author: McGregor, J.

text:
    PEOPLE v. SHARP.
    1. Criminal Law — Former Jeopardy.
    Both the Federal and State Constitutions prohibit placing a person twice in jeopardy for the same offense (US Const, Am 5; Mich Const 1963, art 1, § 15).
    2. Same — Former Jeopardy — Homicide—Assault and Battery.
    No double jeopardy attaches where defendant is tried for assault and battery, and subsequently after the victim dies is tried for murder since at the time of the trial for assault and battery the death had not ensued, and not until it did was the homicide committed.
    Beferences for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 166.
    [2] 21 Am Jur 2d, Criminal Law § 186.
    Acquittal on homicide charge as bar to subsequent prosecution for assault and battery, or viee versa. 37 ALB2d 1068.
    [3-5] 21 Am Jur 2d, Criminal Law § 217.
    Doctrine of res judicata in criminal cases. 147 ALB 991.
    [6] 4 Am Jur 2d, Appeal and Error § 411.
    Death or disability of eourt reporter before transcription or completion of notes or record as ground for new trial or reversal. 19 ALB2d 1098.
    [7] 21 Am Jur 2d, Criminal Law § 313.
    [8] 5 Am Jur 2d, Appeal and Error §§ 937, 938; 21 Am Jur 2d, Criminal Law § 217.

      3. Judgment — Res Judicata.
    Judgment of eourt of competent jurisdiction upon a point is, as a plea, a bar, or as evidence, conclusive between the same parties, or their privies, upon the same matter directly in question in another eourt, and no matter onee litigated and determined, by proper authority, shall a second time be brought in controversy between the same parties or their privies.
    4. Criminal Law — Res Judicata.
    The doctrine of res judicata is recognized in this State in criminal law.
    5. Same — Judgment—Res Judicata.
    Prosecution for first-degree murder, which requires specific intent, after a former conviction of assault without intent to commit murder on the same facts, held,, error, because the element of intent is negated by principles of res judicata (CL 1948, §§ 750.81a, 750.316).
    6. Appeal and Error — Transcript—New Trial.
    Unavailability of trial transcript due to death of court reporter is not necessarily grounds for a new trial (GCR 1963, 812.2[6]).
    7. Criminal Law — Preliminary Examination — Advice op Counsel.
    Advice of counsel on preliminary examination was permissible under former eourt rule, but not mandatory (Court Rule No 35A[1945]).
    8. Same — Aggravated Assault — Manslaughter.
    Conviction of first-degree murder, arising out of same set of facts as former conviction, before death of victim, of aggravated assault, is changed to conviction of manslaughter, the most severe charge of which defendant could have been convicted because of principles of res judicata, and cause remanded to trial court for proper sentence for manslaughter (CL 1948, §§ 750.81a, 750.316, 750.321).
    Appeal from Recorder’s Court of Detroit; Gillis (Joseph A.), J.
    Submitted Division 1 June 8, 1967, at Grand Rapids.
    (Docket No. 2,511.)
    Decided December 5, 1967.
    Richard Sharp was convicted of first-degree murder, Delayed appeal granted.
    Sentence vacated, and case remanded witb. instructions to sentence defendant for crime of manslaughter.

      Frank J. Kelley, Attorney General, Robert A. Berengoski, Solicitor General, William J. Cahalan, Prosecuting Attorney, Samuel J. Torina, Chief Appellate Lawyer, and Rheo G. Marohancl, Assistant Prosecuting Attorney, for the people.

      Joseph V. Lutomski (Kenneth A. Webb, of counsel), for defendant.
   McGregor, J.

Defendant was involved in an altercation with Ben Robinson on June 1, 1951. He was charged with felonious assault with a deadly weapon, a wooden table leg. At commencement of trial on July 2, 1951, a second count to the information was added, charging aggravated assault, a misdemeanor. Thereupon, the defendant pled guilty to the misdemeanor of aggravated assault, and on July 16, 1951, was sentenced to serve 10 months to 1 year in prison. Subsequently, on August 29, 1951, Ben Robinson died as the result of defendant’s attack, the same incident that was the basis of the above assáult conviction.

On October 19, 1951, defendant was charged with murder languishing, or murder in the first degree. Defendant was not represented by counsel at the preliminary examination nor at the arraignment, on the information. Then, the court appointed counsel who moved to quash the information on the ground of former, or double jeopardy. The motion was heard and denied. A trial was had and the defendant was found guilty of murder in the first degree. He was sentenced to life in prison, as requiréd by the statute. The. record shows that the court reporter at defendant’s trial is now dead, and that no other reporter can transcribe the notes, and consequently, there is no transcript.

Defendant in propria persona, on November 6, 1952, filed a habeas corpus petition in the trial court, claiming double jeopardy, which was denied on February 16, 1953. Subsequently, he sought habeas corpus in the Supreme Court, which was-denied on June 8, 1953. Certiorari was refused by the United States Supreme Court, November 16, 1953. In 1965, after an indigency determination, present counsel was appointed. A motion for a new trial was then made and denied. Defendant’s application for delayed appeal was granted by this Court with a request that the parties include in their briefs argument on the issues of res judicata effect of the prior conviction of defendant under CL 1948, § 750.81a upon the element of intent to commit murder in the later charge.

It is the defendant’s contention that the people of the State of Michigan, having once issued the information of felonious assault against him, are estopped from subsequently issuing an information for murder in the first degree, resulting from the same assault, insisting that the terms thereof are completely inconsistent with the terms of the felonious assault information. Defendant further contends that the allegation in the information for felonious assault “without intending then and there to inflict great bodily harm” and the allegation that “without intending then and there to commit the crime of murder” are completely inconsistent with the information in the instant case, and that, in view of the fact that he had previously entered a plea of guilty to the offense of aggravated assault which was accepted by the trial court, the most severe charge which could have been subsequently made against him would have been the crime of manslaughter, as the terms thereof are not inconsistent with the terms of the offense of aggravated assault.

Defendant’s appeal raises five questions: (1) Was the defendant twice put in jeopardy for the same offense? (2) Was his former conviction of assault without intent to commit murder res judicata on the question of the intent to commit murder? (3) Is the defendant entitled to a new trial because of the unavailability of the trial transcript due to the death of the court reporter? (4) Was it error that the defendant was not represented by counsel at the time of arraignment on the information, when a plea of guilty was entered? (5) Was it error that the defendant was not represented by counsel at the preliminary examination?

Both the Federal and State Constitutions prohibit placing a person twice in jeopardy for the same offense. US Const, Am 5; Mich Const 1963, art 1, § 15. The United States Supreme Court has held in a case where the defendant was convicted of assault and battery before a justice of the peace and then the victim died, it was permissible to try him for homicide.

“The homicide charged against the accused in the court of first instance and the assault and battery for which he was tried before the justice of the peace, although identical in some of their elements, were distinct offenses both in law and in fact. The death of the injured person was the principal element of the homicide, but was no part of the assault and battery. At the time of the trial for the latter the death had not ensued, and not until it did ensue was the homicide committed. Then, and not before, was it possible to put the accused in jeopardy for that offense.” Diaz v. United States (1911), 223 US 442 at 448, 449 (32 S Ct 250, 56 L ed 500, Ann Cas 1913C, 1138).

Therefore, former jeopardy is not a bar to this prosecution.

Defendant contends that his first charge of felonious assault and his subsequent conviction for aggravated assault is res judicata on the question of intent to commit murder. The general rule of res judicata is:

“ ‘That the judgment of a court of competent jurisdiction directly upon the point is, as a plea, a bar, or as evidence conclusive, between the same parties, or their privies, upon the same matter directly in question in another court, and that no matter once litigated and determined by proper authority, shall a second time be brought in controversy between the same parties or their privies [citing cases]. Such has ever been the rule, and although the object and the subject matter of the two suits or proceedings be different, yet the judgment of a court of competent jurisdiction upon a particular matter, fact or point, once litigated and determined, is conclusive between parties, or their privies.’” Knibbe v. City of Warren (1966), 2 Mich App 241, 244.

Michigan has recognized the doctrine of res judicata in criminal prosecutions. People v. Albers (1904), 137 Mich 678, cited in 147 ALR. 992, and 1 Wharton’s Criminal Law and Procedure, § 174, p 406.

In the case at bar defendant timely raised the earlier conviction as a bar to the prosecution for murder. He pointed up the inconsistency of a charge of first-degree murder, which requires specific intent, and the former conviction of assault without intent to murder. The trial court erred in allowing the question of intent to go to the jury. The most severe charge of which the defendant could have been guilty was manslaughter.

The unavailability of the trial transcript due to the death of the court reporter is not necessarily grounds for a new trial.. GrCR 1963, 812.2(b) provides in part:

“"Where there is no stenographic record of the proceedings in the trial court, a settled record should be used in lieu thereof as provided in rule 705.”.

There is no showing of an attempt to comply with this rule by defendant. See People v. Gatewood (1966) 5 Mich App 470.

The defendant cites Court Rule No 35A (1945), of the Michigan Court Rules, in effect at that time, in support of his right to have an attorney to represent him at his arraignment. This rule concerns itself with the obligation of the trial court at the arraignment on information to apprise the accused before he pleads of his right to counsel, at public expense if necessary. The accused did not express a desire to plead guilty, in fact, he entered a plea of not guilty, and upon being informed of the indigency of the defendant, the court assigned counsel to the defendant. At the time defendant’s preliminary examination was conducted, representation of a defendant by an attorney was permissible but not mandatory. People v. Podolski (1952), 332 Mich 508.

Defendant cites no applicable authority to support his allegation that he was denied due process because he was not represented by counsel at his examination. Any defense that he had could be raised at any time after counsel was appointed. In addition thereto, defendant failed to show any prejudice resulting from his lack of counsel at these preliminary stages.

Therefore, it is concluded that the proper disposition of this case is to set aside the sentence and to remand the defendant to the trial court, with instructions to sentence the defendant for the crime of manslaughter. People v. Farrell (1906), 146 Mich 264, 272.

