People v. Thomas, Docket No. 19427

• Citation: 61 Mich.App. 717,233 N.W.2d 158
• Decision Date: 10 June 1975
• Docket Number: No. 3,Docket No. 19427,3
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene THOMAS, Defendant-Appellant
• Court: Court of Appeal of Michigan (US)

Page 158

233 N.W.2d 158

61 Mich.App. 717

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Eugene THOMAS, Defendant-Appellant.

Docket No. 19427.

Court of Appeals of Michigan, Division No. 3.

June 10, 1975.

Released for Publication Oct. 1, 1975.

Balgooyen, Daniels & Balgooyen by Fredric F. Balgooyen, Muskegon Heights, for defendant-appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Richard J. Pasarela, Pros. Atty., for plaintiff-appellee.

Before R. B. BURNS, P.J., and BASHARA and KELLY, JJ.

R. B. BURNS, Presiding Judge.

Defendant was convicted by a jury of armed robbery. M.C.L.A. § 750.529; M.S.A. § 28.797.

This is the second time we have reviewed defendant's case. His previous conviction for the same crime was reversed by this Court in People v. Thomas, 46 Mich.App. 312, 208 N.W.2d 51 (1973). His second trial resulted in his second conviction and is the subject of this appeal.

Defendant has raised three issues on this appeal but only one merits discussion and we affirm his conviction.

Did the trial judge commit reversible error when he allowed the prosecutor to submit testimony of a witness, given at the first trial, in evidence at the second trial when the witness stated that he couldn't remember the events of the robbery at the second trial?

At defendant's first trial, Dwayne Young testified for the prosecution and stated that he and defendant had staged the holdup of Gov's Market. At the second trial, Young stated that he did not remember being at Gov's Market on the day of the robbery and could not remember the details of the holdup. The prosecutor then read from the transcript of the first trial. Defendant objected and the trial judge overruled his objections.

Plaintiff relies on M.C.L.A. § 768.26; M.S.A. § 28.1049, to substantiate his position, which reads:

'Testimony taken at an examination, preliminary hearing, or at a former trial of the case, or taken by deposition at the instance of the defendant, may be used by the prosecution whenever the witness giving such testimony can not, for any reason, be produced at the trial, or whenever the witness has, since giving such testimony become insane or otherwise mentally incapacitated to testify.'

This particular statute has not been relied on in any prior case to admit prior testimony of a forgetful witness.

However, the statute has been relied on to admit prior testimony of a witness who refused to testify. In People v. Pickett, 339 Mich. 294, 63 N.W.2d 681 (1954), one Arney refused to answer certain questions on the ground that by answering such questions he would tend to incriminate himself, even though he had been granted immunity. The people offered the transcript of the previous examination in evidence and both the direct examination and the cross-examination were read into evidence. The Supreme Court upheld the...