People v. Kinsman

168 N.W.2d 422, 16 Mich. App. 611

• Court: Michigan Court of Appeals
• Decided: January 21, 1970
• Docket: Docket 3,649
• Status: Published

Opinion

Per Curiam:.

Defendant, convicted by jury and sentenced for attempted 1 uttering ánd publishing a forged check, 2 appeals.

Defendant attempted to cash ■ a forged check purportedly drawn by Peet Packing Company. The cashier to whom the check was presented had been alerted to watch for such a check. The cashier notified her superior and defendant was apprehended. The cashier was not produced at the preliminary examination.

The latter fact creates 2 of the issues raised on appeal. Defendant says this violated his constitutional right of confrontation. US Const, Am 6; Const 1963, art 1, § 20. The former commences “In all criminal prosecutions * * the latter commences “In every criminal prosecution * * This language precludes the violation here asserted.

“A prosecution is generally understood to he a criminal action; a proceeding instituted and carried on by due course of law before a competent tribunal for the purpose of determining the guilt or innocence of the person charged with some crime or offense.” People v. Ellis (1918), 204 Mich 157, at 161.

Defendant contends that without the testimony of the cashier there was insufficient evidence at the preliminary examination to prove the corpus delicti and that the binding over was improper. The test is whether the record is so insufficient that it was an abuse of discretion by the magistrate to bind defendant over. People v. Hirschfield (1935), 271 Mich 20. We are unable to find abuse of discretion.

The other errors asserted relate to instructions. Although afforded the opportunity, defendant did not object to the charge as given on the grounds presently asserted. We do not consider such errors. GCR 1963, 516.2; People v. Mallory (1966), 2 Mich App 359.

Affirmed.

1 CL 1948. § 750.92 (Stat Ann 1962 11ev § 28.287).

2 CL 1948, § 750.249 (Stat~Ann 1962 11ev § 28.446).