Defendant was charged with gross indecency and sodomy, tried by a jury, and convicted. *
. During the voir dire examination the trial judge pointed out the accused to the jury, identifying him both by name and by his alias, Bill Dakota. He further asked if any of the jurors were acquainted , with defendant. None were.
After the complainant had testified, the prosecutor moved to have the name of a material witness stricken from the information, or in the alternative, to bo excused from producing that witness: The motion to strike was denied. The alternative was granted over defendant’s objection after the officer in charge of serving the subpoenas testified he had attempted to serve the witness a day and a half previously, but was unable to. The prosecutor then twice offered the remaining witnesses indorsed on the *409 information but all were waived by tbe defendant except for tbe witness wbicb tbe court excused tbe prosecutor from producing. Tbe prosecutor rested and tbe defendant offered no testimony.
After closing arguments defendant moved for a directed verdict on tbe ground that tbe prosecutor failed to identify defendant as the person who committed tbe alleged offenses. Tbe motion was denied.
Upon returning a verdict of guilty, tbe jury also made a recommendation that tbe complainant be remanded to juvenile court and be placed under psychiatric care.
Defendant appeals alleging three errors: .
1. Tbe prosecution failed to identify defendant as tbe perpetrator of tbe alleged offenses.
2. The prosecutor was improperly excused from producing at trial a material witness whose name was indorsed on tbe information.
3. It was improper to permit the jury, after they returned a verdict of guilty, to recommend that tbe complaining witness be placed under psychiatric care.
As an essential part of bis case, tbe prosecutor must identify tbe accused as tbe person who committed tbe alleged offense. In bis brief, defendant treats tbe identification of tbe accused as part of tbe right of confrontation. However, tbe duty to identify tbe accused is quite distinct from tbe right of confrontation. Tbe essential purpose of tbe latter is to secure tbe right of cross-examination. Tbe duty of tbe prosecutor to identify tbe accused is an element of bis general duty to prove defendant’s guilt beyond a reasonable doubt. Certainly proof of defendant’s connection with tbe alleged offense is an indispensable element of that duty.
Identity may be shown by either direct testimony or circumstantial evidence wbicb gives tbe jury an abiding conviction to a moral certainty that the
*410
accused was the perpetrator of the offense. See
People
v.
Stewart
(1910),
The prosecutor had indorsed on the information the name of Ronnie Page as a material witness, but failed to produce him at the trial. The trial judge denied the prosecutor’s motion to strike Page’s name from the information, but excused him from produc- ' ing the witness, after finding that the prosecutor had shown due diligence in attempting to serve Page with a subpoena. Defendant claims error on the ground that the question of due diligence was for the jury, not the judge to decide.
Page was not a
res gestae
witness and therefore the prosecutor was not required to indorse his name on the information. See
People
v.
Davis
(1955),
The court may submit the question of due diligence to the jury,
People
v.
Todaro
(1931), 253 Mich
*411
367, but it is not bound to. Ordinarily it is a matter within the judicial discretion of the court, and the exercise' of that discretion will not be overturned on appeal unless there is a clear abuse.
People
v.
Gibson
(1931),
In this case the prosecutor offered testimony outlining the attempts made to locate Page. We cannot hold as a matter of law that the trial judge was1 not justified in accepting this showing. Consequently, there was not an abuse of judicial discretion.
Defendant finally claims that allowing the jury to make a recommendation regarding the complainant was erroneous. However, there is nothing to show that the jury conditioned its verdict upon this recommendation. Errors in trial are not grounds for reversal unless there were irregularities which were “prejudicial to the rights of the persons prosecuted.”
People
v.
Watson
(1943),
The function of the jury is to deduce the truth from the evidence and express that truth in the verdict. There is prejudicial error if there is conduct by the court calculated to draw the attention of the jury from the performance of their duty and to in-, duce them to rest their conclusion upon ulterior consideration. See
People
v.
Warner
(1939),
The trial judge, in this case, indicated to the jury that he would not be bound by their recommendation. The verdict was then stated in unequivocal language without further deliberation. There is nothing to indicate that defendant’s rights were prejudiced.
Affirmed.
Notes
CLS 1961, § 750.338 (Stat Ann 1954 Rev § 28.570); CLS 1961, § 750.158 (Stat Ann 1962 Rev § 28.355).