
    PEOPLE v RIZZO PEOPLE v VASSALLO
    1. Criminal Law—Preliminary Examination Transcript—Testimony-Admissibility.
    Only testimony taken at a preliminary examination is admissible pursuant to statute; those parts of the transcript which are not testimony, such as comments or stricken testimony, are not admissible (MCLA 768.26).
    2. Criminal Law—Preliminary Examination Transcript—Testimony—Admissibility.
    Admitting into defendant’s trial the entire preliminary examination transcript of a missing witness, which included stricken testimony, comments, objections, and argument, was error, but not reversible error where defendants were not prejudiced by the admission of the entire transcript in that the evidence of their guilt, even without the transcript, was overwhelming (MCLA 768.26).
    References for Points in Headnotes
    [1] 21 Am Jur 2d, Criminal Law § 442 et seq.
    
    [2] 5 Am Jur 2d, Appeal and Error § 717.
    Appeal from Macomb, Frank E. Jeannette, J.
    Submitted Division 2 April 7, 1972, at Lansing.
    (Docket Nos. 11702, 11703.)
    Decided May 1, 1972.
    Leave to appeal denied, 388 Mich 769.
    Joseph Rizzo and Casimo Vassallo were convicted of breaking and entering an occupied dwelling with intent to commit larceny. Defendants appeal.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, George N Parris, Prosecuting Attorney, Thaddeus F. Hamera, Chief Appellate Lawyer, and Don L. Milbourn, Assistant Prosecuting Attorney, for the people.
    
      
      Towner, Rosin & York, for defendants on appeal.
    Before: Quinn, P. J., and V. J. Brennan and Targonski, JJ.
    
      
       Former circuit judge, sitting on the Court of Appeals by assignment pursuant to Const Í963, art 6, § 23 as amended in 1968.
    
   Per Curiam.

A jury convicted defendants of breaking and entering an occupied dwelling with intent to commit larceny, MCLA 750.110; MSA 28.305. They appeal on the basis of two issues which we restate for accuracy as follows:

1. Was it reversible error to admit the preliminary examination testimony of a missing witness?

2. Was reversible error committed by admitting the entire transcript of that testimony which included stricken testimony, comments, objections and argument of counsel and the examining magistrate?

A lengthy recitation of the facts would serve no purpose. We merely observe that proof of the offense and of defendants’ participation therein was overwhelming.

Reiteration of the rules governing use at trial of a missing witness’s testimony at preliminary examination is unnecessary. They are clearly stated in People v Martin #2, 21 Mich App 667 (1970). Following an extensive hearing to determine what the prosecution had done to secure the appearance of the missing witness, the trial court found that the prosecutor had exercised due diligence in his attempt to produce the witness and admitted the preliminary examination testimony of that witness. On review, we are not able to find that the finding of due diligence was clearly erroneous, GCR 1963, 517.1. There was no abuse of discretion and no error in admitting the preliminary examination testimony of the missing witness.

The statute, MCLA 768.26; MSA 28.1049, authorizes the use of "testimony taken at an examination, * * * ”. This precludes use of those parts of the transcript that are not testimony. It was error to admit the entire transcript. The record precludes a finding that this was reversible error, however, because defendants have failed to demonstrate prejudice from admission of the entire transcript. Without the transcript, the evidence of defendants’ guilt was overwhelming. No miscarriage of justice is shown, MCLA 769.26; MSA 28.1096.

Affirmed.  