Vander Wal, J.
Defendant was charged with felonious assault on Clayton Eichardson with a revolver contrary to CL 1948, § 750.82 (Stat Ann 1962 Eev § 28.277). The source of the dispute was defendant Keys’ intimate personal relationship with Jo Anne Julian, daughter of Elizabeth Eichardson by a previous marriage and wife of Dallas Julian. Jo Anne’s family apparently did not approve of her relationship with defendant Keys.
At trial there was conflicting testimony as to who was present when the shot was fired. According to Clayton Eichardson, complaining witness and stepfather of Jo Anne Julian, the gun, immediately before it was fired, was aimed directly at him. Eichardson’s testimony was substantially corroborated by that of two res gestae witnesses, his wife Elizabeth and his daughter-in-law, Juanita Marlow, the wife of Eaymond Marlow.
Defendant Keys testified that he fired the revolver into the air on the driver’s side of his automobile in order to defend himself against Eaymond Marlow, the son of Elizabeth Eichardson by a previous marriage and stepson of the complaining witness. Defendant’s story that Eaymond was approaching with two butcher knives in his hands was supported by the testimony of Brenda McCullough who was seated beside defendant Keys in his automobile when the shot was fired. Her testimony was that the shot was fired across her and out the window on her [487]*487side of the automobile, but that it was fired into the air rather than directly at anyone.
The case was tried on two diametrically opposed theories. The people claimed that the assault was made upon one Clayton Richardson and the defense claimed that no assault was made upon Richardson, but that if an assault was made, it was made upon one Raymond Marlow and in self-defense.
On appeal the defendant seeks reversal of the trial court judgment and either a new trial or a court order for the entry of a verdict of not guilty. Appellant raises two issues for our consideration:
1. Did the prosecutor’s failure to indorse and call Raymond Marlow as a res gestae witness deny the accused his right to be protected against false accusation?
2. Did the trial court err in instructing the jury that the defense of self-defense was not available to the appellant?
The legislature has spoken concerning the first issue.
“All informations shall be filed in the court having-jurisdiction of the offense specified therein, after the proper return is filed by the examining- magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.” CLS 1961, § 767.40 (Stat Ann 1965 Cum Supp § 28.980).
Defendant made no showing- on the record that the prosecuting attorney at the time of filing the information knew that Raymond Marlow was a res [488]*488gestae witness. It is clear from the statute, therefore, that the indorsement of Raymond Marlow as a res gestae witness after the information was filed was solely a matter of judicial discretion. We quote the controlling case of People v. McCrea (1942), 303 Mich 213, 272: “The test to be applied in the present case is whether the trial court abused its discretion in ordering the names of certain witnesses, alleged to be res gestae witnesses, to be indorsed on the information after filing.” The Court in that case quoted with approval People v. Blue (1931), 255 Mich 675, 678 to the following effect:
“ ‘Under the code, the indorsement of names after filing is wholly within the discretion of the court. The discretion, of course, is judicial, not personal, must be exercised with due regard to protection of the right of an accused to prepare his defense and to be accorded a fair trial, and is to be reviewed upon the showing made and in view of the circumstances. * * * Tbe ultimate question, on review, is whether the court abused its discretion, with the burden ordinarily on the party asserting abuse.’ ” (Emphasis added.)
See, also, People v. Jackson (1947), 318 Mich 506, 509 and People v. Tamosaitis (1928), 244 Mich 258, 261.
Defendant in the instant case fails in his burden of showing an abuse of judicial discretion. It appears from the record that defendant Keys made no statement to the prosecuting attorney and waived preliminary examination. The prosecutor learned of the presence of Brenda McCullough at the scene only after the trial had begun. In his opening statement defense counsel did not mention Raymond Marlow’s name and failed to make a motion for his indorsement as a witness at any time during the trial. The first 2 witnesses for the prosecution did not testify to facts placing Raymond Marlow at the scene. [489]*489There is nothing on the record to indicate that the prosecuting attorney and the court did not learn of Raymond Marlow for the first time late in the trial when Juanita Marlow testified that Raymond Mar-low had gone to the Julian home also. Brenda McCullough testified that defendant Keys was defending himself against Raymond Marlow.
