author: McGrath, O. J.

text:
    PEOPLE v. SEAMAN.
    1. Criminal Law — Intent—Proof of Other Offenses.
    While it is a general rule that, on a trial for a felony, the prosecution will not he permitted to give evidence tending to prove the respondent guilty of another distinct and independent felony, still, where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or the result is claimed to have followed an act lawfully done for a legitimate purpose, or there is room for such an inference, it is proper to characterize tile act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain.
    2. Same — Abortion.
    Thus, on a prosecution for manslaughter in committing an abortion, where the proof of guilt is circumstantial, the theory of the defense being that the premature birth was due to accidental causes, evidence that the respondent had performed other abortions in the same house is admissible to show guilty knowledge and intent.
    3. Abortion — Trial—Election of Counts.
    Where an information for manslaughter in procuring an abortion contains three counts, charging, respectively, the use of drugs, the use of an instrument, and the employment of means unknown, an election by the prosecution of the count relied upon for a conviction, made upon the submission of the case to the jury, sufficiently protects the rights of the respondent.
    4. Same — Sufficiency of Evidence.
    Evidence reviewed, and held to be sufficient to support a conviction.
    5. Same — Evidence.
    In a prosecution for manslaughter, by abortion, evidence that, after the death of the woman, a registered letter was delivered at the place where she was staying, containing a money order payable to her order, that respondent indorsed the order in her name, and that the money was obtained thereon, is admissible to show that the statements made by the respondent in a death certificate subsequently issued by him, giving another name for the deceased, were knowingly false.

      <8. Same — Instructions to Jury.
    In. such a case, the refusal of an instruction that, if the jury believe that the deceased aborted from natural causes, or by reason of the ordinary sickness and vomiting, augmented by the sickness and vomiting of a sea voyage, together with nervous excitement, fatigue, lack of nourishment, and change of climate, respondent should be acquitted, is erroneous, where there is evidence in support of such theory.
    7. Same — Expert Testimony.
    An instruction in such case that the testimony of expert , witnesses is exposed to a reasonable degree of suspicion, and that, by giving too much weight thereto, juries have been induced to render unwarrantable verdicts, is reversible error, where, the respondent relied upon such testimony to support his theory that death resulted from natural causes.
    8. Expert Witnesses — Credibility.
    While the testimony of experts is not always the most reliable, and, comparatively, it has been held to have little value, such witnesses are to be judged from the same standpoint as other witnesses, and the fact that they are employed, or that they differ in their conclusions, does not justify the assumption, as a matter of law, that their testimony is open to suspicion.
    9. Secondary Evidence — Instrument Beyond Jurisdiction op Court.
    Parol evidence is. admissible to show the nature of a cablegram which is without the jurisdiction of the court, efforts having been made to obtain it.
    10. Common-Law Marriage — Validity.
    A marriage contract, without ceremony, cannot be valid if a ceremonial marriage would be unlawful under the same circumstances, as where one of the parties has a husband or wife living.
    Exceptions before judgment from recorder’s court of Detroit; Chapin, J.
    Submitted November 22, 1895.
    Decided December 10, 1895.
    Dennis 3. Seaman- was convicted of manslaughter.
    Beversed.

      Fred H. Warren and Leri J. Fielc, for appellant.

      Allan E. Frazer, Prosecuting Attorney, and Ormond F,

      Hunt, Assistant Prosecuting Attorney, for the people.
   McGrath, O. J.

Respondent was informed against, jointly with one Alice Lane, under 2 How. Stat. § 9107, for manslaughter. He demanded and had a separate trial. The first count charged the use of drugs, the name and component i>arts of which are unknown; the second charged the use of an instrument, the name of which is unknown; and the third charged the employment of means, the nature of which is unknown.

The testimony for the people tended to show that Emily Hall went to the house of Alice Lane about midnight of January 23,1895; that on Tuesday, January 29th, she was delivered of a foetus four to six months gone; that on Sunday, February 3d, she died; that her body was removed at midnight, Sunday night, to an undertaker’s; that it was then placed on the cooling board and embalmed; that the body was not buried, but remained at the undertaker’s for over two months; that a reporter for one of the daily papers discovered its presence there, the attention of the authorities was called to it, and on April 15th a coroner’s inquest was held, resulting in the arrest of the parties charged. The testimony further tended to show that Emily Hall came from England; that she came to Detroit upon a pre-arrangement made by one Jonathan Bell; that upon her arrival in Detroit she went direct to the Lane house; that Dr. Seaman was informed of her arrival on Friday, January 25th; that he visited her from time to time until her death; that he was present from 9 o’clock in the morning on Sundáy, February 3d, until after her death; that he went personally to the undertaker’s office, and arranged for 'her burial; that he accompanied the undertaker to the house, obtained the body by way of the alley in the rear of the house, and returned with the undertaker and the body to the undertaker’s place of business; that he made out and gave to the undertaker the required death certificate, which' gave the name of decedent as Myrtle Cook, her birthplace as New York, the cause of her death as pneumonia, the duration of her disease as one week, the place of death as 608 Piquette avenue, Ninth ward. Deceased had not been known by any one at the house or elsewhere by the name given, and she died at 630 Lincoln avenue. That' after the discovery of the body at the undertaker’s, respondent told two reporters that at 6 o’clock on Sunday evening, February 3d, a strange gentleman called at his office, and requested him to visit a lady who was very sick with pneumonia; that he asked the stranger why he did not call his family physician, and he-’ said he had discharged him; that he finally consented to go; that the stranger called a hack, and he went with, him, and found the lady so ill that respondent told the-stranger that she would die that night; that the stranger-called the next day, and represented that the girl’s name was Myrtle ‘Cook, and he signed the certificate of death.

It further appeared that, before the inquest, respondent tried to prevail upon the coroner not to hold an inquest, claiming that it was unnecessary; that, at the time of respondent’s arrest, there were found secreted upon his person a number of letters from Bell, in England, addressed to Emily Hall, en route to Detroit, and-at Detroit; that these letters were in the handwriting-of Jonathan Bell; that said Bell had, a short time previously, visited this country, and had spent some time in Detroit. The letters contained explicit directions as to the Lane house; the decedent’s condition; referred to an advertisement of the house in one of the Detroit papers; to the fact that deceased could submit to an immediate-removal of the child, or could remain there until the natural course of events; to her expenses; and to remittances for the home voyage after the event. One of the letters contained a copy of a letter from Alice Lane, proposing to give board, room, medical attendance, etc., from time of arrival, for $50. “Adoption fee, if born outside of our hospital, and we take it in, «$25 cash. We also will treat you, if you are not too far gone, perfectly safe, for the same money. Will only require you here about ten days for the treatment.” It also appeared that, after the death, a letter came to the Lane house, addressed to Emily Hall, inclosing a draft payable to the latter’s order; that this draft was taken to respondent, ,and he indorsed the name of “E. Hall” thereupon, and the Lanes obtained the money thereon, and, by arrangement in which respondent took part, a messenger was sent to Buffalo to send from there a cablegram to Bell ■in England, and such cablegram was sent; that, before the coroner’s inquest, a written statement was prepared by respondent, giving a theory of Emily Hall’s appearance at the Lane house, setting forth that she came there before the holidays, and that the child was born alive, and was given to one of the inmates of the house; that this statement lyas submitted to Alice Lane, Herman B. Lane, and Bose Byan (the latter, one of the inmates of the Lane household), as the story which was to be told at the inquest, and the suggestions were followed out.

At the inquest, respondent was sworn, and testified that he first saw Myrtle Cook some time before Christmas at his office; that she then told him she was pregnant; that she asked him if he could refer her to some place where she could be kept; that he asked her how much money she had, and, on learning the amount, he told her that the sum was insufficient; that he asked her to call again; that in the meantime he saw Mrs. Lane, and when the patient called he directed her to Mrs. Lane’s; that he did not see her again till January 6th, when he was telephoned for and visited her, delivering her of a full-grown, nine-months child; that he called three successive days afterwards, and left her doing well; that about 10 days afterwards he was again telephoned, and went up, and found that she had a light attack of grippe; that he did not call again for some days, but was sent for a few days bfefore she died, and continued to attend her until her death, which was caused by pneumonia and heart failure. On being questioned relative to his statements made to the reporters, he said:

