
    PEOPLE v. SPELLS
    3. Homicide — Trial—Evidence—Due Process — Confession of Co-Defendant.
    The reading at defendant’s trial for first-degree murder of a non-testifying eodefendant’s statement which implicates defendant in the erime is a denial of defendant’s right to due process of law because it denies him the right to confront witnesses against him.
    2. Homicide — Trial—Evidence—Due Process — Appeal and Error • — Preserving Question Eor Eeview.
    Failure of defendant to object at trial to the admission in evidence of extrajudicial statements of his eodefendant does not automatically preclude appellate review; review is proper even though the error has not been saved where such review is necessary to afford defendant a fair trial.
    Appeal from Oakland, Clark J. Adams, J.
    Submitted Division 2 February 5, 1969, at Lansing.
    (Docket No. 3,434.)
    Decided March 27, 1969.
    Benny Lee Spells was convicted of first-degree murder. Defendant appeals.
    Reversed.
    
      Franlc J. Kelley, Attorney General, Robert A. Derengoshi, Solicitor General, 8. Jerome Bronson, Prosecuting Attorney, Dennis Donohue, Chief Appellate Counsel, and Bruce T. Leitman, Assistant Prosecuting Attorney, for the people.
    
      William E. Bolle, for defendant on appeal.
    BEFORE: QuiNN, P. J., and McGregor and V. J. BRENNAN, JJ.
    References for Points in Headnotes
    
       16 Am Jur 2d, Constitutional Law § 574; 21 Am Jur 2d, Criminal Law §§ 336, 340.
    
       5 Am Jur 2d, Appeal and Error §§ 548, 549.
   Per Curiam.

Defendant, Benny Lee Spells, was convicted of first-degree murder, Laving been charged with murdering a certain Eftimias Yasilion in an attempt, with two eodefendants, to perpetrate an armed robbery in July, 1962. An extrajudicial statement of codefendant Page inculpated Spells. The statement was read into the record without objection by the defense; Spells was not afforded an opportunity to cross-examine, as Page did not testify.

The mandate of Bruton v. United States (1968), 391 US 123 (88 S Ct 1620, 20 L Ed 2d 476) renders the reading of a non-testifying eodefendant’s inculpating statements invalid as a denial of the constitutional right to confront one’s accusers. Bruton extends to state prosecutions, and is retroactive. Roberts v. Russell (1968), 392 US 293 (88 S Ct 1921, 20 L Ed 2d 1100).

Defendant’s failure to object to admission of the extrajudicial statement does not preclude review. The practice in question was sanctioned at the time of trial. A motion for separate trial by the third co-defendant on the ground that the Page statement was prejudicial (which was denied in Spells’ presence) directed the trial court’s attention to the problem. See People v. Logie (1948), 321 Mich 303, 307. Review, though the error has not been saved, is proper where necessary to afford a defendant a fair trial. People v. Farmer (1968), 380 Mich 198, 208.

Reversed.  