People v Bencheck, 360 Mich. 430; 104 N.W.2d 191 (1960), People v Boone, 47 Mich. App. 548; 209 N.W.2d 693 (1973). Defendant relies on two cases, People v Martin, 316 Mich. 669; 26 N.W.2d 558 (1947), and People v Pulliam, 10 Mich. App. 481; 157 N.W.2d 302 (1968), for the proposition that once a prior sentence is invalidated, a plea withdrawal motion is to be measured by the presentence standards. In People v Martin, supra, the trial court failed to follow statutory provisions requiring an open-court determination of guilt and the degree of the crime when accepting a guilty plea.

Id.; People v Martin, 316 Mich. 669, 671-672; 26 N.W.2d 558 (1947). The statute does not specify whether the defendant retains any constitutional rights regarding the hearing, but we have held that the degree hearing following a guilty plea is not a trial, and a defendant who pleads guilty of open murder is no longer entitled to have a jury determine the degree of murder.

Witness has been defined as "one who testifies under oath to something he knows at first hand". People v Martin, 316 Mich. 669, 672; 26 N.W.2d 558 (1947), quoting 3 Bouvier's Law Dictionary, p 3475. The court should make sure that if compensation is awarded for loss of working time that the individual witness's loss of time is considered.

Id.; People v. Martin, 316 Mich. 669, 671-672, 26 N.W.2d 558 (1947). The statute does not specify whether the defendant retains any constitutional rights regarding the hearing, but [the Michigan Court of Appeals has] held that the degree hearing following a guilty plea is not a trial, and a defendant who pleads guilty of open murder is no longer entitled to have a jury determine the degree of murder.

On order of the Court, the delayed application for leave to appeal from the October 15, 1999 decision of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. Corrigan, J., would remand the case to the Court of Appeals for consideration as in leave granted, taking into account People v Martin, 316 Mich. 669 (1947).

See State v. Deets, 195 N.W.2d 118, 121 (Iowa); In re Estate of Burcham, 211 Iowa 1395, 1399, 235 N.W. 764. See also People v. Martin, 316 Mich. 669, 26 N.W.2d 558, 559-560; State v. Schifsky, 243 Minn. 533, 69 N.W.2d 89, 93; 1 Wigmore on Evidence, § 1 (3rd ed.); 3 Wigmore on Evidence, § 789 (Chadbourn Rev.); Black's Law Dictionary, "Witness", page 1778 (rev. 4th ed.), id. "Evidence", pages 656-657. It is at once evident Ronald Kelsey did not qualify as a witness by his brief courtroom appearance.

— REPORTER. That a general verdict is invalid where the single count of murder is laid in the information is discussed in People v. Martin, 316 Mich. 669, in which the Court referred to the statute which requires a determination by the jury of the degree of murder. (Section 318 of the penal code, as amended by PA 1947, No 295, being CL 1948, § 750.318 [Stat Ann 1953 Cum Supp § 28.550].)

The Grillo case held: "The rule in the Martin case [ 316 Mich. 669, 26 N.W.2d 558] is applicable where a plea of guilty to the crime of murder is entered without specifying its degree. However, when Grillo pleaded guilty to second-degree murder, and it was determined that his plea was made freely and without undue influence, nothing else remained to be determined. There was no necessity to examine witnesses in order to determine the degree of his crime.

No witnesses were sworn and no testimony was taken to determine the degree of the crime. In People v. Martin, 316 Mich. 669, this Court has recently held that under the above circumstances the sentence is invalid. The statute requiring the court to examine witnesses to determine the degree of the crime, under the above circumstances, is mandatory; and the fact that this defendant later in the subsequent examination of a codefendant testified to the manner and means whereby the crime was perpetrated does not constitute an exception to the requirement of the statute or cure the failure to comply with it.

The questions presented have to do with failure to take the testimony of witnesses as to the degree of the crime and the claim that the sentence is void because no mental examination was made, although it affirmatively appeared prior to the time of sentence that Grillo was feeble-minded. It is argued that the first proposition is controlled by our recent decision in People v. Martin, 316 Mich. 669, where this Court said: "It is the clear intent and meaning of the statute that the court shall proceed to a determination of the degree of the crime on the basis of testimony given by witnesses sworn and examined in open court. Not having done so, the court could not, as the statute provides, `render judgment accordingly,' and it was, therefore, without jurisdiction to impose sentence. It follows that the sentence is invalid and void."