author: Montgomery, J. Long, J. Hooker, J.

text:
    The People v. William Considine.

      Criminal law — Continuance—Discretion of trial court — Jury— Qualifications — Trial—Receiving stolen property — Evidence— Instructions — Credibility of witnesses — Impeachment.
    1. Where on the trial of a criminal case the respondent is represented by counsel, who insist that the attorney originally-employed in the case is better prepared to try it than said counsel, and on the hearing of a motion for a continuance of the case on account of the absence of said attorney it becomes a question as to whether he will postpone said case or another case in which he is at the time engaged, it is not an abuse of discretion on the part of the trial judge to refuse a continuance.
    2. Act No. 204, Laws of 1893, which provides for a board of jury commissioners for Wayne county, contemplates that the drawing of jurors shall be public, and that after the names are drawn the minute of the drawing shall be signed by the commissioners and attending officers, and filed in the clerk’s office; and the making of an order, after the drawing, that the names of the jurors so drawn shall be suppressed, cannot be commended.

      .‘5. The court has power under section 18 of said act, in its discretion and on its own motion, in case there shall not be jurors enough present to form a panel in any ease, to direct tales-men to be forthwith drawn from the jury-box, and summoned to attend such court; and the fact that his attention has been called by the prosecuting attorney to such deficiency of jurors, either verbally or otherwise, will not nullify the-action so taken.
    4. On the day preceding the trial of a criminal case, the court ordered the summoning of additional jurors under said section 18, and, after the drawing, further directed that the names so drawn be withheld from the public and from counsel for both parties. Upon the trial counsel for respondent excepted to the crders so entered, but interposed no challenge to the array, nor was the voir dire examination restricted in any way. And it is held that the practice pursued was not so prejudicial to the respondent as to entitle him to a new trial.
    5. Under section 5 of said act, which provides that the persons whose names shall be returned by said board of jury commissioners shall have the qualifications of electors in the town or ward in which they reside and for which they are returned by said board, a person so drawn who is an elector, though not a full citizen, is eligible to sit as a juror.
    6. It is within the discretion of the court to direct that the jury .in a criminal case remain in the custody of an officer during the .trial, and to permit a police officer, who is one of the witnesses for the prosecution, to remain in court during the trial of the ease; citing People v. Machen, 101 Mich. 400.

      t. On the trial of a respondent for receiving and aiding in the concealment of stolen goods, a witness who took part in the removal of the goods was called by the people, and after-testifying on cross-examination that, at the time of a conversation had by him with the detectives who made the arrest, he did not know whether he would be arrested or not, that no promise had been made him then or since, and that he did not expect any leniency from the prosecuting attorney for his testimony in the case, was asked if he knew that he was criminally liable for what he did on the night the goods were removed. An objection that the question called for immaterial testimony was sustained. The witness further-stated that no one had told him that he was liable to arrest for what he did, and that another party, naming him, drove the' wagon all the time. And it is held that the testimony so fully covered the question of the witness’ knowledge of the resp-nsibility for his acts that the exclusion of the particular question was immaterial.
    8. The testimony of the people tended to show that a bank check was given to the respondent in payment for the goods; that the respondent was arrested directly in front of the store where the goods were sold and the cheek given; that, upon being arrested, he threw a piece of paper into his mouth, and chewed it beyond recognition. The prosecution were permitted to introduce in evidence a blank check, taken from the cheek book of the purchaser of the goods, which he testified corresponded to the one he had given in payment for the goods. And it is held that the testimony was admissible to show that the paper upon which the blank check was printed corresponded in color with that which was after-wards found in the form of a wad of paper on the sidewalk near where the respondent stood at the time of his arrest.
    9. It was competent for the people to show that, about 10 minutes after the arrest of the respondent, a wad, which looked like paper chewed up, was picked up near the store of the purchaser of the goods, still wet, there being enough from which the jury might infer the connection between this and the check given in payment for the goods, when taken in connection with the statement of the witness that the respondent at the time of his arrest was seen to throw a piece of paper into his mouth.
    10. It is within the discretion of the court to permit the prosecuting attorney on the'direct examination Of a partíoeps erimimis, who testifies in behalf of the people, to ask the witness leading questions.
    11. The witness, having testified to all the facts and circumstances of which he had knowledge, was asked, on cross-examination, if the respondent, to the knowledge of the witness, at any time knew what was in the trunks in which the stolen goods were placed. And it is held that it was proper for the court to require the witness to first state if he knew whether or not the respondent possessed such knowledge.
    12. The witness, having testified that he was under arrest, and was out on bail, was asked on cross-examination if the prosecuting attorney did not prepare his bail bond at the time he was arrested. And it is held that the proposed testimony was properly excluded as immaterial.
    13. Testimony on the part of the respondent that the officers acted in conjunction with the party who purchased the -goods, in making the.purehase, was immaterial, tlie offense of which the respondent was convicted having been committed before these means of detection were resorted to.

    14. After the people had rested their case, the counsel for the respondent asked that two witnesses, whose names were indorsed on the information, and who were accomplices of the respondent, and informed against for the same offense as that for which he was being tried, be called as witnesses for the people. The court declined to compel the prosecuting attorney to swear the witnesses, but stated that, if the respondent desired to swear them, he would call them. It further appeared that the proposed testimony, if given, would be cumulative. And it is held that it was not the right of the respondent to insist upon the witnesses being called.

    15. The fact that the officers were present, attempting to detect the crime of which the respondent was convicted through the intervention of the purchaser of the stolen goods, did not justify any unfavorable inferences by the jury, as they were simply discharging their duty.
    16. While the court may properly direct the attention of the jury to the character of the testimony of a particeps criminis. the failure to do so is not reversible error where no such instruction is asked, or where the requests preferred, covering the subject, are not proper in form.
    17. A witness for the people, who was sworn on the first trial of the case, testified on cross-examination on the second trial that he did not swear on the former trial that, at the time the goods were thrown down at a specified place, respondent was not there, nor that, when the witness came out, after he went into the boathouse to get the goods, the respondent was gone; but that he did testify that one Hahn said to respondent at the boathouse, “Go and watch the horse, and be on the lookout.” The official stenographer was sworn as a witness for the respondent, and, after testifying that he had the shorthand minutes of the testimony of the witness taken on the first trial, was asked to read from said minutes the testimony of the witness with reference to what was said and done at said boathouse at the time the witness swore the respondent and Hahn were there. An objection that no foundation had been laid for the impeachment of the witness was sustained, and a request on the part of respondent’s counsel for leave to recall the witness to lay a foundation for such impeachment was refused.
    Mr. Justice Montgomery filed an opinion, concurred in by McGrath, O. J., favoring a reversal, and holding that the attention of the witness appeared to have been called to his former testimony, and the proper foundation laid; that the objection was general that no foundation had been laid for the impeachment of the witness; that no criticism was made as to the form of the question, and that-the objection should not have prevailed.
    Mr. Justice Long filed an opinion, concurred in by Grant, J., favoring an affirmance, and holding:
    a — That the foundation for the impeaching testimony was sufficient, and that the court was not in error in not permitting the witness to be recalled to lay a further foundation for its introduction.
    6 — That the impeaching question was not in proper form; that, in impeaching a witness in this manner, the same language, in substance, must be repeated to the impeaching witness as was asked of the witness whom it is sought to impeach.
    c — That the testimony offered was in writing, taken down by the official stenographer; that it was therefore within the power of the counsel for respondent to have incorporated it in his bill of exceptions, and thus show to the Court whether in fact the statements were conflicting; and that for this reason also the exception should be held not well taken.
    Mr. Justice Hooker filed an opinion holding that' the judgment should not be reversed for the refusal of the court to permit the reading of the stenographer’s minutes taken on the former trial; that such minutes were not a part of the record, nor depositions or private writings of the witness sought to be impeached, nor writings signed by him, which may be rea- without the usual foundation being laid; that they stand on no better footing than any other writing made by the impeaching witness, and, while it might be admissible for the stenographer to read them by way of impeachment, the necessity for a proper foundation was not dispensed with, nor could anything be read that was not plainly contradictory of the testimony of the witness in relation to the matters inquired of in the preliminary questions.

      Error to recorder’s court of Detroit. (Chapin, J.)
    Argued October 26, 1894.
    Decided April 30, 1895.
    Respondent was convicted of receiving and aiding in the concealment of stolen goods, knowing them to have been stolen, and was sentenced to imprisonment in the State prison at Jackson for 5 years.
    Judgment affirmed.
    The facts are stated in the several opinions.

      Edwin Henderson and Alfred J. Murphy (James H. Pound, of counsel), for respondent.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.

       As to the effect of instigation or consent to crime for the purpose of detecting a criminal, as a defense to his prosecution, see note to Connor v. People (Colo.), 25 L. R. A. 341.

       As to indorsement of names of witnesses on information, see People v. Machen, 101 Mich. 401, and note; People v. Kíndra, 102 Id. 147; People v. DeFrance, 104 Id. 563; and as to the duty of prosecuting attorney to produce the testimony of res gestae witnesses, see People v. Germaine, 101 Mich. 488, and note.

   Montgomery, J.

