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12/04/75 PEOPLE v. PATTON

December 4, 1975

PEOPLE
v.
PATTON



Appeal from Bay, John X. Theiler, J.

N. J. Kaufman, P. J., and R. B. Burns and Deneweth,* JJ.

SYLLABUS BY THE COURT

1. -- Evidence -- Rebuttal Evidence -- Case in Chief -- Proper Admission.

A trial Judge has no reason to exclude evidence properly introduced by the prosecution in rebuttal of the testimony of a defense witness even though the evidence could have been introduced during the people's case in chief, and defense counsel is not negligent in not objecting thereto.

2. Witnesses -- Incompetents -- Mental Weakness -- Lucid Testimony -- Weight -- Instructions to Jury.

It is the duty of a court to determine whether a witness is competent to testify before submitting his testimony to a jury; but where a witness who is mentally weak or immature can give lucid, connected testimony, the court should admit it, leaving the question of the weight of that testimony to the jury under proper instructions.

3. -- Statutes -- Preliminary Examination -- Witness's Testimony -- Absence From Trial -- Incapacity.

A statute provides that testimony taken at a preliminary examination may be used by the prosecution whenever a witness cannot be produced at trial and the statute is applicable where a witness has suffered a nervous breakdown and cannot remember at trial the events to which she testified at the prior hearing (MCLA 768.26; MSA 28.1049).

4. Witnesses -- Impeachment -- Prior Inconsistent Statements.

A witness's testimony may be impeached by the use of prior inconsistent statements.

The opinion of the court was delivered by: Per Curiam

Richard L. Patton was convicted of assault with intent to commit great bodily harm less than murder. Defendant appeals.

Defendant was convicted of assault with intent to commit great bodily harm less than murder. MCLA 750.84; MSA 28.279. We affirm.

The complaining witness, Danny Boughner, and a Roger Flues got into a fight. The defendant was drawn into the fight on the side of Flues. Both the defendant and Flues had guns. During the course of the fight Boughner was shot in the stomach. After the shot was fired defendant walked to his car and told his girl friend, Joyce Halstead, that he had shot Boughner but that it had been an accident. The defendant and Joyce Halstead were stopped by the police but were allowed to depart when another officer stopped ...


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