author: McAlvay, J.

text:
    PEOPLE v. CAMPBELL.
    1. Criminal Law — Information—Threats—Explosives.
    In a prosecution for threatening injury to person or property with intent to extort money, as defined by 3 Comp. Laws, § 11488, 5 Sow. Stat. (2d Ed.) § 14541, it was sufficient to charge in the information that respondent “did threaten to dynamite the dwelling house ” of a person named, with the intent specified by the statute, setting out in full the written communication containing the alleged threat. 3 Comp. Laws, § 11908, 5 How. Stat. (2d Ed.) § 15079.
    2. Same — Former Offenses — Evidence—Habitual Criminal.
    Evidence of former convictions and sentences imposed on the accused to the State prison for one year or more, was admissible under an information setting up such former convictions, in pursuance of the provisions of 3 Comp. Laws, §§ 11785, 11786, 5 How. Stat. (2d Ed.) §§ 14977, 14978, authorizing an increased penalty in such cases: and it was essential to a sentence as for a third conviction under s»ch statute, that the information should so allege, and proof thereof be made, so that although respondent did not take the witness stand he could not complain of alleged prejudicial effect by reason of the introduction of such proof.
    3. Same — Trial—Argument.
    The prosecuting attorney did not commit reversible error in arguing the case to-the jury by referring to and stating the effect of such evidence, which was not objected to or disputed by the accused.
    4. Same — Directed Verdict.
    Nor did the court err in its charge, submitting the other issues to the jury, in advising them that as to the prior convictions it was their duty to find against respondent.
    5. Same — Sentence.
    The sentence, showing all necessary allegations, including the accusation, evidence, and determination of prior sentences, etc., was valid and regular.
    Error to Oakland; Smith, J.
    Submitted November 14, 1912.
    (Docket No. 131.)
    Decided December 17, 1912.

      Bennie E. Campbell was convicted of threatening injury to the property of another.
    Affirmed.

      Carl H. Pelton, Prosecuting Attorney, and Clinton McGee, Assistant Prosecuting Attorney, for the people.

      E. E. Hymers, for respondent.
   McAlvay, J.

Respondent was prosecuted and convicted before the circuit court of Oakland county upon an information charging that he feloniously and maliciously threatened to dynamite the dwelling house of Mary D. Ward, with intent to extort money from her, and the information also sets forth two prior convictions and sentences of respondent, one for larceny for which he was sentenced for ten years, and one for burglary for which he was sentenced for five years, in both instances to be confined in the State prison at Jackson at hard labor, both convictions having been had in the circuit court for the county of Oakland. Respondent has removed the case to this court after sentence for review upon a writ of error.

No evidence in the case on the trial was offered or presented on the part of respondent. The material facts relied upon by the people and to establish which evidence was offered and submitted are that respondent and another, acting together, wrote three certain letters to Mrs. Ward, the character of which will be seen from the following copy of the first letter:

“Aug, 22, 1910. Mrs. H. M. Ward. Pontiac, Mich.
“You are requested on Sept. 1st to have ten thousand dollars ($10,000) on Sept, the first you will receive a letter where to deliver the money and furthermore be shure and have the money without any further delay, and this money will hafto be forthcoming or your house will be dynamited. We mean business. This is no fooling.”

These letters were written in Pontiac, inclosed in envelopes, and sent through the mail. Two were posted in Detroit by the confederate named Osborne and one in Pontiac. They were all received by Mrs. Ward. The second letter gives instructions where the money was to be left, and the amount required in bills and the amount in gold, and contained the same threat as the first. The third letter refers to the fact that Mrs. Ward had gone out as directed, but failed to go to the place designated, and contains directions ordering her how and where to go, and concludes with the words:

“This is no fooling. We mean business or trouble.”

Mrs. Ward advised with her attorney, the proper officers were notified, and a watch was set upon these parties, who were seen together at the time Mrs. Ward came to the Hodges House with her car. After the receipt of the third letter, a deputy sheriff and other officers went to the place designated, and deposited dummy money. At that time some shots were fired, and later respondent and Osborne were captured.

Osborne, who was under prosecution for complicity in this offense, a young man 19 years old, had lived in Pontiac for five years, and was in the employ of an automobile factory. He was produced as a witness, and testified in detail as to the circumstances of writing and sending the letters. He said Campbell told him he had a scheme whereby to get money, and later gave him the details; that he posted two of the letters in Detroit and the last one in Pontiac; that Campbell dictated two of the letters, and he wrote them down. He testified at length to all the facts up to and including what occurred on the night before their arrest, when both of them went to the place where Mrs. Ward had been ordered to place the money.

Other witneses testified to material facts, including the deputy sheriff, who also testified to a voluntary statement made to him by respondent in answer to questións that he was in the orchard when he fired the shots, and Osborne was further away. There was abundant evidence presented to the jury to warrant the verdict of guilty of the offense charged against respondent.

The errors assigned and relied upon by respondent are:

First. That no offense is charged in the information. This question was raised at the close of the people’s case by a motion of respondent to quash the information and process in the case, because no offense under the laws of this State was set up in the information, which was denied. The information reads that:

“ Bennie E. Campbell * * * on or about the 22d day of August, 1910, at the city of Pontiac in said Oakland county, by a written communication sent to one Mary D. Ward, and directed to her the said Mary D. Ward by the name and description of ‘Mrs. H. W. Ward, R. F. D. No. 3, Pontiac, Michigan, feloniously and maliciously did threaten to dynamite the dwelling house of her, the said Mary D. Ward, with intent thereby then and there to compel the said Mary D. Ward, against her will, to deliver and give to the said Bennie E. Campbell and one Frank Osborne the sum of ten thousand dollars in money and which said written communication is as follows: [The letter of August 22d, 1910, already given, is then set forth.] ”

The statute defining the offense charged in the information, being section 11488, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14511), reads:

“If any person shall either orally or by a written or printed communication maliciously threaten * * * any injury to the person or property of another with intent thereby to extort money, or any pecuniary advantage whatever, * * * he shall be punished by imprisonment in the State prison or in the county jail not more than two years or by a fine not exceeding one thousand dollars, in the discretion of the court.”

The argument is that the information fails to charge, in the words of the statute just quoted, that the respondent “threatened to injure the person or property of Mrs. Ward,” insisting that the words in the information, “did threaten to dynamite the dwelling house of her the said Mary D. Ward,” did not sufficiently charge this offense. This objection is purely technical, and in our opinion the information in that respect is sufficient. In any view the information is sufficient under the statute, which provides:

“No indictment shall be quashed or deemed invalid, nor shall the trial, judgment or other proceedings thereon, be affected * * * by reason of any other defect or imperfection in matters of form which shall not tend to the prejudice of the defendant.” Section 11908, 3 Comp. Laws,

Second. Objection was made during the trial on the part of the respondent to the introduction of journal entries and records of the court of the former convictions and sentences of respondent charged in the information, as incompetent and prejudicial. These former convictions were set up in the information as provided by section 11785, 8 Comp. Laws (5 How. Stat. [2d Ed.] § 14977), which provides:

“ When any person shall be convicted of any offense, and shall be duly sentenced therefor to confinement in the State prison of this State, for one year or more, and it shall be alleged in the indictment on which said conviction is had, and admitted or proved on the trial, that the convict has before been sentenced to a like punishment by any court in this State, or in any other of the United States, for a period not less than one year, he shall be sentenced to be punished by imprisonment in the State prison not more than seven years, in addition to the punishment prescribed by law for the offense of which he shall then be convicted.”

And section 11786, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14978), which provides:

“When any such convict shall have been twice before sentenced to imprisonment at hard labor, for a period of not less than one year at each time, by any court in this State, or in any other of the United States, he shall be sentenced to imprisonment at hard labor for life, or for a term of not less than seven years in addition to the punishment prescribed by law for the offense of which he shall then be convicted.”

And the indictment further charges that, by reason of such former convictions and sentences, the respondent “is guilty and subject to sentence according to the provisions of compiler’s section 11786 of the Compiled Laws of Michigan of the year 1897.” By the provisions of the sections quoted, it was necessary that the allegations of such former convictions should be contained in the information, and, if not admitted, proved on the . trial, which statutory requirement must be complied with in order to give the court jurisdiction to sentence respondent as for a third offense under section 11786, supra.

It is urged that the evidence of these former convictions and sentences was incompetent, and that the same was prejudicial to the respondent. Counsel for respondent is in error in the conclusion that the law does not require such former convictions and sentences to be recited in the information, or that it is not necessary to prove the same on the trial of the case.

The two sections, above quoted, must be considered together, as they in terms so require. The first is a provision relative to one former conviction and sentence, and the second follows, beginning with the words, “When such convict shall have been twice before sentenced and imprisoned at hard labor,” referring back to the provisions of the first section quoted. This court must hold that, under this statute, no sentence could have been imposed as for a third conviction had the prosecutor omitted the allegations as to the former convictions and sentences from the information or proof of same upon the trial. This proof consisted of the original records of the court in which the trial of the instant case was had, identified by the clerk of the court. The authorities cited by respondent holding that proof of other offenses as evidence of the offense charged is not permitted to be received are not applicable to this case. These objectionable allegations in the information and the proof of the same had no relation to the offense for which respondent was then being tried, except as showing the jurisdiction and authority of the court in imposing a sentence as for a third offense should respondent be found guilty of the offense for which he was then on trial. Such former sentences, as has already been stated, were essential to the validity of the information in case of a conviction and sentence as for a third offense.