Respondent was convicted of receiving and aiding in the concealment of 80 bolts of cloth, knowing the same to have been stolen from one Joseph W. Esser. ' The evidence tended to show that respondent went with one Wirth and one Hahn to the boathouse of one Duff Fecteau, at Crosse Pointe, on the 8th or 9th of December, 1893, and that the stolen goods were there obtained, taken into a one-horse wagon, and removed to Wirth’s place, on Atwater street; that subsequently the goods were taken to the tailor shop of one Hoetger, and there sold, and that a check was given to respondent by Hoetger in payment for the goods; that respondent was arrested directly in front of .Hoetger’» store, and that he immediately threw a piece of paper into his mouth, which he refused to give up until it was so chewed that it coulid not be identified. Respondent admitted that he was present on the occasion, but his testimony differs from other witnesses in some details as to what was said and done, and he claims to have been acting .without any knowledge that the goods were stolen, and without any connection with the transactions relating to their concealment or sale.

Complaint is made that the trial judge refused to grant a continuance of the case to enable respondent to obtain counsel. We have examined the record with care, and are satisfied that there was no such abuse of discretion on the part of the trial judge as would justify us in reversing the case upon this ground. Respondent was represented on the trial by two counsel, and while his counsel insisted that the attorney originally employed in the case, Col. Atkinson, would have been better prepared .to try it, the record affords indication that it became á question as to whether Col. Atkinson would postpone the present case or another case in which he was at the time engaged. Some discretion must be allowed a trial judge in arranging and disposing of cases, if courts are to be run with any regard whatever for economy, and we are not prepared to say that there was any abuse of such discretion in the present case.

On the day preceding the trial, the circuit judge made an order for the summoning of 30 extra jurors, under the provisions of Act No. 204, Laws of 1893. The jurors were publicly drawn. After the drawing, an order was made that the names of the jurors so drawn should not be given to the public or to the counsel for the prosecution or defense. On the morning of the trial, Judge Gartner, who had assisted in a former trial of the case, appeared, and noted an exception to the entry of the order for drawing the extra jurors and the order suppressing the names of the jurors. Following upon, this the following proceedings took place:

“Judge Gartner: I now ask, if your honor please, to see the original venire in order to ascertain as to the regular drawing of this jury.
“The Court: You may see it.”
The venire was produced, and handed by the clerk to Judge Gartner.
“Mr. Fraser: Counsel has asked for the minutes of this drawing, to see whether the matter was regular. He brings it here, and immediately dictates to Tom Navin’s brother the names of the jurymen. I ask that he be ordered to surrender it to the clerk.
“The Court: I understand your purpose in receiving—
“Judge Gartner: I desire to ascertain as to whether these names have been returned by the jury commission or not, and I have a right to do that.
“The Court: There is no question about that. You. may read that over.
“Mr. Hunt: Do I understand that he is to have time, not only to read over these names, but to go down to the jury commission, and come back here, and make an investigation at this time?
“The Court: No, sir; we are to proceed to impanel a jury this morning. You may proceed now.”

Counsel for respondent insisted that they had a right to ascertain “whether these names are the names in the jury-box or not,” and asked that the clerk furnish a list of the names, to which the court replied that counsel would have to be satisfied with the return, counsel stating:

• “It is customary, as I understand, at the beginning of the trial, for a list of the jurors, their names and residences, to be furnished to attorneys. Now, this list that was drawn yesterday, of course we don’t know anything about it. The list was not furnished.
“The Court: It was your business to be present, and ascertain who was drawn.
“Judge Gartner: We don’t know anything about it.
“The Court: You have known it.
“Judge Gartner: I don’t know what time it was, as far as that is concerned, if your honor please. It strikes me that I ought to have had some kind of notice, and I desire further at this time to enter an exception to the-drawing of this jury at this time, without having given counsel for the respondent notice of the drawing of this jury-’’

These proceedings were followed by an application for a eontinuance, which was denied, and. the impaneling of the jury proceeded, the clerk proceeding to call first from the regular panel of jurymen, and, after that panel was exhausted, calling jurymen from among the names drawn from the box on the previous day.

The statute contemplates that the drawing of jurors Shall be public, and that after the names are drawn the minute of the drawing shall be signed by the commissioners and attending officers, and filed in the clerk’s office, when it is made the duty of the clerk to make out a venire facias directed to the sheriff, commanding him to summon the persons named to appear and act as jurors. The practice pursued in this case of suppressing the names of jurors cannot be commended. It seems to have been adopted in the fear that, if the knowledge of the names of the jurors were furnished, there would be opportunity for tampering with the jury. But, in our view, the trial judge was too apprehensive. We need not determine whether respondent’s counsel have pursued the correct practice, or whether the error is such as to call for a reversal of the case, as we are of the opinion that the judgment should be reversed on other grounds, but the question is of too much importance to pass unnoticed. A person accused of crime is entitled to a fair opportunity to ascertain the antecedents and predilections of those to whom his fate is to be committed, and this right may be as important to him as the right to be confronted with the witnesses against him.

The claim is made that there was no written application for the order directing the drawing of additional jurors, but we think this was unnecessary. It is made the duty of the judge, by the statute in question, to order additional jurors when enough are not present, and this he can do on his own motion. The fact that his attention has been called to it by the prosecuting attorney, either verbally or otherwise, would certainly not nullify Ms action.

Exception was taken to permitting .one Charles Nulling to act as a juror, for the reason that he was not a citizen. This question is ruled by People v. Scott, 56 Mich. 154; People v. Rosevear, 56 Id. 158. See, also, Act No. 204, Laws of 1893, § 5, which provides that jurors “shall have the qualifications of electors in the town or ward in which they reside and for which they are returned by said board.” The juror in question was an elector, though not a full citizen.

Exception was taken to the court directing the jury to remain in the custody of the officer during the trial, and to the ruling of the court permitting one of the witnesses of the prosecution to remain in court during the trial. Both rulings were clearly within the discretion of the court. As to the latter, see People v. Machen, 101 Mich. 400.

On the trial a witness who took part in the removal of the goods to Hoetger’s place was called^ and upon cross-examination he was asked:

“Do you know that you are liable for what you did that night, — criminally liable?”

This was objected to as immaterial, and the objection was sustained. While this question might properly have been allowed to be answered, we think it cannot be said that the respondent was prejudiced, in view of all the testimony of the witness. He had alreadjr testified, on cross-examination, that, at the time of the conversation with the detectives, he did not know whether he would be arrested or not; that no promise had been made him then or since; that he did not expect any leniency from the prosecuting attorney for his testimony in the case; and further stated, after the objection above quoted: “No one has told me that I am liable to arrest for what I did. Blay drove the wagon all the time.'’ This testimony so fully covered the question of the witness’ knowledge of the responsibility for his acts that the exclusion of the particular question quoted is immaterial.

As before stated, the testimony of the people tended to show that respondent, on the occasion of the arrest, threw a piece of paper into his mouth, and chewed it beyond recognition. The prosecution were permitted to introduce a blank check, taken from Hoetger’s check book, and which he had testified corresponded to the one which he had given to Considine. This was objected to. We think the testimony was admissible to show that the paper corresponded in color with that which was after-wards found in the form of a wad of paper on the sidewalk near where Considine stood.

On the cross-examination of Hoetger, the witness testified that Fecteau spoke to him about buying the goods, and he was asked:

“Did he know the detectives had been there to see you, from what he said?”

This was excluded by the court, with the remark:

“This man cannot swear as to whether or not Mr. Fecteau knew such and such to be the case.”

Whether this ruling was strictly correct or not is immaterial, as it appears that Hoetger subsequently had an interview in the presence of Fecteau with the detectives, before the goods were brought to the store, which was the only purpose with reference to which the testimony sought was competent.

The sixteenth assignment of error relates to the ruling - of the court permitting the prosecutor to ask a leading question of a particeps crimims of the respondent. The question put was:

“Didn’t you say, at the last trial, that he stood at the head of the horse?’’

The witness started to answer this question, “I said he stood about 10 feet,”. when he was interrupted by the objection. The question was not further answered, but was followed by the question:

“After Hahn told him to go down and watch the horse and be on the lookout, where did Considine go?
“A. He stood — I told you before — about five or ten feet in front of the horse.”

We think it was within the discretion of the court to allow the question to he put in this form.

On the cross-examination of this witness he was asked:

“Did Considine at any time know what was in those trunks, to your knowledge?”

This was objected to, and the court stated:

“You can ask this witness if he knows whether or not Mr. Considine knew.”

Counsel should have adopted the question suggested by the court. He had testified to all the facts and circumstances, and the negative statement that he did not know that Considine had any knowledge of the contents of the trunks would not have strengthened the respondent’s position, unless he had some knowledge upon the subject other than that-derived from his connection with the transaction. Whether he had this knowledge it was very proper that the court should require the respondent to ascertain by a preliminary question in the form suggested. Indeed, a negative answer to this question would have removed any possibility T>f the jury drawing the inference that the witness did know that Considine had guilty knowledge, and had withheld the fact from them.

While this witness was on the stand he testified that he was under arrest in the cause, and was out on bail. He was asked on cross-examination if the prosecuting attorney did not prepare his bail bond at the time he was arrested. This was excluded as immaterial, and we think rightly. The fact sought to be elicited could not have affected the witness’ standing.

