text:
    PEOPLE v. MERHIGE.
    1. Criminal Law — Plea oe Guilty — Investigation by Trial Judge After Plea.
    The language of 3 Comp. Laws 1915, § 15830, providing “That whenever any person shall plead guilty to an information filed against him in any circuit court, it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satis'fied,” by an investigation, that said plea was made freely and understandingly, construed, and held, to mean that said investigation shall be made after a plea of guilty, since “whenever” is equivalent to “as soon as,” “at whatever time,” and synonymous with, or equivalent to, the words “upon which,” “where,” “in case,” and “if.”
    2. Same — Plea of Guilty.
    In a prosecution for robbery, on arraignment of defendant, the proceedings had in open court examined, and held, not to amount to a plea of guilty.
    3. Same — Crime—Acts Done Under Compulsion.
    An act which would otherwise constitute a crime may be excused on the ground that it was done under compulsion or duress, but the compulsion must be present, imminent, and impending, and of such a nature as to induce a well-grounded apprehension of death or serious . bodily harm if the act is not done, a threat of future injury not being enough, and such compulsion must have arisen without the negligence or fault of the person who insists upon it as a defense.
    4. Same — Statement of Prosecutor Improper.
    The statement by the prosecutor, on the arraignment of several persons charged with robbery, that “I understand some .of you have taken a bigger part in it than others, but under the law of this State to aid and assist in the crime, and all who aid and assist are responsible with the principal,” held, improper.
    5. Same — Examination of Accused — Conduct of Prosecutor.
    An examination of defendant in open court, by the prosecutor, while a plea of not guilty was standing upon the records of the court, held, reversible error.
    6. Same — Plea of Guilty — Not Voluntary Where Not Fully Advised.
    In said prosecution, where defendant had not had the aid of counsel, and had not been advised of the extent or nature of the punishment that might be inflicted, he could not be said to have voluntarily entered his plea of guilty with full and perfect knowledge of the consequences of such plea.
    7. Same — New Trial — Setting Aside Plea of Guilty.
    Upon the record in this case, the refusal of the trial judge to grant defendant’s motion to set aside the plea of guilty, the judgment and sentence, held, reversible error.
    Error to superior court of Grand Rapids; Dunham (Major L.), J.'
    Submitted October 14, 1920.
    (Docket No. 106.)
    Decided December 21, 1920.
    Jad Merhige was convicted of robbery, and sentenced to imprisonment for life in the State prison at Jackson.
    Reversed.

      Fred A. Maynard, for appellant.

      Cornelius Hofjms, Prosecuting Attorney (Fred P. Geib, of counsel), for the people.
   Stone, J.

This case is before this court upon writ of error to the superior court of Grand Rapids, where the defendant was convicted upon his alleged plea of guilty of the robbery of a bank, being then and there armed with a revolver, and was sentenced to life imprisonment in the State prison at Jackson. The defendant was born in Syria and is said to be 27 years of age. In July, 1919, he, with his family, moved from New York to Detroit, and he there engaged in the business of driving an automobile for hire. He 'owned his car and operated it as a public taxi. It is ■claimed by the defendant that on September 16, 1919, he was approached by certain parties in Detroit, who were entire strangers to him, who engaged his car and himself as driver to drive for them in the country at the rate of $3 per hour; that he knew nothing of the business of these men, nor where they were going; that there were originally 6 in the party that left Detroit, including himself; that they went to Grand Rapids ; that on September 19, 1919, three of these men, namely, Ally Hamden, Tofi Leon and Tony Randazzo, being armed with revolvers, feloniously entered the Grandville avenue branch of the Grand Rapids Savings Bank and there stole and carried away money and personal property consisting of bonds and other securities to the amount of $6,895.50, and one of the customers of the bank was then and there shot and killed by one of the robbers. Defendant claims that he had nothing to do with the robbery of the bank, and that he remained all of the time in his automobile. He states in his affidavit in support of his motion to set aside the plea of guilty, and the judgment and sentence, that it was some time after the party left Detroit before he was informed that the destination of his passengers was Grand Rapids, and that it was not until they had stopped at a certain farm house five miles from Grand Rapids that he had reason to believe that they were going to Grand Rapids to commit some crime, which later he discovered was to rob a bank; that all that he did from the time that said.passengers disclosed their purpose, was in the actual present fear of his immediate death by their Use of revolvers which they had in their possession, and which at times they held at his head; that from the moment of disclosure until after the robbery of the bank he was at all times under the control of one or more of said parties, and that he believed if he made any attempt whatever to escape, or to do anything to his car by which its usefulness would be impaired, he would pay for the-same by his death; that said parties told him after leaving said farm house that he might as well make up his mind, if he hoped to live to return to his wife, to obey orders; that he was told that he had been hired simply and solely for the purpose of driving the car, and he had nothing whatever to do with their business any more than any other taxi driver had with the business of his passengers; that he had been made to believe that said parties had come to the conclusion that it was unsafe to rob said bank, and that they had changed their minds and were going directly back to Detroit; that at no time on the day the bank was robbed was he free to act, as some one or more of them was nearby to carry out their threats if he attempted to do other than as directed; that after the robbery he was ordered by one of the robbers to drive on certain roads which brought them to Saginaw, where the said robbers left him, and for the first time defendant was free to act; that he thereupon returned to his home in Detroit with his car, and, after telling his wife what had happened, went to. the police headquarters in Detroit and informed the officials of the facts, and delivered over to them intact the money that he received for his services, which was much less than had been agreed upon; that when he was informed by the Detroit officials that he must go to Grand Rapids he was made to believe that he was going there as a witness and would be used as such; that he had ever since been deprived of his liberty, and that at no time prior to his sentence had he had the aid or assistance of counsel. He further states in said affidavit that when he reached Grand Rapids there was a great crowd of people at the depot, and much excitement, and he feared that the people might take the law into their hands and take his life; that from that time until his sentence he was completely under restraint and in a great state of nervous excitement, and that he was in that condition when he appeared in court.

Some of these matters or statements are denied by counter affidavits of the officers of the police department of Grand Rapids, and by statements of the trial judge in his opinion overruling the motion. It does appear, however, without contradiction, that such proceedings had been taken at Grand Rapids by the criminal authorities that the defendant, together with Leon and Hamden, was arraigned in the superior court on September 23, 1919, at 3:20 o’clock; that they were all arraigned together and all pleaded not guilty to the information filed against them, and such plea was duly entered in the record. The defendant was then remanded to jail, and on the next day, to wit, September 24th, was again brought into court,,

"What occurred in open court on September 23d and 24th is best made to appear by the court reporter’s transcript which is set forth in the record, and which is stated by the trial judge to be substantially correct. Those proceedings were as follows:

“Grand Rapids, Michigan,
“Tuesday, 3:20 P. M., September 23, 1919.
“The Court: Mr. Prosecutor, have you some arraignments?
“Mr. Hofflus: I haVe; Hamden, Leon and Merhige. I will read this information to you. (Reading.) This information, boys, charges you with bank robbery, attempted bank robbery, stealing from a bank, putting the man therein in fear. I understand some of you have taken a bigger part in it than others, but under the law of this State to aid and assist in the crime, and all who aid and assist, are responsible with the principal. To that information how do you plead, guilty or not guilty?
“Respondent Leon: Not guilty.
“Respondent Merhige: Not guilty.
“Respondent Hamden: The same.
“Mr. Hoffius: You plead not guilty?
“Respondent Hamden: Not guilty.”
“Grand Rapids, Michigan,
“Wednesday, 10:30 A. M., September 24, 1919.
“The respondent Ally Hamden was brought into court.
“Mr. Hoffius: Do you want to plead?
“Respondent Hamden: I plead ‘guilty/
“The Court: Under the statute I have to give you a private examination. You step this way. (The court and respondent retired.)
“The Court: I understand the other defendants will be brought over. lIs Merhige here?
“Mr. Hoffius: He is here. Do you say you have had a helping hand in robbing this bank down here on Grandville avenue?
“Respondent Merhige: I say I did, unwillingly. I did help in that I drove the car and that I was in their association.
“The Court: You were here two or three days before the robbery?
“Respondent Merhige: We were here a couple days, your honor.
“The Court: Who had charge of the .car?
“Respondent Merhige: I had charge of the car.
“The Court: And you were in the car out in front of the bank?
“Respondent Merhige: I was.
“The Court: Any one that does anything of that kind is a principal and is guilty. With that explanation and the explanation the prosecutor has given you,. do you want to change your plea from not guilty to guilty?
“Respondent Merhige: Well, I stated the circumstances of the case.
“The Court: No; I ask you — -it has been stated to you what constitutes the commission of the oifense charged against you, that is, robbing the bank over there, which means—
“Respondent Merhige: Helping in it?
“The Court: Helping to do it. It does not mean you went in and took the money and brought it out, but if you assisted the others in doing that, then you would be guilty. With that explanation, do you want to change your plea from not guilty to guilty?
“Respondent Merhige: There is not a shadow of a doubt that I assisted, that I was in the car, and that I was there.
' “The Court: What has been stated to you is the law. The question is if you want to say that you are guilty or not guilty, that is all.
“Respondent Merhige: Well, guilty; I was guilty; I was there; I was in the car.
“The Court: And you aided and assisted these men, carrying them backwards and forwards, and holding the car for them, and when they came out drove away ?
“Respondent Merhige: I did assist, through force.
“The Court: Very well. The statute makes it necessary for me to have a private talk with you after pleading guilty, and I will do that right now. Step out this way.”

