People v. Rizzo , 40 Mich. App. 427 ( 1972 )

Per Curiam.

A jury convicted defendants of breaking and entering an occupied dwelling with intent to commit larceny, MCLA 750.110; MSA 28.305. They appeal on the basis of two issues which we restate for accuracy as follows:

1. Was it reversible error to admit the preliminary examination testimony of a missing witness?

2. Was reversible error committed by admitting the entire transcript of that testimony which included stricken testimony, comments, objections and argument of counsel and the examining magistrate?

A lengthy recitation of the facts would serve no purpose. We merely observe that proof of the offense and of defendants’ participation therein was overwhelming.

Reiteration of the rules governing use at trial of a missing witness’s testimony at preliminary examination is unnecessary. They are clearly stated in People v Martin #2, 21 Mich App 667 (1970). Following an extensive hearing to determine what the prosecution had done to secure the appearance of the missing witness, the trial court found that the prosecutor had exercised due diligence in his attempt to produce the witness and admitted the preliminary examination testimony of that witness. On review, we are not able to find that the finding of due diligence was clearly erroneous, GCR 1963, 517.1. There was no abuse of discretion and no error in admitting the preliminary examination testimony of the missing witness.

The statute, MCLA 768.26; MSA 28.1049, authorizes the use of "testimony taken at an examination, * * * ”. This precludes use of those parts of the transcript that are not testimony. It was error to admit the entire transcript. The record precludes a finding that this was reversible error, however, because defendants have failed to demonstrate prejudice from admission of the entire transcript. Without the transcript, the evidence of defendants’ guilt was overwhelming. No miscarriage of justice is shown, MCLA 769.26; MSA 28.1096.

Affirmed.