Testimony offered by the people that, about 10 minutes after the arrest, a wad, which looked like paper chewed up, was picked up near the place of Hoetger, still wet, was competent. There was enough from which the jury might have inferred the connection between this and the check which was given to Considine, when taken in connection with the statement oí the witness that Considine was seen to place a paper in his mouth.

The twenty-second assignment of error is based upon the refusal of the court to permit the defendant’s counsel, upon cross-examination of one of the people’s witnesses, to call out a purely hearsay statement, and has no merit.

Error is assigned upon the refusal of the question put to one of the officers, who was asked:

“You went up there to get Hoetger to buy these goods?”

It was excluded. The subsequent testimony of the same witness sufficiently shows that the officers did act in conjunction with Hoetger, and counsel rely upon Saunders v. People, 38 Mich. 218, as authority to show that this was important. But this respondent is not charged with having sold these goods, but with having received them and concealed them. If the purchaser were on trial, the fact that the officers had connived to Induce him to make the purchase might bear upon the question of whether the offense was committed, but the offense, if any was committed, was committed before these means of detection were resorted to.

-One of the officers was asked the question, “Don’t you know who stole those goods?” This was excluded, as the evidence was that the officer did not know of his own knowledge, and the question called for hearsay. It was Incompetent.

Error is assigned upon the refusal of the court to compel the prosecutor to call and examine two witnesses, Jesse Trumbull and August Hahn, who are shown by the testimony to be accomplices of respondent, and against whom informations had been filed on the same charge. The testimony of the witnesses would also have been cumulative, and it is not the right of the respondent to insist upon their being called.

Error is assigned upon tbe refusal of tbe court to give certain instructions. The eleventh asks, in substance, an instruction that, if the officers of the law were cognizant of the fact that a crime was about to be committed, it was their duty to prevent the commission of the crime, and if they “connived at, assisted, and had knowledge that the crime was to be committed, in the manner and form charged in the information, and the officers were present at the place for the purpose of making complaint against defendant and others, and using the evidence thus acquired for the purpose of the prosecution of the defendant and others, that- evidence is open to unfavorable inferences,' and the jury should examine such testimony with closest scrutiny.” The request contained a correct statement of the law,.but it has no application to the case in hand. As before stated, it was not the attempted sale of the goods to Hoetger which constituted the offense with which respondent was charged, but the previous, acts of concealment; and the fact that the officers were present, attempting to detect this crime through the intervention of Hoetger, did not justify any unfavorable inferences by the jury. They were simply discharging their duty.

The thirteenth and fourteenth, we think, are sufficiently covered by the general 'instructions.

The fifteenth and sixteenth are not insisted upon.

The nineteenth request is not. covered by the general charge. This request reads as follows:

“Under the testimony of Kennedy, of Schroeder, of Blay, and of Wirth, each is guilty of the charge contained in the information. Each testified that hé had guilty knowledge. They are, under the law, participe& criminis, and their testimony implicating defendant must be by the jury regarded with extreme suspicion.”

This instruction was not given, nor was the subject adverted to, except as appears by the two following extracts from the charge:

“The question for you to decide is whether or not the defendant is guilty as charged in the information, and it is immaterial whether other parties have or have not been arrested, and you are not to take that fact into consideration in arriving at your verdict.”

And further:

“You have heard all the testimony in the case, and have seen all the witnesses. You may give the testimony of the different witnesses such weight and credence as you think it is entitled to, and if, after a careful consideration of all the evidence, you are satisfied beyond a reasonable doubt,” etc. >

We are not prepared to say that the instructions requested should have been given in the precise form in which they were preferred. The rule is well settled that the credibility of an accomplice, like that of any other witness, is exclusively a question for the jury, and that the jury may convict upon the testimony of an accomplice alone. But it has also been frequently stated that it is in many cases important that the court should comment upon the nature of such testimony, and point out the grounds of suspicion which may attach to it, calling the attention of the jury to the situation and the temptation under which such witnesses may be placed, and especially if there is testimony tending to show that they have been induced to take the stand in a particular case under a promise of immunity. See People v. Hare, 57 Mich. 505; People v. Jenness, 5 Id. 305; People v. Schweitzer, 23 Id. 301. It would certainly in this case have been proper for the court to direct the attention of the jury to the subject-matter covered in the request, but whether a failure to do so would be sufficient ground for reversing the case we need not determine.

On the cross-examination of one August Wirth, a witness for the people, he.gave testimony as follows:

“I was sworn on the former trial of this case. I did not swear on the former trial of this case that, at the time those goods were thrown down out there in Grosse Pointe, Considine was not there. I did not swear in that case that, when I came out, after I went in to get the goods, Considine was gone. On the former trial I swore that Hahn said to Considine at the boathouse, ‘Go and watch the horse, and be on the lookout.’ ”

The stenographer of the court was called by respondent’s counsel, and, after stating that he heard Wirth testify on the former trial, and had the shorthand minutes of that testimony taken by him, was asked to read the testimony of the witness Wirth with reference to what was said and done at the boathouse at Grosse Pointe at the time he swore he (the defendant, Considine) and Gus Hahn were there. An objection was made to this, on the ground that no foundation had been laid for the impeachment of the witness Wirth. Respondent’s counsel stated that he wished to impeach the testimony of the witness Wirth given on this trial by the testimony of- the same witness given on the former trial. The objection was, however, sustained. The respondent’s .counsel then asked leave to recall the witness to lay a foundation, which request was refused. We think the first question put should have been allowed. The attention of the witness appears to have been called to his former testimony, and the proper foundation laid. The objection was general that no foundation had been laid for the impeachment of the witness Wirth. No criticism was made as to the form of the question, and this objection, we think, should not have prevailed.

Numerous other errors are assigned, but we think none of the questions presented would be likely to arise upon a new trial of the case.

The judgment should be reversed, and a new trial ordered.

McGrath, C. J., concurred with Montgomery, J.

Long, J.

I am unable to agree with -my Brother Montgomery upon the reversal of this case.

While it is true that a person accused of crime is entitled to a fair opportunity to ascertain the antecedents of those to whom his fate is to be committed, we think the practice pursued here was not so prejudicial to the respondent as to entitle him to a new trial. The statute contemplates that, when there are not enough jurors present to form a panel, the court may at once direct talesmen to be drawn and summoned. Had the order in this case been made, even on the morning of the day of the trial, it would have been equally valid, and no greater opportunity would have been furnished either counsel to investigate ' as to the qualifications of the jurors. It does not appear that ample -Opportunity was not afforded the parties by examination on the voir di/re to do so. Nor was there any challenge to the array.

The requests to charge should not have been given in the form in which they were preferred. While it would have been proper for the court to direct the attention of the jury to the subject-matter covered in the requests, yet the failure to do so, when the requests were not proper in form to be given, cannot be held to be reversible error. It is well settled that the credibility of an accomplice, like that of any other witness, is exclusively a question for the jury, and that the jury may convict upon the testimony of an accomplice alone. While it has many times been held that it is in many cases important that the. court should comment upon the nature of such testimony, and point out the grounds of suspicion which may attach to it, yet, where the court is not asked specifically to call the attention of the jury to such grounds of suspicion, I know of no case where a failure to do so has been, held error. In the present case certain requests were asked, but, inasmuch as such requests were, not preferred in proper form, I do not think the refusal to give them was error, or the failure of the court to call attention to the testimony of accomplices such error as calls for reversal.

The reason for the reversal of the case is placed by my Brother Montgomery upon the questions arising under the cross-examination and attempted impeachment of the witness Wirth, who was called by the people. The record shows that upon cross-examination Wirth testified as follows:

“I was sworn on the former trial of this case. I did not swear on the former trial of this case that, at the time those goods were thrown down out there in G-rosse Pointe, Considine was not there. I did not swear in that case that, when I came out, after I went in to get the goods, Considine was gone.”

I think the foundation for the impeaching testimony was sufficient, and that the court was not in error in not permitting the witness to be recalled to lay further foundation for its introduction. The trouble with the respondent’s position is that his impeaching question was not in proper form. The testimony given on the former trial might or might not tend to impeach the witness. If it would not, then it was incompetent. In impeaching a witness in this manner, the same language, in substance, must be repeated to the impeaching witness as was asked of the witness whom it is Sought to impeach. This is the only fair and competent method of impeachment, by showing contradictory statements. Rice v. Rice, 104 Mich. 371; De Armond v. Neasmith, 32 Id. 231. The reasons for the rule are there stated. In De Armond v. Neasmith, supra, it is said:

“When an attempt is made to impeach a witness, there should be no reasonable doubt but that the questions asked the impeaching witness and the witness sought to be impeached' are one and the same.”

The same rule was laid down in Rice v. Rice, and it was said:

“The language which it is claimed the witness used must be given, and he asked if he used it.”

In the present case the only offer made was to read from the testimony given by Wirth on the former hearing. The judge may have given a wrong reason for a correct ruling, or the prosecuting attorney may have given a wrong reason for objecting; but if the question was not proper, under the well-settled rule, which counsel are presumed to know, I see no reason why, under the circumstances of this case, courts of appeal should hold that there was error for which a new trial should be awarded.

