People v. Newell

Quinn, P. J.

Defendant was tried and convicted by jury verdict dated March 15, 1967 of first-degree murder, MOLA § 750.316 (Stat Ann 1954 Rev § 28-.548). Thereafter he was sentenced to life imprisonment and he appeals.

At the preliminary examination, one George Atkins testified as to the identity of the murder victim, his mother. Defendant was represented at the examination by his present counsel, who did not cross-examine the witness. A subpoena issued for George Atkins, requiring his attendance at trial. Service was attempted about March 8, 1967 at the known address of Atkins, but service was not made because he was in Port Leonard Wood, Missouri. A further attempt at service at the same address was made the next day, but Atkins was not present.

At trial, the people offered in evidence the prior testimony of Atkins on the basis of his unavailability. Defendant did not dispute the fact that Atkins was in Port Leonard Wood, but he objected to the use of the prior testimony at trial on the basis such use denied him the right of confrontation and unavailability was not shown. The trial court found Atkins was unavailable and the prior testimony of identification was read to the jury. Defendant now contends this was reversible error.

On the basis of MOLA § 768.26 (Stat Ann 1954 Rev § 28.1049) and People v. Hunley (1946), 313 Mich 688, we affirm the trial court’s ruling. Barber v. Page (1968), 390 US 719 (88 S Ct 1318, 20 L Ed 2d 255), is not applicable to the case before us. In Barber, no effort was made to produce a res gestae witness, who gave testimony incriminating Barber. Here, Atkins- was not a res gestae witness, his testimony did not incriminate defendant, and efforts were made to produce him.

Defendant’s contentions that the victim’s death was not proven and that the verdict was against the great weight of the evidence are not substantiated by the record.

Finally defendant urges as reversible error comments of the prosecuting attorney in closing argument. In each instance of such comments, defendant objected to them and the objections were sustained. The court then, and in the final charge, instructed the jury with respect to the objectionable comments. Assuming the remarks of the prosecuting attorney were prejudicial, they do not constitute reversible error on this record. People v. Panknin (1966), 4 Mich App 19, 32, and People v. Williams (1968), 11 Mich App 62, 66.

Affirmed.

MoG-begor and V. J. Brennan, JJ., concurred.