It affirmatively appears that when the foregoing proceedings were had in open court the only plea which had been entered by defendant was that of not guilty. At the close of the foregoing colloquy the trial judge had a private interview with the defendant, at the close of which and on said 24th day of September, the record shows that the defendant came into court and withdrew his former plea of not guilty and entered a plea of guilty, whereupon he was remanded for sentence. He remained in jail until the 26th day of September, 1919, when, as appears by the record, he was sentenced to be confined at hard labor in the State prison at Jackson in solitary confinement for the balance of his natural life.

Although the journal entry shows that the court had become satisfied after such investigation and private examination of the defendant as said court deemed necessary respecting the nature of the case, and the circumstances of such plea, that said plea was made freely and with full knowledge of the accusations and without undue influence, it does appear by the opinion, of the trial judge, in denying the motion, that such plea was entered after the private examination of the defendant, and that such examination was had before any change had been made by the defendant of his plea of not guilty, unless it is to be held that what occurred in open court on September 24th, as above set forth, was substantially a plea of guilty.

On November 26, 1919, a motion was entered to set aside the plea, final judgment and sentence, which motion was supported by the affidavits of the defendant and other witnesses. Many grounds are stated in support of the motion, some of which we do not find it necessary to insert here because they are substantially repetitions of other grounds. The following reasons appear:

(1) Because it appears on the face of the records of said court, that defendant, on Tuesday, the 23d day of September, 1919, pleaded not guilty to the information herein.

(2) Because, notwithstanding, it appears of record that defendant on the following day, viz., September 24, 1919, withdrew his former plea of not guilty and entered a plea of guilty, he did not in truth, in fact, and in law do so, which clearly appears in the proceedings had in and before said court.

(3) Because said sentence and judgment were the result of a clear error of law on the part of the court in construing what was said by the defendant as a full, free, deliberate and unreserved plea of guilty to said information.

(6) Because the defendant was misled by the court, when he was told by it that he was guilty in law, if he assisted these men, carrying them backwards and forwards and holding the car for them, and when they came out in driving them away, by not informing him at the same time that, of course, such acts of his must have been free, voluntary, and without restraint of any kind.

(7) Because the court erred in accepting defendant’s plea and in sentencing him to prison, when it was told by defendant that all that he did in helping the others was solely because he was compelled so to do by force.

(9) Because the court erred when it was informed by defendant that he had helped the others, solely because of force, in not advising him that his plea should be not guilty, or in failing to instruct the clerk of the court to enter a plea of not guilty.

(10) Because the court erred in sentencing the defendant on the theory that he had pleaded guilty to the information.

(11) Because the defendant is entitled to have his guilt or innocence passed upon by an impartial jury.

We state the fifth ground separately, as it refers to another subject:

(5) Because it affirmatively appears in said proceedings had prior to plea, sentence and judgment, that defendant did not have the assistance of an attorney at law, and the situation which he was in was such that he could not freely or intelligently act without such assistance.

The said motion was overruled and exceptions duly filed. ■ By proper assignments of error the same points are urged as in the motion, together with the claim that the court erred in refusing to grant defendant’s motion.

In this court it was urged with great earnestness by counsel for defendant that the statute relating to the duty of a presiding judge, when a defendant pleads guilty, was not complied with in letter or spirit. That statute, enacted in 1875, has been considered by this court in more than a score of cases, as will appear by reference to the compiler’s note to the statute, which is section 15830, 3 Comp. Laws 1915. We recently considered that statute in the case of People v. Utter, 209 Mich. 214.

The language of the statute in question is very plain in its provisions. It provides:

“That whenever any person shall plead guilty to an information filed against him in any circuit court it shall be the duty of the judge of such court, before pronouncing judgment or sentence upon such plea, to become satisfied,” etc.

At what stage in the progress of a criminal case may the judge make such investigation? Manifestly, the statute intends that such investigation shall be made after a plea of guilty. “Whenever” is equivalent to “as soon as,” “at whatever time.” The word is synonymous with, or equivalent to, the words “upon which,” “where,” “in case” and “if.” In this sense it is a word of condition or contingency. In construing statutes the word is frequently an equivalent to “if.” 40 Cyc. p. 920 et seq.

A careful reading of the proceedings had in open court on the 24th day of September, as above set forth (which the court certifies are substantially correct, although not containing all that was said, yet correct as far as set forth), satisfies us. that what occurred in open court on that occasion did not amount to a plea of guilty by the defendant. It is not a question merely when the plea of guilty was entered of record, but what was the condition of the case when the court and prosecuting attorney entered upon the colloquy there set forth. The answers of the defendant were so qualified and limited as to lead us to the opinion that what there took place was not the equivalent of, and did not amount to, a plea of guilty. Manifestly, if this defendant was acting under duress at the time, and prior to the robbery, such duress must affect to a greater or less degree his responsibility in the law for his acts. Counsel for the people cite the correct rule in their brief, which is found in 16 Corpus Juris at p. 91, and is as follows:

“An act which would otherwise constitute a crime may also be excused on the ground that it was done under compulsion or duress. The compulsion which will excuse a criminal act, however, must be present, imminent and impending, and of such a nature as to induce a well-grounded apprehension of death or serious bodily harm if the act is not done. A threat of future injury is not enough. Such compulsion must have arisen without the negligence or fault of the person who insists upon it as a defense.”

The proceedings in open court, both on the 23d and 24th of September, were vqry unusual 'and anomalous. The statement made by the prosecutor on^the 23d of September: “I understand some of you have taken a bigger part in it than others, but under the law of this State to aid and assist in the crime, and ffil who aid and assist are responsible with the principal,” was very unusual, and, we think, improper language to be used by a public prosecutor in making arraignment in a court of justice. Equally unusual were the pro-, ceedings on the 24th. Bearing in mind that at that time the plea of not guilty was standing upon the records of the court, what right the prosecutor had to make any examination of the defendant in open court it is difficult to conceive, and yet the record shows that he started the investigation by this language: “Do you say you had a helping hand in robbing this bank down here on Grandville avenue?” We desist from further discussion of this matter by saying that, in our opinion, the proceeding was prejudicial to the rights of the defendant, and what there occurred did not amount to an unqualified plea of guilty, and gave the court no power or authority to make the further examination which the record says he did make, all of which occurred before the plea of guilty was entered. We think that what occurred in open court on September 24th constituted reversible error.

Whether the defendant was responsible for his conduct on September 19th, and whether his actions on that occasion were voluntary, would be a fair question for a jury under all the circumstances of the case.

It should be borne in mind that during the entire proceeding defendant was without counsel; was, so far as this record shows, among entire strangers, and laboring under much excitement. "Without passing on the question as to whether counsel had been waived by him, the fact, nevertheless, appears that he did not have, and had not had, at that time, the aid of counsel ; and had not been advised of the extent or nature of the punishment that might be inflicted. All these things have a bearing upon the question whether defendant’s rights were properly saved and guarded in the proceeding. Under such circumstances it cannot be said that defendant voluntarily entered, his plea of guilty, with full and perfect knowledge of the consequences of such a plea. Many authorities might be cited upon this subject. One of the latest cases to Which our attention has been called is that of Batchelor v. State (Ind.), decided January 30, 1920, and reported in 125 N. E. at p. 773, where there will be found a collection of authorities.

There is much force in the claim that the defendant did not fully comprehend the serious consequences of the plea of guilty, as it appears by the affidavits of the police officers that defendant appeared surprised when he received a life sentence. Upon the subject of voluntary pleas, the applicable rule is well stated by the. supreme court of Florida in the case of Pope v. State, 56 Fla. 81 (47 South. 487, 16 Ann. Cas. 972), as follows:

“In a criminal prosecution a defendant has a right to plead guilty; and the effect of such a plea is to authorize the imposition of the sentence prescribed by law upon a verdict of guilty of the crime sufficiently charged in the indictment or information.
“The plea should be entirely voluntary by one competent to know the consequences, and should not be induced by fear, misapprehension, persuasion, promises, inadvertence, or ignorance. 12 Cyc. p. 353. While the trial court may exercise discretion in permitting, or refusing to permit a plea of guilty to be withdrawn for the purpose of pleading not guilty, yet such discretion is subject to review by an appellate court. A defendant should be permitted to withdraw a plea of guilty given unadvisedly, when application therefor is made in good faith, and sustained by proofs, and proper offer is made to go to trial on a plea of not guilty.
“The law favors trials on the merits; and if the discretion of the trial court is abused in denying leave to withdraw a plea of guilty, and to go to trial on the merits, the appellate court may interfere. See Krolage v. People, 224 Ill. 456 (79 N. E. 570); Gardner v. State, 106 Ill. 76.”