“The reporter Schmedding was the first. I don’t know him. He wore glasses. Came and asked me some questions. I told him what I felt like telling him. I told him lies, because it was none of his business. I told the officers the same as I told him. I thought it was none of their business, and nobody’s business.
“Q. The officers of the law, who are here to protect the lives and property of the people, — it was none of their business?
“A. Certainly not. No one could compel me to tell ' them.
“Q. How did you come to put G08 Piquette avenue on there?
“A. At 'Mrs. Lane’s suggestion. I asked what the alley behind the house was, — about opposite what number it would come, — and she said 608 would be about, and we just guessed at it. I knew this place was not 60S Piquette avenue. I knew it was false when I signed it. I filed it in the health office, and it was accepted. They didn’t know the difference, so far as I knew. Myrtle Cook didn’t tell me she was 31 years old. We just made a guess about that; at least, I think it was a guess. I didn’t say she came to my office the day before Christmas ; it was some time before Christmas, and this was the first I ever saw of her. I know nothing about her relatives or friends, and have learned nothing since. Somebody — I think it was Mrs. Lane — told me she had been at Bay City. I put down place of birth of deceased, New York, because I didn’t- know what else to put down. I don’t know how the Ninth ward came in there. That is a clerical error.
“Q. Wouldn’t that help to deceive still more?
“A. Why, no, if they were very cute in the health office. I gave the officers a bluff answer as to where this place was. I didn’t tell them whether it was east or west. I didn’t because I didn’t know. I did give the reporter a stiff about going out in a coupé, and I didn’t know where I was going.
“Q. Didn’t you say they had their family physician, and you only went up there — •
"A. (interrupting). I admit the whole thing on that occasion was a stiff and a bluff. I had a right to bluff them, if I felt so inclined.
“Q. Do you think you have the right to make a false report to the health office of the city?
“A. Certainly, I knew it.
“Q. You think you had the right to make a false certificate?
“A. If I wanted to.
“Q. Didn’t you tell Officer Lally you got this number 608 from the man that came there?
“A. That is right, but that has nothing to do with it.
? The question now is different. I had no right to tell professionally, but, since they have told, I have a right to.
“Q. When did you begin telling the truth?
“.4. I told the truth when I went to see Capt. Baker; not before. That was last Tuesday afternoon. I also told the truth to my attorney, and I am at it now. I wasn’t under oath then, you know.
“By Mr. Fick: Q. What you have said in regard to the misrepresentations you made to the reporter and to Mr. Lally, were they made to conceal anything on your part?
“A. Not in the least; simply to protect the Lanes. I proposed to maintain it under my professional seal of secrecy as long as I could, and did until the Lanes gave it away. I then was at liberty to give it away.”

A post mortem was held, in which several physicians participated. The examination was directed to the lungs and uterus. All agreed that there was no perceptible laceration of the parts, and no evidence of the use of instruments; that there had been an expulsion of the foetus; that the size of the womb at that time was that of a 3 or 4 months’ pregnancy; that the process of involution ordinarily begins immediately after the expulsion, but that the contraction is sometimes delayed by after sickness; that a foetus begins to quicken at 4 or 4-| months, and that a,foetus 9-£ inches long would indicate at least o months’ growth. One physician was positive that pneumonia was not the cause of death; another thought that he detected evidence of septicaemia; while two others say that, by reason of the condition of the body, it was impossible to say whether either pneumonia or septicaemia was the death cause.

Counsel put to certain of the physicians the following questions:

“Doctor, supposing a young woman, 25 or 26 years of age, residing in a little hamlet in England, becomes pregnant by her pastor, in whose church she has been an active worker. .After discovering her condition, she deems it necessary to leave her own country, and come to a foreign land. She takes second-cabin passage for New York in the month of January. On the passage over she suffers from sickness and nausea, so much so that she is unable to eat, and keeps her berth most all of the time during the trip over. She lands in New York, and takes the train for Detroit, arriving here in the middle of a cold, stormy night. After some little time she finds her way to her place of destination. The next morning, she is up and eats breakfast, but complains of being unwell. For the two days following her condition does not appear, but after that she develops these symptoms, — chills, fever, headache, pains in the limbs—
“A. Let me interrupt. Did you say two days after?
“Q. Two days after the first, — within three or four days after her coming. She develops these symptoms,— chills and fever, headache, pain in the limbs, and palpitation of the heart. These symptoms continue for a period of two days longer, when she gives birth to a foetus that shows no signs of life. Now, remembering her social condition, her trip across the ocean, the common vomiting of pregnancy augmented by the vomiting and nausea of a sea voyage, nervous and mental excitement consequent upon leaving her own country and coming to a foreign land, her inability to eat, the fatigue of the voyage, going into a strange climate, these symptoms she developed after coming here, and the premature discharge of the foetus,— in the absence of any testimony of a criminal operation for the production of that miscarriage, what would you say was the cause of it?” , .

One witness answered as follows:

“I would say, most decidedly, it was due to those conditions you mentioned. There is no evidence of any instrument?
“Q. No evidence of any criminal operation. What symptoms would you expect to find in a woman carrying a dead foetus?
“A. At what time?
UQ. When she had carried it long enough to develop any symptoms.
“A.' Increased temperature, chills, lassitude, feeling of heaviness, headache, vomiting, weight in the abdomen, sometimes diarrhea.”

Another witness said:

“It might be— It would be caused, of course, by all these symptoms.
“Q. These conditions?
“A. Yes.
“Q. Might the membrane be ruptured?
“A. Yes; quite likely.
. “Q. Water escape?
“A. Yes.
“Q. Foetus die?
“A. Yes'.
“Q. How long might she carry it before it is expelled?
“A. She might carry it quite a while, — several weeks. She might not carry it a day.
“Q. The question that I put to you show's the abortion to have taken place on the sixth day after her arrival. With all the conditions, symptoms, etc., of this question, please tell the jury what you think was the cause of the premature birth of the foetus in this case.
“A. These things would bring on pains, and the pains, of course, would rupture the membrane, and, of course, that would bring on the abortion sooner or later. * * * The symptoms you have described are the ones I would expect to find in a woman carrying a dead foetus.”

Another witness said:

“There is certainly a history there sufficient to cause the child’s death, and perhaps the woman’s death, from those conditions.”

One of the people’s witnesses testified that she was in the Lane house at the time, that Emily Hall dropped the foetus in the watercloset bowl, that the witness saw it, and that it was about 9-J- inches long.

A witness testified that she (witness) 'gave birth to a child in the Lane house on Tuesday evening, January 22, 1895. Another witness testified that respondent operated upon her with instruments at the Lane house on January 23, 1895, and that she was 4 months gone at the time. Another witness testified that respondent operated on her at the Lane house in June, 1894, and took from her a 3-]- months’ foetus, and that he operated on her again in October, 1894, at the same place, and took away a foetus 6 weeks old. It is insisted that the court erred in the admission of the testimony of the last-named three witnesses.

The general rule is that evidence shall be confined to the issue, and that on a trial for felony the prosecution will not be permitted to give evidence tending to prove the defendant guilty of another distinct and independent felony. There are, however, exceptions to this rule. The other offense may be part of the res gestae, or the proof thereof may be admissible to show motive. People v. Marble, 38 Mich. 117; Phillips v. People, 57 Barb. 353; State v. Braunschweig, 38 Mo. 587; Burr v. Com., 4 Grat. 534; Heath’s .Case, 1 Rob. (Va.) 735; Rex v. Clewes, 4 Car. & P. 221; Brown v. Com., 76 Pa. St. 319; Johnson v. State, 17 Ala. 618; Com. v. Sturtivant, 117 Mass. 123. Where it, is necessary to show a particular intent in order to estab- ! lish the offense charged, proof of previous acts of the-same kind is admissible for the purpose of proving guilty knowledge or intent, or, where it is claimed that the thing done was the result of an accident, proof of other like occurrences under like conditions has been held admissible; as where the question is whether a fraud has been perpetrated, — for instance, where a vendee of goods is alleged to have procured the sale of goods by misrepresentation (Kost v. Bender, 25 Mich. 515; Beebe v. Knapp, 28 Mich. 63; Shipman v. Seymour, 40 Mich. 275; Cook v. Perry, 43 Mich. 623; Dayton v. Monroe, 47 Mich. 193; Dibble v. Nash, Id. 589; Stubly v. Beachboard, 68 Mich. 401; Hall v. Naylor, 18 N. Y. 588; Hennequin v. Naylor, 24 N. Y. 139; Miller v. Barber, 66 N. Y. 558; Blalock v. Randall, 76 Ill. 224; Rowley v. Bigelow, 12 Pick. 307; Bottomley v. U. S., 1 Story, 135; U. S. Life Ins. Co. v. Wright, 33 Ohio St. 533),/or under an indictment for obtaining goods or money by means of false pretenses. (Bielschofky v. People, 3 Hun, 40, 60 N. Y. 616; Mayer v. People. 80 N. Y. 364; Weyman v. People, 4 Hun, 511; Com. v. Coe, 115 Mass. 481; Reg. v. Francis, 22 Wkly. Rep. 663, 10 Alb. Law J. 120, L. R. 2 C. C. 128),/or for knowingly receiving stolen property (Coleman v. People, 55 N. Y. 81; Copperman v. People, 56 N. Y. 591; State v. Harrold, 38 Mo. 496),/or for embezzlement (Reg. v. Richardson, 2 Fost. &F. 343; Reg. v. May, 1 Cox, Cr. Cas. 236; Reg. v. Proud, Leigh & C. 97),/ or under indictments for uttering counterfeit bills, or having-in possession counterfeit money or counterfeiting apparatus, with intent, etc. (Reg. v. Forster, Dears. Crown Cas. 456; Rexv. Ball, 1 Camp. 324; Reg. v. Weeks, Leigh & C. 18; Reg. v. Zeigert, 10 Cox, Cr. Cas. 555; Com. v. Price, 10 Gray, 472; Com. v. Coe, 115 Mass 481). " In arson cases, evidence has been admitted as to previous attempts to fire the same building or contiguous buildings, or to show other incendiaries under like circumstances, involving the presence of the prisoner in the locality. / Reg. v. Bailey, 2 Cox, Cr. Cas. 311; Reg. v. Dosset, Id. 243; Reg. v. Taylor, 5 Cox, Cr. Cas. 138; Reg. v. Briggs, 2 Moody & R. 199; Rex v. Moore, 2 Car. & P. 235; Kramer v. Com., 87 Pa. St. 299; Com. v. McCarthy, 119 Mass. 354; Com. v. Bradford, 126 Mass. 42.

