author: N. J. Kaufman, J.

text:
    PEOPLE v CHOATE
    Docket No. 27550.
    Submitted October 10, 1978, at Detroit.
    Decided January 16, 1979.
    Leave to appeal denied, 406 Mich 940.
    Algene Choate was charged with assault with intent to murder and convicted of assault with intent to do great bodily harm less than murder in the Recorder’s Court for the City of Detroit, Michael J. Connor, J. Defendant appeals claiming errors in the jury instructions on self-defense, impeachment of a witness with a charge not resulting in a conviction, examination of a 9-year-old witness regarding religious beliefs, failure to instruct on assault and battery and alleged prosecutorial misconduct. Held:

    1. The trial court’s instructions regarding self-defense were not erroneous when read as a whole and with the evidence presented. The instructions given fit the defendant’s theory of the case.
    2. It was harmless error to question the 9-year-old witness regarding felonious assault charges which had not resulted in a conviction since the witness denied having been convicted, the court repeatedly instructed the jury that evidence came from the statements of witnesses, not the questioning of attorneys, the prosecutor’s questions were the result of a good faith but mistaken belief, the prosecutor did not belabor or pursue the issue any further, defense counsel did not object or seek a curative instruction, and since this one brief reference was insignificant when compared with numerous other references to this witness’s assaultive behavior elicited by defense counsel or as part of the res gestae of the instant offense.
    3. The trial court’s questioning of a 9-year-old witness regard
      ing his belief in God and Sunday school attendance was a proper inquiry into his sense of obligation to tell the truth as required by the statute regarding witnesses under ten years of age.

      References for Points in Headnotes

       5 Am Jur 2d, Appeal and Error §§ 893, 894.

       81 Am Jur 2d, Witnesses § 587.
    Impeachment of witness by evidence or inquiry as to arrest, accusation, or prosecution. 20 ALR2d 1421.

       5 Am Jur 2d, Appeal and Error § 808.
    81 Am Jur 2d, Witnesses § 433.

       81 Am Jur 2d, Witnesses §§ 87-93.

       6 Am Jur 2d, Assault and Battery § 57.
    40 Am Jur 2d, Homicide § 535.

      4. The trial court’s refusal to instruct on assault and battery was not reversible error because of the rule which prohibits an instruction on lesser included offenses for which the maximum allowable incarceration period is one year or less in any case in which the charged offense is punishable by incarceration for more than two years.
    5. The prosecutor’s comments in closing argument in which he debated the wisdom of sending the defendant back into the community were improper but did not deny the defendant a fair trial when the prosecutor’s arguments and conduct are viewed as a whole and because a cautionary instruction was given.
    Affirmed.
    1. Appeal and Error — Jury Instructions.
    Jury instructions must be read as a whole on appeal and not extracted piecemeal from the transcript and assailed as reversible error.
    2. Witnesses — Impeachment — Arrests — Charges — Convictions.
    Arrests and charges not resulting in a conviction may not be used for impeachment purposes.
    3. Witnesses — Criminal Law — Prior Charges — Failure to Convict — Harmless Error.
    A prosecutor’s erroneous questioning of a witness concerning charges which did not result in a conviction was harmless error where the witness denied having been convicted, and the court repeatedly instructed the jury that evidence came from the statements of witnesses, not the questioning of attorneys, the prosecutor’s questions were the result of a good faith but mistaken belief, he did not belabor or pursue the issue, defense counsel did not object or request a curative instruction, and the reference was insignificant when compared to the numerous other references to the witness’s assaultive behavior elicited by defense counsel or as part of the res gestae.
    4. Witnesses — Infants — Belief in God — Obligation to Tell Truth — Statutes.
    A trial court’s questioning of a 9-year-old child regarding his belief in God and Sunday school attendance was not error where such questioning took place as part of an inquiry into his sense of obligation to tell the truth as required by the statute regarding witnesses under ten years of age (MCL 600.2163; MSA 27A.2163).
    5. Criminal Law — Instructions to Jury — Lesser Included Offenses — Assault and Battery — Assault with Intent to Murder — Maximum Incarceration.
    A trial judge’s refusal to give a jury instruction on the lesser included offense of assault and battery in a trial for assault with intent to murder was not reversible error because a jury on retrial could not be instructed any differently than they were at the original trial; case precedent prohibits an instruction on lesser included offenses for which the maximum allowable incarceration period is one year or less in any case in which the charged offense is punishable by incarceration for more than two years.

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

      John A. Lydick, Assistant State Appellate Defender, for defendant on appeal.
    Before: M. F. Cavanagh, P.J., and D. E. Holbrook, Jr., and N. J. Kaufman, JJ.
   N. J. Kaufman, J.

Defendant was charged with assault with intent to murder, in violation of MCL 750.83; MSA 28.278. Following a jury trial held October 15-27, 1975, defendant was convicted of assault with intent to do great bodily harm less than murder, MCL 750.84; MSA 28.279, and was sentenced to a prison term of 3 to 10 years. He appeals as of right.

On appeal, defendant raises several claims of error. These deal with 1) instructions on self-defense, 2) impeachment by a juvenile charge not resulting in conviction, 3) examination of a 9-year-old witness regarding religious beliefs, 4) failure to instruct on assault and battery, and 5) alleged prosecutorial misconduct. We find no reversible error and affirm the conviction.

I

Testimony at trial revealed that on July 1, 1975, defendant and his next-door neighbor, Lionel Beauchamp, got into a fistfight in the street in front of their homes. Some witnesses stated that defendant was the aggressor, while others placed the blame on Beauchamp. Most agreed, however, that after the two men had been fighting for a while, defendant’s 13-year-old son Joey got a shotgun from the Choate residence and fired one or two shots at or near Beauchamp. Beauchamp then ran to his own front porch.

Defendant’s testimony was that Beauchamp then advanced to the fence between the two lots, carrying a semiautomatic shotgun. According to defendant, Beauchamp proceeded to fire through the fence at defendant’s 9-year-old son, Roger. Fearful for Roger’s safety, defendant ran with him into the Choate residence.

Defendant stated that Joey Choate, who was already inside the house, then gave defendant a .30-caliber carbine. From the kitchen window, defendant saw Beauchamp on Beauchamp’s front porch, loading and racking his semiautomatic shotgun.

Defendant testified that he and Roger both almost shot Beauchamp at this point, but defendant managed to restrain himself and to talk Roger out of shooting. Defendant’s testimony continued:

"And at that point Lionel started to train the shotgun on the kitchen window right in front of where me and Roger were — we were by the kitchen window at the kitchen table — and when Lionel started this sweep with the gun towards the kitchen window I whipped up and fired. I was trying to shoot low at his hip but he kind of crouched when he fired and it caused the bullet to hit him a little higher.
"Q [by defense counsel:] Then what happened?
"A He fell down — ”.

II

On appeal defendant contends that the trial court erred reversibly in instructing the jury that defendant had a duty to retreat. The court stated:

"J also instruct you, members of the jury, that the law requires a person to avoid using deadly force if he can safely do so. If the defendant could have safely retreated but did not do so, his failure to retreat is a circumstance which you may consider together with all the other circumstances in determining in faith in repelling the danger then was justiñed in doing [sic]. However, on the other hand if the defendant felt he was in imminent danger of death or serious bodily harm and deadly force was immediately necessary to repelí [sic] such danger, he was not required to retreat or consider whether he could safely retreat. He is entitled to stand his ground under those circumstances and use such form or force as he believes is necessary to protect his person at that moment.”

Defendant emphasizes the italicized portion of the above instruction. He argues that the court should have stated that one attacked in his own dwelling has no duty to retreat. Because of this omission, defendant states, the jury never even got to the tougher issues of who was the aggressor and whether the defendant used excessive force. We disagree with this analysis.

Jury instructions must be read as a whole, not extracted piecemeal from the transcript and assailed as reversible error. When the italicized portion, above, is read with the remainder of the quoted passage, with other instructions on self-defense, and with the evidence in the case, there is no error.

We must not lose sight of the foundation for the rule that one attacked "in his home” has no duty to retreat. It was expressed by Judge Cardozo in People v Tomlins, 213 NY 240, 243-244; 107 NE 496; Ann Cas 1916c, 916 (1914), and quoted in People v Lenkevich, 394 Mich 117, 121-122; 229 NW2d 298 (1975):

"It is not now, and never has been the law that a man assailed in his own dwelling, is bound to retreat. If assailed there, he may stand his ground, and resist the attack. He is under no duty to take to the ñelds and the highways, a fugitive from his own home. * * * The rule is the same whether the attack proceeds from some other occupant or from an intruder. It was so adjudged in Jones v State [1884] (76 Ala 8, 14). 'Why,’ it was there inquired, 'should one retreat from his own house, when assailed by a partner or co-tenant, any more than when assailed by a stranger who is lawfully upon the premises? Whither shall he ñee, and how far, and when may he be permitted to return?’ ” (Emphasis added.)

The above rationale simply does not apply to the facts of this case: defendant in his own kitchen, being aimed at by a person with a shotgun outside defendant’s property. Even if defendant believed he could run faster than a bullet, the best place for him to retreat to was obviously further inside his own home — not "to the fields and the highways” or any place else. When read as a whole, the instructions given fit defendant’s theory of the case, which was that defendant shot Beauchamp because he honestly felt this was necessary to avoid death to himself or his children. In this situation, the court instructed, defendant had no obligation to retreat. We find no error.

Ill

Defendant next asserts that reversible error occurred when the prosecutor questioned 9-year-old Roger Choate about a felonious assault conviction:

"Q [by the prosecutor]: Now let me ask you this. Do you remember on the July 26th, 1975, were you convicted of a felonious assault?
"A About what?
"THE COURT: Well, the question is, were you convicted of felonious assault in the Juvenile Court?
"A I think so. I don’t know.
"MRS. RITTER [defense counsel]: He may not understand.
"THE COURT: Do you know what the term "conviction” is? Were you found guilty of a felonious assault?
"A No.
"THE COURT: You were not found guilty of it?
"A No.
"THE COURT: Were you placed on probation?
"A No.

