author: Christiancy J. Campbell J.

text:
    The People v. John Pitcher and another.

      Evidence: Declaration of one of several engaged in criminal enterprise. Where a person receives, with guilty knowledge, property stolen by another, and afterwards sells it, the presumption will arise that the whole transaction was on joint account; and the declaration of either of the parties, made before the sale, concerning the terms and incidents of the common enterprise, are admissible, on the same principle which allows the statements of co-con-spirators to be received in evidence.

      Error: Evidence: Charge of Court. Where evidence is received which could only be made pertinent by other proofs not furnished, and the jury are subsequently instructed, in the absence of such further evidence, to disregard it, the defendant can not allege error upon its admission.

      Concealment of party charged with crime, evidence of guilt. The absconding of the party charged as principally concerned in stealing the property, and his concealment after Ms return, may properly be regarded, in connection with proof that defendant desired Mm to leave, as circumstances bearing upon the question of guilt.
    Testimony, that an officer going to serve a subpcena on the defendant while he was, in fact, at home in bed, was informed by his wife, through the window, that he was absent; and also showing, further, that on the next day the defendant falsely stated that he had been away, and had just returned, was properly received as bearing upon guilty knowledge.

      Stolen property: Proof of identity by comparison. The property stolen consisted of wool in fleeces. It was competent to prove the weight and quality of fleeces shown to a witness by defendant after the theft, and alleged to have been taken from Ms own sheep, for purposes of comparison; such wool being stored in defendant’s house, where the stolen wool was proven to have been carried.

      Heard May 4th.

      Decided May 14th.

    Error to Lenawee Circuit.
    The defendant, John Pitcher, was tried and convicted upon an information for receiving and concealing stolen ■property. The fact of the larceny was proved by Arnold P. Graves, from whom the property was stolen. The testimony of David O. Newman, an accomplice, was introduced on the part of the people. This witness testified that he and Samuel Reed stole the property in question, and carried-it in the night time to the house of the defendant, who received and concealed it. The leading points made in the bill of exceptions were upon the rulings of the court touching the admission of the testimony of this witness.
    The exceptions are stated in the opinion.'

      Wm. X. Stoughton, Att’y General, and O. JEJ. Weaver, for the People.
    1. The first assignment of error is’“In overruling the objection of the counsel for the defendant, to the question put by the counsel for the People to the witness, David Newman, as to the purpose for which he and Reed left the wool at Pitcher’s.”
    The court only permitted the witness to respond to the question, by stating whether he knew of any arrangement between himself and Pitcher, or Pitcher and Reed, as to the purpose of delivering the wool to Pitcher; not, however, testifying to any statement of Reed’s on that subject, prior to the delivery of the wool, or some portion thereof, to Pitcher. With this restriction, the question was clearly competent.
    But, even if it were otherwise, the defendant would have no cause of complaint. There was no answer to the question. Error will not lie in such a case. —13 Mich. 21; 4 Par Jeer’s Or. X. 344, 3*7 6.
    This principle also disposes of the third assignment of error. No answer whatever was given to the question objected to.
    2. The second, fourth, fifth and sixth points made in the bill of exceptions, relate to the statements and acts of Reecl, from the commission of the offense np to the disposition of the wool, and the question raised is clearly set forth in the charge asked and refused, and in that given by the court. There was no error in the admission of this testimony, or in the charge of the court. In all cases of conspiracy, or other crimes perpetrated by several persons, when once the conspiracy or combination is -established, the act or declaration of one conspirator or accomplice, in the prosecution of the unlawful enterprise, is considered the act of all, and is evidence against all.— 1 Greenl. JEv. §233 ; 2 Peters, 358; 3 S. & P. 9; 4 iShepl. 293; 1 Wheat. 298; 1 Wheat. Am. O. I. 702, and cases there cited.

    The evidence to establish the unlawful combination, need not be conclusive. It is only necessary that it should be sufficient in the opinion of the court, prima facie, to establish the fact of combination between the parties, or to be laid before the jury as tending to establish such fact. If there is any such evidence, it becomes a matter of discretion, and can not be reviewed. — 1 Doug. p. 106; 12 Mich. 449.
    S. The seventh, eighth, ninth and tenth points made in the bill of exceptions, relate to the introduction by the prosecution of evidence showing the subsequent conduct and flight of Samuel Reed, one of the defendants. Standing alone, this would not be evidence against Pitcher, but it was offered in connection with other evidence, tending to show that Pitcher incited and advised his flight, in order to prevent an investigation into the larceny and concealment of the wool. And when thus brought home to the defendant, it would be competent both as showing his guilty knowledge, and as an attempt to evade justice.'— 1 Whart. Am. C. L. § 714; 21 Whart. 509.
    It is not necessary that the relevancy of the evidence should clearly appear at the time it is offered; and if not rendered material by proof connecting it with the issue, it is sufficient for the court to rule it out of the case.— 1 Greenl. JEv. §51; 8 Mich. 857.
    The charge of the court places the evidence "on the true ground, and ruled out all except what was actually connected by the proofs, with the defendant.
    4. The eleventh assignment of error is in relation to the introduction of the testimony of James K. Johnson, as to what was said and done at the house of the defendant, Pitcher, when he was there in the capacity of deputy sheriff, on the 10th or 11th of June. It clearly appeared that defendant was at home, and it was a question for the jury to ascertain whether he understood and assented to the false statements made by his wife. — 1 Whart. Am. G. L. §696; 3 Hawhes, 377; 10 Geo. 511.
    5. The thirteenth assignment of error is based on the ruling of the court upon the objection to the question put to George Morton, as to the weight of the fleeces raised by defendant Pitcher, as he claimed at the time he examined them at defendant’s house.
    An examination of the evidence will at once show the materiality of this question. The defendant attempted to show, upon the trial, that the fleeces of wool which he raised were of the same weight as those stolen. For the purpose of rebutting this testimony, it was clearly competent for the prosecution to show that the fleeces which the defendant claimed he raised, at the time he sold his wool, were of much less weight.
    In conclusion, we claim that no injury has been done to the defendant. Error, without injury, is no ground for reversing a judgment. —- 6 Mich. 287 ; 3 Hill, 214; 2 Hill, 205; 2 Gomst. 193; 4 1Jenio, 153.
    And, if, inadvertently, in the course of the trial, there was any error, which we do not, however, concede, it was corrected in the charge of the court; and all evidence not clearly competent, was withdrawn from the consideration of the jury. They could not have been misled, and we submit that the verdict ought not to be disturbed.

      C. A. Stacy, for defendant Pitcher.
    The exceptions to the admission of evidence in this case, were all based on the idea that the defendant, John Pitcher, was to be held responsible for his own acts and statements alone, and not for the admission or acts of Samuel Reed or David Newman, made out of his presence, and not afterwards sanctioned or affirmed by any admission or acts of John Pitcher himself.
    1. • A confession is only evidence against the party himself who made it, and can not be used against the others.— 5 Ohio, 539; 2 Peters, 364; 19 PJ. O. L. 428.
    2. The statements or letters of another party implicated must appear to have been said or written in furtherance of the common design and not as a mere relation of a past transaction. — Poscoe Or. Mv. 77, 84, note 1, 417; 24 Howe State Trials, 475; 1 Phillipps Mv. 95; 1 Wharton Or. Paw, 704, 705; 10 PicJc. 497; 11 Id. 362; 12 Conn. 243; 19 Id. 250; 8 Met. 436; 16 Me. 465, 469, 293; 4 Gray, 411; 9 Cush. 36; 1 C. and P. 521; Greenl, Mv. §§ 108, 110, 111.
    These cases show that in a case like the present the statement of a co - defendant, not on tidal, should not be received in evidence against the defendant not present or acquiescing in the truth of the statement. Without the objectionable testimony, there was nothing to connect this defendant with the transaction but a bare statement unreasonable in itself and uncorroborated in anything tending to show the participation of the defendant in the transaction.
    3. The requests of the counsel for the defendant to the Circuit Judge should have been granted. There is nothing in the testimony which shows the time of the sale of the wool except Newman’s statement, and that leaves the time indefinite.
   Christiancy J.

The charge against the defendant, Pitcher, was for receiving, buying and concealing thirty-five fleeces of wool, the property of one Graves, knowing the same to have been stolen.

On the trial one Newman testified that he, the witness, and Samuel Reed (the defendant not on trial) stole the fleeces of wool from the barn of Graves, on the night of the 4th day of July, put the same into Reed’s wagon, and drove in a circuitous route to the house of the defendant, Pitcher, stopping in the road opposite his house and witness remaining in the wagon; that this was about one or two o’clock on the morning of the 5th of July; that Reed got out of the wagon and went in, and when he came out, defendant, Pitcher, came out with him, having on only his shirt and pants, and being bareheaded and barefooted. That they came out near the gate, and Reed handed Pitcher the wool, who carried it in on the east side of the house, but, after they passed the corner of the house, witness could not see where they went. Reed also took a load of the wool, and so on till they took it all out.

That Reed and Pitcher had a little conversation, but witness did not know what it was; he did not see where they took the wool; he never saw it again, and knew nothing more of it except what ivas told him by Reed.

There was also evidence tending to show that Pitcher sold the wool on the 20th and 28th of July.

Newman was asked for what purpose he and Reed left the wool at Pitcher’s. To this, exception was taken, but the witness was allowed to answer. We think the question was relevant and admissible, and if it had not been so, there was no error, as the question elicited no evidence, except that witness knew of no arrangement with Pitcher except what Reed told him, without stating what it was.

