People v. Eglar , 19 Mich. App. 563 ( 1969 )

19 Mich. App. 563 (1969) 173 N.W.2d 5

PEOPLE
v.
EGLAR

Docket No. 6,169.

Michigan Court of Appeals.

Decided October 28, 1969.

Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, James K. Miller, Prosecuting Attorney, and Robert J. Stephan and Jack L. Winter, Assistant Prosecuting Attorneys, for the people.

Jaroz, Doherty & Vanden Bosch, for defendant on appeal.

Before: R.B. BURNS, P.J., and HOLBROOK and LEVIN, JJ.

PER CURIAM.

The defendant appeals his conviction of indecent exposure of his person. MCLA § 750.335a (Stat Ann 1954 Rev § 28.567[1]).

Two girls, aged 11 and 12, testified that they were walking on a public sidewalk and that they saw the defendant across the street in a garage take down his pants and expose himself to them. The girls claim the defendant repeated this act the following day when the girls again were walking on the sidewalk.

The case was tried by a judge without a jury. It appears that the judge had difficulty determining whether the girls were in a position to actually see into the garage. During the noon recess the judge drove by the location where the crime was allegedly committed and viewed the location and surrounding area. The judge disclosed on the record the fact that he had viewed the premises, but did not state what impressions, if any, he had derived. No objection was voiced by the defendant's trial counsel to the judge's action.

We agree with the defendant's appellate counsel that it was error for the judge to view the premises without having given the defendant and counsel for both parties an opportunity to be present with him.

The judge was the trier of fact. No evidence could properly be considered by him that was not presented as part of the trial. Conceivably the judge viewed the wrong garage, or viewed the right garage from a point other than the place the girls claim they were walking when they saw the defendant. The defendant and counsel for both parties had a right to be present so that they could know whether the judge viewed the garage from the same point the girls viewed it, and so that they could know what the judge saw, and could consider that in deciding whether to offer additional proofs at the trial.

Although the defendant's trial counsel voiced no objection when the judge disclosed what he had done, we do not think that a lawyer should be put in the position of challenging such conduct and thereby possibly incurring the judge's displeasure. We do not mean to suggest that would have been the reaction of the trial judge in this case had the defendant's counsel objected and asked that the judge return to the scene with the defendant and counsel for both parties, but the defendant's counsel may have feared such a reaction.

We repeat what we said in People v. Harvey (1968), 13 Mich. App. 211: when a judge considers evidence not in the record, even though he discloses that he has done so to the parties, he puts the defendant's counsel in the embarrassing dilemma of compelling respect by the judge for his client's right to have no evidence considered that is not part of the record, but simultaneously running the risk of antagonizing and arousing the suspicion of the judge, as trier of fact, as to the defendant's guilt.

Reversed and remanded for a new trial.