FITZGERALD, P.J.
Upon conviction of the crime of statutory rape under CLS 1961, § 750.520 (Stat Ann 1954 Rev § 28.788) defendant Willie Dickinson brings to this Court a substantial number of errors from a trial which consumed one day.
Chief among his allegations of error is that the prosecuting attorney should have been compelled to indorse on the information the names of two physicians who had examined the private parts of the 13-year-old prosecutrix following the alleged statutory rape, and further that the State should have been compelled to produce each of the physicians to testify at the trial. He charges that the prosecutor, in effect, suppressed evidence of the findings of the physician who, at the request of the authorities, examined the prosecutrix.
The prosecution counters this argument by citing People v. Prescott (1934), 268 Mich. 606, for the fact that no motion was made by defendant to require indorsement of the names on the information and that the failure of the prosecuting attorney to indorse names of witnesses not to be called does not constitute error. Specifically, the prosecution states that the trial record fails to show that any such motion to indorse was made by the defendant and that the issue is being raised for the first time on appeal. We note, however, that despite the absence of a motion, the record is replete with unavailing efforts on the part of defendant to secure the medical testimony.
We are met first with a statute, CLS 1961, § 767.40 (Stat Ann 1965 Cum Supp § 28.980):
"All informations shall be filed in the court having jurisdiction of the offense specified therein, after the proper return is filed by the examining magistrate, by the prosecuting attorney of the county as informant; he shall indorse thereon the names of the witnesses known to him at the time of filing the same. The information shall be subscribed by the prosecuting attorney or in his name by an assistant prosecuting attorney. Names of additional witnesses may be indorsed before or during the trial by leave of the court and upon such conditions as the court shall determine."
Was the prosecutor required to indorse the name of the two physicians who had examined the prosecutrix some time after the alleged statutory rape? While a cursory reading of the statute, supra, might indicate that the prosecutor is required to indorse the names of all known witnesses, the scope and extent of his duties under this statute have been the subject of refined judicial interpretation over the years. Generally stated, the prosecutor is required to indorse only res gestae witnesses, with various exceptions even as to res gestae witnesses. People v. Keywell (1931), 256 Mich. 139; People v. Kayne (1934), 268 Mich. 186; People v. Tann (1949), 326 Mich. 361.
An exhaustive analysis of the prosecutor's duty regarding indorsement of res gestae witnesses and its underlying rationale can be found in Kayne, supra, which was decided at a time when a statute substantially the same as CLS 1961, § 767.40, supra, was in effect. As there stated (omitting citations):
"`No inflexible rule has ever been and probably never can be adopted as to what is a part of the res gestae. It must be determined largely in each case by the peculiar facts and circumstances incident thereto; but it may be stated as a fixed rule that, included in the res gestae are the facts which so illustrate and characterize the principal fact as to constitute the whole one transaction, and render the latter necessary to exhibit the former in its proper effect.'
"`And as long as the transaction continues, so long do acts and deeds emanating from it become part of it, so that, describing it in a court of justice, they can be detailed. * * * Nor are there any limits of time within which the res gestae can be arbitrarily confined.'"
Kayne goes on further to quote (p 193) from Hurd v. People (1873), 25 Mich. 405, 415-417:
"`But the prosecution can never, in a criminal case, properly claim a conviction upon evidence which, expressly or by implication, shows but a part of the res gestae, or whole transaction, if it appear that the evidence of the rest of the transaction is attainable. This would be to deprive the defendant of the benefit of the presumption of innocence, and to throw upon him the burden of proving his innocence. It is the res gestae, or whole transaction, the burden of proving which rests upon the prosecution (so far at least as the evidence is attainable). It is that which constitutes the prosecutor's case, and as to which, the defendant has the right of cross-examination; it is that, which the jury are entitled to have before them, and "until this is shown, it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn."
