text:
    GEER v. MICHIGAN CENTRAL RAILROAD CO.
    •1. Carriers — Passengers—Transportation—Train Schedules —Failure to Maintain — Penalties.
    A carrier is not liable, under section 6235, 2 Comp. Laws, for the penalty provided for failure to transport a passenger, where the train for which the ticket was sold had been discontinued and proper notice given, and the mistake of selling a tioket for it was the error of the local agent, who sold the ticket.
    '2. Same — Countermand of Schedule — Instructions.
    As determining the liability of a carrier for the penalty prescribed by section 6235, 2 Comp. Laws, for failure to transport a passenger, a public countermand of the schedule announcing the train for which the ticket was sold, issued 10 days before the sale, is a defense, and an instruction is erroneous which permits the jury to say whether such countermand was made a reasonable time before the sale.
    ¡3. Same — Working Time-Table.
    A working time-table, issued for employés alone, and not in.tended for the information of the public, nor as an advertisement of the time or hours of any train, and which the railroad company reserves the right to vary from at pleasure, is not for the information of the public, and any information which a passenger may obtain from it, either directly or by statements made from it by the company’s agent, cannot be considered in determining the company’s liability under the statute (§ 6235, 2 Comp. Laws) for failure to transport.
    Error to Berrien; Coolidge, J.
    Submitted November 10, 1905.
    (Docket No. 119.)
    Decided December 30, 1905.
    Debt by Florence Geer against the Michigan Central Railroad Company for failure to transport, under 2 Comp. Laws, § 6235. There was judgment for plaintiff, and defendant brings error.
    Reversed.

      G. M. Valentine and Humphrey S. Gray, for appellant.

      John J. Sterling and Oady & Andrews, for appellee.
   Montgomery, J.

This is a companion case to that of Van Camp v. Railroad Co., 137 Mich. 467. The statement of facts in that case, so far as it relates to the case made by the plaintiff, will answer for a statement here. On the trial of the present case, however, the defendant introduced the testimony of its division superintendent and of its agent at Ypsilanti, his assistant, tending to show that the published time-card, which was intended to take effect on the 14th of J une, and which showed a train from Kalamazoo to South Haven at 4:45 was canceled by telegram from the division superintendent to the agent at Ypsilanti, and a new time-card issued, and that the only printed matter before the agent who sold the ticket to plaintiff which showed such a train as the one in question was the working time-card intended for the employés alone. The plaintiff recovered, and the defendant brings error.

The law of this case was settled in Van Camp’s Case, supra. From a perusal of that case it will be seen that, if the mistake in selling this ticket for use on a train which had been discontinued and proper notice of its discontinuance given was the error of the local agent who sold the ticket, no recovery can be had under this statute. The defendant claimed on the trial that the testimony of defendant’s witnesses conclusively established such a state of facts. With some hesitation we have reached the conclusion that, while the testimony is quite persuasive, it is not so conclusive as to justify the withdrawal of that question wholly from the jury. The telegram to the local agent was not produced, and there was some discrepancy in the statements of the witnesses. If the question were before us on review of a decision of a motion for á new trial, other considerations might be open.

The defendant asked two instructions, as follows:

“ If defendant company by its proper department and proper officers gave its agent at Ypsilanti notice of the change of poster on or before June 14, 1903, then the plaintiff cannot recover.
‘ ‘ The working time-card, so called, was not for the information of the public, and any information which plaintiff may have obtained from it, either, directly or by statements made from it by defendant’s agent, does not bind the defendant in this action, and such information or statements cannot be considered by you in determining your verdict.”

The first of these instructions was modified by inserting the words “a reasonable time” before the word “on,” and substituting “June 24th” for “June 14th;” thus leaving the jury to pass upon the question of what countermand of a time-table would be reasonable. This was error. If the countermand was given before the 14th, the day on which the schedule was originally designed to take effect, the company was not liable to a penalty for a failure to run its train according to an absolute schedule 10 days later; nor was it open to the jury to find such countermand unreasonable.

