Appeal from St. Clair, Halford I. Streeter, J.
D. E. Holbrook, P. J., and J. H. Gillis and M. J. Kelly, JJ. D. E. Holbrook, P. J., concurred. M. J. Kelly, J. (dissenting).
1. -- Evidence -- Hearsay.
Hearsay is an out-of-court statement offered to prove the truth of the matter asserted.
2. -- Evidence -- Affidavits -- Hearsay -- New Trial -- Appeal and Error -- Record.
An affidavit which was inadmissible hearsay should have been stricken from the record at a hearing on a motion for a new trial and it should not be considered on appeal.
3. Jury -- Impeachment of Verdict.
Public policy forbids that a matter resting in the personal consciousness of one juror should be received to overthrow a verdict because being personal it is not accessible to other testimony.
4. Jury -- Impeachment of Verdict -- Prejudicial Information -- Communication to Jury.
A defendant who was convicted of delivery of a controlled substance was not denied a trial by an impartial jury, although one juror had had prior contact with the defendant's residence and had been told that the house was a mess and that loud parties occurred there, where (1) the information was not so prejudicial as to deny the defendant a "fair shake" and (2) any information that the juror with such knowledge communicated to the other jurors was innocuous.
5. Appeal and Error -- Instructions to Jury -- Failure to Object -- Manifest InJustice.
Failure to object to erroneous jury instructions precludes reversal absent manifest inJustice.
6. Evidence -- Witnesses -- Number of Witnesses.
The number of witnesses a party garners is irrelevant in determining where the truth lies.
7. Drugs and Narcotics -- Delivery -- Procuring Agent Defense -- Controlled Substances.
A procuring agent defense to the sale of a controlled substance is not available to a defendant who denies commission of the offense.
8. Drugs and Narcotics -- Delivery -- Procuring Agent Defense -- Controlled Substances Act.
The procuring agent defense to the sale of drugs and narcotics is not available under the new Controlled Substances Act (MCLA 335.301 et seq.; MSA 18.1070 et seq.).
Dissent by M.J. Kelly, J.
9. Jury -- Impeachment of Verdict -- New Trial -- Drugs and ...