PEOPLE
v.
JOHNSON
PEOPLE
v.
LOVE
Docket Nos. 58313, 58314.
Supreme Court of Michigan.
Decided November 23, 1976.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Edward Reilly Wilson, Research, Training and Appeals, and Timothy A. Baughman, Assistant Prosecuting Attorney, for the people.
William B. Daniel for defendant Johnson.
*687 Sheldon Halpern and Neal Bush for defendant Love.
PER CURIAM:
This case presents the question whether a trial judge has the power to dismiss a case because he disbelieves witnesses. After a guilty verdict against defendants Johnson and Love had been returned by the jury, the judge granted a new trial because he did not believe the testimony of crucial prosecution witnesses. Our earlier order in this case recognizes that a trial judge may grant a new trial because he disbelieves the testimony of witnesses for the prevailing party. A trial judge may grant a new trial when " * * * justice has not been done * * *." MCLA 770.1; MSA 28.1098. 391 Mich. 834; 218 NW2d 378 (1974).
Following a remand for new trial, the judge granted motions to dismiss by both defendants. In affirming, the Court of Appeals held that dismissal without a new trial was proper because otherwise there could be an endless number of retrials following successive grants of motions for new trial. The Court reasoned that if it cannot prevent a retrial, it cannot prevent a dismissal. 68 Mich. App. 54; 242 NW2d 35 (1976). We disagree.
The issue presented in a motion to dismiss is whether sufficient evidence has been produced to support a conviction. In this case, there is more than sufficient evidence to convict the defendants of first-degree murder. As the trier of fact, the jury is the final judge of credibility. People v Dobine, 371 Mich. 593, 598; 124 NW2d 795 (1963). The question of the sufficiency of the evidence is one for the jury unless there is no evidence at all upon a material point. People v Abernathy, 253 Mich. 583, 587; 235 N.W. 261 (1931). The people are entitled to another trial pursuant to the judge's *688 order granting a new trial and our order of May 23, 1974, confirming his power to enter that order.
In lieu of leave to appeal, pursuant to GCR 1963, 853.2(4), we reverse the judgment of the Court of Appeals and remand to Recorder's Court for trial.
KAVANAGH, C.J., and WILLIAMS, LEVIN, COLEMAN, FITZGERALD, LINDEMER, and RYAN, JJ., concurred.