People v. Carter

184 N.W.2d 373, 28 Mich. App. 83, 384 Mich. 802, 1971 Mich. LEXIS 818

• Court: Michigan Court of Appeals
• Decided: February 9, 1971
• Docket: Docket 6,801, 6,949, 7,293
• Status: Published

Opinions

Holbrook, P. J.

The defendants were tried in Kent County Circuit Court, in a consolidated trial before a jury, and convicted of murder in the course of a robbery¹ and kidnapping. Sentences of mandatory life imprisonment were subsequently imposed as to each defendant. Their appeals have also been consolidated.

On December 1, 1967, at approximately 1:15 p.m., the automobile of the 67-year-old victim, Emile Osbeek, is alleged to have been used by defendants in the perpetration of an armed robbery of a Grand Rapids, Michigan bank. Defendants were not charged with that robbery nor with murder committed in the course of the bank robbery. Osbeek had departed from home at approximately 12:30 p.m. and was next observed at a paint and wallpaper store where he purchased, among other things, three gallons of paint, white, beige, and grey. Carrying the paint which he had purchased, Osbeek left the store at approximately 12:50 p.m., proceeding in the direction of the parking lot. This was the last time he was seen alive.

At approximately 1:17 p.m., the Osbeek automobile was seen parked a short distance from the scene of the bank robbery. Three men were seen to emerge from the car, open the trunk and flee on foot. Although the witness was subsequently unable to identify the defendants as occupants of the automobile, she was able to state that one of the fleeing men “had something white on and one had something red on”.

The Grand Eapids police were summoned and led to the parked Osbeck automobile at about 1:20 p.m. by a man who had observed the automobile with its trunk open and the body of Osbeck in the trunk. The container of white paint had apparently overturned in the front seat of the car, and some paint was tracked away. Footprints led from the automobile, through a light snow in which the tracks could be discerned, to a three-unit apartment complex. One of the apartments was occupied by defendant McCully and his wife; another of the apartments was occupied by defendant Broyles. A few feet inside the doorway to the apartment building an officer observed a spot of white paint. The officer than called for assistance from other officers.

Upon entering the apartment building the officers obtained permission from Mrs. McCully to search the McCully apartment for suspects but, finding no one there, they proceeded upstairs. Directly in front of the door leading to defendant Broyles’ apartment the officers saw “a spot on the floor that looked like water as if someone had been standing there with wet shoes”. They knocked and, receiving no answer, entered the apartment, continuing their pursuit of the fleeing suspects. While in pursuit, the officers, without a warrant, seized a pair of shoes smeared with white paint still wet, a red-hooded sweatshirt, with a hole in the sleeve, and a brown paper sack containing $943 in.bills, the serial numbers of which matched those stolen from the bank. After the officers had apparently decided that no one was present in the Broyles’ apartment, they called for a crime search team which found a .22-caliber German revolver in a steel cabinet, and $1,740 in stolen bank bills, wrapped in a cloth, under a cushion of an overstuffed chair. Testimony-indicated, however, that only the $1,740 was found after officers had determined that the people they had gone into the apartment to look for were not there. All of the foregoing items were introduced into evidence at the trial over objections by the defendants.

At 2:20 p.m., defendants Broyles and McCully appeared at the Grand Rapids Hall of Justice to be sentenced on a previous conviction. After being sentenced, and while in police custody, Broyles and McCully were arrested and charged in the Osbeck murder.

Testimony revealed that defendants picked up one Gilmore Welford in McCully’s 1965 green and white Buick automobile on the way to the courthouse. Upon arriving at the courthouse, McCully gave Welford the keys to the car and requested him to drive the car to the McCully residence. Welford drove the McCully automobile to a downtown bank to cash a check and then proceeded to the McCully apartment. Welford, after parking the car nearby, proceeded up to the apartment, but was apparently prevented by police officers from entering. Welford then drove the McCully automobile to a nearby poolroom, parking the automobile across the street. Shortly thereafter the police took Welford into custody as a material witness and seized and impounded the McCully automobile.

Defendant Carter was charged with the instant offense on January 11, 1968, although arrested on December 14, 1967 for an unrelated crime.

On December 2, 1967, officers returned to the apartment building with a warrant, seizing from McCully’s apartment $1,500 which appears to have been stolen from the bank, a .25-caliber pistol, and .22-caliber ammunition. These items were introduced into evidence at the trial.