But the same witness was afterwards allowed,, in answer to other questions duly objected to, to state what Reed told him after leaving the wool at Pitcher’s, and acts of Reed in reference to the matter, from which it appeared in substance that on the way home, after leaving the wool at Pitcher’s, Reed told witness that Pitcher would secrete it among his wool and would dispose of it for them when he did his own, and that they would have one-third each — that witness and Reed ought to have more but that Pitcher would probably want a third — that some ten days after this, Reed said something to witness about some sheep and wool, and said he would like to have some money pretty soon, and wished Pitcher would sell the wool. About ten days after the wool was left at Pitcher’s, witness saw Reed and Pitcher together by themselves, but don’t know what the conversation was — saw them together after that time. That from two to four weeks after the wool was left, Reed paid witness about seventy-five dollars which he represented to be for witness’ share of the wool; Reed figured the amount and represented it to be one-third of the amount for’ which the wool had been sold. Exceptions were taken in due form to all this testimony.

The court charged the jury upon this point that if they believed the statements of Newman as to the delivery of the wool to Pitcher, and his receipt of the same for the purpose of concealing and disposing of it, on the request or by the understanding of Reed, then the statements and acts of Reed testified to in the case, from that time up to the disposition of the wool by defendant, were competent evidence. This testimony of Newman and this charge raise the main question in the case. The general rule is well settled that, where several persons are engaged in one common unlawful enterprise, whatever is said or done by any one of them in the prosecution of the common enterprise, or while it is still in progress, is evidence against all the parties to it. But after the common purpose or enterprise has been fully completed or terminated, the statements of one or more of them, in reference to any things connected vjith that j)ast transaction, become as to the others, res inter alios, mere hearsay, neither binding upon nor evidence against any of the others, for the reason that they are no longer supposed to be acting with one common design, and one is in no sense the agent of the other.

The common design or concert in a common enterprise is the only basis for the admission of such statements. But like most other facts this is not required to be established by positive proof. It may be and generally is supported only by circumstantial evidence. And it is sufficient that there be evidence tending to establish the fact, and from which the jury may fairly infer it. The weight of the evidence upon this, as upon the other facts in the case, is for the jury.

Independent, then, of the statements of Reed (which upon the question of their admissibility are to be excluded), was there evidence in the cause fairly tending to show that Reed and Pitcher were engaged in a common criminal enterprise, Avith reference to this wool, which Avas yet in progress or uncompleted when those statements Avere made?

The only evidence that can be claimed to have had such tendency is that of Pitcher’s receiving the avooI at the time of night and under the circumstances mentioned by NeAvman, and his conversation with Reed at the time, the purport of Avhich is not known. That this evidence had a strong tendency to show that Pitcher received the wool with the guilty knowledge that it had been stolen, Avill not be questioned. And as it would be unreasonable to infer that Reed and Newman were stealing the avooI out of pure benevolence toward Pitcher, the tendency of the evidence was to show that tlie enterprise was for the common benefit of the three; and that it was to be in some way disposed of for this purpose. It was not a kind of property which could be used or enjoyed in its then present shape. The evidence, it is true, is not such as absolutely to exclude the hypothesis that Pitcher might have purchased it of Reed, and paid or agreed to pay for it such price as to give each a share of the adventure. But, as Newman, who was there, knew or heard nothing of this kind, and no evidence of the kind appears, it can 'not be said that the evidence tends at all to prove such sale to Pitcher; on the contrary, much the more natural inference, it seems to me, is either that the wool was to be sold by Pitcher for the common benefit, or kept for the joint benefit of all, to be disposed of by Reed or Newman on their joint account, when a favorable opportunity should occur; and in either case the inference to be drawn, and, therefore, the tendency of the evidence, would be to show that the common enterprise was to continue until the wool should be sold and the proceeds distributed. As no statements of Reed after the distribution of the proceeds were given in evidence, and the court charged the jury, in effect, that no statements of Reed, made after the disposition of the wool by Pitcher, could affect him, I think there was no error upon this point.

There was evidence tending to show that defendant, Pitcher, some time after the sale of the wool, and before either of them had been prosecuted, was anxious that Reed should run away. And a witness was allowed under objection to testify that he (the witness) drew up a note for Reed, payable to defendant, Pitcher, for fifty dollars, just before Reed did actually leave, which was signed by said Reed, and left with the brother of Pitcher, who was present when it was drawn. But there was no evidence tending to show that the note ever came to the defendant’s hands, or that he knew of its existence, or that he paid any money upon it. This was certainly no evidence against the defendant without connecting him with it; and its admission might have been error had it been allowed to go to the jury; but the Court charged the jury that the fact of signing the note is of no import or consequence unless the same reached the defendant. This, in effect, took the evidence from the jury.

Testimony was allowed to be given that Reed was accused of the offense, that he went away and was gone some time, that when he returned he kept concealed and endeavored to -evade the officers. To these matters exceptions were taken. The bearing of this evidence upon the defendant was very slight, but, taken in connection with other testimony going to show defendant’s anxiety that Reed should run away, I am inclined to think there was no error in its admission.

The prosecution was allowed to prove, under objection, that an officer on going to defendants’ house about eleven o’clock at night to serve a subpoena upon him, knocked at the door for some time without effect, and, failing in this, went to a window and rattled it, when, after some time, defendant’s wife called out and asked who was there and what he wanted; and, the officer having answered and told his business, she told him her husband was not at home, but was gone to Ohio to buy cattle. He finally persuaded her to strike a light, showed her the subpoena, and gave her a copy, through the window. Proof was also given that the defendant was in the house in bed at the time; that another man who was in bed in the same house heard the whole proceeding; that 'the next day Pitcher went to Adrian and falsely stated that he had just come in on the cars from Ohio. I see no legal objection to this testimony. It tended to show that he must have heard all that took place at his house while the officer was there; and that he was in fear of arrest, which could ordinarily arise only from a consciousness of guilt.

There was no error in allowing the witness, George Morton, who had been at defendant’s house and seen the fleeces of wool, represented to have come from defendants’ sheep, to testify as to the kind and weight of the fleeces.

It had a tendency, in connection with the other evidence, showing the kind of wool sold by him, to show that the stolen wool was among that sold.

The charge of the court was in accordance with the views I have expressed.

I think there is no error apparent upon the record; that. it should be certified to the Circuit Court for the county of Lenawee that there is no error in the proceedings, and that judgment should be given .in that court upon the verdict.

Martin Ch. J. and Cooley J. concurred.

Campbell J.

The chief error complained of in this case is the admission of the , statements of Reed, one of the thieves, to his associate, Newman, concerning the disposition to be made of the stolen property by Pitcher. These statements were made in Pitcher’s absence, and after he had received the goods. If true, they tended to show that he was, to dispose of the property, and pay over two-thirds of the proceeds.

I have very great doubts whether direct and legal proof of such an arrangement would render any statements of the other parties, who were merely passive, and had no further parts to perform, evidence against Pitcher, who was to be the sole actor. But without examining into this question, I have not been áble to perceive the slightest proof in the case tending to show that Pitcher had any further acts to perform on behalf of the rest, after the goods were traced into his possession, and therefore there was no ground for receiving the statements, which were only admissible on the theory of a continuing conspiracy. Newman swore positively that he had no knowledge of any such purpose, except from the subsequent statements of Reed. The reception of stolen goods has no necessary tendency to prove a purpose to sell on commission, any more than a purchase for cash. Neither the law nor commón experience can raise any presumption concerning any specific rule of business in such cases. No bargain is proved, and if one is assumed, it is a pure conjecture, which, without the statements of Reed, would have had no foundation whatever.

It seems to me that to admit this evidence was equivalent to proving the conspiracy by the statements, and then basing their admissibility on the conspiracy, which was not otherwise established.

I think there was error in this, and that the verdict should be set aside and a new trial granted. IJpon the other points I concur with my brethren.


source: Caselaw Access Project

author: Campbell J.

license: Public Domain

text:
    Brainard C. Knowles v. The People.

      Witness: Effect of false statements on remainder of testimony. Defendant was convicted of larceny on the testimony of one McEvoy, who swore that he and defendant committed the crime. There being testimony tending to show that McEvoy had made contradictory statements on material points, the court was requested to charge the jury that if the witness had, in anything material, sworn wilfully false, that his whole testimony must be rejected by them. This was refused, but the court charged that any such testimony would seriously affect all the witness had sworn to, and that no credit should be given to any fact depending upon his statement alone; but that when corroborated by proof or circumstances, it might receive such credit as it appeared to the jury to deserve. Seld, that there was no error in the .charge.

      Omission by husband, to call his wife as a witness, effect of It is error to allow tlie omission by a husband to call his wife as a witness on his behalf concerning matters supposed to be known by her, to be urged to the jury as a circumstance tending to prove guilt. The privilege of calling her or not, at his option, would be done away with, if any inference of guilt were allowed to be drawn from such omission; and it was not the design of the law to interfere with the harmony and confidence of the marital relation.

      Heard May 4th.

      Decided May 14th.

    Error to Lenawee Circuit.
    The defendant was convicted of larceny and sentenced to state prison.
    The decision of the questions involved turns upon the charges of the court below, which, with the facts, are stated in the opinion.