After defendant Keys also testified to facts placing Raymond Marlow at the scene, the prosecutor and the court were faced with conflicting testimony upon which a conclusion of fact was to he based. On appeal we cannot concern ourselves with the judgment of the prosecutor. If the court decided that Raymond Marlow was not an eyewitness, it was not compelled to order his indorsement on the information. The only evidence to substantiate defendant’s own testimony placing Raymond Marlow at the scene was the word of defendant’s teen-age girl friend whose story did not coincide in certain important details with that of defendant. It is not established upon the record that Raymond Marlow was a res gestae witness. It was not error, therefore, to fail to indorse his name upon the information and call him as a res gestae witness. Ultimately, of course, it was for the jury to determine against whom force was offered. Considering the diametrically opposed testimony, it is clear from the jury’s verdict that the jury did not believe that Raymond Marlow was at the scene of the offense; this Court cannot and will not interfere with any supported factual determination by the jury.
There is reason to believe - from the record that although the prosecuting attorney was unaware that the defendant would claim as a defense that his altercation was with Marlow and not Richardson, nevertheless, defense counsel had full knowledge concerning Raymond Marlow’s alleged presence at the scene after interviewing his client, Keys, be[490]*490cause that was his whole defense. Yet, counsel for defense never made a motion to require the indorsement on the information. No motion was ever made to require the prosecutor to produce Raymond Mar-low. The defendant never subpoenaed Raymond Marlow nor called him as a witness in his own behalf although he had an established right to do so.
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Vander Wal, J.
Defendant was charged with felonious assault on Clayton Eichardson with a revolver contrary to CL 1948, § 750.82 (Stat Ann 1962 Eev § 28.277). The source of the dispute was defendant Keys’ intimate personal relationship with Jo Anne Julian, daughter of Elizabeth Eichardson by a previous marriage and wife of Dallas Julian. Jo Anne’s family apparently did not approve of her relationship with defendant Keys.
At trial there was conflicting testimony as to who was present when the shot was fired. According to Clayton Eichardson, complaining witness and stepfather of Jo Anne Julian, the gun, immediately before it was fired, was aimed directly at him. Eichardson’s testimony was substantially corroborated by that of two res gestae witnesses, his wife Elizabeth and his daughter-in-law, Juanita Marlow, the wife of Eaymond Marlow.
Defendant Keys testified that he fired the revolver into the air on the driver’s side of his automobile in order to defend himself against Eaymond Marlow, the son of Elizabeth Eichardson by a previous marriage and stepson of the complaining witness. Defendant’s story that Eaymond was approaching with two butcher knives in his hands was supported by the testimony of Brenda McCullough who was seated beside defendant Keys in his automobile when the shot was fired. Her testimony was that the shot was fired across her and out the window on her [487]*487side of the automobile, but that it was fired into the air rather than directly at anyone.
The case was tried on two diametrically opposed theories. The people claimed that the assault was made upon one Clayton Richardson and the defense claimed that no assault was made upon Richardson, but that if an assault was made, it was made upon one Raymond Marlow and in self-defense.
On appeal the defendant seeks reversal of the trial court judgment and either a new trial or a court order for the entry of a verdict of not guilty. Appellant raises two issues for our consideration:
1. Did the prosecutor’s failure to indorse and call Raymond Marlow as a res gestae witness deny the accused his right to be protected against false accusation?
2. Did the trial court err in instructing the jury that the defense of self-defense was not available to the appellant?
The legislature has spoken concerning the first issue.
“All informations shall be filed in the court having-jurisdiction of the offense specified therein, after the proper return is filed by the examining- magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine.” CLS 1961, § 767.40 (Stat Ann 1965 Cum Supp § 28.980).