On December 4, 1967, three days after the Mc-Cully automobile was seized and impounded, the police, without a warrant, searched the automobile and found several .22 and .25 caliber cartridges in the glove compartment. These items were, likewise, introduced into evidence despite timely objections and a pretrial motion to suppress.

During the trial, the prosecutor’s theory was that Osbeck had been accosted by the defendants shortly after departing from the paint store, that defendants forced Osbeck to get into the trunk of his car, and proceeded to utilize the Osbeck automobile in the perpetration of the bank robbery, and that Os-beck, once inside the trunk, suffered a heart attack brought on by fear and excitement. Since the heart attack was fatal and death occurred during the course of the theft of the- automobile, i.e., a robbery, this constituted first-degree murder. None of the defendants testified at the trial.

The issues which are dispositive of this appeal, consolidated where possible, are restated and dealt with in order.

I

Was it error to admit into evidence all of the items seised by the police, without a warrant, while searching defendants’ apartments in pursuit of suspected felons?

Defendant Broyles contends that no justification existed for the search of his residence without a warrant on December 1, 1967, because neither the defendant nor anyone else was present and there was, therefore, no need to search to discover hidden weapons nor to prevent destruction oí evidence. Defendant Broyles’ brief on appeal states in part, in reference to the search by the officers of his apartment:

“Upon determining no one was present, they proceeded to search the same, seizing money from the hank, shoes with paint on them, and clothing.”

It should he noted that the defendants Broyles and Carter adopt the statement of facts contained in the brief of defendant McCully. That brief refers to the officers’ seizure of numerous items, including money, shoes, and clothing. We consider, therefore, that defendant Broyles’ argument relates to all oí the evidence seized during the period of time while the officers were present in the apartment without a warrant.

The people contend that the seizures on December 1, 1967, were incident to a lawful and reasonable search for felons of whom the police were in hot pursuit; that only unreasonable searches are unlawful, People v. Gonzales (1959), 356 Mich 247; Mapp v. Ohio (1961), 367 US 643 (81 S Ct 1684, 6 L Ed 2d 1081); and that a search of the type which occurred here was reasonable, People v. McDonald (1968), 13 Mich App 226.

The search of defendant Broyles’ apartment on December 1, 1967, was not incident to his arrest, since the search was neither substantially contemporaneous with, nor confined to the immediate vicinity of, the arrest of the defendant. Stoner v. California (1964), 376 US 483 (84 S Ct 889, 11 L Ed 2d 856). However, the search was within the scope of the “hot pursuit” exception to the search warrant requirement, i.e., a search made in the pursuit of fleeing felons for fruits or instrumentalities of crime, or contraband, as to certain of the evidence seized. Warden, Maryland Penitentiary v. Hayden (1967), 387 US 294 (87 8 Ct 1642, 18 L Ed 2d 782). The $943 in bills, a red-hooded sweatshirt of the type and color worn by one of the bank robbers, and shoes covered with white paint, still wet when found by police officers, all of which evidence linked defendants to the crime charged and was seized within the officers’ plain view, Harris v. United States (1968), 390 US 234 (88 S Ct 992, 19 L Ed 2d 1067), during the officers’ pursuit of the suspects while searching areas of Broyles’ apartment, where the suspects could reasonably have been found² were admissible in evidence. Warden, Maryland Penitentiary v. Hayden, supra.

The testimony revealed that the officers, while still in pursuit of the suspects, called for the identification bureau to come to the scene and that, upon their arrival, the apartment was again checked over. By this time it appears that the officers had made a complete determination that the people, in pursuit of whom the officers had gone into the building, were not there. Additionally, the apartment building was, by this time, surrounded by officers. After arrival of the identification bureau the officers found a .22 caliber German revolver in a metal clothes cabinet, and a package, under the cushion of a chair, containing $1,740 in stolen bills.