Perhaps the most damaging error, and the one which may account for the verdict, was the failure to give the second request above quoted. When taken in connection with certain remarks of the trial judge during the trial, the refusal of this request would leave the jury to understand that, if the agent was misled into selling the ticket to plaintiff through having referred to the working timetable, the defendant was liable to this penalty. The evidence all shows that this working time-table was designed for the use of employés alone, and not intended for use in furnishing information to the public. It was the duty of the agent to keep posted the latest public time-table in the waiting room and in his office, and from these tables the information to be furnished the public was to be derived. On the face of this working time-table was printed these words:

“ This time-table is in no case intended for the information of the public, nor as an advertisement of the time or hours of any train. The company reserves the right to vary from them at pleasure. It is for the information of employés only.”

The request should have been given. See Beauchamp v. Railway Co., 56 Tex. 239; Denver, etc., R. Co. v. Pickard, 8 Colo. 163.

The judgment is reversed, and a new trial ordered.

Moore, C. J., and McAlvay, Ostrander, and Hooker, JJ., concurred.


source: Caselaw Access Project

author: Ostrander, J.

license: Public Domain

text:
    JORDAN v. THORP.
    Highways and Streets —Sidewalks —Rights of Abutters — • Ownership of Fee.
    The removal by city authorities of a cement sidewalk which has been built by the city in front of plaintiff’s property is an actionable trespass, though plaintiff has procured a decree vacating the special assessment levied against the property for its cost.
    Error to Bay; Shepard, J.
    Submitted November 14, 1905.
    (Docket No. 128.)
    Decided December 30, 1905.
    Trespass quare clausum fregit by Andrew Jordan against William H. Thorp. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Fred W. DeFoe (M. L. Gourtright, of counsel), for appellant.

      S. 6r. Houghton (Lee E. Joslyn, of counsel), for appellee.
   Ostrander, J.

The city of West Bay City constructed a cement sidewalk in the street in front of plaintiff’s lot and levied a tax therefor, which, upon objection by plaintiff in proceedings for a decree against the lot, was held void. Thereupon defendant, street commissioner of the city, removed the walk and laid it in front of other property. The fee of the street is, by the terms of the dedication of the plat, in the city. The dedication is claimed to be ineffectual to convey such fee title. Plaintiff sued defendant in trespass, alleging that on May 1, 1904, and on divers other days between that day and commencement of suit, defendant with force and arms entered upon lands of the plaintiff, of which, subject to an easement in the public, he was owner in fee, and broke, tore up, and carried away the sidewalk. With the plea, notice was given that whatever defendant did was done in his official character and under instructions from the city, and that plaintiff owned neither the land nor the sidewalk. The case coming on for trial in the circuit court, a verdict for defendant was directed.

There are 14 assignments of error, the only one relied upon being the last, which is that the court erred in directing a verdict for defendant. The testimony offered on the part of plaintiff tended to show that, finding the street commissioner engaged in breaking the walk into sections and preparing to remove it, plaintiff interfered. After consultation, the walk was so replaced that plaintiff could use his premises, and the agreement reached that nothing further be done until after action by the council. Plaintiff explained that if some responsible party undertook to remove the walk he should not resist. At the next meeting of the council, which was April 18, 1904, the commissioner (defendant) was instructed to remove the walk and place it in front of city property. It was after-wards, and on or about April 20th, that the walk was taken away. '

It is said by counsel for defendant that, independent of other considerations, judgment must stand, because, under the declaration, plaintiff could show but one trespass prior to May 1st. Gilbert v. Kennedy, 22 Mich. 5; McDiarmid v. Caruthers, 34 Mich. 49. Having shown two, and refusing to elect upon which to stand, no verdict could be entered for plaintiff. In reply it is said that counsel requested the court to permit them to amend the declaration so as to allege a trespass on April 1st, with continuendo. The matter of the amendment was disposed of finally in the following manner:

Mr. Joslyn: We ask counsel for the plaintiff to now elect whether they will claim a trespass under date of April 18th, before the meeting of the common council, or about April 22d, after the meeting of the common council.
Mr. Courtright: We go on the theory that the decíaration is treated as amended, and the date May 1st is April 1st.
The Court: No, I have not ruled on that yet. I think I will let you stand on the one trespass previous to the 1st of May. It is a question of discretion, and I question very much whether the case would warrant an amendment. The testimony is all in, and if the Supreme Court shall say that there ought to be an amendment they will treat it so, and make the amendment accordingly. (Exception taken.)
“Mr. Joslyn: Which date do you claim under the trespass, prior to the meeting of the council on April 18th or after ?
“Mr. Courtright: We claim you cannot compel us to elect.”