I think this point should be held bad for another reason. The testimony offered was in writing, taken down by the official stenographer. It was therefore within the power of the counsel for respondent to have incorporated it in his bill of exceptions, and thus show to this Court whether in fact the statements were conflicting. If they were not, then no error was committed in excluding it. Had the attempted impeachment consisted of a letter written by the witness, which the court rejected, clearly the letter should have been incorporated in the record, in order that the Court might determine whether it was material. I see no reason why the same rule should not apply to the written testimony of a witness. I think it a wholesome rule that, whenever written evidence is excluded, it should be put in the record, so that the Court may determine its competency, and not reverse a case where no injustice may have been done.

The judgment must be affirmed.

C-rant, J., concurred with Long, J.

Hooker, J.

I agree with my Brother Long that this cause should not be reversed for the refusal of the court to permit the reading of the stenographer’s minutes taken upon the former trial. Under repeated decisions, such minutes were not a part of the record. Edwards v. Heuer, 46 Mich. 95; People v. Sligh, 48 Id. 54. Neither were they depositions or private writings of the witness sought to be impeached, nor writings signed by him, which may be read without the usual foundation being laid. See Lightfoot v. People, 16 Mich. 507. They stand, then, on no better footing than any other writing made by the impeaching witness. Such writings may always be used by the witness to refresh his recollection, but for no other purpose. The Court has so far enlarged this rule (if it be an enlargement) as to permit a lawyer who took minutes at the trial, which he testifies to be accurate, to read the same by way of impeachment, instead of restricting the testimony to oral statements from recollection, after reading the minutes. See Fisher v. Kyle, 27 Mich. 454; Spalding v. Lowe, 56 Id. 366, 370; Halsey v. Sinsebaugh, 15 N. Y. 486. But in such a case the necessity for a proper foundation is not dispensed with, nor is it to be understood that the rule permits the impeaching witness to read anything that is not plainly and specifically contradictory of the witness to be impeached, in relation to the preliminary questions constituting the ground for impeachment. In this case the witness Wirth testified on cross-examination as follows:

“I was sworn on the former trial of this case. I did not swear on the former trial of this case that, at the time those goods were thrown down out there in Grosse Pointe, Considine was not there. I did not swear in that case that, when I came out, after I went in to get the goods, Considine was gone. On the former trial I swore that Hahn said to Considine at the boathouse, ‘Go and watch the horse, and be on the lookout/ ”

The impeaching question asked the stenographer, after he had testified that he heard Wirth testify on the former trial, and had the shorthand minutes of that testimony taken by him, was:

“Will you read from the minutes of his testimony on that trial his testimony with reference to what was said and done at the boathouse at Grosse Pointe at the time-he swore he (the defendant, Considine) and Gus Hahn were there?”

What the minutes would show does not appear. Apparently the witness was asked to- read all that Wirth testified about what was said and done at the boathouse, not only by Wirth, but by others present. This testimony would have been hearsay, and inadmissible, except so far as it rested on the previous question to-

Wirth. It was therefore proper to exclude the testimony under the question asked. De Armond v. Neasmith, 32 Mich. 231; 1 Greenl. Ev. § 462, and note.

I think the judgment should be affirmed.

       Act No. 204, Laws of 1893, § 12.


source: Caselaw Access Project

author: McGrath, C. J.

license: Public Domain

text:
    The People v. James G. Clarke.

      Criminal law — Misconduct of election officers — Information—Duplicity — Evidence—Confessions—Instructions to jury.

    1. An information under How. Stat. § 9367, which provides that “if any officer on whom any duty is enjoined by law relative to general, special, township, or charter elections, or the canvassing or return of votes given at any election, shall be guilty of any' willful neglect of such duty, or of any corrupt conduct in the execution of the same, he shall, on conviction thereof, be deemed guilty of a misdemeanor,” etc., charging that the respondent, “while a member of the board of county canvassers, was guilty of willful neglect of duty and of corrupt conduct in the execution of his duty enjoined by law upon him as a member of said board,” is not bad for duplicity, the reference being to a single transaction.
    2. In a prosecution for fraudulently altering the figures in a tabulated sheet containing the votes cast for and against a certain constitutional amendment, the testimony traced the book in which said tabulated sheet had been placed to a room in an hotel where it had been left temporarily by the legal custodian, and clearly showed that the sheet had been taken from said book in said room by some unknown person, and had not since been seen by the officer in whose custody it had up to that time been, and who was charged by law with its custody. And it is held that an objection to the admission of testimony as to the contents of said tabulated sheet, on the ground that it was secondary evidence, is without force.
    3. Eespondent objected to the admission in evidence of a statement made by him to the prosecuting attorney while in custody, and taken down by a stenographer, on the ground that it was made in the course of the preliminary examination, and, under the statute, was inadmissible. An extended colloquy followed between the court and the counsel for the respective parties as to the circumstances under which the statement was made, during which the respondent’s counsel made the further claim that the statement was involuntary. The statements made during the colloquy were unchallenged by the respondent, and tended to negative both of his claims, and he offered no testimony upon the subject. And it is held that, under the rule laid down in People v. Barker, 60 Mich. 277, the objections were properly overruled.
    4. The testimony of the respondent tended to show that said statement was secured by means of undue influence exercised over him by the prosecuting attorney, or by reason of inducements held out to him by that officer, and the court was requested to instruct the jury that a confession so obtained ' is involuntary. The court refused to give said instruction, and did not in his general charge submit to the consideration of the jury the questions so presented.’ And it is held that the requests should have been given.
    5. A charge in which the salient points of the testimony for the people, the witnesses being referred to by name, are brought out, and in which equal consideration is not given to the testimony for the respondent, is open to criticism. If the testimony is to be contrasted by the court, it must clearly appear that it has been done without prejudice; citing People v. Murray, 72 Mich. 10.
    Error to recorder’s court of Detroit. (Chapin, J.)
    Argued February 28, 1895.
    Decided April 30, 1895.
    Respondent was convicted of willful neglect of duty and corrupt conduct in the execution of his duty in canvassing election returns.
    Reversed.
    The facts are .stated in the opinion.

      WilKam Loolc, Thomas J. Navin, and Joseph M. Weiss (Ira G. Humphrey and Edward Minoclc, of counsel), for respondent.

      Allan H. Frazer, Prosecuting Attorney, and Ormond F. Hunt, Assistant Prosecuting Attorney, for the people.

       See foot-note, page 171.

   McGrath, C. J.

Kespondent was charged, under section 9367, How. Stat., with willful neglect of duty and corrupt conduct in the execution of his duty in canvassing election returns.

The information alleges that respondent “was guilty of willful neglect of duty and of corrupt conduct in the execution of his duty,” etc. The statute provides that if any officer “shall be guilty of any willful neglect of such duty, or of any corrupt conduct in the execution of the same,” etc. The information follows the language of the statute, except that the conjunctive, and not the disjunctive, is used, the reference being to a single transaction. The objection that the information is bad for duplicity is therefore without force.

It is next insisted that the testimony relative to the tabulated sheet should have been excluded as secondary evidence. The testimony traced the book containing the tabulated sheet to a room in a hotel at Lansing, and •clearly tended to show that the sheet had been taken from the bound volume in that room by some person unknown,'and had not since been seen by the party in whose custody it had up to that time been, and who was •chargéd by law with its custody. There is no force in ■the objection.

The people offered in evidence a statement made by the respondent, and reduced to writing by a stenographer. It was claimed by respondent’s counsel that this statement was made in-the course of the preliminary examination, and, under the act creating the police court of the city of Detroit, was inadmissible. Charter 1893, § 661. An extended colloquy then took place between the court and counsel as to the circumstances under which the statement was made, during which counsel for respondent made the further objection that the statement was involuntary. The statements made during the colloquy were unchallenged, and tended to negative the allegations that the admissions were made as a part of the preliminary investigation before the police justice, or that they were involuntary, and respondent’s counsel offered no testimony upon either subject. Under the rule laid down in People v. Barker, 60 Mich. 277, no error was committed.

The respondent testified, with reference to this statement, that, when he was arrested, he was taken to the office of the prosecuting attorney, who took him into a room; that he “told me that he had conclusive evidence ■that I knew all about it, and that, if I had anything to say, to say it now; that, if I wanted to make a confession, I would have to make it before 12 o’clock that night, or it wouldn’t go.” Thát he was then taken to the Central police station; that—