Eemanded for proceedings consistent with this opinion.

Holbrook, P. J., and Burns, J., concurred.

       CL 1948, § 750.82 (Stat Ann 1962 Rev § 28.277).
      “Any person who shall assault another with a gun, revolver, pistol, knife, iron bar, club, brass knuckles or other dangerous weapon, but without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a felony.”

       CL 1948, § 750.81a [Stat Ann 1962 Rev § 28.276(1)].
      “Any person who shall assault another without any weapon and inflict serious or aggravated injury upon the person of another without intending to commit the crime of murder, and without intending to inflict great bodily harm less than the crime of murder, shall be guilty of a misdemeanor, punishable by imprisonment in the county jail or the state prison for a period of not more than 1 year, or fine of $500.00, or both.”
      Information for assault was issued against the defendant: “Richard Sharp, late of the city of Detroit, county and State aforesaid, not then and there being armed with a dangerous weapon, did assault on Ben Robinson and did inflict a serious and aggravated injury, to-wit: fracture of the skull, upon him, the said Ben Robinson, without intending then and there to commit the crime of murder and without intending then and there to inflict great bodily harm less than the crime of murder upon the said Ben Robinson.”

       CL 1948, § 750.316 (Stat Ann 1954 Rev § 28.548).

      'EfEeetive Sejitember 1,1947; see 318 Mieh xxxix, xl.

       CL 1948, § 750.321 (Stat Ann 1954 Rev § 28.553).


source: Caselaw Access Project

author: Holbrook, P. J.

license: Public Domain

text:
    PEOPLE v. McCROHAN.
    Criminal Law — Driving Automobile While Under Influence of Intoxicating Liquor — Blood Test.
    A person who is charged with driving under the influence of intoxicating liquor must be advised of his right to refuse" a chemical test of his blood but need not be advised of his right to have a blood test administered (CLS 1961, § 257.625; § 257.625a, as amended by PA 1964, No 104).
    References for Points in Headnote
    7 Am Jur 2d, Automobiles and Highway Traffic §§ 115, 259, 260, 332-334.

      Appeal from Recorder’s Court of Detroit; Wood (Andrew C.), J.
    Submitted Division 1 June 8, 1967, at Grand Rapids.
    (Docket No. 2,361.)
    Decided December 5, 1967.
    Michael James McCrohan was convicted of operating a motor vehicle while under the influence of intoxicating liquor. Defendant appeals.
    Affirmed.

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

      Tauber & Garon, for defendant.
   Holbrook, P. J.

On May 16, 1966, defendant was tried and convicted of the offense of operating a motor vehicle while under the influence of intoxicating liquor, by the court without a jury in the recorder’s court, traffic and ordinance division. He was sentenced to 5 days in the Detroit house of correction and required to pay costs of $75.

Defendant has appealed and raises one question for review: Was defendant properly advised of his rights in accordance with CLS 1961, § 257.625a, as amended by PA 1964, No 104, effective, August 28, 1964 (Stat Ann 1965 Cum Supp § 9.2325[1])¶

The pertinent facts appear as follows: In the city of Detroit on March 25, 1966, at 8 p.m., the defendant was observed driving in an improper manner. He was stopped, placed under arrest and taken to a police station. Later, when he complained of being ill, he was taken to Detroit Receiving Hospital for a short while and then to the police station on Beaubien street.

Officer Trozak of the Detroit police department testified that defendant had been driving while under the influence of intoxicating liquor, describing his demeanor, et cetera. The officer on cross-examination by defendant’s counsel stated that he had advised the defendant of his right to take a breathalyzer test, a blood test by a doctor, or any other test he would like to take. The officer during cross-examination also stated defendant refused to take a test because “he wouldn’t be able to pass it, he had too much to drink.”

The officer admitted that he did not inform defendant that he could go to Receiving Hospital for a blood test, and this appears to be the main' basis for defendant’s appeal.

Defendant took the stand and denied that he had been driving while under the influence of intoxicating liquor, but that at the time he was ill and had cramps.

The trial court was the trier of the facts and found defendant guilty. It is evident that the trial judge believed the testimony of the officer and rejected that of defendant.

This case is governed by our decision in People v. Church (1966), 5 Mich App 303. Defendant cannot complain of the officer’s failure to advise him he could have a blood test at Receiving Hospital because the applicable statute does not require such advice to be given.

Affirmed.

Burns and McG-regor, JJ., concurred.

       CLS 1961, § 257.625 (Stat Ann 1960 Eev § 9.2325).

       See, currently, as amended by PA 1967, No 253 (Stat Ann 1968 Cum Supp § 9.2325 [1]).—Repoetee.


author: Burns, J.

text:
    PEOPLE v. RUSSELL.
    1. Criminal Law —' Confrontation — Assistance of Counsel — Former Testimony.
    The constitutional right of a defendant to be confronted with the witnesses against him is denied where at a State criminal trial the transcript of a witness’ testimony given at the preliminary examination is admitted as evidence, and this testimony was taken without opportunity for cross-examination and without the assistance of counsel (US Const, Ams 6, 14).
    2. Same — Confrontation — Former Testimony — Assistance of Counsel.
    The privilege of confrontation guaranteed by the United States Constitution held, denied when defendant, not represented by counsel, had no adequate opportunity to cross-examine a witness at preliminary examination, and that witness’ testimony was subsequently read to the jury by the prosecutor; because the witness was not available at trial (US Const, Ams 6, 14).
    References for Points in Headnotes
    [1, 2] 21 Am Jur 2d, Criminal Law §§ 333-344.
    Appeal from "Wayne; Schemanske (Prank G.), J.
    Submitted Division 1 June 8,1967, at Grand Rapids.
    (Docket No. 2,542.)
    Decided December 5, 1967.
    Larry Russell was convicted of unlawful sale and possession of narcotics. Yerdict set aside as to the sale and defendant sentenced for possession. Defendant appeals.
    Reversed and remanded.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cahalan,
      Prosecuting Attorney, Samuel J. Torina, . Chief Appellate Lawyer, and Luvenia D. Rockett,-Assistant Prosecuting Attorney, for the people.

      Robert Weinbaum, for defendant.
   Burns, J.

Defendant was convicted by a jury of the offenses of sale and possession of narcotics.

At trial the chief witness for the prosecution, who allegedly purchased the narcotics from- the defendant, did not appear and the trial judge allowed the prosecutor to read the witness’ preliminary examination testimony to the jury. The defendant was not represented by counsel at the preliminary 'examination and the record does not indicate that he waived counsel. The defendant did not cross-examine the witness, nor was he asked by the court if he desired to cross-examine the witness. Counsel was appointed to represent the defendant at the trial of the cause. The jury returned a verdict of guilty on both counts, which verdict was supported by other competent evidence. However, the judge set aside the guilty verdict as to the sale of narcotics and sentenced the defendant for the unlawful possession of. narcotics.

The defendant'claims on appeal that "the trial court erred by allowing the prosecutor to read the preliminary examination testimony to the jury, that such evidence violated the Sixth Amendment of the United States Constitution:

“In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * * and to have the assistance of counsel for his defense.”

In fairness to the trial judge it should be noted that this case was tried prior to the decision of the United States Supreme Court in Pointer v. Texas (1965), 330 US 400 (85 S Ct 1065, 13 L ed 2d 923). In that case the examining trial was for a determination of probable cause, which is similar to the purpose of a preliminary examination in Michigan. Defendant was not represented by counsel and did not cross-examine a witness at the examining trial, who later was unavailable at the trial. The trial court allowed the examining trial testimony of the unavailable witness to be read in evidence. The United States Supreme Court held that the use of such testimony was a denial of the defendant’s constitutional right of confrontation.

In the present case the defendant, not having counsel at the examination, was denied an adequate opportunity to cross-examine the witness, and the introduction of the transcript in evidence amounted to denial of the privilege of confrontation guaranteed by the Sixth Amendment of the Constitution of the United States, as made applicable to the States by the Fourteenth Amendment. The present case is controlled by the Pointer Case, supra.

Reversed and remanded for a new trial.

Holbrook, P. J., and McG-regor, J., concurred.

       CLS 1961, § 335.152 (Stat Ann 1957 Rev § 18.1122).

       0LS 1961, § 335.153 (Stat Ann 1957 Rev §18.1123).


text:
    PEOPLE v. LIVERMORE.
    1. Criminal Law — Preliminary Examination — Return op Examining Magistrate.
    The signature of an examining magistrate on his return to the circuit court, following preliminary examination, is a ministerial matter, and his failure to sign the return does not deprive the circuit court of jurisdiction.
    2. Same — Preliminary Examination — Return of Magistrate — Signature.
    Claim of defendant, convicted of committing an act of gross indecency with another female, that the trial court erred in failing to grant defendant's motion to quash because the return of the examining magistrate was not signed held, without merit, where the return initially consisted of 2 documents, a single paper bearing his signature which stated that a crime had been committed and that there was reasonable cause to believe that defendant had committed it, and a standard printed return to the circuit court which was properly completed except for his signature, since the signing of the 'return by the magistrate is a ministerial act and there was no prejudice or violation of defendant’s substantial rights by lack of such signature, particularly where an amended return, properly bearing his signature, was subsequently filed (CLS 1961, § 750.338a).
    References for Points in Headnotes
    '1, 2] 21 Am Jur 2d, Criminal Law §§ 440-451.
    '3] 21 Am Jur 2d, Criminal Law §450.
    '4] 21 Am Jut 2d, Criminal Law § § 446, 449, 451.

      '5, 6] 5 Am Jur 2d, Arrest §§ 22-51.
    7] 5 Am Jur 2d, Arrest § 39.
    ^8-10] 5 Am Jur 2d, Arrest §§ 86-93.
    '11, 12] 48 Am Jur, Sodomy §§ 1-8.
    '13, 14] 27 Am Jur, Indictments and Informations § 176 et sect.

    15] 5 Am Jur 2d, Appeal and Error §§ 700, 867.
    ^16] 29 Am Jur 2d, Evidence § 368.
    '17, 18] 53 Am Jur, Trial § 302.