The court disposed of the case for reasons indicated by the following excerpt from his charge:

“The plaintiff suffered no damage. He paid no money for it. He protested against its being built; declared he would not pay for it, practically determined and declared it was of no benefit to his property, and had never in any way or in any.manner expended anything upon th,e walk. If the city had laid that walk, or a pavement along in front of that property in the street, outside of the sidewalk line, or built any structure in the street there of its own volition and without the concurrent desire of the property owner, they would be entitled to remove any such structure that they had built.”

The declaration charges, and the proof was directed, so far as a recovery was concerned, to a single trespass, which took place when the sidewalk was torn up and carried away. Upon the authority of Rogers v. Randall, 29 Mich. 41, it was error for the court to direct a verdict for defendant. The case should have been submitted to the jury, with proper instructions upon the subject of damages.

Judgment is reversed, and a new trial granted.

Grant, Blair, Montgomery, and Hooker, JJ., concurred.


author: Blair, J.

text:
    GODDE v. MARVIN.
    1. Insane Persons — Judgment—Equitable Relief.
    A default judgment against an insane person under guardianship, founded on personal service on him’, no notice of the suit being brought to his guardian or his heirs until after his death, will be vacated where it appears that the statute of limitations was a complete defense to the suit.
    2. Limitation of Actions — Accommodation Indorser — Renewal of Period.
    The mere presence of an accommodation maker, when the maker pays interest on a note, will not keep the demand alive as against the accommodation maker.
    Appeal from Kalamazoo; Adams, J.
    Submitted November 16, 1905.
    (Docket No. 139.)
    Decided December 30, 1905.
    Bill by George F. Godde, administrator of the estate of Richard D. Gregory, deceased; and others against Henry M. Martin and another to vacate a judgment. From a decree dismissing the bill, complainants appeal.
    Reversed, and decree entered for complainants.

      A. M. & O. H. Stearns, for complainants.
    D. O. French, for defendants.
   Blair, J.

The bill in this case is filed to vacate a judgment recovered against Richard D. Gregory in his lifetime upon a promissory note executed by said Gregory and his brother, Enoch, April 19, 1892, due one year after date. -The note was made entirely for the benefit of Enoch, who received and used the money borrowed. On April 19,1894, Enoch paid the interest to date, which was indorsed upon the note. On January 26, 1898, the probate court for Kalamazoo county duly adjudged Richard D. Gregory to be an insane person, and he was admitted to the asylum for the insane. On March 25, 1898, said court, determining that said Gregory was an insane and mentally incompetent person, duly appointed one Charles C. Wood to be guardian of his person and estate. Richard D. Gregory continued to be insane and mentally incompetent, an inmate of the asylum and under guardianship, to the day of his death. Henry M. Marvin, the payee in the note, knew of the mental condition of Richard D. Gregory and that he was under guardianship, and had talked with the guardian about the note before bringing suit thereon. On April 17,1900, Marvin brought suit on the note against Richard and Enoch. The summons was served on Richard at the asylum. No guardian ad litem was appointed, nor was the court acquainted with the fact that Richard was insane, and incompetent mentally to defend the suit. None of the heirs was notified, nor was the general guardian, and none of them knew of the suit or that a judgment had been rendered until after the death of Richard, September 9, 1903, and the appointment of an administrator on the 21st day of January, 1904, who filed the bill of complaint herein March 14, 1904. The declaration in the suit on the note was filed July 2, 1900, and on the same day default was entered as to both defendants. On December 4, 1901, anexecütion levy was made upon the homestead of said Richard, consisting of 73 acres, of the value of about $3,000.