We agree that the above was error. A 9-year-old child cannot be "convicted” of felonious assault, but can only be found to come within the provisions of the juvenile code. See MCL 712A.18; MSA 27.3178(598.18). While impeachment via a juvenile record is sometimes permitted in the court’s discretion, see People v Hawkins, 58 Mich App 69; 226 NW2d 851 (1975), here there was no juvenile record, but apparently a charge which was later dismissed. Arrests and charges not resulting in conviction may not be used for impeachment. People v Falkner, 389 Mich 682, 695; 209 NW2d 193 (1973).

Despite these observations, we find no prejudice to defendant. In the first place, Roger Choate denied having been convicted, and the court repeatedly instructed the jury that evidence came from the statements of witnesses, not the questioning of attorneys. Secondly, the prosecutor’s questions were apparently the result of a good faith but mistaken belief. The prosecutor did not belabor or pursue the issue any further, and defense counsel did not object or seek a curative instruction. Finally, this one brief reference in defendant’s 8-day trial was insignificant when compared with numerous other references to this witness’s assaultive behavior, elicited by defense counsel or as part of the res gestae of the instant offense. For these reasons, we find the error harmless beyond a reasonable doubt. People v Floyd, 71 Mich App 462, 464; 248 NW2d 586 (1976).

IV

Defendant also claims reversible error in the court’s questioning of Roger Choate regarding his belief in God and Sunday school attendance. We find no error, since the questioning took place as part of an inquiry into Roger’s sense of obligation to tell the truth, required by MCL 600.2163; MSA 27A.2163 for witnesses under ten years of age. People v Booth, 58 Mich App 466; 228 NW2d 425 (1975).

V

Next, defendant alleges error in the trial court’s refusal to instruct on the lesser-included offense of assault and battery. MCL 750.81; MSA 28.276. The evidence would have supported a conviction of this offense. Nevertheless, we will not reverse on this ground, because under the rule announced in People v Chamblis, 395 Mich 408, 429; 236 NW2d 473 (1975), an assault and battery instruction could not be given on retrial. People v Herbert Ross, 73 Mich App 588; 252 NW2d 526 (1977). Cf., People v Bryant, 80 Mich App 428; 264 NW2d 13 (1978), lv den, 402 Mich 942 (1978).

VI

Finally, defendant seeks reversal based on allegedly improper conduct by the prosecutor, the most serious instance being a colloquy in closing argument in which the prosecutor debated the wisdom of sending defendant back into the community. Defense counsel objected several times to this argument, and the court instructed the jurors that they should not decide the case on sympathy or on the basis of what would happen to the defendant.

We agree that the prosecutor’s comments were improper. However, our examination of the prosecutor’s argument and conduct as a whole, and the cautionary instructions given, has convinced us that defendant was not denied a fair trial. People v Wheat, 55 Mich App 559, 565; 223 NW2d 73 (1974).

Having found no reversible error, we affirm defendant’s conviction.

       The remainder of the self-defense instructions included the following:
      "One of the defenses raised in this case is that the defendant acted in lawful self-defense. * * * A person who is threatened with an attack that justifies the exercise of the right of self-defense need not retreat.
      "Before I get to that, let me go back. It is lawful for a person who is being assaulted to defend themselves from attack if, as a reasonable person, he has grounds for believing and does believe that bodily injury is about to be inflicted upon him. In doing so, he may use all force and means which he believes to be reasonably necessary and which appear to a reasonable person in the same or similar circumstances to be necessary to prevent the injury which appears to be imminent.
      "In considering whether or not the defendant acted in self-defense, you should carefully consider all of the evidence in light of the following rule which I shall give you now. First, at the time of the act the defendant must honestly believe that he is in danger of being killed or receiving serious bodily harm. If he so believes he may immediately act and defend himself even to the extent of taking human life, if necessary. * * *
      "Again, members of the jury, I do instruct you that the defendant is not required to prove that he acted in self-defense. The burden never shifts, the Prosecution has to prove it beyond a reasonable doubt and this includes the responsibility of proving that the defendant was not acting in self-defense.”

        Chamblis held:
      "In any case wherein the charged offense is punishable by incarceration for more than two years, the court, whether or not requested, may not instruct on lesser included offenses for which the maximum allowable incarceration period is one year or less.” 395 Mich at 429. Assault and battery is a 90-day misdemeanor; assault with intent to murder is a felony punishable by up to life imprisonment.


source: Caselaw Access Project

author: R. H. Campbell, J.

license: Public Domain

text:
    PEOPLE v HILL
    Docket No. 77-58.
    Submitted June 5, 1978, at Grand Rapids.
    Decided January 16, 1979.
    Allen Hill, Jr., was convicted of armed robbery, Calhoun Circuit Court, Creighton R. Coleman, J. The defendant appeals, arguing 1) that the trial court abused its discretion in denying the defendant’s motion for an adjournment so that the defendant could furnish the prosecutor with the statutorily required notice of alibi prior to ten days before trial and to give defense counsel additional time to prepare adequately for trial, 2) that the trial court erred reversibly by failing to suppress the complaining witnesses’ identifications of the defendant because those identifications were tainted by objectionable pre-trial identification procedures, 3) that the prosecution failed to carry its burden of proving that the identification procedure used at the first identification was fair and not so suggestive as to make irreparable misidentification likely, 4) that the trial court abused its discretion by failing, upon request, to sequester the witnesses at the defendant’s mid-trial hearing on the constitutionality of the pre-trial identification procedures, 5) that the trial court erred in allowing the prosecutor to introduce evidence in rebuttal showing that the defendant was clean shaven two months before the offense occurred, and 6) that reversal is required because the prosecutor interjected irrelevant considerations in cross-examining the defendant and in his closing argument which denied the defendant a fair trial. Held:

      References for Points in Headnotes

       17 Am Jur 2d, Continuance § 3.

       17 Am Jur 2d, Continuance §§ 13, 32.
    Withdrawal or discharge of counsel in civil case as ground for continuance. 48 ALR2d 1155.

       21 Am Jur 2d, Criminal Law § 137.
    29 Am Jur 2d, Evidence §§ 157, 440.
    Validity and construction of statute requiring defendant in criminal case to disclose matter as to alibi defense. 45 ALR3d 958.

       4 Am Jur 2d, Appeal and Error § 84.

       17 Am Jur 2d, Continuance § 32.
    21 Am Jur 2d, Criminal Law § 137.
    29 Am Jur 2d, Evidence §§ 157, 440.
    Validity and construction of statute requiring defendant in criminal case to disclose matter as to alibi defense. 45 ALR3d 958.

       17 Am Jur 2d, Continuance §§ 6, 28.

       63 Am Jur 2d, Prosecuting Attorneys § 27.

       21 Am Jur 2d, Criminal Law §§ 368, 369.
    66 Am Jur 2d, Records and Recording Laws § 10.

       29 Am Jur 2d, Evidence §§ 371, 485, 785.
    Admissibility of evidence as to extrajudicial or pretrial identification of accused. 71 ALR2d 449.
    Admissibility of evidence of showup identification as affected by allegedly suggestive showup procedures. 39 ALR3d 791.
    Admissibility of photographic identification as affected by allegedly suggestive identification procedures. 39 ALR3d 1000.

       21 Am Jur 2d, Criminal Law §§ 368, 369.

       29 Am Jur 2d, Evidence §§ 371, 372.
    Admissibility of evidence as to extrajudicial or pretrial identification of accused. 71 ALR2d 449.

       75 Am Jur 2d, Trial § 61.
    Prejudicial effect of improper failure to exclude from courtroom or to sequester or separate state’s witnesses in criminal case. 32 ALR2d 358.

       29 Am Jur 2d, Evidence §§ 250, 269.

       5 Am Jur 2d, Appeal and Error §§ 624, 625.

      1. The defendant was negligent in asserting his alibi claim and in notifying and discussing this defense with his counsel. Thus the trial court did not abuse its discretion in refusing to grant the continuance, even though the defendant was seeking the continuance in order to assert a constitutional right.
    2. The trial court’s finding that the identification procedure was not impermissibly suggestive was not erroneous. The inability of the prosecutor to produce a written report of a pretrial identification procedure did not deny the defendant due process where a police officer who was present at the identification did produce some of the pictures used and testified in detail as to the procedure employed.
    3. The prosecutor did produce four of the six photographs used in the pre-trial photographic identification procedure. Since the four photographs produced were all of persons of similar features, the inability of a police officer who was present at the procedure to identify positively the other two photographs used does not necessarily mean that the prosecutor failed to prove that the identification procedure was not impermissibly suggestive. The trial court did not err reversibly in finding that the identification procedure used was not so suggestive as to make irreparable misidentification likely.
    4. The trial judge did not err in failing to exclude these identifications held without counsel present at the displays since the defendant was not in custody or readily available at that time.
    5. The defendant has demonstrated no prejudice from the trial court’s failure, upon request, to sequester the witnesses at the mid-trial hearing. Any error in the judge’s ruling was harmless.
    6. It was not improper for the prosecutor to introduce evidence showing that the defendant was clean shaven approximately two months before the offense occurred in rebuttal to evidence introduced by the defendant that he had a beard on the date of the robbery and as early as two months before the offense.
    7. No miscarriage of justice resulted from the prosecutor’s cross-examination of the defendant or from his closing arguments and any prejudice caused by the cross-examination or the arguments could have been eliminated by a cautionary instruction; thus reversal is not required since the defendant raised no objection at trial.
    Affirmed.
    1. Continuance — Discretion op Trial Court.
    The matter of granting or denying a motion for continuance is traditionally entrusted to the discretion of the trial court.
    2. Continuance — Criminal Law — Appeal and Error — Standard of Review — Alibi — Substitution of Counsel — Constitutional Law.
    The same standard established by the Supreme Court for reviewing a denial of a continuance to allow substitution of defense counsel should apply to a defendant’s motion for a continuance based on the need for additional time to file the required alibi notice; this stricter standard should apply because the defendant’s freedom and his constitutional right to have compulsory process for obtaining witnesses in his favor are at stake.
    3. Criminal Law — Alibi — Notice — Failure to Give Notice — Adjournment — Statutes.
    The statutory section which precludes a criminal defendant from offering evidence in support of an alibi defense if the defendant does not file and serve notice of the defense ten days prior to trial is now mandatory; therefore, where a defendant has failed to give timely notice of an alibi defense, an adjournment is the only way that the defendant can avoid the preclusion sanctions i of the statute (MCL 768.21[1]; MSA 28.1044[1J).

