Defendant, Willa C.N. Strickland, was charged with unlawfully selling alcoholic liquor and with unlawfully keeping and possessing the same for sale. She waived a trial by jury and was convicted by the trial judge and sentenced to be confined in the Detroit house of correction for a term of not less than six months nor more than one year. After imposition of the sentence the trial judge amended the judgment by finding the defendant guilty on the selling count in the information and dismissing the count as to possession.
Defendant argues on appeal that the evidence was not sufficient to sustain the conviction, and that the court erred in denying her motion for new trial. She also asserts that the complaining officer made an unlawful search and seizure in violation of her constitutional rights, and that the court erred in amending the finding after sentence was pronounced without reducing the period of confinement.
The question of unlawful search and seizure was not presented to the trial court and will not be considered here.
The testimony shows that about 3:50 in the morning a police officer went to the premises at 441 Alfred street on a "complaint of a blind pig there." The officer testified that, as he reached the front door another man and his woman companion arrived; that the defendant admitted him with them and he was directed to the kitchen, where a waiter served him some liquor; that he paid the waiter $1, which the waiter gave to the defendant in his presence. This was disputed by the defendant, who testified in her own behalf. The testimony is sufficient to sustain a conviction. *Page 61
The motion for a new trial on the ground of newly-discovered evidence was supported by the affidavit of one Charles Carlisle, who claimed that he was present at the time but knew nothing of defendant's arrest until he read about it in a newspaper. His affidavit indicates that his testimony would be in accord with that of the defendant. Defendant's only explanation for not calling Carlisle as a witness is that he "was not available." The testimony which Carlisle proposed to give is merely cumulative, and there is no showing that defendant made any effort to produce him at the time of the trial.
The trial judge could not cure his erroneous general finding of guilty by amending that finding. People v. Powers, 272 Mich. 303. See, also, People v. Stuart, 274 Mich. 246.
The finding and sentence of the court are vacated and a new trial granted.
CHANDLER, NORTH, STARR, WIEST, BUTZEL, and SHARPE, JJ., concurred with BUSHNELL, J.