It was conceded upon the argument that equity has jurisdiction of a suit of this character, and that the sole question for our determination was whether such injustice had been done as to authorize a court of equity to set aside the judgment of the court of law.

“ It is well understood that before a chancery court will interfere with a judgment at law it must be made very clearly to appear that an injustice has been done.” Mueller v. Marsh, 116 Mich. 375.

See, also, Finn v. Adams, 138 Mich. 258. The only defense which Richard D. Gregory had was the statute of limitations, but this was an absolute defense, which precluded any recovery whatever. As between himself and his brother, it was Enoch’s duty to pay the note, and he was an accommodation maker. By the proceedings taken he was deprived of a statutory protection which would have saved him harmless, and it would be a strange doctrine that should announce that such deprivation of statutory rights worked no injustice in the view of a court of equity. Upon the testimony in the record before us, if Richard D. Gregory had been represented and had properly presented his defense of the statute of limitations, the court must have directed a verdict in his favor. Enoch Gregory testified that he paid the interest when his brother Richard was not present, and that Richard had nothing to do with the payment whatever. The only testimony given in behalf of the plaintiff was that of Mr. Rorabeck, an employé of Marvin, as follows:

Q. Now, there is an indorsement on the back of $40 ?
“A. Yes; that is the interest for two years. It seems to be dated as paid at the end of just two years.
Q. Were you present when that interest money was paid ?
“A. I must have been, as that indorsement on the back is in my handwriting. I think they both came to the bank. I think Enoch paid the money. That is my impression, that they both came down. It is the best of my recollection that Richard was with him.”

The most that can be claimed for this testimony is that it shows that Richard was present when Enoch paid the money. The mere presence of Richard when the interest was paid was not sufficient to keep the demand alive as against him. Mainzinger v. Mohr, 41 Mich. 685; Home Life-Ins. Co. v. Elwell, 111 Mich. 689; Borden v. Fletcher’s Estate, 131 Mich. 220.

As we are satisfied that a trial of the suit at law must result in a judgment in favor of complainants in this suit, a decree will be entered vacating the judgment in that suit as to Richard D. Gregory, and avoiding all proceedings thereunder, or in enforcement thereof, as against him or his estate. Complainants will recover their costs in both courts.

Grant, Montgomery, Ostrander, and Hooker, JJ.¿ concurred.


author: Montgomery, J.

text:
    PINCH v. HOTALING.
    1. Witnesses — Cross-Examination—Explanation of Testimony.
    Where, in an action for deceit in an exchange of properties, plaintiff claims that defendants fraudulently represented that the property given by them in exchange, which was a hotel, was rented, and in support of his claim calls an alleged lessee, who testifies that the lease signed by him was a mere pretense and not intended to be binding, it is proper for defendants to ask the witness on cross-examination, and as bearing on the purpose of making the lease, if officers were not looking up evidence to prosecute for a violation of the liquor law and the statute against gambling.
    2. Fraud — Actions—Evidence.
    Where, in an action for deceit in an exchange of properties, plaintiff is permitted to testify fully as to the representations made by defendants and to his reliance thereon, it is not error to refuse to permit him to state why he made the exchange.
    '3. Same — Statements of Conspirators.
    In an action for deceit in an exchange of properties, a question asking plaintiff whether he relied upon the statement of a certain person as to the rental value of the property should be permitted, where there is evidence sufficient to jusify submission to the jury of the question whether the person making the representations was not in conspiracy with defendants; but the error of excluding the question is harmless where plaintiff testifies that he relied upon defendant’s representations, made through fictitious leases, as to the rental value of the property given by defendants, which representations corresponded with the rental stated by the alleged conspirator.
    4. Same — Misrepresentations—Statements as to Value.
    False statements of value intentionally made to one who is in ignorance of the quality and value of the property concerning which the statements are made, under circumstances indicating a purpose that such statements are to he relied upon, and, where the party to whom they are made has no opportunity to examine the property himself, may be treated as an affirmation of fact and fraudulent.
    5. Same — Sufficiency of Proof — Substance of Issue.
    All the false represenations, imputed to the defendant in an action for deceit, need not be established.
    Error to Barry; Smith, J.
    Submitted November 16, 1905.
    (Docket No. 140.)
    Decided December 30, 1905.
    Assumpsit by Benjamin W. Pinch against George W. Hotaling and Thomas H. Fitzgerald to recover money obtained by fraud and deceit. There was judgment for plaintiff for less than the amount claimed, and he brings error.
    Affirmed.