      3. Same — Preliminary Examination.
    An examining magistrate is directed, by statute, to bind' a criminal defendant to appear before the court having jurisdiction if it appears, upon examination of the whole matter, that an offense not cognizable by a justice of the peace has been committed and there is probable cause for charging defendant therewith (CL 1948, § 766.13).
    4. Same — Preliminary Examination — Sufficiency of Evidence.
    Testimony at preliminary examination which established that (1) defendant and another female were observed in close physical contact for a period of about an hour in front of a tent at a public campsite, (2) officers who were called to the scene listened outside the tent for about 10 minutes, in close proximity after defendant and the other female entered the tent, and were able to clearly overhear obscene language and conversation indicative of sexual conduct between 2 female persons, and (3) the officers, upon finally entering the tent, found defendant with another woman on a cot partially covered by a blanket, such testimony was sufficient to justify the magistrate in determining that a crime of gross indecency had been committed and that there was probable cause to believe defendant had committed it (CLS 1961, § 750.338a; CL 1948, § 766.13).
    5. Arrest — Without Warrant.
    Whether an arrest was constitutionally valid depends upon whether at the moment the arrest was made, the officers had probable cause to make it, and whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to justify a prudent man in believing that the accused had committed or was committing an offense (OL 1948, § 764.15).
    6. Same — Without Warrant.
    An officer, by statute, is authorized to arrest a person without a warrant when he has reasonable 'cause to believe that a felony has been committed and that such person committed it (CL 1948, § 764.15).
    7. Same — Gross Indecency Between Females — Without Warrant.
    Defendant’s arrest without warrant for committing an act of gross indecency with another female held, justified, where the officers who arrested her had come to the scene after receiving reasonably trustworthy information that a crime was being committed and made the arrest after listening, for approximately 10 minutes, to obscene language and conversation indicative of such sexual conduct between 2 females as to constitute an act of gross indecency, since the officers then and there had knowledge of facts and circumstances sufficient to warrant a prudent man in believing that the crime charged was being committed (OLS 1961, § 750.338a; CL 1948, § 764.15 [d]).
    8. Same — Search and Seizure — Legality op Entry.
    A police officer, when justified in making an arrest without a warrant, may break open the doors of a dwelling house in order to arrest an offender concealed therein (CL 1948, § 764.15[d]).
    9. Same — Search and Seizure — Legality op Entry.
    Forced entry by police officers without a search warrant into tent where defendant and another female were committing an act of gross indecency, held, lawful, where such entry was made after the officers had reasonable grounds to believe that a felony was being committed and after the officers had received no response to a request that they be allowed to enter the tent, since an officer who is justified in making an arrest without a warrant may make a forced entry, if need be, to arrest an offender (CLS 1961, § 750.338a; CL 1948, § 764.15[d]).
    10. Same — Evidence—Photograph—Testimony.
    Officers who have sufficient information to believe that a felony is or has been committed and that a particular person has committed it may make an arrest without a warrant, breaking open the doors of a dwelling house, if need be, to arrest an offender therein, and both the testimony of the officers as to what they observed upon making such entry without a warrant and photographs taken by them upon such entry are admissible into evidence (CL 1948, § 764.15[dJ).
    11. Criminal Law — Statutes—Gross Indecency.
    It is a felony for any female person, in public or in private, to commit or be a party to the commission of, or to procure, or attempt to procure the commission by any female person of any act of gross indecency with another female person (CLS 1961, § 750.338a).
    .12. Same — Gross Indecency — Searches and Seizures — Photographs — Arrest Without Warrant.
    Testimony by police officers as to what they saw upon entering a tent where defendant and another woman were committing an act of gross indecency, and photographs taken by the officers, held, admissible in evidence in prosecution for committing an act of gross indecency with another female, where the officers were justified in entering the tent and arresting defendant without a warrant because they had probable cause to believe that an act of gross indecency was being committed and that defendant was committing it (CLS 1961, § 750.338a; CL 1948, § 764.15[d]).
    13. Same — Gross Indecency — Public Place — Private Place — Information — Amendment.
    Denial of motion to quash information against defendant charging her with committing an act of gross indecency with another female because the information charged that such act occurred in a public place, when it in fact occurred in a tent used in a public camping area, held, not error, where (1) the exact place of the crime, whether public or private, is not a material element of the offense, (2) no substantial rights of defendant were affected by the variance because defendant could not have been surprised or misled thereby, and (3) particularly where the motion to quash did not claim that the information was defective in substance, since had such claim been made, the prosecutor could have moved to amend (CLS 1961, § 750.338a; CL 1948, §§ 767.46, 767.76).
    14. Same — Indictment or Information — Variance.
    A variance of proof from an allegation in an indictment or information of the particular place where an act occurred, which allegation is not descriptive of the offense and is not required to be proved as laid in order to show the court's jurisdiction, is not material where the variance does not mislead the accused.
    15. Appeal and Error — Questions Eeviewable — Failure to Cite Authorities.
    The Court of Appeals does not consider a question raised on appeal but unsupported by any authority or compelling reasons.
    16. Same — Evidence—Criminal Law — Identification.
    Assertion that the trial court committed reversible error in allowing police officers to testify in a prosecution for committing an act of gross indecency with another female person, as to words and conversations overheard outside a tent, even though they were unable to identify the words spoken by defendant, is not considered by the Court of Appeals where defendant cites no authority or compelling reason in support of her assertion of error (CLS 1961, § 750.338a).

      17. Criminal Law — Directed Verdict — Evidence.
    The State’s evidence must be taken as true, and viewed in the light most favorable to the State, which is entitled to the benefit of every reasonable inference to be drawn from it, when passing on a motion for dismissal or nonsuit in a criminal case.
    18. Same — Gross Indecency — Motion for Acquittal — Sufficiency of Evidence.
    Denial of defendant’s motion for acquittal at close of prosecution’s case, in trial for committing an act of gross indecency with another female person held, not error, where (1) defendant and another woman were observed in close physical contact for about an hour outside the tent of the other woman in a public park, (2) officers who were called to the scene listened outside the tent for about 10 minutes, overhearing foul and obscene language and conversation indicative of sexual conduct between 2 females, and (3) the evidence indicated that, upon entry into the tent, the officers observed defendant and another woman lying on a cot partially covered by a blanket, since, on such a motion, the evidence must be viewed in the light most favorable to the State, and the evidence was sufficient to present a question for jury determination (CLS 1961, § 750.338a).
    Appeal from Osceola; Peterson (William R.), J., presiding.
    Submitted Division 3 June 8, 1967, at Grand Rapids.
    (Docket No. 2,624.)
    Decided December 5, 1967.
    Julie Livermore was convicted of committing an act of gross indecency with another female.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Clarence A. SaJiUn, Prosecuting Attorney, for the people.

      Calvin R. Talhelm, for defendant.
   Holbrook, P. J.

Defendant, Julie Livermore, was charged with, and convicted by jury trial of, committing an act of gross indecency with another female person contrary to CLS 1961, § 750.338a (Stat Ann 1954 Rev §28.570[1]). Defendant was sentenced to a term of 1-1/2 to 5 years in the Detroit house of correction.

The pertinent facts are as follows: On the evening of July 6, 1965, defendant visited Mrs. Carolyn French at the public camping grounds at Sunrise lake in Osceola county, Michigan. Mrs. French had been tent-camping with her 4 children at Sunrise lake for several days.

About 9 p.m. that same evening, defendant and Mrs. French were observed, by complainant Jerry Branch and others, to be in close bodily contact with each other, which continued for approximately 1 hour. The defendant and Mrs. French then entered the latter’s tent.

Later, on receiving a complaint, Troopers Robert Bratschi and LeRoy Fladseth of the Michigan State police, proceeded to the Sunrise lake camping grounds. They arrived there about midnight, talked to the complainant and others and then stood within 15 feet of the French tent. Obscene language and conversation indicative of sexual conduct occurring between 2 female persons was overheard by the troopers for about 10 minutes. From the information received from complainant, the obscene language and conversation, and noises overheard, the troopers took action under the belief that a felony had been committed or was being committed at that time. They approached the tent, identified themselves as State police officers, and requested admittance; there was no reply; the troopers unzipped the outer flap, and aided by a flashlight observed a cot located directly in front of the doorway on which defendant and Mrs. French were lying, partially covered by a blanket; the 2 females were advised that they were under arrest and after taking several flash pictures, the troopers permitted them to dress in private.

Restated, the questions raised by defendant on appeal are set forth and considered as follows:

1. Should the trial court have granted defendant’s motion to quash the information?

Defendant’s motion to quash the information, made prior to trial, alleged 2 grounds — (1) the return of the examining magistrate failed to specify the crime charged, and (2) the evidence on the preliminary examination was insufficient to establish the corpus delicti.

The return of the examining magistrate consisted of a single paper bearing the magistrate’s signature and stating that a violation had been committed and there was reasonable cause to believe defendant to have committed the crime. Had this paper alone been the entire return, a reversal would be in order; however, a standard printed “justice’s return to circuit court on examination” form accompanied the above-mentioned paper, which form was proper except for the omission of the examining magistrate’s signature thereon (the name of the examining magistrate appeared in type below the signature line). Subsequent to the filing of the motion to quash, and before the trial court’s ruling thereon, the oversight was corrected by the filing of another standard printed form entitled “amended justice’s return to circuit court on examination” bearing the written signature of the examining magistrate.

In People v. William L. Thomas (1965), 1 Mich App 118, the failure of a prosecuting attorney to sign the information was said not to deprive a court of jurisdiction since such is a ministerial matter. Similarly the signature of an examining magistrate on his return is a ministerial matter. See Toms v. Judge of Recorders’ Court of Detroit (1927), 237 Mich 413. The alleged “error” was corrected by the amended return. There was no prejudice resulting to defendant nor any violation of her substantial rights.