Third. Error is assigned upon the argument of counsel, charged as prejudicial and improper. This is claimed to be prejudicial because based upon the claimed improper testimony, just discussed, which was introduced. This testimony, which we hold was necessary under the statute and therefore properly in the case, tended to prove the former convictions and sentences, which the statute, as already stated, required must be proved in the case. The objectionable argument was a statement of the facts which the prosecutor claimed this evidence showed without dispute, and therefore cannot be held to have been prejudicial. No objection to this documentary evidence was made at the time of the trial except as above stated, nor were these former convictions and sentences of respondent in any manner questioned.

Fourth. Error is assigned to the following portion of the charge of the court:

“There are really two charges in this information, namely, the sending of this letter and also the charge of prior convictions. Regarding these two prior convictions, I feel free to say to you that the proof is a matter of record and undisputed, and upon that branch of the case I say to you that it will be your duty to render a verdict of guilty — that is, if he is guilty of the first offense — because there is no dispute about that. The records are clear that he was convicted on both occasions, and that he was sentenced the first time for a period of five years, and the second time for a period of ten years.”

This excerpt from the charge must be read in connection with what immediately follows and with the whole charge. The court proceeded:

“The whole controversy for you to determine upon disputed facts is the question of whether he aided and abetted in sending certain letters set up in the information. To that information he has pleaded not guilty, and it is not incumbent upon Mr. Campbell, in the first instance, to prove his innocence of that charge. The burden of proof rests upon the people represented by the prosecuting attorney and his assistant to show his guilt of that charge beyond a reasonable doubt. I mean by that that he starts in the trial of this case with the presumption of innocence in his favor, and you ought to give him the benefit of that presumption of innocence all during the trial and until you enter the jury room and until you are satisfied, after a discussion of the evidence, that he is guilty.”

The court further charged at great length that, unless the jury found beyond a reasonable doubt that the respondent sent such communications or intentionally caused or aided in the sending of the same, then they must render a verdict of not guilty. And if they found that he had no part in sending the communications the verdict must be not guilty. And, further, to the same effect, at considerable length, charging them explicitly that they must find that he advised or requested sending the letters, and it was not sufficient that if he knew they were sent, or if he aided in the preparation of the letters, but failed to find that he advised or aided and abetted in sending them, the verdict must be not guilty, and further that it would not be sufficient to justify a conviction for the jury to find respondent knew of the contents of the letters and consented to sending them, but they must find beyond a reasonable doubt that he went further than this, and by some overt act aided or procured the sending of them. The only portion of the charge objected to is the one first above quoted, and that in our opinion cannot be considered as prejudicial to the defendant.

Fifth. Respondent urges that the sentence imposed is illegal. In view of the conclusions we have already stated in regard to the sufficiency of the information, and in regard to the allegations and proof in the case relative to the former convictions, we need only state that a careful reading of the judgment and sentence shows all necessary allegations to constitute a valid judgment and sentence pronounced by the court, including the allegations of the charge, evidence and determination of the former convictions and sentences of respondent upon which to predicate the sentence of the court as for a third conviction, and that such sentence in that respect is regular and valid.

We find no error in this case. The judgment of the circuit court is affirmed.

Moore, C. J., and Steere, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE v. DUDLEY.
    1. Criminal Law — Probation—Sentence.
    After respondent had pleaded guilty to a criminal charge and had been placed on probation by the court, under Act No. 124, Pub. Acts 1909, he was taken into custody and put in jail by the probation officer, for a violation of the conditions of his parole. The court deferred sentence, on the advice of the officer, who was of the opinion that if respondent was permitted to remain in jail a few days, he would keep the conditions of the probation thereafter. Having been released, he again broke the conditions and was rearrested and sentenced to imprisonment. Held, that the sentence was valid, and that the court had not exhausted its authority by reason of the action of the officer, taking the respondent into custody and releasing him on the former oooasion. Act No. 91, Pub. Acts 1903.
    2. Same.
    The officer had no power to revoke the probation.
    3. Same — Constitutional Law — Benefit of Counsel.
    No constitutional right to the aid dr advice of counsel is infringed by the statute which contains no provision granting respondent such right.
    4. Same — Jury Trial — Constitutional Law.
    On being taken into custody for violation of his parole respondent was not entitled to a jury trial to establish the question whether he had violated its conditions, or to be confronted with witnesses as in criminal trials, and the acts are valid although they make no provision for hearing and trial.
    5. Same.
    The violation of the terms of probation is not necessarily a crime and is not treated by the law as a crime, but rather as a breach of contract; when the person convicted is granted rights thereunder he agrees to the terms and understands that for certain misconduct his probation will be terminated, nor is the proceeding for oarrying out this feature of the law in any sense a criminal prosecution.
    6. Same — Due Pbooess oe Law.
    Respondent was not deprived of liberty without due process of law by being summarily rearrested and sentenced.
    Case-made from the superior court of Grand Rapids; Stuart, J.
    Submitted November 14, 1912.
    (Docket No. 134.)
    Decided December 17, 1912.
    George Dudley was convicted of obtaining money under false pretenses.
    Affirmed.

      Roger I. Wyhes, Attorney General (Samuel D. Pepper, Assistant Attorney General, Earl E. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney, of counsel), for the people.

      Lombard, Hext & Washburn, for respondent.
   Stone, J.

The respondent having been duly arrested upon a warrant charging him with having fraudulently obtained $50 by false pretenses in the city of Grand Rapids, and having waived an examination upon said charge, and having been duly bound over to the superior court of Grand Rapids, and having on March 8, 1910, been duly arraigned in the superior court upon an information charging him with said offense, and having pleaded guilty thereto on March 19, 1910, he was brought before the court, when an order was duly entered by the court in said cause that “sentence be deferred from day to day, and from term to term, as the court may see fit,” and the respondent was permitted to enter into his personal recognizance conditioned to appear before the court at the then next term thereof, and from day to day, and term to term, and to do and receive what should by the court and by the probation officer be then and there enjoined upon him. He was placed in the custody of the probation officer, which officer was then and there instructed by the court to take said respondent into custody at any time thereafter that the said respondent violated the conditions of his probation, and the said officer was instructed to report to the court the fact of the respondent’s commitment, and the said officer then and there informed the respondent of the conditions accompanying, and incident to; his freedom, among which he was instructed to report every Monday evening to said probation officer at his office in the courthouse, and was given a card containing certain written and printed instructions as to the conditions of his parole, among which conditions was one requiring him to refrain from the use of intoxicating liquors, or from entering any place where intoxicating liquors were sold.

Respondent secured employment, and for a time reported satisfactorily to said probation officer, but after a while that officer learned that respondent had been visiting saloons, and drinking intoxicating liquors, and was guilty of other improper and unlawful conduct; and thereupon said officer, feeling that respondent had violated his parole, took him into custody, and placed him in jail on or about the 13th day of April, 1911, without any further order or direction whatever from the court. The probation officer reported the matter to the court very soon thereafter, and also reported that respondent and his family felt very sorry for what he had done, and said officer also reported that in his opinion, if respondent was kept in jail a few days, and then given another chance, he would perhaps be able to keep the conditions of his parole in the future, and the officer was informed by the court that he might take such course, and it was taken. The probation officer a few months later found that the respondent was again drinking heavily, that he was visiting saloons, and was guilty of other improper and unlawful conduct; whereupon on or about August 12, 1911, the officer again took respondent into custody for the reason that the latter had violated the conditions of his parole, and imprisoned him in the Kent county jail, where he remained until September 2, 1911, when he was brought into said superior court, and by the judge thereof was sentenced to the Michigan reformatory at Ionia, where he is now confined. Before sentence, the respondent demanded an examination in open court of the charge of having violated his probation. This demand was refused, and respondent’s counsel excepted.

The respondent has brought the case here for review, and the following are the assignments of error:

(1) That the court erred in directing and causing the rearrest of the said respondent on the 12th day of August, 1911, for the reason that upon the release of said respondent from custody on the 26th day of April, 1911, said court lost all further jurisdiction over him in the cause.

(2) That the court erred in passing sentence upon the said respondent on the 2d day of September, 1911, for the reason that the release of said respondent on the said 26th day of April, 1911, was in law and in effect a full and complete discharge of said respondent, and said court had no further jurisdiction over him, to either order his arrest, or to sentence him.

(3) That the court erred in passing sentence upon the respondent on the 2d day of September, 1911, for the reason that the statute (Act No. 91, Public Acts of 1903, as amended by Act No. 124, Public Acts of 1909) is unconstitutional and void, as it denies the respondent the benefit of counsel as a matter of right, as there is no provision in said acts for his defense on the violation of his probation, as provided for in section 19, art. 2, of the Constitution of this State.