      J. M. Powers and Thomas Sullivan, for appellant.

      George A. Lambert and Colgrove & Potter, for appellees.
   Montgomery, J.

In 1903 the defendants were the owners of a hotel in Niles, called the •“ Michigan Inn,” subject to a mortgage of $10,000. The plaintiff was the owner of 375 acres of land in Barry county, and 80 acres in Carp Lake township, in Emmet county. An exchange of plaintiff’s property for that of defendant was effected. Plaintiff brought this action, basing it in the main upon section 10421, 3 Comp. Laws, authorizing an action of' assumpsit for fraud and deceit. The defendant replied, charging plaintiff with fraud and deceit in making representations relating to the Carp Lake land. On a trial before, a jury, in which both claims were submitted, the plaintiff recovered a verdict and judgment of $75. The plaintiff brings the case here for review on error, assigning error on certain rulings relating to the introduction of testimony, to refusals of certain requests, and to the charge of the court as given.

It was the claim of plaintiff that the defendants had represented to plaintiff that the hotel was rented, the main part to one Fahnestock and the .clubroom (so called) to one Bair. Bair was called as a witness to testify that the lease signed by him was a mere pretense, and not intended to be binding upon him. On cross-examination he ‘was asked if at that time it was not understood that the officers were looking up evidence to prosecute for violation of the liquor law and the statute against gambling. An affirmative answer to this question was received against the plaintiff’s objection. This was proper cross-examination. It bore upon the purpose of making this lease.

Plaintiff was asked to state the reason why he made the exchange. He was not permitted to. answer this question in this form, but was permitted to testify fully as to the representations made by the defendants, and to the fact that he relied upon them. This was all that he was entitled to. ■

One E. D. Miller appears to have been interested in the trade between the parties. His ostensible interest arose out of his desire to become a tenant of Pinch in case the deal was consummated. He was a hotel man.

The plaintiff’s theory on the trial was that Miller was in conspiracy with defendants. The defendants’ theory was that Miller was employed by plaintiff. Plaintiff was asked whether he relied upon Miller’s statement as to the rental value of the property. The testimony was excluded. There was perhaps enough to justify the submission of plaintiff’s theory as to Miller’s connection with the deal to the jury, and, this being so, we are of the opinion that an answer to this question should have been permitted, but we are also of the opinion that its exclusion was harmless error. The plaintiff had already testified that he relied upon the defendants’ representations made through these fictitious leases. The rental fixed by these leases corresponded precisely with Miller’s estimate, so that if the plaintiff’s testimony was credited at all, as it apparently was on this point, the jury must have found without the necessity of repeating’ the testimony that plaintiff was deceived as to the rental value to the extent that it was untrue. The other rulings need not be separately considered.

The questions of most importance presented are those which relate to the defense of recoupment allowed on account of the representations relating to the Carp Lake land. The defendant introduced (subject to objection and exception by plaintiff) testimony that during the negotiations plaintiff represented to the defendant that the Carp Lake land was worth $1,500 to $2,000, that defendants relied upon this representation, and that in fact it was worth not to exceed $250.

Plaintiff requested the court to instruct the jury that— '

“ Where parties are negotiating for an exchange, mere expressions of opinion or statements as to the value of their respective properties cannot be considered as a guaranty for such value, and a statement made by Mr. Pinch, if he did make such a statement, that the Emmet county land was worth $1,500 or $2,000, would be a mere expression of opinion, and would not be such a false and fraudulent representation as would entitle the defendants to recover.”