An examining magistrate is directed by CL 1948, § 766.13 (Stat Ann 1954 Rev § 28.931) to bind a defendant to appear before the court having jurisdiction “if it shall appear '* * * upon the examination of the whole matter, that an offense not cognizable by a justice of the peace has been committed.” A careful reading of the preliminary examination transcript convinces us there was sufficient testimony presented to justify the examining magistrate’s conclusion that the crime charged had been committed. People v. Gerndt (1928), 244 Mich 622. No reasonable and valid ground for asserting a lack of proof of corpus delicti has been put forth.

2. Was there probable cause for arresting defendant without a warrant?

Underlying this question are those of illegal and improper entry, and the admissibility of testimony and exhibits resulting from such entry.

This Court, in People v. Wolfe (1967), 5 Mich App 543, 546, dealt with “the latitude of the police in making an arrest, without warrant, based on ‘prudent belief’ and physical evidence visible to the world, coupled with other probative circumstances such as time of day, recognition of the suspects and like factors.” Therein a guideline test was set forth at p 552 as follows:

“Whether that arrest was constitutionally valid depends in turn upon whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that >,moment the facts and circumstances within their knowledge and of which they had reasonable trustworthy information were sufficient to warrant a prudent man in believing that the defendant had committed or was committing an offense.” (Emphasis supplied.)

CL 1948, § 764.15 (Stat Ann 1954 Rev § 28.874) authorizes an arrest by police officers without a warrant under various circumstances. One of these is as follows:

“(d) When he has reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it.”

In applying the above test and statute, we conclude that there was probable cause justifying an arrest without a warrant because there were facts and circumstances known to the arresting officers which would warrant a prudent man to believe that the crime charged had been committed: the troopers had reasonably trustworthy information, and the troopers for over a period of approximately 10 minutes had overheard foul and obscene language and conversation indicative of sexual conduct between 2 females, conduct of such nature as to constitute gross indecency, a felony under the laws of the State of Michigan. These facts and circumstances were such as would permit any fair-minded man of average intelligence and judgment to believe that a felony had been or was being committed. 1 Gillespie, Michigan Criminal Law & Procedure (2d ed), § 220.

Having determined that the troopers were justified in arresting defendant, the legality and propriety of their entry must be considered. 6 CJS, Arrest, § 146, p 615 states in a capsule headnote as follows:

“Where a peace officer * * * is justified in making an arrest without a warrant, he may break open the doors of a dwelling house in order to arrest an offender concealed therein.”

The facts, previously stated, indicated that the troopers gave notice of their presence and demanded entry. And in view of the refusal of the tent occupants (a continuing silence was the only response to the troopers’ demand) the troopers were justified in entering the tent. In People v. Woodward (1922), 220 Mich 511, police officers entered a home through an unfastened door for the purpose of quelling a disturbance therein. The Michigan Supreme Court found no error and held the entry to be justified under the circumstances.

The photographs taken and testimony relating to observations of the troopers upon entry of the tent were admissible. We find no error in the trial court’s denial of defendant’s motion to suppress nor in the trial court’s overruling of defense counsel’s objections as to the admissibility of this evidence.

3. Was evidence of events occurring in a tent admissible where the charge is “having committed an act of gross indecency in a public place?”

The applicable statute, CLS 1961, § 750.338a (Stat Ann 1954 Rev § 28.570[1]), reads in part as follows:

“Any female person who, in public or in private, commits or is a party to the commission of, or any person who procures or attempts to procure the commission by any female person of any act of gross indecency with another female person shall be guilty of a felony.”

Defendant claims on appeal that since the information charges a “public place”, evidence of events occurring inside the tent were inadmissible. It is her contention that the tent was being used as a residence and therefore was a “private place” even though pitched in a public camping area.

In ruling on defendant’s motion to suppress, the written opinion of the trial judge stated:

“Defendants in the individual eases above have moved to suppress films and photographs taken by and the testimony of two State police officers at a tent belonging to defendant French in the public park at Sunrise lake, Osceola county, on the night of July 6, 1965. It is the contention of defendants that the photographs taken and observations made by the police officers were without their consent and the result of an unauthorized entry by the police officers into said tent which had the status of a private residence.
“The motion was made before Honorable Rupert Stephens, now deceased, and was submitted upon the basis of a transcript of testimony taken upon the preliminary examination of the defendants.
“For the purposes of argument, the court will consider the tent as the equivalent of a private residence notwithstanding its location in a public park. The question thereupon is, did the officers make a lawful entry therein upon reasonable grounds for believing that a felony had been committed within.
“It is the opinion of the writer who has succeeded to the case upon the death of Judge Stephens, that the testimony of the officers at the preliminary examination indicated an observation by them of conversations, over a period of 10 minutes during which period the officers were standing approximately 15 feet from the tent, of abnormal and unlawful conduct within the tent by 2 females. The conversations need not be described in length; snfficeth to say that they were indicative of sexual conduct occurring between 2 female persons, conduct of such nature as to constitute gross indecency, a felony under the laws of the State of Michigan, and of such nature as to indicate to the average person with reasonable certainty that the female persons so speaking were engaged in such conduct. Upon hearing such conversations and upon concluding, as they did conclude and as they were justified in reasonably concluding, that the statute had been violated, they were entitled to make an entry for the purpose of making an arrest and this they did. The evidence obtained and their observations made following their lawful entry may properly be received in evidence and the motions to suppress are denied.”

Defendant’s motion to suppress went only to the proofs — i.e., defendant did not at any time prior to trial file a motion to dismiss the information as being defective in substance. Had this been done, the prosecution could have moved for an amending of the information. In any event, the exact place of the crime whether public or private is not a material element of the offense of gross indecency.

The substantial rights of defendant were not affected by this variance. Defendant could not have been surprised or misled in making a defense for the “statement of expected proofs,” filed by the prosecution prior to the filing of defendant’s motion to suppress, asserted that the 2 females “did occupy a single cot inside of the tent.” 42 CJS, Indictments and Informations, § 256, p 1276, states in part as follows:

“Where an indictment [or information] alleges the particular place where an act took place, and such allegation is not descriptive of the offense, and is not required to be proved as laid in order to show the court’s jurisdiction * * * a variance which does not mislead accused # * * is not material.” . •

4. Gould the police officers testify as to words and conversation overheard even though unable to identify those spoken by defendant?

Inasmuch as appellant fails to set forth any authority or compelling reasons in support of this assertion of error, consideration of the above-stated question will not be undertaken by this appellate Court. See Mitcham v. City of Detroit (1959), 355 Mich 182, 202, 203. Also, see 7A Callaghan, Michigan Pleading and Practice, § 55.223, p 203.

5. Should the trial court have granted defendant’s motion to dismiss for lack of sufficient evidence?

At the close of the prosecution’s case, defense counsel moved for dismissal on the ground that no legal evidence of gross indecency had been presented. The motion was denied.

In dealing with the motion for dismissal and particularly the construction and effect of State’s evidence when such a motion is made we turn to 23A CJS, Criminal Law, § 1149 for light and find it stated therein as follows on p 400:

“In passing on the motion for dismissal or non-suit, the State’s evidence must be taken as true, and viewed in the light most favorable to the State, which is entitled to the benefit of every reasonable inference to be drawn therefrom.”

Review of the record and disposition of the previous questions raised by appellant constrain us to conclude that the trial court properly denied defendant’s motion to dismiss, We find that the evidence presented by the prosecution was sufficient to sustain defendant’s conviction.

Affirmed.

Burns and McGregor, JJ., concurred.

       See People v. Panknin (1966), 4 Mich App 19.

       23 CJS, Criminal Law, § 852[1], pp 342-361; 32 CJS, Evidence, § 716, pp 1018-1021.

       Although we choose not to apply the principle of “standing” (defendant’s right to object) in considering this question, it appears to be relevant. People v. Norwood (1945), 312 Mich 266, 279 and cases cited therein.

       CL 1948, § 767.76 (Stat Aim 1954 Eev §28.1016). People v. Kennan (1936), 275 Mich 452.

       CL 1948, § 767.47 (Stat Ann 1954 Eev § 28.987).

       Generally, see 42 CJS, Indictments and Informations, § 254, pp 1273-1275. People v. Coullard (1927), 239 Mich 84,


text:
    ROMAIN v. PETERS.
    1. Jury — Verdict—Civil Cases.
    A verdict shall be received in all civil cases tried by 12 jurors when 10 jurors agree (Const 1963, art 1, § 14).
    2. Bastards — Construction op Statutes — Criminal Law.
    Michigan courts have not reached a coherent interpretation of the bastardy act; in certain respects it appeared to be predominantly criminal (CL 1948, § 722.601 et seq., repealed by PA 1964, No 256).
    3. Same — Purpose op Statute.
    Punishment of the putative father was not the purpose of the bastardy act (CL 1948, § 722.601 et seq., repealed by PA 1964, No 256).
    4. Same — Bastardy Act — Paternity Act — Support op Child.
    The legislature was concerned with the support of the child in enacting both the former bastardy act and the paternity act presently in effect (CL 1948, § 722.601 et seq., repealed by PA 1964, No 256; CLS 1961, § 722.711 et seq., as amended by PA 1962, No 238).
    References for Points in Headnotes
    [I] 53 Am Jur, Trial § 1004 et seq.

    [2, 5, 6] 10 Am Jur 2d, Bastards § 1 ei seq.

    [3, 4, 9] 10 Am Jur 2d, Bastards § 74 et seq.

