People v. Steenberg , 35 Mich. App. 446 ( 1971 )

T. M. Burns, J.

The defendant was tried by a jury for committing acts of gross indecency contrary to MCLA § 750.338b (Stat Ann 1954 Rev § 28-.570 [2]). The jury found him guilty of attempted gross indecency; and on September 30, 1969, defendant was sentenced to a term of one year imprisonment in the Detroit House of Correction.

The defendant contends that a mistrial should have been granted when on cross-examination the complaining witness gave hearsay testimony with regard to acts and conduct committed by the defendant upon the person of complainant’s sister who was also the defendant’s wife.

When asked why she hadn’t immediately contacted the police, the complainant stated:

“A. I didn’t contact them until after I found out what he had been doing to my sister for three years —the same thing he did to me.”

Defendant then moved for a mistrial because the statement was highly prejudicial. The motion was, however, denied.

Although the trial court did instruct the jury to disregard the statement, we agree with the defendant that it was highly prejudicial and that a mistrial should have been granted.

The testimony inadvertently elicited by defense counsel was, of course, hearsay. It was also testimony which defendant’s wife, had she been called as a witness, could not have testified to since a wife may not, under these circumstances, testify against her husband in Michigan.

We cannot say, in this instance, that the instruction by the trial court removed from the jury the impression made upon them by such an inflammatory statement. Accordingly, we cannot say that the trial court’s refusal to grant a mistrial did not result in a miscarriage of justice; and we must, therefore, remand for a new trial.

Reversed and remanded.

V. J. Brennan, concurred.