See note to Krolage Case in 8 Ann. Cas. 237; also State v. Hill, 81 W. Va. 676 (95 S. E. 21, 6 A. L. R. 687).

See, also, cases cited in note to Pope v. State to be found in 16 Ann. Cas. 973; Little v. Commonwealth, 142 Ky. 92 (133 S. W. 1149, 34 L. R. A. [N. S.] 257, and note, Ann. Cas. 1912D, 241).

We are of the opinion, upon this record, that the motion of the defendant to set aside the plea of guilty, the judgment and sentence, should have been granted, and that to refuse the same was prejudicial to the defendant, and was reversible error.

The trial judge states in his opinion denying the motion that every opportunity was given defendant to have counsel of his own choice, and that he was told that the court would appoint such counsel at the expense of the county, but that he made no request therefor. We do not find it necessary to pass upon the question whether counsel was waived or not by the defendant. The fact remains, however, that defendant was subjected to a searching examination by the public prosecutor and the court, at a time when the only plea interposed was that of not guilty, without the presence or aid of counsel to advise him of his legal rights.

For the errors pointed out the plea of guilty and the judgment and sentence are set aside and the case remanded to the superior court for further proceedings. The defendant should be rearraigned, and in case a plea of not guilty is entered, or if the defendant stands mute, he should be given a jury trial. The judgment below is reversed; and it appearing that defendant is at large on bail, conditioned, among other things, that he shall in all respects comply with the terms and conditions of any order which this court may make in the premises, an order will be entered that said defendant personally appear before said superior court of Grand Rapids on the 10th day of January, 1921, there to abide the order of said court, and to be dealt with according to law.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE v. TANTENELLA.
    1. Receiving Stoeen Goods — Elements oe Oeeknsb.
    To support the charge of receiving stolen goods, it must appear that the goods were stolen, that the defendant received the stolen goods, that the goods were the same as those previously stolen, and that 'defendant had guilty knowledge at the time he received the goods or aided in their concealment.
    On receiving stolen property, statute making failure to Inquire as to possessor’s right, equivalent to guilty knowledge, see note in 46 L. R. A. (N. S.) 31.
    On what knowledge necessary to convict one of receiving stolen property, see note in 22 L. R. A. (N. S.) 833.

      2. Same — Possession Evidence of Guilt.
    In a prosecution for receiving and aiding in the concealment of stolen goods, although possession by the defendant out of the State of goods stolen in the State would not in itself warrant a conviction, evidence of such possession is competent, in connection with other evidence, to show that defendant' received the goods in the State knowing them to have been stolen.
    S. Same — Guilty Knowledge Essential.
    To render a defendant guilty of receiving stolen property he must know at the moment of receiving it that it has been stolen, and he must at .the same time receive it with felonious intent.
    4. Same — Evidence—Sufficiency.
    Evidence of defendant’s guilty knowledge, held, sufficient to carry the case to the jury, and to sustain a conviction.
    5. Same — Constructive Knowledge — Inferences.
    Guilty knowledge means not only actual knowledge, but constructive knowledge, through notice of facts and circumstances from which guilty knowledge may fairly be inferred.
    Error to recorder’s court of Detroit; Wilkins (Charles T.), J.
    Submitted October 14, 1920.
    (Docket No. 115.)
    Decided December 21, 1920.
    Sam N. Tantenella, alias William A. Carussa, was convicted of receiving stolen goods, and sentenced to imprisonment for not less than 1 nor more than 5 years in the Detroit house of correction.
    Affirmed.

      Louis W. MeClear and Donald Sarbaugh, for appellant.

      Alex. J. Groesbeek, Attorney General, Matthew H. Bishop, Prosecuting Attorney, and Van II. Ring, Assistant Prosecuting Attorney, for the people.
   Stone, J.

This case is here upon writ of error to' the recorder’s court of the city of Detroit, in which court defendant was convicted of having, at the city of Detroit, on January 19, 1919, feloniously received and had in his possession, and with having aided in the concealment of, one Ford sedan automobile of the value of $400, the personal property, goods and chattels of Ella Collins, then lately before’ feloniously stolen, taken and carried away, the defendant then and there well knowing the said automobile to have been feloniously stolen, contrary to the provisions of section 15301, 3 Comp. Laws 1915. Upon the trial the evidence was undisputed that the said automobile was on the morning of Sunday, January 19, 1919, at about 9 o’clock, stolen and driven away from the corner of Beaubien and Jefferson streets, in the city of Detroit. The defendant was a witness in his own behalf, and he testified that between 10:30 and 11 o’clock a. m. of the same day a man by the name of Sam Tantenella, whom defendant had known for more than a year, came to defendant’s home at 479 E. Congress street, Detroit, and employed defendant to drive a car to Chicago for him, offering to pay defendant $15 and expenses to make the trip. This offer defendant accepted. Among other things he testified as follows:

“I met this fellow over on Rivard and Fort with this Ford sedan, with this car that Miss Collins said belonged to her. I met him about 2 o’clock, and prior to that time he told me he would give me $15 and expenses to make the trip. * * £ I have known this man quite awhile. I met him at 2 o’clock on Fort and Rivard and we parted and got something to eat before we left. We started from Detroit between 2:30 and 3 o’clock. We stopped at Somerset for over night where we put in a new radius rod. The roads were so rough that they bent the radius rod, and I put a new one in. We left Somerset about 9 o’clock the next morning, Monday morning, and got to Chicago on Tuesday. I couldn’t exactly say, but about 10:30.”

As to just what occurred in Chicago there is some conflict between the testimony of the defendant and that of the police officers who took him in charge. Albert Woodrich, an officer of the Metropolitan police force of Chicago, testified that he first saw the defendant on the 21st day of January, 1919, at 649 S. Clark street, Chicago; that defendant had a hose and was cleaning a Ford automobile at the time. He testified as follows:

“I asked who the machine belonged to. He said it was his. I asked his name. I think he said Sam Tantenella. I asked him where he got the machine. He said, T bought it in Detroit/ I says, ‘Have you got a bill of sale?' He says, ‘Yes/ I says, ‘Let me see it/ He showed it to me and I told him the bill of sale may be all right, and the car, but T am going to take you to the detective bureau/ ”

The bill of sale seems to have been received in evidence, but does not appear in this record.

William H. Doyle, another member of the metropolitan police force, to whom defendant had been turned over, testified, among other things, that he went and looked at the automobile, describing it as a Ford sedan, looked at the motor number and found the last figure should be an “8”; it was changed to “5.” The license number on the car at that time was 46,425. Miss Collins had testified that the license number on her car was 40,328. The witness, among other things, testified as follows:

“I talked with Tantenella later on after we had investigated a little more. He told me that he had bought the car. X asked what date he bought it. At. that time I had that answer from Detroit, tie said, ‘I bought it on the 18th/ And the car was reported to us as stolen on the 19th. The 18th was Saturday. The 19th would be Sunday. This was the 21st he was arrested. He told me a fellow named Verne, X think it was, sold him the car for $375. We turned the car over to Mr. Collins the following Saturday/5

The Mr. Collins referred to was Miss Collins5 brother, who went to Chicago and reclaimed the car. Mr. Collins testified that one tire was taken off and . another had been changed on the rear wheel.

“The one that was on there was one I bought just previous to the time it was taken. I am absolutely positive it was my sister's car. The license number that was on the car when I got it was 46,425.”

Steven J. Merritt, a member of the metropolitan police force of Detroit, testified that he made a search of the records for license number 46,425, the number on this bill of sale, and found that it belonged to a man named Wagon of Bad Axe, Michigan (Richard is his first name), for a Buick touring car.

“I have made a search as to the records of the number 1,497,285 of the Ford car and found that the owner was Sam Trigarler, 181 Fort street, and I have found that there is no such man or number. * * * When I went to Chicago to bring this defendant back he told me that he bought the car from a fellow named Joe Barn or Joe Bams in Detroit. At the time he bought the car he paid $375.”

Miss Collins had testified that the motor number on her car was 1,497,288. The witness Doyle testified that the defendant, after the witness had discovered a picture of the defendant on his person with the name William Carussa on it, admitted that his name was not Tantenella, but Carussa.

There was a motion for a new trial upon the ground of newly-discovered evidence, which was denied. No exceptions seem to have been filed to the overruling of the motion, and the record fails to show that the claimed evidence was newly discovered in any sense. The question will therefore not be considered further.