The additional items were erroneously admitted into evidence, since the exigencies of the situation at the time of their seizure were not such as to make the warrant requirement unreasonable nor to make the search taken without a warrant imperative. Warden, Maryland Penitentiary v. Hayden, supra; Terry v. Ohio (1968), 392 US 1, 18, 19 (88 S Ct 1868, 1878; 20 L Ed 2d 889, 903, 904).³ We rule, however, that the improperly admitted evidence, i.e., the .22 caliber revolver and $1,740 in bills, was cumulative in nature, and its admission was harmless error. People v. Kregger (1953), 335 Mich 457. Such evidence was clearly less probative than were the paint-covered shoes, seized with other properly admitted evidence obtained during hot pursuit. This holding is further justified by the proper admission into evidence of several items seized from defendant McCully’s apartment on December 2, 1967, pursuant to a valid search warrant, i.e., $1,500 found under the bathtub wrapped in a towel, which money appeared to have been stolen from the bank, a .25 caliber pistol found in a child’s play pail on top of a metal clothes closet, and .22 caliber ammunition found on a chest in a bedroom. To conclude that admission of the improperly seized evidence was harmless error requires a finding beyond a reasonable doubt that the error did not contribute to the defendants’ conviction, Harrington v. California (1969), 395 US 250 (89 S Ct 1726, 23 L Ed 2d 284). In view of the quantity and nature of the evidence properly admitted, we are persuaded beyond a reasonable doubt that the improperly admitted evidence was not of such probative value as to have contributed to the conviction of the defendants. This determination is based upon our own review of the record and upon what seems to have been the probable impact of such evidence upon the minds of an average jury. We cannot impute reversible weight to the improperly seized evidence. Harrington v. California, supra.

II

Was the search of defendant McCully’s automobile, without a warrant, three days after McCully had been arrested and the car taken into custody by the police, an unlawful search, rendering the evidence seized inadmissiblef

The warrantless search of defendant McCully’s automobile on December 4, 1967, three days after the arrest of defendants McCully and Broyles and the impounding of the car, produced .22 and .25 caliber ammunition from the glove compartment, which was admitted into evidence at the trial. Defendant McCully contends that the items seized from his automobile, and subsequently admitted into evidence, were the products of an illegal search, carried out without the authority of a search warrant and not incident to a lawful arrest, and that the erroneous admission of the evidence seized requires a reversal of defendant McCully’s conviction.

The people counter hy asserting that, upon the basis of the recent case of Chambers v. Maroney (1970), 399 US 42 (90 S Ct 1975, 26 L Ed 2d 419), the evidence found in defendant McCully’s automobile was properly admissible as the product of a reasonable search and seizure.

The Chambers case persuades this Court that a new interpretation is to be given to the Fourth Amendment as regards searches of automobiles. In Chambers the pertinent facts were stated in part, pp 44, 45:

“During the night of May 20, 1963, a Grulf service station in North Braddock, Pennsylvania, was robbed by two men each of whom carried and displayed a gun. The robbers took the currency from the cash register; the service station attendant, one Stephen Kovacich, was directed to place the coins in his right hand glove, which was then taken by the robbers. Two teenagers, who had earlier noticed a blue compact station wagon circling the block in the vicinity of the Gulf station, then saw the station wagon speed away from a parking lot close to the Gulf station; about the same time, they learned that the Gulf station had been robbed. They reported to police, who arrived immediately, that four men were in the station wagon and one was wearing a green sweater. Kovacich told the police that one of the men who robbed him was wearing a green sweater and the other was wearing a trench coat. A description of the car and the two robbers was broadcast over the police radio. Within an hour, a light blue compact station wagon answering the description and carrying four men was stopped by the police about two miles from the Gulf station. Petitioner was one of the men in the station wagon. He was wearing a green sweater and there was a trench coat in the car. The occupants were arrested and the car was driven to the police station. In the course of a thorough search of the car at the station, the police found concealed in a compartment under the dashboard two .38 caliber revolvers (one loaded with dumdum bullets), a right hand glove containing small change, and certain cards bearing the name of Raymond Havicon, the attendant at a Boron service station in McKeesport, Pennsylvania, who had been robbed at gun point on May 13, 1963. In the course of a warrant-authorized search of petitioner’s home the day after petitioner’s arrest, police found and seized certain .38 caliber ammunition, including some dumdum bullets similar to those found in one of the guns taken from the station wagon.”

It was ruled there at 49:

“The Court also noted that the search of an auto on probable cause proceeds on a theory wholly different from that justifying the search incident to an arrest:

“ ‘The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.’ Carroll v. United States [1925] 267 U.S. 132, 158, 159.