Defendant made no showing- on the record that the prosecuting attorney at the time of filing the information knew that Raymond Marlow was a res [488]*488gestae witness. It is clear from the statute, therefore, that the indorsement of Raymond Marlow as a res gestae witness after the information was filed was solely a matter of judicial discretion. We quote the controlling case of People v. McCrea (1942), 303 Mich 213, 272: “The test to be applied in the present case is whether the trial court abused its discretion in ordering the names of certain witnesses, alleged to be res gestae witnesses, to be indorsed on the information after filing.” The Court in that case quoted with approval People v. Blue (1931), 255 Mich 675, 678 to the following effect:
“ ‘Under the code, the indorsement of names after filing is wholly within the discretion of the court. The discretion, of course, is judicial, not personal, must be exercised with due regard to protection of the right of an accused to prepare his defense and to be accorded a fair trial, and is to be reviewed upon the showing made and in view of the circumstances. * * * Tbe ultimate question, on review, is whether the court abused its discretion, with the burden ordinarily on the party asserting abuse.’ ” (Emphasis added.)
See, also, People v. Jackson (1947), 318 Mich 506, 509 and People v. Tamosaitis (1928), 244 Mich 258, 261.
Defendant in the instant case fails in his burden of showing an abuse of judicial discretion. It appears from the record that defendant Keys made no statement to the prosecuting attorney and waived preliminary examination. The prosecutor learned of the presence of Brenda McCullough at the scene only after the trial had begun. In his opening statement defense counsel did not mention Raymond Marlow’s name and failed to make a motion for his indorsement as a witness at any time during the trial. The first 2 witnesses for the prosecution did not testify to facts placing Raymond Marlow at the scene. [489]*489There is nothing on the record to indicate that the prosecuting attorney and the court did not learn of Raymond Marlow for the first time late in the trial when Juanita Marlow testified that Raymond Mar-low had gone to the Julian home also. Brenda McCullough testified that defendant Keys was defending himself against Raymond Marlow.
After defendant Keys also testified to facts placing Raymond Marlow at the scene, the prosecutor and the court were faced with conflicting testimony upon which a conclusion of fact was to he based. On appeal we cannot concern ourselves with the judgment of the prosecutor. If the court decided that Raymond Marlow was not an eyewitness, it was not compelled to order his indorsement on the information. The only evidence to substantiate defendant’s own testimony placing Raymond Marlow at the scene was the word of defendant’s teen-age girl friend whose story did not coincide in certain important details with that of defendant. It is not established upon the record that Raymond Marlow was a res gestae witness. It was not error, therefore, to fail to indorse his name upon the information and call him as a res gestae witness. Ultimately, of course, it was for the jury to determine against whom force was offered. Considering the diametrically opposed testimony, it is clear from the jury’s verdict that the jury did not believe that Raymond Marlow was at the scene of the offense; this Court cannot and will not interfere with any supported factual determination by the jury.
There is reason to believe - from the record that although the prosecuting attorney was unaware that the defendant would claim as a defense that his altercation was with Marlow and not Richardson, nevertheless, defense counsel had full knowledge concerning Raymond Marlow’s alleged presence at the scene after interviewing his client, Keys, be[490]*490cause that was his whole defense. Yet, counsel for defense never made a motion to require the indorsement on the information. No motion was ever made to require the prosecutor to produce Raymond Mar-low. The defendant never subpoenaed Raymond Marlow nor called him as a witness in his own behalf although he had an established right to do so. Immediately after Brenda McCullough’s testimony which placed Raymond Marlow at the scene, the following colloquy took place out of the hearing of the jury when counsel approached the bench:
“Mr. Laster: I have discussed with counsel relative to producing the balance of the witnesses listed on the information, namely David Mason, Merle Harrington, Glenn Apers, Edward Rea, Robert Carr, Keith Chesney, Robert Green, Walter Lorkowsld, and Raymond Garstecki. All of these are police officers.
“Mr. Polk: And none of them are eyewitnesses ?
“Mr. Laster: No eyewitnesses.
“The Court: Who is Merle Harrington?