    [7] 31 Am Júr, Jury §§48-53.
    [8] 31 Am Jur, Jury § 47.
    [10] 53 Am Jur, Trial § 1006.
    [II] 10 Am Jur 2&, Bastards § 27,

      5. Same — Construction of Statutes.
    Labelling of proceedings under former bastardy act as quasi-criminal means they were quasi-eivil as well (CL 1948, § 722.601 et seq., repealed by PA 1964, No 256).
    6. Courts — Paternity Act — Trial—Civil Law — Criminal Law.
    Court does decide whether paternity act trial was civil or criminal in nature, but limits decision to whether legislature views jury requirement under the act civil or criminal (CLS 1961, § 722.711 et seq., as amended by PA 1962, No 238).
    7. Criminal Law — Eight of Jury Trial — Waiver.
    The right of trial by jury, in criminal cases, remains unless expressly waived (Const 1963, art 1, § 14).
    8. Trial — Eight of Jury Trial — Civil Cases — Waiver—Demand.
    The right of trial by jury shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law (Const 1963, art 1, § 14).
    9. Bastards — Jury—Demand—Waiver.
    Jury must be demanded in paternity cases or be considered as waived, since statute and court rule have east the jury requirement under the paternity act as civil rather than criminal (CLS 1961, § 722.715; GCR 1963, 730.2).
    10. Same — Agreement of 10 Members of Jury.
    Ten members of a 12-man jury may decide the issue of alleged paternity, since legislation and court rule have cast the jury requirement under the paternity act as civil rather than criminal (CLS 1961, § 722.715; GCE 1963, 730.2).
    11. Same — Evidence—Birth Certificate — Paternity Suit — Sua Sponte Action by Trial Court.
    Trial court was not required to introduce the birth certificate into evidence on its own motion, in a paternity ease, where the defendant had access to the document by virtue of a ruling of the court at pretrial conference and defendant never offered it into evidence at trial (CLS 1961, § 722.711 et seq., as amended).
    Appeal from Tuscola; Churchill (James P.), J.
    Submitted Division 2 June 8,1967, at Grand Rapids.
    (Docket No. 2,687.)
    Decided December 5, 1967.
    Lorca D. Romain, an unmarried woman, instituted paternity proceedings against Gordon Peters. Yer-diet and judgment for plaintiff. Defendant appeals.
    Affirmed.

      James J. Epslcamp, Prosecuting Attorney, for plaintiff.

      Thomas B. McAllister, for defendant.
   Burns, J.

Plaintiff, an unmarried woman, instituted paternity proceedings against defendant pursuant to CLS 1961, § 722.711 et seq., as last amended by PA 1962, No 238 (Stat Ann 1957 Rev and Stat Ann 1965 Cum Supp §25.491 et seq.). Plaintiff alleged delivery of defendant’s female child on July 28, 1964. Defendant, after denying paternity, demanded a blood test and a jury trial. By a verdict of 10 of the 12 jurors, defendant was found to be the father of the child, and an order of filiation was entered. Defendant appeals from the trial court’s denial of defendant’s motion to set aside the verdict and judgment and-for a new trial.

For the purpose of this appeal the issues properly raised can be reduced to 2:

1. Is it necessary for 12 jurors to find a defendant guilty by unanimous verdict under the paternity act of 1956?
2. Was it reversible error for the trial court to fail to require the birth certificate, which did not name the father of the child concerned, to be introduced into evidence?

The first issue presents us with a perplexing problem, one of apparently novel impression in this jurisdiction. Const 1963, art 1, § 14 states, “In all civil cases tried by 12 jurors a verdict shall be received when 10 jurors agree.” The question, then, becomes, whether proceedings under the paternity act are civil or criminal cases -with respect to the constitutional jury requirement. The Michigan courts (as well as courts in other jurisdictions) have not reached a coherent interpretation of the bastardy act in certain respects, especially in its procedural aspect, it appeared to be predominantly criminal. Nevertheless, its purpose was not to punish the putative father; it was the support of the child with which the legislature was concerned in enacting both the former bastardy act and the paternity act presently in effect.

A number of older cases labeled the proceedings under the bastardy act “quasi-criminal,” which, of course, must mean that they are also “quasi-civil”— a patently unsatisfying conclusion. Even the most recent decisions under the bastardy act are badly split and beleaguered by uncertainty. See, for example, People v. Stoeckl (1956), 347 Mich 1 and People v. McFadden (1956), 347 Mich 357.

We do not find any eases considering this issue under the paternity act of 1956. In order to dispose of the instant case it is not necessary for us to decide whether the trial was civil or criminal in nature for all purposes; the only question before us is how the legislature viewed the jury requirement under the paternity act. For this reason we consider one sentence in the act most significant: “Trial shall be by court without a jury, except that the alleged father may demand a trial by jury.” CLS 1961, § 722.715 (Stat Ann 1957 Rev § 25.495). Also, see G-CR 1963, 730.2. This is unmistakably the jury requirement in civil cases. In criminal cases the right of trial by jury remains unless expressly waived. “The right of trial by jury shall remain, but shall be waived in all civil cases unless demanded by one of the parties in the manner prescribed by law.” Const 1963, art 1, § 14. We can only conclude that since legislation and court rule have cast the jury requirement under the paternity act in this civil perspective, 10 members of a 12-man jury may decide the issue of alleged paternity.

The question of whether the birth certificate should be introduced into evidence was never before the court at trial. Neither party offered it for admittance into evidence. A careful reading of the transcript discloses that, although defendant had access to the document by virtue of a ruling of the court at pretrial conference, he never offered it into evidence at trial. At the close of his proofs, defendant merely requested to see the certificate which was on the prosecutor’s desk at that time. The trial court was not in error when it said: •

“Well, gentlemen, I understand this situation, it was not my understanding that the defendant at any time offered the birth certificate. He merely asked that the plaintiff’s counsel hand him a copy which he very likely and did have in his possession but there was no effort made by the defendant to obtain a birth certificate and introduce it into evidence. It would have been a simple matter for the defendant to have brought the county clerk upstairs and there was no request made for time to do so and I think that defendant’s objection in the matter is without merit.”

The trial court was not required under these circumstances to introduce the birth certificate into evidence on its own motion.

Affirmed. Costs to appellee.

Holbrook, P. J., and McGregor, J., concurred.

       See currently, PA 1966, Nos 115 and 146 (Stat Ann 1968 Oum Supp § 25.503 and § 25.495).

       CL 1948, § 722.601 et seq. (Stat Ann 1957 Rev § 25.451 et seq.); repealed by PA 1964, No 256 (Stat Ann 1965 Cum Supp § 25.451 et seq.).

       See currently PA 1966, No 146 (Stat Ann 1968 Cum Supp § 25.495), under which either party may demand a trial by -jury.

       See currently 379 Mich.


text:
    WEHMEIER v. YOUNG.
    1. Judgment — Summary Proceedings to Recover Possession of Land.
    Summary proceedings for dispossessing an occupant of real property are wholly statutory and the judgment rendered is by an officer of special, local, and limited jurisdiction.
    2. Court Commissioners — Summary Proceeding — Equity.
    A summary proceeding to recover the possession of land commenced before a circuit eourt commissioner is of a legal, rather than equitable, nature (CLS 1961, § 600.5634).
    3. Same — Defenses—Equity.
    Equitable defenses are not permissible in summary proceedings to recover the possession of land brought before a circuit eourt commissioner (CLS 1961, § 600.5634).
    4. Same — Summary Proceedings — Jurisdiction — Title — Homestead.
    Jurisdiction in summary proceedings to recover possession of land brought before a circuit court commissioner does not extend to determine the title to real estate, including deter-' mination of a homestead right (CLS 1961, § 600.5634).
    5. Same — Summary Proceeding — Jurisdiction-—Appeal from Circuit Court Commissioner.
    The circuit eourt on appeal in summary proceedings to recover possession of land tries the matter de novo in the circuit eourt and it has no greater authority or jurisdiction than the circuit eourt commissioner (CLS 1961, § 600.5634).
    References for Points in Headnotes
    [1-7] 32 Am Jur, Landlord and Tenant § 1Q16 et seq.; 55 Am Jur, Vendor and purchaser § 438, ' .

      6. Same — Statutory Authority — Enlargement by Stipulation.
    Statutory authority of a circuit court, ou appeal from a circuit court commissioner in summary proceedings to recover possession of real property, may not be enlarged by stipulation of counsel to permit determination of questions of title (CLS 1961, § 600.5634).
    7. Same — Common-Law Marriage.
    Property rights and questions of validity of common-law marriages must be decided in separate actions and may not be determined in summary proceedings to recover possession of real property (CLS 1961, § 600.5634).
    Appeal from "Wayne; Nenenfelt (Lila M.), J.
    Submitted Division 1 June 5, 1967, at Detroit.
    (Docket No. 2,261.)
    Decided December 6, 1967.
    Complaint by Victor H. Wehmeier, guardian of Robert Lee Young, a mentally incompetent person, against Nellie E. Young to recover possession of land in summary proceeding. Complaint dismissed. Plaintiff appeals.
    Affirmed.

      Victor H. Wehmeier, for plaintiff.

      Carl Z. Mitten, for defendant.
   McGregor, J.

This is an appeal from a dismissal in circuit court of a summary proceeding under the statute, brought by the guardian of a mentally incompetent to recover possession of land. A former guardian of the incompetent put the defendant, the alleged common-law wife, into possession. The property in question, a 2-family house, was purchased by the former guardian for her ward’s estate with proceeds of a workman’s compensation redemption, the injury for which resulted in the appellant ward’s incompetency. On July 23, 1958, the ward was committed to Ypsilanti State Hospital where he has been continnonsly since.

By virtue of a probate court order of September 3, 1957, the alleged common-law wife, defendantappellee herein, was placed in possession of the disputed home as the wife of the ward, and the record shows she continued to live there.

Subsequently, the alleged common-law wife initiated proceedings in the circuit court and obtained a judgment affirming the alleged common-law marriage. This uncontested favorable determination of the trial court was appealed to the’ Supreme Court. The Supreme Court vacated the judgment affirming the alleged marriage for the reason that the trial court lacked authority under the statute, but did not determine the validity of the common-law marriage. Young v. Wehmeier (1963), 369 Mich 110.