      C. A. Stacy, for plaintiff, in error,
    1. No credit should be given to any witness (much less to a witness standing in the position of accomplice, as McEvoy did in this case,) who has committed willful and corrupt perjury in the very testimony, which is relied on to convict the defendant.
    The maxim “Malsus in uno, falsus in omnibus" ought certainly to apply in such a case, if ever. — 5 Cow. 253, 246.
    So if his testimony be corruptly false in any particular, the whole must be rejected. — 1 Dev. 508; 8 Conn. 323; 1 Wheaton, 283, 338-9; 1 Cow. <& HilVs Notes to JPhillipps Mo. 396.
    2. The legislature have carefully protected the right of the husband, to refuse to call his wife if he chooses.
    If the effect of a neglect or refusal to call her as a witness is to raise a presumption of his guilt, then the provision of the statute, that she shall not be sworn against him without his consent, is nugatory.

      i W. M. Stoughton, Attorney General, for the People,
    1. The court did not err in refusing to charge the jury that if McEvoy swore willfully and knowingly false, in a material matter, his whole testimony must be rejected.— 1 Stark. Mo.' 520; Doug. 751; 7 Wheat. 2-3; 5 Cow. 243; 17 Maine, 267.
    2. The charge asked was an abstract question, not necessarily arising on the evidence; and a refusal to give a charge requested in such a case, is no error. — 1 Granah, 310; 1 Curtis’ Dig. 415.
    3. The omission by the defendant to call his wife as a witness, she being present in court, is a circumstance which the jury may take into consideration against him.
    The Sess. L. of 1861, make the husband and wife competent witnesses for and against each other in all criminal cases. — Sess. I. 1861, 168. But, neither the husband nor wife can be examined for or against the other, without his or her consent. — Ibid. 169.

      a. The general rule is, that when a party has the means in his power of rebutting and explaining the evidence . adduced against him, if it does not tend to the truth, the omission to do so, furnishes a strong inference against him. — Droonis legal Max. 843; 3 Stark. Ev. 937; 1 Greenleaf’s Ev. § 37; 1 Whart. Am. G. I. § 722; 3 Phil, on Ev. 473, and cases there cited; Gowp. 65.

      b. The testimony of the wife is placed by the act of 1861 upon the same footing as that of any other witness, with one exception: she cannot testify for or against the husband without his consent. The right to exclude her testimony is a personal privilege with him, and his refusal to offer such evidence naturally leads to the inference that if adduced it' would operate unfavorably against him.
    The common law disability is removed, and the wife stands in the same relation to her husband, when on trial, as any other witness, except his right to exclude her testimony.
    It will be observed that this question grew out of the evidence offered by the defendant. He attempted to meet the case made by the prosecution by setting up an alibi, and for this purpose offered evidence tending to show that at the time of the commission of the offense he was at home, in company with his wife. It further appears that she was present in court. The jury were compelled to pass upon the evidence offered by him. They were entitled to a full and fair showing on his part. If it appeared from his own evidence that he had neglected or refused to call a competent witness who had superior means of information, and was within his reach, and actually in court, it would seem to be contrary to every principle of the law of evidence, and the ordinary rules for the investigation of truth, to exclude that fact from their consideration.
    4. The rule at common law which excludes the hus. band or wife, as a witness for or against the other, was founded partly on the supposed identity of their legal interests, and partly on principles of public policy. — Neither of the reasons for the old rule can aid the case of the plaintiff in error.
    The legislature has made a material change, and the true reason of that change, undoubtedly, was to enlarge the field of investigation, and to enable all the facts and circumstances surrounding a criminal case to be. submitted to the consideration of the jury.
   Campbell J.

Defendant was convicted in the Circuit Court for the county of Lenawee of a charge of larceny, in stealing cattle. The conviction was had upon the testimony of Matthew McEvoy, who swore that he and the defendant committed the crime.

There being testimony tending to show that McEvoy had made contradictory statements on points material to the issue, the defendant asked the court to charge the jury that, if the witness had in any thing material sworn wilfully and knowingly to that which was false, his whole testimony must he disregarded by the jury. This request was refused, and the court charged in substance that any such falsehood would seriously affect all of the witness’s testimony, and that no credit should be given to any fact dependent upon his statements aloné; but that where corroborated by proofs or circumstances, it might receive such credit as it might appear to the jury to deserve.

There was no error in allowing the jury, with these cautions, to consider the testimony. There has never been any positive rule of law which excluded evidence from consideration entirely, on account of the wilful falsehood of a witness as to some portions of his testimony. Such disregard of his oath is enough to justify the belief that the witness is capable of any amount of falsification, and to make it no more than prudent to regard all that he says with strong suspicion, and to place no reliance on his mere statements; 'but when testimony is once before the jury, the weight and credibility of every portion of it is for them, and not for the court, to determine. The duty of the court is to give them such full cautions as will lead them to the intelligent performance of their functions; but if the testimony produces a clear and undoubted conviction in their minds, they may act upon that conviction, whether the evidence comes from an honest or a corrupt source. The court in the case at bar gave them to understand that no statement should be credited, unless rendered probable by circumstances of a corroborating nature. We think the matter was not laid before them erroneously.

Defendant having introduced testimony tending to prove that he was at home at the time when the larceny was said to have been committed, and there being evidence tending to show that his wife was at home at the same time, the court refused to instruct the jury that they had no right to consider the omission of defendant to call her as a witness, nor to allow the omission to prejudice him in their deliberation, and, on the contrary, instructed them that such neglect might be taken into consideration against him.

There is no doubt that a jury may regard with suspicion a failure of a party to produce testimony which is in his power, and which would throw light upon matters left without other proper evidence. But this rule has never been applied to those cases where the law, on grounds of public policy, has established privileges against being compelled to produce it. It is well settled that where a man avails himself of his privilege, to decline answering questions, no unfavorable inference can be allowed to be drawn from his silence; and in Carne v. Litchfield, 2 Mich. 340, the refusal of the Circuit Court to prevent counsel from commenting on such a claim of privilege, was held to be sufficient ground for reversing a judgment. Our statute, in changing the common law rule concerning the testimonial incapacities of husband and wife, has not made them competent witnesses for or against -each other without restriction, but has prohibited either from testifying without the consent of the other, and from divulging mutual confidences without mutual consent. It is very manifest that the rule which prevents a wife from being compelled to testify against her husband, is based on principles which are deemed important to preserve the marriage relation as one of full confidence and affection, and that this is regarded as more important to the public welfare than that the exigencies of law suits should authorize domestic peace to be disregarded, for the sake of ferreting out some fact not within the knowledge of strangers. If the omission to call a wife upon the stand is to be treated as warranting the conclusion that her testimony would be adverse, then the privilege is entirely destroyed, and she will have to be called at all events. The power of declining to call such a witness is not reserved to protect from awkward disclosures, but out of respect to the better feelings of humanity, which impel all right-minded persons to shrink from any needless exposure to the ordeal of a public examination, of persons who would be unnatural and unworthy if they did not feel a very strong bias in favor of their consorts. The law, in permitting husbands and Avives to testify on behalf of each other, can not have contemplated that any moral coercion should enable others to force them into the witness box. Lord Mansfield, in Blatch v. Archer, Cowp. 63, admitting the general rule that an omission to produce accessible evidence is suspicious, declared that it would have been very improper, without necessity, to call a son in a case where his father was interested, and held that the principle did not apply to such a state of things. Yet a son was always competent for any party. But the relation of husband and wife has always been held as one which should not be exposed to any needless influences which might interfere with the most unreserved confidence and security.

The court should not permit counsel to comment on the failure to produce such a witness, and should not allow the jury to give it any prejudicial weight. In the present case, there was peculiar impropriety in doing so, inasmuch as the testimony, if given, could have been but cumulative. ^"There are no degrees in parol evidence, and there is no which requires a fact to be proved by more than one witness, except in case of some peculiar offenses. But the main objection, and the only one urged, rests upon the impropriety of putting such a coercive influence upon parties as to compel them to do what the law leaves optional, and to make it incumbent on them to sacrifice the restraints of delicacy and. affection, or stand convicted by a forced implied confession.

The ruling was erroneous, and the judgment must be reversed, and a new trial granted.

The other Justices concurred.


author: Martin Ch. J. Campbell J. Cooley J. Christiancy J.

text:
    William C. Duncan v. Daniel J. Campau and others.

      Receiver: Final order. When the appointment of a receiver is sought merely as ancillary to other equitable relief, and does not divest legal rights, an interlocutory order appointing a receiver can not be appealed from.
    This case distinguished from Lewis v. Carwpau¡ 14 Mich. 458.

      Heard and decided May 15th.

    Appeal in Chancery from Wayne Circuit.
    This was a bill for partition of the real estate of the late Joseph Campau, deceased.
    A receiver was asked for, and the bill also prayed that the administrators of said Campau be enjoined from interfering with the estate; they having acquiesced in the action of several of the heirs attempting to dispose of it among themselves, in fraud of complainant, and having yielded possession.
    The court below granted an order appointing a receiver with the usual powers, and from which defendants appealed.
    At the hearing of the appeal in this court complainant moved that %he appeal be dismissed.

      D. C. Holbrook, Maynard and Meddaugh, and C. I Walker, for complainant.

      Levi Bishop and G. V. H. Lothrop, for defendants.
   Martin Ch. J.

Said he thought the appeal should be dismissed for the same reasons assigned by him in Lewis v. Campau, 14 Mich. 458.

Campbell J.