Upon the argument and in the brief of counsel and by the assignments of error, it is claimed that the meritorious question is whether there was evidence sufficient to carry the case to the jury, that the defendant had any knowledge or information that the car had been stolen at the time he received the same in the city of Detroit, it being the claim of counsel that knowledge or information that the car was stolen did not reach him until after he arrived in the city of Chicago. There is no question that to support the charge here made against the defendant it must appear:

(1) That the goods were stolen.

(2) The receiving of the property by the defendant.

(3) The identity of the goods as those previously stolen.

(4) . The guilty knowledge of the defendant.

There is no question as to the first three points. There is no question under our decisions that there must be evidence of the prisoner’s guilty knowledge at the time he received the property, or aided in its concealment. In other words, that he received the goods in question knowing them to have been stolen. In general this is to be collected from all the various circumstances of the case. Counsel for defendant cite the case of Durant v. People, 13 Mich. 351. This case has been cited with approval as recently as People v. Mullis, 200 Mich. 505.

Counsel for defendant also call our attention to the case of Commonwealth v. Phelps, 192 Mass. 591 (78 N. E. 741). We do not doubt that the rule there stated is the correct one. The head-note of the case reads as follows:

“On the trial of an indictment for receiving and aiding in the concealment of stolen goods, although possession by the defendant out of the commonwealth of goods stolen in the commonwealth would not in itself warrant a conviction, evidence of such possession is competent in connection with other evidence to show that the defendant received the goods in this commonwealth knowing them to have been stolen.”

Our attention is also called by counsel to the case of State v. Caveness, 78 N. C. 484. The rule there stated is undoubtedly the law, that to render a defendant guilty of receiving stolen property he must know at the moment of receiving it that it has been stolen, and he must at the same time receive it with felonious intent.

In the case of People v. Lintz, 203 Mich. 683, in discussing the question of guilty knowledge, it was held that guilty knowledge under the statute is an essential element, and, when denied, is a question of fact for the jury. We are of the opinion that there was sufficient evidence of guilty knowledge of the defendant at the time he received, and had to do with, this automobile, to carry the case to the jury, and to sustain a conviction. He took charge of this car and admits that he drove it to Chicago, making repairs as necessary. He is found in the possession of it two days after it was stolen. He makes contradictory statements as to its ownership, how and where he received it, and gives the name of another person as his own. The condition of the car, the changes of the numbers, the fictitious bill of sale, all these things having intimately to do with the car he is found in possession of, were earmarks of his guilty knowledge, and it was for the jury to say, under the circumstances, when he first obtained that knowledge or information.

In State v. Gordon, 105 Minn. 217 (117 N. W. 483, 15 Ann. Cas. 897), the court said:

“Guilty knowledge on the part of the defendant was not directly proved. In the nature of things, that is ordinarily impossible; nor is it necessary. The circumstances accompanying the transaction may justify the inference by the jury that the prisoner believed, and had received the goods on belief that they were stolen. 2 Bishop Crim. Law, § 1138; 1 Wharton Crim. Law, § 984; 24 Am. & Eng. Enc. Law (2d Ed.), p. 52.”

In Huggins v. People, 135 Ill. 243 (25 N. E. 1002, 25 Am. St. Rep. 357), the court said:

“The knowledge of the prisoner, in this sense, is the gist of the offense, and must be found by the jury as a fact. In determining whether the fact existed, the jury will be justified in presuming that the prisoner acted rationally, and that whatever would convey knowledge or induce the belief in the mind of a reasonable person would, in the absence of countervailing evidence, be sufficient to apprise the prisoner of the like fact, and to induce in his mind the like impression and belief.”

Guilty knowledge means not only actual knowledge,, but constructive knowledge, through notice of facts, and circumstances from which guilty knowledge may fairly be inferred. People v. Wilson, 151 N. Y. 403. (45 N. E. 862); People v. Rosenthal, 197 N. Y. 394 (90 N. E. 991, 46 L. R. A. [N. S.] 31). See note to State v. Gordon, 15 Ann. Cas. 899.

While we have held (Durant v. People, 13 Mich. 351) that mere possession cannot be used as evidence to show knowledge that the goods were stolen, we have also held that the fact of recent possession of stolen property, coupled with contradictory statements of the accused as to the possession of such property and aiding in concealing such property, was. evidence of guilty knowledge. People v. Harris, 93 Mich. 617; People v. Oblaser, 104 Mich. 579; Tiffany’s Criminal Law (Howell’s 4th Ed.), pp. 559, 1043, 1047, 1048.

The admitted receiving into possession of this car by the defendant a few hours after it was stolen; his driving it to Chicago, in company with the probable thief; the evidence of the changing of the motor number and the license number; the claiming of ownership by him, and his exhibition of a bill of sale; his assumption of the name of the person described as the purchaser in the bill of sale; the conflicting statements made by him as testified to by the witnesses named, constituted sufficient evidence upon the question of guilty knowledge to carry the case to the jury, and to justify the verdict of guilty.

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

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    KNOPF v. HERTA.
    1. Process — Summary Proceedings — Statutes—Mandatory Provisions.
    The provisions of 3 Comp. Laws 1915, § 13243, allowing serv- • ice of summons in summary proceedings “by leaving a copy at the usual place of abode of the defendant, in the presence of some person of suitable age, who shall be informed of its contents,” being a departure from the common law, must be strictly construed, and are held to be mandatory.
    2. Same — Compliance With Statute.
    Delivery of a copy to a woman who was-found on the porch of defendant’s house, who was unknown to defendant, and was said to be a caller, and to whom the contents of the summons were not made known, held, not a sufficient compliance with the statute.
    3. Sheriffs and Constables — False Return — Measure of Damages — Excessive Verdict.
    In, an action against a constable for making a false return showing service in summary proceedings against a tenant, where there was evidence of the rental per month, the difficulty in securing houses, and of the manner in which the goods were ejected from the house, and the confusion and circumstances connected with the eviction, it cannot be said that a verdict for $125 was excessive, recovery being correctly limited to damages sustained by his not being allowed to fill out his unexpired term, and by being put out in the street and forced to seek shelter elsewhere and have his goods moved to somewhere else.
    4. Same — Proof of False Return — Evidence—Admissibility.
    In said action, testimony by the tenant that he did not know the woman named in the return as the person with whom a copy of the summons was left was properly admitted.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted October 12, 1920.
    (Docket No. 28.)
    Decided December 21, 1920.
    Case by Carl Knopf against Paul A. Plerta for a false return on an alleged service of process. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      R. M. Connor, for appellant.

      Rood & Visscher, for appellee.
   Stone, J.

Mrs. Emma A. Huff was the owner of the premises known as 49 Dakota place in the city of Detroit. The premises consisted of a two-family flat. The upper flat was occupied by Mrs. Huff and family. The lower flat was rented to the plaintiff herein. He claimed a verbal lease for a year, while Mrs. Huff denied the verbal lease and claimed a tenancy from month to month. On March 18, 1919, Mrs. Huff gave verbal notice to terminate the tenancy of the plaintiff. This was followed by the written notice served April 18th to surrender possession on or before May 19,1919. The plaintiff failed to vacate the premises in accordance with the notice, and on April 19th Mrs. Huff began summary proceedings before the circuit court commissioner. The defendant herein, a constable, to whom the summons was delivered for service, made the following return upon the summons:

“State of Michigan ) “County of Wayne [ ss*
“I was unable to find the within named defendant in Wayne county after diligent search and inquiry. I served the within summons on defendant on the 22d day of April, A. D. 1919, in the city of Detroit, in said county by leaving a copy thereof entitled as such by me at the defendant’s usual place of abode, with Clara McGraw, who I found on premises, a person of suitable age and discretion, to whom I read the same and explained the contents thereof.
“(Signed) Paul A. Herta,
“Constable.”

On April 24th following the court rendered judgment for Mrs. Huff, the plaintiff therein, the defendant therein not appearing. On April 30th a writ of restitution was issued. On the same day the defendant herein notified the wife of the plaintiff of the issuance of the writ and advised her that they would be ejected from the premises on the following day.' Mrs. Knopf told her husband, the plaintiff, who consulted with an attorney. The following day defendant Herta, assisted by one Andrew Travis, removed the household goods of the plaintiff from the premises. The evicted tenant brought two suits, the instant suit against the constable, claiming damages for a false return as to the service of the summons. He also brought a suit against this defendant, Andrew Travis, Emma A. Huff, Mabel Huff, Myrtle Huff and Marie Huff, claiming damages to the household goods and furniture of the plaintiff because of the manner in which the goods were removed from the house and placed in the street. The two suits were heard together at the trial below, and. although separate and distinct questions are presented and separate verdicts and judgments were entered, the testimony and trial proceeded as though there was but one suit. This led to considerable confusion in the testimony, and we think the better course is to consider the cases separately, and we will proceed to do so. Another peculiarity is that while there are two suits, presenting different issues, the assignments of error are common to both cases.

