People v. Cuyler

196 N.W.2d 870, 38 Mich. App. 490, 1972 Mich. App. LEXIS 1675

Opinions

R. B. Burns, P. J.

The defendant was convicted of the crime of assault with intent to rape. MCLA 750.85; MSA 28.280'.

Defendant’s objection to the use of testimony from a preliminary examination transcript is without merit. The record shows an exercise of due diligence and a good faith effort by the prosecutorial authorities to obtain trial attendance of the missing witness. Barber v Page, 390 US 719; 88 S Ct 1318; 20 L Ed 2d 255 (1968); People v Nieto, 33 Mich App 535 (1971).

In fact, the missing witness was discovered the evening of the trial. Although proofs had been closed neither side had presented their final arguments to the jury when the prosecutor informed de fense counsel that the missing witness was in the courtroom and offered the defense, the opportunity to cross-examine the witness. The offer was denied.

Affirmed.

T. M. Burns, J., concurred.