People v. Frazier Walker , 385 Mich. 596 ( 1971 )

385 Mich. 596 (1971) 189 N.W.2d 41

PEOPLE
v.
FRAZIER WALKER

No. 15 June Term 1971, Docket No. 52,921.

Supreme Court of Michigan.

Decided August 27, 1971.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Robert F. Leonard, Prosecuting Attorney, and Donald A. Kuebler, Chief Assistant Prosecuting Attorney, for the people.

Elisha Scott, Jr., for defendant on appeal.

PER CURIAM:

We affirm the Court of Appeals for the reasons set forth in its per curiam opinion in this cause filed June 3, 1970. 24 Mich. App. 360. Remanded for new trial.

T.M. KAVANAGH, C.J., and ADAMS, T.G. KAVANAGH, SWAINSON, and WILLIAMS, JJ., concurred.

T.E. BRENNAN, J. (dissenting).

I cannot agree with the decision of the Court.

The mere fact that a trial judge participated in pre-trial proceedings on the case, including requests for adjournment, should not per se disqualify the judge from hearing the case.

It is conceivable, I suppose, that protracted pretrial proceedings might involve the trial judge so deeply in the litigation that he is unable to sit impartially when the matter is finally set down for trial.

In such a case, the prejudice of the trial judge should be tested by means of a motion for his disqualification. The procedure is outlined in GCR 1963, 405.

No attempt to disqualify Judge Papp was made here. Neither was there any objection to her sitting as the trier of the fact. Defendant waived jury trial.

The conviction should be affirmed, and the Court of Appeals should be reversed.

BLACK, J., concurred with T.E. BRENNAN, J.