People v. Hicks

234 N.W.2d 720, 63 Mich. App. 595, 1975 Mich. App. LEXIS 1204

• Court: Michigan Court of Appeals
• Decided: August 25, 1975
• Docket: Docket 19898
• Status: Published

Opinions

T. M. Burns, P. J.

We accept in its entirety Judge O’Hara’s recitation of the facts in this case. However, although we agree with his resolution of the issue concerning the alleged error in the jury instructions, we respectfully disagree with his legal conclusions concerning whether or not the prosecution’s failure to indorse the loiterers as res gestae witnesses was reversible error.

In the case at bar, out of all the people present at the time of the alleged offense, the prosecutor only indorsed the police officers as res gestae witnesses. However, the prosecutor has an affirmative duty to produce all res gestae witnesses. People v Unsworth, 43 Mich App 741; 204 NW2d 759 (1972), People v Kayne, 268 Mich 186; 255 NW 758 (1934). In Unsworth, this Court said at 743; 204 NW2d at 761:

"The prosecutor is duty bound to indorse all witnesses known to him at the time an information against a defendant is filed. Additional witnesses may be indorsed before or at trial by leave of the court. Indorsement is not a mere formality, but a substantial right designed to protect an accused against suppression of testimony favorable to him and against a false accusation. People v Long, 44 Mich 296, 6 NW 673 (1880), People v Davis, 343 Mich 348; 72 NW2d 269 (1955), People v Leon Brown, 35 Mich App 173; 192 NW2d 337 (1971).”

In the present case although the prosecutor knew the names and addresses of those persons arrested for loitering, he did not indorse any of them as res gestae witnesses. Since the defense claimed that these witnesses would not only testify that it was not the defendant who, aimed the shotgun at the police officer but could testify as to what they saw and heard in the adjoining room at the time the offense allegedly occurred, their testimony was crucial to the defense. Although the question may be a close one, every reasonable doubt must be resolved in favor of indorsing and calling a witness when the defendant insists on his rights. People v Wynn, 60 Mich App 636; 231 NW2d 269 (1975), People v Harrison, 44 Mich App 578, 593; 205 NW2d 900 (1973), People v Kayne, supra. Furthermore, since there is a rebuttable presumption that persons present at the time and place are res gestae witnesses, the prosecutor must prove otherwise. People v Samuels, 62 Mich App 214; 233 NW2d 520 (1975), People v Frank Johnson, 58 Mich App 1, 7; 226 NW2d 730 (1975), People v Jones, 52 Mich App 522; 217 NW2d 884 (1974). We are not convinced that the prosecutor has sustained his burden of proof in this case. Accordingly, we hold that the trial court’s finding that the loiterers were not res gestae witnesses was clearly erroneous.

Reversed and remanded for a new trial.

M. F. Cavanagh, J., concurred.