People v. Jordan

172 N.W.2d 830, 19 Mich. App. 582, 1969 Mich. App. LEXIS 1002

Opinion

Per Curiam.

This case, submitted on the people’s motion to affirm, is the companion case to People v. Philson (1969), 19 Mich App 574. As in the Philson Case, defendant contends he was prejudiced by having a joint trial with five other defendants for the crime of statutory rape.

* On appeal, defendant contends his trial counsel made an oral motion for separate trials which, he claims, was never ruled upon. Contrary to defendant’s claim, a reading of the transcript does not disclose a motion for separate trials, but rather, a request for a hearing to provide defendant with an opportunity to tender a plea to a lesser included offense which was denied. Counsel’s motion was as follows:

“Mr. Jameson: My name is James A. Jameson. I represent the defendant Jeffrey Jordan.

“I proposed to the prosecution, after consulting Mr. Lester, that he plead guilty — because he has admitted to me — to attempted rape.

“I want to facilitate matters here for the court, as well as for all parties concerned; and my motion is to the effect that — I can’t understand why he is jointly charged with the others, I think this is a separate and distinct offense — and. I ask that he be given that opportunity to plead guilty as a separate offender.

“Then if the prosecution wants to indorse him, that’s up to the prosecution to proceed.”

In any case, assuming the above statement constituted a motion for a separate trial, a denial would not constitute an abuse of judicial discretion in the absence of any argument or affidavits indicating how defendant could be prejudiced. People v. Mullane (1931), 256 Mich 54, and People v. Kynerd (1946), 314 Mich 107.

There being no other distinction between this case and Philson, supra, this case is governed by our holding in Philson.

Motion to affirm is granted.

MCLA § 750.520 (Stat Ann 1054 Rev § 28.788).