People v. McCloud

Michigan Court of Appeals

People v. McCloud

255 N.W.2d 745, 75 Mich. App. 718, 1977 Mich. App. LEXIS 1156

CourtMichigan Court of Appeals

DecidedMay 17, 1977

DocketDocket No. 29360

StatusPublished

This text of 255 N.W.2d 745 (People v. McCloud) 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. McCloud, 255 N.W.2d 745, 75 Mich. App. 718, 1977 Mich. App. LEXIS 1156 (Mich. Ct. App. 1977).

Pincite

Opinions

R. B. Burns, J.

Defendant was convicted by a jury of assault with intent to commit murder. MCLA 750.83; MSA 28.278. He appeals.

It was claimed that the defendant attacked the complainant, without provocation, with something that appeared to be a knife during a party. The defendant admitted being at the party, but claimed alibi in that he was in a different room at the time of the attack.

The jury was instructed regarding the defendant’s theory as follows:

"Now, the defendant in this case has offered, among others, the defense of alibi. And that defense means that the defendant was at another place at the time of the commission of the crime and so could not have committed it. And you will recall he said he was in [720]*720another room. The defense of alibi is a proper legal defense. And you should consider all of the evidence bearing on that point carefully and examine it carefully. It is not the duty, of course, of the defendant to establish his defense of alibi to your satisfaction beyond a reasonable doubt. If you have any reasonable doubt as to whether the defendant was at the place where the offense was committed at the time it was committed, you should give the defendant the benefit of that doubt and find him not guilty. Because the duty of the People always remains to prove to your satisfaction beyond a reasonable doubt that the defendant did in fact commit one of the unlawful offenses here charged.”

Before the jury retired to deliberate, the trial court added:

"There is just a small additional instruction I would like to give to you regarding the defense of alibi. And that is you are to scrutinize any evidence in relation to alibi carefully. Because an alibi is easy to assert and hard to disprove. So, you should be careful and cautious in examining the evidence with regard to alibi. And you will remember the balance of my instruction with regard to the alibi defense.”

While this language is not identical to that prohibited by People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), it is substantially similar and conveys the same idea. Therefore, this Court must take the same approach as that in People v Eaton, 68 Mich App 740; 243 NW2d 723 (1976). We regretfully have no alternative but to reverse.

In addition, we would like to take this opportunity to point out that the requirements of People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), are mandatory. That case holds that when the issue of nonproduction of a res gestae witness is raised in a motion for a new trial, a hearing shall be held. [721]*721Furthermore, if a new trial be denied, the judge shall state his reasons.

Reversed and remanded.

M. F. Cavanagh, P. J., concurred.

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R. B. Burns, J.

Defendant was convicted by a jury of assault with intent to commit murder. MCLA 750.83; MSA 28.278. He appeals.

It was claimed that the defendant attacked the complainant, without provocation, with something that appeared to be a knife during a party. The defendant admitted being at the party, but claimed alibi in that he was in a different room at the time of the attack.

The jury was instructed regarding the defendant’s theory as follows:

"Now, the defendant in this case has offered, among others, the defense of alibi. And that defense means that the defendant was at another place at the time of the commission of the crime and so could not have committed it. And you will recall he said he was in [720]*720another room. The defense of alibi is a proper legal defense. And you should consider all of the evidence bearing on that point carefully and examine it carefully. It is not the duty, of course, of the defendant to establish his defense of alibi to your satisfaction beyond a reasonable doubt. If you have any reasonable doubt as to whether the defendant was at the place where the offense was committed at the time it was committed, you should give the defendant the benefit of that doubt and find him not guilty. Because the duty of the People always remains to prove to your satisfaction beyond a reasonable doubt that the defendant did in fact commit one of the unlawful offenses here charged.”

Before the jury retired to deliberate, the trial court added:

"There is just a small additional instruction I would like to give to you regarding the defense of alibi. And that is you are to scrutinize any evidence in relation to alibi carefully. Because an alibi is easy to assert and hard to disprove. So, you should be careful and cautious in examining the evidence with regard to alibi. And you will remember the balance of my instruction with regard to the alibi defense.”

While this language is not identical to that prohibited by People v McCoy, 392 Mich 231; 220 NW2d 456 (1974), it is substantially similar and conveys the same idea. Therefore, this Court must take the same approach as that in People v Eaton, 68 Mich App 740; 243 NW2d 723 (1976). We regretfully have no alternative but to reverse.

In addition, we would like to take this opportunity to point out that the requirements of People v Robinson, 390 Mich 629; 213 NW2d 106 (1973), are mandatory. That case holds that when the issue of nonproduction of a res gestae witness is raised in a motion for a new trial, a hearing shall be held. [721]*721Furthermore, if a new trial be denied, the judge shall state his reasons.

Reversed and remanded.

M. F. Cavanagh, P. J., concurred.

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Bluebook (online)

255 N.W.2d 745, 75 Mich. App. 718, 1977 Mich. App. LEXIS 1156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mccloud-michctapp-1977.

Opinions

R. B. Burns, J.

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