# # #

“On the facts before us, the blue station wagon could have been searched on the spot when it was stopped since there was probable cause to search and it was a fleeting target for a search. The probable cause factor still obtained at the station house and so did the mobility of the car unless the Fourth Amendment permits a warrantless seizure of the car and the denial of its use to anyone until a warrant is secured. In that event there is little to choose in terms of practical consequences between an immediate search without a warrant and the car’s immobilization until a warrant is obtained.” 399 US at 52.

The principle set forth in Chambers, and quoted above, is applicable to the instant case. As enunciated there, a warrantless search of an automobile, made sometime after the arrest while the car was in police custody, is legally made, provided “ * * * that there was probable cause to have believed that the car contained articles that the officers were entitled to seize.” Probable cause must have existed at the time the car was originally stopped or seized.

An eyewitness to the robbery, the temporary branch manager of the bank in question, testified that after the commission of the crime he observed the three felons go to and enter a waiting car and that he reported his observation to the police. Additionally, the testimony of a member of the Grand Rapids police department showed that radio messages based upon a description of the felons and the vehicle had prompted the investigation involving a green Buick.

It is clear that many cases of criminal activity are consummated with stolen automobiles in order to prevent identification of the participants. In view of the police radio transmissions concerning a green Buick in police investigations of the crimes committed by the defendants and the spotting by officers of a green Buick in the custody of Gilmore Welford, which was seen driven to the McCully residence on the afternoon of the crimes in question, the subsequent seizure and impounding shortly thereafter of the vehicle, identified as belonging to defendant McCully, was proper. We rule that the police had probable cause to believe that the vehicle contained contraband and was connected with a criminal activity.

While the Chambers case, supra, has broadened the rule permitting search and seizure of motor vehicles it is not to be construed as authorizing a three-day wait before performing a warrantless search, particularly where the vehicle has been in the possession of law enforcement authorities throughout the three-day period. If, as here, the officers have probable cause to search the vehicle, we hold that such search must be made within a reasonable time as the circumstances permit, otherwise, a warrant for the search must be obtained. However, we further find that the admission of evidence so seized was not so prejudicial as to constitute reversible error, since such evidence was only cumulative to properly-admitted evidence and no miscarriage of justice resulted from its admission. People v. Loncar (1966), 4 Mich App 281; MCLA § 769.26 (Stat Ann 1954 Rev § 28.1096); and GCR 1963, 529.1.

Ill

Did the trial court’s failure to order separate trials prejudice the rights of the defendants¶

By statute, the granting of separate trials is within the sound discretion of the trial judge. MCLA § 768.5 (Stat Ann 1954 Rev § 28.1028). Where, as in the instant case, the defendants are charged with the same crime and the same evidence is to be used to implicate all the defendants in the joint commission of the crime, the denial of motions for separate trials is not an abuse of discretion. People v. Newsome (1966), 3 Mich App 541; People v. Cooper (1950), 326 Mich 514; People v. Schram (1966), 378 Mich 145.

IY

Did the trial court commit reversible error by admitting into evidence testimony which tended to show that defendant McCully had obtained a revolver in a previous unconnected theft¶

Witness Chatfield Young, a grocery store owner, was allowed to testify, over objection of defense counsel, that he was the owner, under a concealed weapons permit, of a .25 caliber automatic pistol,⁴ introduced into evidence at the trial, that the pistol had disappeared some months before December 1, 1967, and that he had reported the gun missing to police on the day of its disappearance. A police officer was also called as a witness and his testimony verified the fact that witness Young had reported the revolver missing from his store.

The defendants contend that, since the fact that the gun was found in defendant McCully’s apartment was undisputed, it was error to allow testimony tending to show that the gun had been stolen from its lawful owner, and that such testimony was immaterial and prejudicial to them in that its sole purpose was to indicate to the jury that they were guilty of having stolen the gun.

After the testimony of Mr. Young and the police officer had been presented, defendants moved for a mistrial. The trial judge, in denying the motion, stated in part:

“It isn’t the identification of the gun, it is the identification of the person. That is important here.