In the case we are now considering the important, and we think the controlling, question is whether the return of the defendant officer was a false return. The court below so held and so charged the jury; and there having been a recovery for plaintiff of a verdict and judgment for $125, error is assigned by the defendant upon this part of the charge. Upon the trial the defendant was called as a witness by the plaintiff under the statute. His attention having been called to the manner in which the summons was served, the following occurred:

“Q. You don’t remember in particular then how it was done?
“A. Why, I remember going up the porch and I gave it to some one.
“Q. But you cannot remember the circumstances at all?
“A. No, I do not believe I can.
“Q. Do you know who Clara McGraw is?
“A. I do not.
“Q. Have you made any effort to find her since this proceeding was started?
“A. No, sir; I have not.
“Q. You did not know her before then?
“A. No, sir.”

The defendant was later called as a witness in his own behalf, and he testified, among other things, as follows:

“I served the summons. The date I made service is on the summons. I made an attempt to serve Carl Knopf personally. Made two attempts before I served it there the third time.
“Q. Who did you serve at the premises?
“A. Why, I served a lady on the porch.
“Q. What was she doing there?
“A. I don’t know what she was doing; she was at the door, must have been, I don’t recollect now, but, anyway I remember the lady on the porch; I stopped my machine in front of the house.
“Q. What was her name?
“A. Well, I heard it mentioned here, now it comes back to my mind, Clara McGraw. .
“Q. I will show you the summons (handing paper to witness) and ask you if that is your return.
“A. Yes, sir. I did not know there was anybody in the house at the time I served the summons. I rang the button and I believe I was leaving or turned or something and this lady came on the porch. I did make an effort to find somebody there. This was the third succeeding day that I went there.”

On cross-examination he alluded to the subject again and testified:

“The front door was not open when I went to serve the writ, I went around to the back door. I got no response. I believe I asked Clara McGraw if she knew Mrs. Knopf or Mr. Knopf, and she said she was calling there. I do not know whether she got admittance to the house or not. I called at the house two different days and rapped before I made this service. I did not find anybody at home either time. I did not do anything else to make personal service. It was about 3 or 4 in the afternoon that I went there on each of the previous days.”

Section 13243, 3 Comp. Laws 1915, reads as follows:

“The officer to whom such summons shall be delivered shall serve the same at least two days before the time of appearance mentioned therein, by delivering to the defendant, if to be found within the county, a copy thereof, but if the defendant shall not be found it shall be served by leaving such copy at the usual . place of abode of such defendant, in the presence of some person of suitable age who shall be informed of its contents.”

In his charge to the jury the learned trial judge, after calling the attention of the jury to the statute above quoted, said:

“The return of the officer follows the language of the statute and says that he left this summons at the usual place of abode of such defendant, in the presence of some person of suitable age. The testimony shows, the uncontradicted testimony shows, that this statute was not complied with, that it was not left by Mr. Herta at the usual place of abode of the defendant Carl Knopf, but was given by him to somebody, nobody knows who, whose name, according to the return is Clara McGraw, and who at the time was on the front porch ringing the door bell, or who had just rung the door bell, and who stated she was calling there. That is not sufficient service within the statute, and there is no testimony that the summons was left at the usual place of abode of the defendant, but, rather, it is that it was given to this person upon the front porch. This person might have been calling upon the Knopfs, or she might have been calling upon the Huffs, or she might have been a book-agent, or, as counsel stated, selling corsets — we don’t know who she was, or what she was doing there, or why she was on the front porch; we do not know how long she stayed there; we do not know whether she ever entered the abode of Carl Knopf or not; we do not know what became of the summons; there is no testimony that it ever reached Carl Knopf, and so, as I say, there was no service as contemplated by the statute, so that in this first case your duty will be to assess the damages that came to Carl Knopf as a result of this false return, because as there was no, service made, as required by the statute, the return that the service was made according to the statute is false, and your duty will be to assess the damages in that case, and that is all your duty will be in that one case. Those damages are rather limited, and you will confine yourselves entirely to the damages that arose from that act. That had nothing to do, you understand, with any damages that may have resulted from the way the furniture and household effects were moved into the street. This has only to do with whatever damages resulted because a return was made that a service had been made under the statute, when it was not made under the statute, and you are limited in that to whatever you may find was the value of the loss of what the plaintiff in this case claims was his unexpired term. Whether or not that was his unexpired term, we cannot determine in this case, we are not concerned in this case as to whether or not there was a lease for a year or from month to month. We are not concerned in this case as to whether or not a proper notice was given upon the 18th oF March. An oral notice to terminate tenancy, when the payments are from month to month, an oral notice of a month is a good and valid notice in this State, but we are not concerned, I say, with all those questions, whether or not it was a lease for a year, whether it was from month to month, whether a proper notice was given upon the 18th of March, because we are not concerned here with whether or not, if Mr. Knopf had been properly served, he could have maintained his suit or not. We are not concerned here as to whether or not if Mr. Knopf had been properly served, the Huffs would have prevailed before the circuit court commissioner or would have lost. We are only concerned with this one thing: service was not made upon him in that suit in accordance with the statute.
“That was followed by a judgment and an ouster and eviction. The judgment and the ouster, being based and founded upon an improper service, entitled Mr. Knopf to whatever damages he sustained because of that, and, as I say, you are limited in that to whatever damage you may find the remainder of his term, as claimed by him, was, namely, from that date, which was, I believe the first of—
“Mr. Rood: Up to May 18th.
“The Court (continuing): Yes, it was the first of May up to May 18th, the value of that term, the unexpired term from the first of May to the 18th of May, whatever you consider that was worth to him, and for damages that he may have suffered by reason of his removal from the premises on that day, because of this improper service, leaving out of consideration any damage to the furniture or household effects.
“Now, it seems to me that your verdict in this first case, as I say, is just about limited to those two things, and from the very nature of things, the verdict, of course, cannot be very large in that case. It is whatever you may find is the value of his term from the first of May to the 18th, and the fact that he was put out on the street on the first of May, and forced to seek shelter elsewhere, and to have his goods moved in the van from the street to somewhere else, wherever he put them. When, if improper service and improper return had not been made, but for the improper service and improper return he could have stayed to the 18th of May, and then had his goods moved to some place else, you will not allow him in this action the cost of moving, however, the cost of the van, because he would have had to have them moved anyway, so that you will simply include in this suit the damages for his unexpired term, and the fact that he was put out on that day without right.”

Error is assigned upon this portion of the charge, and in our opinion it presents the only meritorious questions there are. Was the court correct in charging the jury that the return was a false return? The manner of this service being a departure from the -common law, must accord strictly with the statutory requirements, and such statute has been held to be mandatory. 21 R. C. L. p. 1280.

By the undisputed testimony of the defendant, he did not leave the copy of the writ at the usual place of abode of the plaintiff here, but he seems to have served it upon the transient person who was ringing the doorbell. The plaintiff and his wife both testified that they never knew such a person as Clara MeGraw. That evidence is undisputed. Defendant does not claim to have known her. It cannot be said that a service upon such a person is a compliance with the statute. Had the summons been left there it undoubtedly would have reached the plaintiff in this suit; but it is undisputed that it did not reach him and he had no knowledge of it until after judgment. Again, it is significant that the defendant, in detailing the .manner in which he served the writ, makes no claim that he informed the person of its contents. It has been held that the provision of the statute, that a person with whom a writ is left shall be informed of its contents, is mandatory. See 32 Cyc. p. 465, and cases cited.

Was there error in the instruction of the court relative to the measure of damages? We think there was none of which defendant can complain. There was evidence in the case of the amount of rental that was being paid per month, the difficulty in securing houses, of the manner in which the goods were ejected from the house, and the confusion and circumstances connected with the eviction. We cannot say from this record that the verdict and judgment were excessive and that the rule of damages was not the correct one.

We find no error in the rulings of the court relating to the admission of testimony. It was competent for the plaintiff to testify as he did, that he did not know ■ Clara McGraw. We cannot conceive how a return could be shown to be false without the right to introduce evidence of this nature.