“The next man that I saw was Dr. Frank Houp, the druggist on the corner of Sixth and Michigan avenue, an intimate friend of mine. Afterwards Dr. Houp came to the cell with the officer, and told me that I must make a confession to Mr. Frazer, and that I would have to make it before 12 o’clock; that Mr. Frazer told him I was to be without bail; that I couldn’t get bail; and that I would rot on the damn planks if I didn’t make a confession. He held up my family to me; told me, if I knew anything, to say it, and try and save the children and my wife. * * * After Mr. Houp left there that evening, I waited until nearly 12 o’clock, and I sent after Mr. Frazer, according to directions of Mr. Houp, his instructions to me. Mr. Frazer came down there, I think, between 1-1:30 and 12 o’clock. Mr. Frazer called in an attendant there, — a turnkey, or whatever you may call him. Told him to unlock the door and let me out. We went around into the back room. Mr. Frazer asked me what I had to say, and I said I didn’t think I had anything to say what would be of any benefit to him on the case. He says: ‘I know all about this case, and I know you put the figures on there, and, if you don’t make a confession to me, you’ll stay here until you rot.’ I asked Mr. Frazer if I could ask him a few questions before he said anything. He said I could. I think I also said that ‘you’re my attorney,’ laughing. I also said: ‘Now, Mr. Frazer, if I don’t say anything to you that would be of benefit to you, what time do I get out of here to-morrow morning?’ Mr. Frazer says: ‘Just as soon as I can make out the papers.’ I asked how long that would be. He said: ‘I don’t know. It may take a little time.’ I said: ‘Do you think I will be out of here to-morrow?’ And he said: ‘I think I can get the papers made out. I will start to make them out as soon as I get home.’ I said: ‘Mr. Frázer, another question is, what will be the result with me in case I should say anything that will be of benefit to you?’ He said: ‘You ought to have confidence enough in me to know that I will take care of you.’ Next morning Mr. Frazer sent an officer for me. I suppose lie did. The officer came at least. The officer didn’t say anything. I supposed it was bail. I was very anxious to get out. Instead of that, it was to come to Mr. Frazer’s office with an officer. I can’t remember whether a stenographer was there. I think there were several reporters sitting around the table taking pictures, or something of that kind, and Mr. Green was there. Mr. Frazer called me in his private office with Mr. Green; turned around, and asked me if I wanted to’ talk to Mr. Green privately, and I think I nodded my head, ‘Yes/ Mr. Frazer went out, and shut the door. I talked with Mr. Green a little while, perhaps five or ten minutes. Mr. Frazer came back, asked me what I found out, and I says, ‘I don’t know anything. Q. What does Mr. Green know? A. He doesn’t know anything.’ Mr. Frazer wanted to, find out from me what Mr. Green knew. Then Mr. Frazer ordered the officer in again, and locked me up, and I was taken down to the Central station. I am not sure whether it was in the afternoon or the next afternoon that I was taken out. I can’t say for certain. It strikes me that it was Wednesday afternoon when I was again taken to Mr. Frazer’s office. I can’t remember who I saw there except the assistant prosecutor (Mr. Hunt) and Mr. Frazer. It was then that I made this statement. I heard the statement read by Mr. Mandell to the jury this morning. I was just about crazy during my imprisonment and the times I was brought to' Mr. Frazer’s office, and was laboring under great mental excitement.”

The court was requested to instruct the jury that—

“Ho confession is deemed to be voluntary if it appears to the judge to have been caused by any inducement, threat, or promise preceding from a person in authority, and having reference to the charge against the accused person, whether addressed to him directly or brought to his knowledge ¡«directly, and if such inducement, threat, or promise gave the accused person reasonable grounds for supposing that by making a confessipn he would .gain some advantage or avoid some evil in reference to the proceedings against him. The prosecutor, officers of justice having the prisoner in custody, or magistrate are persons in authority.
“It is for the jury to determine for themselves whether the alleged confession of the defendant was made freely and voluntarily, without any influence of hope or fear. If' so, they may. consider it. If not, it is no evidence.’’
“Any — the slightest — menace or threat, or any hope engendered or encouraged that the prisoner’s* case will be lightened or more favorably dealt with if he will confess, is enough to exclude the confession thereby super-induced; and any words spoken in the hearing of the prisoner which may, in their nature, engender such fear or- hope, render it necessary that a confession made within a reasonable time afterwards shall be excluded, unless it is shown by clear and full proof that the confession was voluntarily made after all trace of hope or fear had been fully withdrawn or explained away.”

The court refused to give these requests, but instructed the jury as follows:

“You remember the statement made to the prosecuting-attorney, about which there has been so much discussion in this case, and you will remember the preliminary remarks by which the prosecuting attorney prefaced' this statement. There is some question as to whether or not this statement was a voluntary statement. You remember the testimony of the prosecuting attorney himself, and also the testimony of Judge Whelan on that point, — that the defendant was brought to the prosecuting attorney’s office; that he told him that he was not obliged to make this statement, and any statement he might make must be the absolute truth. He was not required to make it, and he was not promised any reward or leniency, threatened in. any manner, or coerced into making this statement, — not promised any immunity. Now, if you believe, gentlemen of the jury, that that was a voluntary statement made by him, then you must carefully consider his evidence in this case, because he stated in his testimony, as I remember it, gentlemen, that he had no recollection of having made this statement to the prosecuting attorney, and, if he did make such statements as are set up in this statement, that it was untrue,, that the statements are untrue, for at that time he says he did not know what he was doing, — I believe his own language is that he was crazy at the time. It is for you to say, gentlemen, whether or not the statement was made voluntarily, or whether he was coerced into making it; and, if you believe that he was forced to make it,, then, of course, you should not consider it.”

The requests presented should have been given. The instruction given did not submit to the consideration of the jury the question of undue influence in obtaining the statement or of the inducements alleged to have been held out by the prosecuting attorney. Confessions are inadmissible when induced by threats, or by a promise of favor, made by persons apparently acting by authority. Flagg v. People, 40 Mich. 706; People v. Wolcott, 51 Id. 612; People v. Barker, 60 Id. 277.

It is urged that the court, in charging the jury, brought out the salient points of the testimony of the people, referring to the witnesses by name, and did not give equal consideration to the testimony for the defense. We think that the criticism is not wholly groundless. The portion of the charge given is an illustration. The court refers to the testimony of the “prosecuting attorney,” and to that of “Judge Whelan,” that the prisoner was not required to make the statement, not promised any reward or leniency, threatened in any manner, or coerced into making the statement, — not promised any immunity. When the testimony of the respondent is referred to, the testimony which tends to negative that of the people’s witnesses as to the promise of reward or immunity is not alluded to, but the court refers to a statement made by the witness relating to certain of the contents of the paper as made with reference to the entire paper. If the testimony, is to be contrasted by the court, it must clearly appear that it has been done without prejudice. People v. Murray, 72 Mich. 10.

The judgment is reversed, and a new trial ordered.

Long, Montgomery, and Hooker, JJ., concurred. Grant, J., did not sit.

       This section, being section 20 of Act No. 161, Laws of 1885, reads as follows:
      “If either police justice shall have probable cause to suspect that :an indictable crime, misdemeanor, or offense has been committed within the corporate limits of the city of Detroit, and that any person within the lawful jurisdiction of the process of the police •court may be able forgive any material evidence respecting such -crime, misdemeanor, or offense, he shall have power and authority, in his discretion, to require such person to appear before him as a witness, and answer upon oath sucia questions as shall be put to bim or her touching such crime, misdemeanor, or offense, or his or her knowledge or information of the same, or of any material fact involved therein; and the proceedings to summon said witness, and to compel him or her to testify, shall, as far as practicable, be the same as proceedings to summon witnesses and compel their .attendance and testimony in ordinary cases, matters, and proceedings in the police court; and if upon such inquiry the police justice shall be satisfied that such crime, misdemeanor, or offense has been committed, and that there is probable cause to suspect any particular person or persons to be guilty thereof, he may cause the apprehension of such person or persons by proper process, and upon the return of such process, served or executed, the police justice shall proceed with the case, matter, or proceeding in like manner as upon formal complaint by the injured party or other person. And in respect of communicating or divulging any statements made by such witness during the course of such examination the police justice shall be governed by the provisions of law relative to grand jurors.”
      How. Stat. § 9502, provides that—
      “Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such jury is consistent with, or different from, the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person upon complaint against such person for perjury, or upon his trial for such offense; but in no case can a member of a grand jury be obliged or allowed to testify or declare in what manner he or any other member of the jury voted on any question before them, or- what opinions were expressed by any juror in relation to any such question.”


text:
    The People v. Newell B. Parsons.

      Criminal law — Jury—Qualifications— Larceny — Evidence— Confessions — Instructions to jury — Presumption of innocence.

    1. A juror in a criminal case testified on his voir dire that he should hesitate slightly about convicting a person on circumstantial evidence; that he would like, before a respondent should be sent up, to hear positive proof against him, and that he would hate to find a man guilty on circumstantial evidence; that if the evidence was so conclusive and satisfactory to his mind, weighing it as he would any eyidence that affected his own interests in doing business, as to preclude any other rational theory, he would convict, but that he was somewhat prejudiced against circumstantial evidence where it deprived a man of his liberty, and so far as it related to criminals. After a challenge for cause interposed by the people had been sustained, other jurors were for various reasons excused by the prosecuting attorney and by the respondent’s counsel, after which both announced themselves as satisfied with the jury. And it is held that the respondent was not prejudiced by the action of the court.
    2. In a prosecution for the larceny of certain railroad bonds, which the respondent, as the people’s evidence tended to show, had expressed to a friend in another city, with the instructions, by mail, to deposit the bonds in a safety-deposit vault, the friend testified that the package containing the bonds wras received during his absence from the store where he was employed; that, upon his return, the parcel boy notified him of the receipt of the package, and witness told him to open it; that, upon the attention of the witness being called by the cashier to a letter which had been received for him, he recognized the handwriting, read the letter, and then told the boy not to open the package, but took it, and left the store. The, testimony of the cashier and the parcel boy as to what occurred at that time agreed substantially with that of the witness. And it is held that the testimony of the cashier and the boy related to what occurred on the , receipt of the x>ackage, rather than to the conversation then had, and bore upon the character of the letter received by the first mentioned witness, and was admissible.
    3. Statements made to a police officer, while the respondent was in jail’ are admissible as evidence against him where it appears that he volunteered the talk; that it was suggested to him by the officer that he should do his talking with the attorney for his employers, whose property he was charged with having stolen, and that he was under no obligation to talk wich the witness; and that the only suggestion that savored of possible advantage to the respondent was that he might, by talking with the attorney, avoid trouble and notoriety.

