(dissenting). I would affirm the Court of Appeals decision.
First, the defendant-appellant did not brief the joinder question either in the Court of Appeals or this Court. Also, the cases cited by the majority in support of separate trials are distinguishable on their facts. Here, the defenses were not antagonistic.
1.
It is well settled that an issue on appeal is abandoned if the party does not argue that issue.1 The policy behind this rule has long been resolved.
Important in an adversary system is the opportunity that must be given to the opposing party to refute an argument. There can be no opportunity for refutation if an issue is never briefed or argued.
2.
The majority concedes that joinder of defendants for trial is usually within the discretion of the trial court.2 The majority maintains that the trial in the instant case should have been severed on the ground of antagonistic defenses. While each of the cases cited involve codefendants who offered inconsistent defenses, such is not the instant case.
Both of the defendants maintained that the daughter’s injuries were caused by a fall down the steps.
*12It is evident that Hurst and Kelker from the start intended to present the defense of a fall down the stairs. The doctor in attendance at the emergency room where Hurst and Kelker brought the deceased child, testified:
"Yes sir, as I stated before, the lady, Mrs. Kelker, was very hysterical and the gentleman sitting next to her came in and stated that the baby had fallen down the stairs, he had thought, this was the baby’s mother, at that time while I was trying to examine the baby and get some sort of history of what had transpired I asked the gentleman, since he appeared to be either a friend or relation, I asked him if he could help calm the woman down and get some information from her. At this point he began shaking her, in what I thought was an attempt to calm her down, like I had requested. At this point he stated to her, the exact words were, just remember to say that the baby fell down the stairs, don’t say anything more, or something equivalent to that. ”
Hurst testified that the child fell down the stairs and that he had not spanked her on the day of the death. Kelker initially told an identical story:
"I went down to dress the kids and Evelyn and Letitia were both with some — we had some — we had got some spray, this was disinfectant and they were both— had it playing, Evelyn and both of them were putting in their mouth and I told them to take it out and they kept on so I picked up a sandal and I spanked both of them, both of the kids and then I was dressing Evelyn, I mean was dressing Letitia, Evelyn started up toward the stairs and she got, I don’t know how far she got up, but I know I seen her when she fell back down, I called Norwood, he came back downstairs, he took a towel and he was putting some cold water on her, then he went upstairs ánd I was giving her artificial respiration, he went upstairs and got his aunt and Henny came back downstairs and she was trying to give her artificial *13respiration and she wasn’t coming to and so Norwood tried also and Henny told us to take the baby to the hospital because she looked like she was dying.”
Thus, the defenses were not antagonistic. The jury could have believed the codefendant’s story and found neither of them guilty..
However, the prosecutor found that the above testimony was false and required impeachment by prior inconsistent statement:
"Q. Now, Mrs. Hurst, do you recall that on July 9th before the Honorable Patrick J. Conlin in the District Court in the City of Ypsilanti about 10 in the morning, making a statement to him under oath?
"A. Yes, I do.
"Q. And under oath you were asked to tell exactly what happened and you said, 'okay, well, Evelyn was putting disinfectant in her mouth and I was spanking her and he told me that I wasn’t disciplining her enough and if I didn’t discipline her that he would spank her and he began to hit her with his belt.’
"The Court: He began to hit her with what?
"Mrs. Kelker: His belt.
"The Court: Then what happened then, Mrs. Kelker?
"Mrs. Kelker: Then she started getting kind of dizzy, dazey and he told me that Evelyn, he told me that I should discipline the kids more * * * .
"Q. Do you recall stating under oath, he begin to hit her with his belt?
"A. No, I didn’t say hit her with his belt.
"Q. You didn’t say that?
"A. No, I didn’t.
"Q. The Court asking you a question, and what part of the belt was he using on her, was this the leather part or where was he hitting her, and you responded, T didn’t watch exactly where, but it was toward the back and on the chest’; do you recall saying that?
"A. Yes.
"Q. The Court asking you, 'but you saw him hit the *14child a number of times’, and your response, 'yes’. Do you recall saying that?
"A. Yes.
"Q. The Court, 'and you didn’t tell him to stop’, your response, 'no, I didn’t tell him to stop, I just said when I told him before not to hit the kids the way he was doing and I didn’t want to hit the kids' the way he was doing, and he would discipline me about not hitting the kids, he said that I was just tapping them or that I wasn’t disciplining them enough or that if I mentioned it he was just mean for disciplining the kids.’ Do you remember saying that?
"A. That, no.
”Q. Do you recall testifying on the preliminary examination against Norwood Hurst on August 26, 1971 before the Honorable Henry Arkison about 2:15 in the afternoon in Ypsilanti, do you recall that?
"A. Yes, I do.
"Q. Do you recall the question, 'did he in any way or form discipline the child during this period of time’, your response, 'yes, but it was before I had’. Do you recall saying that?
"A. Yes.
”Q. Question, 'how did he discipline the child,’ your response 'he hit her with a belt’. Do you recall saying that?
"A. Yes.”
The above testimony was taken out of the presence of the jury. After the court ordered Kelker’s attorney to discuss the crime of perjury with her, the jury returned and Kelker’s attorney again questioned her concerning the incident, this time eliciting the truth.
The majority concedes that "neither Kelker nor Hurst directly accused the other of causing Evelyn’s death”. Since the joinder question is within the discretion of the trial court, I find no abuse of that discretion.
*15The majority opinion has the effect of imposing strict limitations on the use of impeaching testimony in a joinder of trials. As noted above, even the parties no longer view separate trials as the issue since that issue was not argued before this Court or the Court of Appeals. I agree with the Court of Appeals that perjury was the real problem in this case.
I would affirm.
See People v Sims, 62 Mich App 550, 555; 233 NW2d 645 (1975), People v St Onge, 63 Mich App 16, 17; 233 NW2d 874 (1975), Anchor Bay Concerned Citizens v Anchor Bay Board of Education, 55 Mich App 428, 431; 223 NW2d 3 (1974), Mitcham v Detroit, 355 Mich 182; 94 NW2d 388 (1959). See also, Boissonneault v Flint City Council, 392 Mich 685; 221 NW2d 393 (1974).
MCLA 768.5; MSA 28.1028.