We have considered all of the assignments of error, and without particular reference to them we find no reversible error in the record of which defendant can complain, and the judgment will be .affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred..


text:
    KNOPF v. HERTA.
    1. Landlord and Tenant — Sheriffs and Constables — Negligent Damages in Eviction — Evidence—Sufficiency.
    Ia an action by an evicted tenant against the landlord, constable, and helpers for damages to household goocjs alleged to have been caused by the negligent and careless manner in which they were removed from the premises, evidence held, sufficient to sustain a verdict for plaintiff.
    2. Same — Landlord Present Co-trespasser — Relative Present NOT' T.TATjT.E.
    Where the landlord was present at the eviction, and advised or directed it to be made, and concurred in the manner and conduct of the officer, she became a co-trespasser with the officer and liable in said action, but her daughter, who, although present, does not appear to have- been in any wise interested in the matter other than as a relative, was not liable.
    Error to Wayne; Webster (Clyde I.), J.
    Submitted October 12, 1920.
    (Docket No. 28.)
    Decided December 21, 1920.
    Case by Carl Knopf against Paul A. Herta and others for damages to household goods by reason of the negligent and careless manner in which they were removed from the premises under a writ of restitution. Judgment for plaintiff. Defendants bring error.
    Affirmed in part, and reversed in part.

      R. M. Connor, for appellants.

      Rood & Visscher, for appellee.
   Stone, J.

This action was brought against the defendants to recover damages claimed to have been suffered by the plaintiff by reason of the negligent and violent manner in which, the goods of the plaintiff were removed from the premises and injured by careless and negligent handling under the writ of restitution referred to in the case of Knopf v. Herta, ante, 622, where the two suits were tried and different judgments and verdicts were entered therein. It should be stated that upon the trial of this case the suit was discontinued as against Myrtle Huff and Marie Huff. The case as submitted to the jury was in a narrow limit and was confined to the question of whether there was actionable carelessness and negligence in the handling of the goods of the plaintiff so that they were damaged by the elements and otherwise and the amount of such damage. The case was largely one of fact, and the testimony very conflicting upon the subject mentioned. The charge of the court upon that branch of the case was as follows:

“Now, as to this case, the officer was acting — Mr. Herta, and also his assistant, Mr. Travis — under a writ of restitution issued by the circuit court commissioner, as far as we are concerned in this case, a valid and proper writ of restitution issued in a valid and proper legal manner, and delivered to this officer, Mr. Herta, properly, so that as far as this case is concerned, he goes up to the premises, clothed with proper authority to put the goods out into the street, and this action is not against them because he put them out in the street, or against Mr. Travis because he assisted in putting them out, but it is against the officers for the manner in which the goods were put in the street, so that in this action you will have no right to bring any verdict in whatever because Mr. Herta and Mr. Travis put these goods out; they had a perfect right to do that, as far as this case is concerned, and were acting under authority which absolutely protects them, as far as their executing the writ is concerned, and putting the goods out, and so with the defendants Huff. They had a perfect right to apply to the circuit court commissioner for a writ of restitution, and there is no testimony that they knew anything about this return that we have been talking about in the other case, or would be responsible for it anyway. * * *
“So that there will be no liability either against the officers or against Emma or Mabel Huff because the writ was issued, or because the writ was executed, or because the goods were placed in the street, so that that narrows it down to simply this: if the officers exercised proper care in putting the goods on the street, and taking the goods out of the house under this writ and placing them upon the street, then there is no liability and your verdict should be no cause of action. If you believe that they did not exercise due care in evicting these goods, if they wantonly or maliciously or carelessly or negligently removed them, so as to damage them, then they are liable for those acts. Still, the Huffs are not liable unless another element comes into the case, and so even if you find that the officers carelessly or negligently or maliciously damaged these goods in their removal, still your verdict would be, as I said a moment ago, of whatever sum you find would compensate the Knopfs for the damage against the officers Herta and Travis, and no cause of action against the Huffs, unless you also further find that Emma and Mabel Huff by being upon the porch while the officers were removing the goods, and seeing the damage done, that would be necessary, because if they did not see it, they would not be liable, but being upon the porch and seeing the damage done, if you find ii? was damaged, they thus indirectly participated in the removal of the goods.”

As we have already said, a question of fact was here presented to the jury, and a reading of the evidence shows that it was sufficient to sustain the verdict, if the jury believed the testimony offered by the plaintiff.

It is urged by the defendants Emma A. Huff and Mabel Huff, appellants, that the court erred in submitting the question of their liability to the jury. We think this is true as to the defendant Mabel Huff. A careful reading of the record discloses that she was simply present when the goods were removed from the house. Her mother, the defendant Emma A. Huff, it should be borne in mind, was a party plaintiff to the suit, and in whose interest the goods were being evicted. We think she stood in a different relation to the transaction than that sustained by Mabel. We recognize the rule as stated by counsel for plaintiff in 1 Cooley on Torts (3d Ed.), p. 244; 2 Freeman on Executions, § 273; also 17 Cyc. p. 1572.

Where the plaintiff is present, as was Emma A. Huff, at the eviction and advises or directs it to be made, and concurs in the manner and conduct of the officer, she becomes a co-trespasser with the officer; but that would not be true as to her daughter who, although present, did not appear to have been in anywise interested in the matter other than as a relative. See Harvey v. McAdams, 32 Mich. 472, 476.

In our opinion this case presents simply a question of fact. There was evidence to sustain the verdict and judgment against all the defendants except Mabel Huff. We have considered the assignments of error relative to the admission of evidence and find no reversible error. The judgment of the court below is affirmed as to the defendants. Herta, Travis and Emma A. Huff, with costs to the plaintiffs; and reversed as to Mabel Huff, who will recover her costs.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PATTERSON v. HILL.
    1. Husband and Wife — Alienation of Affections — Aid and Support — Separation Agreement.
    In an action for damages for the alienation of the wife’s' affections, - a separation agreement between plaintiff and his wife, signed before commencement of action, releasing all claims he might have against her by reason of the marriage relation, including any demand for aid or support, held, to bar recovery by plaintiff for loss of the wife’s aid and support, but not for the loss of her love and affection.
    2. Same — Trial—Instructions.
    In said action it was error for the trial court to refuse to instruct the jury that plaintiff could not recover for anything that he had released his wife from in said agreement.
    3. Same — Trial—Instructions—Issues Submitted.
    The claim of plaintiff’s counsel that the only question submitted to the jury was whether plaintiff was entitled to damages.by reason of the loss of the affections of the wife cannot be sustained, in view of the following language in the charge: “Some testimony has been offered as to the value of aid and assistance * * * which he has been deprived of. *. * * This, of course, you will consider, * * * providing you get to the point where you shall consider the damage in the case.”
    4. Witnesses — Husband and Wiee — Divorced Wife Competent.
    In an action by a husband for the alienation of the wife’s affections, adultery not being charged, the divorced wife was a competent witness, except as to confidential communications between them during coverture, without the husband’s consent. 3 Comp. Laws 1915, § 12555.
    5. Trial — Instructions—Contradiction. .
    In an action by a husband for the alienation of the wife’s affections, an instruction by the trial judge that It was not the theory of either party that there was any estrangement between the plaintiff and his wife prior to the time he was taken to the hospital, followed by another instruction that at that date the defendant claimed that the love and affection of the wife had heen wholly and* fully alienated, held, contradictory and should he avoided.

      On divorce and separation as affecting action for alienation of affections or criminal conversation, see note in 46 L. R. A. (N. S.) 1084.

      Error to Mecosta; Barton (Joseph.), J.
    Submitted October 8, 1920.
    (Docket No. 68.)
    Decided December 21, 1920.
    Case by Albert A. Patterson against Andrew Hill for the alienation of the affections of plaintiff’s wife. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Cogger & Dumon and A. A. Worcester, for appellant.

      Arthur J. Butler, for appellee.
   Stone, J.

This is an action on the case for damages for the alleged alienation of the affections of the plaintiff’s wife by the defendant. The declaration which was filed on March 4, 1919, contains but one count, and alleges in substance that the plaintiff was, to wit, on the 5th day of May, 1915, in full possession of the affections, comfort, fellowship, aid and assistance of his wife, Ellen Patterson, and that the defendant wrongfully and wickedly intending to injure the plaintiff, and to alienate and destroy the affections of plaintiff’s wife for him on, to wit, the 5th day of May, 1915, and on divers other days and times between that day and the 2*8th day of February, 1919, did wrongfully and wickedly carry on a secret correspondence with the said Ellen Patterson and hold various clandestine meetings with her, and did give her various presents and things of value, and by various other arts and devices the defendant did wrongfully and wickedly alienate and destroy the affection of the said Ellen Patterson for the plaintiff, and induced and persuaded her to leave the plaintiff’s home and refuse to longer live with him, and to refuse to longer give her affection, comfort, fellowship, society, aid and assistance, which the plaintiff had had possession of, and enjoyed, before the commencement of said wrongful acts by the defendant. It was alleged that by means thereof the plaintiff had wholly lost the affection, comfort, fellowship, society, aid and assistance of his said wife, and was caused to suffer great mental anguish and distress, and great annoyance and suffering in his household, and was humiliated among his relatives, neighbors and acquaintances.