The court refused this instruction, and charged the jury as follows:

“As to the Carp Lake land, you may consider the evidence as to its condition and value, and determine whether any false representations were made regarding it or not which defendants believed and upon which they relied because that farm was not seen, and the defendants had the right to rely upon what was said.”

This was amplified by stating:

“This land was situated a considerable distance fro„m the residence of these ^parties, and it is claimed by the defendants that they relied upon his representations as to the value of this 80 acres of land. I instruct you if you shall find that Mr. Pinch fraudulently represented to the defendants the value of the 80 acres of land in Emmet county, and the defendants relied upon his representations as to the value of this '80 acres of land, and believing the representations made by him to be true, and have been defrauded, then it is for you to say by your verdict the amount of damages sustained by the defendants in this case by reason of such false and fraudulent representations alleged to have been made to them by the plaintiff.”

It will be seen that the trial judge made the question turn upon the plaintiff’s fraud.

The contention made is that the statement of value was a mere matter of opinion, and cannot be made the basis of an action for fraud. This is a statement of the general rule, but the rule established by the weight of authority is that false statements of value intentionally made to one who is in ignorance of the quality and value, under circumstances indicating a purpose that such statements are to be relied upon, and where the party to whom they are made has no opportunity to examine the property, may be treated as an affirmation of fact and fraudulent. See 14 Am. & Eng. Enc. Law (2d Ed.), p. 125; Simar v. Canaday, 53 N. Y. 298; Cressler v. Rees, 27 Neb. 515; Hedin v. Surgical Institute, 35 L. R. A. 427, note (62 Minn. 146); Collins v. Jackson, 54 Mich. 186; Maxted v. Fowler, 94 Mich. 109; 16 Cyc. p. 749. While it might have been better to put before the jury a little more clearly the circumstances under which an expression of opinion would be actionable, it was stated that the representation must have been fraudulently made, and the jury doubtless understood from this that it must have been made by plaintiff knowing it ‘to be false, and intending defendants to rely upon it. It was beyond dispute that the land was at a distance, and that defendants were not understood by plaintiff to have any knowledge of its Value from other sources. The jury could not have been misled.

It is further pointed out that the defendants’ plea set up that plaintiff represented that the Carp Lake land had growing upon it 1,000,000 feet of merchantable saw timber, as well as that it was represented to be worth $1,500, and that plaintiff also agreed to deliver to defendants certain personal property which was not delivered, and concludes with a claim for damages resulting therefrom. And it is contended that, as the defendants proved only the false representation as to value, their recoupment must fail; citing Wormsdorf v. Railway Co., 75 Mich. 472. That case’ has been frequently misunderstood. It has been pointed out that in that case the acts which it was held essential to prove were dependent. Thayer v. Railroad Co., 93 Mich. 150. The case is not authority that all negligent acts charged in a declaration must be proved. Much less is it an authority for the proposition that all false representations imputed to a defendant must in an action for deceit be established. The other questions presented have been considered.

We discover no prejudicial error, and the judgment is affirmed.

Moore, C. J., and McAlvay, Grant, and Ostrander, JJ., concurred.


text:
    PEOPLE v. DIETERICH.
    'Intoxicating ’Liquors — Offenses—Information—Selling without License — Variance.
    On a prosecution for engaging in the business of selling intoxicating liquors without having paid the tax, the people are not limited to the precise date laid in the information.
    Exceptions before judgment from Emmet; Shepherd, J.
    Submitted November 16, 1905.
    (Docket No. 238.)
    Decided December 30, 1905.
    Gottlieb Dieterich was convicted of violating the liquor law. ’
    Affirmed.

      M. F. Guinon, for appellant.

      Wade B. Smith, Prosecuting Attorney, for the people.
   Montgomery, J.

The principal question in this case is whether the court ought to have charged that the jury must acquit the respondent, unless they were satisfied beyond a reasonable doubt that on the 11th day of October, 1904, the respondent was engaged in the business of selling intoxicating liquors by retail, without having paid the tax required by law to be paid upon such business; the 11th day of October being the date alleged in the information as the time when the offense was committed.