      4. In a prosecution for the larceny by a book-keeper of certain railroad bonds belonging to his employers, the people were permitted to show that on a certain morning, two days after the time the theft was alleged to have been committed, the attention of the employers was called by the respondent to the condition of the vault in which the bonds had been kept; that upon examination they found that the combination lock had been removed from the outer door of the vault, that certain books and vouchers which were in the vault on the day before had been taken, and that the bondá were gone. And it is held that the testimony was properly admitted.
    5. Where the jury in a criminal case have been instructed that they must be satisfied, beyond all reasonable doubt, that the respondent has committed the offense with which he is charged, he is not prejudiced by an omission to charge them that the respondent is presumed to be innocent; the court having already stated, in the presence of the jury, that in a criminal prosecution nothing can be presumed against the respondent.
    6. Where, in a prosecution for the larceny of certain railroad bonds, there is no contest as to their ownership, and no claim is made that they were taken by authority, it is sufficient for the people to prove that the bonds were taken from the vault where they were kept, without the consent of the surviving member of the firm to which they belonged, dr of an executor of one of the deceased partners, who had actual ’ charge of the bonds, it appearing that the other executor, as also a co-executor with the survivor of the third partner, had nothing to do with the management of the partnership business.
    7. The court instructed the jury, that it was necessary for the people to prove, beyond a reasonable doubt, at least the de

      fatfo existence of tlie railroad company, and that the fact, if found by the jury, that said company completed its road several years before the bonds were issued, and equipped it with rolling stock, and had during that time actually been doing business as a railroad company, was sufficient to establish the do facto existence of the company. And it is held that the respondent was not prejudiced by said instructions.
    8. It is not the rule that a respondent is entitled to have requests to charge given in the very language in which they are framed, subject to the sole proviso that they state the law correctly and that there is evidence to support them.
    9. A party is entitled to have specific charges upon the law applicable to each of the various hypotheses or combinations of facts which the jury, from the evidence, might legitimately find, and which have not been covered by other instructions; and, where language seemingly inconsistent with this qualification has been used in former decisions, it must be held applicable only to the circumstances of the particular case.
    Error to Saginaw. (Wilber, J.)
    Argued March 1, 1895.
    Decided April 30, 1895.
    Respondent was convicted of the crime of larceny, and sentenced to imprisonment in the State prison at Jackson for 5 years.
    Judgment affirmed.
    The facts are stated in the opinion.

      D. P. Foote and Traste & Smith, for respondent.

      Fred A. Maynard, Attorney General, and F. A. Snow, Ex-Prosecuting Attorney, for the people.
   McGrath, C. J.

Respondent was convicted of the theft on the 4th of April, 1894, from a vault in the office of Wells, Stone & Co., at Saginaw, of 463 bonds, of the value of $1,000 each, issued by the Cincinnati, Saginaw & Mackinaw Railroad Company. A. W. Wright, F. C. Stone, and C. W. Wells had composed the copartnership of Wells, Stone & Co. Stone and Wells had died. A. W. Wright, of Alma, and B. E. Wells, of Duluth, were Wells’ executors, and A. W. Wright and E. P. Stone and Harriott F. Stone were Stone’s executors. The business was being continued by Wright on behalf of all, Edwin P. Stone haying charge thereof. Wright, the estate of Wells, and the estate of Stone owned the bonds. Respondent was at the time, and had been for a number of years, the trusted bookkeeper of the firm. He had assisted in clipping the January coupons from the bonds, and knew that the bonds were kept in a tin box in the vault. He had the combination, a key to the inner door of the vault, and a key to the tin box. On the morning of the 6th of April the attention of the proprietors was called by Parsons to the condition of the vault; to the fact that the combination lock had been removed from the outer door of the vault, and that certain books and vouchers which were in the vault on the day before had been taken. It was at this time that the loss of the bonds was discovered. The people’s evidence tended to show that the bonds had been sent by Parsons, by express, to one Knight, at Grand Rapids, with instructions, by mail, to “deposit them in two safety-deposit vaults, where they cannot be found, and wire me;” that Knight received the bonds, placed them in one safety-deposit vault, and, after the arrest of Parsons, exposed the whole matter, when the bonds were recovered. The defense was that Knight and Parsons had been very intimate; that Knight had frequently-visited Parsons; at Saginaw, and, upon such visits, Knight stopped with Parsons, at the latter’s home; that, in the latter part of February, Knight spent two or more days at Saginaw, and, on the night before his departure, brought a package to Parson’s house, and on the next morning, representing that he had too much to carry, left the package with Parson’s, to be forwarded to him when requested; that, on the 3d of April, Parsons received a letter from Knight requesting him to forward the package to him by express; and that, on the 4th of April, Parsons forwarded the package, innocent of its contents. Knight claimed that he had destroyed the letter he received with the package, agreeably to the instructions contained therein, and Parsons claimed that he had lost the letter sent him by Knight, requesting Mm to forward the package.

A juror was challenged by the prosecuting attorney, and excused by the court. The record discloses the examination of the juror, the challenge, and the fact •that he was excused, but contains nothing tending to show that respondent was prejudiced thereby.

Knight testified that he was at the time in the employ, of Houseman, Donnelly & Jones; that the package was received in his absence; that when he came in the parcel boy held up the package, and notified him of its receipt; that he then told the boy to open it; that his attention was then called by the cashier to a letter which had been received for him; that he recognized the handwriting upon the letter, opened it, and read it hurriedly, and then told the boy not to open the package, but took it, and left the office. The cashier and the bundle boy were called, and testified to what had occurred upon the receipt of the package, agreeing substantially with Knight. Error is assigned upon the admission of this testimony, but the testimony related to what occurred on the receipt of the package, rather than to the conversation. It bore upon the character of the letter which Knight had received.

Error is assigned upon the receipt of the testimony of the police officer as to the admissions made by respondent. In response to questions the officer stated that no promises or inducements were held out by him; that no threats were made, and that the statements made by respondent were voluntary; that—

“I told him I did not come there to get any information from him. He started to give me some, and I told him he had better go to Mr. Stark [attorney for Wells, Stone & Co.], and talk with him. I told him he was* under no obligations to tell me anything, and I did not want any information. I asked him for the key to his desk. He wanted to know what I wanted of it. I told him I was going to look through his desk. He said 1 would not make anything by that. I told him I was ■ordered to get the key, and go look through his desk, and he said to me to see his mother; she would give the key. I told him, ‘Why do you not talk with some of the company, and avoid all this trouble and notoriety?’ and he said they had not given him any chance. ‘Why,’ I said, ‘I supposed they had.’ He says, ‘No; they haven’t said anything to me at all.’ I said, ‘Why do you not send for Mr. Stark, and talk with him?’ ‘Why,’ he says, ‘he ought to come and talk with me.’ ”

No testimony was offered by respondent bearing upon the question of the admissibility of the statements made to the officer. The testimony of the officer upon that point must be considered as a whole, and we think it sufficiently appears that respondent volunteered the talk, to warrant the admission of the testimony; that it was suggested to him that he should do his talking with the attorney for his employers, and that he was under no obligations to talk with the witness; and the only suggestion that savors of possible advantage was one that he might, by talking with the. attorney, not with the witness, avoid trouble and notoriety.

Although the theft was alleged to have been committed on the 4th of April, it was entirely proper to show the condition of the vault on the morning of the 6th, when the proprietors were telephoned for by the respondent; that upon their arrival they found the bonds gone, together with the books and vouchers; and that the combination lock had been taken from. the vault door.

The court was requested to instruct the jury as follows :

“1. The defendant is charged with the crime of larceny. Larceny consists of distinct elements: First, the unlawful and felonious taking; second, the carrying .away; third, the goods of another; fourth, with the intent to convert the same to his own use; fifth, and the taking and carrying away must be without the consent of the owner. To convict upon this charge, each element of the crime must be proved beyond a reasonable doubt.
“2. -Where a reasonable doubt is entertained byanyone juror upon any one of the elements constituting the crime, the defendant must be acquitted.
“3. Where the property is charged and shown to belong to several owners, the people must show, beyond a reasonable doubt, the non-consent of all the alleged owners.
“A In a criminal prosecution, nothing can be presumed against the defendant. The people must prove, beyond a reasonable doubt, the existence of every element and condition constituting the crime charged.
“5. The non-consent of each of the several owners of the property alleged to have been taken is a necessary element of the crime, and must be proved, like every other element of the crime, beyond a reasonable doubt.
“6. It is not for the defendant to prove the consent of the several owners, but for the people to prove the non-consent of the owners, and all of the owners, where there are several owners, beyond a reasonable doubt.
“7. It is necessary for the people to prove, beyond a reasonable doubt, at least the de facto existence, of the railroad company issuing the bonds alleged to have been stolen.
“8. And the people must prove, beyond a reasonable doubt, that the bonds in the case were the genuine bonds of the company; that is, that the signatures of the president and secretary, by which the bonds are signed and authenticated, are the genuine signatures of the persons whose names are signed thereto as president and secretary.”
“10. The defendant is presumed to be innocent of the offense chained, and that presumption is a complete shield until the people have introduced evidence, to the jury, beyond all reasonable doubt, that he is guilty; that Is, the jury must be satisfied, beyond all reasonable doubt, after properly considering all the evidence, that the defendant has committed the offense charged, before the jury can lawfully find the defendant, guilty.
“11. A reasonable doubt is based on reason and com.mon sense, and grows out of the testimony in the case. It is such-a doubt as will leave one’s min'd, after a careful examination of all the evidence, in such a condition that he cannot say that he has an abiding conviction, to a moral certainty, of the defendant’s guilt.
“12. Where circumstantial evidence alone is relied upon, every material circumstance or link in the chain of testimony must be proved beyond all reasonable doubt.”
“15. If any one of the jurors, after a fair and careful .consideration of all the evidence, has a reasonable doubt, based either on the evidence given, or a failure of evidence upon any material element of the offense, he should not find the defendant guilty.’’

