PEOPLE
v.
TYRONE WILLIAMS
PEOPLE
v.
MARLIN
Docket Nos. 11303, 11304.
Michigan Court of Appeals.
Decided December 8, 1971.*420 Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick. R. Carnovale, Chief, Appellate Department, and Elliot B. Glicksman, Assistant Prosecuting Attorney, for the people.
Frederick B. Bellamy, for defendants on appeal.
Before: LESINSKI, C.J., and HOLBROOK and VAN VALKENBURG,[*] JJ.
PER CURIAM.
Defendants, Tyrone Williams and James Marlin, Jr., were tried jointly by a jury and convicted of assault with intent to commit armed robbery, MCLA 750.89; MSA 28.284, and assault with intent to commit great bodily harm less than murder, MCLA 750.84; MSA 28.279. Both defendants appeal as of right.
Defendants urge initially that the trial court committed reversible error in not striking from the record the testimony of a key prosecution witness. The witness, who alleged that he had driven defendants to the scene of the attempted robbery, stated that he had seen a gun used by defendants in their possession on the evening in question, April 24, 1970. On cross-examination, witness Bush testified that defendant had the gun "about the beginning of June". On redirect examination, the witness again testified that defendant had the gun before April 25. This is not a case where the credibility of the witness was completely impeached. Rather, the inconsistency in *421 the testimony of witness Bush was properly a factor to be considered by the jury in weighing the truth of his testimony. People v White, 31 Mich App 80 (1971); People v Gray, 23 Mich App 139 (1970).
Defendants also contend that the trial court committed error, while giving supplemental instructions, when it stated, "Now, if the man had died, it would have been murder". Notwithstanding defendant's arguments, this is not a case like People v Wojnicz, 12 Mich App 423 (1968), where the trial judge stated as a fact that which undisputed evidence tended to prove. Further, any prejudice which might have flowed from this statement was removed when the trial judge informed the jury that the reference he made to "the man" was only meant in a "broad general sense." As this Court stated in People v Green, 34 Mich App 149 (1971):
"It is axiomatic that the jury instructions must be considered in their entirety; error cannot be established by one phrase lifted from the whole charge, unless the phrase prejudices the entire charge."
There was no prejudice here, especially in view of the trial court's corrective instruction.
Defendant Marlin also claims that the trial court committed error in allowing an in-court identification to be made of him. Defendant argues that the identification was tainted by prior custodial exposure to the witness, because the witness, one of the victims of the attempted robbery, was unable to identify defendant Marlin in pictures one week after the incident, in a lineup three weeks thereafter, and at the preliminary examination. He then made a positive identification of defendant Marlin at trial.
However, there was no tainted out-of-court confrontation between defendant Marlin and the witness. He was represented by counsel at the two *422 lineups. United States v Wade, 388 US 218; 87 S Ct 1926; 18 L Ed 2d 1149 (1967). The trial court conducted a separate hearing to determine whether the lineup was "unnecessarily suggestive in nature when viewed `within the totality of the circumstances'". People v Young, 21 Mich App 684, 688 (1970). He concluded that it was not. The record fails to reveal that the trial judge erred in this conclusion. Thus, the weight to be given the in-court identification under the circumstances of this case was for the jury to determine. People v Wright, 35 Mich App 365 (1971); People v Jordan, 34 Mich App 360 (1971); People v DuPuie, 31 Mich App 14 (1971).
Affirmed.
NOTES
[*] Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const 1963, art 6, § 23 as amended in 1968.