      4. Appeal and Error — Criminal Law — Continuance — Discretion of Trial Court — Factors — Statutes.
    Factors to be considered by an appellate court in determining whether a trial court abused its discretion in denying a defendant’s motion for a continuance are: 1) whether the defendant was asserting a constitutional right, 2) whether he had a legitimate reason for asserting the right, 3) whether he was guilty of negligence, and 4) whether prior adjournments of trial were at the defendant’s behest; if it has been determined that the trial court abused its discretion, the defendant must demonstrate prejudice resulting from the abuse of discretion (MCL 769.26; MSA 28.1096).
    5. Constitutional Law — Criminal Law — Alibi Defense — Continuance — Right to Compulsory Process — Witnesses.
    A defendant who is seeking a continuance so that he may timely file and serve notice of an alibi defense is asserting a constitutional right, the right to compulsory process for obtaining witnesses in his favor; a trial court’s denial of the defendant’s motion for the continuance jeopardizes that right.
    6. Continuance — Criminal Law — Alibi — Constitutional Law — Evidence.
    A defendant who is seeking a continuance for the purpose of allowing into evidence the testimony of his alibi witnesses is asserting his right to compulsory process and has a legitimate reason for asserting that right where the admission of the alibi testimony, if believed by the jury, might result in an acquittal.
    7. Continuance -r- Motions — Criminal Law — Alibi — Discretion of Trial Court -— Notice — Assertion of Alibi Defense.
    A trial court did not abuse its discretion in denying a defendant’s motion for a continuance in order properly to file a notice pf alibi where the defendant was negligent in asserting his alibi claim in that, despite a delay of over 21 months between the time of the defendant’s arrest and his trial date, the defendant did not notify his defense counsel of the alibi defense until four days prior to trial.
    8. Continuance — Motions — Criminal Law — Preparation for Trial — Prejudice.
    A trial court’s denial of a defendant’s motion for a continuance to allow defense counsel adequate time to prepare for trial does not warrant reversal of the defendant’s conviction unless defendant can demonstrate some prejudice from the denial.

      9. District and Prosecuting Attorneys — Evidence — Suppression of Evidence — Prosecutor’s Duty — Evidence Favorable to Accused.
    It is the prosecutor’s duty not to suppress material evidence favorable to the accused.
    10. Criminal Law — Identification Procedures — Photographic Identification — Record of Procedure.
    The police should make and keep records on the photographic identification procedures they employ.
    11. District and Prosecuting Attorneys — Identification Procedure — Photographic Identification — Reproduction of Photos — Suggestiveness — Burden of Proof.
    A prosecutor’s inability to reproduce a set of photographs used at a pretrial identification procedure is an important fact in determining whether he carried the burden of proving that the identification procedure was not impermissibly suggestive.
    12. Constitutional Law — Criminal Law — Attorney and Client — Custody — Photographic Showups — Right to Counsel.
    The mere fact that an investigation has focused on a defendant who is not in custody does not give him the right to counsel at a photographic showup.
    13. Witnesses — Criminal Law — Identification — Improper Procedure — Independent Basis.
    An in-court identification of a defendant by an eyewitness who has participated in an improper pretrial identification procedure must be excluded as evidence unless there is a showing by clear and convincing evidence that the identification was made on some basis other than the improper pretrial procedure; the prosecution must prove that the witness can totally eliminate from his recollection all observations at the improper pretrial identification and convince every reasonable mind that he distinctly recalls the defendant from fleeting impressions during the crime.
    14. Witnesses — Criminal Law — Request to Sequester.
    Requests to sequester witnesses should ordinarily be granted.
    15. Criminal Law — Evidence — Rebuttal Evidence.
    Allowing a prosecutor to introduce evidence, on rebuttal, that a defendant was clean shaven two months before the occurrence of the offense for which the defendant was charged was not error where the evidence was introduced to refute evidence introduced by the defendant which indicated that he was growing a beard as early as two months before the offense.
    16. Criminal Law — Cross-Examination — Failure to Object — Curative Instructions — Miscarriage of Justice.
    Reversal of a defendant’s conviction due to alleged improper cross-examination of the defendant by the prosecution is not required, in light of the defendant’s failure to object or request any curative instructions, if a cautionary instruction could have cured any prejudice; reversal is required only if the questioning would have resulted in a miscarriage of justice.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James Norlander, Prosecuting Attorney, and T. P. Hentchel, Assistant Prosecuting Attorney, for the people.

      Rolf E. Berg, Assistant State Appellate Defender, for defendant on appeal.
    Before: Danhof, C. J., and V. J. Brennan and R. H. Campbell, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   R. H. Campbell, J.

On October 7, 1976, defendant was convicted by a jury of armed robbery, MCL 750.529; MSA 28.797. This case arose out of an armed robbery which occurred on December 12, 1974. At approximately 6 p.m. on that date, Anna Hosh and her children, Michael and Renee, had finished cleaning their restaurant and were leaving for the day. They exited through the rear door of the restaurant and as they were preparing to enter their automobile they were confronted by an armed man who demanded money. Michael tossed a box with the day’s proceeds in it to the robber who then told the victims to lie on the ground. After they complied, the robber fled. Defendant was sentenced to a term of 10 to 20 years imprisonment and appeals as of right.

Defendant’s first claim on appeal is that the trial court abused its discretion in denying defendant’s motion for an adjournment which was based on the grounds that defendant needed additional time so that he could furnish the prosecutor with the statutorily required notice of alibi prior to ten days before trial, see MCL 768.20(1); MSA 28.1043(1), and that defendant’s counsel needed additional time to prepare adequately for trial. Defendant’s motion for adjournment was made on September 30, 1976, six days before trial was scheduled. On October 4, 1976, after a hearing, the trial court denied defendant’s motion for an adjournment.

The matter of a continuance is traditionally entrusted to the discretion of the trial court, People v Wilson, 397 Mich 76; 243 NW2d 257 (1976), People v Merritt, 396 Mich 67; 238 NW2d 31 (1976), People v Charles O Williams, 386 Mich 565; 194 NW2d 337 (1972). In People v Merritt, supra, the Supreme Court indicated that the Williams, supra, standard for reviewing a denial of a continuance to allow substitution of defense counsel would apply to a motion for a continuance which was based on the need for additional time to file the required alibi notice. This stricter standard applies because the defendant’s freedom and his constitutional right to have compulsory process for obtaining witnesses in his favor, US Const, Am VI; Const 1963, art 1, § 20, are at stake, see, Merritt, supra, at 82-83. Since the preclusion section of MCL 768.21(1); MSA 28.1044(1), is now mandatory, see Merritt, supra, People v Charles Jackson, 71 Mich App 395; 249 NW2d 132 (1976), an adjournment to allow the defendant time to file a notice of alibi is now the only way the defendant can avoid the severe sanctions mandated by the notice statute.

In Wilsoni supra, at 81, the Supreme Court stated:

"In reversing the trial court, we enumerated four factors we considered important in finding that the trial court had abused its discretion in that case in not granting defendant a continuance: 1) the defendant was asserting a constitutional right; 2) he had a legitimate reason for asserting the right; 3) he was not guilty of negligence; 4) prior adjournments of trial were not at the defendant’s behest. To these four points we add the traditional requirement that defendant on appeal must demonstrate prejudice resulting from the trial court’s abuse of discretion. MCLA 769.26; MSA 28.1096.”

In this case, defendant is asserting a constitutional right: the right to compulsory process for obtaining witnesses in his favor, see Washington v Texas, 388 US 14; 87 S Ct 1920; 18 L Ed 2d 1019 (1967), and the trial court’s denial of defendant’s motion for a continuance jeopardizes that right. The second factor enumerated in Wilson, supra, is whether the defendant had a legitimate reason for asserting his right and seeking a continuance. In this case, defendant is seeking a continuance for the purpose of allowing his alibi witnesses’ testimony into evidence. The admission of this alibi testimony, if believed by the jury, would have resulted in an acquittal. Therefore, the defendant had a legitimate reason for asserting his right.

The more difficult prong of this test to apply in this case is determining whether the defendant was negligent. The crime occurred on December 12, 1974, and defendant was arrested on December 20, 1974. Defendant was represented by counsel throughout the proceedings in 1975 and until July 8, 1976, when his counsel withdrew. Two trial dates had been scheduled during that time but trial had been adjourned until a later date. A third trial date was scheduled for August 24, 1976, but trial was not held as scheduled. On September 7, 1976, new counsel was appointed for the defendant. On September 9, 1976, defendant’s trial was scheduled for October 4, 1976. Defendant’s appointed counsel entered an appearance on September 10, 1976, and met with the defendant on September 14, 1976. Defendant met with his appointed counsel again on September 30, 1976, and this last meeting was allegedly the first time defendant notified his counsel of his alibi defense. Defendant has not given any reasonable explanation for his delay.

Under these facts, we conclude that the defendant was negligent in asserting his alibi claim and in notifying and discussing this defense with his counsel. We are not holding defendant responsible for the delays and the rescheduling of the trial dates but rather, we think that the passage of time from the date of the offense until counsel was notified of this alibi defense is indicative of defendant’s negligence. The trial court did not abuse its discretion in denying defendant’s motion for a continuance in order properly to file a notice of alibi. People v Merritt, supra.

Defendant also argues that the trial court erred in not granting his motion for a continuance to allow his counsel adequate time to prepare for trial. However, this claim does not warrant reversal unless the defendant can demonstrate some prejudice, People v Wilson, supra, at 81. Since defendant has not demonstrated that he suffered any prejudice from the trial court’s denial of his motion for a continuance which was based on the grounds that his counsel needed more time to adequately prepare, we are convinced that any possible error was harmless beyond a reasonable doubt, People v Wilson, supra, People v Eddington, 77 Mich App 177; 258 NW2d 183 (1977).

Defendant further claims on appeal that the trial court erred reversibly by failing to suppress the complaining witnesses’ identification of the defendant because those identifications were tainted by objectionable pre-trial identification procedures. The robbery occurred on December 12, 1974, at approximately 6 p.m. The robbery took place just outside the rear of the restaurant in an area illuminated by a mercury vapor light which was attached to the building next door. The robbery took approximately three to five minutes and the witnesses each acknowledged that they had a good opportunity to observe the robber.

