expand its scope beyond the plain meaning of its words without clear legislative directive.


text:
    BUCKLEY’S, INC v TELL-MALL, INC
    Docket No. 78-4966.
    Submitted August 28, 1979, at Detroit.
    Decided November 7, 1979.
    Tell-Mall, Inc., which operated a restaurant, sold the assets of the business to Madi’s Red Barn West, Inc. The bulk transfer provisions of the Michigan Uniform Commercial Code were not complied with in that sale. Approximately seven months later, Buckley’s, Inc., obtained a judgment against Tell-Mall on a previous debt. Buckley’s served a writ of garnishment on Mad-i’s Red Barn West and at a subsequent hearing the 50th District Court found Madi’s Red Bam West to be liable to Buckley’s in the amount of the judgment because the bulk transfer provisions of the Uniform Commercial Code were not complied with. Madi’s Red Barn West appealed to the Oakland Circuit Court, which affirmed, James S. Thorburn, J. Madi’s appeals by leave granted. Held:

    The bulk sales provisions of the Uniform Commercial Code do not apply to the sale of a restaurant; therefore, the assets in the hands of Madi’s Red Barn West are not subject to garnishment for failure to comply with the bulk sales provisions.
    Reversed.
    Sales — Uniform Commercial Code — Sale of Restaurants.
    The sale of p restaurant is not subject to the bulk sales provisions of the Uniform Commercial Code (MCL 440.6102; MSA 19.6102).
    References for Points in Headnotes
    [1] 37 Am Jur 2d, Fraudulent Conveyances § 256.
    Bulk transfers: construction and effect of UCC Article 6, dealing with transfers in bulk. 47 ALR3d 1114.

      Kahn, Kollin & Mandel, for plaintiff.

      Bassey, Selesko, Couzens & Murphy, P.C. (by Joseph Falcone), for Madi’s Red Barn West, Inc.

      Before: J. H. Gillis, P.J., and R. B. Burns and N. J. Kaufman, J j.
   Per Curiam.

By an order of May 31, 1978, Judge Christopher C. Brown of the 50th Judicial District held that assets purchased by garnishee defendant from the principal defendant Were subject to levy and execution to satisfy plaintiffs judgment against the principal defendant. The reason assigned was failure to comply with the bulk transfer provisions of the UCC. The amount of liability Was set at $1,816.86.

On August 28, 1978, the district court Order Was affirmed by Judge James S. Thorburn of the Oakland County Circuit. Garhisheé defendaiit was granted leave to appeal on February 23, 1979.

The parties are in agreement as to the facts here. The only question before us is whether the sale Of a restaurant is subject to the bulk transfer provisions of the Michigan Uniform Commercial Code.

This issue was addressed by the drafter of the code in Official Comment 2 to 6-102 as follows:

"2. The businesses covered are defined in subsection (3). Notice that they do not include farming nor contracting nor professional services, nor such things as cleaning shops, barber shops, pool halls, hotels, restaurants, and the like whose principal business is the sale not of merchandise but of services. While some bulk sales risk exists in the excluded businesses, they have in common the fact that unsecured credit is not commonly extended on the faith of a stock of merchandise.”

In accord with this is the great majority of decisions from other jurisdictions. Levy v Paul, 207 Va 100; 147 SE2d 722; 3 UCC Rep 412 (1966), Nichols v Acers Co, 415 SW2d 683; 4 UCC Rep 591 (Tex Civ App, 1967), Silco Automatic Vending Co, Inc v Howells, 102 NJ Super 243; 245 A2d 765; 5 UCC Rep 625 (Ch Div 1968), affirmed 105 NJ Super 511; 253 A2d 480; 6 UCC Rep 531 (1969), Kane-Miller Corp v Tip Tree Corp, 303 NYS2d 273; 6 UCC Rep 721 (1969), De La Rosa v Tropical Sandwiches, Inc, 298 So 2d 471; 15 UCC Rep 595 (Fla App, 1974), Uarco, Inc v Peoples Bank & Trust Co of St Bernard, 414 F Supp 1219 (ED La, 1976).

Finally, Michigan Packing Co v Messaris, 257 Mich 422; 241 NW 236 (1932), the case relied upon by the plaintiff-appellee and, presumably, by the lower courts, is inapposite. That case construed 1929 bulk sales and bulk mortgage laws which covered "stock of merchandise or merchandise and fixtures”. The sale of the restaurant fixtures in Michigan Packing Co was found to fit the laws which at that time included "fixtures”. However, the UCC, adopted after the Michigan Packing Co case, does not include fixtures, but only "materials, supplies, merchandise, or other inventory * * *”. MCL 440.6102(1); MSA 19.6102(1).

Reversed.