People v. Dinwiddie

Per Curiam.

Defendant was tried without a jury and on March 1, 1968 was convicted of the crime of taking indecent liberties with a child under the age of 16.¹ On appeal the prosecution has accepted the defendant’s statement of facts.

Initially at the trial, complainant, a seven-year-old child, would not testify concerning th'e- incident alleged in the complaint. Later the same day she was recalled to the stand, but still would not testify about the alleged acts. The prosecutor then reluctantly moved to dismiss the case. The judge took this motion under advisement and adjourned the case to the next afternoon. At that time the complainant did testify as to facts of the crime.

The defendant seeks a new trial claiming the trial judge abused his discretion in failing to grant the prosecution’s motion to dismiss immediately; and in allowing the complainant to take the stand a third time when she had twice refused to testify about the alleged crime. ,

Defendant has submitted an affidavit from defendant’s wife in which she swears that she overheard the complainant say “If I don’t testify, I won’t go swimming and won’t get my bathing suit.” This statement was allegedly made outside the court room prior to the giving of the incriminating testimony, and in the presence of the complainant’s father and the policewoman in charge of the case.²

Defendant relies on People v. Beech (1902), 129 Mich 622, for the proposition that the testimony of a young child elicited by the giving of promises should have been rejected. In the Beech case the child gave contradictory testimony in the most material matters after being given a doll and some candy. The Supreme Court held that this testimony, as given, was incompetent.

In the instant case complainant did not give contradictory testimony, but rather would not testify until the third time she took the stand. While the witness may have been induced to testify, her testimony was not contradictory, nor does the record disclose that she was influenced to give specific testimony. In the absence of any authority indicating the testimony was incompetent, the Court of Appeals will not reverse where the trial judge, sitting without a jury, was able to view the demeanor of the witness and so adjudge her credibility. People v. Panknin (1966), 4 Mich App 19, 33; Leighton v. Leighton (1968), 10 Mich App 425.

The record discloses that the trial court did not abuse his discretion in delaying any determination regarding the motion to dismiss until it was clear whether or not there existed any incriminating testimony.

Affirmed.

1 CLS 1961, § 750.336 (Stat Ann 1954 Rev § 28.568).

2 The alleged statement was never called to the attention of the trial court either during the trial or in post-conviction proceedings.