Within an hour after the robbery, the witnesses viewed a set of photographs at the police station. According to the testimony introduced at trial, the witnesses were all taken into one long, narrow room and directed towards one end of the room. Then a set of photographs was displayed on a table in the middle of the room. The victims were instructed to approach the table separately, point at the picture of the robber, if they could recognize him in any of the pictures, and then to proceed to the other end of the room. Each witness, after viewing the photographs, pointed to the defendant’s picture as that of the robber.

On December 13, 1977, another photographic display with six pictures took place. Again, the witnesses selected the picture of the defendant as that of the robber but this time the identifications were made simultaneously in the presence of the other witness. Anna and Michael Hosh also made an unequivocal in-court identification of the defendant which they stated was based on their observations during the robbery.

Defendant claims that the trial court erred in failing to suppress these witnesses’ identifications for four reasons. First, defendant claims that he was denied due process because the prosecutor could not produce any of the officer’s written notes or reports concerning the procedures used at the first identification and could not produce all the photographs used in the identification. In the middle of the trial, Renee testified that within an hour of the robbery, the victims were taken to the police station to view some photographs. This testimony came as a surprise and, pursuant to defendant’s motion, an evidentiary hearing was held to establish what took place at this first identification. The prosecutor could not produce any written reports on the photographic identification procedure used or a list of the photographs used in the display. The detective who was in charge of conducting the photographic display was in the hospital and unavailable for trial. Another officer who was present at the identification testified in detail as to what took place. He produced six photographs which he claimed were in the display. He testified that he was "sure” that four of the photographs were used and was "90% positive” that the other two photographs were used. The officer also testified that one of the reasons he knew which photographs were used in this case was because certain black and white photographs had been removed from his book of mug shots and this was the only case in which he had used black and white photographs for his display. The Hoshes also testified at this hearing and, except for some discrepancies concerning the number of pictures used in the display, their testimony corroborated that of the police officer.

It is the prosecutor’s duty not to suppress material evidence which is favorable to the accused, Brady v Maryland, 373 US 83; 83 S Ct 1194; 10 L Ed 2d 215 (1963), and the police should make and keep records on the photographic identification procedures they employ, see People v Anderson, 42 Mich App 10; 201 NW2d 299 (1972), rev’d on other grounds, 391 Mich 419; 216 NW2d 780 (1974), People v Rowell, 14 Mich App 190, 197, fn 1; 165 NW2d 423 (1968). However, the absence of a record or a written report in this case did not deny defendant due process. The officer present at the identification testified about the procedures used. He produced at least four of the six pictures used and stated that he was almost positive of the other two. His testimony as to which pictures were used was uncontroverted and it appears from the record that he had a sufficient means to substantiate his memory of this identification procedure. From the photographs produced, the trial court found that the identification procedure was not impermissibly suggestive. For the reasons stated, infra, we do not think this finding was erroneous. Also, since the pictures produced were not so dissimilar as to "single out” the defendant, we do not think that the officer’s 10% uncertainty as to whether he was producing the other two photographs used denied defendant due process. If the picture of the defendant was not "singled out” in the display of the four pictures which the officer was positive were used, the defendant would not have been "singled out” by the addition of the other two pictures. Since the officer did produce, at least, some of the pictures used at the identification and testified in detail as to the procedures employed, we are able to conclude from his testimony that the inability of the prosecutor to produce a written report of the identification procedure did not deny defendant due process.

Defendant also claims that the prosecutor failed to carry his burden of proving that the identification procedure used at the first identification was fair and not so suggestive as to make irreparable misidentification likely, see People v Morton., 77 Mich App 240; 258 NW2d 193 (1977), People v Yacks, 49 Mich App 444; 212 NW2d 249 (1973). Defendant claims that the identification procedure was impermissibly suggestive because: (1) all three witnesses were in the same room during the identifications, (2) the photographs shown were of people who had features similar to the defendant’s, (3) the identification was conducted within an hour of the crime, and (4) only six photographs were displayed.

The prosecutor’s inability to reproduce the set of photographs used at the identification is an important factor in determining whether he carried the burden of proving that the identification procedure was not impermissibly suggestive, Anderson, supra, at 16-17. However, in this case, the prosecutor did produce at least four of the six photographs used. It appears from the record that these photographs were all of persons with similar features. Since all the photographs produced were of persons with similiar features, we conclude that the inability of the officer to identify positively the other two photographs used does not necessarily mean that the prosecutor failed to prove that the identification procedure was not impermissibly suggestive.

The other factors mentioned by the defendant did not make this identification procedure so suggestive as to make irreparable misidentification likely. Although all three witnesses were present in the one room, the room was a long, narrow one with the witnesses who had not viewed the photographic display placed at one end of the room. Each witness made his identification separately from the others and proceeded to the far end of the room. Even though only six photographs were displayed, the defendant’s photograph was not "singled out” and we conclude that the trial judge did not err reversibly in finding that the identification procedure used was not impermissibly suggestive.

Defendant also claims that these identifications should be excluded because the second photographic display was impermissibly suggestive and because counsel was not present during this display. After an evidentiary hearing, the trial court denied defendant’s motion to exclude this evidence. The trial court did not err reversibly in finding that the second photographic display was not impermissibly suggestive. All the photographs used in this display were produced. The pictures displayed did not "single out” the defendant. Although the witnesses did make simultaneous identifications of the defendant in the presence of each other at the display, this, by itself, did not make the procedure so suggestive as to make irreprarable misidentification likely.

The trial judge did not err in failing to exclude these identifications even though counsel was not present at the displays. Although defendant may have been the focus of the police investigation after the first photographic display, he was not in custody or readily available. "It is the fact of custody that requires implementation of the Franklin Anderson rule.” People v James Anderson, 391 Mich 419, 422; 216 NW2d 780 (1974), see also, People v Lee, 391 Mich 618; 218 NW2d 655 (1974), People v McNeill, 81 Mich App 368; 265 NW2d 334 (1978), People v Coles, 79 Mich App 255; 261 NW2d 280 (1977), People v Richards, 76 Mich App 695; 256 NW2d 793 (1977), but see People v Kachar, 400 Mich 78, 89; 252 NW2d 807 (1977), People v Cotton, 38 Mich App 763; 197 NW2d 90 (1972).

Even if the Franklin Anderson rule is extended to apply to precustodial identification procedures when the defendant is the focus of the investigation, see Kachar, supra, Cotton, supra, the admission of the in-court identifications of these witnesses does not require reversal because the witnesses each had an independent basis for their in-court identifications of defendant. The test for determining whether a witness has an independent basis for an in-court identification is set out in Kachar, supra. Applying the factors listed in Kachar, supra, to the facts in this case, we conclude that the record establishes an independent basis for the in-court identifications by Anna and Michael. Neither witness had any previous relationship with defendant although defendant may have eaten at their restaurant a few times prior to the robbery. Both witnesses had an opportunity to observe the robber while he was standing about ten feet from them in an area illuminated by a mercury vapor light. This opportunity for observation lasted from three to five minutes. The in-court identifications occurred approximately 22 months after the robbery. Each witness had given a fairly detailed description of the robber. All of the descriptions were consistent with the other descriptions. None of the witnesses had failed to identify defendant as the robber or previously identified someone else as the robber. Although it is likely that the witnesses were excited and apprehensive during their observation of the robber, the record demonstrates that the witnesses had a good opportunity to observe the robber during the crime. It also shows that the witnesses all gave consistent descriptions of the robber which matched defendant’s characteristics and they all consistently identified defendant as the robber. Finally, the determination that the witnesses’ identifications were due to perceptions received at the time of the offense is credible in view of their performance at and the conduct of the photographic displays. The first display was conducted within hours after the robbery. The second occurred the next day. Both of these displays were conducted when the witnesses’ perceptions of the robber were still fresh in their memories. The displays were not so suggestive as to make misidentification likely. A review of the record shows that these witnesses had an independent basis for their in-court identifications and that the admission of their identifications was not reversible error.

Defendant also claims that the trial court abused its discretion by failing, upon request, to sequester the witnesses at defendant’s mid-trial hearing on the constitutionality of the pre-trial identification procedures. Requests to sequester witnesses should ordinarily be granted, People v Martin, 386 Mich 407; 192 NW2d 215 (1971), People v Hall, 48 Mich 482; 12 NW 665 (1882). However, defendant has not demonstrated that any prejudice resulted from the denial of his motion to sequester and this is not a case in which we are prepared to presume prejudice, cf., People v Cutler, 73 Mich App 313; 251 NW2d 303 (1977). After a review of the record, we find that any error in the judge’s ruling was harmless, see People v Erb, 48 Mich App 622; 211 NW2d 51 (1973), People v Insley, 36 Mich App 593; 194 NW2d 20 (1971).

The trial judge did not err in allowing the prosecutor to introduce evidence in rebuttal showing that defendant was clean shaven two months before the offense occurred. The introduction of this rebuttal evidence tended to refute evidence introduced by the defendant which indicated that he was growing a beard as early as two months before the offense. The issue of whether the defendant was clean shaven on the date of the offense was crucial to the witnesses’ identification of the defendant and testimony on this issue was introduced in the prosecutor’s case-in-chief. Evidence that the defendant was clean shaven approximately two months before the offense would have been merely cumulative of the evidence that the defendant was clean shaven on the date of the offense until the defendant introduced evidence that he had a beard on the date of the offense and for approximately two months prior to the robbery. After the defendant introduced evidence that he had a beard on the date of the robbery and as early as October of that year, it was not improper for the prosecutor to introduce evidence in rebuttal showing that the defendant was clean shaven approximtely two months before the offense occurred, see People v Utter, 217 Mich 74; 185 NW 830 (1921).

