PEOPLE
v
LEONARD
Docket No. 77-1322.
Michigan Court of Appeals.
Decided January 30, 1978.Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, and Frank R. DelVero, Prosecuting Attorney (by Mark I. Leach, Assistant Attorney General, Prosecuting Attorneys Appellate Service), for the people.
David M. Hartsook, for defendant on appeal.
Before: BRONSON, P.J., and R.B. BURNS and R.E.A. BOYLE,[*] JJ.
PER CURIAM.
Defendant was convicted by a jury of cruelty to children, MCLA 750.136; MSA 28.331. He appeals and we affirm.
Defendant raises four issues, which we deal with seriatim.
Defendant phrases his first argument in terms of sufficiency of the evidence, but argues it in terms of weight of the evidence.
The evidence clearly meets the sufficiency test. As for the weight of the evidence, defendant admitted spanking the three-year-old child he was *88 babysitting for, but suggests that the child's mother may have herself administered the beating which resulted in severe bruises, after she had returned home with the child. There wasn't any testimony that the mother had administered any beating. Although both defendant and the mother testified that the mother had seen defendant spank his own children with a belt and had told defendant to spank her child if the child behaved badly, medical and photographic evidence in the present case showed that the spanking was more like a beating. Defendant testified that he had spanked the child the same as his own children, except for a longer period of time. The beating itself may bespeak the intent, see People v Green, 155 Mich. 524, 533; 119 N.W. 1087, 1090 (1909). The verdict of guilty was not against the great weight of the evidence.
Defendant's second argument is that the photographs of the child's injuries were erroneously admitted, because the photographs were gruesome and there was no dispute that the child was spanked, spanked on the buttocks, and spanked with a belt.
The photographs, while showing the extent of a rather severe beating, were not gruesome. They were of probative value because the extent of the spanking administered by defendant was strongly contested.
Third, defendant argues that the statute violates constitutional rights of due process and equal protection under the law. The argument is essentially one of equal protection, and is based on the following language:
"* * * Provided, however, If, after such conviction and before sentence, in case the child has not been deformed or maimed, he or she shall appear before the *89 clerk of the court in which said conviction shall have taken place, and with good and sufficient surety, to be approved by said clerk enter into bond to the people of the state of Michigan in the penal sum of $1,000.00 conditioned that he or she will furnish such child or children with necessary and proper home, care, food, shelter, protection and clothing, the said court may suspend sentence therein. * * *." MCLA 750.136; MSA 28.331.
Before the trial court, defendant argued that the statute created unconstitutional classifications based on wealth and on permanent versus temporary custodians, and also argued that defendant did not have the $1,000 in order to post bond. On appeal defendant does not argue the wealth classification. It is questionable whether defendant has standing to argue the custodian issue on appeal since on the record he would have been unable to post the bond in any case. However, dealing with the issue on the merits, we find that the classification based on type of custodianship is rational and reasonable and is constitutional.
The last issue is based upon the trial court's denial of a motion, made the day before trial, for a Walker[1] hearing on the admissibility of statements made by defendant. The trial court based its ruling on the untimeliness of defendant's motion. The trial court erred because such a hearing must be held if the defendant moves for it before trial, People v Childers, 20 Mich. App. 639, 646; 174 NW2d 565, 569 (1969). Childers applies to involuntary confession cases, see People v Mitchell, 44 Mich. App. 679, 683; 205 NW2d 876, 878 (1973).
However, just as in Childers, the error was not a reversible error. The testimony of the police witnesses *90 regarding the statements did not contradict, and was merely cumulative of, defendant's own testimony. We also note that the police testimony as to the contents of the statements was brief, the statements were never referred to as confessions, the trial court cautioned the witnesses about even mentioning statements by defendant's wife (a former codefendant), and defendant's testimony elaborated upon the statements testified to by the witnesses.
Affirmed.
NOTES
[*] Circuit judge, sitting on the Court of Appeals by assignment.
[1] People v Walker (On Rehearing), 374 Mich. 331; 132 NW2d 87 (1965).