In the beginning, this was a matter before a circuit court commissioner by the plaintiff-guardian to recover possession of real estate in a statutory summary proceeding. One of the defenses thereof was the claim of the defendant-appellee that she was the common-law wife of the plaintiff ward, and, as such, had homestead and dower rights in the premises, and that these rights raised questions of title which the circuit court commissioner could not try. On December 3, 1964, the circuit court commissioner ruled in her favor and dismissed the proceedings. Such dismissal was appealed by the plaintiff guardian to the circuit court where, after two days of testimony and presentation of numerous exhibits, mainly on the question of the validity of the disputed common-law marriage, the circuit court dismissed the proceedings under a determination that such court had no authority in an appeal from a judgment of a circuit court commissioner to go into the question of the validity of the common-law marriage and its resulting homestead rights. The record discloses no pleadings before the circuit court relating to the matter of a determination of the validity of a common-law marriage. The litigants attempted to stipulate on the record jurisdiction in the circuit court to determine the validity of the disputed common-law marriage.

The questions raised by the appellant may be restated: When there is a question of the validity of a common-law marriage before a circuit court commissioner in proceedings for possession of real estate and the related question of homestead and dower rights, may a circuit court on appeal of the possessory action determine the statutory question of the right of possession? As a corollary problem, is such a determination necessary where the property was obtained for the husband-ward by his guardian, and the title was vested in the estate of the incompetent? And lastly, may parties to a statutory possessory matter, on appeal from the judgment of the circuit court commissioner, stipulate jurisdiction in the circuit court to try the question of the disputed common-law marriage?

Answering the last-stated question eliminates the necessity for answering the previous questions. The circuit court, in sustaining the judgment of the circuit court commissioner, ruled that a question of title was involved and dismissed the statutory possessory proceedings.

Summary proceedings for dispossessing an occupant of premises are wholly statutory and the judgment rendered is by an officer of special, local, and limited jurisdiction. A summary proceeding is of a legal rather than equitable nature. Equitable defenses are not permissible. The proceeding is limited in its nature. Further, jurisdiction in summary proceedings does not extend to determine the title to real estate. Within this rule, a homestead right involves a question of title. 11A Michigan Pleading and Practice (2d ed), § 88.03 at p 236.

Although summary proceedings under the statute to recover possession of land are tried de novo, the circuit court on appeal has no greater authority or jurisdiction than the circuit court commissioner. Kremser v. Listh (1951), 330 Mich 549. Certainly, such statutory authority may not be enlarged by stipulation of counsel. Property rights and questions of validity of common-law marriages must be decided by separate suits. Phelps v. Phelps (1953), 335 Mich 687.

The trial court was correct in dismissing the appeal from the judgment of the circuit court commissioner.

Affirmed.

Gtillis, P. J., and Thorburn, J., concurred.

       QL§ 1961, § 600.5634 (Stat Ami 1968 Rev § 87A.5634).

         In re Young Estate (1965), 376 Mich 106, is another case between these same parties on another matter.


text:
    McCOMB v. McCOMB.
    1. Appeal and Error — Court op Appeals — Declaration of Bights —Beversal op Binding.
    The findings of fact and. law in a proceeding in the nature of a declaration of rights are not reversed by the Court of Appeals, reviewing the record de novo, unless they are clearly erroneous.
    2. Declaratory Judgment — Beview.
    Beview by the Court of Appeals of a proceeding for declaration of rights is de novo on the entire record of the lower court.
    3. Landlord and Tenant — Construction of Lease — Ambiguity.
    The general rule that ambiguous provisions in a lease must be construed most favorably to the lessee does not mean that the theory of the lessee as to the meaning of the lease must be adopted. '
    4. Sales — Definition—Uniform Commercial Code.
    A sale is the passing of title from the seller to the buyer for a price (PA 1962, No 174, § 2106).
    5. Landlord and Tenant — Gross Sales — Traveler’s Checks— Commissions.
    Binding of trial court that entire amount received for traveler’s checks by a seller of traveler’s cheeks, and not only the commission paid the seller by the drawee, regardless of whether labeled “trust funds” or how handled, was includible in “gross sales” within meaning of grocery store lease providing for rent to be measured in part by gross sales as found by trial court, held, not clearly erroneous, especially in view of provision of lease that gross sales included sales of “other receipts whatsoever.”

      Deferences for Points in Headnotes
    [1] 5 Am Jur 2d, Appeal and Error § 703.
    [2] 5 Am Jur 2d, Appeal and Error § 872.
    [3] 32 Am Jur, Landlord and Tenant § 127 et seq.

    [4^ 46 Am Jur, Sales § 2.
    [5] 32 Am Jur, Landlord and Tenant § 432 et seq.

    [6, 7] 24 Am Jur 2d, Divorce and Separation § 675 et seq

    [8] 5 Am Jur 2d, Appeal and Error § 1014.

      6. Divorce — Insurance—Settlement Provisions.
    Modification of insurance provision in divorce judgment whereby defendant was relieved of his obligation to pay premiums for plaintiff when policy was terminated by insurer held, not elearly erroneous.
    7. Same — Settlement Agreement — Insurance—Procurement op Insurance.
    Defendant’s obligation under divorce judgment to pay premiums on policy of insurance or upon equivalent coverage does not require defendant to procure insurance on behalf of plaintiff.
    8. Same — Costs—Neither Party Dully Prevailed.
    No costs are allowed where neither party to appeal and cross-appeal from judgment of divorce has fully prevailed.
    Appeal from Calhoun; Coleman (Creighton R.), J.
    Submitted Division 3 June 5, 1967, at Detroit.
    (Docket No. 2,303.)
    Decided December 6, 1967.
    Complaint for divorce by Eva Minnie McComb against Ronald McComb, Sr. Judgment for plaintiff, and judgment in supplemental proceeding to construe property settlement provision. Defendant appeals from supplemental judgment, and plaintiff cross-appeals.
    Affirmed.

      Paul Sislin, for plaintiff.

      A. Albert Sugar, for defendant.
   McGregor, J.

After approximately 25 years of marriage, a divorce action was filed in 1962 by the wife, plaintiff-appellee and cross-appellant in this suit. The years of marriage, while they were on occasion very stormy, had been especially fruitful from the economic standpoint. From a humble beginning in the retail grocery business in 1937, the parties had built a large and profitable supermarket with their joint labors. The record shows that both parties had worked long hours at the store, with both doing such tasks as butchering, dressing chickens, cleaning up, et cetera. Success in the grocery business had led to a more complex operation and in the mid-1940’s, the market business was incorporated, and a separate corporation was formed to hold the real estate which housed the market. These separate corporations were owned equally by the parties and any distinctions between the corporations is of little importance for our purposes until the divorce action. Nominally, the market corporation paid a percentage rental to the real estate corporation, but in fact, the corporations were “two pockets” of the family fortune.

As the marriage relationship degenerated, the parties became extremely concerned about what would become of their valuable supermarket assets as the result of a seemingly inevitable separation and divorce. The supermarket was grossing well in excess of $3,000,000 per year and because of its uniqueness, the supermarket would retain its full value only if it continued as an active business. Disposition of this major business asset was the most important issue in the divorce proceedings. An agreement was reached between the parties and formalized in a property settlement, whereby the husband received the supermarket corporation and the plaintiff received the real estate corporation. A lease agreement was attached as a rider to the property settlement, whereby the supermarket would lease the real estate for a term of 10 years at a guaranteed minimum rental of $30,000 for each lease year, plus 1% of the supermarket’s annual “gross sales” in excess of $3,000,000.

The term “gross sales” was defined in the lease agreement as:

“The entire amount of the actual sales price, whether for cash or otherwise, of all sales of merchandise, service and other receipts whatsoever, of all business conducted in or from the premises, * '* * and sales by any sublessee, concessionaire or licensee on the premises # * * however * * * [excluding] * * * sales made on the premises by the Goode’s pastry shop [a sublessee].”

Another issue which concededly was of importance to the parties and was not added routinely or as an afterthought, was the medical coverage provision. The plaintiff had a history of hospitalization for serious illnesses and was overweight. The property settlement required the defendant to continue medical insurance coverage of the wife under two separate insurance policies then in force:

“Provided, however, in event that either of said policies cannot continue in existence said Ronald McComb, Sr. shall provide for equivalent coverage at equivalent monthly premiums, the policy to be selected by said Eva Minnie McComb.”

This appeal is from a supplemental hearing concerning the property settlement. The areas of dispute can be simply stated. The parties dispute the meaning of “gross sales” in the lease agreement and “equivalent coverage” in the medical insurance provisions.

"While the lower court considered “gross sales” in relation to several items, such as vending machine receipts and bottle deposit refunds, on appeal the gross sales dispute has narrowed to a consideration of what portion of the intake of more than $100,000 annually for traveler’s checks sold in the store can be considered “gross sales.” The plaintiff insists that the total face value of the traveler’s checks, plus the commission paid the store for handling the checks, constitutes gross sales upon which her percentage rental should be based. The defendant husband, on the other hand, advances the theory that the money received for the face value of the checks is “trust money” and that “gross sales” is the small commission paid to the store for handling each check. The trial court ruled that the entire moneys received for the traveler’s cheeks, regardless of whether the moneys were labelled “trust funds” or how they were handled, are a measure of “gross sales” under the lease agreement. The defendant husband here appeals the trial court’s ruling on “gross sales.”

As the case was presented, it is in the nature of a declaratory judgment. While this Court, in such cases, reviews the entire record de novo, Theater Control Corporation v. City of Detroit (1962), 365 Mich 432, we do not reverse the findings of the lower court unless they are clearly erroneous. Coffee-Rich, Inc., v. Department of Agriculture (1965), 1 Mich App 225.

The term “gross sales” is imprecise and .its definition in a given case depends mainly upon the wording established by the parties in the contract. See 52 CJS, Landlord and Tenant, § 502 at p 284; annotation 38 ALB.2d 1113, 1114 (1954). The precedents offered by the parties in this case do little but illustrate that there is not a definitive judicial definition of gross sales. The defendant-appellee supports his theory that the obtaining of a traveler’s check by a customer is not a sale, by analogizing the transaction to a transaction where a customer pays a utility bill at a neighborhood store, which in turn holds the payment in trust for the utility company. Michigan adopts the uniform commercial code definition of a sale as “the passing of title from the seller to the buyer for a price.” PA 1962, No 174, § 2106 (CL 1948, § 440.2106 [Stat Ann 1964 Rev §19.2106]). When a customer obtains a traveler’s check from the supermarket, the transaction fits the Michigan definition of a sale and is more like a sale of goods that are held on consignment than it is like the transaction of the public paying an agent money to he turned over to a utility company. A customer who obtains a traveler’s check leaves the store with a valuable property, received in exchange for money, while a customer who pays a utility hill leaves the store only with a debt paid.