(4) That said act and its amendments are unconstitutional, as they deny to the respondent the right to be confronted with witnesses • who allege the violation of the terms of his probation, and are therefore in conflict with said section and article.

(5) That said act as amended is unconstitutional for the further reason that it deprives the respondent of the right to a trial by jury, as to those facts relating to the violation of the terms of his probation.

(6) That said act as amended is unconstitutional for the further reason that it deprives the respondent of his liberty without due process of law, as provided in section 16 of article 3 of said State Constitution.

(7) That said act as amended is unconstitutional for the further reason that by its terms said respondent is more than once placed in jeopardy for the same offense.

Act No. 134, Public Acts of 1909, amends section 1 of the original act to read as follows:

“ Section 1. Provided the defendant has never before been convicted in this State or elsewhere of a felony other than simple larceny, after a plea or verdict of guilty in any case where the commission of a crime or misdemeanor is charged and where discretion is conferred on the court as to the extent of the punishment, the several circuit courts of this State and all other courts, having like jurisdiction in criminal cases, where it may appear to the satisfaction of the court that the circumstances are such that the defendant is not likely to again engage in a criminal course of conduct, and that the public good will be as well subserved as to pass and enforce sentence, shall have power to place the defendant on probation under the charge and supervision of a probation officer in the following manner: First, before passing sentence, the court before whom he stands convicted may place the defendant in the custody and under the supervision of the probation officer, or some other suitable person, and under such terms and conditions as it may require, and may require a recognizance with one or more sufficient sureties and in such penalty as the court may deem reasonable, conditioned for the appearance of the respondent at such times as the court may order; second, at any time during the probationary term of a person convicted and released on probation as aforesaid, the court before which the person was so convicted, when presided over by its judge at the time of the conviction, or his successor in office, may in its discretion revoke and terminate such probation. Upon such revocation and termination the court may immediately pronounce judgment, imposing fine or imprisonment, or both, at any time thereafter within the longest period for which the defendant might have been sentenced. The court whenever satisfied that the respondent has sufficiently reformed, that it is reasonably certain that he will not thereafter pursue a life of crime, may terminate said probation and discharge the respondent from custody.”

Section 4 of the original act of 1903 has not been changed, and it provides that probation officers shall have, as to persons committed to their care, the powers of a sheriff. Section 7 makes it the duty of the probation officer to report to the court any violation or breach of the terms and conditions imposed by said court upon the persons placed in his care.

The first and second assignments of error may well be considered together. As we understand counsel for the respondent, they claim that the court, because of what occurred on or about April 13, 1911, revoked and terminated the probationary term of respondent, and that, under the statute, it only remained for the court to proceed to sentence, and that, because it permitted the probation officer to hold the respondent in jail a few days, it thereby exhausted its authority to pronounce sentence. It might be well to ascertain what power the court has, under this statute, and what authority was actually given to the officer by the court in this instance. The statute provides that, before passing sentence, the court may place the respondent in the custody and under the supervision of the probation officer, “under such terms and conditions as it may require.” The record discloses that, when respondent was placed in charge of the probation officer, such officer was then and there instructed by the court to take respondent into custody at any time thereafter that the respondent violated the conditions of his probation and such officer was further instructed to report to the court the fact of respondent’s commitment. The record shows that the respondent violated the conditions of his probation, and was taken into custody by the officer in exact accord with the instructions of the court. The officer also, as he was required to do, reported the fact of respondent’s commitment to the court. It also appears that it was the opinion of the probation officer that if respondent—

“Was kept in jail a few days, and then given another chance, that he would perhaps be able to keep the conditions of his parole in the future, and he [the officer] was informed by the court that he might take such course.”

We find nothing here to indicate that the court revoked and terminated the probation. Certainly the probation officer could not terminate it.

Under the scheme or plan of this statute, the respondent was all of the time in charge and custody of the probation officer; and, unless we are to hold that such officer has the power to revoke and terminate such probation, it cannot be held that anything which the officer did amounted to such revocation. We do not think that the officer had such plenary power, nor do we think that he attempted to exercise it. He was simply obeying the order of the court made in the first instance. Nor do we think that there was any action of the court in April that indicated that it revoked and terminated the probation. We are not prepared to hold that, under the humane provisions of this statute, the court dealing with such a case may not continue, modify, and even extend the period of probation in the hope that the respondent may sufficiently reform, so that in the end he may be discharged from custody. Until final sentence on September 2, 1911, the respondent was all of the time in the charge and custody of the probation officer. On that day he was in jail in the custody of the probation officer, who possessed all of the powers of a sheriff, in the matter, and on that day respondent’s probation was properly revoked and terminated by the court and sentence was pronounced. We are of opinion that there was no error in these proceedings. Conlon’s Case, 148 Mass. 168 (19 N. E. 164); Ex parte Sizelove, 158 Cal. 493 (111 Pac. 527); People v. Flynn, 55 Misc. Rep. 639, 106 N. Y. Supp. 925. The placing of persons convicted of crime in the custody and care of probation officers under the statute is a part of our penal system, and must to a large extent be directed and controlled by the sound discretion of the officers representing the State, subject at all times to the supervision and direction of the court in which the case is pending for sentence. Commonwealth v. McGovern, 183 Mass. 238 (66 N. E. 805); Benado v. Lummus, 205 Mass. 155 (91 N. E. 144).

The third, fourth, and fifth assignments of error will be considered together. It is here claimed that the statute is unconstitutional because in the matter of the termination and revocation of the probation no provision is made for benefit of counsel, for the right to be confronted with witnesses, and the right of trial by jury. These rights are only given by the Constitution in criminal proceedings. The violation of the terms of probation is not a crime necessarily, and is not treated as a crime, but is rather in the nature of a breach of contract. As we have already said, the respondent was all of the time in the care and custody of the probation officer, acting under the direction of the court. When probation was granted, respondent agreed to its terms, and fully understood that, for certain misconduct, his probation would be revoked and terminated. This is of the very essence of the plan. When brought before the court for sentence, he is not charged with a new crime, but merely with the violation of his agreement with the court. In no sense can this be said to be a criminal prosecution. The respondent was granted his probation subject to this liability. A similar feature appears in the law of other States, and has, in so far as we have been able to find, been sustained when questioned. People v. Warden, 39 Misc. Rep. 113, 78 N. Y. Supp. 907; Fuller v. State, 122 Ala. 32 (26 South. 146, 45 L. R. A. 502, 82 Am. St. Rep. 1); Conlon’s Case, supra; State v. Hunter, 124 Iowa, 569 (100 N. W. 510, 104 Am. St. Rep. 361); People v. Cook, 147 Mich. 127 (110 N. W. 514). This respondent had not been set at liberty under the pardon of the executive. He was not a “free man ” within the meaning of the language used in People v. Moore, 62 Mich. 496 (29 N. W. 80), but was all of the time in the custody of the probation officer awaiting sentence in a certain contingency. We think that the cases are readily distinguished. We are of opinion that there is no merit in these assignments.

The same considerations apply to the sixth and seventh assignments of error. Respondent has not been deprived of his liberty without due process of law. When he pleaded guilty to the information filed against him, he might have been sentenced at once. It is only by the mercy of the law that he was given probation. If by the violation of the terms of his probation he is called before the court for sentence for the crime of which he had freely pleaded guilty, it cannot be said that he is deprived of his liberty without due process of law.

We find no error in the record, and the judgment of the superior court is affirmed.

Moore, C. J., and Steers, McAlvay, Brooke, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.


text:
    PEOPLE v. BULLOCK.
    1. Criminal Law — Intoxicating Liquors — Evidence.
    Testimony that respondent had a quantity of intoxicating liquors on hand during the period charged in the information, which stated the off nse to be that of keeping a place where intoxicating liquors were sold, between May 1 and May 19, 1911, in violation of the local-option law (2 Comp. Laws, § 5412 et seq, 2 How. Stat. [2d Ed.] § 5017), was competent; and the prosecution was further entitled to show that respondent was engaged as a druggist in selling intoxicating liquors prior to May 1st.

    2. Same — Intent—Similar Offenses.
    It was, however, erronéous to receive evidence of the manner in which respondent had conducted the business before prohibition was adopted in the county and to receive proof of alleged offenses committed by him during the preceding sixteen months: and the court improperly charged the jury that such evidence might be considered to determine the character of the place that respondent ran during the subsequent period of time.
    3. Evidence — Similar Offenses — Trial.
    While it is competent to show previous offenses of the same kind as those of which a respondent is accused, in order to establish a particular intent, it is not permissible to show that respondent is, in general, a violator of the law, by proving other offenses under different circumstances.
    Exceptions before sentence from Montcalm; Davis, J.
    Submitted November 15,1912.
    (Docket No. 171.)
    Decided December 17, 1912.
    Julian W. Bullock was convicted of violating the local-option law.
    Reversed.