Finally, defendant claims that reversal is required because the prosecutor interjected irrelevant considerations in cross-examining the defendant and in his closing argument which denied defendant a fair trial. The defendant did not object at trial or request any curative instructions. Therefore, reversal is not required if a cautionary instruction could have cured any prejudice, People v Hall, 396 Mich 650; 242 NW2d 377 (1976). Also, since defendant did not object to the prosecutor’s cross-examination of the defendant, reversal is required only if the questioning would have resulted in a miscarriage of justice, People v Baldwin, 74 Mich App 700; 254 NW2d 619 (1977). After a review of the record and reading the prosecutor’s closing argument as a whole, see People v Cadwell, 78 Mich App 690; 261 NW2d 1 (1977), we conclude that no miscarriage of justice resulted and that any prejudice caused by the prosecutor’s closing arguments could have been eliminated by a cautionary instruction.

Defendant’s conviction is affirmed.

       REnee Hosh also testified at trial. However, she testified that she could not not identify defendant as the robber. Therefore, the admission of her testimony was harmless.


author: Allen, P.J. J. E. Townsend, J.

text:
    SINAI HOSPITAL OF DETROIT v SIVAK
    Docket No. 77-1119.
    Submitted November 7, 1978, at Detroit. —
    Decided January 16, 1979.
    Leave to appeal denied, 406 Mich 958.
    Teola Richmond filed a civil action in Wayne Circuit Court against Sinai Hospital in July 1972 alleging that during the course of a routine hysterectomy the anesthetics were administered so negligently by Dr. Sivak, the anesthesiologist, that she suffered severe injuries. The liability insurance carrier for Sinai Hospital, Insurance Company of North America (INA), settled Miss Richmond’s claim for $450,000 and Miss Richmond signed a release of her claim against Sinai Hospital. Sinai Hospital then demanded indemnity from Dr. Sivak for the sums paid on account of Dr. Sivak’s alleged negligence. When the demand was denied, Sinai Hospital brought an action in April 1976.against Dr. Sivak in Wayne Circuit Court, praying for indemnification or, alternatively, contribution. Dr. Sivak moved for accelerated judgment alleging that the action was not brought in the name of the real party in interest, which the doctor alleged was INA rather than Sinai Hospital. Charles S. Farmer, J., granted the motion for accelerated judgment. Plaintiff, Sinai Hospital, appeals. The question presented is whether an action for contribution or indemnity should be brought in the name of Sinai Hospital or in the name of INA, the hospital’s insurer who made the payment. Held:

    A court rule mandates that all legal actions be brought in the name of the real party in interest unless otherwise provided by statute. The present appeal is governed by the former contribution between joint tortfeasors statute which was in effect prior to 1975 when the statute was amended. This former statute does not change the general rule that an action for contribution must be brought in the name of the real party in interest. INA, the insurance carrier which settled the claim of Teola Richmond on behalf of Sinai Hospital, as subrogee, is the real party in interest and should be the plaintiff in the action for contribution or indemnity from Dr. Sivak.

      References for Points in Headnotes

       59 Am Jur 2d, Parties § 24.

       44 Am Jur 2d, Insurance § 1851.
    59 Am Jur 2d, Parties §§ 41, 42.
    Proper party plaintiff, under real party in interest statute, to action against tortfeasor for damages to insured property when loss is entirely covered by insurance. 13 ALR3d 229.

       18 Am Jur 2d, Contribution § 43.

       18 Am Jur 2d, Contribution § 8.

       18 Am Jur 2d, Contribution §§ 7, 9, 46, 50.

       18 Am Jur 2d, Contribution § 103.

       18 Am Jur 2d, Contribution § 53.

      Affirmed.
    J. E. Townsend, J., concurs in the result reached by the majority. He would hold that the former contribution between joint tortfeasors statute required a joint or Several judgment as a basis for suit in the name of the insured rather than the real party in interest, but, because Dr. Sivak was not joined in the 1972 action by Teola Richmond against Sinai Hospital there was no such judgment.
    Opinion of the Court
    1. Parties — Real Party in Interest — Legal Actions — Court Rules.
    A court rule mandates that all legal actions be brought in the name of the real party in interest unless otherwise provided by statute (GCR 1963, 201.2).
    2. Parties — Real Party in Interest — Subrogees — Insureds — Legal Actions.
    Generally, a subrogee is recognized as the real party in interest and an insured who no longer has any interest in a recovery cannot sue as the subrogee.
    3. Torts — Parties — Legal Actions — Contributions Between Tortfeasors — Statutes.
    The Revised Judicature Act governing suits for contribution between tortfeasors, as amended, applies only to torts committed on or after January 1, 1975 (MCL 600.2925[a][6]; MSA 27A.2925[1][6]).
    4. Action — Contribution — Joint Tortfeasors — Severally-Liable Tortfeasors.
    A finding of joint tortfeasors is not necessary in an action for contribution between tortfeasors because severally-liable tortfeasors are also entitled to contribution.
    5. Action — Contribution — Tortfeasors — Common Liability — Limitation of Actions.
    The common liability which must be established to support a cause of action for contribution between tortfeasors is determined as of the time the injured party’s cause of action accrues and not as of the date when the right to recover contribution is asserted.
    6. Action — Contribution — Tortfeasors — Complaint — Theories of Recovery — Indemnity.
    A claim that the statute on contribution between tortfeasors only covers actions for contribution and not for indemnity need not be addressed where a complaint was clearly brought on theories of both contribution and indemnity.
    7. Contribution — Joint Tortfeasors — Right to Recover — Judgments — Joint or Several Liability.
    The former statute on contribution between joint tortfeasors required that the payment by a tortfeasor, in order to give rise to a right to recover contribution from a cotortfeasor, must be made by the tortfeasor upon a judgment in favor of the injured party against' the tortfeasor and the cotortfeasor from whom contribution is sought; the tortfeasor and cotortfeasor had to be jointly or severally liable upon a judgment for the same wrong.
    8. Contribution — Joint Tortfeasors — Legal Actions — Settlements — Judgments — Subrogation Agreements — Real Party in Interest — Statutes.
    The former statute on contribution between joint tortfeasors did not change the rule that an action for contribution must be brought in the name of the real party in interest; where a claim was terminated by a settlement with a subrogation agreement rather than by a judgment the subrogee became the real party in interest and a proper plaintiff in an action for contribution (MCL 2925[3]; MSA 27A.2925[3]).
    Concurrence by J. E. Townsend, J.
    9. Contribution — Joint Tortfeasors — Legal Actions — Joint or Several Judgment — Discharge of Liability — Real Party in Interest — Statutes — Court Rule.
    The former statute on contribution between joint tortfeasors applied to actions to recover for payment of a joint or several judgment for some private wrong (MCL 600.2925[3]; MSA 27A.2925[3], GCR 1963, 201.2).

      Sommers, Schwartz, Silver, Schwartz & Tyler, P.C., for plaintiff.

      Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by J. P. O’Leary and Christine D. 01-dani), for defendant.
    Before: Allen, P.J.; and J. H. Gillis and J. E. Townsend, JJ.

       Circuit judge, sitting on the Court of Appeals by assignment.

   Allen, P.J.

In this appeal we are asked to determine whether an action for contribution or indemnity should be brought in the name of Sinai Hospital or in the name of Insurance Company of North America (INA), the hospital’s insurer who paid the sums for which contribution or indemnity is sought in the instant action. Obviously, the defendant’s opportunity for a successful defense is greater if suit is required in the name of the corporate insurer rather than in the name of a charitable institution. In December, 1976, the trial court granted defendant’s motion for accelerated judgment on grounds that suit should be brought in the name of INA, the real party in interest. Plaintiff appeals of right. We affirm.

In a civil action filed in July, 1972, in the Wayne County Circuit Court entitled Teola Richmond v Sinai Hospital of Detroit, Miss Richmond claimed that during the course of a routine hysterectomy the anesthetics were administered so negligently that she suffered severe injuries. Dr. Sivak was identified as the anesthesiologist in charge of Miss Richmond’s operation. In February, 1976, settlement between the parties was reached for $450,000, paid by the Insurance Company of North America, the liability insurer of Sinai Hospital. Miss Richmond signed a release of her claim against Sinai Hospital.

In April, 1976, Sinai Hospital demanded indemnity from Dr. Sivak for the sums paid on account of Dr. Sivak’s alleged negligence. When the demand was denied, Sinai Hospital filed the present complaint against Dr. Sivak alleging, inter alia, that the injuries suffered by Miss Richmond:

"were caused entirely by the acts or omissions of defendant herein or, alternatively to the above, said acts and omissions contributed to the ultimate injuries and sequelae.”

Plaintiff prayed for indemnification or, alternatively, contribution. Dr. Sivak then filed a motion for accelerated judgment alleging that the action was not brought in the name of the real party in interest which the doctor alleged was IN A rather than Sinai Hospital. On December 13, 1976, the trial court granted defendant’s motion stating that the "amended” contribution statute, MCL 600.2925(3); MSA 27A.2925(3), did not apply since the amendatory statute provided that it "shall apply only to torts committed on or after January 1, 1975”. Plaintiff’s motion for rehearing was denied by order entered March 14, 1977.

GCR 1963, 201.2 mandates all legal actions be brought in the name of the real party in interest unless otherwise provided by statute. In the instant action the real party in interest is INA which paid Miss Richmond’s claim and in return received a subrogation agreement. The subrogee is generally recognized as the real party in interest. Generally, an insured, who no longer has any interest in the recovery, cannot sue. See Waters v Schultz, 233 Mich 143; 206 NW 548 (1925). See also Anno: Proper party plaintiff, under real party in interest statute, to action against tortfeasor for damage to insured property where loss is entirely covered by insurance, 13 ALR3d 229, 234 et seq., 59 Am Jur 2d, Parties, § 41, p 400.

However, in the present case GCR 1963, 201.2 does not stand alone. It is modified by § 2925 of the Revised Judicature Act governing suits for contribution between joint tortfeasors. When the present action was filed by Sinai Hospital against Dr. Sivak in July, 1976, that statute read as it was amended by 1974 FA 318 noted below. That act provided that it applied "only to torts committed on or after January 1, 1975”. Since the tort in the case before us occurred prior to 1972, we look to § 2925 as it was worded prior to its amendment by 1974 PA 318. Between January 1, 1963, and its amendment by 1974 PA 318, the statute read:

"An insurer of a person jointly or severally liable with 1 or more other persons upon a judgment for the same private wrong, which insurer has on behalf of its insured, discharged the common liability by payment, or has paid more than its insured’s pro rata share thereof, shall be entitled to assert either in its own name or in the name of its insured any right to contribution which such insured would have acquired by such payment.” (Emphasis supplied.)