The court instructed the jury as follows:

“Before the defendant can be found guilty, the jury, and each member of it, must be satisfied of his guilt, beyond a reasonable doubt, and this applies to each element of the crime. The term ‘reasonable doubt’ is so clear in itself, and so well expresses its own meaning, that any attempt to define it would seem unnecessary; but I have been requested by counsel for defendant to charge you, and I do so charge you, that ‘a reasonable doubt is based on reason and common sense, and grows out of the testimony in the case. It is such a doubt as will leave one’s mind, after a careful examination of all the evidence, in such a condition that he could not say that he has an abiding conviction, to a moral certainty, of- the defendant’s guilt. * * * Where circumstantial evidence alone is relied upon, every material circumstance or link of the chain of testimony must be proven, and beyond a reasonable doubt.’ I do so charge you. The circumstances relied upon must not only be consistent with his guilt, but inconsistent with his innocence; and this applies to each link in the chain, for the chain itself is no stronger than the weakest link in it. •X* * *
“Larceny has been defined to be the felonious taking and carrying away by any person of the goods and personal property of another, with the felonious intent of converting it to his own use'and making it his* own property, without the consent of the owner, — the word ‘felonious’ meaning that he has no color of right or excuse for the act. The intent must be, not to deprive the owner temporarily, but permanently, of his property. * *
•* According to all definitions, there must be a taking and carrying away; it must be with felonious intent; it must be the personal goods of another; and it must be without the consent, and against the will, of the owner. * * * It has been contended here by counsel for the defendant that the proof is insufficient that consent to take these bonds was not given by the owners. Upon that point, gentlemen of the jury, I charge you that you may consider-the entire evidence in the case, including that of the defendant, in determining whether or not consent was given by the owners. If the bonds were "Wells, Stone & Co’s., then upon the death of "Wells and Stone the legal title and the right to the custody of the bonds passed to Ammi W. Wright, as the living, surviving partner. The interest of the executors was equitable only, and they could not take the bonds from the possession of Ammi W. Wright, or authorize it to be done. If it appears that the actual possession was in E. P. Stone, and the constructive possession was in Ammi W. Wright, if neither of them authorized the removal of the bonds, in the absence of any other evidence tending to show the contrary, that evidence, in the opinion of the court, is sufficient that the removal was unauthorized, and I so charge you, as a matter of law.
“I am requested by the defendant to charge you that it is necessary for the people to prove, beyond a reasonable doubt, at least the de facto existence of the railroad company issuing the bonds alleged to have been stolen, and I so charge you; but upon that point the people have given evidence tending to show that the Cincinnati, Saginaw & Mackinaw Railroad Company was completed from Durand to some point beyond Bay City, in this State, several years ago, and that it was equipped with rolling stock, and has actually been doing business for some years past as a railroad company. This'fact alone is sufficient proof that it is a de fado corporation, at least.
“I am also requested by the defendant in this case to charge you that the bonds in the case must be shown to be genuine bonds of the company, and I do so charge you; but upon that point, if you find that the testimony of Ammi W. Wright, who claims to have been acting as the president of the railroad company, is true, in regard to the issuing of the bonds, and the testimony of Mr. Knowlton in regard to their delivery, and the other evidence produced by the people upon that point, then I charge you that such, if you believe it to be true, is sufficient to show that these bonds were legally issued, and that they were genuine, and would be the . subject of larceny, if stolen. * * * The defendant, of course, is not bound, by his defense, to show how the bonds were taken, or who took them.”

ft is clear that respondent’s first, second, seventh, eleventh, twelfth, and fifteenth requests were given. The first paragraph of the fourth request and the first paragraph of the tenth were not given, while the other portions of these two requests were actually given. It appears from the record that the fourth request was read in the presence of the court and jury, and there discussed, till counsel was told there was no necessity for further argument upon that request, that it correctly stated the law, and that the court would so instruct the jury. It is true that the court, in the charge to the jury, said, referring to the general discussion by counsel:

“You may or may not have formed an opinion from that discussion in regard to what the law of the case is; but it is a part of the duty of the jury to take the law, not from the arguments of counsel, or from their own opinions, but from the court.”

The opinion, however, respecting the fourth request, was that of the court, and not of the counsel.

Respecting the tenth request, it would seem that counsel, in framing it, regarded the second paragraph as the equivalent of the first. The reason why the jury must solve all reasonable doubts in favor of the accused is that the presumption of innocence is with respondent. The burden is upon the people to overcome that presumption of innocence by proof that will convince the jury, beyond all reasonable doubt, of respondent’s guilt. The case should not be reversed simply because the court has failed to give the reason why such burden is imposed upon the people. Where neither instruction has been given, it would be error; but where the jury have been instructed that they must be satisfied, beyond all reasonable doubt, that the respondent has committed the offense charged, it cannot be said that the respondent has been prejudiced by an omission to charge that the respondent is presumed to be innocent, especially where the court has already stated, in the presence of the jury, that in a criminal prosecution nothing' can be presumed against the respondent.

Respecting the third, fifth, sixth, and eighth requests, there was no contest over the ownership , of the bonds, or as to their genuineness, and no claim that they were taken by authority. Knight insists that he received them from Parsons, inclosed in a wrapper, in ignorance of the fact that the wrapper contained stolen bonds. Parsons claimed that he received the package from Knight, and that he was innocent as to what it contained. The theory of each was that it had been stolen by the other. Both denied having taken it from the vault. The bonds were offered and received in evidence without objection. They purported to have been duly and properly executed. Wright testified to their issue and value, and that he signed them as president of the railroad company. They were taken from the vault of Wells, Stone & Co. Wright was the survivor of that firm. Stone had charge of the business. Each testified that the bonds had been taken without his consent. A co-executor lived at Duluth, and another at Saginaw. Neither had anything to do with the management of the business. Suppose that an express train had been held up, the expressman bound and gagged, and $50,000 in money taken, and that a posse pursued and captured a masked pad, with the money in his possession. Would it be necessary, upon the trial, in addition to proof that the express messenger was in the employ of the express company, and had charge of the stolen money, to show that the agent sending, the agent to whom consigned, and the president of the company had not consented to the taking? It would seem not.

It was shown upon the trial that said railroad corporation had been operating its road for some time, and had issued the bonds in question. The respondent was not prejudiced by the instructions given upon these subjects.

But as to some of the requests already referred to, and others which were refused, counsel for respondent do not, in their briefs, suggest in what respect the instruction given differs from the requests, or attempt to point out wherein the requests were not covered by the general charge; and the only point urged respecting them is that the respondent was entitled to have them given in the very language in which framed, subject to the sole proviso that the instructions stated the law correctly and that there was evidence to support them. We do not understand this to be the true rule. In Fisher v. People, 20 Mich. 135, it was held that the refusal of a specific request, although correct, is not error, if the written charge actually given fairly leaves to the jury the question substantially raised by the request. In Leonard v. Pope, 27 Mich. 145, it is said that it is not error to refuse to repeat, on separate requests, charges already fully given in an intelligible form. In People v. Marion, 29 Mich. 31, it is said that requests to charge may properly be declined where the points involved have already been covered. In Hoyt v. Jeffers, 30 Mich. 181, it was held that the .refusal of requests to charge is not error, where their substance is embodied in the general charge. In Sword v. Keith, 31 Mich. 247, it was held that a party is entitled to have specific charges upon the law applicable to each of the various hypotheses or combinations of facts which the jury, from the evidence, might legitimately find, and which have not been covered by other instructions. This rule has been followed in a multitude of cases. Indeed, it has been reiterated in almost every volume of our reports. Some of the later cases are O’Callaghan v. Boeing, 72 Mich. 669; Cooper v. Mulder, 74 Id. 374; People v. Jacks, 76 Id. 218; Babbitt v. Bumpus, 73 Id. 331; Shearer v. Middleton, 88 Id. 621; People v. Hubbard, 92 Id. 322; Stevens v. Pendleton, 94 Id. 405; Roux v. Lumber Co., 94 Id. 607; and Ellis v. Whitehead, 95 Id. 115. Language seemingly inconsistent with this rule must be field applicable only to the circumstances of the case in which used.