Some of these authorities would seem to be border cases, but they illustrate the tendency of the courts to allow the introduction of this class of testimony to repel the inference’that the cause was an accidental one, in cases where such an inference might otherwise obtain. Upon principle and authority, it is clear 'that where a felonious intent is an essential ingredient of the crime charged, ,and thes act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which ihe particular act was done, and to rebut the presumption that might otherwise obtain. Reg. v. Roden, 10 Moak, Eng. R. 511; Reg. v. Cotton, 5 Moak, Eng. R. 479; Reg. v. Geering, 18 L. J. Mag. Cas. 215; Reg. v. Garner, 3 Fost. & F. 681; Rex v. Voice, Buss. & B. 531; Stout v. People, 4 Park. Cr. R. 71; Osborne v. People, 2 Park. Cr. R. 583; Dunn v. State, 2 Ark. 229; Pierson v. People, 18 Hun, 239; State v. Watkins, 9 Conn. 47; Com. v. Blair, 126 Mass. 40; Com. v. Corkin, 136 Mass. 429; Weed v. People, 56 N. Y. 628; Hays v. State, 40 Md. 633; Reg. v. Dale, 16 Cox, Cr. Cas. 703.

In Wharton’s American Criminal Law (6th Ed., § 649), i 1 is said:

“Where the scienter or quo animo is .requisite to, and constitutes a necessary and essential part of, the crime for w'hich the person is charged, and proof of such guilty knowledge or malicious intention is indispensable to establish his guilt in regard to the transaction in question, testimony of such acts, conduct, or declarations of the accused as tend to establish such knowledge or intent is competent, notwithstanding they may constitute in law a distinct crime.”

And 3 Greenl. Ev. § 15, has the following:

“In the proof of intention, it is not always necessary that the evidence should apply directly to the particular act with the commission of which the party is charged, for the unlawful intent in the particular case may well be inferred from a similar intent proved to have existed in other transactions, done before or after that time.”

And in Stephen’s Digest of Evidence, article 11 (7 Am. & Eng. Enc. L. p. 61), the rule is laid down as follows:

“When there is a question whether a person said or did something, the fact that he said or did something of the same sort on a different occasion may he proved, if it shows the existence on the occasion in question of any intention, knowledge, good or bad faith, malice, or other state of mind, or of any state of body or bodily feeling, the existence of which is in issue, or is deemed to be relevant to the issue.”

And in article 12 (7 Am. & Eng. Ene. L. p. 62) the same author says:

“When there is a question whether an act was accidental or intentional, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is deemed to be relevant.”

See, also, 1 G-reenl. Ev. § 53, and notes.

In Reg. v. Roden, a mother was charged with the murder of her infant by suffocation, and it was held admissible to show the death of her other children under similar circumstances.

On the trial of a wife for poisoning her husband with' arsenic, proof of the subsequent death of her two sons ■ from arsenical poisoning was admitted, with a view of enabling the jury to determine whether the taking of the poison was accidental or not. Reg. v. Geering.

In Reg. v. Garner, on the trial of a man and his wife for the murder of his mother by poison, the wife having been a servant in the family during the life of a former wife, evidence was admitted of the circumstances under which the former wife had died from poison.

In Rex v. Voice, upon an indictment for maliciously shooting, held that, if it be questionable whether the shooting was by accident or design, proof may be given that the respondent at another time intentionally shot at the same person.

In Com. v. Corkin, respondent was charged with using an instrument upon the body of a woman with intent to procure a miscarriage. Evidence that on subsequent occasions, within 10 days, defendant administered the same treatment, was held admissible for the purpose of showing intent, and respondent’s knowledge of the condition of the woman. The court say:

“Whether it was of acts which formed part of the principal transaction, or of acts of the defendant at other times, it tended to prove attempts of the defendant to procure the identical result charged; that is, to prove the intent which was charged in the indictment. Being competent to prove the crime charged, it is no objection that it also tended to prove other crimes.”

In Weed v. People, respondent was indicted for procuring an abortion; and a circular introduced in evidence, which was issued and circulated by the accused, advertising that he could be consulted, and advising females who should consult him how the same could be kept secret and they protected from criminal punishment, was held admissible as tending to show knowledge on the part of defendant of the character of the drugs administered, and their probable effect, and that he administered them for the purpose of procuring an abortion.

In Hays v. State, where parties were charged with producing an abortion, it was held proper to show the character of the house, — that it was a house of ill fame.

In Com. v. Blair, on the trial of an indictment for procuring an abortion, evidence that, five months before the time of the alleged operation, defendant had in his possession an instrument which he described as well fitted to procure an abortion, was held admissible as tending to show that defendant was in possession of the means of committing the crime.

In the case of Rosenweig v. People, 68 Barb. 634, defendant was charged with procuring an abortion upon B. He testified in his own behalf, and on cross-examination W. was pointed out to him, and he was asked if he knew her, and he stated that he did not, and had never seen her. He was then asked if he had not procured an abortion upon W., and answered that he had not. It was held that it was not competent to impeach the prisoner as a witness by contradicting him as to facts disconnected with or collateral to the subject-matter at issue and on trial.

In Baker v. People, 105 Ill. 452, two persons were on trial for the offense; and it was held that the people should have been put to their election whether they would proceed against defendant B. alone for using the wire, or against both for what occurred at the house of defendant G. Under the statute of that state, intent is not made an ingredient of the offense, and in this respect the case is similar to Albricht v. State, 6 Wis. 74.

Our own State has frequently recognized the rule that, where it is necessary to show a particular intent in order to establish the offense charged, proof of previous acts of the same kind is admissible for the purpose of proving guilty knowledge or intent. Carver v. People, 39 Mich. 786; People v. Marble, 38 Mich. 117; People v. Henssler, 48 Mich. 49; People v. Wakely, 62 Mich. 297; People v. Hawkins, 106 Mich. 479.

The case of People v. Sessions, 58 Mich. 594, to which our attention is not called by the briefs of counsel, is directly in point. Respondent was charged with the death of Mrs. Peck, resulting from abortion performed by her. “The testimony of four of the people’s witnesses relating to respondent’s possession of instruments to produce an abortion, and her use of them, and her knowledge upon the subject, and that she held herself out for the performance of such service with the instruments, for hire, ■ was given on the part of the prosecution. It consisted of conversations of respondent had with these four persons, extending, through a period of four years previous to the deatli óf: Mrs. Peck, wherein" the respondent stated to one that she had the instruments with which to perform abortion, had herself got rid of a number of children, and showqd her the instruments; at the same time saying to the witness, if she wanted any help, she could help her. To another she stated that she had committed abortions, and she could do it again; that she had the instruments to use in doing it. To another she stated her terms for performing such service, which she then proffered to the witness, who was in the family way, and told her she had the instruments for the purpose.” The testimony was offered to show guilty knowledge and intent, and the possession' of the necessary means to accomplish the act, :and it was held competent.

Miscarriages do occur from accidental causes. ■ Death follows, not only in cases of miscarriage and premature birth, but also in ripe cases of childbirth. Physicians are necessarily in attendance in such cases. Respondent had, at the coroner’s inquest, testified that this was a ■case of childbirth, and subsequent death from pneumonia. He stated that he was called to the house, professionally, to attend a woman in confinement. It became necessary to showr guilty knowledge and intent on his part. How ■else could the prosecution prove the quo ammo, — the criminal purpose of his attendance, — except by showing the character of the place, the fact that it was a place of resort for such practices, and that respondent was frequently there, and for the very purpose of performing his part in these criminal operations? Unless indirect proof of guilty knowledge is admitted, it would be impossible, in many cases, to prove this essential element in the offense. As is said by Heath, J., in Whiley’s Case, 2 Leach, 986:

“The charge puts in proof the knowledge of the prisoner, and, as that knowledge cannot be collected from the circumstances of the transaction itself, it must necessarily be collected from other facts and circumstances.’’ ■

It is urged that the court erred in not compelling the prosecution to elect upon which count of the information the people relied. That election was made upon submission of the case to the jury.