This case differs entirely from Lewis v. Campau. I think a legal estate can not be divested by preliminary proceedings. But nothing like that is attempted here. The receiver is appointed over nothing but the real estate. The bill shows that the administrators have given up possession of it, and they have joined with the other heirs in their attempts to divide it. We have held they were not bound to take possession unless they chose, and I doubt whether they could do so after such acts as are charged. It comes then to the simple inquiry whether a receiver can be appointed over tenants in common. I think the precedents permit this in some cases, and where, as in this case, the other tenants not only deny complainant’s title, but have endeavored to entangle the whole title, and are not disposed to account for the rents and profits, there is power to make such appointment. The bill, however defective, is a bill for partition. The receivership is merely incidental and ancillary, and we can not review the discretion of the judge in granting it.

Cooley J.

Regarded the order appealed from as clearly interlocutory within the former decisions by this court. The order in Lewis v. Campau gave the complainant that which his bill prayed for as the end and object of the bill upon that branch of the case; and the decision proceeded on the ground that the relief asked for, so far as the receiver was concerned, was ancillary, not to further relief to be had in that case, but to the proceedings on the probate appeal. The appointment in this case, on the contrary, is only pending the suit, and auxiliary to the principal relief which this bill prays for. Wisely or unwisely, the legislature have not authorized us to review such an order at this stage of the case.

Christiancy J.

Also concurred, considering the case quite distinct from the one referred to, though he did not think that a failure in the bill to make out a ease would make any difference as to the power of this court to review an order which in its frame and purpose was interlocutory.

The question whether an order is final or interlocutory does not depend upon the question whether it was properly or improperly granted.

Appeal dismissed.


author:
Campbell J.
      Cooley J.

text:
    In the matter of Samuel W. Jackson.

      Habeas Goipus, where party is detained in another state. Whether a writ of habeas carpus will issue from the Supreme Court to a person here, to bring into this state a minor child under guardianship here, and who has been, and continues to be detained in another state, quaere, the court being equally divided.

      Heard April 30th.

      Decided May 16th.
    In the matter of Samuel W. Jackson on petition of George W. Bissell and John Hosmer, guardians, for a writ of habeas corpus against Samuel S. Taff.
    The petition set forth that the said Samuel W. Jackson was a minor, and that petitioners were his testamentary guardians and entitled to his custody; that the said Taff had caused said minor to be carried out of the state of Michigan and beyond the jurisdiction of the courts of said state, and still continued (through his wife) to keep him out of the state after service of the writ. The respondent moved to quash and set it aside for matters appearing on the face of the petition, and especially, for the reasons that he was in effect charged thereby with a criminal offense and was called to answer thereto; and that it appeared that the said infant had been, since May, 1866, out of this state and beyond the jurisdiction of the court, and had not been restrained of his liberty within the state.
    Theodore Romeyn, for the respondent, insisted on these grounds for the dismissal of the writ.

      George Y. N. Lothrop, with whom was associated D. B. and H. M. Duffield, was heard for the relator and the court overruled the motion and ordered a return.
    The respondent then made the following return: “that he has not the said S. W. Jackson in his custody or under his power or restraint, and that he did not have him in his custody or under his power or restraint at the time of the application for this writ, and has not had him at any time since; and he further states that he has at no time transferred the custody or restraint of said S. W. Jackson to any person.”
    Mr. Lothrop, for the relator, objected to the return as insufficient and moved for a further return.
    Mr. Bomeyn insisted that the return was sufficient; that it was in the form prescribed by the statute, (2 Comp. L. § 5221,) and that it was the intention of the law to allow a general form of return and denial.
    Mr. Lothrop insisted that the matters alleged in the petition must be specifically answered.
    The majority of the court so held and ordered the respondent to make further answer.
    The defendant thereupon made a further return, setting up amongst other things that the said Samuel W. Jackson was taken out of the state by his wife in May, 1866, being before the said writ had been issued, and had never, since that time, been within the state; and that she had been duly appointed the guardian of said Jackson by the Surrogate’s Court of Canada, a court of competent jurisdiction in the province of Canada West; and that the child was not, when the writ was applied for, and had not been since, and was not now under the custody or control of the respondent.
    To this the relators filed a traverse, denying “that said respondent did not cause said child to be taken out of this state; that the respondent has not since such taking kept said child in the care and charge of his said wife absent from the state; that saicl respondent has no control over said child; that respondent does not support his said wife and child beyond the limits of this state, for the purpose of keeping said child from the custody of the petitioners; that the respondent did not have the said child in his custody, or under his power or restraint, when said writ issued; that he has not had said child in his custody, or under his power or restraint, at anytime since; and that he did not, at the time of said return, have said child in his custody, or under his power or restraint; these petitioners deny each and singular said averments, as made and alleged in said return, to be true, and they pray the same may be inquired of by this court.”
    Thereupon, respondent moved to quash the writ for want of jurisdiction, upon the case made by the papers.
    On the argument, Mr. Romeyn, for the respondent, made the following points:
    1. Both at common law and under the statute the writ of habeas corpus is confined to the relief of parties detained or restrained within the state. It has no application to a detention beyond the limits of the state.
    Such detention is an offense against the realm where it is committed, and the courts of another country can not relieve against it.
    2. The removal of the relator from the state, if unlawful, was a crime under its laws (2 Comp. JL. §§5735-5740-1); punishable as such, even as a felony.
    The crime against the people of the state was consummated when the child was removed. The further offense of unlawful imprisonment in another country is not to be remedied by this writ, issuing in the name and in behalf of the people of the state; and if the removal from the state was with intent to evade the process of its courts, then such removal was punishable as a contempt.
    3. The facts in this case do not show a detention by this respondent.

      4. If otherwise, the only relief in the courts of this state must be sought in equity. But,
    5. The appointment of the guardian in Canada is a conclusive answer to the ruling sought by the writ, or in any form in our courts.
    6. While that guardianship exists the petitioners here should go to the court in Canada and apply there for the surrender of the ward to them.
   Campbell J.

The question of jurisdiction presented by this motion is, whether, assuming that Taff, in May, 1866, caused the infant Samuel W. Jackson to be removed from this state, with the design of keeping him from the custody of his guardians, and has since that time been instrumental in having him detained beyond the state, this court has authority by the writ, of habeas corpus to compel the child, who has been all this time in other territory, to be brought back to Michigan.

If the court has such authority, and if the case set up by the relators should be made out, there can be no difference of opinion as to the propriety of its exercise. The removal is charged to have been made at a time when a decision of this court was to be given, which might, and when it was made actually did, settle the rights of the testamentary guardians to have the child under their control. If the allegations should be sustained, the respondent has been concerned in a very daring violation of law, for which he should be held to a strict account.

The gravity of the charges, and the danger which must arise if such conduct can not be reached, impose upon us the duty of considering with more than common care the question of jurisdiction, where action and refusal to act involve equally serious results.

Under the Constitution of Michigan the Supreme Court has jurisdiction to issue the writ of habeas corpus, and various other original and remedial writs, but in all other cases its authority is merely appellate. Art. 6, § 8. It is not doubted that the issuing of a writ of habeas corpus, when directed to bring up the body of a person not held under process, is an exercise of original and not of appellate jurisdiction. Inasmuch as the power is given in, general terms, it must be held to include any recognized jurisdiction exercised through this writ heretofore, at common law as well as by statute, unless there is some inconsistency in the claim, which has not been pointed out. It is also plain that where the original jurisdiction of the court is the exception, and the appellate jurisdiction is the rule, the former can not be enlarged beyond its existing bounds.

The habeas corpus act of this state differs from the original English statute, in not being confined to persons held under charges of crime. Except in certain specified cases, in which the interference would be manifestly improper, the statute allows the writ, where the imprisonment or detention is “ under any pretence whatever." But it is also confined in its operation by the same section to persons detained “ within this state." Comp. L. §5210.

It is also easily seen from the statute that the attention of the legislature was directly drawn to cases like the present, where it may be supposed a design exists to evade the law. Section 5252 makes it a criminal misdemeanor to transfer the custody or change the place of confinement, with intent to elude service or avoid the effect of a writ. Section 5255 provides that when it is made to appear that a person is likely to be carried out of the state, a special warrant may issue to take such person, and, if the conduct charged is criminal, to arrest the custodian. But if the case is made out against the latter, there is no provision authorizing anything to he done with him except to hold him to bail, or commit him in default of bail, to answer the criminal charge. — § 5258.

The statute, then, furnishes no means for reaching a case like the present; and, according to the usual rules of construction, it is fair to presume the omission was not accidental, but' was based upon some adequate reason. And it can not be supposed that the possible existence of some common law application of the writ furnished any such reason, inasmuch as the statute was framed expressly to improve upon the common law, which was alleged to be deficient from the very fact that, by not compelling an immediate return, it gave parties facilities for evading the writ. This is matter of history, and is expressed in the preamble of the English statute.

The territorial statutes are all modeled in their more important features after the act of 31, Charles N. and therefore leave much to the common law. Like that statute, however, they provide expressly for cases where prisoners are sent abroad, and, instead of furnishing means for reclaiming them, only provide actions and penalties for false imprisonment. The revised statutes of 1838 do not in terms confine the operation of the writ to persons detained within the. State, but the effect is the same, as the writ is in all cases required to be directed to an officer, who is thereby ordered to take and bring before the court the body of the person detained. Of course, the officer must act within his bailiwick, and' the place of the imprisonment is expressly required to be set out in the application. This statute also provides in express terms for evasive transfers and removals, but only applies a specific penalty against the wrong-doer, in favor of the party ■ aggrieved. — P. S. 1838, Part 3, Tit. 4, Gh. 3.

