Opinion
Docket No. 753.
Decided February 14, 1967. Leave to appeal granted June 8, 1967. Order granting leave to appeal vacated April 3, 1968, as having been improvidently granted.
Appeal from Branch; Andrews (Mark S.), J. Submitted Division 3 December 7, 1966, at Grand Rapids. (Docket No. 753.) Decided February 14, 1967. Leave to appeal granted June 8, 1967. Order granting leave to appeal vacated April 3, 1968, as having been improvidently granted.
Harold J. Dailey was convicted of robbery armed. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Lowell M. Kelly, Prosecuting Attorney, for the people.
Harold J. Smith, for defendant.
Defendant was convicted by jury verdict of armed robbery. His motion for new trial was denied and he appeals from the conviction and sentence and the denial of his motion for new trial.
CLS 1961, § 750.529 (Stat Ann 1965 Cum Supp § 28.797).
Defendant raises 4 questions for review, but 2 of them, namely:
"Was defendant denied a fair trial because of prejudicial comment and conduct of the trial court?"
"Was the trial court abusive of its discretion in limiting the scope of the voir dire examination?"
were not raised in the trial court and they cannot be raised for the first time on appeal. People v. Will (1966), 3 Mich. App. 330. The 2 questions properly before this Court are stated by defendant as follows:
"Was the trial court in error in refusing appellant's motion for a new trial?"
"Was the trial court in error in refusing appellant's motion for change of venue?"
Defendant was one of four participants in the offense. The other three pleaded guilty and were sentenced to prison, but they all testified against defendant at his trial. Later, one of them, Bradford Woodworth, recanted by way of affidavit which was one of the grounds urged for granting a new trial, and one of the grounds argued here in support of the asserted error on the part of the trial court in denying defendant's motion for new trial.
The motion for new trial was addressed to the trial court's discretion. People v. Vasquez (1942), 303 Mich. 340. To establish error in denying it, a clear abuse of discretion must be shown. People v. Barrows (1959), 358 Mich. 267. On the basis of People v. Smallwood (1943), 306 Mich. 49 (147 ALR 439), defendant contends the recanting affidavit of Woodworth is basis for reversal. With this we cannot agree. Smallwood involved a charge of rape by a daughter against her father, and proof of the charge was based on the testimony of the daughter alone. When she later recanted, there was adequate reason for granting a new trial. Here the trial court was faced with the unchanged testimony of the two other participants as well as that of the victim and his wife. We find no abuse of discretion, but we do find reason to reiterate a rule stated in Smallwood, supra, at page 55:
"As a rule the court is not impressed by the recanting affidavits of witnesses who attempt to show that they perjured themselves at the trial."
One of the reasons alleged in the motion for change of venue was that defendant's right to receive a fair and impartial trial had been jeopardized by publication in local newspapers of articles concerning the offense and the guilty pleas by three of the participants in which the name of defendant was linked with the other three. The trial court reserved decision on the motion until an attempt was made to obtain a fair and impartial jury. This is the approved procedure. People v. Swift (1912), 172 Mich. 473. After extensive voir dire examination of two jury panels and some talesmen and on the basis of answers on the voir dire examination, the trial judge obtained what he believed to be a fair and impartial jury. He then denied the motion for change of venue and proceeded to trial.
PA 1961, No 236, § 1225 (CLS 1961, § 600.1225 [Stat Ann 1962 Rev § 27A.1225]).
This motion was also addressed to the trial court's discretion. CL 1948, § 762.7 (Stat Ann 1954 Rev § 28.850). To establish error an abuse of discretion must be shown. People v. Swift, supra. The rule applicable to allegations such as are here raised by defendant is aptly stated in Swift, supra, p 480, in a quotation from 24 Cyc p 298 as follows:
"Newspaper reports are ordinarily regarded as too unreliable to influence a fair-minded man when called upon to pass upon the merits of a case in the light of evidence given under oath; and it is now a well-settled rule that a juror, although he may have formed an opinion from reading such reports, is competent if he states that he is without prejudice and can try the case impartially according to the evidence and the court is satisfied that he will do so."
Our statutes set up a similar test. See CL 1948, § 768.10 (Stat Ann 1954 Rev § 28.1033). A reading of the voir dire examination discloses that 4 of the seated jurors had heard or read of the incident involved in the trial previously. However, each denied prejudice from what he had heard or read, denied having formed any opinion from such information and stated affirmatively he would sit as a fair and impartial juror in the trial and render a true verdict according to the law and the evidence the same as though he hadn't heard about the case before. This satisfies the test of Swift, supra, and we find no abuse of discretion.
Affirmed.
FITZGERALD and HOLBROOK, JJ., concurred.