The showing made entitled the people to have the name •of the witness G-reusel indorsed upon the information.

Herman B.Lane was not the husband of the co-respondent, Alice Lane. A marriage contract, without ceremony, cannot be valid under circumstances in which a ceremonial marriage would be unlawful.

The court did not err in admitting evidence of the delivery of the registered letter to Mrs. Lane, or of its contents, the money order, or of the indorsement made thereon by defendant, or of the cashing of the order, or in admitting the order itself. Respondent was connected with the letter and order. It was competent to show that he knew decedent’s name, and where she came from, and that the statements made in the death certificate used at the coroner’s inquest were knowingly false.

The cablegram was without the jurisdiction of the court, an effort was made to obtain it, and the parol evidence was admissible to show its nature.

There is. no force in the contention that the evidence was insufficient to warrant a finding that Emily Hall was pregnant when respondent treated her, that the foetus was. quick, that an abortion had been performed, and that death ensued in consequence.

• We- ^re compelled, however, to reverse the case on other grounds. •

Counsel for defendant requested the court to instruct the jury that—

“if the jury believes that Emily Hall aborted from natural causes, or from any one of the several causes testified to by the medical witnesses in the case, then you should find the respondent not guilty.
“If the jury believes that Emily Hall aborted by reason of the ordinary sickness and vomiting, augmented by the sickness and vomiting of a sea voyage, together with the nervous, mental excitement, fatigue, lack of nourishment, and the change of climate, then you should find the respondent not guilty.”

These requests should have been given. The testimony tending to prove the body of the crime was circumstantial. The theory of the defense was that death resulted from natural causes. That theory should have been submitted to the jury. People v. Cummins, 47 Mich. 334.

The court instructed the jury that—

“Some expert testimony has been given in this case, but its value depends upon the circumstances, and of these circumstances the jury must be the judges. The jury must determine the weight to be credited to it, but in all cases the testimony of experts is to be received and weighed with great caution. ‘ The evidence of a witness who is brought upon the stand to support a theory by his opinion is testimony exposed to a reasonable degree of suspicion, which there is great reason to believe is in many instances the result of employment and his bias arising out of it. In many cases, it is to be feared, by giving too much weight to testimony of experts, juries have been induced to render unwarrantable' Verdicts, discreditable to the administration of justice, as well as exceedingly detrimental to public interests.”

This instruction was clearly erroneous. An expert witness is to be judged from the same standpoint as any other witness. Turnbull v. Richardson, 69 Mich. 400; People v. Vanderhoof, 71 Mich. 158. It was for the jury, and not for the court, to determine the weight to be given to the testimony. Maynard, v. Vinton, 59 Mich. 139. As has already been said, the evidence as to the death cause was circumstantial. An autopsy had been held for the very purpose of determining the cause. Two experts had been called by the people to testify as to the result of that examination, and it must be conceded that these witnesses were better qualified to determine what symptoms usually precede a miscarriage, and what are the ordinary causes which produce it, and what the condition of the body indicated upon the examination made, than is the ordinary layman. In People v. Millard, 53 Mich. 63, it is said that—

“Upon medical questions, while persons may testify whose knowledge is chiefly theoretical, there can be no question of the superior value of practical knowledge, combined, with theoretical, especially on such matters as involve the interpretation of symptoms and actions of the sick.”

Expert testimony is not always the most reliable, but it is often indispensable. Its infirmity arises largely from its character. Comparatively, it has been held to have little value. Treat v. Bates, 27 Mich. 390; Tiets v. Railway Co., 55 Mich. 120; Stone v. Railway Co., 66 Mich. 76. Suppose that these witnesses had found evidences of a criminal operation upon the body, or suppose that some of them had so testified, and that others had said otherwise;, would the court have been justified in giving the instruction here complained of ? ’ It does not follow, because experts differ, that the testimony should be said to be suspicious. Lay witnesses differ materially in their testimony as to conversations and occurrences. Judges, lawyers, and juries differ in their constructions from a given state of facts. It cannot be assumed, as a matter of law,, that this class of testimony is open to suspicion, for the reason that experts are employed, and are necessarily biased by such employment. The other circumstances of the case bearing upon the death cause and defendant’s guilt were for the jury, and it was their province to determine those questions from all the facts and circumstances, and to disregard the opinion evidence as to the cause of death, if, in their judgment, the other testimony warranted that conclusion.

The court very properly instructed the jury that unfavorable inferences were not to be predicated upon the fact that defendant did not take the witness stand, and we think that the remarks made by the prosecuting officers would not have been open to criticism if tlioise officers had observed that rule. , • -

For the errors referred to,,ihe verdict must be set aside., and a new trial awarded. !

The other Justices concurred.

       The objection raised was that Herman B. Lane was disqualified as a witness. The parties had been living together as husband and wife, but the respondent Lane had a lawful husband then living.


source: Caselaw Access Project

author: Long, J.

license: Public Domain

text:
    PEOPLE v. CLEVELAND.
    1. Criminal Law — Conspiracy—Assault—Evidence.
    Where, upon a trial for an assault with intent to murder, there is testimony tending to show that another person, jointly charged with the assault, accompanied respondent to the place of its commission, evidence of the condition of such person shortly thereafter, tending to establish his complicity in the crime, is admissible as against the respondent.
    2. Same-Harmless Error.
    The admission of the statements of such person, explanatory of his condition, is not prejudicial error, where they tended to-exclude the presence of the respondent at the time to which they related.
    3. Same — Robbery—Assault While Attempting to Escape— Instructions to Jury.
    Where all of the testimony adduced upon a prosecution for assault with intent to murder tends to show that the assault was made in the furtherance of a common purpose on the part of several persons to perpetrate a robbery, it is not error to-refuse an instruction as to the rule obtaining where an assault is committed by a co-conspirator in an attempt to escape.
    1. Same.
    In such case, however, upon the trial of one of those jointly charged with the offense, an instruction that, if the respondent, did not participate in the assault, he should be acquitted,, unless it was part of the arrangement between the parties that the assault should be committed if necessary to accomplish the robbery or to protect themselves from capture or injury while attempting it, sufficiently jirotects the rights of the respondent.
    5. Same — Evidence—Escape After Arrest.
    Upon the trial of one of several persons jointly charged with- . ' crime, evidence that they all escaped from jail after their arrest is .admissible.
    ■ 6. ,Same — Self-Serving Acts.
    Evidence that one charged with crime voluntarily surrendered after having escaped from jail is inadmissible to remove the inference- of guilt arising from the fact of his escape.

      Error to Hillsdale; Lane, J.
    Submitted November 22, 1895.
    Decided December 10, 1895.
    George Cleveland was convicted of assault with intent to murder, and sentenced to imprisonment in the state prison at Jackson for eight years.
    Judgment affirmed.

      Fellows cf Chandler, for appellant.

      Guy M. Chester, Prosecuting Attorney, and Fred M. Twiss, Assistant Prosecuting Attorney, for the people.
   Long, J.

The respondent was informed against, jointly with Robert Mehan and Frank Swidenski, for assault with intent to commit the crime of murder, and on a second trial was convicted, and sentenced to the state prison at Jackson for a term of eight years. He was tried separately..

The people’s proofs tended to show that the complaining witness, Eugene Weatherwax, was the keeper of a general store at Somerset Center, Hillsdale county, and on July 11, 1891, after he had closed" his store for the night, he was called from his living rooms, which adjoined the store, by a party who claimed he wanted to buy some crackers and cheese. Weatherwax.came out with a kerosene lamp in his hand, opened the door of the •store, went in, and started to raise the trapdoor leading to the cellar, where his cheese was kept. While stooping ■over for this purpose, he was called upon to throw up his hands. He turned around and saw two men, one of whom wore a white mask. He still held the lamp in his right hand, and at once attacked the man nearest him with it, striking him over the head, and extinguishing the light. Two shots were fired at him by the two men, each of which took effect, one in his leg and the other in his body. He continued grappling with the man, striking him with what remained of the lamp, the man all the time working towmrds the door, trying to get away. This he finally succeeded in doing, and escaped in the darkness. The proofs also tended to show that Mehan was the party with whom the witness Weatherwax had the struggle, and that defendant Cleveland was the party in the store with him, and both of whom shot and wounded him; that another party, who, it is claimed, was Swidenski, was either at the store door, or in that vicinity, stationed as a lookout. The next morning after the affray, Mehan was traced from within two miles of the place to the city of Jackson, and was subsequently identified as the person who attacked Weather-wax. It was claimed, also, that Cleveland was identified as the masked man in the store, who fired one of the shots at Weatherwax.