Any argument derived from a legislative interpretation of the law in this country would usually deserve very little weight. The course of legislation is notoriously careless and hasty; but there are certain classes of laws, the history of which enables us to know that they have been the result of the most diligent and exhaustive scrutiny. The habeas corpus acts are instances of this kind.' The act of 31, Charles II. was, when passed, and has been ever since, regarded as one of the greatest bulwarks of liberty. While only embracing certain kinds of detention, it was certainly intended, so far as it went, to secure to the aggrieved person every possible safeguard which such a writ could obtain. It is not conceivable that it was supposed to leave out any means of redress which had been afforded by the common law. It was framed by the best lawyers and the most determined friends of justice of the age, and it has not been found necessary since, in improving the law, to do anything more than to extend its privileges so as to cover cases of detention other than on criminal charges, and to make some very slight changes of detail in the practice. The American statutes have usually been drawn or modified by revisers, chosen for their peculiar fitness and legal learning, to present laws as perfect as circumstances would permit. The successive enactments in Michigan have been made in the light of the English legislation, and with the aid of the researches and suggestions of the revisers of Massachusetts and New York. It appears from the revisers’ notes to part 3, chap. 9, title 1, of the New York statutes, that it was deemed unwise by them to leave anything on so important a subject open to the necessity of recourse to the common1 law; and they profess to have provided every beneficial security derivable from any source, as well as to have added new ones. They had in view, and provided for, the case of removal from the State. But ;they suggest no means for bringing the party back. I have not had access to the report of the Massachusetts Commissioners of 1836. The revised statutes of that state, which we followed in our revision of 1838, contained at the end of the habeas corpus act a clause expressly abolishing the writ de homine replegiando, which was a writ peculiarly adapted to do justice in cases where the prisoner had been eloigned. But it was found necessary in Massachusetts, in the year 1837 (the next year after the B. S. went into operation), to restore the abrogated remedy under the name of Personal Replevin, and to enact, by a new statute, the substance of the common law incidents of the old writ. (See report of Massachusetts Commissioners in 1858, p. 312.) In Michigan that writ has not been restored; and, if it had not been abolished, it may be questionable whether ■it would not, like other writs of replevin and private actions, have been confined to the Circuit Courts. And there can be no claim that by abolishing one writ the functions of any other become enlarged, without some ■legislative enactment.

It will be proper, then, to consider the Act of 31, Charles II. in. connection with the authorities, to see whether, as far as it extends, it leaves out any of the safeguards of the common law. The only point on which we need now examine it, is in respect to the persons and places subject to its operation. This is provided for by section 11, which is in these words: “And be it declared and enacted by the authority aforesaid, that a habeas corpus, according to the true intent and meaning of this act, may be directed and run into any County Palatine, the Cinque Ports,' or other privileged places within the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, and the„ island of Jersey or Guernsey; any laws or usages to the contrary notwithstanding.” The 12th section provides for the case of any inhabitant or resident of the kingdom of England, dominion of Wales, or town of Berwick upon Tweed, who shall be sent prisoner “into Scotland, Ireland, Jersey, Guernsey, Tangier, or into parts, garrisons, islands, or places beyond the seas, which are or at any time hereafter shall be, within or without the dominions of his Majesty, his heirs or successors.” For this an action is given, which is very safely guarded, and the offending parties are also brought under the pains and penalties of a praemunire. It will at once be noticed that this section would be a dead letter if the offenders should not be found within reach of “ any of ■ Sis Majesty's courts of record,” whose process could only be served within the realm. Yet the statute makes no mention of the issue of any writ or process to bring back the prisoners.

The islands of Jersey and Guernsey are the only places mentioned in both sections of this act, and they are the only two places concerning which it was doubted whether they formed a part of the realm of England. They originally formed a part of the Duchy of Normandy, and subsequently became a part of the English dominions, but it was said, in Calvin's case, that they were not parcel of the realm. 7 Co. 21 A. And Lord Coke says the King’s writ does not run there. — 4 Inst. 236. Selden, on the other hand, says they were a part of the realm. — Seld. Mar. Clau. 4, 1351, cited Comyn's Dig. navigation," F. 3. This question came up again in 1855, before the Court of Exchequer, in a revenue case, where Baron Alderson uses this language: “ When Calais was under the dominion of the English crown, it was part of the realm of England. Children born there' were Englishmen, and could inherit property in England; and a writ of error to the King’s Bench would lie on a judgment given there. — 4 Inst. c. 68. It is not so with the Channel Islands.” — 32 L. & Eq. 539 (Shepherd v. Hills). It has been generally conceded that the writ of habeas carpus ad subjiciendum, runs from the chancery or King’s Bench, as representing the prerogative, into those islands. Rex v. Overton. Sid. 386 ; Carus Wilson's Case, 7 Q. B. 984. But it is equally clear that writs not prerogative do not run there, and that the proceedings there have no resemblance to those at common law. — In re Belson, 3 L. & Eq. 49; Brenan's Case, 10 Q. B. 492; Carus Wilson's Case, 7 Q. B. 984. In Breñares case, it was said by Patteson J. that “the law of Jersey is, in our courts, the law of a foreign country, and to be proved by evidence.” — p. 497. In this confused state of things, removal of a prisoner into those islands might very well, until recent times, have been regarded as substantially sequestering him from all ordinary means of obtaining his liberty, or redress for its infringement. The other places named, Berwick, the counties Palatine and the Cinque Ports, were all within the realm, and it had been held from early times that the writ of habeas corpus would run there. — Palmer, 54; Sid. 431; Bourne's Case, Cro. Jac. 643; Jobson's Case, Latch, 161. In the two cases last cited, reference is made to the fact that the French possessions of the crown Were regarded as in the realm, which agrees with the statement of Alderson B. before quoted. Scotland, Ireland, and the Isle of Man, although under the same crown, were all then regarded as separate kingdoms. Com. Dig. “ Irelandf A.; “Navigation" F. 2, 3; “Scotland" A. The Isle of Man has now become annexed directly to the realm of England, and the common law writ of habeas corpus probably now runs there, although it has not been expressly decided. — Crawford's Case, 13 Q. B. 613. For the former condition of affairs, see Earl of Derby v. Duke of Athol, 2 Ves. sen. 337. The statutory writ now applies to Ireland and the Isle of -Man, but has never been extended to Scotland. — Chitty's note to 3 Bl. Com. 132.

It is universally admitted that there are no precedents for issuing the writ to any of the places mentioned in the twelfth section but Jersey, and that it can in no case run beyond tlie dominions of what is technically the crown of England. The only disputes have been as to what countries were crown dominions. In Rex v. Cowle, 2 Burr. 884, Lord Mansfield states the rule, and in some loose dicta includes both Ireland and the Me of Man within the crown dominions, contrary to the settled law. But he states that while there may be an abstract right in the King’s Bench to issue the writ to any part of the crown dominions, he never knew the writ to issue to any places out of the realm; although, as he says, cases had arisen where such a writ would have been a very desirable remedy. —p. 856.

The question then arises, whether the running of this writ is determined by the situation of the person to be relieved, or by that of the persons concerned in the unlawful detention. Among all the precedents, ancient and modern, wliich I have been able to find, there is none which does not show the question, as to whether the writ would run into the privileged places, to have arisen concerning an imprisonment there. No point was ever made upon the service of the writ upon the wrong-doer outside of the place of imprisonment, as making any difference. And there can be no doubt that the legal purpose of the writ is to relieve from the illegal restraint, on the ground of its illegality, and on no other ground/ It is not a private remedy in favor of the parent or guardian, or even, except indirectly, of the prisoner himself. It is a prerogative writ, issued on behalf of the King, who is entitled to “have an account why any of his subjects are imprisoned, and therefore no answer will satisfy the writ, to return, the cause with paratum habeo corpus,” etc. Bourne’s' Case, supra. The exigency of the writ is to bring up the body, and there is no instance in the law where a writ requires any act to be done beyond the jurisdiction which issues it. If there are attachments and penalties, they all refer to some refusal or neglect to do an act lawfully prescribed; and no one can maintain that if a person, to whom such a writ is directed, should do anything abroad towards complying with it, he could thereby justify himself against conflicting claims asserted in the foreign jurisdiction. A writ must spend itself in the jurisdiction which issues it; and there is no principle which can give one state a right to consider an act, done in another to an individual, as an offense against itself. If-a person is unlawfully held in New York, and a person in Michigan is implicated at all, it is as an offender against New York, and not against Michigan. . It is a principle of universal application in the criminal law, that the place of the wrong done, and not the place of the wrong-doer, is the locus delicti. The kidnapper completes his offense against the state when he removes the victim from its borders. He can no more be responsible to that state for detention abroad than for murder abroad. The private grievance is the subject of a private action. The habeas corpus, while practically aiding the prisoner, is professedly for the public grievance. In the cases of The King v. Reynolds, 6 T. R. 497, and The King v. Edwards, 7 T. R. 745, it was held that the court would not interfere at the instance of a master to release an apprentice who was old enough to speak for himself, and who made no complaint;* because the writ was designed to protect liberty, and not to determine the right of a third person to the custody of the party. And in Rex v. JDelaval, 3 Burr. 1434, this doctrine is very clearly laid down by Lord Mansfield. He says: “In cases of writs of habeas corpus directed to private persons (to bring up infants), the court is bound ex debito justifies, to set the infant free from an improper restraint; but they are not bound to deliver them over to anybody, nor to give them any privilege. This must be left to their discretion, according to the circumstances that shall appear before them.” — p. 1436. In that case, he refused to deliver the infant to any person, but discharged her, and left her to go where she pleased. He refers to three decided cases for the same doctrine'. And it appears that any unauthorized control, whether kind or unkind, comes within the same principle, and is treated as unlawful imprisonment. Thus, in Rex v. Johnson, 2 Ld. Baym. 1384, the infant was anxious to remain with her relatives, and reluctant to go to her guardian, yet being too young to judge for herself, the court held the custody wrongful, and allowed the legal guardian to take her. In both of the other cases cited by Lord Mansfield, the infant was left to her own choice; and he declares explicitly, “The true rule is, that the court are to judge upon the circumstances of the particular case, and to give their directions accordingly.”

