People v. Jack

233 N.W.2d 120, 61 Mich. App. 638, 1975 Mich. App. LEXIS 1578

Opinions

M. J. Kelly, J.

We agree with much of what Judge R. B. Burns has written. We do not condone the prosecutor’s parting shot. On this record, however, the jury had already heard of shocking, monstrous misconduct attributed to the defendant. We believe that the immaterial exchange quoted by Judge Burns was not so grievously prejudicial as to be incurable.

We vote to affirm solely because in our opinion the prosecutor’s error was cured by the immediate action of the trial judge, who promptly and unequivocally instructed the jury to disregard the question and answer as being totally immaterial.

Appellant also attacks the sodomy statute as being overbroad and therefore unconstitutional. Since the defendant was not convicted on the sodomy charge we need not decide the issue. Furthermore he has no standing to challenge the constitutionality of the statute on the ground alleged, namely, that as written it includes the acts of married persons within its prohibitions, because he was not married to the victim. See People v Conville, 55 Mich App 251; 222 NW2d 312 (1974).

Affirmed.

O’Hara, J., concurred.