People v. Derry

Michigan Court of Appeals

People v. Derry

179 N.W.2d 182, 23 Mich. App. 572, 1970 Mich. App. LEXIS 1882

CourtMichigan Court of Appeals

DecidedApril 30, 1970

DocketDocket No. 7,305

StatusPublished

This text of 179 N.W.2d 182 (People v. Derry) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

People v. Derry, 179 N.W.2d 182, 23 Mich. App. 572, 1970 Mich. App. LEXIS 1882 (Mich. Ct. App. 1970).

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Opinion

Per Curiam.

On June 10, 1968, defendant was arrested and charged with felonious assault¹ and carrying a concealed weapon.² Although defendant was acquitted on the assault charge, he was convicted on the charge of carrying a concealed weapon and from this conviction he appeals.

The complainant testified that, subsequent to a violent argument between defendant and himself, the defendant opened the trunk of his car, took out a handgun, and told him to leave. It was then that the complainant walked to a nearby telephone booth and notified the police concerning the gun and the assault. Defendant pursued the complainant to the booth and again pointed the gun at the complainant and requested him to refrain from making the call. At the time the defendant arrived at the telephone booth, complainant had already completed the call. Shortly thereafter, when the police arrived, the defendant was arrested.

Defendant admitted in his testimony that he took the gun out of the car trunk, had it in the car, and took the gun with him to the telephone booth as a defensive measure. He alleges, as a defense, that he was exempt from the statute by virtue of its statutory language, which exempts goods being moved [574]*574from one place to another. PA 1931, No 328, § 231a, as added by PA 1964, No 215 (MCLA § 750.231a, Stat Ann 1968 Cum Supp § 28.428 [1]). Defendant introduced evidence which showed his intent of moving to a new residence. The prosecution charges that defendant’s immediate purpose was other than the movement of goods from one residence to another. Determination of factual questions in a criminal case is a function of the jury. People v. Mosden (1969), 381 Mich 506. The court properly charged and submitted this issue to the jury. If there is evidence in the record which, if believed, will support a verdict of guilty beyond a reasonable doubt, the Court of Appeals will not reverse the conviction. People v. Shaw (1968), 10 Mich App 315.

Defendant’s second ground for reversal is based upon an alleged admission of guilt to a police officer during a recess, which was, without objection, later admitted into evidence. Defendant denied ever having made the statement attributed to him, and asserts that the witness should have been called who was present with the defendant at all times during the trial recess, to substantiate defendant’s contention. There is no indication in the record that defense counsel ever made any objection or motion for a continuance, in order that this witness might come forward to testify. Generally, objections not raised during trial will not be considered by the Court of Appeals when raised for the first time on appeal. People v. Willis (1965), 1 Mich App 428; People v. Wilson (1967), 8 Mich App 651; People v. Bradford (1968), 10 Mich App 696. We find no reversible error here.

Affirmed.

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Per Curiam.

On June 10, 1968, defendant was arrested and charged with felonious assault¹ and carrying a concealed weapon.² Although defendant was acquitted on the assault charge, he was convicted on the charge of carrying a concealed weapon and from this conviction he appeals.

The complainant testified that, subsequent to a violent argument between defendant and himself, the defendant opened the trunk of his car, took out a handgun, and told him to leave. It was then that the complainant walked to a nearby telephone booth and notified the police concerning the gun and the assault. Defendant pursued the complainant to the booth and again pointed the gun at the complainant and requested him to refrain from making the call. At the time the defendant arrived at the telephone booth, complainant had already completed the call. Shortly thereafter, when the police arrived, the defendant was arrested.

Defendant admitted in his testimony that he took the gun out of the car trunk, had it in the car, and took the gun with him to the telephone booth as a defensive measure. He alleges, as a defense, that he was exempt from the statute by virtue of its statutory language, which exempts goods being moved [574]*574from one place to another. PA 1931, No 328, § 231a, as added by PA 1964, No 215 (MCLA § 750.231a, Stat Ann 1968 Cum Supp § 28.428 [1]). Defendant introduced evidence which showed his intent of moving to a new residence. The prosecution charges that defendant’s immediate purpose was other than the movement of goods from one residence to another. Determination of factual questions in a criminal case is a function of the jury. People v. Mosden (1969), 381 Mich 506. The court properly charged and submitted this issue to the jury. If there is evidence in the record which, if believed, will support a verdict of guilty beyond a reasonable doubt, the Court of Appeals will not reverse the conviction. People v. Shaw (1968), 10 Mich App 315.

Defendant’s second ground for reversal is based upon an alleged admission of guilt to a police officer during a recess, which was, without objection, later admitted into evidence. Defendant denied ever having made the statement attributed to him, and asserts that the witness should have been called who was present with the defendant at all times during the trial recess, to substantiate defendant’s contention. There is no indication in the record that defense counsel ever made any objection or motion for a continuance, in order that this witness might come forward to testify. Generally, objections not raised during trial will not be considered by the Court of Appeals when raised for the first time on appeal. People v. Willis (1965), 1 Mich App 428; People v. Wilson (1967), 8 Mich App 651; People v. Bradford (1968), 10 Mich App 696. We find no reversible error here.

Affirmed.

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Bluebook (online)

179 N.W.2d 182, 23 Mich. App. 572, 1970 Mich. App. LEXIS 1882, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-derry-michctapp-1970.

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