People v. Cissom

39 Mich. App. 80 | Mich. Ct. App. | 1972

Per Curiam.

Defendant was convicted by a jury of taking indecent liberties with a female child under the age of 16 years. MCLA 750.336; MSA 28.568. This appeal is brought as of right.

Defendant first contends that the prosecution failed to prove a material element of the crime, i.e., that defendant was over the age of 16. Defendant moved to dismiss on these grounds, but the trial court reopened the proofs for purposes of establishing defendant’s age. At this point defendant stipulated that he was over 16, since his actual age was in excess of 40. Defendant contends that he should not be bound by the stipulation because the proofs should not have been reopened, but rather the case should have been dismissed due to the people’s failure to prove a material element of the crime charged.

Assuming that there was no evidence from which the jury could logically infer that defendant was over the age of 16, the trial court’s ruling reopening the case and defendant’s stipulation as to his age was a proper, procedure for curing the defect. In People v Baker, 332 Mich 320, 324 (1952), the Court stated:

“We note that at the close of the people’s case defendant made a motion for a verdict of not guilty, whereupon the trial court reopened the case and permitted a witness for the people to testify that the pills were found lying loose in the purse.¹ It is the rule in criminal cases that the trial court in the exercise of sound discretion may reopen a case for the purpose of admitting testimony in behalf of either the prosecution or the defense.”

We therefore hold that the trial court was correct in reopening the case for purposes of receiving proofs as to defendant’s age. Defendant is, therefore, bound by the stipulation as to his age made by his attorney after the case was reopened.

Defendant next contends that the evidence was insufficient to establish his guilt beyond a reasonable doubt.

The victim, a child of 9 at the time of the alleged offense and about 11 at the time of trial, testified that defendant forcibly removed her clothing and pressed his own unclothed body against hers, holding her on a bed. Another child who was in the house testified that he heard the victim crying during the time of the alleged offense.

The child’s mother testified that the girl came downstairs crying, with red eyes and with her dress inside out. An immediate examination by the mother of the girl revealed dog hairs on the pubic area. A dog was known to have slept on the bed. A doctor testified that an examination of the vaginal area disclosed abrasions of recent origin.

It is our opinion that the jury had sufficient credible testimony to support a finding of guilty beyond a reasonable doubt. Although the complainant was a very young girl, it is the jury’s function to give such credit to the testimony of a child as they deem it deserves. People v Minchella, 268 Mich 123 (1934). It is also for the jury to resolve any conflicts in the testimony. People v Clark, 34 Mich App 70 (1971). "We therefore find no merit in defendant’s second contention.

Defendant also raises three other issues, all regarding the trial judge’s instruction, none of which were properly preserved by an objection. We will not, therefore, discuss the issues except to state that our review of the court’s instructions reveal them to be entirely proper. We find no reversible error.

Affirmed.

1 The prosecution had to prove as part of the corpus delicti in Baker the drug was not in the original package.