author: STONE, J.

text:
    PEOPLE v. WINNEY.
    1. Criminal Law — Murder — Evidence—Admissibility—Remoteness — Corroborating Testimony.
    In a criminal prosecution for murder, evidence of a witness that two months after the murder he discovered tracks in some of the victim’s blood remaining on the floor of the room where she was killed, which he identified as those of the accused, was properly admitted as not too remote, where there was other evidence as to the existence of such marks two or three days after discovery of the body, and the premises had not been disturbed from the time of discovery of the body up to time of the discovery of the marks by such witness.
    2. Same.
    The testimony of a witness that he found a paper with blood stains upon it at the house where the offense was committed, two days after discovery of the body, was properly admitted, and its weight was for the jury.
    3. Same.
    Evidence that defendant committed a burglary and stole some revolvers and ammunition the night prior to the murder, was properly admitted solely as bearing on the question whether defendant possessed the means for committing the murder.
    4. Same — Witnesses—Cross-Examination—Discretion oe Court.
    On cross-examination of a witness in a criminal, case considerable latitude of discretion is allowed in permitting questions calculated to elicit information as to the past life and conduct of the witness.
    5. Same — Evidence —■ Admissibility — Relevancy — Appeal and Error.
    The admission of certain letters and a photograph of defendant, in a prosecution for murder, on his cross-examination, to show his lack of veracity as a witness and his character, while not relevant, was not reversible error.

      6. Same — Murder—Soene of Crime — View by Jury — Discretion of Court.
    The matter of the view by the jury, of the place where an alleged crime has been committed, lies within the discretion of the court.

    7. Same.
    The purpose of the view by the jury is to enable jurors to comprehend more clearly by the aid of visible objects the evidence already received, and not to secure new evidence.
    8. Same.
    It is improper to permit a witness to testify as to the location of objects, or as to any other material point, in the presence of the jury while they were viewing the place where an alleged crime has been committed.
    9. Same.
    The jury viewing the place where the crime had been committed, had the right to consider all they saw in the room having reference to tracks, imprints or marks testified to and mentioned by the witnesses in a general way.
    Error to Jackson; Parkinson, J.
    Submitted April 13, 1917.
    (Docket No. 162.)
    Decided May 31, 1917.
    Harold Winney was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson.
    Affirmed.

      John F. Henigan, for appellant.

      Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.

      On discretion of the court as to right to view of jury in criminal case, see note in 42 D. R. A. 372.

   STONE, J.

The defendant was charged with the murder of Caroline Sryrock, a woman upwards of 70 years of age, in her house in the township of Spring Arbor, Jackson county, on the 26th day of February, 1914, by shooting with a 32-caliber revolver. It was not disputed that Mrs. Sryrock was murdered and under circumstances that made the crime murder of the first degree, but defendant denied all connection with the murder.

Mrs. Sryrock lived alone in her home and was last seen alive on Thursday, February 26, 1914, between 5 and 6 o’clock p. m. It was claimed on behalf of the people that defendant did the act with a revolver with which he had previously supplied himself for that purpose. As tending to show that defendant had the means of doing this act, evidence was received tending to show that he committed a burglary in the hardware store of Finch, Rowley & Bower at the city of Jackson on the night before the murder; and it appeared by defendant’s testimony, on his direct examination, that on the night before the murder was committed he burglarized said hardware store in the city of Jackson and there obtained two revolvers of 32-caliber and a rifle, and some ammunition, and the guns were produced at the trial, and defendant testified: “I should say the guns here as exhibits are the same ones I stole.” It was claimed upon the trial that defendant, and probably some one co-operating with him, took possession of a horse and cutter standing on the street in the city of Jackson on the evening of Thursday, February 26, 1914, and made use of this horse and cutter as a means of transporting himself to the home of Mrs. Sryrock, in the township' of Spring Arbor, about 10 miles from the city of Jackson, early in the evening of that date, and then and there with the use of one of said revolvers shot her to death. Defendant at the time was stopping temporarily at a hotel in the city of Jackson He was acquainted with Mrs. Sryrock, having recently lived with his grandmother, who resided a short distance from Mrs. Sryrock’s home. He testified, on his direct examination, that six weeks or two months before his arrest he had been at Mrs. Sryrock’s home and there stole $10 from her, and it was the claim of the people on the trial that the motive which inspired this murder was that of obtaining money. The evidence produced by the people was largely circumstantial, together with certain claimed admissions and statements in the nature of confessions made by the defendant. The defense was an alibi and a complete denial by the defendant that he committed the crime. The defendant was convicted of murder of the first degree, and was sentenced for life, and is now undergoing such sentence in the State prison at Jackson. The case has been brought here by the defendant upon writ of error, and, while there are many assignments of error, we shall consider only those which are argued in defendant’s brief; the case having been submitted to this court upon briefs.

It ought to be here stated that the homicide was not discovered until the evening of the 27th day of February, 1914. The house was then visited by Dr. Marks, coroner of the county, and a deputy sheriff. Dr. Marks was unable to state how long Mrs. Sryrock had been dead, but he testified that she had received numerous gunshot wounds in the head, any one of which, in his opinion, was sufficient to have caused instant death. He testified that the body was cold, that rigor mortis had either set in and passed away, or else it had not set in; that it was impossible for him to say which; that rigor mortis may last from 10 or 12 hours to 24 hours. She was found in the kitchen where she had lived, and there was a little fire remaining in the coal stove which was used for heating. the room.

The defendant was arrested on the afternoon of Saturday, February 28th, being the last day of February that year. He is a young man who for a number of years had been totally deaf, and had a crippled or short leg, and wore what is termed a stirrup, the bottom of which was of iron, to overcome the shortness of that leg.

The 1st assignment of error is to the effect thát the court erred in refusing to grant a motion of defendant’s counsel to have stricken from the record the testimony of the witness Holland, a deputy sheriff, in regard to tracks in the blood which he claimed to have discovered on the 23d of April, because the evidence at that time showed that the tracks were not discovered by him until the 23d of April, and it was claimed that the murder took place February 26,1914, to which ruling counsel for the defendant duly excepted. The testimony of the witness Holland was to the effect that he visited the premises on the evening of February 27, 1914, being Friday night, between 8 and 9 o’clock. It is true that this officer did not at that time discover any tracks, or anything claiming to be tracks, in the blood upon the floor in the room where the woman was found killed. At that time her body was found on the bed, and her limbs were off the bed and her feet down on the floor, and the condition of the room was what is described as “in a torn up condition.” The bureau drawers had been pulled out, and it looked as though the contents had been scattered about the floor. This witness described very fully the condition of the blood on the floor, and the fact that he picked up two bullets in the blood. They were bullets of 32-caliber size. The following day he visited the house again and found another bullet in the blood, or 'close to it, of the same caliber as the first two. This witness described the conditions, stating that it looked as though the body had been dragged on the floor and thrown upon the bed, and an apron had been wound around the head of the deceased. Upon the trial, this witness further testified as follows:

“I was out there on the 23d of April, and at that time I observed what looked to me like a track in the dry blood. It appeared to me as though it was made by an iron stirrup worn on the bottom of the shoe of a man that was crippled in one limb to overcome the shortness. Appeared to me there was nothing touched in the center of the track, but there was a rim right around the outside about half an inch wide. I think I went out there again on the 27th with Sheriff Strobel, Arthur Havens, Fidus Livermore, and William Horsman, and yourself, and I observed this track at that time. There was another place that looked as though.it might be a track, but it wasn’t as plain. When I was out there with you and the sheriff and Mr. Livermore, we had this iron shoe belonging to the respondent, and it was tried in there to see if it fitted that track that was in the blood we saw there, and it did. I don’t know that I ever had any talk with respondent about this matter. * * * I was there when the comparison of this toe with that footprint out there was made. If you stand off towards the southeast corner of the room, perhaps five, six, or seven feet, you can see that footprint very plainly in the dry blood. You have to bend over to look at it in a diagonal way. * * * There were a good many marks' around on the floor there. There was what indicated a heel print and that has been affected by the rats. It was. less distinct. * * * The track is obliterated slightly now from what it was when I was out there first and saw it. It has been — what I would say the work of rats, been gnawing more or less so it isn’t as plain as it was when I first saw it.”

The testimony of the witness Holland came in at first without any objection. At the close of the recross-examination of the witness, defendant’s counsel moved to have stricken from the record the testimony of this witness in regard to these tracks in this blood which he claimed to have discovered on the 23d of April, on the ground that it was too remote, and that the evidence showed no such tracks were discovered by him at the time of the first visit. The prosecuting attorney then announced he would produce the testimony of four witnesses to show the tracks were seen soon after the body was discovered. The court said upon this announcement by the prosecuting attorney:

“If at the close of the testimony you call my attention to that, or in connection with the charge, I will try to give proper instructions in regard.to it, or possibly strike it out. I don’t know, but at the present time I don’t think I ought to grant your motion, especially as the prosecutor says he will produce evidence that that track referred to by this witness Mr. Holland was there and noticed immediately after the discovery of the crime.”

An exception was taken to this ruling, but the matter was not again called to the attention of the court during the trial.