Defendant argues that MCL 600.2925(3); MSA 27A.2925(3), is inapplicable to the instant case for three reasons. First, the Richmond complaint named only Sinai Hospital and claimed no joint and/or several liability of DR. Sivak, and consequently in that action there was no finding that the hospital and the doctor were joint tortfeasors. Second, the statute speaks only to actions for contribution and not for indemnity, and the present action is primarily for indemnity. Third, since there was a settlement there was no judgment and the statute requires a judgment. The first and second reasons, if valid, are applicable to both MCL 600.2925a(6); MSA 27A.2925(1)(6) and its predecessor, MCL 600.2925(3); MSA 27A.2925(3). The third reason, if valid, is applicable only to the predecessor statute.

We quickly reject reasons one and two. A finding of joint tortfeasors is not necessary. Severally-liable tortfeasors are also entitled to contribution. Moyses v Spartan Asphalt Paving Co, 383 Mich 314; 174 NW2d 797 (1970). Furthermore, the common liability which must be established to support a cause of action for contribution is determined as of the time the injured party’s cause of action accrues and not as of the date when the right to recover contribution is asserted. 18 Am Jur 2d, Contribution, § 52, p 76. The claim that the statute only covers actions for contribution and not for indemnity need not be addressed since the hospital’s complaint was clearly brought on theories of both contribution and indemnity. Thus, determination of whether Dr. Sivak was the sole cause or only the partial cause of Miss Richmond’s injuries is for ultimate resolution by the trial court.

We find the third reason advanced for the inapplicability of § 2925(3) determinative. The most significant difference between MCL 600.2925(3); MSA 27A.2925(3) and its successor MCL 600.2925a(6); MSA 27A.2925(1)(6) is the deletion of the words "upon a judgment” in the latter statute. Clearly, the statute in effect at the time the alleged tort was committed required that the insured be jointly or severally liable upon a judgment for the same wrong. We cannot ignore the explicit mandate of the statute.

"Of course, if a statute granting the right to recover contribution against a joint tortfeasor lays down certain conditions qualifying that right, such conditions must be met by the contribution claimant. Thus, under the statutes in some jurisdictions, the payment by a tortfeasor, in order to give rise to a right to recover contribution from a cotortfeasor, must be made by the claimant upon a judgment, or in some jurisdictions, a joint judgment, in favor of the injured party against the claimant and the joint tortfeasor from whom contribution is sought.” (Footnotes omitted) (Emphasis supplied.) 18 Am Jur 2d, Contribution, § 53, pp 79-80.

Because payment in the instant case was not based upon a judgment, § 2925(3) does not constitute an exception to the rule that suit be brought in the name of the real party in interest. Since INA is the real party in interest, the trial court did not err when it granted defendant’s motion for accelerated judgment. Our consideration in this matter makes it unnecessary to discuss defendant’s request to dismiss the instant appeal as vexatious or moot.

Affirmed, costs to defendant.

J. H. Gillis, J., concurred.

J. E. Townsend, J.

(concurring in result). I concur in the result reached by Judge Allen based upon the following reasoning:

Because 1974 PA 318 applies only to "torts committed on or after January 1, 1975”, GCR 201.2 requires that suit be brought in the name of the real party in interest which, in this case, is Insurance Company of North America, unless plaintiff’s action seeks to recover for payment of a joint or several judgment. Such exception is recognized by the language contained in MCL 600.2925(3); MSA 27A.2925(3), in effect prior to January 1, 1975.

Since Dr. Sivak was not a party joined in the prior action against Sinai Hospital, there could not have been and there was no joint or several judgment or order of dismissal with prejudice as to Dr. Sivak, and Insurance Company of North America’s payment was not a "discharge of the common liability” under a joint or several judgment.

The facts do not meet the applicable statutory condition precedent to permit suit in the name of the insured. Therefore, Insurance Company of North America must sue in its own name in accordance with the provisions of GCR 1963, 201.2.

       “A liability insurer, who by payment has discharged in full or in part the liability of a tort-feasor and has thereby discharged in full its obligation as insurer, is subrogated to the tort-feasor’s right of contribution to the extent of the amount it has paid in excess of the tortfeasor’s pro rata share of the common liability. It may assert this right either in its own name or in the name of its insured. This provision does not limit or impair any right of subrogation arising from any other relationship.” MCL 600.2925a(6); MSA 27A.2925(1)(6).

       In a suit for indemnity, recovery is sought for the entire amount paid, while in contribution, recovery is sought for only a portion of the entire sum paid. It is sometimes said that from an equitable viewpoint "indemnity is only an enlargement of the remedy of contribution” and that the two differ not at all as to the liability but only to the measure of it. 18 Am Jur 2d, Contribution, § 2, pp 7-8.


author: R. B. Burns, P.J.

text:
    SULLIVAN v THE THOMAS ORGANIZATION, P.C.
    Docket No. 77-2707.
    Submitted December 12, 1978, at Lansing.
    Decided January 16, 1979.
    The Thomas Organization, P.C., an architectural firm, and Michael Thomas and Jack Rosenzweig recorded a mechanic’s lien against a parcel of land owned by Thomas A. Sullivan and Noel A. Gage in connection with the rendering of plans for a building which was to have been built on the land. Thomas and Rosenzweig had contracted to buy the land subject to approval by the City of Birmingham of the architectural plans within a certain time. The plans were neither approved nor disapproved, and a dispute arose over the terms of the contract of sale. Ultimately, Thomas and Rosenzweig sued Sullivan and Gage for the return of their earnest money deposit, and recorded the lien against the property. Sullivan and Gage then brought an action against Thomas, Rosenzweig, and The Thomas Organization for disparagement of title, alleging that the filing of the lien was malicious and rendered their title unmarketable. The Oakland Circuit Court, Richard D. Kuhn, J., consolidated the earnest money action with the disparagement of title action, and granted the defendants’ motion for summary judgment in the disparagement of title action. Plaintiffs Sullivan and Gage appeal. Held:

    1. A claim for disparagement of title must include allegations of malice, publication of false matter disparaging the plaintiffs’ title, and special damages. Because the plaintiffs alleged that the defendants breached the sales contract, it may be inferred that the defendants’ interest in the property was thereby extinguished, and therefore that the lien was invalid because there was no interest upon which it could attach; therefore, the ■plaintiffs did allege falsehood on the part of the defendants. Plaintiffs’ request for removal of the cloud on their title and for costs and attorney fees is a sufficient allegation of special damages. Malice may be inferred from the circumstantial evidence of the defendants’ inconsistent positions.

      References for Points in Headnotes

       73 Am Jur 2d, Summary Judgment § 15.

       50 Am Jur 2d, Libel and Slander §§ 539, 542.

       53 Am Jur 2d, Mechanics’ Liens §§ 124,125.

       5 Am Jur 2d, Architects § 21.

       65 Am Jur 2d, Quieting Title §§ 9, 93.

       50 Am Jur 2d, Libel and Slander §§ 406, 415, 539, 542.

       1 Am Jur 2d, Actions § 158.

      2. Consolidation was improper, because the overlap in proofs in the two actions would be only incidental, not substantial and controlling, and because possible jury confusion over the issue of malice could prejudice the plaintiff.
    Reversed and remanded.
    1. Motions — Summary Judgment — Failure to State Claim — Court Rules.
    A motion for summary judgment based upon the opposing party’s failure to state a claim upon which relief may be granted is to be tested by the pleadings alone, taking as true the factual allegations of the complaint and any inferences or conclusions which may fairly be drawn from the facts alleged; the motion should be denied unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover (GCR 1963, 117.2[1]).
    2. Property — Real Property — Disparagement of Title — Pleading.
    A plaintiff must allege that the defendant maliciously published false matter disparaging the plaintiff’s title, causing the plaintiff special damages, in order to state a claim upon which relief may be granted for disparagement of title.
    3. Mechanics’ Liens — Vendee’s Interest — Statutes.
    A person contracting with a proposed purchaser of real estate may acquire a mechanic’s lien in the interest held by the proposed purchaser (MCL 570.29; MSA 26.309).
    4. Mechanics’ Liens — Architects — Contract with Vendee — Interest in Property.
    An architect may not acquire a mechanic’s lien for the drawing of plans which are not followed by construction, where the architect contracted with the vendee of a real estate contract who subsequently repudiated the real estate contract, because where the vendee defaults on the contract his interest in the property, and the architect’s right to a lien on that interest, are extinguished.
    5. Property — Real Property — Mechanics’ Liens — Disparagement of Title — False Matter — Invalid Lien.
    A plaintiff has pled the publication of false matter, in an action for disparagement of title, by alleging that the defendant recorded an invalid mechanic’s lien against real estate owned by the plaintiff.
    6. Action — Property —• Real Property — Disparagement of Title — Special Damages.
    A plaintiff’s request for removal of a cloud on his title, as well as costs and attorney’s fees, is a sufficient allegation of special damages in an action for disparagement of title.
    7. Mechanics’ Liens — Disparagement of Title — Malice — Invalid Lien.
    Malice may not be inferred simply from the filing of an invalid mechanic’s lien, but it may be inferred from the circumstantial evidence where the party who recorded the mechanic’s lien denied having an interest in the real estate but caused the lien to be placed upon an alleged interest.
    8. Trial — Consolidation of Actions — Common Questions — Court Rules.
    The test of whether actions should be consolidated is whether the actions involve a substantial and controlling common question of law- or fact; consolidation is improper where the overlap of proofs in two actions is incidental rather than substantial and controlling and where consolidation may prejudice a party because of possible jury confusion (GCR 1963, 505.1).

      Bushnell, Gage & Reizen (by William A. Roy), for plaintiffs.

      Bayer, Gornbein & Kaplan, P.C., for defendants.
    Before: R. B. Burns, P.J., and J. H. Gillis and V. J. Brennan, JJ.
   R. B. Burns, P.J.