Defendant’s counsel contended below, and contends here, that the prosecution was limited to the precise date named in the information. The circuit judge held otherwise. In this no error was committed. People v. Ten Elshof, 92 Mich. 167.

Complaint is also made of the admission of proof of previous sales to establish a substantive offense. The answer to this complaint is that the record very clearly shows that the testimony was not received by the court or tendered by the prosecutor as proof of a substantive offense. No error appears.

Judgment is affirmed.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.


text:
    PEOPLE v. FOX.
    1. Information — Escape —Variance—Amendment—Statute.
    Where an information, under section 11315, 3 Comp. Laws, charges respondent with conveying into the jail a weapon, adapted to aid in the escape of a prisoner confined on a charge of burglary, and it appears that the prisoner was confined on a charge of statutory breaking and entering, the variance is a technical one which may be cured under the statute of amendments, section 11922, 3 Comp. Laws.
    2. Escape — Prosecution — Evidence — Matters Subsequent to Offense.
    On a prosecution for conveying into jail a weapon adapted to aid a prisoner to escape, the files and proceedings in the prosecution of the person alleged to have furnished the weapon, and in the prosecution of the prisoner for attempted murder in the effort to escape, are not admissible against respondent, such proceedings occurring long after his offense was complete, and he not being a party to them.
    3. Criminal Law — Instructions.
    'A request to charge, assuming that a witness has changed his testimony from that given on a previous trial, without giving a reason for it, is properly refused, where, in fact, he did give a reason.
    Exceptions before judgment from Ottawa; Padgbam, J.
    Submitted November 16, 1905.
    (Docket No. 245.)
    Decided December 30, 1905.

      John Fox was convicted of carrying into a jail a weapon adapted to aid a prisoner in escaping.
    Reversed.

      Smedley & Corwin (Diekema & Kollen, of counsel), for appellant.

      John E. Bird, Attorney General, and George A. Farr, Acting Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of the offense of conveying into a jail a weapon adapted to aid a prisoner in escaping, in violation of section 11315, 3 Gomp. Laws. The information charged that the prisoner named was confined in the county jail upon a charge of burglary. This was not tehnically accurate, as the prisoner in question was awaiting trial for feloniously breaking and entering a blacksmith shop in the night-time with intent to commit larceny. It is claimed that the variance was fatal. The word “ burglary” has been frequently used by the courts to designate such a statutory breaking. And it is argued with some plausibility that, as the gist of the offense is the furnishing of the ineans of escape to a prisoner, the information is sufficient which sets out the gist of the offense in detail, and designates the offense for which the prisoner it held by a term commonly applied to it, and that such designation could not mislead the accused. Without deciding that this variance is entirely immaterial, and withholding our decision on that point, we are agreed that the technical variance can be avoided by an amendment of the information under section 11922, 3 Comp. Laws, and as the case must be reversed on other grounds we find it unnecessary to decide this doubtful question.

The theory of the prosecution was that one Wierda had procured a revolver at respondent’s request, which was by him turned over to the prisoner Harris. On the first trial of the present case Wierda gave testimony favorable to respondent. On the second trial he testified to the facts as claimed by the prosecution. He had in the meantime pleaded guilty to the charge of furnishing this weapon with intent to aid in Harris’ escape. The files and proceedings in the prosecution against him, and also the files and proceedings in a prosecution against Harris for attempted murder while in an effort to escape, were received against respondent’s objection. We know of no rule which will justify these rulings. The proceedings were taken after the offense charged against respondent was complete if one was committed. Respondent was no party to the proceedings, and could not be bound by them.

The defendant’s request to charge was properly refused, for the reason that it assumed that the witness Wierda had changed his testimony without giving any reason, when, in fact, he did give a reason. The charge was fair, and not subject to the criticism made.

For the error pointed out, the conviction is reversed, and a new trial ordered.

Grant, Blair, Ostrander, and Hooker, JJ., concurred.