As showing the condition of the record upon this subject of the tracks, the witness Welch, a deputy sheriff, testified as follows:

“I first saw the imprint of the shoe in the blood on Sunday, March 1st. It was an accident I saw it, because you have to stand back in kind of a diagonal position to see the imprint, but after you see it once you can readily distinguish it then. But unless you was standing out here, in a glance you couldn’t — you wouldn’t pay any attention to it, but as you stand off you can see where the shoe has pressed it into the blood, and it looks lower than any other part of the blood. The rest of it is up around it, right in between where the shoe was hollow. I also saw a mark in the blood there, I imagine about six inches or seven inches from where I picked up this paper with the blood on it, with the imprint of a shoe, with the heel of a shoe. It has got kind of a — made like iron of some kind. An ordinary shoe, I don’t think, would do it. I tried with my foot to see if I could make an imprint, and I couldn’t make any impression at all on it. March 6th was the next time I was out there. I was out there some time later than March 6th, too. I went out there to look over the house to see that everything was all right, so as to see how conditions was, and I examined the track then and found it just the same way it was when I first saw it. I covered it up with pails because I noticed on the north end of the blood, where the blood starts to run, from the northwest corner point of the blood, the rats had commenced to eat it, and I covered it up to protect it so nothing would get to it. I imagine the blood on the floor would be about 2% feet, starting in kind of a diagonal point and running from the corner of this which stands in the northwest corner of the room, runs in a diagonal shape towards the southeast — towards the stove. As it goes from the north, the floor looks as if it sagged and more of the blood had gone to the southeást part of the blood. The size of the space covered was about 2% feet long and about a foot or 1% feet wide. I don’t know it is quite that wide. I didn’t just measure it, but that was my observation of it. There was quite a crust on the blood when I first saw it. The last time I was there, the rats had gone to eating it, and eat quite a lot of it off the floor. I picked up a piece of paper there, and that is the paper, and it is in the same condition now it was, folded up just the same way it was. Never was disturbed. The writing was put on by the sheriff, so as to prove the day we got it and where it came from. When I came right back, I turned it over to the sheriff and he wrote on it. The date ought to have been put on. I don’t know whether he put it on or not. I know I brought it home on Sunday, March 1st. * * * The heel mark was made, on this piece of paper, and the toe mark was made in the pool of blood. The mark of the toe was made in-the south end of the pool of blood near the stove; that is where it was thicker, and that was about, I should imagine, maybe 8 or 10 inches from the stove where it stopped to run. The piece of paper was directly in front of the stove, which would be about 2% feet probably from the nearest point of the blood to where I found that paper. We discovered some marks on the floor; myself, personally, I wouldn’t want to claim they were put on by the heel, but later on, if the jury goes out to decide for themselves, not for me. I discovered two more marks on the floor there. Two moré marks on the floor beside that one. I found that on the paper — that was found nearer where most of those other marks was on the floor.”

Lena Reed, testified as follows:

“The second day after the murder, I was on the outside, and about a week later I was on the inside of the house. I think it was just a week from the day of the murder I was inside, but I don’t know the date exactly. Mr. Curtis, Mr. Welch, and St. Clair Pardee were there at that time. I noticed a pool of blood there, and I noticed a heel print in the blood. It was near the edge of the pool on the east side. It looked as though it had been stepped in as they were going out. The foot was facing east. It was just a common heel print, as far as that was concerned, when the shoe was facing east. I didn’t see more than one track, and Mr. Curtis called my attention to it. It looked like an ordinary heel track with the toe pointing east. That was the only track I seen. * * * Mr. Welch was in the room with us when Mr. Curtis called my attention to the heel track. I don’t remember that Mr. Welch called my attention to what appeared to be a track made by the toe of that iron shoe, or by an iron shoe like that. I didn’t pay much attention to the heel track. * * * It was the heel print in the edge of the blood he wanted me to take a picture of. I developed the picture I took, and after it was printed sent them a copy. I don’t know how much space the blood covered. It ran lengthwise north and south, and was longer that way than it was across it east and west. * * * It appeared to me as if some one had stepped there, just the heel of the shoe had struck the blood and the rest of the foot escaped striking the blood. I didn’t pay much attention to the track and couldn’t tell much about it.”

The witness Livermore stated:

“I noticed when I was out there what appeared to be a footprint. It has the indication of a horseshoe, or a small horseshoe. I saw the sheriff compare the iron shoe with it, and it seemed to fit. It was the heel part I saw.”

The witness Emma Pardee testified as follows:

“About a week after they found her, I was up there the same time Mr. Welch and Mr. Curtis were there, and it was the same day Miss Reed was there, but she wasn’t there when I was, and I noticed an outline of a foot in the blood, but I couldn’t tell from its appearance what it was made by. It looked like the outline shape of a foot, but the blood was higher in the center than it was at the heel, so it wasn’t an ordinary foot — I mean in the center of the outline. I saw the same imprint the next Tuesday or Wednesday, when I was there again with my son. My son called my attention to it. * * * My son called my attention to this imprint I saw on Friday. Mr. Welch was there at the time, and Mr. Curtis was with him.”

The witness Brighton also testified:

“I went with Welch out to the Sryrock home and saw an imprint in the blood. Welch and I went out there, I think it was on Sunday or Monday (March 1st or 2d). I wouldn’t say for sure, either one day or the other, and, when we went out there, we were looking for imprint or any marks or any tracks to identify who was the party or — if we could find out who was there, and in the southeast corner of the blood I should say about two feet from the stove, only a few inches from the edge of the blood, we found an imprint in the blood that showed a heel. Further investigation, v/e found the toe of the thing there. The toe in the imprint, something similar to that we had examined. I had never seen Mr. Winney’s shoe up until this, never taken any notice of it; but the inside was hollow, just the same as a shoe worn by Mr. Winney.”

This is substantially all the testimony upon the subject of the tracks on the premises which had been found prior to Holland’s discovery.

In view of the fact that other witnesses testified to the existence of these marks within two or three days after the body was discovered, and while the condition of the premises remained substantially the same as when the body was found, as, we think, the record shows, and it appearing that the condition of the premises had not changed down to the time when the witness Holland testified to seeing the marks on April 23,1914, we do not think it was error for the court to refuse to strike out the testimony of Mr. Holland under the announcement made by the prosecuting attorney, which announcement seems to have been substantially made good by the testimony.

In the case of People v. McCurdy, 68 Cal. 576 (10 Pac. 207), evidence of the measurement of certain footprints found in the vicinity of the place of the homicide, and corresponding with the footprints of the defendant, was admitted. The measurements were made, respectively, about five days and two weeks after the date of the homicide. The court held that the evidence was admissible, and that its weight was for the jury, saying:

“Had the measurements of the footprints been made at an earlier day, the value of the information acquired as evidence would, no doubt, have been greater; but it does not follow that the testimony was incompetent.”

We think the weight of this evidence was for the jury to consider, and that it was not error to refuse to strike it out. As has already been remarked, the court’s attention does not seem to have been called to this subject again by counsel for the defendant.

The 23d assignment of error is to the effect that the court erred in receiving in evidence the piece of paper which the witness Welch testified he had found on the floor of the Sryrock home on Sunday, March 1st. Objection was made to this offer, and an exception duly taken. This was a piece of paper found at the place of the homicide with certain blood stains upon it on Sunday, March 1st; the body having been discovered on Friday evening.

We think this ruling was not error, and the weight of the evidence was for the jury. The paper seems to have been fully identified, and was found at the place of the homicide. The 24th, 25th, and 26th assignments of error relate to the instructions given to the jury by the court at the time they were about to leave the courtroom to be taken to the premises for the purpose of taking a view of the interior of the house where the homicide was committed, its location, and surroundings.

The 24th assignment of error is because the court used the expression:

“What you see there becomes a part of the evidence in the case as I understand it.”

The language excepted to in the 25th assignment of error is the following:

“It .is simply for the purpose of enabling you to see what can be observed by the human eye that you are taken out there, and it is simply what you can see that you can treat as evidence in the case and act upon it.”

In the 26th assignment of error the following language is excepted to:

“But if you think you see something that is perhaps overlooked by the others, in my judgment you would have a right simply to call the attention of your fellows to it so as to be sure you all see the same thing. I say that so when you come to consider this case, if in your deliberations anything comes up about what was seen out there, you may avoid any difficulty or embarrassment because one juror is claiming to have seen something that the rest of them did not see.”

