Opinion
Docket No. 18873.
Decided January 9, 1975.
Appeal from Calhoun, Creighton R. Coleman, J. Submitted Division 3 November 7, 1974, at Lansing. (Docket No. 18873.) Decided January 9, 1975.
Fred Broadnax was convicted of statutory rape. Defendant appeals. Affirmed.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, Stanley Everett, Prosecuting Attorney, and Noel G. Peterson, Chief Assistant Prosecuting Attorney, for the people.
Norris J. Thomas, Jr., Assistant State Appellate Defender, for defendant.
Defendant's non-jury trial resulted in his conviction of statutory rape, MCLA 750.520; MSA 28.788. He was sentenced and he appeals. Of the four issues raised on appeal we discuss one.
Complainant testified that after the rape, she escaped through a bathroom window. There was much conflicting testimony on the size of this window, and its size had a direct bearing on complainant's credibility. If the window was as small as some testimony indicated; complainant could not have escaped through it.
On the last day of the trial, the trial court stated on the record:
"I think I should put on the record that I met the attorneys in this case at 1:30 at the former Broadnax house at 458 Jackson and we went inside and I looked around. The window in question in the bathroom has two panes in it. The panes are between 10 and 12 inches wide and between 16 and 18 inches in height. There are two of them, and hinge from the top, and there is fresh putty on the windows. They do have glass in them now. I guess that's all I need to put on the record. I guess that I can say also that I believe the estimate of five feet off the floor is probably close * * * between five and six feet off the floor, I would say."
Defendant contends this view of the window in his absence was reversible error, citing Lewis v United States, 146 U.S. 370; 13 S Ct 136; 36 L Ed 1011 (1892); People v Hull, 86 Mich. 449; 49 N.W. 288 (1891), and People v Auerbach, 176 Mich. 23; 141 N.W. 869 (1913). Lewis, supra, involved secret challenges to the jurors in the absence of defendant and the jurors, as directed by the trial court. Hull, supra, does not hold that in defendant's absence view is reversible error. Rather it holds that the jury must be kept under supervision of an officer to avoid anyone communicating with the jury. Neither case is in point, nor is Auerbach, supra.
In the present case, it is apparent that the trial court and both counsel met by prearrangement for the sole purpose of determining the size of the window. No testimony was taken. Defendant's presence could not have altered the size of the window. The view was not objected to but it was participated in by defendant's attorney. Defendant is precluded from raising this issue for the first time on appeal, People v Bryant, 43 Mich. App. 659; 204 N.W.2d 746 (1972).
This holding should not encourage views in the absence of defendant. Such action invites appellate review and can cause reversal of an otherwise valid conviction.
The remaining issues do not merit discussion.
Affirmed.