The people’s testimony tended further to show that, on the afternoon prior to the assault, Swidenski engaged a horse and carriage at Jackson, claiming that he wanted to drive into the country some distance; that Mehan was seen with him in the carriage at Jackson; and that subsequently Cleveland joined them, before leaving the city. The three parties were identified by several persons along the way. While they were driving in the direction of Somerset Center, some parties saw them, but a short distance from there. About 1 o’clock the next morning, defendant Cleveland returned the horse to the livery stable. The theory of the prosecution was that Cleveland and Swidenski returned to Jackson with the carriage, leaving Mehan to find his way there on foot, as he was seen the next morning within two miles of Somerset Center, going in the direction of Jackson; he at that time being without a hat, and having cut out the pocket of his ■ coat, and drawn it over his head, as a skull-cap.

The three parties were arrested, bound over, and at the September term, 1894, of Hillsdale county the case was set for trial. The night before the term commenced, the prisoners broke jail and escaped. In the latter part of December of tbe same year,- respondent, Cleveland, was brought back from New Orleans, La., and placed upon trial at the January term. Upon the trial the defense was that the people were mistaken in the identity of respondent, Cleveland, and he sought to establish an alibi. His counsel contend that the court was in error—

(1) In permitting the people to show the acts of Mehan after the affray, his appearance on the way to Jackson and on the succeeding days, the excuse he gave for his then condition, and the result of an examination of his clothing.
(2) In allowing the escape of all the defendants from the jail to be shown.
(3) In not giving certain requests to charge.
(4) In certain portions of his charge to the jury.
(5) In not permitting the respondent to show that he surrendered voluntarily after his escape from jail.

1. It is apparent from the testimony that the three parties, when they left Jackson, had arranged to engage in this robbery. We think there was evidence for the jury to determine the identity of the three on their way there, and there can be little question from the testimony that they were at the store; two of them entering it, and one remaining outside. Mr. Weatherwax testified that he recognized respondent, Cleveland, as the masked man, and who fired one of the shots. By the proofs it was established that a prior arrangement had been made to commit the robbery, and the arrangement had been carried out so far as they were able to do so. It was therefore proper to show the condition of Mehan, who was not on trial, for the purpose of establishing his identity as one of the men who accompanied respondent, Cleveland, from Jackson to Somerset Center, thus identifying the latter’s connection with the robbery. In the case of Ryan v. State, 83 Wis. 486, the charge was burglary. Evidence was admitted, under objection, showing the movements and conduct of each of three persons charged with the crime on the next morning after the robbery, and after they had separated. The prosecution having shown that these persons were seen together shortly before the crime, this evidence was held competent. It is true that, when the subsequent facts sought to be.shown are in the nature of a narrative by one of the parties to the transaction, such narration is inadmissible as evidence against a co-respondent; but in the present case no such statements were sought to be shown, and it was competent to show the condition of any one of the three,- immediately after the affray, which would throw any light upon the question of the identity of Cleveland as taking part in the crime charged. What Mehan said as to his condition, as shown by the testimony here, was in no manner prejudicial to the respondent, as its tendency would be to show that respondent was not in his company at the time he received his injuries. See State v. Struble, 71 Iowa, 11.

2. The court properly permitted the prosecution to show the escape of the respondent and the other two from jail. People v. Marble, 38 Mich. 117.

8. The court was asked to charge:

“Even though you should find, and be satisfied beyond any reasonable doubt, that the defendant, Cleveland, was seen on the road from the city of Jackson to the village of Somerset Center on the night in question, and was seen in the village of Somerset Center on that night, and was there for the purpose of robbery and of doing his part, — even though this be true, if you should not be satisfied beyond a reasonable doubt that he was actually in the store of Weatherwax, participating in the assault, you could not find him guilty, if the assault made upon Weatherwax was made in an attempt to escape, and not in accordance with a common design.”

Counsel for respondent base this request upon the ruling of this court in People v. Knapp, 26 Mich. 112, where it was said:

“The effect of these rulings was pi’actically to hold that parties who have combined in a wrong purpose must be presumed, not only to combine in some way in escaping arrest, but also to be so far bound to each other as to be responsible severally for every act done by any of them during the escape. It is impossible to maintain such a doctrine. It is undoubtedly possible for parties to combine in order to make an escape effectual, but no such agreement can lawfully be inferred from a combination to do the original wrong. There can be no criminal responsibility for anything not fairly within the common enterprise, and which might be expected to happen if occasion should arise for any one to do it. In other words, the principle is quite analogous to that of agency, where the liability is measured by the express or implied authority. And the authorities are quite clear and reasonable which deny any liability for acts done in escaping which were not within any joint purpose or combination.”

There can be no doubt that the rule laid down in that case is universal, but the facts shown in this case rebut any presumption that the shooting was done in an attempt to escape. The parties had gone there armed, and, when Weatherwax was directed to throw up his hands, he was confronted with revolvers held by each of the parties. The revolvers were not used for the purpose of escape, but, as must be presumed, in execution of the common design of committing robbery. When the command was given Weatherwax to throw up his hands, and he not complying, at once the shots were fired. There is no testimony, and no circumstances connected with the affair, showing that the revolvers were to be used only in case it became necessary in order to escape. But, as the whole question was fairly submitted to the jury under the charge of the court, we need not discuss it further. The court charged:

“If you find that these men entered into an arrangement, either before or after reaching Somerset Center, to rob Mr. Weatherwax or his place of business, and to that end armed themselves with revolvers, to be used if found necessary to accomplish the robbery, or prevent injury or capture while attempting the robbery, then this defendant would be equally guilty, even though he was not present in the store, if he were acting his assigned part, even though it were only to watch or warn; but if these three persons did not arrange to arm themselves with revolvers, to be used, if necessary, in accomplishing the robbery, or in protecting themselves from capture or injury while attempting the robbery, or the. defendant was not a party to such an arrangement, if there was one, and did not participate in the carrying out of such arrangement, then he could not be found guilty.”

4. We have examined the charge carefully, and find it very fair to the respondent.

5. We think there was no error in excluding evidence showing that after respondent’s escape from jail, and arrival at New Orleans, he voluntarily delivered himself up to the officers of Hillsdale county. In State v. Musick, 101 Mo. 274, the same question was raised, and the court said:

“There was no error in refusing to permit the defendant to introduce testimony to show that after the shooting he had surrendered himself to the sheriff. Such self-serving acts or declarations are wholly inadmissible, and irrelevant to the issue.”

It is true that, when the people show the escape for the purpose of raising some inference of guilt, the prisoner may show the circumstances under which the escape was made. This is allowed to remove the inference of guilt. But I am unable to find any case which permits the person to show a voluntary surrender, after the escape, for such purpose. It is always open to the person to make explanation of the reason of his escape, to show that he was not prompted by a consciousness of guilt. 1 Bish. New Cr. Proc. § 1250, and cases there cited.

We find no error in the record. The conviction must be affirmed.

The other Justices concurred.


text:
    PEOPLE v. CALDWELL.
    1. Criminal Law — Complaint—Jurisdiction to Issue Warrant— Local Option Law.
    The complaint and examination preliminary to the issuance of a warrant of arrest for an offense not cognizable by a justice of the peace (e. g., a violation of the local option law) need not be reduced to writing, and, therefore, in the absence of a contrary showing, it will be presumed that the magistrate had sufficient proof before him to confer jurisdiction to issue the warrant.

      %. Same.
    The presumption so obtaining is not affected by the fact that a written complaint was taken, the averments of which were insufficient to authorize the issuing of a warrant, where it does not appear that no other evidence was adduced.
    3. Violation of Liquor Law — Jurors—Examination as to Competency.
    A conviction for a violation of the liquor law will not be reversed because the trial court required counsel for the respondent so to modify a question asked of a juror on his voir dire as not to suggest that he would have a desire to give his verdict one way or the other if the evidence should be even, but to ask him merely whether he would have such a desire, or which way he would find under such circumstances.
    4. Same — Evidence.
    Upon a prosecution for keeping a place for the sale of intoxicating liquors, in violation of the local option law, evidence of sales made prior to the date alleged in the information, extending over a period of three months, is admissible, as bearing upon the character of the place kept by respondent at the time charged.
    а. Criminal Law — Witnesses—Leading Questions.
    The trial court may, in its discretion, permit the prosecution to pdt leading questions to a witness for the people whose answers are evasive, and who evinces a disposition to favor the respondent.
    б. Same — Trial—Misstatement of Evidence.
    An inadvertent misstatement of an item of testimony by the trial judge in his instructions to the jury is not ground for a reversal, where the remark passed unchallenged at the time, and was apparently not prejudicial.

      Exceptions before judgment from Hillsdale; Lane, J.
    Submitted November 21, 1895.
    Decided December 10, 1895.
    Henry W. Caldwell was convicted of violating the local option law.
    Affirmed.

      Frankhauser Bros., for appellant.

      Guy M. Chester, Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted of keeping a place where intoxicating liquors were sold as a beverage, in violation of the local option law in Hillsdale county.