“Now, there was no reference made to Mr. Young’s testimony about the fact that his store had been broken into, he had been held up. If that had been true, that was brought out I would have to stop it but, upon police investigating this case they found out that this gun is owned by Young. All right, did Young let somebody use it that day? Did Young sell it to somebody? Not for the purpose of tracing the gun but for the purpose of identifying and tracing the people so when the Prosecutor offers it for that purpose I think it is very material. He very carefully kept out and I would have, if it had been brought out that Mr. Young’s store was held up, or broken into, or things were stolen including this gun, I think your Motion would be well taken. That was very carefully eliminated. For that reason there is no prejudicial error against anyone of these three respondents.”

While the prosecutor’s questions were carefully phrased so as to exclude the specific question of whether the pistol was “stolen”, we rule that it was error for the court to admit into evidence the testimony here under consideration, because it was irrelevant to the crimes charged. However, we deem that the erroneous admission of this testimony was not prejudicial to defendants and does not call for reversal of the convictions. The testimony elicited did not reveal imprisonment of defendants in connection with other criminal activity, nor did it show other crimes committed by defendants, such as occurred in the cases cited by defendants. With due consideration having been given to the record in this case, we conclude that the verdicts would not have been different had the objectionable testimony been excluded. MCLA § 769.26 (Stat Ann 1954 Bev § 28.1096); GCR 1963, 529.1.)

Y

Did the trial court commit error in instructing the jury regarding the defendants’ exercise of their right not to testify?

The trial court instructed the jury in part as follows:

“None of the respondents in this case have taken the witness stand. Neither were they required to because of this principle of law known as the presumption of innocence. The burden is upon the prosecutor. They are not required to take the witness stand. And the fact, that fact standing alone, may not be considered by you as evidence of their guilt. The fact that they did not take the witness stand does, not form a presumption either of their guilt or of their innocence.” (Emphasis supplied.)

Defendants contend that the use of the words “that fact standing alone” permits the implication that the jury may consider defendants’ failure to testify in conjunction with other factors in the case and that the instruction was, therefore, erroneous and prejudicial.

While the trial court’s use of such terminology was inadvertent, the instructions when considered as a whole clearly show that the jury was instructed that this fact was not to be considered by them as forming a presumption, as to either the guilt or innocence of defendants. We rule that defendants’ rights were fully protected by the instructions as given. People v. Arntson (1968), 10 Mich App 718; People v. Murnane (1921), 213 Mich 205; People v. Nankervis (1951), 330 Mich 17.

VI

Did the trial court commit reversible error in identifying a portion of its charge to the jury as having been requested by defendants?

“When the evidence in a case consists of a chain of well authenticated and proven circumstances it is often more convincing and satisfactory and gives a stronger ground of assurance of the defendant’s guilt than the direct testimony of witnesses unconfirmed by circumstances.

“Now that means, and the defendants have asked for this instruction, and I am going to give it along that line. The prosecution, and you noticed I said authenticated, the prosecution, as part of its burden of proof must prove each and every link in its chain of evidence beyond a reasonable doubt. In other words it is like I said the chain of evidence must be authenticated. If any one link in the chain of circumstances has not been proved beyond a reasonable doubt then they have not proved their case.” (Emphasis supplied.)

Defendants failed to comply with the applicable conrt rule,⁶ but did state the following, after the jury had retired to consider a verdict:

“The court contrary to the established law in the state of Michigan identified a request as, I was asked to give this by the defendant having to do with the instruction each link of the crime which I feel is prejudicial and they should not be identified.”

Defendants claim that the instruction, as given, was erroneous and prejudicial, because it suggested to the jury that they could disregard it as being an exercise in advocacy by the defendants. We do not agree. We rule that, in view of the brevity of the erroneous statement given the jury by the court, occurring in the midst of lengthy instructions encompassing some 33 pages, and in view of the fact that the instructions properly informed the jury as to the law applicable to the case, the error complained of was not prejudicial to defendants, and no manifest injustice occurred. People v. Fred W. Thomas (1967), 7 Mich App 519, 533, 534.⁶

VII

Did the prosecutor violate defendant Garter’s right to due process by failing to release to his attorney an alleged exculpatory statement made by defendant Broyles?