While in such cases the guardians are unquestionably entitled to be favored, unless circumstances show convincing reasons to the contrary, yet they can not be considered as parties aggrieved, nor as entitled to control the proceedings on the writ. The infant is the subject of the false imprisonment, and his detention is the grievance which concerns the public, and it can not concern any commonwealth but that where he is restrained. The remedy is quasi criminal, and analogous to the proceedings of conservators of the peace. The' American cases take the same view of the discretion to be exercised in* determining the custody of infants where the detention iunlawful. — People, v. Mercein, 8 Paige, 47 ; Com. v. Harison, 11 Mass. 63; Com. v. Hamilton, 6 Id. 273; Com. v. Hammond, 10 Pick. 274; Com. v. Addicks, 5 Binn. 520; Com. v. Robinson, 1 S. & R. 353; State v. Fraser, Dudley, Ga. 42.

This question of locality was referred to as furnishing the ground of jurisdiction, by the Supreme Court of the United States, in 21 How. 523, in the case of Ableman v. Booth, which was the foundation of the ruling of a majority of this court in Spangler's case. —11 Mich. R. 298. In this. latter case, Manning J. concisely explains the object of the writ issued by the State as being “to release from imprisonment, within its judicial limits, persons entitled to its protection, who are deprived of their liberty without warrant of law.” P. 309. On page 310, he speaks of the writ again, as designed “ to inquire into the legality of the imprisonment of any person deprived of his liberty within the state.” And, on page 311, he refers to a person in custody of the United States as being beyond the reach of the state writ, as completely “ as he would be if he were not within the state.” These references are chiefly valuable as Showing the natural inference which occurs to every one, concerning the rule of locality and the object of interference on habeas corpus. The able treatise of Mr. Hurd does not even allude to any question upon the subject. The only case which has been thus far discovered, in which the writ has been made a foundation for reaching persons restrained of freedom beyond the jurisdiction, is that of United States v. Davis. — 5 Cranch C. C. R. 622. There it does not appear that the application for the writ disclosed the absence of the parties. But, it appearing after the writ issued, that „ Davis had sent them out of the District of Columbia, he was attached until he produced two of them, the third being under arrest in Maryland. This case is entirely bald of reasons, and the most that can be said in its favor is that the judges probably decided the matter in haste, and looked more' to the demerits of the respondent than to any rules of law. The present statutes regulating the power of the courts of the United States to punish contempts could not be legitimately construed to authorize such a proceeding.— See Act of March 2, 1831. The facts were such as to make it very desirable to deal with the wrong-doer; and if courts were allowed to devise remedies at their option, there could be no objection to following the precedent. But it seems difficult to maintain it upon any sound principle.

I have already alluded to the fact that, in the English acts, provision is made for vindicating with great severity cases of removal of prisoners heyond the reach of habeas corpus, but none is devised for securing their return. The unrestrained power of Parliament could very easily have made the writ run anywhere into British possessions, except into Scotland, and could have provided compulsory means for putting the offender under such terms as would have made it desirable for him to make efforts to produce the persons restrained of liberty. But the form of the writ does not adapt it to any such indirect purpose, and it was contrary to the common law to disregard the locality of crime as an element of jurisdiction; and every false imprisonment was an indictable misdemeanor, punishable where committed.

But no such provision was necessary to obtain redress for the person aggrieved. The writ de homine replegiando was the remedy secured to the party for obtaining his liberty, in those cases where the remedy by habeas corpus was inapplicable. We have already seen that it has been restored in Massachusetts as a supplement to that. Under this writ, which was directed to the sheriff of the county where the party was taken or held, if the officer return that the defendant has eloigned the body, the plaintiff may have a capias' in withernam, to take the defendant’s body and hold it until he make return of the plaintiff’s body. In such case, as in case of habeas corpus, the privilege of peerage can not exempt the defendant from arrest. — Fitzh. N. B. 66, 68. And the writ runs, as it would seem, into privileged places, not subject to the ordinary writs — as the Cinque Ports. — Fitzh. N. B. 67. The writ is not bailable, and bail can only be allowed by the court. The proceedings in Besigny’s case— T. Raymond, 474, (also reported more at length in Showers’ H. 225 to 232) — exemplify its operation in a case not unlike the present. There a boy had been spirited away to Jamaica. A return of el.ongatus being made on the writ, defendant was arrested upon a withernam. The court refused to release him without a payment into court of a thousand pounds, to be forfeited unless the boy was produced. It appears from the report in Shower that security was subsequently accepted in the same amount, conditioned for such production within six months, “death and perils of the sea excepted.” The lad was subsequently brought in, and the sureties were discharged. — See also Yin. Ah. Tit. Homine Replegiando.”

The remedy by habeas corpus is so much more satisfactory, that it is not to be wondered at that the other writ should rarely be resorted to. There are no common law countries where liberty is not protected. It can not-often happen that the favorite remedy will not prove adequate. But- this will not justify us in substituting it where, by law, it is not appropriate. Under a government of law it would not become the courts to set the example of usurpation. They are not in fault for affording no relief, when the power to grant it has been withheld. It may be worthy of consideration, whether the case does not come within the jurisdiction of equity. But it would be out of place now to make any investigation on that point. If the writ of habeas corpus does not lie, we are precluded from any further inquiry.

I have arrived at these conclusions with regret. A criminal complaint does not afford the redress needed. It is true that the obstinacy of a party might prevent any means of obtaining an infant who has been concealed elsewhere. But coercive measures would in most cases be effectual, and I should be glad to believe we could inquire into the merits of this matter. But for the reasons given, I think the writ must be quashed.

Martin Ch. J. concurred.

Cooley J.

I have not yet seen sufficient reason to doubt the power of this court to issue the present writ on the petition which was laid before us. The subject of the petition was a minor of tender years, incapable of judging and acting for himself, whose custody was sought by his legal guardians, and who, according to the petition, had been removed from this state where his residence was, apparently to avoid the process of this court, by a person who was a party to litigation before us respecting the guardianship, and who was still within the jurisdiction. The writ, if issued, would not be for the purpose of releasing the child from custody, but to subject him to the custody of those who had been adjudged by our decision to be lawfully entitled to it; but the case stood upon no different ground than if a citizen sui juris had been kidnapped, and removed, or enticed beyond the limits of the state, and was now confined abroad by a person resident here, and within reach of our process. The question nakedly presented, therefore, was whether we had any jurisdiction to relieve from unlawful imprisonment a person confined beyond the limits of the state, but who was one of our citizens, removed wrongfully to evade process, and for the purpose of the unlawful confinement, and whose jailer was here, and might be compelled to open his prison doors by our order, if we have power to make one. It appeared to me at the outset, that we were able to give the proper relief; and examination and reflection have only tended to confirm my first impressions.

It would be strange indeed, if, at this late day, after the eulogiums of six centuries and a half have been expended upon Magna Charta,'and rivers of blood shed for its establishment; after its many confirmations, until Coke could declare in his speech on the petition of right that “Magna Charta was such a fellow that he will have no sovereign,” and after the extension of its benefits and securities by the Petition of Right, Bill of Rights and Habeas Corpus acts, it, should now be discovered that evasion of that great clause for the protection of personal liberty, which is the life and soul of the whole instrument, is so easy as is claimed here. If it is so, it is important that it be determined without delay, that the legislature may apply the proper remedy; as I can not doubt they would, on the subject being brought to their notice. Bounded as we are on two sides' by a foreign nation with whom we are liable at any time to have such relations as will not permit us to rely upon the cordial enforcement of the usual rules of inter-state comity, we are peculiarly interested in knowing whether our laws are so defective that one of our own citizens may imprison his fellow across the border, and avow the act with impunity in our courts, while the person thus deprived of his birthright of liberty has no resource but to appeal to the justice of the foreign power, which may or may not feel an interest in his release and protection.

The argument in favor of this position at the bar seemed to be based mainly on two propositions: First, That the act of removing the child in the manner charged was a criminal offense, and the person guilty thereof could only be proceeded against for the crime; and, second, that the statutory provisions respecting the writ are applicable by their express terms only to the case of confinements within the state.