Error is assigned upon but a small part of what the court said on that occasion. The court used the following language:

“What you see there becomes a part of the evidénce in the case, as I understand it. It is simply for the purpose of enabling you to see what can be observed by the human eye that you are taken out there, and it is simply what you can see that you may treat as evidence in the case and act upon it. That excludes any statements which may be made in your presence, and, so far as anything concerning this case or act is concerned, there should be no statements made in your presence and hearing while you are gone. Persons will not be permitted to point out anything to you, particularly if the pointing out of anything requires them to say anything. The prosecutor and Mr. Kirk-by, as attorney for the respondent, will be there, and the respondent himself will be there. If there is any particular thing which you do not discover yourselves, I shall permit the prosecutor or Mr. Kirkby to simply point to the thing, and you can do the looking for yourselves. They do not have to tell you anything about it. You should not converse with anybody in regard to this case or any element in this case while you are gone. * * *
“Now then, gentlemen, you are not permitted to make any experiments when you go there, or to permit anybody else to make any experiments. You must observe what is observable and fix it in your mind as well as you can, and then, as further testimony comes in, use it in connection with what you see, as well as the testimony already taken should be used in reference to what you can see there.
“The less talk there is on the part of anybody, the better. I do not think you ought to talk about it between yourselves and among yourselves further than' I think it would be permissible if there is anything any one of you notices which you think is of any importance that you may point out to the others, but do not discuss it, nor say what you think about it, or whether you think it is significant or whether you do not. But if you think you see something that is per-’ haps overlooked by the others, in my judgment you would have a right simply to call the attention of your fellows to it so as to be sure you all see the same thing. I say that so when you come to consider this case, if in your deliberations anything comes up about what was seen out there, you may avoid any difficulty or embarrassment because one juror is claiming to see something that the rest of them did not see. * * *
“Mr. Kirkby makes the suggestion to me, which I think is right and I ought to say something about it. You are taking this view nearly three months after this affair occurred, and you can only see what you can see now after the lapse of this period, and the real thing is to know what was the situation at the time, sp you must take this view and the testimony to aid you in determining how things were at the time. What you see now may be — may have been modified somewhat by the lapse of time and possibly interference, but so far as we can find out there has been no interference. That, gentlemen, is one of the dangers of taking a view a long time; the danger that because of changes, the view may be misleading. You have to use your own sense and judgment in this direction and try not to get any perverted view traceable to changes that may have occurred.
“Mr. Kirkby: I wish the record to show that I take an exception to the instructions of the court. My understanding of the law is that in taking a view it is for the jury to apply what they see to the evidence as given by the witnesses from the stand to enable them more clearly possibly to understand the evidence.
“The Court: That is what I mean to say.
“Mr. Kirkby: A view itself is not evidence in the case, especially when taken at such a late date after the commission of the alleged offense. It is simply to aid the jury in applying what they see to the testimony as given by the witnesses; to better — to give them a better understanding of it, but it isn’t evidence. Evidence is what is given here in court from the stand and by the witnesses. Another thing the court has not mentioned. The court has said they need try no experiments. I see the authorities lay it down as a proposition they should take no measurements or anything of that kind.
“The Court: That is, distances or anything of that kind. That is true. It is unimportant, gentlemen, whether you consider what you see as a part of the evidence in the case, or whether you do not, because having learned what you will learn by observation you are expected as men of sense and judgment to use that knowledge in a legitimate and proper way, and a view is proper to aid you in the discharge of your duties as jurors. * * * Mr. Kirkby, if there is anything else in order to guard your client, you think I ought to say, I will say it — anything that occurs to you?
“Mr. Kirkby: No, I am content with the exception I took to the statement of the court.”

The 29th assignment of error is to the effect that the court erred in using the following language, already quoted:

“What you see now may be — may have been modified somewhat by the lapse of time and possibly interference, but so far as we can find out there has been no interference.”

In its charge to the jury, the trial court, referring to the defendant's testimony relating to the burglary, said:

“So far as any statements he made relating to the burglary, they should not be considered as admissions of the crime in question.”

This is the basis of the 47th assignment of error.

The 48th assignment of error is based on the following portion of the charge:

“Now there are some special features of this case that I think I ought to say something about, and the first that occurs to me is this matter of breaking and entering of that hardware store on the night of February 25th and committing larceny therein. The time this evidence was first offered on behalf of the people, I admitted it to enable you to pass upon the question as to whether the pistols in evidence were in the possession of the defendant before the murder and whether one of them was used to kill Mrs. Sryrock.”

The following is the basis of the 49th assignment of error:

“And the people claim that this offense, the breaking and entering and larceny of the firearms in the store, was in contemplation of the act of the next night, February 26th, and a preparation, for it by, in this way, procuring the means.”

The court also added the following:

“The general rule, gentlemen, would exclude all evidence of separate and distinct offenses, especially where they have occurred previous to the crime charged for which, the accused may be upon trial. And this evidence cannot for one moment be used by you to Ms prejudice because of the commission of any other distinct and separate offense.
“This evidence was not for the purpose of showing the respondent was a bad man or a bad character, or to allow it to be used to show that he was a man likely to commit the offense charged. It isn’t the question whether he is bad enough to do it, but did he do it? That is the question. (You are to avoid allowing any force to this piece of evidence as any evidence that respondent committed the murder charged. It should be used only for the legitimate purpose of showing he had means to commit the crime of murder, but not as evidence that he did murder. If he did, that fact should be proven by other evidence.)”

The 50th assignment of error is based upon this last language contained in parentheses.

The 51st assignment of error is based upon the following:

“If you believe him guilty under the evidence in this case, you may consider the means he had, and how, when, and where, and what for they were obtained, if the evidence shows what for they were obtained.”

The court also added:

“But do not convict him of this crime charged on general principles, because he may have committed other crimes and have been a bad young man as claimed.”

Also, the following:

“But after the evidence was admitted, when the defendant took up his own case he became a witness on the stand in his own behalf, and in giving testimony in his own behalf he admitted he committed the offense of breaking and entering the store in question in the nighttime and committing therein the larceny of firearms and ammunition.”

The 55th assignment of error is based upon the following portion of the charge.:

“Now, there has been introduced in evidence a photograph, and there have also been introduced certain letters which this respondent wrote to a lady. These came in upon his cross-examination, and they were submitted to you, and you have the right to consider them in connection with the solution of the question as to the degree of credit you should give to his testimony. In other words, it was permitted in order that you could ascertain the kind so far as the kind of man he was, or is, would aid you in determining to what extent you ought to believe him, if at all. The fact he got his picture taken with an old plug hat smashed down or holding a pistol is not of any special significance and would not have been submitted except it was part of one of these letters, mentioned in the letter and went with it. But so far as it aids you in determining the kind of man he is as a witness, whether he is the kind of man as a witness you ought to believe, I admitted that testimony.”

The 56th assignment of error is based upon certain instructions that were given by the court to the jury when they came in for further instructions while considering their verdict. The jury, after being absent for a time, returned into court, where the following proceedings were had:

' “The Court: Is it correct that you wanted to ask me some question?
“A Juror: Yes, sir.
“The Court: What is it?
“A Juror: The question arises as to whether we can use evidence we saw out at the scene of the murder in our deliberations, or anything that hasn’t been sworn to, anything we saw there that hasn’t been sworn to; whether we can use it in our deliberations or not?
“The Court: Gentlemen, I think I explained it distinctly before you left for the place of this tragedy. I told you then, and I didn’t think it necessary to repeat it in my charge, that you went out there to take a view, and that what you saw would be a part of what you would use in your deliberations and in considering the case. Mr. Kirkby objected that it wasn’t evidence of— Mr. Kirkby, I didn’t understand your position in that regard. Judge Peck used to always instruct the jury the view was a piece of evidence. Just what is your contention in that regard?
“Mr. Kirkby: It is, in a sense, your honor, not in the full, complete sense. They take the view in connection with the sworn testimony in the case to get at the truth of the matter.
“The Court: That’s all right. You use it in connection with/ the sworn testimony. If the testimony said there were things there and the situation was so and so, you use what you saw in connection with it. How true and how accürate the testimony is, or how it lacks in truth or accuracy.
“A Juror: To make it plainer, your honor, we will suppose there was another track discovered there that hadn’t been sworn to in the evidence that would correspond with the track that had been sworn to. Could that be used— '
“The Court (interrupting) : I don’t know how it could be helped. That is what you went there for— was to get information and light. If I hadn’t supposed it would furnish you any information or light, I should not have spent the time in taking you up there.
“Mr. Kirkby: I think, your honor, the jury should be instructed that occurred on last Friday, and they should take into consideration the remoteness of the time and the condition of the premises.
“The Court: Of course, Mr. Kirkby, that was two months ago or more. The jury as intelligent men must take all those things into consideration and give to what you saw no more weight than what you think it is entitled to. It was supposed at the time you went, it was to enable you to get a clearer notion of this matter the witnesses had told about or described.
“Prosecuting Attorney: There was more than one track sworn to, but the other wasn’t as distinct as this particular one.
“The Court: Whether more than one track was sworn to or not I do not undertake to say.
“Prosecuting Attorney: There was testimony to that, but it wasn’t as distinct as the one the most evidence was given about.
“The Court: You were sent there to make the testimony clearer and to get the aid of your observations, and I cannot say you should be deprived of that. Is that all?
“A Juror: That’s all.”

The jury thereupon retired and later returned a verdict of guilty of murder of the first degree.

The assignments of error based on that part of the charge relating to the use that could be made of the evidence of the burglary, and' the possession of the revolvers, and of the finding of a revolver in the jail after defendant’s arrest, and what defendant testified to in that connection, are all in our opinion without merit. All of this evidence bore upon the question whether or not defendant had possession of the means to enable him to commit the crime of murder. In our opinion, this part of the charge was well guarded. In fact, the court might well have gone further, and might have said that the jury might Consider the means defendant had, and how, when, and where, and for what purpose they were obtained, in determining whether he was guity of the murder charged. People v. Wilson, 55 Mich. 506, 514 (21 N. W. 905).