      Charles B. Barden, Prosecuting Attorney, for the people.

      F. A. Miller and B. A. Hawley, for respondent.

       As to the power to prohibit the keeping of intoxicating liquor, irrespective of any intention to sell it in violation of law, see note in 26 L. R. A. (N. S.) 394
      The question of the right of one to testify as to his intent is considered in notes in 23 L. R. A. (N. S.) 367 and 34 L. R. A. (Ñ. S.) 323.

   Stone, J.

In this case the information charged the re-

spondent with having kept, on the 1st day of May, 1911, and on divers other times and occasions between that time and the 19th day of May, 1911, in the county of Montcalm, in a certain building, a certain place where vinous, malt, brewed, spirituous, intoxicating, and mixed liquors as a beverage, a part of which were intoxicating, were sold, and stored for sale, given away, and furnished; the said respondent not then and there being engaged in so keeping such a place as a druggist, etc. The respondent having pleaded not guilty, the case came on for trial, and testimony was offered on the part of the people tending to show that after May 1, 1911, the manufacture and sale of intoxicating liquors had been prohibited in the county under the local-option law, so-called, and that the respondent filed a druggist’s bond in the office of the county treasurer of Montcalm county on the 28th day of April, 1910, and did not file another druggist’s bond until July 13, 1911; that during the time elapsing from the 1st day of May, 1911, until the 19th day of May, 1911, and, in fact, until July 13, 1911, he did not have any druggist’s bond on file in the office of the county treasurer which was in force or had any validity. Testimony was also offered tending to show that a search warrant was issued by a justice of the peace of said county on the 18th day of May, 1911, authorizing the search of the drug store of the respondent and the seizure of the beer, whisky, and alcohol that might be found there; that this warrant was served on the 19th day of May, 1911, and search made by the deputy sheriff. Upon such search there were found six bottles of wine; one gallon bottle partly full of alcohol; one quart bottle partly full of brandy; a keg partly full of Holland gin; a keg partly full of grape brandy; one barrel partly full of alcohol; one barrel partly full of high-grade whisky, which liquor was brought to the county seat and delivered to the sheriff.

The only direct testimony given in the case that tended to show that liquor was sold at the place of respondent, during the time covered by the information was that given by the witness Frank Walker, who testified, in substance, that he was in the respondent’s drug store on the 18th day of May, 1911, and that respondent served him with whisky behind the prescription counter on that day, once in the forenoon, and once in the afternoon; and upon another occasion, the date of which he could not tell, hut between the 1st day and the 18th day of May, 1911, and somewhere from one to two weeks after the 1st day of May, respondent furnished him a glass containing something that tasted like ordinary whisky, and which he judged was whisky. Cross-examination of this witness developed the fact that he had made many different and contradictory statements with reference to the sales above indicated. The respondent denied that he had sold or delivered any intoxicating liquor of any kind to the witness Frank Walker, or to any other person, between the 1st day of May and the 19th day of May, 1911. This constitutes substantially all of the testimony in the case in respect to any sales or deliveries of intoxicating liquors to any person at the store of the respondent after the 30th day of April, 1911.

While the testimony of the witness Frank Walker covers less than 50 pages, the printed record in the case consists of over 200 pages, made up very largely of the testimony of more than a dozen witnesses who were permitted, against the objection and exception of respondent’s counsel, to testify to sales claimed to have been made by the respondent during the 16 months prior to May 1, 1911. Testimony was also permitted, against the objection and exception of respondent’s counsel, showing the amount of liquors received by the respondent over the Pere Marquette Railroad from the 1st day of January, 1910, to and until the 1st day of May, 1911. The people were also permitted, notwithstanding the objection and exception of respondent’s counsel, to read in evidence the record of sales of intoxicating liquors made by the respondent during the month of April, 1911. This record of sales covers over 15 pages of the printed record. The following question, objection, and answer fairly illustrate the questions raised by respondent’s counsel. The witness Seth Gates, called by the people, having testified that he was the agent of the Pere Marquette Railroad, and, as such, had charge of the freight department, was asked:

Q. Can you tell the jury what was received by Mr. Bullock through your office in the nature of shipments of intoxicating liquors during the year 1910 up to the 1st day of May 1911 ?
“Mr. Hawley: I object to it as incompetent and immaterial. This question relates to shipments prior to the 1st of May, 1911. If there were any shipments subsequent to May 1, 1911, I have no objection; but shipments prior to that date are surely immaterial in this case.
The Court: Do you claim that would be competent ?
Mr. Barden: The people claim that this place was conducted for 16 months before the 1st day of May in a way contrary to the law then existing; running a saloon in place of a drug store. There were shipped to this country drug store 16 barrels of whisky, 4 barrels of alcohol, and 625 cases of beer, gin, wine, etc. We also claim that this place was conducted where men came in behind the prescription case and drank. This was a place of public resort of people who were in the habit of drinking intoxicating liquors, a resort of men who were notorious bootleggers. One man there once a week at least, and he carried out of that place great quantities of something, we cannot tell just what. The inference is reasonably drawn; he was carrying something out of there he couldn’t get in his own county, or he wouldn’t have come up here for it. We claim that we have a right to show this as bearing upon the intent, not as bearing upon the commission, of the crime, but as bearing upon the intent and character of the business. We have a right to go behind the date charged in the information under the rule of the 166 Mich. 654.
“ The Court: You have asked to go back 16 months. In that case it was only 3 months. A reasonable time is what the courts hold. Would 16 months be a reasonable time ?
“Mr. Hawley: The objection I make goes not so much to the question of remoteness, although remoteness would cut some figure in the matter if the evidence was at all material. It appears that until May 1, 1911, the general license law prevailed in this county. Subsequent to and including May 1, 1911, the local-option law has been in force in this county. It appears that in 1910-11 Mr. Bullock gave a bond as a druggist, and as such he had a right to sell liquor within certain restricted limits. After the 1st day of May, 1911, it appears that he did not give a druggist’s bond until in July, and hence had no right in that regard during the time covered by the information. My objection is that the alleged sales or deliveries claimed to have been made illegally prior to the 1st day of May, 1911, cannot be given in evidence in this case.”

The objection was overruled by the court, and an exception was taken. Upon the question being again read to the witness, Mr. Hawley made the following objection:

“ I object to it as immaterial and incompetent for the further reason that the limit is too remote from point of time.”

Objection overruled and exception taken.

Similar objections were made to the testimony of the divers witnesses who were sworn on the part of the people to show sales of liquor made by the respondent, and drank upon his premises as a beverage, during the 16 months prior to May 1, 1911, and exceptions were duly taken to the rulings of the court.

The case was submitted to the jury under a lengthy charge, from which the following are liberal extracts:

“Under the undisputed evidence in this case, local option was in force in this county after May 1, 1911, and no one, not even a druggist, had any right to keep stored for sale, to sell, give away, or furnish any such liquors without giving bonds required by law, which bond would bind them to sell according to law; so that the defendant under the evidence in this case undisputed and according to his own testimony during the month of May, 1911, had no right to keep any liquors on hand for sale — that is at his store for sale. He had no right to sell, give away, or furnish for any purpose, as under the evidence he gave no bonds to entitle him to handle these liquors for sale, and the charge is for keeping for sale. I am not saying he had no right to have liquor on hand, but nó right to keep it there for sale. The charge is keeping for sale and selling, giving away, and furnishing during this time. * * *
“ Now while the prosecution, in order to convict, must satisfy you beyond a reasonable doubt that .he kept this liquor stored for sale, or that he sold, gave away, or furnished to some one between May 1st and 19th, yet the court has permitted proof to be taken of the manner of his conducting business back of that time to January 1,1910, for the purpose of showing the character of his place during 1910 and so much of 1911 as reached down to May 1st, at a time when he had given bonds as a druggist to sell and keep for sale these kinds of liquors for medical, scientific, chemical, mechanical purposes, but yet illegal even in 1910 to sell, give away, or furnish for any other purpose except medical, scientific, mechanical, or chemical purposes, and was illegal during 1910 to allow liquors to be drank upon the premises or furnished to minors, persons of Indian descent, etc. So sales from January 1, 1910, to May 1, 1911, are allowed, and are to be considered by you for the purpose of aiding you to determine the character of the business of the respondent during that time. The respondent had a right during that time prior to May 1, 1911, to sell spirituous, intoxicating, vinous, and malt liquors for medical, sacramental, chemical and scientific purposes. It was his duty to sell such liquors only for such purposes, having no right whatever to be sold to be drank as a beverage upon the premises, under no circumstances to be drank upon the premises, and under no circumstances to be drank as a beverage.
“What I mean by ‘beverage’is to be drank as distinguished from the term for medical use, whether for pleasure or for any other purpose outside of medical purposes so far as its being drank. It was his duty also, even during 1910, to record all sales made of such liquors, and no matter if a person called for it for medical, scientific, chemical, or mechanical purposes, the defendant had no right to sell it, if from circumstances surrounding the transaction he was not fully satisfied that the claim of the purchaser that he wanted it for medicine was true. In other words, the defendant had no right to sell, give, or furnish to a customer any of such liquors, even though the purchaser might have said he wanted it for medical purposes, unless he himself believed the statement to be true and that he acted in good faith. He had no right to sell to an habitual drunkard or minors even in 1910.

