On Application for Rehearing
First, the failure of the committing magistrate to preserve the testimony against the defendant before indictment is not, per se and of itself, an irregularity which can be raised as a point of error in the trial on the indictment. Cf. Green v. Bomar, 6 Cir., 329 F.2d 796.
Second, whether or not Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908, requiring the prophylaxis of a voir dire absent the jury applies to a search and seizure we need not decide. This because Simmons, on the record, had no standing to obj ect to the seizure of the safe. We find no analogy to Henry v. State of Mississippi, 379 U.S. 443, 85 S.Ct. 564, 13 L.Ed.2d 408.
Application overruled.