In this disparagement of title action, defendants moved for summary judgment under GCR 1963, 117.2(1) and GCR 1963, 117.2(3). The trial court entered an order granting summary judgment for the reasons set forth in defendants’ brief, without indicating under which subrule it was granting the motion. Defendants’ brief confused the analysis under the two subrules by relying upon deposition testimony in arguing that plaintiffs had failed to state a cause of action. See, e.g., Crowther v Ross Chemical & Manufacturing Co, 42 Mich App 426; 202 NW2d 577 (1972). It therefore appears that the trial court erred by using an incorrect analysis in deciding the motion. We have undertaken an independent review under each subrule, see Partrich v Muscat, 84 Mich App 724; 270 NW2d 506 (1978), and, having determined summary judgment was not proper under either subrule, find the error was not harmless, and reverse. Additionally, we find the trial court , improperly consolidated for trial the instant case with another case.

In the consolidated case, Oakland County Circuit Court case 75-128-782-CZ, defendants Thomas and Rosenzweig sued plaintiffs for the return of an earnest money deposit on realty which Thomas and Rosenzweig were to buy from plaintiffs, contingent upon approval by the City of Birmingham of architectural plans submitted by Thomas and Rosenzweig. That case concerns a dispute as to the interpretation of a contract which provided the deposit would be returned if the city declined issuance of the permits within a certain time, where the city neither issued nor declined to issue the permits, but instead requested further information.

The thrust of plaintiffs’ complaint in the instant case is that defendants maliciously retaliated against plaintiffs for their failure to return the deposit by knowingly filing an invalid mechanic’s lien against the property, with the intent and effect of rendering plaintiffs’ title unmarketable. Plaintiffs’ allegations are more fully set forth in the footnote.

"The standard governing this Court’s review of a grant or denial of a motion for summary judgment based on GCR 1963, 117.2(1) is well settled. The motion is to be tested by the pleadings alone. Todd v Biglow, 51 Mich App 346; 214 NW2d 733 (1974), lv den, 391 Mich 816 (1974). The motion tests the legal basis of the complaint, not whether it can be factually supported. Borman’s, Inc v Lake State Development Co, 60 Mich App 175; 230 NW2d 363 (1975). The factual allegations of the complaint are taken as true, along with any inferences or conclusions which may fairly be drawn from the facts alleged. Unless the claim is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recover, the motion under this subrule should be denied. Crowther v Ross Chemical & Manufacturing Co, [supra].” Partrich v Muscat, supra, at 729-730; 270 NW2d at 509.

In order to state a claim upon which relief may be granted for disparagement of title, plaintiffs must have alleged that defendants maliciously published false matter disparaging plaintiffs’ title, causing plaintiffs special damages. See Glieberman v Fine, 248 Mich 8; 226 NW 669 (1929), Harrison v Howe, 109 Mich 476; 67 NW 527 (1896), Chesebro v Powers, 78 Mich 472; 44 NW 290 (1889), Haney Manufacturing Co v Perkins, 78 Mich 1; 43 NW 1073 (1889), Gehrke v Janowitz, 55 Mich App 643; 223 NW2d 107 (1974), Prosser, Torts (4th ed), § 128, pp 919-920, 50 Am Jur 2d, Libel and Slander, § 541, p 1060.

Defendants initially argue that plaintiffs have failed to allege falsehood, because plaintiffs have not alleged that anything contained in the Statement of Account and Lien was inaccurate. However, the filing of an invalid lien may be a falsehood, even if the matter contained in the lien is correct. Cf. Glieberman v Fine, supra.

Defendants also argue that the lien is valid, because, contrary to the allegation in paragraph seven of plaintiffs’ complaint, the mechanic’s lien act does allow persons contracting with proposed purchasers to acquire a lien.

MCL 570.1; MSA 26.281 provides in relevant part that:

"Every person who shall, in pursuance of any contract * * * existing between himself as contractor, and the owner, part owner or lessee of any interest in real estate * * * prepare and furnish pursuant to such contract to such owner, part owner or lessee * * * any * * * design * * * plan * * * for the improvement of any lot or parcel of land not exceeding one-quarter section of land * * * shall have a lien therefor upon such [improvement] * * * , and also upon the entire interest of such owner, part owner or lessee in and to the lot or piece of land * * * to the extent of the right, title and interest of such owner, part owner or lessee at the time work was commenced * * * .”

As defendants correctly observe,

"the words 'owner, part owner or lessee’ shall be construed to include all the interest, either legal or equitable, which such person may have in the real estate upon which the improvements contemplated by this act are made, including the interest held by any person under contracts of purchase, whether in writing or otherwise.” MCL 570.29; MSA 26.309.

Thus, the legal theory of invalidity which plaintiffs have pled in their complaint is incorrect. However, it does not necessarily follow, as defendants suggest, that plaintiffs have failed to allege falsehood.

A complaint is supposed to set forth the facts upon which the pleader relies in stating his cause of action. GCR 1963, 111.1(1). We view plaintiffs’ statement of law in paragraph seven as extraneous, and therefore ignore it in evaluating the facts alleged in the remainder of the complaint. Binder v Consumers Power Co, 77 Mich App 343, 346-347; 258 NW2d 221, 223-224 (1977). From those facts, we may infer that the lien was invalid.

We infer from the facts alleged in plaintiffs’ complaint that the architectural plans were not implemented. It is unclear whether an architect may ever acquire a mechanics’ lien under MCL 570.1; MSA 26.281 for the drawing of plans, where no construction follows. See Anno: Architect’s Services as Within Mechanic’s Lien Statute, 28 ALR3d 1014, § 10, pp 1042-1043. The Supreme Court has assumed that an architect may not. Chesnow v Gorelick, 246 Mich 571; 225 NW 4 (1929). However, it is clear that an architect may not acquire such a lien for plans not implemented, where he contracted with the vendee of a real estate contract who subsequently repudiated the contract.

MCL 570.1; MSA 26.281 contemplates that the lien will attach to the improvement, or to the "entire interest of [the] owner, part owner or lessee”. Where the plans are not implemented, there is no improvement upon which the lien may attach. The "entire interest of [the] owner, part owner or lessee” may include an equitable interest, MCL 570.29; MSA 26.309, but where the vendee defaults on the contract, the vendee’s interest, and the architect’s right to a lien on that interest, are extinguished. Eastern Construction Co v Cole, 52 Mich App 346, 351-352; 217 NW2d 108, 110-111 (1974). The architect’s only remedy is a limited right of subrogation. MCL 570.3; MSA 26.283. Since plaintiffs allege that defendants Thomas and Rosenzweig anticipatorily breached the contract, we may infer defendants’ interest was extinguished. Since there was no interest or improvement upon which the lien might have attached, we infer the lien was invalid. Plaintiffs have pled falsehood.

Defendants also assert that plaintiffs have failed to allege "special” damages, because mere unmarketability of title without the actual loss of a sale is not a compensable injury. See 50 Am Jur 2d, Libel and Slander, § 546, pp 1065-1066, Prosser, Torts (4th ed), § 128, p 920. However, in Chesebro v Powers, supra, the Supreme Court held that reasonable expenses incurred by the plaintiff in removing the cloud from his title were recoverable as damages in a disparagement of title action. Plaintiffs in this case request as relief that the cloud on their title be removed, as well as costs and attorney fees. This is a sufficient allegation of "special” damages.

"A motion for summary judgment which is based on GCR 1963, 117.2(3) is designed to test whether there is factual support for a claim. Crowther v Ross Chemical & Manufacturing, supra.
"When passing upon a motion under this subrule, the court must consider the pleadings, affidavits, depositions, admissions and other documentary evidence then available to it. Rizzo v Kretschmer, 389 Mich 363; 207 NW2d 316 (1973). Before the judgment may properly be granted the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Rizzo v Kretschmer, supra. The motion has the limited function of determining whether material issues of fact exist. The trial court must carefully avoid making findings of fact under the guise of determining that no issues of material fact exist.” Partrich v Muscat, supra at 730-731; 270 NW2d at 510.

Defendants argue that there is no evidence of express malice. Malice may not be inferred simply from the filing of an invalid lien; plaintiffs must show that defendants knowingly filed an invalid lien with the intent to cause plaintiffs injury. Glieberman v Fine, supra, Harrison v Howe, supra. There is circumstantial evidence from which a jury could find express malice. Thomas and Rosenzweig appear to have adopted an inconsistent position in causing the lien to be filed by The Thomas Organization, Inc. On the one hand, they denied the existence of a contract for sale, and hence denied that they had an interest in the. property. On the other hand, they caused a lien to be filed upon the interest which they denied having. Ill will may be inferred from the circumstance of plaintiffs’ retention of the deposit.

Plaintiffs argue that the trial court improperly consolidated for trial the instant action with the action involving plaintiffs’ retention of the earnest money deposit. The trial court granted defendants’ motion to consolidate because the cases arose out of the same set of facts. The correct test is whether the actions involve "a substantial and controlling common question of law or fact”. GCR 1963, 505.1. The overlap of proofs in the two actions would be incidental, not substantial and controlling. Additionally, consolidation could prejudice plaintiffs’ action in the instant case due to possible jury confusion concerning the malice element, should defendants herein prevail in the other action by demonstrating plaintiffs wrongfully retained the deposit.

We do not reach the remaining issue presented by plaintiffs, concerning discovery, because it appears that there was pending before the trial court a motion for rehearing on its order on this issue at the time summary judgment was granted.

Reversed and remanded. Costs to plaintiff.

       "NOW COME Plaintiffs, by and through their attorneys, GAGE & REIZEN, and for their cause of action against Defendants herein state as follows:
      "1. Plaintiffs are residents of the County of Oakland, State of Michigan.
      "2. That Defendant, THE THOMAS ORGANIZATION, P.C., is a Professional Corporation organized for the purpose of providing architectural services.

