237 N.W.2d 288 | Mich. Ct. App. | 1975
PEOPLE
v.
CHILDREY
Michigan Court of Appeals.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Harold S. Sawyer, Prosecuting Attorney, and Donald A. Johnston, III, Chief Assistant Prosecuting Attorney, for the people.
Marshall S. Redman, Assistant State Appellate Defender, for the defendant.
Before: N.J. KAUFMAN, P.J., and R.B. BURNS and DENEWETH,[*] JJ.
Leave to appeal applied for.
R.B. BURNS, J.
Defendant was convicted of breaking and entering with intent to commit larceny. MCLA 750.110; MSA 28.305. He appeals and we affirm.
Defendant claims that the district court erred when the judge conducted part of the preliminary examination in his absence.
The examination was scheduled for 9:30 a.m. Defendant was in court and then left the courtroom and did not return until 10:13 a.m. The court had waited until 9:55 a.m. and then proceeded with the examination. When the defendant finally returned to the courtroom the court had taken the testimony of three witnesses.
Failure to object to alleged insufficiency or irregularity in the examination prior to or during the trial constitutes waiver of the right to object. *278 People v Willis, 1 Mich. App. 428; 136 NW2d 723 (1965).
The record does not contain any objection or challenge to the proceedings in either the district court or the circuit court. Defendant cannot raise the issue on appeal.
Defendant next claims that the trial court overstepped the bounds of judicial impartiality when questioning the defendant. We have read the entire testimony of the defendant. In our opinion, the questions asked by the trial judge were proper and necessary for clarification of the record. People v Wright, 38 Mich. App. 427; 196 NW2d 839 (1972).
Defendant also asserts that it was error for the prosecutor to charge the defendant with both breaking and entering with intent to commit larceny, MCLA 750.110; MSA 28.305, and receiving and concealing stolen goods, MCLA 750.535; MSA 28.803.
Defense counsel moved to have Count II dismissed, or, in the alternative, to force the prosecutor to elect between the two charges. The trial judge reserved his ruling on the matter. Before the end of trial the prosecutor did elect to proceed on the first charge.
The procedure utilized by the trial judge has been employed since People v Burman, 154 Mich. 150; 117 N.W. 589 (1908).
The last error ascribed by defendant concerns the court's charge to the jury on the element of intent. The court's charge was almost identical to that given and approved in People v Peay, 37 Mich. App. 414; 195 NW2d 75 (1971).
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