' Under the plea of the general issue, by his second amended notice defendant alleged that before the commencement of this suit, and on, to wit, the 13th day of July, 1918, the plaintiff filed in the circuit court for the county of Mecosta, in chancery, his bill of complaint wherein Eilen Patterson, his then wife, was defendant, praying for a decree1 of divorce for various reasons therein stated, and that on the 28th day of February, 1919, said court rendered a decree in said' cause dissolving the marriage between the said parties; and that the defendant would further prove and insist in his defense that on or about the 18th of February, 1918, the plaintiff herein entered into a certain agreement with his then wife, Ellen Patterson, which agreement was as follows:

“Whereas, Albert A. Patterson and Ellen Patterson, husband and wife, of the village of Chippewa Lake, county of Mecosta and State of Michigan, have been separated and have for some time been living separate and apart from each other; and
“Whereas, said parties have agreed upon an amicable settlement of their property affairs;
“Now, therefore, in consideration of said settlement and the payment to her of the sum of $75 and her discharge as guardian of the said Albert A. Patterson, and the execution and delivery by him to her of a receipt in full of all dues and demands to date which he has or might have against his said wife, and the delivery to her of certain personal property to be hereafter selected by Messrs. Butler & Everett, attorneys for the said Albert A. Patterson, and Messrs. .Cogger & Cogger, attorneys for the said Ellen Patterson, and the execution and delivery to her by the said Albert A. Patterson of a quitclaim deed of the following described property, to wit, lots 10 and 11, block 4, and the east one-half of lot 5, block 7, of the village of Chippewa Lake, Mecosta county, Michigan, and the further consideration of the faithful performance of the terms and conditions of this agreement in letter and spirit by the said parties hereto, the said Ellen Patterson hereby releases and discharges the said Albert A. Patterson from any and all claim or claims which she has or might have against the said Albert A. Patterson by reason of the marriage relation existing between them, including dower, alimony, maintenance, support, costs, charges and expenses of every kind, nature and description from and after this date.
“In consideration of the delivery to him, the said Albert A. Patterson, of certain personal property which is to be hereinafter selected and turned over to him by Messrs. Butler & Everett, attorneys for the said Albert A. Patterson, and Cogger & Cogger, attorneys for the said Ellen Patterson, the said Albert A. Patterson hereby releases the said Ellen Patterson of any and all claim or claims of every kind, nature and description which he has or may have against her by reason of the marriage relation existing between them, including the right to live with his said wife or to demand any aid or support from her; and the parties hereto hereby release each other from in any way regulating the conduct of the other, and they also agree not to interfere or molest each other or to speak to each other or to interfere with each other’s personal liberty, and said parties to this agreement hereby agree not to come onto any property owned by each other, or to speak derogatory of each other’s character from this date on.
“In witness whereof the parties hereto have executed this agreement in duplicate this 18th day of February, A. D. 1918.
“Albert A. Patterson.
“Mrs. Ellen Patterson.”

The plaintiff and his wife were residents of the village of Chippewa Lake, Mecosta county. He had practiced medicine and conducted a drug store there for 39 years. The marriage took place in 1899, and they continued to live together until the month of May, 1915. They had one child, a son, William Lloyd Patterson, who at the time of the trial of the instant case was 19 years of age. It appears uncontradicted that, the plaintiff was addicted to the excessive use of intoxicating liquors. Some time in the spring of 1915 he had delirium tremens and attempted suicide. He was adjudged insane on the 3d day of May, 1915, and committed to the State hospital at Traverse City. He was released from the State hospital on or about the 29th of January, 1918, and immediately upon his return made application to the probate court to be adjudged sane, and on the 18th of February, 1918, he was adjudged sane by the probate court of that county; and it will be noted that on the same day the agreement heretofore set forth was entered into.

The defendant was a farmer, whose farm was located a short distance from the village of Chippewa Lake. He had had some trouble with his wife over property matters, and on or about January 17, 1917, went to Chippewa Lake and boarded at a hotel, which at that time was conducted by the mother of Mrs. Patterson, a Mrs. Wylie, who died in the month of August, 1917. After her mother’s death' Mrs. Patterson conducted the hotel and the defendant continued to board there.

Upon the trial it was the claim of the plaintiff that he was in full possession of the love, affection, sympathy, aid and assistance of his wife up to the time he was adjudged insane and sent to the State hospital; that during the time he was in the State hospital, due to the attentions of the defendant, he lost her affection, sympathy, aid, assistance, etc. It should be noted that there is no charge of adultery in the case.

It was the claim of the defendant upon the trial that he was not guilty of any act or conduct which led to any alienation of the affections of the plaintiffs wife; that he was merely a boarder at the hotel; that he had no intention of alienating the affections of Mrs. Patterson from her husband and did not do so; and, further, that the attitude of Mrs. Patterson toward her husband was caused by the conduct of the plaintiff toward her; that for several years prior to his commitment to the State hospital she had lived in fear of him; that his own habits of life, his almost constant drunken and besotted condition, and his treatment of her, had destroyed the love and affection which the plaintiff claimed he was entitled to, and which he alleged he was in possession of up until May, 1915. It was also claimed that said agreement was a bar to recovery.

The testimony is quite voluminous and we shall quote but little of it. The plaintiff and his wife did not resume marital relations after his return from Traverse City. Upon the subject of aid and assistance we quote from the testimony of the plaintiff on his direct-examination, as follows:

“By reason of the associations of my wife with Mr. Hill I was humiliated among my relatives, neighbors and acquaintances. By reason of the conditions I have detailed, here with reference to the associations of Mr. Hill and my wife, I lost her comfort, her fellowship, society, aid and assistance as a wife and assistant in my business, when she refused to longer live with me. I couldn’t put a value on my wife’s services as a wife. I could hire some one to do partially the work she was doing, but not in an equal manner, because she was pretty thoroughly acquainted with the stuff she had to handle, and had learned considerable about the business. I would say I couldn’t have hired help equal to her line of help in that line alone, short of ten dollars a week.
“Defendant’s Counsel: I object to that as incompetent.
“The Court: I think it is covered by the clause, 'aid and assistance/
“Defendant’s Counsel: Yes, but the question isn’t what he could hire help for.
“The Court: Well, it seems to be the only method of replacing lost aid, what it can be replaced for. It is only his estimate.
“(Witness continuing:) Taking into consideration the help of my wife as an assistant in the store and as a servant in the house, in my judgment a fair value of her services would be fourteen dollars a week.”

The pleading in the divorce case and the decree were received in evidence upon the trial without objection, as was also the agreement of February 18, 1918; and upon the trial it was the claim of the defendant that by said agreement the plaintiff had released his wife from all those things for which he was claiming damage in the instant suit.

On the trial, which took place in September, 1919, Mrs. Ellen Patterson, the former wife of the plaintiff, was offered by the defendant as a witness. Counsel for plaintiff objected to her giving testimony covering any period of the time in which she was the wife of plaintiff. After an extended argument the court ruled that Mrs. Patterson was incompetent to give testimony for any purpose in the suit, on the ground that she had been the wife of the plaintiff, and her offered testimony was excluded against the objection of defendant’s counsel.

At the conclusion of the plaintiff’s evidence a motion was made by defendant for a directed verdict of no cause of action, based largely upon the agreement and on the ruling excluding the testimony of Mrs. Patterson. The court withheld its ruling on the motion and announced that it might be renewed at the close of the defense, which course was followed. The court again withheld its decision and submitted the case to the jury.. The jury returned a verdict for the plaintiff and assessed his damage at the, sum of $500. A motion for judgment non obstante veredicto was then entered, and argued and deniéd by the court, and judgment upon the verdict was duly entered.

Defendant had requested the court to charge the jury:

(1) That their verdict should be no cause of action.

(6) That under the agreement of the 18th of February, 1918, there could be no recovery, upon the authority of Metcalf v. Tiffany, 106 Mich. 504.

(7) “I charge you that the plaintiff cannot recover from the, defendant for anything that he released Mrs. Patterson from in the agreement between the plaintiff and his wife February 18, ISIS.”