But though he sold or gave away liquors and allowed it to be drank upon the premises contrary to law during 1910 and up to May 1, 1911, and though he may have violated the law of 1910, yet in this case, if you are not able to come to a conclusion from the evidence that he kept such a place from May 1 to May 19,1911, when he had no right to sell at all, nor to keep such liquors stored for sale, then he should not be convicted. The conviction must be for keeping a place from May 1, 1911, to May 19, 1911. This evidence as to his manner of doing business in 1910, as I have already said, is for the purpose of aiding you to come to your conclusion of the character of the place which was kept by the defendant at that time, and then you are to say whether the character of the place has continued. Then you ask and answer this question, that decides this case: Did he keep this place from May 1, to May 19, 1911, where such liquors were stored for sale or where they were sold, given away, or furnished to others ?

“Are you satisfied beyond a reasonable doubt that he sold or furnished such liquors to be drank on the premises during 1910 and up to May 1, 1911? Did he during this time sell to persons in the habit of getting intoxicated ? Did he sell to persons for other purposes than those permitted by law during that period of time ? If you are so satisfied beyond a reasonable doubt, then you pass to the question as to whether he was following the same kind of business during the time from May 1 to May 19, 1911.”

The respondent was convicted by the jury, and the case is brought here by respondent to be reviewed on exceptions before sentence.

While there are many assignments of error, the controlling question in the case is whether the court erred in permitting witnesses to testify in detail and at great length as to the manner in which the respondent’s business was conducted during the 16 months prior to May 1, 1911. We have no doubt that the people were entitled to show that the respondent had been engaged, at his place of business, in the liquor traffic prior to May 1, 1911. It was proper to show that the respondent had in his possession, on May 1, 1911, a quantity of liquors; for certainly he could not sell and give away or furnish, or have liquors stored for sale,, unless he had the liquors . actually on hand.

The more difficult question to be determined is whether the court erred in the latitude given to the evidence which we have above referred to, and to the manner in which the evidence was treated in the charge of the court. The testimony should in all cases be limited in its use to the purpose for which it was admissible.

We are impressed with the claim of respondent’s counsel that undue emphasis was placed by the court in its charge upon the manner in which the business had been conducted during 1910 and the first four months of 1911. The jury were told that they might consider this evidence for the purpose of aiding them to come to a conclusion as to the character of the place which was kept by the respondent during those months. They were asked whether they were satisfied beyond a reasonable doubt that respondent sold or furnished such liquors to be drank on the premises during 1910 and up to May 1, 1911.

Did he during this time sell to persons in the habit of getting intoxicated ? Did he sell to persons for other purposes than those permitted by law during that period of time ? If you are so satisfied beyond a reasonable doubt, then you pass to the question as to whether he was following the same kind of business during the time from May 1 to May 19, 1911.”

It seems to us that undue stress was here laid upon the conduct of the respondent prior to May 1, 1911, and that the question of whether he had sold liquors within the time named in the information was made subordinate to the other question.

Counsel for the people claim that they had a right to show the manner in which the business had been conducted by the respondent during the 16 months in question as bearing upon the question of his intent; and they argue that to keep liquors stored for sale is to keep liquors stored with intent to sell the same. This is true, but it seems to us that the intent with which this would be done after May 1st is a very different intent from that of a druggist who has given a proper bond and has a right to sell liquors for certain restricted purposes, who violates a law and sells liquors to be drank as a beverage upon the premises. In the one case, he has no right to sell at all; while, in the other case, he has a right to sell for certain purposes under certain restrictions. Is there not significance in the fact that on May 1, 1911, the whole system as to the dealing in intoxicating liquors was changed in the county of Montcalm ? After that date, and during the time named in the information, the respondent had no right to sell at all, or to keep liquors stored for sale. This cannot be said of the previous period.

We have examined our own cases with some care, and refer first to the case cited upon the trial, that of People v. Hancock, 166 Mich. 654 (132 N. W. 443). In that case an examination of the record will show that the evience of prior sales which was permitted tó be shown was confined to the few months preceding September 24, 1910, during which time the local-option law had been in force in Allegan county.

In People v. Giddings, 159 Mich. 523 (124 N. W. 546, 18 Am. & Eng. Ann. Cas. 844), it was held that where respondent was charged with furnishing intoxicating liquors to one of a number of berry pickers, in violation of the local-option law, evidence of similar offenses relating to other berry pickers, at about the same time, was competent to show intent, and to rebut any inference of mistake or accident. In that case Justice McAlvay said:

' “ This case comes within the exception to the general rule relied upon by respondent that proof of other offenses may not be admitted upon the trial Of one accused of crime, being of that class of cases where the circumstances permitted the inference of accident, mistake, or inadvertence to be drawn.”

Citing cases, and then adding:

“ If this proof was admissible for any purpose, it would not be rendered incompetent because it might tend to show other violations of the local-option law by respondent. Such proof is never admissible as substantive proof of the act charged for which a respondent is being tried.”

The case of People v. Hicks, 79 Mich. 457 (44 N. W. 931), arose in a county where the prior local-option law was in force, which law was declared unconstitutional. In that case the information charged the violation to have been on May 19, 1888. Error was assigned upon the ruling of the court in the admission of testimony of a witness who was permitted to testify that a few days prior to May 19th she had a talk with respondent about selling her husband intoxicating liquors, and had forbidden him to sell to him, and had also given him written notice some months prior not to furnish him liquors, to which request, a few days prior to May 19, 1888, the respondent answered that he was selling him no more than other saloon men and no more than he needed. She further testified that her husband was in the habit of getting intoxicated, and during the week previous to May 19th he was a constant visitor to defendant’s place of business, and was intoxicated almost every day, and sometimes brought liquor home in a bottle. This court held that the circuit court was not in error in admitting this testimony, and there said:

“The sales by defendant at anytime after the first Monday in May were as unlawful as those made on May 19th, and the fact that he made sales on such days, while not proof of a substantive offense under the allegations in the information of the carrying on of business on that day, yet was competent, as tending to show sales on the day in question.”

Our attention has also been called to the case of People v. Caldwell, 107 Mich. 374 (65 N. W. 213). This was another prosecution arising in the local-option county of Hillsdale. The information charged the keeping of a place where intoxicating liquors were sold as a beverage on December 25, 1893. The court permitted the prosecution to show several sales of liquors prior to that time extending over two or three months. This was assigned as error. It will be noted that this evidence related to a time when the local-option law was in force, because we take notice of the time when the act would take effect, which would not he later than May, 1893. The court in the charge to the jury said:

“There has been evidence introduced here of other transactions which took place in this place of business on other days than this 25th day of December. They are before you for the purpose of aiding you in coming to your conclusion as to the character of the place which was kept by Mr. Caldwell on this 25th day of December, and not for any other purpose. In other words, even though you might find that during fair week, for instance, he had kept a place where intoxicating liquors were kept for sale or sold in violation of law, and were not able to come to the conclusion from the evidence that he kept such a place on the 25th day of December, then he should not be convicted here. The conviction here must be for keeping a place on this 25th day of December. This is simply for the purpose of aiding you in coming to your conclusion of the character of the place which was kept by this defendant.”

It should be borne in mind that in the instant case the respondent is charged with keeping a place where intoxicating liquors were kept, stored for sale, given away, and furnished. The keeping of such a place was an offense after May 1, 1911, but it was no offense prior to May 1, 1911. Accordingly, the conditions were radically changed. Before May 1, 1911, he had the right to keep a place for the sale of liquors for medicinal, mechanical, chemical, scientific, and sacramental purposes. After that date he had no right to keep a place for the furnish ing or sale of such liquors for any purpose. Prior to May 1, 1911, he did make sales and deliveries of liquor The character of such sales, whether legal or illegal, is in dispute. Evidence of such sales and deliveries was, by the permission of the court, permitted to be brought into this case against the respondent for the purpose of establishing his guilt upon a charge arising after May 1, 1911, at which time he had no right to make a sale or delivery for any purpose. The question of intent, or at least similar intent, was not here involved.

A search for authorities directly in point upon this subject has not been very fruitful. We find the following statement of the rule in 7 Enc. of Ev., at pages 754, 755:

“Evidence of the commission by the defendant of the same offense under similar circumstances is admissible to show motive and intent, and the defendant’s system, habit, and course of business. Such acts only may be proven for this purpose, as were done subsequently to the taking effect of the law upon which the particular prosecution is based. It has been held that testimony of other sales is admissible only when the act constituting the offense is equivocal or committed under peculiar circumstances.”

The following cases are cited by the author in a note bearing the heading:

“In prosecution for violating local-option law, evidence of other sales made before the prohibitory law came into effect is not admissible on the question of intent. Efird v. State, 44 Tex. Cr. R. 447 (71 S. W. 957); State v. Dunning, 14 S. D. 316 (85 N. W. 589).”