The first proposition 'certainly has no force. It would be a monstrous anomaly in the law if to an application by one unlawfully confined, to be restored to his liberty, it could be a sufficient answer that the confinement was a crime, and therefore might be continued indefinitely until the guilty party was tried and punished therefor by the slow process of criminal procedure. If this were so, personal liberty would be better protected by at once repealing all laws which provide such criminal punishment; leaving the courts to enforce obedience to the writ of habeas corpus by the process of attachment, which in most cases is ample for the purpose. In the course of my examinations I have not chanced to meet with this objection in any prior case; and I presume it is raised now for the first time. This is somewhat remarkable, if the objection is well taken. The English statutes contain similar provisions -to our own for the punishment of those who evade the writ (Act 31, Car. II. §5; see statute in full, Appendix to Hurd on Hab. Corp. p. 657, and Appendix to Heber, Civil Liberty, etc.,) and also highly penal provisions for confining persons in prisons beyond the seas (ibid. § 12); and it is scarcely possible, if the objection now taken has force, that it should not have been raised before. It would certainly be as applicable to the case of a person removed beyond the limits of the state for confinement as to that of a child eloigned from his guardian; but I can not conceive of any sound reason for it in either case.

If this were an attempt to compel a respondent to answer to facts set forth in a petition which amounted to a criminal offense by him, and he should claim exemption from answer on the ground that it might tend to criminate him, considerations would be presented different from any now .before us. Neither at the outset nor since has the respondent claimed his privilege; and he has now answered, as he claims, fully to all the facts. The sole question, then, on this branch of the case, is, whether the fact that respondent may be liable criminally for what he has done precludes our compelling the delivery of the child to his guardians on this writ. Clearly it does not. This writ is given as a speedy and effectual remedy in the cases to which it is applicable; and its object is, not the punishment of the respondent, but to relieve the petitioner from unlawful custody. Usually it does not go further. Whatever may be the rights or liabilities of ,the parties beyond those which relate to the custody, they are left untouched by the decision on this writ, and may be enforced by the ordinary remedies. It is no objection to civil prosecutions that criminal proceedings are in progress for the same act— 1 Bish. Cr. L. § 327, et seq. — much less that the party in whose person the state is wronged is seeking to recover his liberty that he may be in position to assert and defend ■his rights.

The second proposition — that the statutory provisions are confined to the case of imprisonment within the state — seems to me to be based upon a misconception as to the source of our jurisdiction. It was'never the case in England that the Court of King’s Bench derived its jurisdiction to issue and enforce this writ from the statute. Statutes were not passed to give the right, but to compel the observance of rights which existed. The writ is so ancient that its origin is lost in obscurity, and the Habeas Corpus Act of 31, Car. II., introduced no new principle. Hallam Const. Hist. ch. 13; Beeching's case, 4 B. & C. 136; 2 Kent, 26 — marg. Indeed that statute was aimed mainly at judicial and ministerial officers — 1 Chit. Cr. L. 131; Kirk's case, 5 Mod. 454 — and if provided heavy penalties for failure to observe and perform those duties which the common law, as declared in Magna Charta, enjoined upon them. The act itself was much less broad than the remedy had been before; being confined in its scope to imprisonment for criminal or supposed criminal matters — Case of Lord Mayor of London, 3 Wils. 198; Wilson's case, 7 Q. B. 984 — and the contest in Parliament nearly a century later, over the attempt to extend its provisions to other cases, was defeated by the memorable opposition of Lord Mansfield, expressly on the ground that it was unnecessary, and that the remedy at the common law was ample. — Hurd on Hab. Corp. 102; Life of Mansfield by Lord Campbell, 2 Lives of Chief Justices, chap. 35; 15 Hansard's Debates, 897 et seq.

The opposition was disingenuous, and did not satisfy the majority of the House of Commons; but it was effectual for the time, and the attempt was not successfully renewed until 1816. But the answers given by the judges to the questions put to them by the parliament of 1758, and which are fully reported by Hansard, show very clearly that the difficulty sought to be remedied was not the want of power, but the disposition to procrastinate and evade the performance of duty. Lord Mansfield himself in the case of Hex v. Gowle, Burr. 856, decided in the next year after this great debate, and involving the right to issue the writ to Berwick-upon-Tweed, declared that the Court of King’s Bench, as representing the Crown, had power to issue the writ, not only to any place within the kingdom of England, but to Ireland, the Isle of Man, the Plantations, and to every other dominion of the crown of England. And, as he said in that case, the question of issuing the writ, where the place was under the subjection of the crown of England, was not one of power, but of propriety. In Siderjin, a case is noted where the writ issued to the Governor of Jersey — Roy v. Overton, p. 886; and a recent case, (Wilson’s case, 7 Q. B. 984, decided in 1845,) to the same island, was very fully considered, though the court would not even take judicial notice of the law which must govern.

The English statute authorized proceedings by warrant to take the body of a party in danger of being removed from the realm; and a like process is authorized by our law. It is of utmost importance, because, where the party restrained of his liberty is removed, the restraining power, except as that may rest in the executive in some cases, is almost invariably removed also. And there was abundant reason for the penal provisions in the English statute against imprisonments beyond the seas, without seeking it in the absence of this specific remedy at home. Those imprisonments were in derogation of ■ common law right, and opposed to the traditional instincts of the English mind. Declaring them illegal under all circumstances, relieved not only the home courts, but the courts elsewhere of any question that might possibly have been raised on £hat point. Moreover, such imprisonments would generally be directed by the executive; and — not to speak of any disputed question before — from the time of the accession of the Stuarts, there were always countries over which the King of England was sovereign which did not pertain to the crown of England, and where, although the King had authority, the writs from the King’s English courts did not run. Not only, therefore, might those questions of expediency arise to which Lord Mansfield alluded in Rex v. Cowle, Burr. 856, when the imprisonment was abroad, though within reach of prerogative writs, but there miljht be other cases which no English writ could reach; and a prudent jealousy of a race of kings of foreign descent and ruling over several realms, would sufficiently account for these provisions. They by no means exclude the idea of other remedy within the realm by resort to this writ in cases where it can be made effectual.

I have spoken of the remedy in the King’s Bench, because it is to that our jurisdiction must be likened. It would appear that the jurisdiction of chancery within the realm was also general before the Habeas Corpus Act— 2 Inst. 55, a; 4 Inst. 290 — and though it was formerly held that the Common Pleas and Court of Exchequer had jurisdiction only for privileged persons, the contrary was decided in the important case of JBushell, who was imprisoned for his verdict acquitting Penn — Vaughn's Rep. 135 — and this case was followed in Woods Case, 3 Wils. 112. When the constitution gave this court jurisdiction of the writ, I think it conferred the same full powers upon the court, as representing the sovereignty of the people, which the court of King’s Bench possessed as representing the Crown of England. Our jurisdiction does not depend upon the statute, and the main purpose of that, here as in England, is to compel the performance of judicial and ministerial duties. Chancellor Kent says — 2 Kent, 27 — “The right of deliverance from all unlawful imprisonment, to the full extent of the remedy provided by the Habeas Corpus Act (of 31, Ch. II), is of common law right.” And by this he means, as the context shows, without regard to the cause of imprisonment, so that it be unlawful. The statute does not give the writ, but renders it more effectively and actively remedial. I therefore attach no special importance to the particular wording of the statute where it speaks of the cases in which the writ is to be issued; though I should not concede that, within the words employed, the actual presence of the body of the petitioner within the state was a controlling circumstance. If the statute lacks comprehensiveness, it may be that the same opportunities are afforded for evasions of duty by courts that existed in England before the statute 31, Charles II. but until a disposition to evade duty shall be manifest, it will not be important. The common law jurisdiction is ample. As it came from no statute, it' is not confined in its scope to any prescribed limits, but is coextensive with the cases to which its principles can be applied, and in which it can afford a remedy. I am aware of nothing which limits the power of the court upon this writ, but its capacity to give relief in the particular case in accordance with the settled rules which govern this mode of proceeding. I know of no other test that can have determined its jurisdiction at the common law; and while the law holds the right 'to personal liberty in the same high regard as now, the same test will probably continue to be applied.

The important fact to be observed in regard to the mode of procedure upon this writ is, that it is directed to, and served upon, not the person confined, but his jailer. It does not reach the former except through the latter. The officer or person, who serves it does not unbar the prison doors, and set the prisoner free, but the court relieves him by compelling the oppressor to release his constraint. The whole force of the writ is spent upon the respondent; and if he fails to obey it, the means to be resorted to for the purposes of compulsion are fine and imprisonment. This is the ordinary mode of affording relief ; and if any other means are resorted to, they are only auxiliary to those which are usual. The place of confinement is therefore not important to the relief, if the guilty party is within reach of process, so that by the power of the court he can be compelled to release his grasp. The difficulty of affording redress is not increased by the confinement being beyond the limits of the state, except as greater distance may affect it. The important question is, where is the power of control exercised? And I am aware of no other remedy. The writ de homine réplegiando was repealed in this state in 1838. — i?. S. 1838, p. 521. Long before that, it had fallen into disuse, and the cases are very rare in which it was ever resorted to in this country. Hurd (on Hab. Corp. 144), gives as a reason for this, that, though used to attain a similar object-with the present writ, it was more limited in its application, and more complicated and slow in its operation. As it has never been the object of our legislation to diminish the safegards of personal liberty, we must presume the legislature repealed this, among other obsolete writs, in the full belief that the writ of habeas corpus gave ample remedy in the cases where resort to personal replevin might before have been had. That, Certainly, was the view of Chancellor Kent when he spoke of the present writ as the “ easy, prompt, and efficient remedy afforded for all unr lawful imprisonment.” — 2 Kents Com. 32.

