People v. Barbeaux

J. H. Gillis, J.

On April 30, 1975, defendant was convicted of committing statutory rape, MCLA 750.520; MSA 28.788, which has been repealed. This was the second trial for this offense, the first one resulting in a mistrial. Following sentence, defendant appeals as of right raising two issues for our consideration.

Defendant claims, and we agree, that the trial judge abused his discretion in denying defendant’s motion to sequester witnesses. People v Insley, 36 Mich App 593; 194 NW2d 20 (1971). However, after a thorough reading of the entire transcript, we find this error to be harmless. People v Erb, 48 Mich App 622; 211 NW2d 51 (1973).

Although the second trial was not a duplicate of the first, many of the witnesses testified at both trials, including one of the two girls alluded to in the dissenting opinion, and the testimony is substantially identical. People v Williams, 6 Mich App 412; 149 NW2d 245 (1967).

Defendant’s second claim of error is that certain testimony concerning the selling of marijuana by defendant and "pot parties” held in defendant’s home resulted in prejudicial error. We are of the opinion that this testimony did not assist any juror in the formation of a guilty verdict. People v Swan, 56 Mich App 22, 33; 223 NW2d 346 (1974), lv den, 395 Mich 810 (1975). In any event, it is clear from the record that the testimony regarding "parties” was brought out by the defense and that the prosecutor merely asked several more permissible questions on re-direct. See People v Wright, 41 Mich App 518; 200 NW2d 362 (1972). The probative value of the testimony was merely part of the res gestae of the crime and was admitted solely to assure the jury that all of the pertinent information and evidence was before the jury so that they could comprehend the entire picture as one continuing operation. People v Nawrocki, 376 Mich 252; 136 NW2d 922 (1965). Although the trial judge should have given a cautionary instruction in his final instructions as to both the "pot parties” and sale of marijuana, one was not requested by the defendant’s counsel. There being no absolute requirement that such a limiting instruction be given, the failure to so request results in a waiver.

Affirmed.

W. P. Hampton, J., concurred.