
    PEOPLE v. GRAVES
    1. Witnesses — Evidence — Impeachment — Prior Inconsistent Statements.
    A witness can be impeached by the use of prior statements made by him that are inconsistent with his present testimony, and if he does not admit making the prior inconsistent statements, he can be impeached by independent evidence.
    2. Same — Evidence —■ Impeachment — Prior Inconsistent Statements.
    A person seeking to impeach a witness on the basis of previous inconsistent testimony must ask the witness if he remembers testifying on the previous occasion and answering certain questions in a certain way, whereupon the alleged questions and answers are to be read to the witness; but it is not neeessary to introduce in evidence at the present trial a record of testimony from a previous case in the faee of a stipulation from the witness’s counsel that the record of the previous case is accurate.
    ,3. Appeal and Error — Saving Questions for Review.,
    Defendant’s claims that the warrant for his arrest was not made on the basis of personal knowledge and that the prosecution failed to indorse a res gestae witness not raised at trial cannot be considered on appeal for the first time.
    References for Points in Headnotes
    [1, 2] 58 Am Jur, Witnesses §§ 767, 775 et seg.
    [3] 5 Am Jur 2d, Appeal and Error § 726.
    Appeal from Oakland, Adams (Clark J.), J.
    Submitted Division 2 May 9, 1968, at Lansing.
    (Docket No. 4,323.)
    Decided December 24, 1968.
    Leave to appeal denied May 21, 1969.
    See 382 Mich 754.
    
      William Franklin Graves was convicted of armed robbery. Defendant appeals.
    Affirmed.
    
      Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, 8. Jerome Bronson, Prosecuting Attorney, and Dennis Donohue, Chief Appellate Counsel, for the people.
    
      John W. Appleford, for defendant.
   Moody, J.

William Franklin Graves was convicted by a jury of armed robbery. He appeals.

The record reveals that an eyewitness, both at the preliminary examination and at the trial of this cause, identified the defendant as one of the persons who robbed him. However, the trial testimony of this witness contained a number of inconsistencies with the testimony he offered at the preliminary hearing.

During the course of the trial the defendant’s counsel, following the guidance of the trial judge, properly used the examination transcript and confronted the eyewitness with a number of inconsistent statements. Counsel first asked the question. If he determined the answer inconsistent with the prior testimony, he then read the question and answer transcribed at the examination and asked the witness whether he could confirm, deny or recall the prior statements made. On most occasions the eyewitness did not recall answers previously given.

Later the defendant’s lawyer called as an impeachment witness the court reporter who transcribed the testimony at the preliminary hearing. The examination transcript, from which the defense lawyer questioned the eyewitness, was offered in evidence. Thereupon, the prosecutor stipulated that such record was a complete and accurate portrayal of the proceedings at the preliminary examination. The court did not accept the transcript itself as an exhibit and sustained the prosecutor’s objection to allowing the reporter to read verbatim from his original punched notes of the preliminary examination.

The defendant first claims that reversible error was committed by the trial court for not permitting the court reporter as an impeachment witness to read from his original punched notes certain testimony from the preliminary examination.

It has been well established in Michigan, at least since Smith v. People (1852), 2 Mich 415, that unless the witness admits the prior inconsistent statements, which the eyewitness did not in this instance, he can be impeached by independent evidence.

However, in the case at bar, defendant’s claim of reversible error has no merit. First, the defendant’s counsel did not put questions to his impeaching witness in proper form.

“ ‘The language which it is claimed the witness used must be given, and he asked if he used it.’ [Rice v. Rice (1895), 104 Mich 371, 379.]

“In the present case the only offer made was to read from the testimony given by Wirth on the former hearing. * * *” People v. Considine (1895), 105 Mich 149, 166.

Likewise, this was the attempted improper procedure used in the instant case.

Second, and most important, the content and import of the impeachment testimony which the reporter could have given was already before the jury. It was stipulated by the People that the prior transcriptions read by the defense attorney to the eyewitnesses were an “accurate and complete” record of the preliminary examination.

Viewing the entire record it cannot he said that the court under the circumstances of this case abused its discretion by excluding the reporter’s testimony about and transcript of the preliminary hearing. The admission of such testimony would only have had cumulative effect. Since the transcription was stipulated to be accurate and complete, the defendant had every opportunity to assert, and the jury to consider the inconsistencies thus shown. See People v. Kramer (1927), 240 Mich 98.

The other two issues noted by the defendant were not properly raised. The defendant did not timely question whether the complaint and warrant were made on the basis of personal knowledge. People v. Roney (1967), 7 Mich App 678. In addition, the defendant at no time of record made inquiry, initiated any effort or proposed a motion to add as a res gestae witness an alleged accomplice whose case previously was dismissed. Such was not timely raised and no prejudice was shown. People v. Knoll (1932), 258 Mich 89; People v. Raider (1931), 256 Mich 131.

The decision of the trial court is affirmed.

Lesinski, C. J., and Quinn, J., concurred. 
      
       CLS 1961, § 750.529 (Stat Ann 1968 Cum Supp § 28.797).
     