What I say on this subject is carefully restricted to the case of a citizen of our own state unlawfully held in custody, elsewhere by another person, who is himself within the jurisdiction of this court. If he is 'here, the wrong is being done here; for the wrong is done wherever the power of control is exercised. There is no inherent difficulty in the case; and the court of chancery, in the exercise of its power to compel specific performance, frequently exerts an authority over a subject matter in a foreign jurisdiction similar to that which is sought for here. I think the case presented by the petition is one in which we can give relief, and the 'decision in United States v. Davis, 5 Cranch. C. C. 622, is in point, and will warrant it. There are no conflicting decisions. The incidental remarks which have been made in some cases about the remedy applying where the imprisonment is within the state, seem to me of no significance. In none of those cases was attention directed to this particular point; and I have already indicated my opinion that imprisonment, within the meaning of the law, may be held to be wherever the person is who imprisons. This writ is based upon no technical reasons, but its scope is as broad as its power to give redress.

It remains to be seen how the case is affected by the subsequent pleadings.

The motion to dismiss, when renewed, was in the nature of a demurrer to the traverse of respondent’s answer. The answer denied, with considerable particularity, the principal facts set out in the petition; averred the child to be in Canada, in the custody of respondent’s wife, who refused to submit to respondent’s control, and declared her purpose of remaining abroad, with a view to retaining the child’s custody. The answer also averred that on application to a court of competent jurisdiction in Canada, the wife had been appointed the child’s guardian, and now held and controlled it under that appointment; and that the child was in no degree under the power, custody or control of the respondent. This last averment of the answer, as well as the respondent’s denial that the child was originally removed from the State by his means, are put in issue by the answer.

1 am constrained to say that, in my opinion, the traverse does not cover the ground of the answer. It is not denied that the wife has procured herself to be appointed guardian of the child abroad, and that she now assumes to hold it under that appointment. This fact is an element in the case which cannot be overlooked, and which quite distinguishes it from the simple case of a detention by a person here by means of an agent abroad. Leaving out of view all those delicate questions which might arise as to compelling the delivery up of the child by the wife against her will, through the coercion of the husband, and coming directly to the point which alone we must consider now, whether the coercion can be applied when it already appears that the wife is acting as guardian under an appointment which we must assume to be good in form, and recognized there as valid, I am unable to see upon what ground we could base our justification in issuing compulsory process against the husband.

The fact that he originally connived at and assisted in removing the child, is not important now, unless it is still within his control. This is not the proper proceeding in which to punish him for that act, except by way of compelling him to deliver the child to the proper custody, if he now has the power to do so. If the child is held in a foreign jurisdiction by one appointed his guardian there, the respondent has legally no such power as is claimed, even though the person having the custody may have been his agent, and, as such, procured the appointment. The agency does not enter into the guardianship. The law there will know nothing of such an agency, and will refuse to recognize it. The custody has ceased to be that of the individual, and has become that of the agent of the law. That law .is the foreign law; and we must come directly in conflict with it, if we exercise jurisdiction on the facts here shown. The case, as it would stand in Canada, would be that of a guardian appointed by its courts over a minor within its jurisdiction, coerced indirectly by a foreign court to rémove the child abroad, and there deliver it to custodians whose authority would not be recognized in Canada while the present appointment stands. It would be an indirect assumption of jurisdiction by the court in Michigan over the appointment made in Canada, even to the extent of reversing that action. I know of no precedent for such a course, and a due regard to inter-state comity should incline us to forbear.

It is quite probable that the appointment in Canada was made in ignorance of the real facts of the case. I can not doubt if these were fully presented, the court there would revoke its action, and cause the child to be delivered to the testamentary guardians. In my opinion, that court is the tribunal to appeal to under the facts disclosed by the pleadings.

Christiancv J. concurred.

The Justices all concurring that the proceedings should , be dismissed, it was ordered accordingly.

Note. — On page 427, Gth line from the bottom, after the word “-writ,” insert the word but.


author: Cooley J.

text:
    Alexander R. Linn and another v. James Roberts.

      CerUoi'ari: Weight of evidence. Tlie Supreme Court will not review a case, on the weight of evidence on certiorari, — Hyde v. Nelson^ 11 Mich. 353.

      Power of Commissioner to impose costs. The statute empowers the commissioner to impose costs upon the defeated party. — Comp. L. 4776.

      Heard May 16th.

      Decided May 21st.
    Certiorari to T. K. Gillett, a Circuit Court Commissioner of Wayne county.

      This writ was sued out for the purpose of reviewing the proceedings of the Commissioner on a motion to dissolve an attachment.
    The facts are stated in the opinion.

      Geo. A. Wilcox and G. V. N. Lothrop, for plaintiff.
    1. This court will examine into the evidence on certiorari to “determine whether the evidence is such that it will justify the finding as a legitimate inference from the facts proved.” — 9 Mich. Ill; 10 Id. 9; 11 Id. 353.
    2. The statute, authorizing proceedings before a commissioner for dissolution of attachment, provides that “if said judge or commissioner shall be satisfied that such plaintiff has not a good and legal cause for suing out said writ, the said judge or commissioner may order such attachment to be dissolved, etc.’ — Comp. L. 4775.
    This provision clearly limits the inquiry of the commissioner to the grounds for suing out the writ, and he has no jurisdiction to dissolve an attachment which is legally sued out. In other words, if the plaintiff has a “ good and legal cause ” for commencing his action by attachment, this right of attachment can not afterward be taken from him by a proceeding before the commissioner.
    3. The commissioner exceeded his jurisdiction in imposing costs against plaintiffs. —10 Mich. 9; 2 Tidd’s Frac. 1179.

      C. Hunt, for defendant.
    The record fully discloses the fact that there is no question of law raised; and the office of a certiorari is not to review questions of fact, but questions of law.— 3 Mich. 612; 5 Id. 532; 8 Id. 424; 9 Id. Ill; 10 Id. 9; 27 III. 141.
    The statute, Comp. L. 1275, gives jurisdiction of parties and subject matter to the commissioner, and the record shows that the proceedings were regular; evidence was introduced on both sides; no question of law was raised, and we therefore insist that no question is presented, upon which this court can pass, and the writ should be dismissed.
   Cooley J.

The' plaintiffs being creditors of defendant to the amount of $310, attached his stock of goods at No. 156 Gratiot street, Detroit, January 15, 1867, on the alleged ground that he had assigned or was»about to assign his property with intent to defraud his creditors. On application by the defendant to a Circuit Court Commissioner, the attachment was dissolved, after a hearing on the merits. The question before us is, whether there was any evidence before the commissioner to warrant the dissolution.

It appeared that the Linns commenced dealing with defendant May 1, 1865, when he was doing business at 99 Gratiot street, and that he made purchases and payments from time to time until September 24, 1866, when he sold out his stock at that place. On the first of the preceding January he owed them $281.77, which was afterwards paid in small sums. June 1, 1866, defendant put a mortgage for $1,000 on his stock of goods, payable to one Hill on the 16th of September following; and when this time expired he put another on record for the same amount, also payable to Hill, and due August 1, 1867.

These mortgages were unquestionably mere covers for defendant’s property, and no attempt is made to excuse the giving of them.

Defendant went into business where he now is, in November, 1866, and plaintiffs continued to deal with him there, and, according to some of the testimony, pressed goods upon him when he was not anxious for them. They knew he had sold out his old stock, hut had no actual knowledge of the fraudulent mortgages which had been upon it. He gave no incumbrance upon the new stock, and if his testimony is believed, it shows that he is able to pay all his debts and have a surplus. When plaintiffs began to press for payment, he paid small sums from time to' time, but not, as would seem, to the satisfaction of the plaintiffs, who at length offered to take their pay in goods. Their testimony tends to show that at first he agreed to pay in this way, but afterwardg refused. They then sued out an attachment.

If the plaintiff’s debt had existed before the sale of ■defendant’s stock, at 99 Gratiot street, and they had ceased to deal with him at that time, we should not hesitate to say that a case for an attachment had been made in their behalf which remained entirely unexplained by defendant’s testimony. The two mortgages, so far as the testimony in this case shows, were unquestionably fraudulent as to his creditors, and were such a disposition of his property as would warrant this proceeding. It could hardly be held, however, that they were necessarily fraudulent as to one who, with full knowledge of their existence, should afterwards become his creditors. Hut it appears in this case that the plaintiffs continued their dealings with defendant, and contracted the present demand after he had disposed of his whole interest in the goods which had been mortgaged, and when, of course, they could not have relied at all upon that property for their payment. His sale was a more complete disposition of his interest in the property than the mortgages were; and if their mutual dealings still continued with knowledge of that fact, it can hardly be said that an unquestionable case of intent to defraud them is made out by the mortgages alone. The fraudulent intent existing at one time, may not continue indefinitely, and some weight is to he given to the acts of the creditors themselves, so far as they have continued to repose confidence with knowledge of the facts.

The subsequent evidences of intent to defraud were not strong, and a case was fairly presented of conflicting evidence for the commissioner to act upon. We have heretofore decided that we can not review a case upon the weight of evidence on certiorari. — Hyde v. Nelson, 11 Mich. 353.

The statute empowers the Commissioner to impose costs upon the defeated party.— Comp. L. § 4776.

* There is, therefore, no error of law which we can review, and the proceedings must be affirmed.

The other Justices concurred.