In Efird v. State, supra, which arose under a local-option law, the court of criminal appeals of Texas said:

“ It has also been held that it is proper to show sales and delivery of whisky to other parties as evidence tending to show system of doing business” — citing authorities. “ However, in view of the fact that this case must be reversed, we would suggest that, if this testimony relates to the period when local-option was not in force, then it would not be admissible. But it is germane and proper to prove sales to other parties, as stated above, as a circumstance going to establish a system under which appellant was violating the law.”

In State v. Dunning, supra, it was held that in a prosecution for selling intoxicating liquors as a beverage without a license, under the law of 1897, which took effect March 3, 1897, it was error to permit evidence of sales made which was not limited to sales made between the time when the statute took effect and when the indictment was presented.

As to the admissibility of evidence of other offenses to show the habit, course of business, and system of respondent, we have pointed out that it should be confined to the commission of the same offenses under similar circumstances. Such acts only may be shown for this purpose as were done subsequent to the taking effect of the law upon which the particular prosecution is based.

The reason why other offenses under different circumstances may not be shown is because it is not competent to show that a respondent is a violator of law generally. When it is necessary to show a particular intent in order to establish the offense charged, proof of previous acts of the same hind is admissible for the purpose of proving guilty knowledge or intent. People v. Wakely, 62 Mich. 297-303 (28 N. W. 871).

This subject is discussed and the cases relating thereto cited by Justice Ostrander in People v. Burke, 157 Mich. 108-112 (121 N. W. 282).

We are of opinion that the trial court erred in the admission of the testimony, and in the charge in the instances pointed out; that the respondent was prejudiced thereby; and that for such errors the case should be reversed. People v. Hickman, 164 Mich. 672 (130 N. W. 331).

We have examined the other assignments of error. They mostly hinge upon the rulings in the reception of testimony of witnesses as to the prior sales, and the questions are not likely to arise on another trial, in view of what we have said. We find no error in the rulings relating to the testimony of the witness Frank Walker as to the claimed sales after May 1, 1911.

The conviction of respondent is set aside, the case reversed, and a new trial granted.

Moore, C. J., and Steers, McAlvay, Brooke, Ostrander,, and Bird, JJ., concurred. Kuhn, J., did not sit.


author: Pee Cubiam.

text:
    PEOPLE v. BRANNEN.
    1. Appeal and Error — Bastardy Proceedings — Criminal Law —Judgment.
    A writ of error does not lie in any case before judgment, and will not issue to review bastardy proceedings after conviction and before judgment or sentenoe.
    2. Same — Certiorari.
    No judgment known to tbe common law is rendered in such cases; the proceedings are purely statutory, the judgment being final and reviewable only by writ of certiorari.
    Error to Oakland; Smith, J.
    Submitted November 14, 1912.
    (Docket No. 136.)
    Decided December 17, 1912.
    Hugh J. Brannen was convicted of being the father of an illegitimate child.
    Dismissed.

      Andrew L. Moore, for appellant.

      Carl H. Pelton, Prosecuting Attorney, and Clinton McGee, Assistant Prosecuting Attorney, for the people.
   Pee Cubiam.

In bastardy proceedings respondent was convicted by a jury. A motion for a new trial was denied. No judgment has been entered. Respondent assigned errors and settled a bill of exceptions, which is brought into this court by writ of error.

A writ of error lies in any case only to review a judgment. Aside from this, the practice in such cases has been misconceived. We are aware that in one, and, perhaps, in more than one, case the proceeding appears to have been reviewed upon writ of error; no notice being taken of the use of the writ. See Hull v. People, 41 Mich. 167 (2 N. W. 175). The proceeding is, however, purely statutory, not after the course of the common law, and is summary. No judgment known to the common law follows the verdict, and the judgment rendered is final. 2 Comp. Laws, §§ 5904, 5905 (2 How. Stat. [2d Ed.] §§ 4989, 4990). The only remedy available to an aggrieved party is by writ of certiorari. Cross v. People, 8 Mich. 113.

The writ must be dismissed.


text:
    BALDERSON v. PORTLAND TELEPHONE CO.
    Negligence — Personal Injuries — Telegraphs and Telephones — Contributory Negligence.
    Evidence that defendant’s linemen, in placing wires, laid certain wires across the driveway and yard of plaintiff, that plaintiff supposed the men had ceased working and, though he had been informed that they might recommence work at any time, left his team, on a subsequent day, standing for a short time directly over the wires, that he looked to see if the men were working before he left the horses standing, but could see no one, and that defendant’s servants began tightening the wires and raising them while the animals remained above the wires, frightening them and causing serious injuries to plaintiff, presented a question for the jury as to plaintiff’s contributory negligence, and the court should not have directed a verdict for defendant.
    Error to Ionia; Davis, J.
    Submitted November 13, 1912.
    (Docket No. 10.)
    Decided December 17, 1912.
    Case by John C. Balderson against the Portland Telephone Company for personal injuries. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      Alfred B. Locke and George E. Nichols, for appellant.

      Scully & Davis, for appellee.
   Stone, J.

This suit was brought to recover damages for an injury which the plaintiff claims to have suffered by reason of the negligence of the defendant in the manner hereinafter described. The case was tried before a jury. At the close of the plaintiff’s testimony the trial court, upon the motion of defendant’s counsel, directed a verdict for the defendant, on the ground that the plaintiff was guilty of contributory negligence, and a judgment for defendant was entered.

At the time of the alleged injury the plaintiff resided upon a farm in the township of Portland, fronting on the highway extending northerly from the village of Portland. The defendant is a telephone company, and in October, 1910, was engaged in building and extending one of its telephone lines upon the highway in front of plaintiff’s farm and residence, and on the west side of the road near the highway line.

On October 26, 1910, the defendant having erected its poles to a point some distance north of plaintiff’s residence from the village of Portland, and having strung two wires upon the poles and crossarms to the second pole south of the driveway of the plaintiff’s yard, they were then made fast to the said pole.

On plaintiff’s premises there was situated a dwelling house just west of the highway, on the south side of which a driveway extended from the road, which driveway the plaintiff used in going to his residence, and to barns situated southwesterly from the house. There were two trees standing in front of plaintiff’s house just north of the driveway and near the highway line. It was arranged between plaintiff and defendant’s superintendent that these trees, one of which was somewhat defective, should be cut down, and plaintiff assisted the defendant in cutting them, and they were felled in a southwesterly direction into plaintiff’s yard and across his driveway.

The defendant left the trees as they were felled in the yard, and then strung two wires, a continuation of the two wires already strung, and tied to the second pole south of plaintiff’s driveway, northerly over the crossarms of the poles which had already been set to the north, along the west side of the highway. These two wires that extended north from the second pole south of plaintiff’s driveway were left hanging loose from the crossarms, and in front of plaintiff’s residence, and across said driveway. They were left sagging and lying loose upon the surface of the ground over the driveway and in front of the house. There were shade trees extending north from in front of plaintiff’s house, through which the wires passed as they rested over the crossarms. After the wires were strung, as aforesaid, to the north, the defendant’s employes working upon the line came back and got their wagon from which they strung the wires, and left the vicinity of plaintiff’s residence. He did not know where the men had gone, and did not know where they were afterwards working. The plaintiff testified:

“ I didn’t know the men were up there by Ben Smith’s place [Ben Smith’s place being the next farm north on the west side of the road]. Didn’t know where they had gone. I didn’t have any particular talk with Mr. Smith [defendant’s manager] as to where they might be working the next day. When they were putting the lines through the trees north of where the trees were felled, I stood at the foot of one of the trees, and I said to Mr. Smith, ‘ Do you expect to put this line right up next ? ’ He says: * I can’t say;’ he says, ‘ We wired on the other side of the town * * * for 20 phones. We have been expecting the phones for three weeks, and as soon as they come we will leave this work and install those phones, and they are liable to come every day.’ ”

After the trees were felled, the plaintiff worked at trimming the brush from them, when the same were felled, and piled some of the brush, which work he began while the defendant’s men were there. He did not haul the trees away the same day they were felled. After the trees had been trimmed, the plaintiff, having to draw a load of corn, passed out of his yard by going south of his driveway, and, raising up the wires that were lying on the ground, he drove underneath them.