The 55th assignment of error is to that part of the charge relating to the introduction in evidence of a photograph of defendant, and some letters written to a young woman, which matters were brought out in the cross-examination of the defendant. The defendant admitted that these letters were false in their statements. They were not relevant to the case, and might well have been excluded. They seem to have been admitted for the purpose of showing the untruthfulness of the defendant as a witness, and “the manner of man he was.” We have often said that on cross-examination the court must be allowed considerable latitude of discretion in permitting questions calculated to elicit any information as to the past life and conduct of a witness. Beebe v. Knapp, 28 Mich. 53, 72; Jacobs v. Insurance Co., 195 Mich. 18 (161 N. W. 936); People v. Kimbrough, 193 Mich. 330 (159 N. W. 533). We do not think that the reception of this evidence, or the allusion to it in the charge, was reversible error.

This brings us to the most important question in the case in our opinion; that is, the instruction of the court with reference to the duty of the jury in connection with the view of the premises, taking into consideration all that the court said before and after the view. In People v. Auerbach, 176 Mich. 23, at page 46 (141 N. W. 869, 877, Am. & Eng. Ann. Cas. 1915B, 557), we said that:

_ Our statute “provides that the court may order a view by any jury impaneled to try a criminal case whenever such court shall deem such view necessary. The matter of the view of the place where an alleged crime has been committed seems to be discretionary with the court. The question whether the purpose of the view is to furnish new evidence, or to enable the jurors to comprehend more clearly by the aid of visible objects the evidence .already received, is one upon which the courts seem to be divided; the better doctrine being the latter of the above propositions. It certainly would be improper to permit a witness to testify as to the location of objects, or as to any other material point in the presence of the jury while taking the view.”

We adhere to the rule stated in that case. Many cases will be found upon the subject in the note to People v. Thorn, 156 N. Y. 286 (50 N. E. 947), as reported in 42 L. R. A. 368.

In the instant case, while there were some' isolated expressions used by the trial court with which we cannot agree, yet we cannot say, taking all that was said by the court, as well as by court and counsel in their colloquy, that the jury was misdirected. There is no claim of any misconduct on the part of the jury. It will be borne in mind that there was not only testimony of a track, but of certain other imprints or marks in the blood on the floor of the room where the homicide was doubtless committed. Manifestly, the jury had the right to consider all they saw in the room, having reference to tracks, imprints, or marks testified to, and mentioned by the witnesses in a general way. If what the witnesses called marks in the blood the jury thought to be tracks, can it be said they should not use their senses in the matter? Would it, after all, be anything more than the weighing of the evidence, “to enable the jurors to comprehend more clearly by the aid of visible objects the evidence already received?” It would seem not. In the colloquy between the juror and the court, it is not clear that the juror was not referring to the same things testified to by the witnesses as “another mark,” or “other marks.” The last question asked by the juror presents a mere suppositious case? “Suppose there was another track discovered?” At the most, the juror was referring to a track or tracks in the blood on the floor about which testimony had been given. We doubt if it can be said that there is anything to indicate that the jury was considering, or contemplated considering, new evidence, or anything that had not already been testified to.

After mature consideration of this subject we cannot say that there was reversible error in the instructions. In our opinion none of the errors complained of call for a reversal of the case, which seems to have been tried with care, nor can we say that the verdict and judgment constitute a miscarriage of justice.

The judgment of the circuit court is therefore affirmed.

Ostrander, Bird, and Steere, JJ., concurred with StoNe, J. Kuhn. C. J., and Moore and Brooke, JJ., concurred in the result. Fellows, J., did not sit.


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    McKNIGHT v. LOWITZ.
    1. Contracts — Nonjoinder op Parties Dependant — Mode op Objection — Abatement—Pleading.
    Where the nonjoinder of parties defendant in an action on a contract is not disclosed by the record it must be taken advantage of by plea in abatement both where the parties are partners and in cases of other joint debtors.
    2. Same — Pleading—Abatement—Absence op Plea.
    Where the evidence showed that others than the defendant were liable on the contract, the plaintiff could still recover, in the absence of a plea in abatement.
    3. Pleading — Abatement.
    A plea in abatement must not only point out the error of plaintiff but also indicate the manner of correcting it.
    4. Same.
    The technical plea in abatement still obtains in this State, and it is not proper to set up matter of abatement specially in the answer.
    5. Contracts — Peopessional Services — Question por Jury.
    In an action by an attorney to recover for services, where the testimony of a witness that the reasonable value of the services was a certain sum was modified on cross-examination, held, that the question was one for the jury.
    Error to Cass; Des Voignes, J.
    Submitted April 4, 1917.
    (Docket No. 34.)
    Decided May 31, 1917.
    Assumpsit by William F. McKnight against Elick Lowitz for professional services. Judgment for plaintiff, and both parties bring error.
    Affirmed.

      William F. McKnight (Clarence M. Lyle, of counsel) , in pro. per.

      Gore & Harvey, for defendant.
   Stone, J.

This is an action in assumpsit brought to recover for professional services as an attorney at law, alleged to have been rendered by the plaintiff and his late copartner to the defendant in two transactions. The declaration proceeds against the defendant only. It consists of a special count and also the common counts in assumpsit, and alleges the assignment of the claim to the plaintiff by his former partner. The bill of particulars of the plaintiff’s demand, which was filed, is as follows:

1908
Sept. 3. To fees for time spent in consultation •with self as to organization of Cass County State Bank; time spent at Cassopolis in effort to induce people to become subscribers to the articles of association; time spent drafting articles of association, attending meeting of stockholders on August 27th and 28th, directing the organization of the bank, electing board of directors, etc.; time spent with self as to purchase of bank property, examining title of same, drafting agreement, etc., in relation to lease of building, etc.................... $200 00
Sept. 3. To cash, expense on trip to Cassopolis, etc................................ 15 00
1910
Sept. 8. To fees and expense, trip to Los Angeles, Calif., in re settlement with creditors of the Kimmerle Concrete Machinery Co., etc., three weeks.... 650 00
Interest at five per cent. (5%)........ 218 43
$1,083 43

The plea was the general issue, accompanied by notice of the statute of limitations. From a judgment on the verdict of the jury for $277.18 in favor of the plaintiff, both parties have brought error.

The plaintiff resided at Grand Rapids. The defendant lived in Chicago, where he was an operator on the Board of Trade, and had a summer residence on the lake outside the village of Cassopolis, in Cass county, Mich.

The plaintiff gave evidence tending to show that in the summer of 1908 he was employed by the defendant in the organization of a bank at Cassopolis, and that he performed services in effecting the organization of the bank which were worth $200; and there also was evidence that he incurred expenses to the amount of $15.

As to the other transaction: The Kimmerle Concrete Machinery Company was a corporation doing business in Los Angeles, Cal., and had been operated largely under the management of two sons of Charles H. Kimmerle. The defendant and Charles H. Kimmerle were both of them originally stockholders in this corporation, and there was evidence tending to show that they were partners in their investments in the stock of this company. Defendant had not paid in full for his stock, and in July of the year 1910 the corporation had been running behind, and its affairs were in bad condition, and bankruptcy proceedings were threatened. It also appeared that in the spring of 1910 the defendant had formally transferred his stock in said company to one Farrol, an employee of his; but it was said that the major part of the debts of the corporation had been contracted and incurred before this transfer was made, and the question of the liability of defendant as a stockholder was involved. It appeared in evidence that some time in the month of July, 1910, the plaintiff, being at Cassopolis, met defendant and Charles H. Kimmerle and had a general conversation with them concerning the affairs of the Kimmerle Concrete Machinery Company. It was the claim of the plaintiff that it was finally agreed that he and Mr. Kimmerle should go to Los Angeles and investigate the condition of affairs, and try to adjust the same in the interest of defendant and Kimmerle. The plaintiff, on or about July 25th, being on his way to British Columbia, called, by previous arrangement, at defendant’s office in Chicago, and there had further conversation with Kimmerle and defendant, by which it was arranged that, after visiting British Columbia, the plaintiff should proceed to Los Angeles and assist in straightening out the affairs of said corporation. There was some evidence that on this occasion it was agreed that defendant was to pay one-half the expenses of the plaintiff if he made the trip to Los Angeles. Upon that subject, Charles H. Kimmerle testified as follows:

“Q. What was said, if anything, in regard to the expenses out there?
“A. Well; he was to bear his half of the expense, whatever it was. That was understood in all the talks, and talked.”

The evidence tended to show that the plaintiff, on receiving telegrams from Kimmerle, left his business in Victoria unfinished, and proceeded .to Los Angeles, arriving there on the evening of' August 21st, and there -found Mr. Kimmerle and Mr. Ed. Rein, a representative of the defendant and said to be his confidential man of business. There.was a good deal of evidence along the line of what was done during the stay of plaintiff at Los Angeles, and it is claimed that he. remained there in the employ of the parties until September 5th, when he and Mr. Kimmerle returned to Chicago. There they met the defendant, and there was testimony that the defendant there asked the plaintiff the question: “Well, Mac, how much do I owe you?” And that plaintiff replied that there was more important business than that on hand just then, and proceeded to speak of the business in which he had been engaged in California. There were subsequent conversations in Chicago in which the defendant, as testified to by plaintiff, among other things, said he would bear half the expenses, using the language:

“Of course, I will stand dollar for dollar with Charlie (meaning Mr. Kimmerle) on his obligation or on this indebtedness, * * * and we will also pay McKnight his fees and expenses out there.”