"`The prosecutor in a criminal case, is not at liberty like a plaintiff in a civil case, to select out a part of an entire transaction which makes against the defendant, and then, to put the defendant to the proof of the other part, so long as it appears at all probable from the evidence, that there may be any other part of the transaction undisclosed; especially, if it appears to the court that the evidence of the other portion is attainable. The only legitimate object of the prosecution is, "to show the whole transaction, as it was, whether its tendency be to establish guilt or innocence." * * * But, certainly, if the facts stated by those who are called show prima facie, or even probable reason for believing that there are other parts of the transaction to which they have not testified, and which are likely to be known by other witnesses present at the transaction, then such other witnesses should be called by the prosecution, if attainable, however nearly related to the prisoner.'"
Summing up, Kayne makes the following analysis of Michigan law (p 194):
"The indorsement and calling of a witness by the prosecution is not required unless he is a res gestae witness. People v. Grant (1896), 111 Mich. 346. And it is not the rule that all res gestae witnesses must be indorsed on the information and called by the State. People v. Kindra (1894), 102 Mich. 147. Especially is this true when the offense charged is not a crime of violence. Bonker v. People (1877), 37 Mich. 4. Instead the rule is that, apart from cumulation of testimony, any res gestae witness should be indorsed and called by the prosecution if the testimony of such witness is reasonably necessary to protect the accused against a false accusation. * * *
"But where a fair presentation of the res gestae of the crime charged cannot otherwise be made to the court or jury, the State is required to indorse and call the witness or witnesses whose testimony is necessary to protect the accused from being the victim of a false accusation. Such is the rule, as stated in Hurd v. People, supra, `so long as it appears at all probable from the evidence, that there may be any other part of the transaction undisclosed; especially, if it appears to the court that the evidence of the other portion is attainable.'"
Heeding the rationale of Kayne, we conclude that the results of the examination by the two physicians was a part of the res gestae and, as such, essential to the trial of this case. The failure of the prosecutor to indorse their names upon the information and secure their testimony was clearly prejudicial error.
The lapse of time from the alleged criminal act to the examination does not remove it from the res gestae under these particular facts, since the lapse of time was brought about by the defendant's intimidation of the prosecutrix.
The record discloses the following events, as an aftermath of the alleged rape on Saturday:
"Q. Did you talk to your mother on Sunday about this?
"A. No.
"Q. Why didn't you tell her on Sunday?
"A. No, because every place my mom went, he followed her around. I didn't get a chance to.
"Q. Did you go to school on the following Monday, then?
"A. Yes.
"Q. Did you talk to your mother about this before you went to school on Monday?
"A. No.
"Q. Why not?
"A. Because he left for work late that morning. He stayed there late. He went to work just about before I left."
The record then discloses that the prosecutrix informed her mother on Monday, when she returned from school.
This sequence of events, followed by the mother's immediate notification of the authorities, indicates to us that the transaction was an ongoing one, not limited solely to events directly following the alleged rape, thus bringing it clearly within the contemporaneous quality generally surrounding res gestae.
Regarding the prosecution's contention that Prescott, supra, conclusively decides the matter, we cannot agree. That case is limited to the holding that the indorsement of names may not be reserved as a basis for a new trial where no motion to so indorse was made at the time of trial. Though in this case, no motion was made, the considerations on a motion for a new trial and an appellate review are not necessarily coextensive, the former being addressed to the discretion of the trial court, the latter being a safeguard of defendant's fundamental rights.
Examination of the 13-year-old prosecutrix by a physician selected by the authorities for the purpose of securing medical opinion as to the fact of the commission of the crime was an ongoing part of this "transaction" and the findings of such examination are part of the res gestae. The virtually uncorroborated testimony of the prosecutrix might have been enhanced or destroyed by the testimony of either or both of the physicians in question and certainly such testimony could not be called cumulative. The State's failure to produce these witnesses taints this prosecution and calls for a new trial where such testimony will be available.
The judgment is set aside and a new trial ordered.
HOLBROOK and T.G. KAVANAGH, JJ., concurred.
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