
    PEOPLE v GAITER
   AMENDED ORDER

On order of the Court, the application for leave to appeal is considered, and the same hereby is granted. The Court, sua sponte, under GCR 1963, 865.1(7), hereby vacates the decision of the Court of Appeals and remands the case to the Recorder’s Court for the City of Detroit for new trial.

The defendant was convicted of second-degree murder of an employee of a supermarket. After the victim was shot he told several fellow employees that he had been shot by the guy with the braided beard. An employee testified that he observed a man with a braided beard shoot the decedent but he was unable to identify the defendant as that man. The defendant wore a braided beard and was a frequent visitor to the market.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Dominick R. Carnovale, Chief, Appellate Department, and Gerard A. Poehlman, Assistant Prosecuting Attorney, for the people. Carl Ziemba, for defendant. (Docket No. 55,711.) Case below, Court of Appeals No. 16,170, per curiam opinion of March 22,1974.

The defendant denied shooting the victim and testified on cross-examination to having drunk wine in an alley near the market about an hour prior to the shooting. Over objection, the prosecutor was permitted to call a witness who testified in rebuttal that he had been drinking wine in an alley close to the market before the shooting and that others in the group included the defendant’s brother and a person with a braided beard whom he could not identify. The individual with the braided beard told him that "he was going to kill him a nigger that night” and showed him what appeared to be a gun sticking in his belt.

It was error to allow the rebuttal witnéss to testify, the prosecutor neither having indorsed him as a witness (MCLA 767.40; MSA 28.980) nor called him as a part of his case in chief. Hurd v People, 25 Mich 405, 416 (1872); People v Quick, 58 Mich 321 (1885); People v Rose, 268 Mich 529 (1934); People v McGillen #1, 392 Mich 251 (1974). October 23, 1974.

M. S. Coleman, J.,

dissents.  