The record shows considerable correspondence between the plaintiff and defendant and Mr. Rein, relating to the matter of the California company subsequent to this conversation. The plaintiff’s charges for this trip and services were entered upon his journal as follows:

“September 8,1910. Kimmerle Concrete Machinery Company, E. Lowitz and C. H. Kimmerle. To fees, time spent at Los Angeles from August 21st to September 8th in settlement with creditors; also procuring stock in hands of Sweet, Collins & Robinson, time spent Secretary Board of Trade Los Angeles, etc., three weeks, $1,300.00.”

Some claim was made by defendant, upon the cross-examination of the plaintiff, that the words “E. Lowitz and C. H. Kimmerle” had been added subsequently to the making of the original entry. This was denied by the plaintiff, and the journal was examined by the court and jury upon the trial, and was produced upon the argument in this court. That question was submitted to the jury.

At the close of the plaintiff’s evidence, a motion was made by defendant for a directed verdict in his behalf upon the following grounds:

“First. For the reason that it affirmatively appears that in the first item stated in the bill of particulars the Cass County State Bank and others are jointly charged upon the plaintiff’s books, and by the plaintiff under his direction, for that service.
“Secondly. Because it appears beyond contradiction, and is insisted upon by the plaintiff himself and his counsel, that for the services rendered the Concrete Machinery Company, Elick Lowitz, and Charles H. Kimmerle there was a copartnership, between Elick Lowitz and Charles H. Kimmerle and a joint interest between them respecting that service; that such matter was known to the plaintiff McKnight.
“For these reasons it is elementary that the bank must be made a party, on the ground of the one item. It is equally elementary that the plaintiff should have joined as defendants the concrete machinery company and Charles H. Kimmerle in this suit.”

The court ruled that the first and second items relating to the services in connection with the Cass County State Bank, in 1908, were, under the evidence, outlawed and subject to the statute of limitations, and finally directed a verdict against the plaintiff as to those claims of services and expenses amounting to $215. This was assigned as error by the plaintiff. The defendant offered no testimony.

There were requests to charge, which were denied by the court, as follows:

The plaintiff requested the court to charge:

“Under the undisputed evidence, the plaintiff is entitled to recover the sum of $650 with interest thereon at the rate of 5 per cent, from February 17, 1911, to date, or a total sum of $799.80, principal and interest.”

The defendant requested the court to charge as follows:

“(1) Your verdict must be for the defendant.
“ (2) It is undisputed, under the evidence, that the plaintiff charged for services sued upon, jointly, the Kimmerle Concrete Machinery Company, the defendant Elick Lowitz, and C. H. Kimmerle. I charge you that this claim, as appears by the books of the plaintiff introduced in evidence, is a joint claim; that each party thereto should be joined as a defendant. The defendant having been sued individually on said account, I charge you there is a failure of proper parties, and your verdict will be for the defendant.
“(3) It is uncontradicted by the plaintiff’s testimony that a copartnership existed between the defendant and Charles H. Kimmerle in regard to the service of the plaintiff in Los Angeles, Cal. I therefore charge you that the members of this copartnership should be made parties defendant, and, the record showing that the defendant is sued individually, I charge you the plaintiff cannot recover in this action, and your verdict should be for the defendant.
“ (4) I charge you as a matter of law that the concrete machinery company and Charles H. Kimmerle, under the evidence of the plaintiff, are necessary parties defendant.”

There was a motion for a new trial involving these and some other questions. The motion for a new trial was denied. The trial court denied the motion principally upon the ground that, by pleading to the'merits, the defendant had waived the right to have co-obligors joined in the action, using the language:

“In my opinion, if persons who ought to have been made codefendants were not joined, the defect should have been taken advantage of by plea in abatement”

—calling attention to the fact that the declaration and pleadings did not disclose joint liability, and for that reason it was only open on plea in abatement.

It is the claim of the defendant that the plaintiff’s testimony tended to prove a cause of action against the Kimmerle Concrete Machinery Company, Elick Lowitz, and Charles H. Kimmerle, and, the proof showing no individual contract or liability of the defendant, that the plaintiff cannot recover in this action, saying:

“The plaintiff predicated his case in his declaration solely upon an individual contract with Elick Lowitz. The proof wholly fails.”

This question is argued at great length by defendant, and many authorities are cited. In our opinion,. the authorities relied upon by defendant do not support the position claimed. It is not accurate to sajr there was no individual liability. It may be said there was no sole individual liability of defendant. Conceding that there was evidence tending to show a partnership, as is claimed, between Kimmerle and defendant, and that the indebtedness was a joint one against the Kimmerle Concrete Machinery Company, the defendant, and Kimmerle, under the condition in which we find the declaration and bill of particulars, we are of opinion that the nonjoinder of these parties has been waived; the same not having been pleaded in abatement. Where nonjoinder of defendants, who ought to be joined in an action on contract, is not disclosed by the record, it must be taken advantage of by a plea in abatement. 31 Cyc. p. 175, and note. And this doctrine applies as well to partners as to other joint debtors. Some of the many Michigan authorities upon this subject are the following: People v. Dennis, 4 Mich. 609, 615 (69 Am. Dec. 338); Ballou v. Hill, 25 Mich. 204; Hinman v. Eakins, 26 Mich. 80; Bowen v. Culp, 36 Mich. 224; Mitchell v. Chambers, 43 Mich. 150 (5 N. W. 57, 38 Am. Rep. 167); Hecht v. Ferris, 45 Mich. 376 (8 N. W. 82); Munn v. Haynes, 46 Mich. 140 (9 N. W. 136); Porter v. Leache, 56 Mich. 40 (22 N. W. 104); Coon v. Anderson, 101 Mich. 295 (59 N. W. 607); Dillenbeck v. Simons, 105 Mich. 373 (63 N. W. 438); Clark v. O’Rourke, 111 Mich. 108 (69 N. W. 147, 66 Am. St. Rep. 389); Schroder v. Pinch, 126 Mich. 185 (85 N. W. 454).

In People v. Dennis, supra, the declaration did not show on its face whether Benson was a party to the recognizance or not. This court said:

“The evidence on the trial showed that in this case Benson, the principal, recognized jointly with the defendants ; but it is well settled that in actions ex contractu the nonjoinder of the co-contractor is not a ground of variance, and, unless it appear on the face of the declaration, can only be taken advantage of by plea in abatement” — citing cases.

Coon v. Anderson, supra, involved a partnership question and the same rule was applied.

In Schroder v. Pinch, supra, Justice GRANT, speaking for this court, said:

“Defendant was liable as a member of the firm, and no doubt could arise as to plaintiff’s right to recover as against the members of the firm. The declaration informed him of the nature of the claim, and he could only take advantage of the nonjoinder of his partner as defendant by a plea in abatement” — citing cases.

Where there is a plea of the general issue, as in this case, and the evidence shows that others than the defendant are liable upon the contract, the plaintiff may still recover against the defendant, in the absence of a plea in abatement. It is elementary that the plea in abatement must not only point out the plaintiff’s error, but must also indicate in what manner it may be corrected ; or, as it is commonly expressed, the plea must give the plaintiff a better writ. In many of the code jurisdictions, the technical plea in abatement has been practically abolished, the matter in abatement being set out specially in the answer, but such practice does not obtain in Michigan, and never has.

We are not concerned here about the peculiar relationship existing between' partners; nor where a judgment has been entered against one defendant only, on a joint obligation, whether he can make the other joint debtors contribute. We are dealing with a matter of practice. While the rule stated is a somewhat technical one, yet it is as old as our common law.

The other alleged errors complained of by the defendant have received attention, and in our opinion they are not well assigned.

Coming to the appeal of the plaintiff, we first note what he claims in regard to the statute of limitations. !We do not understand what plaintiff means when he !says: “No notice of this statute was given with the plea of the general issue.” This record shows the contrary. Neither does it appear by this record that the plaintiff had an open or mutual account against the defendant. We do not think the court erred in refusing to submit the claim relating to the Cass County State Bank to the consideration of the jury. As the evidence stood, the statute had run. This suit was begun March 26, 1915.

It is next claimed that the court erred in refusing to direct a verdict for the plaintiff for $650 and interest. While the testimony of the witness Kinnane, on direct examination, tended to show that to have been a reasonable amount, this testimony was a good deal modified upon cross-examination, and we think the whole question became one of fact for the jury.

We have examined the other assignments of error of the plaintiff, but think them without merit. We do not think the plaintiff was prejudiced by any of the matters upon which error is assigned. It is apparent that the jury found the contract to be as claimed by the plaintiff, with reference to the California service, and much of what is complained of, at most, could be harmless error.