The lease itself is quite expansive, as it calls for inclusion in gross sales of “other receipts whatsoever.” Sales conducted at a pastry shop which subleased a portion of the premises were specifically excluded from gross sales. We are aware it is a rule of construction that in cases of ambiguity terms of a lease will he construed most favorably to the lessee. Starr v. Holck (1947), 318 Mich 452. This does not mean, however, that the theory of the lessee as to the meaning of the lease must he adopted. While we cannot agree fully with the trial judge’s observation that the lease agreement is unambiguous on its face, given the wording of the lease and the nature of the traveler’s check transactions, we are convinced that the court’s conclusion that the entire traveler’s check receipts are includible in “gross sales” under the lease agreement was not clearly erroneous.

At the time of the divorce, the medical insurance coverage consisted of a Blue Cross hospitalization policy, and a health-and-accident-type policy from Banker’s Life & Casualty Insurance Company, which provided cash payments to an insured during a period of prolonged illness. Both of these policies were under a group coverage maintained by the supermarket for its employees. Not unexpectedly, the wife was relieved of her employment with the supermarket the day she ceased to he a stockholder of that corporation. By leaving the employment group, under the terms of the policies, she was no longer eligible for the group insurance policy. For reasons that are unclear, although much speculation about the reasons appears in the record of this case, the wife did not take advantage of the clause in the contract of the Banker’s Life policy which allowed a conversion to individual coverage within 31 days of the termination of employment, without a medical examination. She remained on the group policy for well over a year, until the insurance company notified the supermarket corporation that the plaintiff had long since ceased to be eligible under the group policy. By that time, the liberal conversion rights had been lost. The Blue Cross coverage of the plaintiff is presently in force on an individual basis and there is no dispute over that coverage.

The plaintiff, and cross-appellant on this insurance issue, did not apply for another health policy to replace the Banker’s Life policy, but testimony was introduced by an insurance underwriter that she could not have received equivalent coverage because of her previous medical history and her weight. The plaintiff had suffered from various ills since the time of the divorce, which would have resulted in payments by the Banker’s Life policy, had it been in force. The theory advanced by the plaintiff and cross-appellant in this cross-appeal is that the husband is liable for the amount of the money that Banker’s Life would have paid under the health policy, had it been in force, because only by such means can the “equivalent coverage” clause of the insurance provision of the property settlement be satisfied.

The trial court ruled that the Banker’s Life policy :

“Having been terminated by the insurer, the ‘insurance provision’ clause of the * * * divorce judgment is hereby modified to relieve defendants Ronald McComb, Sr., and Cut-Rate Food Market, Inc., a Michigan corporation, of the obligation to pay premiums on said policy of insurance,- provided however, that in event other equivalent coverage at equivalent monthly premiums is procured, upon presentation to defendant, Ronald McComb, Sr., of a paid receipt for the premium for such coverage, he shall within 20 days thereafter, reimburse the plaintiff therefor.
“Nothing contained in this order shall be construed to require the defendants to procure said insurance on behalf of the plaintiff.”

This Court notes that from reading the insurance provision of the property settlement, the intention of the parties was clearly that “equivalent coverage” of insurance referred to another policy of insurance, to be purchased from a commercial insurance company, as shown by the reference in the insurance provision to “equivalent premiums,” and that the duty of selecting equivalent coverage was expressly placed on the plaintiff (which would include the duty to keep the previous policies in force, if that was what she desired). It is the opinion of this Court that the ruling of the trial court on this point, which resulted in this cross-appeal, was not clearly erroneous.

The judgment of the trial court on both the appeal and the cross-appeal is affirmed. No costs, as neither party fully prevailed on appeal.

G-illis, P. J., and Thorbtjrn, J., concurred.


text:
    PEOPLE v. HOGAN.
    1. Criminal Law — Accessories—Aiding and Abetting.
    The amount of advice or encouragement rendered by an accessory to a erime is not material if it had effect in inducing the commission of the erime, nor is the matter of time when advice, aid, or encouragement was rendered an important element.
    2. Same — Robbery Armed — Accessory—Evidence.
    Defendant charged with erime of robbery armed, who did not participate in the act of robbery itself, held, to have been an accessory, punishable as a principal under the statute, where he actively participated in planning the robbery, brought the perpetrators together at his home, suggested the plan of eseape, picked up one of the perpetrators after the robbery, shared in the proceeds, and got rid of the money bag taken in the robbery (CL 1948, §§ 750.524, 767.39).
    3. Witnesses — Sequestration—Discretion of Court.
    Sequestration of witnesses during the jury trial of a person charged with a erime is discretionary with the court.
    4. Same — Sequestration—Discretion of Court.
    Denial by trial court, in nonjury trial for erime of robbery armed, of motion by one defendant to exelude prosecution's witnesses from courtroom while he testified, made after prosecution’s case was presented and after a defense witness had testified, held, not an abuse of discretion, where no good cause to grant the motion was shown (CLS 1961, § 600.1420, CL 1948, § 750.529).
    References for Points in Headnotes
    [1, 9] 21 Am Jur 2d, Criminal Law § 115 et seg.

    [2] 21 Am Jur 2d, Criminal Law § 124.
    [ 3, 4] 53 Am Jur, Trial § 31.
    [5] 58 Am Jur, Witnesses § 767 et seg.

    [6] 58 Am Jur, Witnesses § 860 et seg.

    [7] 5 Am Jur 2d, Appeal and Error § 867.
    [8] 5 Am Jur 2d, Appeal and Error §§ 786, 839, 883.

      5. Criminal Law — Prior Inconsistent Statement — Improper Heading — Impeachment.
    Irregular action of prosecutor in reading into evidence a prior written statement of a codefendant in a nonjury trial for armed robbery, after defendant’s counsel had improperly tried to impeach the eodefendant’s testimony using the statement, held, not to have caused reversible error (CL 1948, § 750.529).
    6. Same — Trial Judge — Trier of Pacts.
    The trial judge, where the trier of fact, has the duty to determine the credibility of the witnesses and to decide the disputed issue.
    7. Same — Appeal—Conflicting Evidence.
    The Court of Appeals will not weigh conflicting evidence on appeal in a criminal case.
    8. Same — Nonjury Case — Sufficiency of Evidence.
    The Court of Appeals will not set aside the verdiet on the ground the evidence was insufficient to sustain it where evidence in nonjury criminal ease is sufficient to support trial judge’s finding of guilt beyond a reasonable doubt.
    9. Kobbery — Armed—-Accessory—Evidence.
    Evidence adduced in nonjury prosecution of accessory for robbery armed held, sufficient to support a finding of defendant’s guilt beyond a reasonable doubt (CLS 1961, § 750.529).
    Appeal from Wayne; Bohn (Theodore R.), J.
    Submitted Division 1 June 6, 1967, at Detroit.
    (Docket No. 2,171.)
    Decided December 6, 1967.
    Rehearing denied February 9, 1968.
    Roark Hogan was convicted of armed robbery.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, William L. Cabalan, Prosecuting Attorney, and Samuel J. Torina, Chief Appellate Lawyer, and Rickard J. Padsieski, Assistant Prosecuting Attorney, for the people.

      Norman Zemke, for defendant.
   McGregor, J.

This appellant attacks the sufficiency of the testimony implicating him in a consummated armed robbery, CL 1948, § 750.529 (Stat Ann 1954 Rev § 28.797), and the subsequent verdict of guilty entered by the circuit court, sitting without a jury.

Before trial, codefendants James E. Sprinkle and Judith Ann Smith pleaded guilty to an added count of robbery unarmed. Both testified against appellant. The information charged defendants Hogan, Sprinkle, and Smith with having robbed one James N. Robinson of $90 while being armed with a pistol on March 30, 1964. Jeanette Robinson testified that she and her husband ran a small retail grocery store and that on March 30, 1964, codefendant Sprinkle robbed her and her husband of approximately $120 at gunpoint.

Codefendant Smith testified as a witness for the prosecution that on March 29, 1964, she telephoned defendant Hogan and he told her that codefendant Sprinkle had a place picked out; that on March 30, 1964, she went to Hogan’s house and the three o'f them went into the den where Hogan and Sprinkle discussed the location of the proposed robbery; that Hogan did not enter into the conversation until he suggested to Sprinkle that after the robbery Sprinkle stop by one William Hassen’s house, which was about 3 or 4 blocks from the scene, and telephone Hogan to pick Sprinkle up; that Smith and Sprinkle left Hogan’s and purchased some bullets for Sprinkle’s gun; that Smith drove, and that Sprinkle went in and conducted the robbery while Smith waited in the car; that afterwards, they went to Iíassén’s house where Smith and Sprinkle divided the money.

On cross-examination, codefendant Judith Ann Smith testified that Hogan suggested the hold-up but that Hogan did not help in the actual planning of the modus operandi. Appellant’s counsel was provided with the statements of Judith Ann Smith, the original having been taken by a police officer at the House of Correction. When appellant’s counsel attempted to cross-examine codefendant Smith concerning statements she made to the officer, objection was made by the prosecutor and was sustained. The court ruled that defense counsel should show the statement to the witness and let her read it, but defense counsel did not do so, claiming that he wanted to show prior inconsistent statements. The court ruled that the statement was inadmissible without a foundation having been laid in advance to determine the truth of the statements, even for purposes of impeachment. Thereupon, appellant’s counsel called a police officer for cross-examination, who identified exhibit “1” as being the statement which codefendant Smith had given to him, in her own handwriting, on October 27, 1964, at the Detroit house of correction. Over objection by appellant’s counsel, the prosecutor offered the statement into evidence and it was received. Thereupon, codefendant Smith resumed the stand, and over objection, the prosecution was permitted to read exhibit “1” into the record.

