People v. Walker

T. G. Kavana&h, J.

Defendant appeals his conviction of second-degree murder (CL 1948, § 750.317 [Stat Ann 1954 Rev § 28.549]), asserting 2 claims of error:

1. The admission into evidence of a statement taken from him before he had been properly advised of his right to counsel;

2. The refusal of the trial court to permit defense counsel to examine a prosecution witness out of the presence of the jury to determine if he had ceased to he a “hostile witness,”

There is no merit to defendant's first claim of error. The statement was admitted into evidence by defendant, and at no time during the trial did he object to its admission. See People v. Ridley (1967), 8 Mich App 549.

It is sometimes proper for a party to treat his own witness as a hostile witness and to ask him leading questions. People v. Lusk (1923), 225 Mich 642. In the case at bar defendant acquiesced in the people’s motion to so treat witness Chambliss. However, the court adjourned for the day in the midst of the prosecutor’s cross-examination of this witness. When the cross-examination was resumed the next day, defense counsel made his motion to examine the witness out of the presence of the jury. The court denied the motion on the ground that the record did not yet support defendant’s position that the witness’ testimony was different than his testimony of the previous day, and that he could no longer be considered hostile. The court expressly made its ruling without prejudice to a renewal of defendant’s motion if the record should later on support his position. However, defense counsel did not renew his motion. We hold that the court did not abuse his discretion in denying the motion.

Affirmed.

Quinn, P. J. and Corkin, J. concurred.