“Mr. Laster: He is here. He is the one sitting there.
“The Court: I have a hard time with names. Who did she say?
“Mr. Laster: She said Raymond Marlow.
“The Court: Isn’t here?
“Mr. Laster: No. The husband of Juanita Mar-low.
“The Court: Raymond?
“Mr. Laster: Yes.
“The Court: Okay.
“Mr. Polk: We will waive them.
“The Court: Now, when the jury is gone I am going to ask your client if he waives these people.
“Mr. Polk: Yes. I know what you mean.
“The Court: All right.”
[491]*491Defendant is precluded by Ms own express waiver at trial from complaining of any failure to indorse or produce Raymond Marlow.
Where the record fails to affirmatively establish that the prosecuting attorney had any knowledge of the identity of a person alleged to be an eyewitness to the crime, particularly when there has been no conclusive showing on the record that such person was, in fact, a res gestae witness and defendant has made no motion to have the alleged witness indorsed upon the information nor called such witness on his own behalf, the failure of the court to order the indorsement on its own motion does not constitute an abuse of judicial discretion. People v. McCrea (1942), 303 Mich 213, 267-275; People v Kynerd (1946) , 314 Mich 107, 113-116; People v. Bartlett (1945), 312 Mich 648, 653-656; People v. Jackson (1947) , 318 Mich 506, 508, 509; People v. Mangiapane (1922), 219 Mich 62, 68; People v. Todaro (1931), 253 Mich 367, 370; People v. Hoffman (1908), 154 Mich 145, 147; People v. Keywell (1931), 256 Mich 139, 141; People v. Hawthorne (1940), 293 Mich 15, 21; People v. Hallman (1941), 299 Mich 657, 659, 660; People v. Vick (1926), 235 Mich 475, 477-480; People v. Dimitroff (1948), 321 Mich 205, 209, 210.
With respect to the second issue, we hold that the court’s instructions were proper. Defendant is charged with feloniously assaulting one Clayton Richardson. The defendant made no claim that he was defending himself against the complaining witness Clayton Richardson.
On the issue of self-defense the trial court instructed the jury as follows:
“Now, if I was armed with a dangerous weapon, a gun, pointed it at a person with the intent to harm him even though I didn’t harm him, that would be [492]*492assault. That would be felonious assault, assault with a dangerous weapon.
“That is the issue you have to decide in this case. That is what the defendant is charged with. And this is rather important, from the evidence: This intent and the assault must have been made, if there was one made — and that is a matter for you — upon Clayton Richardson. Now, if he pointed a revolver or shot at anybody else than him, as far as we are concerned in this particular case, the defendant, you have to return a verdict of not guilty. Before you can convict the defendant of this charge you must find beyond a reasonable doubt that on the day and date in question the defendant pointed a loaded revolver at or in the immediate direction of Clayton Richardson with the intent to shoot, to hurt him. Now, that is felonious assault. The people must prove every essential element of that charge beyond a reasonable doubt.
“Now, the defendant sort of claims that if he did shoot he shot in self-defense. But he can’t claim self-defense in this case because he denies he ever shot in the direction of the complaining witness. Therefore self-defense would not be available in this particular case because of the defendant’s own contention.”
It is a matter of sound logic that if defendant offered force against anyone other than Clayton Richardson the verdict must be not guilty regardless of whether defendant offered force in order to defend himself. After instructing the jury, the trial court then asked defense counsel, “Are there any further requests or remarks in relation to my charge, Mr. Polk?” to which the response was “No request, Your Honor.” Defendant is precluded by court rule from raising this objection to a jury instruction for the first time on appeal.
“No party may assign as error the giving or the failure to give an instruction unless he objects there[493]*493to 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.” OCR 1963, 516.2.
An examination of the record and transcript discloses no objection raised by defendant on this point. In open court immediately prior to the conclusion of the trial in response to a query by the court defendant expressly denied any claim of error in the instructions.
Judgment affirmed.
T. Gr. Kavanagh, P. J., concurred with Vander Wal, J.