1. It is contended that the justice acquired no jurisdiction to issue the warrant, for the reason that there was no evidence before him that the local option law was in force in that county. On the examination a motion was made to discharge the respondent for that reason, and such motion was again made in the circuit court at the time respondent was arraigned. Respondent contends that the only evidence of that fact before the justice was the examination of one George Taylor, and that he had no such knowledge of the existence of local option in that county as to enable him so to testify; that the only competent proof of such fact was the record of the proceedings of the board of supervisors, or a certified transcript thereof; that the local option statute provides how that fact shall be established.

Section 17 of the act provides: •

“Upon the trial for any violation of the provisions of section one of this act, it shall be competent to introduce the record, or a certified transcript thereof, of the preamble and resolution of the board of supervisors of such county, required by section thirteen of this act, and such record and transcript shall be the evidence that the provisions of this act are in full force within such county, and that the manufacture, sale, keeping for sale, giving away, or furnishing of any of the liquors herein designated, and the keeping of a saloon or any other place for the manufacture, sale, or storing for sale or giving away or furnishing of the same, is prohibited and unlawful, and shall also- be the evidence of the suspension and superseding of the provisions of the general laws of this State for the taxation and regulation of the business of manufacturing, selling, keeping or offering for sale, giving away or furnishing, of any of the liquors hereinbefore designated, so far as relates to the territory and municipalities within the limits of such county, so long as such resolution remains unrepealed.” 3 How. Stat. § 2283&0.

The record here does not contain the warrant issued by the justice. The complaint is returned, but none of the other proceedings or papers had before the justice. The warrant may have recited that oral proofs were also taken, and that the proceedings of the board of supervisors were before the justice. Unless the contrary be shown, we must presume that the justice had the legal evidence before him which authorized the issuing of the warrant. He had no authority to try and determine the case, and the complaint need not have been in writing. The mere fact that a written complaint was taken does not exclude the presumption that he had other evidence before issuing the warrant. It is true that, if the warrant recites that it was issued upon the examination contained in the complaint, we may then look into the complaint to ascertain whether the facts therein stated confer jurisdiction upon the justice to issue the warrant; but where no showing is made as to what the evidence was, and all the evidence which the justice had before him, we must presume that sufficient evidence was adduced. The evidence so taken before the warrant issues need not be taken down by the justice, and need not be returned to the court when the party is held for trial. These proceedings are entirely ex parte, and are for the purpose of satisfying the justice that there is probable cause to believe that an offense has been committed. People v. Bechtel, 80 Mich. 630, and cases there cited.

2. It is contended that the court was in error in ruling out a question put to one of the jurors in his examination on voir dire. He was asked:

“Which way would you desire to give your verdict if the evidence was all in, and you found that it was just even, — as much one way as the other ? Which way wóuld you want to give your verdict — desire to give it? Which way would you lean, — for the people or for the defendant?”
By the Cowrt: “I think the court ought to say here that a question of this kind ought not to assume that a man would have a desire to go one way or the other under those circumstances, because, if he does, it makes the juror incompetent always. If he manifests a desire to go either wav, of course he is an incompetent juror in the case. I think the question ought not to suggest that he would have a desire, and simply require the witness to give an answer that he would go one way or the other. The question ought to be amended by incorporating that idea, or the witness not be required to answer.”

It appears that, before the jury were sworn, the respondent had exhausted his peremptory challenges.

We need not determine whether the question was proper, under the rule laid down in Monaghan v. Insurance Co., 53 Mich. 245, and cases there cited. As explained by the trial court, the question suggested that the witness would have a desire to go one way or the other; and all that the court asked of counsel was to frame his question so that this suggestion would be eliminated, and the juror required to answer whether he would have a desire to go one way or the other, or which way he would find. In People v. Keefer, 97 Mich. 19, the question was asked a juror: “If the evidence in this case, as between the people and the defendant, was equally balanced, which way would you give a verdict on the charge of engaging-in the saloon business, — for the people or for the defendant?” The exclusion of this question was held to be error. Under the suggestion of the court in the present case, counsel would have had an opportunity to ascertain the state of the juror’s mind in reference to the saloon ■business, and how he would have found under the facts •suggested; but this counsel declined. No reason is given for declining the question tendered by the court. We think the case should not be reversed on this ground.

3. The information alleged the keeping of a place where intoxicating liquors were sold as a beverage on December 25, 1893. The court permitted the prosecution to show several sales of liquors prior to that time, extending over a period of about two or three months. This is ■assigned as error. The court, in admitting the evidence, stated the purpose for which it might be considered,'and in the charge stated to the jury:

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

The case falls directly within the ruling of this court in People v. Hicks, 79 Mich. 457. Hicks was charged with having unlawfully engaged in the business of selling and keeping for sale spirituous and intoxicating liquors. Several sales were shown prior to the time charged in the information. It was said:

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

The same doctrine is laid down in Black on Intoxicating Liquors (section 514), and Bishop’s New Criminal Procedure (volume 1, §§ 397, 402), though it is said that the Massachusetts rule is different; but Mr. Bishop questions the Massachusetts rule.

4. Error is assigned upon the ruling of the court in permitting the prosecution to ask leading questions of a witness called by the people, and to cross-examine such witness. It is apparent from the record that the witness was willing to answer the interrogatories propounded by ■defendant’s counsel, and was evasive when being examined by the prosecution. The court permitted the prosecution to examine the witness at some length, and put leading questions, and we think properly, under the rule in McBride v. Wallace, 62 Mich. 453; People v. Deitz, 86 Mich. 430.

5. The court, in its charge to the jury,, called tlieir attention to the testimony of the witnesses Taylor and Mrs. Hayes, and stated:

“It is claimed by the people that on this day in question Mr. Caldwell was keeping a place on St. Joseph street; that it was a public place; that, on the afternoon or evening of this day, two persons — young Taylor and Mrs. Hayes — came there to this place of business, and bought a couple of half pints; that the man Taylor bought the liquor, a part of which was whisky and a part of which was blackberry wine; that afterwards they went into the saloon together, at the invitation, if I understand rightly, of Mr. Caldwell, and there drank two or three times of intoxicating liquors; that they were made drunk at that time, were taken by the defendant upstairs, put on the bed, where they remained until early the next morning about four o’clock, when they got up, got into their buggy, and went to the home of the girl.”

These facts, it is conceded, were all testified to, except the remark that they were “put on the bed.” It is contended by defendant that this statement is not borne out by the evidence. It will be noticed that the court said, “If I understand rightly,” these were the facts claimed by the people. At the time of the charge, counsel made no objection to this statement, and sought in no way to have it corrected, and for the first time makes the complaint here that it was prejudicial to the defendant. If, at the time, counsel had called the attention of the trial court to it, and the statement was not borne out by the testimony, the court would undoubtedly have corrected it. That is the way, the court stated, he understood the testimony, and the statement was left unchallenged by counsel. If it was prejudicial to respondent, the time to have corrected it was then, by calling the attention of the court to it, either at the time the charge was given or at its conclusion. The case does not fall within the ruling of this court in Cousins v. Railway Co., 96 Mich. 390. There the plaintiff offered no testimony which tended to show that she had expended any money in an attempt to be cured of her injuries. The court stated to the jury that she had expended considerable money in seeking to be cured, and that she was entitled to recover such amount as would reasonably compensate her for the moneys she had expended in seeking to cure herself of her injuries, etc. These moneys so expended were the basis of her recovery. In the present case the remark was inadvertently made. The testimony showed that Caldwell sold Taylor and Mrs. Hayes whisky, which they drank in his presence, until they were both drunk. Taylor says he was dead drunk, and that the next morning he found himself in a room upstairs over the saloon, and on the bed with Mrs. Hayes. She testified that she drank there of whisky furnished by Caldwell, and became dead drunk, and the next morning found herself in the room upstairs over the saloon, on the bed with Taylor. Just how they came to be on the bed is not explained. Under the circumstances, we are unable to say that, if any error was committed, it was prejudicial to the defendant. If the testimony is true, it all occurred in his place of business, and the room where the parties found themselves on the bed was within his control.

6. Complaint is made of some of the remarks of the prosecutor, but, as we think the case should not be reversed upon the ground that they were improper, the question will not be discussed.

We find no error in the record, and the conviction must be affirmed.

Grant, Montgomery, and Hooker, JJ., concurred. McGrath, C. J., took no part in the decision.


author: Grant, J.

text:
    RICH v. CHAMBERLAIN.
    1. Female Prisoners — Commutation of Sentence — Transfer to House of Correction — Authority of Governor.
    Under 2 How. Stat. § 9865, providing that, whenever the sentence of any female confined in the State prison shall be, by the governor or other competent authority, “commuted to confinement for any period in the Detroit House of Correction,” the agent of the prison shall at once transmit such person to the superintendent of said house of correction, who shall keep her therein until the expiration of her sentence “ as commuted,” the governor has power to order that a woman sentenced to imprisonment in the State prison for life be transferred to the house of correction, without shortening the term of imprisonment.
    S. Sentence of Imprisonment — Transfer of Convicts.
    A sentence to imprisonment in a penal institution is subject to the provisions of law then in force for the transfer of convicts from one prison to another.