        "3. That the individual Defendants, MICHAEL THOMAS and JACK ROSENZWEIG, are residents of the County of Oakland and State of Michigan.
      "4. That on September 2, 1975, the Defendants caused to be recorded a Statement of Account and Lien in the Oakland County Register of Deeds, seeking to obtain lien rights on property owned by your Plaintiffs, the legal description of which is attached to this Complaint as Exhibit A and incorporated by reference herein. (A copy of Statement of Account and Lien is attached hereto as Exhibit B and incorporated by reference herein.)
      "5. That the Statement of Lien, on its face, states that Defendant, THE THOMAS ORGANIZATION, P.C., contracted with the individual Defendants, who purported to be proposed purchasers of the land in question, to provide architectural services in connection therewith.
      "6. That Defendant, THE THOMAS ORGANIZATION, P.C., is merely the alter ego of individual Defendants, MICHAEL THOMAS and JACK ROSENZWEIG, and any contract entered into between said individual Defendants and Defendant, THE THOMAS ORGANIZATION, P.C., is void and a nullity as to your Plaintiffs, and further constitutes an abuse of the privilege of doing business as a corporation pursuant to the Michigan Statutes.
      "7. That the Statement of Account and Lien, on its face, is invalid for the reason that MCLA 570.1 affords no lien rights for persons contracting with "proposed purchasers” of real property in question.
      "8. That the filing of the Statement of Account and Lien, as aforesaid, constitutes a fraudulent and malicious attempt on the part of the Defendants herein to slander the title of your Plaintiffs’ real property for the following reasons:
      "A. That the Defendants did, in fact, contract with Plaintiffs to purchase the subject property on June 4, 1975, (a copy of the Agreement of Purchase is attached hereto as Exhibit C and incorporated by reference herein.)
      "B. That the Contract for Sale, as aforesaid, provided that said sale would be null and void if the City of Birmingham refused to issue occupancy permits within fifteen days.
      "C. That although the City of Birmingham did not refuse to issue such occupancy permits, the Defendants, on June 19, 1975, anticipatorilly [sic] breached said contract of sale and demanded return of their deposit.
      "D. That Plaintiff retained said deposit as liquidated damages pursuant to the contract.
      "E. That Defendants knew or should have known that the attempt to file such a Mechanic’s Lien was a nullity, but that it would have the effect of rendering your Plaintiffs’ title to the lands in question unmarketable.
      "F. That the filing of said Statement of Account and Lien, as aforesaid, was a willful and malicious attempt on the part of the Defendant to retalliate [sic] for the actions of your Plaintiff in declaring a forfeiture of their earnest money deposit.
      "9. That due to your Defendants’ wrongful actions, the title to your Plaintiffs’ real property has been rendered unmarketable, to their great damage and detriment.

        "WHEREFORE, your Plaintiffs pray for the following relief:
      "A. An Order directing Defendants to immediately execute and record a discharge of the above mentioned Statement of Account and Lien, or in the alternative, an Order of this Court discharging said Statement of Account and Lien from the County records.
      "B. Damages in an amount to fairly and reasonably compensate your Plaintiffs for the unmarketability of their title to the lands in question during the period that they have been rendered unmarketable by your Defendants’ wrongful actions.
      "C. Punitive damages in an amount of at least three times the amount of the compensatory damages prayed in Paragraph B, above, for the Defendants’ malicious and fraudulent attempt to slander your Plaintiffs’ title.
      "D. Interest, costs and attorney fees so wrongfully sustained.
      "E. Any and all other and further relief that the Court shall deem just and equitable.”


author: Bashara, J.

text:
    PEOPLE v CLARK
    Docket No. 77-3374.
    Submitted November 15, 1978, at Detroit. —
    Decided January 16, 1979.
    Kin D. Clark, Francis E. Clark, Larry A. Clark and Harold E. Clark were convicted of breaking and entering a building with the intent to commit larceny and of possession of burglary tools, Wayne Circuit Court, James Montante, J. The defendants appeal, alleging (1) that the evidence presented was not sufficient to bind them over or to support a conviction, (2) that the breaking of an interior wall to enter the main part of the building after initially entering the building without breaking is not a "breaking” as contemplated by the statute, and (3) that the prosecutor’s closing remarks bolstered the credibility of the prosecution’s witnesses and were prejudicial to the defendants. Held:

    1. The record reveals that sufficient evidence was presented at both the preliminary examination and at trial.
    2. The breaking of the inner portion of the building is a “breaking” sufficient to support the conviction for breaking and entering.
    3. The remarks of the prosecutor were not objected to at trial and were not so patently offensive as to require reversal; therefore, appellate review of this alleged error is precluded.
    Affirmed.
    1. Criminal Law — Evidence — Sufficiency of Evidence — Each Element of Charged Offense.
    All that is required, in a criminal prosecution, is that the prosecutor introduce some competent direct or circumstantial evidence as to each element of the crime charged so as to support a jury’s finding of guilt beyond a reasonable doubt; it is for the jury, not the court, to weigh the evidence.

      References for Points in Headnotes

       30 Am Jur 2d, Evidence § 1172.

       13 Am Jur 2d, Burglary §§ 11, 12.

       13 Am Jur 2d, Burglary § 21.

       75 Am Jur 2d, Trial §§ 285, 315.
    Counsel’s appeal in criminal case to racial, national, or religious prejudice as ground for mistrial, new trial, or reversal. 45 ALR2d 303.

      2. Burglary — Breaking and Entering — Breaking — Force.
    To constitute a breaking, sufficient for a breaking and entering charge, the slightest force is all that is necessary.
    3. Burglary — Breaking and Entering — Open Exterior Door — Inner Door — Force.
    Entry through an open exterior door of a building does not preclude a verdict of guilty of breaking and entering where thé evidence shows that an inner room or compartment of the building was broken into.
    4. Burglary — Breaking — Force — Other Elements of Offense.
    An entrance into a building is a breaking sufficient in law to constitute burglary if any force at all is necessary to effect the entrance into the building through any place of ingress, usual or unusual, whether open, partly open or closed, where the other elements of the offense are present.
    5. Criminal Law — Argument of Counsel — Preserving Question.
    Appellate review of the propriety of a prosecutor’s closing argument is precluded in the absence of objection unless failure to consider the issue would result in a miscarriage of justice.

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

      George Stone, for defendants on appeal.
    Before: N. J. Kaufman, P.J., and V. J. Brennan and Bashara, JJ.
   Bashara, J.

Defendants appeal from a jury conviction of breaking and entering a building with the intent to commit larceny contrary to MCL 750.110; MSA 28.305, and possession of burglary tools in violation of MCL 750.116; MSA 28.311.

The facts in this case indicate that at approximately 12:20 a.m., a silent alarm at Uncle John’s Pancake House was triggered. A patrol car dispatched to the scene stopped the defendants’ car exiting the restaurant’s parking lot. An inspection of the building revealed that a large hole had been broken through the wall from the boiler room into the restaurant kitchen.

The boiler room shared a common wall with the kitchen but had no direct access to the restaurant. Entrance to the boiler room was through two warped doors that could not be locked. The restaurant had been ransacked and the combination dial pried off the floor safe.

Defendants were arrested and a search revealed a screwdriver, flashlight, blue hexagon crowbar, a tire iron, wire cutters and black leather gloves. A state police lab report indicated the paint on the boiler room wall appeared identical to that found on the crowbar, and that marks left on the wall were the shape and color of the crowbar and tire iron.

The defendants claimed that car problems had forced them to pull off the road into the parking lot and that the tools in the car belonged to their father, who was a carpenter.

Defendants contend that the evidence presented was not sufficient to bind over or to support a conviction. However, a review of the record reveals sufficient evidence was presented at both the preliminary examination and trial.

In a criminal prosecution, all that is required is that the prosecutor introduce some competent direct or circumstantial evidence as to each element of the crime charged so as to support the jury’s finding of guilt beyond a reasonable doubt. People v Meadows, 80 Mich App 680, 691; 263 NW2d 903 (1977), People v Atley, 392 Mich 298, 309; 220 NW2d 465 (1974). It is for the jury, not the court, to weigh the evidence. People v Eastway, 67 Mich App 464, 469; 241 NW2d 249 (1976), People v Palmer, 392 Mich 370, 376; 220 NW2d 393 (1974).

Defendants’ most interesting contention is that breaking an interior wall to enter the main part of a building after initially entering without breaking into the outer room is not a "breaking” as contemplated by the statute.

This issue seems to be one of first impression in Michigan. Authority dictates that the slightest force is all that is necessary to constitute a breaking. Pushing open a door has been held to be sufficient force. People v Davis, 22 Mich App 70, 71; 176 NW2d 715 (1970).

Testimony elicited at trial indicated that the warped boiler room doors showed no sign of forced entry. However, nothing in the record indicates whether the doors were closed prior to the entry and contradictory testimony was offered as to their position when the police arrived.

If the boiler room doors had been closed or even partially closed, opening them would constitute a "breaking”.

Assuming, however, that the exterior doors were open, the hole broken in the interior wall still brings the facts of this case within the purview of the statute.

Other jurisdictions with similar statutes have held that a breaking of an inner portion of a building constitutes the requisite element for burglary.

In Bowie v State, 401 SW2d 829, 831 (Tex Crim App, 1966), the Texas Court of Appeals said:

"Entry through an open exterior door does not preclude a verdict of guilty where the evidence shows that an inner room or compartment of the building is broken into.”

In a recent case, the Florida Court of Appeals held that,

"the breaking of an inner door or structure within ah open building constitutes a breaking for purposes of the burglary statute.” Cartey v State, 337 So 2d 835, 837 (Fla App, 1976).

See also State v Cookson, 293 A2d 780 (Me, 1972), and Anno: Breaking and entering of inner door of building as burglary, 43 ALR3d 1147.

The rule in Michigan has been stated to be that,

"if any force at all is necessary to effect an entrance into a building, through any place of ingress, usual or unusual, whether open, partly open or closed, such entrance is a breaking sufficient in law to constitute burglary, if the other elements of the offense are present.” (Emphasis added.) People v White, 153 Mich 617, 621; 117 NW 161 (1908).

Defendants’ final contention is that the prosecutor’s closing remarks bolstered his witnesses’ credibility and were prejudicial. Defendants’ failure to raise an objection at trial precludes appellate review unless it would result in a miscarriage of justice. People v Duncan, 402 Mich 1, 16; 260 NW2d 58 (1977). The remarks were not so patently offensive so as to require reversal. See People v Foster, 77 Mich App 604, 611; 259 NW2d 153 (1977).

Affirmed.

       In People v Nolan, 22 Mich 228 (1871), the defendant entered a store from its cellar by removing an iron grating near an open cellar window, and then going up a stairway and through a trapdoor. Defendant claimed that the only breaking was an interior one of the trapdoor and that such breaking did not come within the provisions of the statute. The Court did not reach the issue, finding the removal of the grating sufficient to constitute a breaking.