PEOPLE
v.
IVY.
Docket No. 2,628.
Michigan Court of Appeals.
Decided May 27, 1968. Leave to appeal denied April 16, 1969.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.
Arthur J. Koscinski, for defendant on appeal.
*429 T.G. KAVANAGH, P.J.
Defendant was convicted by jury verdict of assault with intent to rob being armed. CL 1948, § 750.89 (Stat Ann 1962 Rev § 28.284). He appeals, raising 3 questions.
The first is whether the court below committed reversible error in failing to instruct the jury that one of the possible verdicts they could render was guilty of the lesser offense of felonious assault (CL 1948, § 750.82 [Stat Ann 1962 Rev § 28.277]), even though no such instruction was requested of the trial court.
The code of criminal procedure provides in pertinent part:
"The failure of the court to instruct on any point of law shall not be ground for setting aside the verdict of the jury unless such instruction is requested by the accused." CL 1948, § 768.29 (Stat Ann 1954 Rev § 28.1052)."
See, also, GCR 1963, 516.
In People v. Stevens (1968), 9 Mich App 531, 533, 534, we said:
"If evidence has been presented to support a conviction of the lesser offense, the requested instructions must be given; failure to do so would constitute error. People v. Jones (1935), 273 Mich 430. If, on the other hand, no evidence has been presented to support a conviction of the lesser offense, then the requested instruction should be refused. People v. Utter (1921), 217 Mich 74; People v. Hearn (1958), 354 Mich 468.
"Where no request to charge on the lesser offense has been made but evidence exists to support a conviction of the lesser offense, the trial judge may, SUA SPONTE, instruct on the lesser offense. People v. Milhem (1957), 350 Mich 497." (Emphasis added.)
*430 See, also, People v. Jebb (1966), 3 Mich App 118.
We hold that in the absence of a request the court did not err in failing to instruct on the offense of felonious assault.
Defendant next contends that there was error in the failure of the prosecutor to produce one of the witnesses whose name was indorsed on the information. By indorsing the name of a witness on the information the prosecutor becomes duty-bound to produce him at the trial, and the defendant is entitled to rely upon the prosecutor's duty. People v. Lummis (1932), 260 Mich 170. The prosecutor may nevertheless be excused from producing the witness if he shows due diligence in attempting to produce him. People v. Kern (1967), 6 Mich App 406. The people submitted testimony for the purpose of showing due diligence to the effect that attempts to locate the witness were discontinued when it was learned that he had returned to his home somewhere in New York. In People v. Serra (1942), 301 Mich 124, 129, 130, the Court said, with reference to the prosecutor's duty:
"One of the well-established exceptions is that a witness who is not subject to the process of our courts need not be produced if he refuses to attend voluntarily. It is not error for the court to refuse to compel the prosecution to call witnesses whose names are indorsed on the information who are not within the state and answerable to process of the court."
In the case at bar, upon learning that the witness had gone to New York the prosecutor did nothing further to locate him and to determine if he would appear at the trial voluntarily. The court submitted to the jury the question whether the people had made a sufficient showing of due diligence, and instructed them that if they should find that the *431 people had failed to make such a showing, they could consider that the witness, if called, would be adverse to the people. Such procedure was permissible. See People v. Kern, supra, and People v. Serra, supra. We find no reversible error in this regard.
Finally, defendant contends that prejudicial error was committed when the arresting police officer testified that when he arrived at the scene of defendant's capture, one of the persons who had effected the capture told him that defendant had either held up or raped a woman. No objection to this testimony was made by defendant at the trial. It is a settled rule that if a defendant fails to raise a proper objection to alleged errors during the trial, he may not raise them for the first time on appeal. People v. Martin (1965), 1 Mich App 265. In observing this general rule, this Court will exercise its prerogative of searching for error which reflects clear injustice. People v. Paul F. Baker (1967), 7 Mich App 471. However, we find no such grievous error in the case at bar.
Affirmed.
BURNS and FITZGERALD, JJ., concurred.