Finding no reversible error in the record, the judgment of the court below is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


text:
    SNYDER v. MATHISON.
    1. Appeal and Error — Trial—Examination op Jurors on Voir Dike — Curing Error.
    Where, in an action to recover for personal injuries received in an automobile collision, a juror was asked on his voir dire as to his agency for an automobile insurance company, and an objection thereto was made and sustained, and no further reference to the matter was made by court or counsel, and counsel expressed their satisfaction when two jurors were subsequently passed for cause, held, that there was.no reversible error.
    2. Same.
    Much latitude is allowed in the examination of a juror on his voir dire.

    3. Witnesses — Cross-Examination— Conclusions — Automobiles —Personal Injuries.
    In an action to recover for personal injuries sustained in a collision between automobiles, the question put to defendant upon cross-examination, “Your car came around there with such force that the rear wheel hit the Fountain street curb, didn’t it?” was properly admitted, over objection that it called for a conclusion.
    4. Same — Cross-Examination—Credibility—Prejudice.
    Where a witness was asked on cross-examination as to statements claimed to have been made by him to plaintiff, in whose behalf he was being cross-examined, as tending to show the witness’ prejudice or bias against one of the attorneys for plaintiff, sufficient foundation was laid for testimony by plaintiff in rebuttal as affecting the credibility of the witness.
    5. Same.
    Questions on cross-examination of a witness for defendant tending to show hostility to and prejudice towards one of plaintiff’s attorneys, are properly admitted for such purpose.
    6. Automobiles — Personal Injuries — Damages—Excessive Verdict.
    In an action to recover for personal injuries sustained in an automobile collision, held, that a judgment for $300, on remittitur, was not excessive, where plaintiff was 75 years old, had two ribs broken, had been kept from work for some time, and earned about $12 a week when at work.

    Error to Kent; Perkins, J.
    Submitted April 16, 1917.
    (Docket No. 30.)
    Decided May 31, 1917.
    Case by Robert. Snyder against Frank H. Mathison and William Vandenberg for personal injuries. Judgment for plaintiff. Defendants bring error.
    Affirmed.

      H. Monroe Dunham and John M. Dunham, for appellants.

      Smedley & Linsey, for appellee.

       On excessiveness of verdicts in action for personal injuries other than death, see, comprehensive note in L. R. A. 1915F, 30.

   Stone, J.

This is an action on the case to recover damages for personal injuries received by the plaintiff, growing out of the collision of two automobiles in the city of Grand Rapids on November 22, 1915. On that day, about noon, the plaintiff, a man 75 or 76 years of age, was riding in' a Ford car, being driven by one William Bailey, going south on College avenue, and at the intersection of said College avenue with Fountain street, an east and west street, they collided with a seven-passenger Kissel automobile being driven west by the defendant Vandenberg. Both streets were paved. In his declaration the plaintiff charges the defendants with negligence in the operation of the said automobile, owned by the defendant Mathison and being driven by the other defendant. The plea was the general issue.

Upon the trial, which appears to have been the second trial of the case, it was the plaintiff’s claim that the collision was the result of the negligent operation of th¿ larger automobilé by the defendant Vanden-. berg. He claimed that Bailey, who was driving the Ford car, was operating it at a moderate rate of speed ; that defendants’ car was going about twice as rapidly as the other car, and was exceeding the speed limit; that said defendant did not have his car under control; that if he had gone in a straight line the collision would not have happened, but that he swerved his car to the south and ran into the Ford car, threw it against the curb, and turned it over, injuring the plaintiff; and that Bailey was a careful driver, was on the right-hand side of the street, and exercised care and caution, and that the Ford car had the right of way at this intersection. Plaintiff further testified that one of his ribs was broken, and that, because of his age, the shock, injury, and pain resulting from the injury had kept him from his work, and that he would be unable to work for some time; and that his business was that of buying poultry and meats on commission, and his earnings were about $12 a week. This trial took place in May, 1916, about six months after the injury.

On the other hand, it was defendants’ claim that Bailey, the driver of the Ford car in which plaintiff was riding, was exceeding the speed limit, driving from 20 to 30 miles an hour; that he was driving on the wrong side of the street; that he threw his brakes on when directly ahead of defendant’s car, without any signal, thus causing the collision; that he did not have his car under control; that said defendant had the right of way; and that the accident was caused solely by reason of the negligence of Bailey. Defendants further claimed that at no time, as he approached the intersection, was Vandenberg going over 13 miles an hour; that when he was 25 or 30 feet east of the crossing he saw Bailey, 60 to 75 feet north of the intersection, and that he was coming rapidly; that as he neared the crossing Vandenberg realized he would be struck if he continued in a straight line, so he put on his brakes and swung his car quickly to the south; that Bailey turned to his right, and tried to shoot out across and ahead of defendants’ car; that said defendant had nearly passed plaintiff’s car when the right fender of defendant’s car struck the Ford; that Bailey improperly applied the brakes to his car just before he was struck, and that he gave no signal to Vandenberg; that the slippery condition of the pavement caused defendants’ car to skid, and after striking the Bailey car with the fender, further progress of the defendants’ car was stopped, and the force and weight of defendants’ car upon the slippery pavement caused it to turn completely around, so that it was headed east when it stopped..

Both parties gave testimony tending to support their respective claims, and we are satisfied that the questions presented by the evidence were for the jury, as there was a sharp conflict in the evidence upon nearly every question involved. The traffic ordinance of the city was put in evidence. Among other things it provides as follows:

“In all the streets of the city, except those lying within the congested district thereof, as herein defined, in case of vehicles approaching each other, the right-hand vehicle shall have the right of way. * * * Drivers or operators of vehicles before turning, stopping, backing,.or changing their course, shall make sure that such movement can be made safely, and shall give a plain signal to others on the street by extending or elevating the hand.”

It was conceded that the streets involved were not in the congested district, but were in the residence district of said city.

During the examination of Juror Eleveld, by Mr. Linsey, counsel for plaintiff, the following occurred:

“Q. How long have you known Mr. Ten Broek?
“A. Nearly 40 years.
“Q. Do you represent the London & Lancashire Indemnity Company of London?
“A. No, sir.
“Q. You have nothing to do with that?
“A. No, sir.
“Mr. Dunham (counsel for defendants): It does not strike me that these questions relative to automobile insurance are competent in this case. There is no question of insurance in this case. It is the personal liability of these defendants.
“Mr. Linsey: Counsel knows by whom he is employed, and I think I have a right—
“Mr. Dunham: I do not think counsel is warranted in making that statement, trying to get things before the jury that are not competent, and I take an exception.
“The Court: The statement is not proper. A matter of that kind ought not to be suggested or brought into the case; it is absolutely prohibited under the law, under the ruling of the Supreme Court, and it is reversible error if the statement is made.
“Mr. Linsey: I did not mean anything.wrong by it, your honor, I thought I was within my rights in examining the juror, but I may not have been.”

Counsel for defendants exercised only one peremptory challenge. After exercising this challenge another juror was called, and after his examination the following took place:

“Mr. Dunham: Pass the juror for cause.
“The Court: Any peremptories ?
“Mr. Dunham: We are satisfied.”

Following that, Mr. Linsey excused another juror; a juror was called in his place, and at the close of his examination the following took place:

“Mr. Dunham: We pass the juror for cause.
“Mr. Linsey: We are satisfied, your honor.
“Mr. Dunham: I am satisfied.”

Whereupon the jury were sworn and the trial proceeded.

The defendant Vandenberg was called for cross-examination under the statute by the plaintiff, and in the course of his examination he was asked by Mr. Linsey the following question:

“Your car came around there with such force that the rear wheel hit the Fountain street curb, didn’t it?
“Mr. Dunham: Just a minute; the question is objected to as calling for a conclusion.
“Mr. Linsey: This is cross-examination.
“The Court: Go on.
“Mr. Dunham: I think the question is not competent.
“The Court: Take the answer.
“A. It struck the telephone — my car skidded after I put my brakes on, but I don’t know how far.”

Dr. William J. Dubois was sworn as a witness on behalf of the defendants. He testified that he saw the accident in question. On cross-examination he was asked the following questions by Mr. Linsey:

“The firm of Dunham & Phelps were formerly your attorneys, weren’t they?
“A. Yes, sir.
“Q. And you had an automobile accident yourself, where Mr. Smedley, my partner, was prosecuting you, didn’t you?
“Mr. Dunham: Just a minute; it does not seem to me that is competent, or has a thing to do with the case.
“Mr. Linsey: Your honor, I claim this: Whatever goes to show the prejudice or bias of any witness is competent, and the jury is told that in every case, in every civil case, or any kind of a case. I think it bears upon the bias or prejudice of this witness.
“The Court: Well, answer the question.
“A. I did.
“Q. And following that you said you would get even with Mr. Smedley, didn’t you?
“Mr. Dunham: I object to that.
“A. I never said any such thing. Mr. Snyder came to my office once after this accident.
“Q. And didn’t you tell him that the Mathison car was being driven recklessly and carelessly?
“A. I did not.
“Q. And didn’t you tell Mr. Snyder that he had a good case for damages against the Mathison people?
“A. I did not. * * * You called me over the phone before the other trial, and I told you I wouldn’t talk to you about the case. I had one experience talking to your firm. I didn’t know that Smedley & Linsey were representing Snyder at the time Snyder talked to me, nor did I know it until I talked with Mr. Linsey over the telephone.”