The statement in question is not a part of the record and was not used by the prosecution in the trial of this case. However, defendant Carter asserts that the statement, taken from defendant Broyles on the day of the crime, indicated that defendants Broyles and McCully picked up the third man (apparently unnamed in the statement), “after getting the car”; that, assuming the third man was Carter, there is a serious question as to whether he consented to the theft of the Osbeck car, the basis of the felony-murder charge; that some two and one-half months before trial, a motion for disclosure of exculpatory evidence was argued before the trial court, as a result of which the prosecutor agreed to turn any such evidence over to defense counsel; and, that no such evidence was disclosed. Counsel for defendant Carter, alleging that the statement was exculpatory as to his client, argues that he did not see the statement until several days after the commencement of trial, at which time counsel for defendant Broyles, to whom the prosecutor had furnished the statement after trial had begun, gave it to him. Counsel contends that Carter was denied due process of law because of this delay, in that he was prevented from using this statement to prepare his trial strategy and was further prevented from discovering other evidence by means of the statement.

There is no question but that the prosecutor acted in good faith. The prosecutor turned the statement over to one of the defense attorneys and reasonably assumed that counsel for each defendant would have access to the statement. However, we cannot determine what effect the statement would have had upon the preparation and presentation of Carter’s defense had it been timely disclosed to counsel for defendant Carter.

Defense counsel relies upon Brady v. Maryland (1963), 373 US 83, 87 (83 S Ct 1194, 1196, 1197; 10 L Ed 2d 215, 218) for the proposition that the good faith of the prosecutor is immaterial under the standards there imposed. In Brady, the statement of an accomplice, who was separately tried, was not brought to defendant’s notice by the prosecution until after he had been tried, convicted, and sentenced, and his conviction affirmed. While the facts in Brady were stronger than those in the present case for remanding, the principle announced by the Supreme Court at pp 87, 88 appears to be applicable:

“We now hold that the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.

# * *

“Society wins not only when the guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers when any accused is treated unfairly. An inscription on the walls of the Department of Justice states the proposition candidly for the federal domain: ‘The United States wins its point whenever justice is done its citizens in the courts.’ A prosecution that withholds evidence on demand of an accused which, if made available, would tend to exculpate him or reduce the penalty helps shape a trial that bears heavily on the defendant. That casts the prosecutor in the role of an architect of a proceeding that does not comport with standards of justice, * * * .”

We rule that this cause must be remanded as to defendant Carter for an evidentiary hearing to determine whether the statement in question was essential to a proper preparation by counsel of defendant Carter’s case. If, as a result of the hearing, it is determined that defendant Carter was prejudiced by a failure on the part of the prosecutor to timely proffer the statement to Carter’s counsel, a new trial shall be had as to him, otherwise, the conviction is affirmed.

The other questions raised by defendants are without merit and need not be discussed.

Affirmed as to defendants Broyles and McCully. Remanded as to defendant Carter, for further proceedings consistent with this opinion.

Munro, J., concurred:

1 MCLA § 750.316 (Stat Ann 1954 Rev § 28.548).

2 The officers noticed shoe marks on the wall and a bent clothes bar beneath the attic door, they opened the attic door, which was ajar, and found $943 in bills in a paper sack; they found the red-hooded sweatshirt in a closet and the paint-covered shoes under a bed.

3 “ * * * [a] search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. * * * The scope of the search must be ‘strietly tied to and justified by’ the circumstances which rendered its initiation permissible.”

4 The gun is the .25 caliber pistol found by officers in defendant McCully’s apartment on December 2, 1967, pursuant to a lawful search with a warrant.

6 GCR 1963, 516.2 states as follows:

“No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider the verdict, stating specifically the matter to which he objects and the grounds of his objection. Opportunity shall be given to make the objection out of the hearing of the jury.”

See also, 2 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), pp 565, 566 where it is stated that, where objection to an instruction is not timely made, there remains only the inherent power of the appellate court to reverse plain error in order to avoid manifest injustice.

6 “It was improper for the court to submit the requested instructions as having emanated other than from the court. Reetz v. Rigg (1962), 367 Mich 35; People v. Hunter (1963), 370 Mich 262. To determine whether there has been reversible error, we consider the facts surrounding the error committed. When it involves court instructions, we consider the entire context of the charge.

“We have no right to reverse these convictions or grant a new trial unless we are satisfied that there was such error committed as deprived the defendants of substantial rights or resulted in a miscarriage of justice. People v. Pizzino (1945), 313 Mich 97. CL 1948, § 769.26 (Stat Ann 1954 Rev § 28.1096).”