      3 Contract for Maintenance of Prisoners — Repeal op Statute-Effect.
    A valid contract made by tbe board of inspectors of the State prison for the keeping of female prisoners in the Detroit House of Correction was not abrogated by Act No. 118, Pub. Acts 1893, which, while superseding all prior acts relating to the management of the penal institutions of the State, expressly saved all existing rights and liabilities.

      Mandamus by John T. Rich, Governor of the State of Michigan, to compel William Chamberlain, Warden of the State Prison at Jackson, to transfer a female convict to the Detroit House of Correction.
    Submitted December 3, 1895.
    Granted December 10, 1895.

      Fred A. Maynard, Attorney General, for relator.

      J. If. Cole, for respondent.
   Grant, J.

One Nellie W. Pope was convicted of the crime of murder in the first degree, and sentenced to the State prison for life. November 14th last, the relator commuted her sentence to imprisonment in the Detroit House of Correction for life, acting under the authority conferred upon him by section 9865, 2 How. Stat. This is a friendly proceeding to obtain a construction of that statute, which reads as follows:

“Whenever the sentence of any female now confined or that'shall hereafter be confined in the State prison shall be, by the Governor or other competent authority, commuted to confinement for any period in the Detroit House of Correction, it shall be the duty of the agent of said State prison to at once transmit such person in proper and safe custody to the superintendent of said house of correction, -whose duty it shall be to receive and safely keep her in said house of correction until the expiration of her sentence as commuted, or until she is otherwise discharged by due process of law or competent authority.”

It is conceded that the legislature may provide for the transfer of a female prisoner from life imprisonment in the State prison to life confinement in the Detroit House-of Correction, and may call this a commutation of her sentence; but the respondent insists that the above statute does not so provide. It would follow, from such construction, that the Governor has no power to commute the sentence of a female prisoner to that institution, even though he lessened the term of imprisonment. To commute is defined: “To exchange one penalty or punishment for another, less severe.” Webst. Dict. “The change of a punishment to which a person has been condemned into a less severe one.” Bouv. Law Dict.; 3 Am. & Eng. Enc. Law, 365. “The substitution of a less for a greater penalty or punishment.” And. Law Dict. The-above statute was enacted in 1879, and has ever since been acted upon as conferring the authority upon the Governor. Its evident purpose was to provide for the transfer of female prisoners from the State prison to the Detroit House of Correction. The Constitution clothes the governor with the power to commute. The legislature has seen fit to call this a commutation, possibly due to the popular idea that incarceration in a house of correction is less severe and odious than incarceration in a State prison. We, however, have no concern in the motive which prompted the law. The power to transfer is-conceded, and, as well, the power of the legislature to declare such transfer to be a commutation. It is true that the court, in sentencing Mrs. Pope, had no power to sentence her to any other place than the State prison at Jackson; but this sentence was subject to the conditions imposed by law at the time of the sentence, among which was the power in the Governor to commute the sentence to imprisonment in the Detroit House of Correction. Rich v. Chamberlain, 104 Mich. 436.

The old board of the State prison at Jackson was abolished by Act No. 140 of the Public Acts of 1891. We held that Act No. 118, Pub. Acts 1893, superseded all the acts previously in force covering the entire management,. control, and discipline of all the penal institutions of the State. Attorney General v. Parsell, 100 Mich. 170. That act expressly saved all rights and liabilities existing, acquired, or incurred at the time it took effect. A contract had been made by the board of inspectors of the State prison for-the keeping of female prisoners in the Detroit House of Correction. That contract is still in force, and will continue to be until abrogated by the proper authorities.

The writ must issue, but without costs.

The other Justices concurred.


author: Hooker, J.

text:
    STANLEY v. ANDERSON.
    1. Pleading — Amendment op Declaration — New Cause op Action.
    The amendment of a declaration in an action on a contract by inserting more specific allegations in relation to the breach relied upon is not open to the objection that it introduces a new cause of action, which is barred by the statute of limitations.

      2. Secondary Evidence — Lost Instrument.
    Evidence that a contract was filed with a justice of the peace at the time of commencement of suit thereon, that the justice has been dead several years, and that the custodian of his docket, who is a successor in office, as well as plaintiff’s counsel in the case, have been unable, after search, to find it, renders a copy of the contract admissible.
    3. Justices’ Courts — Appeal—Jurisdiction—Interest on Judgment.
    While, upon appeal from a justice’s judgment, the circuit court is limited to the jui'isdiction of the justice so far as the amount of the original claim is concerned, interest from the date of such judgment is recoverable, and this without amending the ad damnum clause.

      4. Debtor and Creditor — Contract—Demand—Payment.
    An agreement to pay a specified amount at a given time and place in goods is not forfeited by a failure to demand payment at the precise time and place, but the debtor must hold himself in readiness to make the payment when demanded.
    Error to Newaygo; Palmer, J.
    Submitted December 4, 1895.
    Decided December 10, 1895.

      Assumpsit by John Stanley against William A. Anderson for the breach of a contract to deliver lumber in payment of a debt. Plaintiff had judgment in justice’s court, and an appeal was taken to the circuit, where judgment was again rendered against defendant, and also against Job T. Reynolds and John Cole, as sureties on his appeal bond. Defendants bring error.
    Judgment modified and affirmed.

      W. D. Fuller (A. F. Ti'bbitts, of counsel), for appellants.

      J3. L. Gray, for appellee.
   Hooker, J.

Stanley recovered a judgment for $300-damages and $5.26 costs, in justice’s court, on July 22, 1875, against Anderson, who thereupon appealed to the circuit court. Defendants Cole and Reynolds were his sureties upon the appeal bond, which was in the penal sum of $610.52. The case was tried at the circuit in 1894, and resulted in a judgment against Anderson and his sureties upon the appeal bond for $603.20 damages, and costs to be taxed, from which judgment the defendants appeal to this court.

The declaration in justice’s court was in writing, and set up a copy of a contract, as follows:

•‘This agreement, made this 11th day of September, 1868, between William A. Anderson, of the township of Denver, county of Newaygo, and State of Michigan, of the first part, and John Stanley, of the place aforesaid, of the second part, witnessetli that the aforesaid parties agree to and with each other as follows, to wit: In consideration of the sum of $400, to him in hand paid, the party of the first part, the receipt whereof is hereby confessed and acknowledged: Now, therefore, he agrees to do for the party of the second part sawing to the amount of the aforesaid sum, at the usual price, at the mill of William A. Anderson, situated on the west half of the northwest quarter of section 30, in town 14 N., 13 W. The party of the second part is to furnish the logs as follows, to wit, enough to come to $100, each and every year until the above amount is paid. And, if said Stanley fail to furnish the logs as stated above, all is to become due in good, salable lumber, at the customary price, at the end of four years from this date, at the aforesaid sawmill.”

The declaration continued as follows:

“And the plaintiff, further complaining of the said defendant, avers that the said above-mentioned period of four years from the said 11th day of September, 1868, has long since elapsed, and that the said defendant has not performed the labor in said agreement by him agreed to be performed, and has not delivered the said materials by him agreed to be delivered, to the damage of said plaintiff of $300.”

It will be noticed that this declaration does not allege that the plaintiff had failed to deliver the logs to be sawed, whereby he became entitled to lumber under the contract, and that it does not state that any demand for lumber under said contract had been made. No plea was filed in the justice’s court, but at the circuit, on December 12,1892, a plea of the general issue was filed, without leave of court. On February 26, 1893, a trial was begun, and plaintiff submitted to a nonsuit, which was set aside; and on September 20,1893, by leave of court, an amended declaration was filed, to which, after the denial of a motion to quash, the defendant filed a plea of the general issue, with notice of the statute of limitations. The amended declaration is similar to the first, but contains the allegations mentioned as omitted from that; and defendant contends that this was the introduction of a different cause of action, and that it was error not to direct a verdict under the notice of the statute of limitations. It is said, further, that the declaration first' filed was merely a declaration on the common counts (they being appended to the special count), because the special count stated no cause of action, and, therefore, that the second declaration set forth a new cause of action.

Had the first declaration been attacked in justice’s court by a demurrer, it would probably have been found insufficient. Then the plaintiff would have been permitted to amend. But the defendant chose to wait until the case reached the circuit. Pleadings in justice’s court, where not demurred to, are construed liberally; and if this declaration was not technically sufficient, in the opinion of the court, it was within his discretion to permit an amendment. This the circuit court did, and: it is manifest that the new declaration counts upon the same contract and the same breach as was attempted to be counted upon by the former one. One and the same cause of action was set up, or attempted to be stated, in both; and counsel’s contention must rest upon the somewhat technical proposition that, because the first declaration was defective in alleging the cause of action, to the extent that it did not contain a sufficient allegation of a breach, no cause of action was set up, and of necessity the amended declaration, which did set up a cause of action, must state a new and different one. We think this contention is too technical, and that the cases cited are so readily distinguishable in this respect as not to call for a discussion of them. Pratt v. Circuit Judge, 105 Mich. 499.