The circuit judge, upon his own motion, instructed the jury that, if they were satisfied from the testimony that Parsons and Knight were associated in planning and perpetrating the crime, that fact would not make Parsons the less guilty because Knight was guilty also. We think that the facts disclosed by the record fully justified this instruction.

The judgment is therefore affirmed.

Long, Montgomery, and Hooker, JJ., concurred. Grant, J., did not sit.

       See head-note 1 for a statement of what the record discloses.


author: Hooker, J.

text:
    Robert T. Gray v. Eugene H. Hill et al.

      Land contract — Foreclosure—Decree.
    The vendees in a land contract sold the land on contract, and the purchaser assigned his contract. The assignee contracted to sell the land, and, on default of payment by his vendees of an installment of the purchase price, filed a bill to foreclose his contract, and secured a decree for the payment by his vendees of the amount due thereon, and, in default thereof, a' sale of the land, subject to the amount to become due on said contract, which exceeded in amount the sum due on the two prior contracts, and for a report of the deficiency, if any. The defendants purchased with full knowledge of the state of the title, and were to receive a title whenever a certain sum should be paid. The contract contained no representation or agreement that the complainant should own the legal title before the time to convey the land should arrive. And it is held that there is no obstacle to the defendants’ being fully protected, either through payments upon the prior contracts, or by the court in proceedings to enforce the remainder of said purchase price.

      Appeal from Wayne. (Moore, J., presiding.)
    Argued April 2 and 3, 1895.
    Decided April 30, 1895.
    Bill to foreclose a land contract. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      Gray & Gray, for complainant.

      'F. U. Gan/ield and G. L. Canfield, for defendants.
   Hooker, J.

One Dagobert Juiff, being owner in fee -of the premises involved in this suit, subject to three mortgages, aggregating about $3,500, sold the same by land contract, on March 25, 1890, to L’Hommedieu and others for $18,000. Of this $3,000 was paid down, $5,000 was to be paid on or before the expiration of 5 years, and $1.0,000 on or before the expiration of 10 years; from the date of the contract. Juiff died early in 1892, leaving heirs. On September 10, 1892, L’Hommedieu and his associates entered into a contract with one Thuner, agreeing to sell and convey the premises to him, in consideration of $60,000, approximately. Of this, $1.0,000 was paid, and the balance deferred. November 2, 1892, Thuner assigned his contract to Cray, the complainant. Jn 1894 L’Hommedieu died, having devised all his property to his wife in trust. On January 16, 1893, the complainant entered into a contract whereby he'sold the premises to the defendants Eugene H. Hill and Charles T. Miller for $96,000. Of this, $18,000 was paid, and, upon failure to meet subsequent installments, this proceeding was instituted to foreclose and sell the defendants’ interest. The circuit court in chancery made a decree of foreclosure, requiring the payment of $14,758.37, which it adjudged to be due from these defendants to the complainant, and found that there was to become due from them to him upon said contract the further sum of $70,541.50, besides interest. The decree directed a sale of the premises, subject to the latter sum, in default of payment of the former, and directed a report of deficiency, if there should be any, upon such sale. From this decree the defendants appealed. ■

Seemingly the objection of the defendants to complainant’s having the relief asked arises from the fear that they will be called upon to perform their contract. Apparently they have no objection to the sale of the land, as they offered upon the hearing to convey to the complainant what interest they have in the premises, and tendered him a deed of the same. Ostensibly they fear that execution will be awarded and the money collected from them, and the complainant will afterwards fail to convey the land, because he has no title. We are cited to cases which hold that specific performance will not be awarded to a vendor where it is impossible for him to perform the contract upon his part, e. g., where he has-not a title to the premises; and it is urged that this complainant had no legal title when the contract was made, that he has not since acquired any, and that he has never tendered performance, or made any offer to do so. A bill filed stricth- fo,r specific performance usually asks a decree for the whole consideration, and the vendor, complainant, if he would have the entire consideration awarded to him by the decree, must be able to perform the contract. Where the consideration sought is the payment of money only, this proceeding amounts substantially to a foreclosure, as it gives the vendor a decree for money due by the terms of the contract, and, by sale of the equitable title of the vendee, subjects the premises to the payment of the same. This proceeding is favored, as it enforces no forfeiture. Counsel cite the following cases which fully sustain the proposition: Fitzhugh v. Maxwell, 34 Mich. 138; Day v. Cole, 56 Id. 294; Watrous v. Allen, 57 Id. 362; Field v. Ashley, 79 Id. 231; Walker v. Casgrain, 101 Id. 604. See, also, Land Co. v. Nichols, 81 Wis. 656; Holly Manufacturing Co. v. New Chester Water Co., 48 Fed. Rep. 879; Jones, Mort. § 236, and cases cited. The sale of the vendee’s equitable title, with decree for the deficiency; gives the vendor the benefit of Ms contract without depriving the vendee, through a forfeiture, of what he has paid upon it. The case of Walker v. Casgrain differed from this case in but one particular. In that case the vendor was owner of the legal title, while here the vendor is not in possession of the legal title. But in each case the vendee had an equitable title upon which the vendor had a lien, and no good reason is suggested why such lien should not be enforced against the vendee’s interest, such as it was, in either case. In this case the defendants contracted with full knowledge of the state of the title, and it is apparent that both parties expected that the several contracts would be performed according to their terms. The defendants’contracted to receive a title when $40,000 should be paid, and the contract contains no representation or agreement that the complainant should own the title before the time to convey should arrive. The decree in the case is for less than $15,000, and the "balance to become due exceeds the amount of the liens of the L’Hommedieu and Thuner contracts. There is no obstacle to the defendants being fully protected, either through payments upon these contracts, or by the courts in proceedings similar to this to enforce the payment of the remainder of the purchase price. A court of equity can do complete justice in such a case. See Land Co. v. Nichols, supra.

The decree of the circuit court will be affirmed, with costs.

McGrath, O. J., Grant and Montgomery, JJ,, concurred. Long, J., did not sit.


author: Grant, J.

text:
    Florence C. Daly v. The Detroit Citizens’ Street Railway Company.

      Street railways — Injury to person on track — Contributory negligence.

    1. The driver of a screet horse car has a right to suppose that a person working on the track will step out of the way. upon the approach of the car, and is under no obligation to slacken his laioful speed until he sees that such person is in danger.

      2. In a personal injury case it appeared that the plaintiff, who was employed to sweep a cross-walk over which three horse street car tracks passed, and who was familiar with the work and the situation, and knew that cars frequently passed on each track, continued his work, without looking for the approach of ears, until warned by a policeman of the approach of a car from the south, when he stepped back, so as to place himself between two of the tracks, which were about four feet apart, and was struck by the corner of a car coming from the north, and thrown down and injured. And it is held that it was the plaintiff’s duty to keep watch of the approach of cars, and that the accident was the result of his own want of proper care.
    Error to Wayne. (Donovan, J.)
    Argued April 3, 1895.
    Decided April 30, 1895.
    Negligence case. Defendant brings error.
    Reversed, and no new trial ordered.
    The facts are stated in the opinion.

      Russel & Campbell and A. C. Angelí, for appellant.

      B. T. Prentis, for plaintiff.
   Grant, J.

Plaintiff was employed by the city of Detroit to sweep the cross-walk at the intersection of Woodward avenue and Congress street. He was familiar with the work and the situation,- having frequently been employed in this work at this place. The street at this point was occupied by three tracks on Woodward avenue. Cars were frequently passing on each track, of which fact he was aware.. He stood sweeping on the easterly track, with his back to the south. A horse car was coming north on this track. Plaintiff continued his work, without looking for the approach of cars. A policeman standing in the street close by, seeing the car approaching, and that Daly was paying no attention, shouted to warn him. Plaintiff, instead of stepping to the east, stepped backward, to the west; thus placing himself between two tracks, which were about, four feet apart. A horse car going south on the second track had reached the place where he stepped back, so that he was struck by the front of ,the car, back of the platform, thrown down, and injured. Two grounds of negligence are alleged, viz., the employment of incompetent drivers and conductors, and want of due -care and caution in driving and passing on adjacent tracks. There was no evidence of the employment of incompetent servants.

No negligence was shown on the part of the defendant. Both the cars were being driven at the rate of speed provided by the ordinance. The driver of the car upon the track where plaintiff was at work had the right to.suppose that plaintiff would step out of the way upon its approach. He therefore was under no obligation to slacken his lawful speed until he saw that plaintiff was in danger. Plaintiff did get out of the way of this car in time. He testified that he did not know whether he stepped out of the way immediately when the policeman called to him, or whether he. stopped and gave another brush or two. The driver of the south-bound car, which struck him, even if he had seen him upon the other track, had no reason to suppose he was in peril, or that he would step back against his car to get out of the way of the other. The driver was past him when he stepped back, for he was struck by the corner of the car behind him.

It was the plaintiff’s duty to keep watch of the approach of cars, as he might readily do, and place himself out of danger. The accident was the result of his own want of proper care. The case is ruled by the following authorities: Kelly v. Hendrie, 26 Mich. 255;

Pzolla v. Railroad Co., 54 Id. 273; Gebhard v. Railway Co., 79 Id. 586.

Judgment reversed, and no new trial ordered.

McGrath, O. J., Montgomery and Hooker, JJ., concurred. Long, J., did not sit.