People v. Szeles

18 Mich. App. 575 (1969) 171 N.W.2d 550

PEOPLE
v.
SZELES

Docket No. 1,916.

Michigan Court of Appeals.

Decided August 25, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Thomas P. Smith, Assistant Prosecuting Attorney, for the people.

Seymour Posner (Ruth Ritter, of counsel), for defendant on appeal.

Before: LESINSKI, C.J., and J.H. GILLIS and BEER,^[*] JJ.

PER CURIAM.

Defendant asserts he was deprived of a fair trial because the trial judge refused to permit a certain witness to be called in his behalf. Both prosecution and defense asked the trial court to exclude all witnesses before the taking of any testimony. The judge granted their mutual request. The witness in question was an unindorsed witness who admitted hearing the command of the court excluding witnesses. It appears that she stayed in the courtroom and heard much of the testimony before defendant attempted to have her called in defense. We find no abuse of discretion on the part of the trial judge in refusing to permit the witness to take the stand.

Defendant also contends that certain guns were improperly admitted as evidence. A landlady testified there were no guns on her premises before defendant became a roomer. However, after his arrival she found the guns and informed the police. The guns were admitted as evidence by the court. We find no error here since the guns were introduced to show that they were, or could be inferred to be, in the possession of the defendant and were not essential to the establishment of a conspiracy.

Deprivation of a constitutional right is asserted by defendant because a witness, who had testified at the preliminary examination, refused to testify at the trial. The testimony of that witness at the preliminary examination was then read to the jury. The record discloses that defendant was represented by counsel at the preliminary examination and entered into extensive cross-examination of the witness at that time. The trial judge properly permitted the reading of the testimony on the preliminary examination given by this recalcitrant witness. CL 1948, § 768.26 (Stat Ann 1954 Rev § 28.1049); People v. Pickett (1954), 339 Mich. 294.

Conviction affirmed.

NOTES

[*] Circuit judge, sitting on the Court of Appeals by assignment.