Upon the trial, secondary evidence of the contract was given, after the introduction of testimony tending to show that it was filed with the justice, and that he had been dead eight years, and that the custodian of his docket, a successor in office, was unable to find it after search. There was also evidence that counsel in the case had made search for it, without finding it. We think this sufficient to justify the introduction of a copy.

It will be observed that nearly 20 years intervened between the dates of the two judgments, and that the original judgment of $300, with interest, might well amount to the sum for which judgment was rendered. The ad dornwmn clause was $300. At the trial it was claimed that the recovery could not ■ exceed this, and counsel for plaintiff asked leave to amend, which was denied. Had this been allowed, it would have relieved the sureties. Evers v. Sager, 28 Mich. 48. The statute gives justices jurisdiction to the extent of $300. To say that the circuit court, upon appeal, can render judgment for no more, would put a premium upon appeals; for it would have the effect to stop interest in such cases where the judgment below was rendered for $300, or whenever, with interest, it should amount to such sum. This would be manifestly unjust. We think that, while the circuit court is limited to the jurisdiction in the amount of the original claim, the interest from the date of the judgment rendered by the justice may be recovered, and this without amending the ad damnum clause. This is the view taken of this subject by the supreme court of Illinois in Tindall v. Meeker, 1 Scam. 139; it being there said that “the rule in such cases is, if an inferior court has jurisdiction ab origine, no subsequent fact arising in the case can defeat it, when it was lawful in the inception.”

The claim is made that a verdict should have been directed for the defendant, upon the ground that plaintiff did not show that the defendant did not have the lumber to pay the same, at the sawmill, at the time it became due. The testimony showed that at this time the plaintiff was out of the State, and that after his return he asked Anderson if he had any lumber for him, and he answered no; that he was turning his mill into a shingle mill. Plaintiff said he would take shingles, then, and defendant answered that ho would see. Three weeks later the plaintiff asked him if he had made the shingles yet, and he replied, “Yes, and sold them,” and thereupon the plaintiff asked when he was going to pack some more, and he said he did not know as he should make any more. Upon this testimony, it was proper to submit the case to the jury; for, if it was necessary that the plaintiff make a demand, his failure to do so at the precise time and place set did not -wipe out the debt. If the defendant was prepared to pay in lumber when due, and if it was not incumbent upon him to prove it, like a tender of money, certainly he must keep his tender good, and, when payment is demanded, cannot treat the obligation as paid. At the most, he would be relieved from the payment of interest during the interval between the maturity of the obligation and the demand.

The judgment was entered against the sureties for damages and costs. As their bond was but a few dollars more that the damages recovered, it is possible that, with the costs that may be taxed,- the judgment will exceed the amount of the bond. The circuit court should permit an amendment limiting the judgment against the sureties to the amount of their bond.

• In all other respects the judgment will be affirmed.

The other Justices concurred.


text:
    WREFORD v. KENRICK.
    Landlord and Tenant — Eviction—Termination op Lease — Liability por Rent.
    Where, under a lease authorizing the lessor to terminate it at his option for nonpayment of rent, the lessor serves a notice to quit, and immediately thereafter excludes the lessee from a portion of the premises, the latter is not liable for the rent of such part of the premises after his exclusion therefrom, nor for any rent after vacating the remainder of the premises in accordance with the notice.
    Error to Wayne; Frazer, J.
    Submitted December 6, 1895.
    Decided December 10, 1895.

      Assumpsit by William Wreford and another against Edwin H. Kenrick for rent. From a judgment in their favor for less than the amount claimed, plaintiffs bring error.
    Affirmed.

      Oscar ■J/'. Springer (D. F. Glidden, of counsel), for appellants.

      Charles K. Latham and Horace II. Baehham, for appellee.
   Hooker, J.

The uncontradicted evidence shows that the defendant rented certain premises of the plaintiffs, the rent being payable monthly in advance. The rent due August 1st not being paid when due, two days later the plaintiffs served upon the defendant a notice to quit, or pay the advance rent.’ The next day an attachment was taken out for the rent, and levied upon some property in the dining room and kitchen of the premises, and the defendant was excluded therefrom, and a Mrs. Keel, who owned and had sold to the defendant conditionally most of the personál property, was put in control, and conducted the business previously carried on there. Within seven days after the notice was served, the defendant vacated the other portions of the premises. Upon the trial the plaintiffs claimed the right to recover rent for the month of August, but the court directed a verdict in their favor for seven days’ rent of the premises, excepting the dining room and kitchen, and four days’ rent of the remainder, holding their conduct to have amounted to an eviction of their tenant, and that, with such eviction, their right to rent for a ¡subsequent time ceased.

The record does not contain a copy of the lease, but the charge indicates that it provided for a termination of the lease, at the option of the lessors, for nonpayment of rent, of which provision the lessors availed themselves by a notice to quit, and, after eviction from a portion of the premises, the lessee recognized said right of the lessors by vacating the remainder of the premises within the statutory period, in accordance with the notice. See OonJoUng v. Tuttle, 52 Mich. 630. The right to rent ended as to the dining room and kitchen, at least, when the defendant was evicted, and as to the remainder, if not already terminated by eviction from a portion, when the same was vacated. We think that the plaintiffs have no cause to complain of this instruction, which was justified by the uncontradicted testimony, and that it is unnecessary to discuss the numerous assignments of error, which would in no wTay affect the result.

The judgment is therefore affirmed.

The other Justices concurred.


text:
    HITCHCOCK v. SUPREME TENT OF KNIGHTS OF MACCABEES OF THE WORLD.
    1. Damages — Instructions to Jury — Harmless Error.
    An erroneous instruction authorizing a verdict for nominal damages is not prejudicial, where a verdict is returned for a substantial amount.
    2. Appeal — Instructions to Jury.
    In the absence of positive error in the instructions given, a party who has presented no requests to charge cannot complain that his theory of the case was not properly presented to the jury.

      Error to Saginaw; McKnight, J.
    Submitted October 13, 1895.
    Decided December 17, 1895.

      Assumpsit by Edward M. Hitchcock against the Supreme Tent of the Knights of the Maccabees of the World, for the breach of a contract of employment. From a judgment in his favor for less than the amount claimed, plaintiff brings error.
    Affirmed.

      Rowland Connor, for appellant.

      MoDoneJl <£- Hall, for appellee.
   Hooker, J.

A statement of the facts necessary to show’ the character of this cause will be found in the opinion filed upon the former review, reported in 100 Mich. 40. Upon a second trial the court directed a verdict for the plaintiff, but left it to the jury to determine whether the damages should be more than nominal, and a verdict for $458.75 damages was returned. The plaintiff appeals.

It is claimed that it was error for the court to permit a verdict for nominal damages, for the reason that there was nothing to contradict the testimony tending to show substantial damage, and that his statement that the defendant, among other things, claimed that the plaintiff suffered no loss from being prevented from performing the contract, was unwarranted. The contract in question was one which gave to the plaintiff a share of his earnings for the defendant in the establishment of subordinate lodges of the order of Maccabees, in the State of Indiana. Of necessity, it was not demonstrable that such earnings would produce a particular sum in excess of necessary expenses, but the evidence might show a probability that they would exceed such expenses, and the amount of such excess might be reasonably deducible. Counsel seems to contend that under the evidence the last proposition was beyond dispute, and that the judge should have told the jury that they must award more than nominal damages. But, as the jury found a verdict for a substantial sum, it is evident that no injury resulted from the failure to inform them that the recovery should not be limited to nominal damages, which disposes of the various assignments of error involving that question. It also disposes of the question arising upon the request to charge, given by the court, that if the jury were wholly at sea, and unable to fix a basis of recovery with reasonable certainty, the verdict should be six cents. Evidently, the jury were able to find a basis upon which to permit a recovery.

It is contended next that the court failed to submit to the jury the plaintiff’s theory of the case in an intelligent manner. The portion which counsel mentions as omitted is the claim for one-fourth part of th'e annual per capita tax upon members. He says, “The plaintiff had a right to have his theory clearly presented to the jury.” We are not informed that a request containing this claim was refused, and we cannot suppose thát counsel left the jury in ignorance of it. The court did not intimate that it was not recoverable, and there is no reason to suppose that the jury failed to understand that it was to be considered.

Complaint is made that the court was in error in “refusing to follow the former decision,” presumably upon the question of damages. We are not shown a record of such refusal, and the discussion of the subject under the fifth subdivision of the brief does not point out wherein the charge was erroneous.

We find no error in the record of the trial, nor in the refusal of the motion for a new trial, and think it unnecessary to discuss the numerous assignments of error separately.

The judgment is affirmed.

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