On the morning of October 28th, about 8 o’clock, the plaintiff undertook, with his team, to haul the logs away and into the back portion of his yard, in order to get them out of the driveway so he could use it in hauling corn. Before attempting to haul the trees away on the morning of the 28th, the plaintiff finished trimming them and cleaning up the brush and in doing this was working along the highway track; and he testified that he could tell if any of the linemen went by, and that he did not see any of them going to work that morning, and. did not know that the men had stayed in the country to the north of his place overnight. He got out his team to use in hauling the logs, and drove them to the water tank west from the driveway, and at this time plaintiff climbed upon the windmill, so that he could see down the road to the north, and looking he saw no one working on the poles as far as he could see. He then, believing that no one was working up the line to the north, undertook to draw the logs away. Plaintiff first hitched to the stone boat and drew away some of the wood that he had cut out of the tops. Then he hooked onto one of the trees, with his team headed to the north, and drew it along past the house to the side of the lane by the windmill. After doing this he hitched to some limbs and drew them out near his woodpile, and then drew away another stone boat load of wood. Then he hitched to the tree that fell farthest south, and as he hitched to this tree his team stood northeasterly in the driveway, headed toward the road, about where the road line was. As his horses stood in this position, they were over the wires lying on the ground. After hitching to the tree, the first thing he did was to roll the log over to the east, on account of a projecting limb, which would prevent him from swinging the log with the team. The butt of the log lay heavy on the ground. He took a handsaw, and was sawing the limb off when his attention was called to his horses by a man passing by, who said:

“ Is that the way you hang up your team ? ”

Plaintiff turned and saw that the wire was right under the horses, just behind the nigh horse’s front legs, and just in front of the off horse’s hind legs. The plaintiff testified as follows:

“ I stepped right to the wire and tried to ride it down and get the horse over it. I dropped the traces the first move I made, and took hold of the wire on that side and tried to hold it down. I looked under the team, where a snap was fast to the wire on the quarterback strap on the nigh horse. I stepped around that side and unsnapped it. The wire was.under the horse’s belly, near the belly band. It was not so tight at that instant but what I could unsnap it. I saw that it was getting tighter fast. I .made several lunges down on the wire like that (illustrating), and tried to get it free, where the team could get over it. My impression was that some stock were caught in the wire. It ran through Ben Smith’s field inside of his fence. He had shifted it out in the road. I might say I was positive no one was working on the line. I had taken that precaution. When I was trying to ride the wire down,. I reached in my hip pocket for a pair of wire pinchers. I didn’t have any. I rode the wire again, and spoke to the horses, and the nigh one jumped over. I wouldn’t say that the horses were making any disturbance until that one jumped. I was somewhat excited, of course. I distinctly remember the off horse began to wring his tail at the time the nigh horse jumped over the wire. I knew he was excitable. I, perhaps, was getting more excited. He made a couple of lunges up in the air with his hind parts, and the wire went up with me, and I still hung on and tried to keep it down. The second time he went up in the air was the last I remember.”

Plaintiff testified that when he regained consciousness he was on the ground at least a dozen feet in the yard from where he was standing by the wires, and that he was thrown and struck upon his back on the ground, and was severely injured. The testimony shows that Smith and two other employes of defendant were pulling the wires at the time they were raised under the horses, and that one wire broke at the time the horses jumped away. We have here, at the expense of tediousness, stated the facts as claimed by the plaintiff, and in the view most favorable to his claim, because of the course which the trial took.

There was evidence tending to show negligence of the defendant because of want of notice to plaintiff of raising the wire, which would at least make a question for the jury. The trial judge found that defendant was negligent, and that question is not before us. The only questions raised by appellant and necessary to be considered are: Did the court err in directing a verdict for the defendant, and in holding that the plaintiff was guilty of contributory negligence as matter of law ?

It is urged by the defendant’s counsel that plaintiff was fully aware of the danger that lay in his way if his team stood upon or over the wires while they were being pulled up, and that he had been told, in substance, that defendant was likely to put up the line at any time; that plaintiff had no excuse for the relaxation of vigilance, nor of forgetting to exercise a degree of prudence and care; that the danger was fully appreciated by him; and that inattention is never excusable.

It must be conceded that plaintiff knew that the wires were lying upon the ground across his driveway, and that they were in plain sight, and he knew that if defendant raised the wires from the north end of the line his team might get in the tangle. But it is said by plaintiff that he had been told by defendant’s manager that they might stop the work there and install certain phones, and that by watching and looking, as described, he had done all that an ordinarily prudent man would do under the circumstances. On cross-examination the plaintiff testified as follows:

“Q. Did you know the wires were under your horse ?
“A. No, sir.
“Q. Did you look to see ?
“A. No, sir.
"Q. You knew the wires were there ?
“A. Yes; I knew the wires were there. I wasn’t thinking of the wires at the time.
“Q. Didn’t give any attention to them ?
“A. At that instant, no; I didn’t.
“Q. Did you give any attention to the wires, when you drove your horses out, to see whether they stood east of the butt of the tree, in line with the wires P
“A. No, sir.
Q. Didn’t give any attention to that ?
“A. I don’t think I did. I was satisfied they weren’t working on the line, because, as I said this morning—
“Q. You knew the wires were there ?
“A. Yes, sir.
“ Q. And paid no attention to it ?
“A. No, sir.
"Q. Then, in driving your horses out to roll this log over, you must have driven them right directly on the wires ?
“A. Judging from what happened, they must have been on the wires.
“Q. As they stood there right inline of where the wires were, where you knew them to be ?
“A. Yes; where I knew them to be.
“Q. You had your mind on the thought of trimming this limb off, so it might not break the window, so you left your team standing there ?
"A. Yes; I had the bucksaw there, so I sawed the limb off; yés, sir.
“Q. And you left the team standing right where they were ?
“A. Yes, sir.
“Q. You gave no further attention to the team ?
“A. I gave no further attention to the team until he called attention to the fact they were hung up.”

Plaintiff then repeated how he had climbed the windmill and looked north, and how he had watched for the men going north in the morning, and had not seen them pass.

We are of the opinion that the question of plaintiff’s contributory negligence was for the jury, and that it cannot be said, as matter of law, that he was guilty of such negligence. The following authorities bear upon the subject: Wolverton v. Village of Saranac, 171 Mich. 419 (137 N. W. 211); Wallin v. Railway Co., 172 Mich. 466 (138 N. W. 270); McTiver v. Grant Township, 131 Mich. 456 (91 N. W. 736); Davis v. Railroad Co., 142 Mich. 382 (105 N. W. 877); Hovey v. Telephone Co., 124 Mich. 607 (83 N. W. 600); Friesenhan v. Telephone Co., 134 Mich. 292 (96 N. W. 501); Thomas v. Telegraph Co., 100 Mass. 156; Baldwin on Personal Injuries, §§ 179, 270, 446-454.

We think that the case should have been submitted to the jury under proper instructions.

For the errors assigned, the judgment of the circuit court is reversed, and a new trial granted.

Moore, C. J., and Steeke, MoAlvay, Brooke, Kuhn, Ostrander, and Bird, JJ., concurred.


author: Ostrander, J.

text:
    LITTLEJOHN v. SAMPLE.
    1. Frauds, Statute of — Sales—Delivery of Goods.
    An action for fraudulent warranty or representations that certain mares purchased by plaintiff, as he claimed, were with foal, was not barred by the statute of frauds where the price was actually paid and the subject matter of the contract delivered.
    2. Sales — Warranties—Express Warranty — Fraud.
    Where a mare purchased by plaintiff was represented to be with foal, and sound, and where testimony tended to establish defendant’s claim that her condition could not be ascertained, but her history justified the representations, only proof of an express warranty of her condition would sustain a recovery for damages because she was not actually with foal.
    3. Same.
    And where the court, in his instructions to the jury, left it to be inferred that if the jury believed a representation as to the mare’s condition was made they might find that defendant warranted her to be with foal, as distinguished from fraud and deceit, plaintiff could recover damage for its j breach, and further charged the jury that if a representation Tas to her condition was made and was false, jut defendant acted in good faith, having reasonable ground to believe that the statement was true, in such event plaintiff could not recover there was reversible error for attempting to distinguish between a false warranty and a false representation, both of which are governed by the rule of good faith as set forth in the latter part of the court’s charge.
    4. Same — Damages.
    Plaintiff’s damage could not be increased under a declaration alleging general damages, because he claimed to have wanted mares for breeding purposes; his purpose was immaterial.
    Error to Saginaw; Kendrick, J.
    Submitted November 12,1912.
    (Docket No. 169.)
    Decided December 17, 1912.
    Case by Fred Littlejohn against Chester H. Sample for false and fraudulent representations. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Eaton, Holland & Smith, for appellant.

      John A. McKay, for appellee.
   Ostrander, J.

Defendant advertised the sale, at auction, of “two fine chestnut mares, weighing 3,000 pounds, with foal.” This in a printed circular in which other personal property was described for sale. The mares were put up for sale, a single bid was received, and they were returned to the stable. Later, on the same day, they were sold at private sale, whether to plaintiff or to another is disputed. Claiming the soundness of the mares and the fact that they were with foal was represented and was warranted by the vendor, and contending that one of them was not with foal and was unsound, plaintiff sued to recover the damages he sustained. The selling price of the mares was $487.50. The jury returned a verdict for plaintiff for $195. The defendant has assigned 47 errors, and has brought into this court a bill of exceptions, which is presented in 158 printed pages.

Whether plaintiff or one Simpson was the purchaser of the mares was a disputed question of fact. Whether the mares were sold at the buyer’s risk or upon representations made in terms of warranty, or of guaranty, was a disputed question of fact. Whether, if sold to be as represented, any damage resulted, and the amount thereof, were questions of fact. These questions were submitted to the jury. The fact that testimony concerning each of these issues was introduced and was conflicting was all that this court needed to be informed about; particular testimony, the admissibility of which was debated and was ruled upon by the court, being exhibited in the bill.