In rebuttal the plaintiff was recalled, and he testified, among other things:

“After the accident I went up to see Dr. Dubois. It was after that that I retained Smedley & Linsey.
“Mr. Linsey: I ask you whether or not, when you went up there to see Dr. Dubois, that Dr. Dubois didn’t tell you that the big car driven from the east was being driven in a reckless and careless manner?
“Mr. Dunham: Just a minute. The question is objected to: First, it is leading; second, it is improper, as impeaching.
“Mr. Linsey: The same question I asked Dr. Dubois.
“Mr. Dunham: It hasn’t a thing to do with this case. If he were a party, 'the question would be all right; but, when he is a mere witness, it is entirely improper and incompetent.
“Mr. Linsey: It is competent to impeach a witness in that manner, as I understand it.
“The Court: He may answer.
“A. Yes; he did.
“Q. And whether or not he told you at that time that you had a good case for damages against—
“Mr. Dunham: That is objected to as a mere conclusion. I don’t think the doctor’s opinion as to legal matters ought to govern in a case of this kind.
“Mr. Linsey: It does not; it simply goes to the credibility of the witness, is all.
“The Court: I do not think the doctor was asked that question.
“Mr. Linsey: Yes.
“The Court: I hardly think he was asked that question. If he was not. of course this is not proper.
“(Testimony read.)
“The Court: Take the answer.
“Q. Didn’t Dr. Dubois tell you that you had a good case for damages against the Mathison people?
“A. He did.
“Q. Did Dr. Dubois at that time know that Smedley & Linsey were your attorneys?
“A. He did not; I had not seen them.
“Mr. Dunham,: That is objected to; what Mr. Snyder knew and the doctor knew.”
“Q. You did not tell the doctor that?
“A. I had not employed any.”

Counsel for the defendants requested the court to charge the jury as follows:

“If you find that this accident would not have happened but for the conduct and actions of Bailey, the driver of the car in which the plaintiff was riding, and that that conduct and those actions were not such as would be exercised by a reasonably prudent and careful man under those conditions, then your verdict should be, ‘No cause of action.’ ”

The substance of that request was given. The court then added the following:

“That instruction has reference, I apprehend, to Bailey’s claim that he set the brakes just before the car was struck by the Mathison car. Now, that is a circumstance that you may consider as bearing upon Bailey’s contributory negligence in driving his car. If a reasonably prudent person would not have done, under the circumstances as they existed at that time and as Bailey thought, as Bailey did in setting his brake in that particular crisis, then Bailey would be guilty of contributory negligence, and the plaintiff, of course, could not recover.”

The case having been submitted to thh jury in a very lengthy charge, the trial resulted in a verdict and judgment for the plaintiff in the sum of $400. There was a motion by the defendants for a new trial, based upon the grounds that the verdict was contrary to the evidence in the case; that it was contrary to the great weight of the evidence; that the amount was grossly excessive and unreasonable; also because the jury was not guided by the instructions of the court, and were influenced by prejudice and sympathy; and for errors committed in the reception of testimony, which are also covered by the assignments of error, which it is not necessary to repeat. The trial court denied the motion for a new trial, upon condition, however, that the plaintiff should remit $100 of the judgment, and it was provided that upon the filing of such remittitur the motion would be denied. The $100 was remitted, so that the judgment standing against the defendants is in the sum of $300. The refusal to grant a new trial was duly excepted to.

1. The defendants have brought the case here on writ of error. Error is based upon what occurred relating to the examination of juror Eleveld, above set forth. It appears that this subject was not again referred to by court or counsel upon the trial. We do not think that what occurred should work a reversal of the case. We are not satisfied that the question was not asked in good faith, and much latitude is allowed in the examination of a juror on his voir dire. We do not think that the cases cited by appellants are in point. They relate to the examination of witnesses upon the trial. The language of the trial court in sustaining the objection of appellants was sufficiently emphatic. No request to charge on the subject was presented, and we think the subsequent announcement of satisfaction operated as a waiver of the matter. William R. Roach & Co. v. Blair, 190 Mich. 11 (155 N. W. 696).

2. The second assignment of error is based upon the ruling relating to the question asked of defendant Vandenberg. We do not think there is any merit in the point.

3. The fifth, sixth, seventh, and ninth assignments of error are based upon the questions asked of the plaintiff in rebuttal relating to the statements of Dr. Dubois. It appears by the record that Dr. Dubois’ attention had been called to these matters on his cross-examination, and he denied that he had so stated to the plaintiff. We are of the opinion that sufficient foundation had been laid for the asking of the questions in rebuttal, and that they were proper as affecting the credibility of that witness.

4. The third, fourth, and eighth assignments of error are based upon the alleged improper cross-examination of Dr. Dubois. The questions tended to show hostility to and prejudice toward one of plaintiff’s attorneys, and for that purpose we think they were proper. The matter was not followed up, probably because plaintiff was bound by the answer of the witness. We do not think there was reversible error here.

5. By numerous assignments of error appellants complain that:

“The court failed to instruct the jury that the various prejudicial matters complained of, which were interjected into the trial of this cause by counsel for the plaintiff, were improper and should not be considered by them. These things were not corrected in any way.”

In the absence of requests to charge upon the subject, and in view of what we have already said, we need not further discuss those matters.

6. Complaint is made of the charge, and especially that part of it above referred to. The charge was a very lengthy one, considering the questions presented, covering 16 pages of the printed record. We have examined it with care, and are of the opinion that it presented every phase of the casé in a fair way, and is not open to the criticism of counsel which is indulged in. We find no reversible error' in the charge.

7. Finally counsel assign error because the court refused to grant a new trial. It certainly does not appear that the final judgment of $300 is excessive, or contrary to the weight of the evidence.

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

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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    HARRINGTON v. SHELDON.
    1. Landlord and Tenant — Deeds — Life Estates — Action for Rent — Evidence—Admissibility.
    In an action by tbe administrator of tbe estate of a grantor in a deed, which reserved a life estate in the premises in the grantor, to recover rent from the grantor’s tenant, where the rent had been paid to a date subsequent to the grantor’s death, the deed was admissible to show the extinguishment of the grantor’s title.
    2. Same — Life Estates — Lease—Termination.
    The death of a life tenant terminates a lease of the premises by him, and the lessee becomes a tenant by sufferance of the reversioner.

    3. Same — Life Estates — Termination—Notice.
    The lessee of a tenant for life is charged with notice of the extent of his landlord’s title, especially where such title appears of record.
    4. Dismissal and Nonsuit — Notice—Sufficiency—Pleading.
    The question of the insufficiency of a notice filed under the general issue cannot be raised by motion, under the judicature act (Act No. 314, chap. 14, § 4 Pub. Acts 1915, 3 Comp. Laws 1915, § 12456), as under the former practice it could not be raised by plea or demurrer.

      Error to Ingham; Collingwood, J.
    Submitted April 9, 1917.
    (Docket No. 100.)
    Decided May 31, 1917.
    Assumpsit by W. A. Harrington, administrator of the estate of Milo Marsh, deceased, against Charles Sheldon for rent. Judgment for defendant. Plaintiff brings error.
    .Affirmed.

      W. A. Harrington, in pro. per.

      Charles Hayden (Person, Thomas, Shields & Silsbee, of counsel), for appellee.

      On right of lessee of life tenant to possession and emblements upon death of his lessor, see note in 11 L. R. A. (N. S.) 688.

   Stone, J.

This action was brought by the plaintiff, as administrator of the estate of Milo E. Marsh, deceased, to recover of defendant for. rents claimed to be due to said estate for the use of certain premises by defendant. The facts are not in dispute. On January 22, 1909, Milo E. Marsh, widower, executed and delivered to Harry L. Bird and Cora M. Bird, husband and wife, a warranty deed of the premises in question, which deed contained the following provision:

“Excepting and reserving to first party, however, a life estate for and during his own life in said premises.”

This deed was recorded on January 23, 1909, in the office of the register of deeds in the proper county. On the 24th day of April, 1912, Milo E. Marsh made a lease of the premises to E. B. Eamsay, which lease was later assigned, with proper consents, to the defendant. This lease was to run for the term of one year from and after the 20th day of April, 1912, with the privilege of five years more. The privilege was exercised, and the defendant was in possession under the lease. Milo E. Marsh died intestate on February 5, 1916. On the date of his death the rental had been paid to, and including February 20, 1916.

Upon the trial the said deed was offered by defendant and received in evidence, over the objection and exception of plaintiff that said deed was incompetent and irrelevant, and that defendant was estopped from showing and asserting title in any other person) or himself, and that he was estopped from denial of his landlord’s title. A judgment of no cause of action was duly entered in the case. The plaintiff has brought the case here on writ of error, and it is urged by the assignment of error that the court erred in admitting in evidence the said deed.

