Thе respondent was convicted of robbery in the recorder’s court for the city of Detroit.
It appears from the bill of exceptions in the cause that the return of the рreliminary examination in the police court was in regular form, which return showed that the tеstimony of the witnesses in said police court was reduced to writing by one of the clerks оf said court in the presence of the defendant, tod also signed by the said several witnesses in his presence.
It further appeared upon the trial in the recorder’s court, by parol, upon the examination of the people’s witnesses, that the testimony taken in the police court, and reduced to writing as aforesaid by one of the clerks, was not read to or by the witnesses before signing the same. No objection was made by the defendant in the police court, he having no -counsel there, to the non-reading оf these depositions.
When arraigned in the recorder’s court, no objection was made to the filing of the information, and the defendant pleaded “not guilty” thereto. Upon the trial, after the testimony had been given by the witnesses for the people to
The motion was overruled, and an exception taken, upon which error is assigned in this Court.
It is claimed that the defendant did not have such a proper and legal prеliminary examination as the statute requires, before information was filed against him; that therе was no-legal evidence taken in the police court against him, or returned to thе recorder’s court, because of the failure to read the testimony there taken to the witnesses, or to have them read it, before signing theirlrespective depositions.
The counsel for defendant, in his brief, relies upon People v. Smith,
In People v. Smith no evidence had been returnеd and filed in the circuit court before the filing of the information* and nothing was offered to bе filéd thereafter, except the minutes of the justice taken upon the examination.
As thе statute expressly requires that such evidence should be reduced to writing, and also be signed by the witnesses-respectively (How. Stat. § 9469), it was properly held that there had b.een no examination as required by law.
In People v. Chapman the evidence had been reduced to writing, and returned to thе circuit court, but the depositions had not been signed. For that reason, and that alone* the prisoner was discharged.
The rulings in both of these cases were made becausе the mandatory and positive provisions of the statute had not been complied with.
We did not intend, however, to intimate that a failure to have such depositions read wоuld vitiate an examination, when the express requisites of the statute had been substantially complied with.
A deposition taken and filed without being read by or to the witness might be, if that fact wаs shown, altogether useless as a means of contradicting or impeaching his testimony givеn on the trial, and of no value upon which to base a prosecution for perjury аgainst him; but when the examination before a magistrate is in other respects legal, and in сonformity to the express terms of the statute relating to such examinations, this neglect or failure to have the testimony of any or all of the witnesses read to or by them before signing cannot affect the status of the defendant in the trial court to which he is bound oyer at suсh examination. There is no doubt of his right to require, at the examination, that the testimony shall be so read before it is signed; but if he makes no objection there, he cannot be heard afterwards to complain of it.
Let it be therefore certified to the recordеr’s court for the city of Detroit that we find no error in the proceedings, and that said court proceed to judgment and sentence against the respondent.