The declaration contains two counts. They are not much unlike. In the first, plaintiff avers a false and fraudulent “ representing and warranting the said mares each to be sound and each to be with foal.” In the second, the averment is that defendant “falsely warranted the said mares each to be sound and each to be with foal.”

It is contended that the trial court did not distinguish an action to recover for breach of warranty and one brought to recover damages for deceit, and instructed the jury that plaintiff might recover upon a showing that defendant warranted the mares to be sound and with foal, ignoring defendant’s theory that if plaintiff knew the mares were unsound and not with foal he could not recover in this case for a breach of warranty. We are not sure we understand the significance of this statement. The declaration avers, in both counts, that the property sold was represented to be other than it really was, and that plaintiff bought upon the representations and suffered injury. Plaintiff alleges, in effect, that he wanted a pair of brood mares, and was attracted by the defendant’s announcement that he had a fine pair of such mares, in foal, for sale; that he purchased and paid for the mares as sound and in foal; that one of them was not in foal, and was not sound. It cannot be doubted that the jury found that certain material representations were made, for the vendor, respecting the stated conditions of the mares which have been referred to, and were not true in fact. There is no substantial basis for saying that if the representations were made they were true. And the jury, under the charge, must have found that plaintiff purchased the mares relying upon the representations made for the owner, because the matter was distinctly .submitted to the jury. The character of the representations which were made, and whether they were intended to be and were relied upon as warranties, were matters submitted to the jury in instructions which fairly state the proper rules.

A contention is made, based upon the statute of frauds, stated in one portion of the brief for appellant in the following language:

“ The plaintiff sues on the defendant’s warranty, and the undisputed evidence shows that there was no memorandum of the bargain, or any such entry by the auctioneer, as would satisfy the statute. * * * The plaintiff did not pay the money; nor did he have a written contract with the man who did. The defendant, on the other hand, did not know the plaintiff in the transaction, and received the cheek, not from the plaintiff, but from Simpson, who actually received the mares the next day.”

There is more to the same effect. What counsel have overlooked is the testimony tending to prove that plaintiff bought the mares; that they were sold to him; and that Simpson was interposed by plaintiff as his paymaster, and did, for plaintiff, pay the price agreed to be paid. According to plaintiff’s theory, the contract was wholly executed — money paid, goods delivered.

If we understand the real contention of appellant, it is that the court permitted a recovery, if the false representations were found to have been made, upon either of the theories, one of deceitful representations, the other of breach of warranty, that the declaration does not count upon the breach of a warranty, and, in any event, the jury should have been confined to one or the other theory. The force of this contention as establishing reversible error in the particular case arises from the fact that damages were claimed because the mare was not in foal, as well as for her unsound condition. If she was not in foal, as represented, and if, as certain testimony tended to prove, her condition in this respect could not be ascertained, but her history warranted the representations, nothing but an express warranty of her condition would permit a recovery for any injury arising from the fact that she was not in foal. In other words, words of representation, sufficient to operate as an oral warranty of soundness, would, or might, be neither warranties nor false representations as to her being in foal. The charge is open to criticism on account of its arrangement, not because the court did not have in mind the contentions of appellant. The jury was told that—

"Where a representation is made concerning a condition of affairs not susceptible of exact knowledge, the assertion of knowledge is to be taken as meaning no other than a strong belief, founded upon what appears to the defendant to be reasonable and certain grounds. In such a case the question is wholly one of good faith at that time. * * * If you find from the evidence in the case that the condition of the mare as to being in foal at the time of the sale was not susceptible of exact knowledge, and you also find that the defendant, Dr. Sample, acted in good faith in making any statements in regard to this question, * * * the plaintiff cannot recover upon that ground of fraud.”

This was a proper statement of the law (Krause v. Cook, 144 Mich. 365 [108 N. W. 81]) if the words "upon that ground of fraud ” had not been employed. The jury had been instructed that there need be no intentional fraud on the part of defendant, “ but it is sufficient if the plaintiff was actually misled, if a guaranty of the animal was made in fact.” They had been instructed, also, that, as matter of law, the plaintiff had the right to rely on the statements of the defendant as to the condition and soundness of the mares. And further they were instructed that,—

“If you find, as a matter of fact, from all the evidence in the case that the defendant, or some one authorized in his behalf, stated to the plaintiff that the mares were sound, and that they did not have the heaves, or that they were with foal, such statements would be a warranty; and if any one of them is untrue, then the plaintiff is entitled to recover.”

And:

“In other words, any distinct representation or proclamation of the condition and quality of the animals sold, made by the seller himself, or by his constituted agent, in his presence, at the time of the negotiations or the sale, which the said defendants intended, and which the purchaser at the time had reasonable grounds to suppose and believe was intended by the defendant, to effectuate the sale, and, in fact, the purchasers did so believe in making the purchase, and relied thereon, and on the truth thereof, and which was operative in effecting the sale, constitutes a warranty. It is not necessary to show that the seller at the time intended to deceive the purchaser in the sale, and the plaintiff is not required to show that the seller at the time knew the representations at the time to be false; he has the right to rely upon the representations and proclamations made.”

These statements are disconnected in the charge. Some of them are, and others are not, specifically referred to in the errors assigned. We have read the entire charge, and cannot escape the conclusion that the jury may have understood, and probably did understand, from it that if they found representation of condition to have been made they might find a warranty of condition, which was to be distinguished from a fraudulent statement ; that if a warranty of condition was made plaintiff could recover; if not, and the representation as to condition was untrue, but based upon good reasons, no recovery could be had as for a fraud. We are constrained, therefore, to reverse the judgment and order a new trial.

The defendant, under the declaration, should not be held liable for any damages resulting from the fact that the mare was not in foal, if the fact could not then be definitely ascertained, and if his representation was made in good faith, with good grounds therefor. No distinction can be made upon this subject, in this case, between a false warranty and a false representation. If. conditions warranted the statement, it was not an actionable false warranty, nor an actionable false representation short of a warranty.

And the plaintiff’s damages, upon this record, cannot be increased from the fact that he sought to buy a pair of mares for breeding purposes. His purpose in buying them is immaterial. We have examined, but do not comment on, other errors relied upon.

Judgment is reversed, and a new trial granted.

. Moore, C. J., and Steere, MoAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.


author: Per Curiam.

text:
      In re APSEY’S ESTATE. APSEY v. DE YOUNG.
    Appeal and Error — Probate Appeals — Delayed Appeal — Interlocutory Orders.
    A writ of error brought to review the order of a circuit court granting leave to appeal from the admission to probate of a will, after the time limited by statute, will be dismissed by the court on its own motion; since the order in question is merely interlooutory.
    Error to Kent; Perkins, J.
    Submitted November 13, 1912.
    (Docket No. 60.)
    Decided December 17, 1912.
    Alvin Apsey and another presented for probate an instrument purporting to be the last will of John Apsey, deceased. Jane A. DeYoung and other contestants asked leáve to prosecute a delayed appeal from an order admitting the will to probate. An order granting the petition is reviewed by proponents on writ of error.
    Writ dismissed.

      J. T. Preston (Charles E. Ward, of counsel), for appellants.

      Grove & Davis, for appellees.
   Per Curiam.

Petitioners and appellees applied to the circuit court for leave to appeal from an order of the probate court admitting to probate an instrument purporting to be the last will and testament of John Apsey. An order was made requiring appellants and others to show cause why the prayer of petitioners should not be granted. Many affidavits were filed and were considered by the court, and an order was made granting the right to appeal. Appellants sued out a writ of error to review this order and determination, and have brought here the record made upon the said application for leave to appeal. The briefs do not discuss the practice which has been pursued, all parties appearing to be willing, if not desirous, to have this court in this proceeding approve or disapprove of the action of the trial court. At the hearing in this court it was suggested to the attorney for appellee, who alone appeared here, whether appellants had not mistaken their remedy.

Formerly such orders were reviewed in mandamus proceedings. The frequency with which the writ was applied for, the delays occasioned by such reviews, and the difficulty of formulating governing rules of decision were reasons which led this court to refuse to grant, as it formerly had done, its orders to show cause in cases in which the circuit court had permitted the delayed appeal to be made and was asserting jurisdiction to hear and determine the issues involved in the appealed cause. Cosgrove v. Wayne Circuit Judge, 144 Mich. 682 (108 N. W. 361). In the opinion filed in the case just cited, it is pointed out that, if a party is content to stand upon the objections raised to the order permitting the appeal, he may do so, and, after final judgment, may review the ruling on error. If he is not satisfied that his objections are sound, he will probably waive them, proceeding to a trial upon the merits. In any event, final determination of the cause is expedited, and no rights are waived, unless voluntarily. In no case has this court reviewed the interlocutory proceeding on writ of error.

The writ of error will be dismissed. Under the circumstances, we award no costs to either party.