The claim of the plaintiff is stated in his brief as follows:

“That a ‘tenant may not deny or dispute the title of his landlord’ is the general doctrine held by all courts, and in Michigan quite early this was declared in Byrne v. Beeson, 1 Doug. 179, and followed in later cases. Lee v. Payne, 4 Mich. 106; Ryerson v. Eldred, 18 Mich. 12; Bertram, v. Cook, 32 Mich. 518 and 44 Mich. 396 [6 N. W. 868], and lastly reaffirmed by the case of Balch v. Radford, 182 Mich. 292 [148 N. W. 707].”

We think that the deed was relevant and material to show that the title of Marsh, the life tenant, had been extinguished. The life tenant is entitled to all the rents accruing from the property during the continuance of his estate. As this court said in Jenkinson v. Winans, 109 Mich. 524, at page 526 (67 N. W. 549, 550):

“Though the tenant cannot show that the lessor had no title to the premises when the tenancy commenced, he may show that the lands have been sold at tax sales, and the landlord’s title thereby extinguished. The estoppel extends only to the title which the landlord had at the time of leasing. If that title has been extinguished, it may be shown; for then the landlord has no right to the possession.”

See cases there cited. See, also, Hartz v. Hilsendegen, 182 Mich. 129, at page 136 (148 N. W. 433); Balch v. Radford, supra; 16 Cyc. pp. 622-624, and cases cited.

We think that the death of a life tenant terminates the lease of the premises existing between him and his lessee, and that the latter becomes a tenant by sufferance of the owner of the reversion. Guthmann v. Vallery, 51 Neb. 824 (71 N. W. 734, 66 Am. St. Rep. 475); Hoagland v. Crum, 113 Ill. 365 (55 Am. Rep, 424); Wright v. Roberts, 22 Wis. 161, 165.

The lessee of a tenant for life is charged with notice of the extent of his landlord’s title, especially where, as in this case, such title appears of record. We find no error in the ruling of the court.

Appellant, by another assignment of error, complains because the court refused to pass upon a motion alleging the insufficiency in law of the notice under the general issue, and claims that under the provisions of section 4, chap.. 14, of the judicature act (Act No. 314, Pub. Acts 1915 [3 Comp. Laws 1915, § 12456]), he was entitled to raise- the questions by motion. It is a sufficient answer to this claim to say that under the former practice questions of the sufficiency of a notice could not have been raised by plea or demurrer.

Finding no error in the record, the judgment of the circuit court is affirmed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


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      In re MACDONALD’S ESTATE.
    Courts — Appeal prom Probate Court — Stipulations—Eppeot— Jurisdiction.
    Where a claim against an estate is filed in the probate court, and, after its disallowance upon the claimant’s default, a stipulation is entered into between claimant and the executrix and the residuary legatee that the estate may be settled and closed and that the executrix and residuary legatee will personally assume the payment of the claim, subject to the prosecution, appeal and final disposition in the usual manner of the claim the same as though such stipulation had not been made, and the estate is thereupon settled and closed, and an appeal from such disallowance to the circuit court is perfected, the circuit court has no jurisdiction to remand the claim to the probate court for the purpose of amendment of the claim.

    Certiorari to Delta; Flannigan, J.
    Submitted April 18, 1917.
    (Docket No. 84.)
    Decided May 31, 1917.
    James H. MacDonald presented his claim for services against the estate of Vilna I. MacDonald, deceased. The claim was disallowed by the cómmission.ers, and claimant appealed to the circuit court. From an order remitting the cause to the probate court for further proceedings, Flora B. Holt, executrix of the estate of said deceased, brings certiorari.
    Reversed.

      G. R. Empson and S. M. Matthews (William C. Quarles, of counsel), for appellant.

      A. H. Ryall (Martin, Martin & Martin, of counsel), for appellee.

      On conflict of laws as to gambling and lottery contracts generally, see notes in 64 L. R. A. 161; 46 L. R. A. (N. S.) 650.

   Stone, J.

Flora B. Holt is the executrix and residuary legatee under the last will and testament of Vilna I. MacDonald, deceased. It appears that said! will was duly allowed for probate in the probate court of Delta county, and while said estate was being ad-: piinistered in said court, and on February 20, 1915, James H. MacDonald filed a claim for $100,000 in and against the said estate, alleging that there was an oral contract between himself and the said Vilna I. MacDonald to the effect that, if he would aid and assist her in connection with her affairs and property during her lifetime, he would be left by her a large and substantial portion of her estate; that, relying on said promises, claimant performed numerous services for said Vilna I. MacDonald during each and every year from and after January, 1889, up to the time of her death in the fall of 1914. The particulars of this claim are fully set forth in the record, but we do not deem it necessary to repeat them here. The executrix filed her written objection to the allowance of said claim. Commissioners on claims were duly appointed.

On March 22, 1915, said claim came on for hearing before said commissioners, but neither said claimant nor any one for him having appeared at said hearing, and no evidence being introduced to support said claim, the commissioners on claims disallowed the claim of the said James H. MacDonald against said estate. Affairs being in this condition, the following stipulation was duly made and filed in said estate on said March 22d, viz.:

“State op Michigan.
“The Probate Court for the County of Delta.
“In the Matter of the Estate of Vilna I. MacDonald, deceased.
“It is hereby stipulated by and between James R. MacDonald, of Escanaba, Michigan, claimant, against said estate, and his attorney, and Flora B. Holt, executrix of said estate, and her attorneys, that said estate may be settled and disposed of according to law. But nothing done hereunder shall in any wise operate to prevent the prosecution, appeal, and final disposition in the usual manner of the claim of claimant against said,estate, thp same as though this stipulation had not been executed.”

Upon the same day a contract was entered into by and between the said claimant and the said executrix for the closing of said estate, whereby it was agreed that said Flora B. Holt individually assumed a primary liability for any amount which might be finally determined to be due said claimant on the claim filed by him against the estate of Vilna I. MacDonald, deceased, and for the consideration mentioned in said agreement, that said estate might be settled and disposed of according to law, nothing contained in said agreement, however, to operate to prevent the prosecution, appeal, and final disposition of said claim against said estate, except that any judgment should be enforced against the said Flora B. Holt individually. It further appears that said estate was, by an order of the probate court, duly closed on April 19, 1915. On April 10, 1915, said James H. MacDonald made application for an appeal to the circuit court for said county from the decision of said commissioners disallowing his claim against said estate, and on April 12, 1915, an order was duly entered in said estate allowing said appeal.

On October 20, 1915, said Flora B. Holt, by her attorney, filed a motion in the circuit court to require claimant to furnish a more specific statement of his account, which motion was granted, and on November 6, 1915, claimant, by his attorney, filed a more specific statement of claim, which appears in the record.

On April 25, 1916, said case came on to be heard, and a jury having been duly impaneled, and the attorney for claimant having made his opening statement to the jury, and having offered to introduce evidence, the said Flora B. Holt objected to the introduction of any evidence for the following reasons:

“(1) That the contract as filed in this court is too indefinite and uncertain to be made the basis of a recovery.
“(2) That the contract stated and alleged in this claim is void under the statute of frauds.
“(3) That the claim does not constitute or state a cause of action.”

The trial court entered an order reciting the proceedings and concluding as follows:

“And the said claimant and appellant having asked leave of court to amend his claim therein, and it further appearing that said cause should be remitted to the probate court for the county of Delta for further proceedings, in order to allow the said claimant to apply to said probate court for leave to amend his said claim heretofore filed in this cause, and it appearing to the court that said leave should be granted, and that said cause be remitted in accordance with the provisions of the statute in such case made and provided, it is therefore ordered by the court that the said cause be, and the same is hereby, remitted to the probate court for the county of Delta for further proceedings in order that claimant and appellant, James H. MacDonald, may apply to said court for leave to amend his claim heretofore filed in this cause, and that the said jury be discharged from further consideration of this case, and that the same be certified accordingly.”

Exception was taken by said Flora B. Holt to the entry of said order for the following reasons:

(1) That the entry of said order was entirely irregular and void.-
(2) That the court had no jurisdiction to enter said order.
(3) That the entry of said order was not according to law.
(4) That the said claimant had his day in the probate court and failed to take advantage of it, and should not be permitted to advantage by his neglect.

After a motion to vacate said order, and a denial thereof, the said Flora B. Holt applied for the writ of certiorari, alleging that the trial court erred in not proceeding to the trial and determination of said appeal, and in entering the order remitting said cause to the probate court for further proceedings in order that said claimant might apply to the probate court for leave to amend his claim. The writ of certiorari was allowed.

We are of the opinion that by virtue and in pursuance of the agreement and stipulation of the parties the estate was closed in the probate court, and the trial court erred in remitting or remanding the case to that court; that by reason of the agreement and stipulation the probate court was closed to these parties, and they should be held to performance of their agreement; that because of the agreement and stipulation the usual rule refusing the amendment of claims in the circuit court, on appeals from the probate court, is not applicable here, and, the parties having by stipulation and agreement selected the forum in which the case should be tried, to wit, the circuit court, that court has the power to make any and all amendments necessary to the proper disposition of. the case upon its merits.

The order remitting or remanding the case to the probate court was erroneous, and should be vacated.

The order of the circuit court is reversed.

Kuhn, C. J., and Ostrander, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.