All these requests to charge were refused, and the case was submitted to the jury in a lengthy charge, in the course of which the court instructed the jury, among other things, as follows:

. “No direct testimony has been offered as to the value of the affection, comfort, fellowship, society, mental anguish and distress. Some testimony has been offered as to the value of aid and assistance which the doctor now requires, which he by reason of his claim, at least, has been deprived of, the aid and assistance of his wife in his household and in his business. This, of course, you will consider, and give such weight to the testimony as you think it is entitled to, providing you get to the point where you shall consider the damage in the case. * * *
“Now, as to the theory of the plaintiff and the theory of the defendant: It is urged by the attorneys for the plaintiff and the theory of the plaintiff is that on May 5, 1915, when the plaintiff was (taken) away to the hospital at Traverse City, he took with him the full confidence, love and affection of his spouse, Ellen Patterson, and that subsequently, and before his return in January, 1918, Andrew Hill? the defendant herein, wrongfully and wickedly contriving and intending to, did deprive him, the plaintiff, of the affection, comfort, fellowship and society of his wife.
“Now, the burden is upon the plaintiff to prove this by a preponderance of the evidence, which I have defined. In other words, you will not consider in this case that there was to any extent whatsoever an estrangement between the doctor and his wife prior to that time, which existed on May 5, 1915. It is hot the theory of the plaintiff, it is not the theory of the defense, neither one of them claims there was an estrangement, but that on the occasion when he went away he was in full possession of the love and affection and confidence of his wife, and from that time on matters occurred at the instance of the defendant herein, whereby upon his return he had wholly lost and had been alienated from the love and affection to which he was entitled. * * *
“It is the theory of the defendant that on May 5, 1915, when the doctor was adjudged mentally deranged and committed to the hospital for the insane at Traverse City, that at that time the love and affection of his spouse, Ellen Patterson, had been wholly and fully alienated; that .he was not in possession of it, nor any portion of it; that she at that time had no love or affection for him, but was in a condition of power only by reason of fear of the doctor and what the consequences might be if she failed to observe his order. Now these are the theories of the two parties.”

It is probable that the word “power” in the language just quoted is a typographical error.

The case is brought here for review by the defendant, and there are 27 assignments of error; many of them relating to the rulings of the court upon the inception or rejection of testimony. The questions which we discuss are properly raised by the assignments of error.

Upon the question of the effect of the agreement of February 18, 1918, we are of the opinion that as to so much of it as relates to the aid and assistance of the wife to the husband the rule laid down in the Metcalf Cwse is controlling. In that case by articles of separation between the wife and the husband she had released the husband from all obligation to support and maintain her, and it was held that she could not, in an action for the alienation of the husband’s affections, recover damages for the loss of such support. We do not think, however, that it bars all right of recovery in the case. For the loss of the love and affection of his wife, if any, by defendant’s conduct, we think the plaintiff was not'precluded from the recovery of damages. We do think, however, that the court erred in not giving the 7th request to charge.

One claim of the plaintiff’s attorneys is stated in the following language:

“The case at bar is also distinguishable from the case of Metcalf v. Tiffany, for the reason that the plaintiff does not and did not, on the trial of the case in the lower court, ask any damages for the aid and assistance of his former wife, Ellen Patterson, notwithstanding the fact that the declaration states that lie had wholly lost such aid and assistance, and the •only question that was submitted to the jury by the ■circuit judge was the question as to whether or not the plaintiff was entitled to any damages by reason of the loss of affection of his said wife.”

A reference to the testimony of the plaintiff and to the charge of the court which we have here quoted above will show that counsel are here mistaken in their claim; and to demonstrate that no language similar to the 7th request was given to the jury, but rather the contrary, we call attention to the quoted language of the court in its charge, beginning with the words:.

“Some testimony has been offered as to the value of aid and assistance which the doctor now requires, which he by reason of his claim, at least, has been deprived of, the aid and assistance of his wife in his household or in his business. This, of course, you will consider, and give such weight to the testimony as you think it is entitled to, providing you get to the point where you shall consider the damage in the case.”

We think in view of the 7th request to charge that there was here reversible error.

This brings us to assignment No. 10, which involves the competency of the testimony of Ellen Patterson, the former wife of plaintiff. It will be noted that the plaintiff and his wife were divorced on the 28th day of February, 1919, and that this suit was instituted on the 4th day of March, 1919, less than a week thereafter, and that at the time of the trial of this cause Ellen Patterson was not the wife of the plaintiff.

When Mrs. Patterson was offered as a witness plaintiff’s attorneys objected to her giving testimony covering any period of time in which she was the wife of plaintiff. The statute relied upon and discussed by court and counsel is section 12555, 3 Comp. Laws 1915. The pertinent clauses are as follows:

“A husband shall not be examined as a witness for or against his wife without her consent; nor a wife for or against her husband without his consent. * * * Nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communications made by one to the other during the marriage.”

Counsel for appellant cite and quote in support of their contention from the following case: Hagerman v. Wigent, 108 Mich. 192. In that case Justice Montgomery, speaking for this court, and referring to the last clause above quoted, said:

“This provision is but declaratory of the common law. The word ‘communication’ must be understood as having been used in the sense which had attached to it by its common use in the same construction. At the common law, testimony of the husband or wife was admissible, after coverture terminated either by divorce or death of the other spouse, in all cases where the facts sought to be proven did not fall within the inhibition against the disclosure of confidential communications between husband and wife made during coverture.”

We invite attention to the language which follows the above.

Counsel for appellant also cite Ward v. Oliver, 129 Mich. 300. The head-note to that case reads as follows:

“Under the statute providing that a husband shall not be examined as a witness for or,against his wife without her consent, nor shall either, during the marriage or afterwards, without the consent of both, be examined as to any communication made by one to the other during the marriage, a surviving husband is not disqualified, in a suit to set aside a deed from him to his wife as in fraud of creditors, from testifying to dealings between himself and wife, showing that the deed was made in payment of a debt due for borrowed money; since the former clause of the statute applies only during coverture, and the latter only to communications recognized in the law as confidential,>>

And, further, see In re Thayers Estate, 188 Mich. 261, 268; Barras v. Barras, 192 Mich. 584, 591.

Upon this branch of the case counsel for plaintiff call attention to People v. Bowen, 165 Mich. 231, and Maynard v. Vinton, 59 Mich. 139, 152 (60 Am. Rep. 276). An examination of these cases will show that in People v. Bowen the court was speaking of “confidential communications”; and the court there well said that as to those, “the privilege secured by this statute survives separation, divorce and death”; and the same may be said of Maynard v. Vinton.

The latest case upon this subject is that of Hendrickson v. Harry, 200 Mich. 41. That was a suit brought by the plaintiff for the alienation of his wife’s affections, and, as here, no adultery was charged. Prior to the beginning of the suit there had been a divorce. There having been an error in the record relating to the date of the divorce, the record was remanded and a rehearing granted. In finally disposing of the case, after quoting the statute, Chief Justice Ostrander, speaking for the court, said:

“According^ to the letter of the law the witness Hilma Hendrickson was a competent witness for the defendant except that she could not testify to communications made by herself to her husband and by him to her during their marriage, this action being treated by counsel for both parties as not being one instituted in consequence of adultery. It is said for plaintiff, appellee, that if she is permitted to answer as to her feeling towards and affection for .him, the real reason for her state of mind at the time must be developed by cross-examination, which it is obvious cannot be conducted without inquiry into the domestic relations; that
“ ‘Had she been permitted to testify that at said time she had lost her affection for her husband, the question would at once arise as to why she had lost her affection for him. Had she been permitted to testify that she lost her affection for her husband on account of his acts of physical violence against her, the cause of such acts of physical violence would necessarily have to be inquired into. In any event, it would be impossible to cross-examine the witness so as to show the real reason for her loss of affection for the plaintiff, without going into their marriage relation.’
“It must be held that the divorced wife was a competent witness, generally, for the defendant — and for. that matter for the plaintiff — and it appearing that no objection was made that the offer to prove was too broad, no suggestion made that it should be more specific, it is held that the court should have permitted the examination to proceed until testimony was called for which she was not competent to give. What questions may be asked her cannot be anticipated, nor can this court upon this record lay down any rules for the trial court beyond the one above stated. The witness will be subject to cross-examination like any other witness, and her credibility and the weight of, her testimony will be for the jury.”

We are of the opinion that when the marriage relation has been terminated, the statute prohibits, the testimony of either spouse against the other only to the extent of privileged communications. That Mrs. Patterson was a competent witness in many matters pertinent to the issue is very evident. It seems unreasonable to hold that she might not testify as to many matters, including her conduct and relationship with the defendant; and as was said by Chief Justice Ostrander:

"What questions may be asked her cannot be anticipated, nor can this court upon this record lay down any rules for the trial court beyond the one above stated.”

We think that in ruling that the witness Mrs. Patterson could not testify in the case the trial court permitted prejudicial error.

As the case must go back for a new trial, we call attention to the contradictory statements, in the charge, so that the same may not occur again. It will be perceived that after the court instructed the jury that it was not the theory of either party that there was any estrangement between the doctor and his wife prior to the time he was taken to the hospital, the court proceeded to charge the jury later on that at that date the defendant claimed that the love and affection of the wife, Ellen Patterson, had been wholly and fully alienated; that he was not in possession of it, nor any portion of it, that she at that time had no love and affection for him, but was in the condition of "power” only by reason of fear, etc. It seems to us that these are contradictory statements, and as such should be avoided in the charge upon another trial.

We find no reversible error in the record relating to the rulings of the court in the admission or rejection of testimony other than we have pointed out. The judgment of the circuit court, for the reasons stated, is reversed and a new trial granted, with costs to appellant.

Moore, C. J., and Steere, Brooke, Fellows, Clark, Bird, and Sharpe, JJ., concurred.