Codefendant Sprinkle testified for the prosecution that he had known defendant Hogan for 7 or 8 years and was living with defendant Hogan in March, 1964; that on March 30, 1964, he met Smith at Hogan’s house; that the three of them went into Hogan’s den where Sprinkle showed Smith the gun and Smith asked Sprinkle if he had a job in mind; that Sprinkle said “yes”; that Hogan was sitting nearby and could hear what was being said but did not take part in the conversation up to this time; that Hogan suggested that after the armed robbery was completed, Smith should drop Sprinkle off at Hassen’s and that Sprinkle should call Hogan from there; that after the robbery was completed, Hogan inquired about how much was obtained from the job and Sprinkle gave Hogan the change; that the next day, Sprinkle and Hogan returned to Hassen’s and picked up the guns and the money; and that thereafter, Hogan threw the bank hag out of the window of the car.

At the close of the plaintiffs proofs, appellant’s counsel made a motion for directed verdict which was denied. The only witness for the appellant was Marvin Blake, his attorney, who testified that he interviewed the other two codefendants in the case; that he saw Mr. Sprinkle at the Wayne county jail on June 26, 1965, and received consent from Sprinkle to take notes during the interview; that they talked for about 45 minutes while the attorney took notes; that eodefendant Sprinkle stated that he thought by testifying against Hogan and involving him in the hold-up he would get even with Hogan for having turned Sprinkle in; that Sprinkle also said he would testify against Hogan because of Hogan’s complaint, along with William Hassen, against Sprinkle’s father. Appellant’s counsel also testified concerning an interview he had had with codefendant Smith; that he requested permission to take notes hut Smith stated she did not want him to do so; that she said she did.not know whether or not she was going to testify against Hogan, but that she would like to hear what Sprinkle had to say first, “Then I’ll know what I want to say on the witness stand.”

At the conclusion of appellant’s counsel’s testimony, he moved the court to exclude from the courtroom all witnesses. The prosecution objected and the motion was denied. Defendant Hogan was found guilty of robbery armed. Timely motion for new trial was filed and an order was entered denying the motion for new trial.

The first issue appears to he whether the alleged actions of the defendant Hogan, i. e., planning of the robbery, bringing the participants together at his home, suggesting the plan of escape, et cetera, constitute a legal basis for a conviction of armed robbery on the basis that defendant Hogan was an accessory. Michigan has a statute, CL 1948, § 767.-39 (Stat Ann 1954 Bev §28.979) abolishing the distinction between principals and accessories, as follows:

“Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.”

The controlling law is to be found in the case of People v. Washburn (1938), 285 Mich 119, 126, where the Michigan Supreme Court quoted approvingly from 1 BCL, Accessories, § 27, p 147:

“ ‘The amount of advice or encouragement rendered is not material if it had effect in inducing the commission of the crime. Nor is the time of rendering the advice, aid or encouragement an important element.’ ”

There was evidence that appellant did more than just stand by and watch the proceeding; he actively participated in the planning of the robbery, brought the perpetrators together at his home, suggested the plan of escape, picked up one of the codefendants after the robbery, shared in the proceeds, and got rid of the money bag after the robbery. There was enough testimony, if believed by the trier of the facts, to find the appellant guilty of the charge. People v. Knoll (1932), 258 Mich 89.

The appellant further contends that the trial court erred in failing to exclude the prosecution’s witnesses from the courtroom during the time when defendant Hogan might testify. After the prosecution had presented its case and the defense had already presented a witness, appellant made a motion to exclude the prosecution’s witnesses. CLS 1961, § 600.1420 (Stat Ann 1962 Rev § 27A.1420) provides in part:

“The sittings of every court within this State shall be public except that a court may, for good cause shown, exclude from the courtroom other witnesses in the case when they are not testifying.”

It is the contention of the appellant that under the circumstances of the case there was good cause shown to the trial judge for excluding these witnesses, and that failure to do so constituted an abuse of discretion by the trial court. People v. Sawicki (1966), 4 Mich App 467 has determined this issue, and we quote with approval from pages 472 and 473 thereof:

“The issue raised by appellants’ first question is whether the trial judge abused his discretion in denying counsel for defendants’ motion to exclude witness McAfee from the courtroom while witness Parker was on the witness stand. At the time of the motion, 7 prosecution witnesses had previously testified and Parker was being examined. No previous motion for sequestration had been made. The stated reason for the court’s refusal of the motion was that 7 witnesses had already testified, and it would be unfair to grant the motion at such a late stage. The names of both Parker and McAfee were indorsed upon the information as prosecution witnesses, and defendants’ counsel was charged with the knowledge that they would be called to testify as well as the other witnesses’ names so indorsed.
“As we said in People v. Likely (1966), 2 Mich App 458, p 461: ‘The matter of sequestering of witnesses is discretionary with the court.’ ”

The prosecution witnesses had already finished testifying when the motion was made and no good cause to grant the motion was shown. No abuse of discretion is manifested under these facts.

After defense counsel had cross-examined witness Smith, he then attempted the impeachment without laying the proper foundation. The prosecutor, only after defense counsel had attempted such improper impeachment, introduced the statement into evidence. Appellant raises the claim that the trial court committed reversible error in allowing the introduction into evidence of the prior statement of witness Smith and permitting it to be read into evidence. In the absence of a jury, the prosecutor’s irregular action in reading the prior statement of the witness in her presence, after improper attempts at impeachment by the defense, did not constitute-reversible error. People v. Thomas (1960), 359 Mich 251.

We now come to the question of whether the prosecution proved the defendant Hogan guilty beyond a reasonable doubt. It is fundamental law of this State that the trial judge, as the trier of the facts, has the duty to determine the credibility of the witnesses and to decide the disputed issue. In the present matter, it is apparent that the trial judge believed the testimony of the prosecution’s witnesses. This Court will not, on appeal in a criminal case, weigh conflicting evidence. The trial judge, who has heard and seen the witnesses, is in a far better position than this Court to determine their credibility. It is obvious that the court believed the prosecution’s witnesses and such evidence was ample to find the defendant guilty beyond a reasonable ’doubt-. This Court will not reverse tbe judgment of tbe trial court unless tbe evidence clearly preponderates in a direction opposite to tbe findings of fact by tbe. trial court. Any claim tbat tbe prosecution failed to prove tbe guilt of tbe appellant beyond a reasonable doubt is in fact an attack upon tbe credibility of tbe witnesses. In a criminal case, conflict of testimony may arise. It is for this reason tbat tbe credibility of various witnesses and tbe weight to be given to their testimony is for tbe determination of tbe trier of tbe facts. People v. Szymanski (1948), 321 Mich 248; People v. Clark (1954), 340 Mich 411. This evidence supports a finding of appellant’s guilt beyond a reasonable doubt.

Affirmed.

GriLLis, P. J., and Thorbtjrn, J., concurred.


text:
    PEOPLE v. PERRY.
    1. Criminal Law — Findings of Fact — Evidence.
    ' It is not the function of an appellate court to assume the role of a trial judge by substituting its judgment for his, since the trial court saw and heard the witnesses and was best able to judge the credibility to be aceorded their testimony.
    2. Same — Nonjurt Case — Indecent Liberties — Evidence.
    Evidence presented in nonjury prosecution of attempting to take indecent liberties - with a child under the age of 16 years held, sufficient to justify trial court in finding defendant guilty, the testimony of the 9-year-old vietim being sufficient to prove every element of the crime charged (CLS' 1961, § 750.336).

      References for Points in Headnotes
    [1, 2] 5 Am Jur 2d, Appeal and Error § 839 et seq.

      Appeal from Kent; Vander Wal (John EL), J.
    Submitted Division 3 June 6,1967, at Grand Rapids.
    (Docket No. 961.)
    Decided December 6, 1967.
    Leonard Dale Perry was convicted of attempting to take indecent liberties with a child under the age of 16 years.
    Affirmed.

      Frank J. Kelley, Attorney General, Robert A. Derengoslci, Solicitor General, James K. Miller, Prosecuting Attorney, and 8. J. Venema, Assistant Prosecuting Attorney, for the people.

      Thomas A. Ryan, for defendant.
   Burns, J.

A circuit court judge, sitting without a jury, found the defendant guilty of attempting to take indecent liberties with a child under the age of 16 years. CLS 1961, § 750.336 (Stat Ann 1954 Eev § 28.568). Defendant appeals, claiming that the evidence failed to establish his guilt beyond a reasonable doubt. The relevant facts are as follows.

On June 27, 1964, the allegedly molested female child was in the automotive department of a Grand Eapids discount store, with h,err father and her brother. The child, aged 9 at the time 'of the trial, testified that she became separated from her father and brother for about 2 minutes. During this interval the defendant, an employee of the store, allegedly took her hand, placed it on his private parts and then placed his hand on her private parts. After the family arrived home the girl informed her father what had happened. He returned to the store and questioned the defendant regarding the allegations made by his daughter. Defendant denied the accusations.

At trial the defendant testified that he held the little girl’s hand, gave her a soft pat and a little push on her behind and told her to catch her father. He denied that he touched her private parts or that he placed her hand on his private parts.

During the trial of this case defendant admitted pleading guilty to previous unrelated offenses, the most recent of which involved his indecent exposure to several girls of different ages.

The testimony offered by the girl, if believed by the fact finder, proved every element of the crime charged. It is not our function to assume the role of the trial judge by substituting our judgment for his.

“The trial court saw and heard the witnesses and was best able to judge the credibility to be accorded their testimony. People v. Beath [1936], 277 Mich 473. Defendant was represented by able counsel, and the conflicting testimony appears to have been fairly submitted to the court. From a careful examination of the record, we are convinced that the guilt of defendant was established beyond a reasonable doubt.” People v. Eger (1941), 299 Mich 49, 55.

Affirmed.

Holbrook, P. J., and Wise, J., concurred.