author: Brooke, J.

text:
    PEOPLE v. MEISNER.
    1. Auctions and Auctioneers — Municipal Corporations — Violation op Ordinance — Criminal Law.
    Only an auctioneer can violate the ordinance of the city of Detroit prohibiting any person “doing business as a duly licensed auctioneer” from selling goods except on week days between the hours of 8 a. m. and 6 p. m. A pawnbroker who was not licensed as an auctioneer and who carried on a sale by licensed auctioneer could not be guilty of violating its terms.
    2. Same — Criminal Law — Misdemeanors.
    Even in the case of a misdemeanor, if the accused cannot legally be guilty as a principal, as is sometimes the case where the offense can only be committed by a certain class of persons, and the defendant does not belong to the class, he cannot be charged as a principal for aiding and abetting; if he is indictable at all, he must be indicted for aiding and abetting as a substantive offense.
    S. Constitutional Law — Statutory Construction — Appeal and Error.
    The constitutionality of an ordinance will only be passed upon if the determination is necessary to a decision of the case presented on appeal.
    Certiorari to the recorder’s court of the city of Detroit; Connolly, J.
    Submitted November 6, 1913.
    (Docket No. 85.)
    Decided December 20, 1913.
    Benjamin Meisner was convicted of violating an ordinance.
    Reversed.

      Thomas P. Penniman (Richard I. Lawson, of counsel), for the people.

      Fred A. Baker, for respondent.
   Brooke, J.

Defendant reviews by certiorari a judgment of the recorder’s court of the city of Detroit, where he was convicted of a violation of an ordinance of said city. The ordinance in question is entitled: “An ordinance to license and regulate auctioneers and auctions held within the city of Detroit.” Section 12a. thereof, under which defendant was prosecuted, follows:

“No such person doing business as a duly licensed auctioneer shall operate a public auction room, or sell goods at public auction, within the meaning of this ordinance, except on week days between the hours of 8 a. m. and 6 p. m. Any person convicted of a violation of the provisions of this section shall be fined not less than $25.00 and not more than $100.00 for each offense, and in default of the payment of any such fine the offender may be punished in accordance with the provisions of section 14 of this ordinance.”

The complaint does not allege, nor did the people prove, that at the time of the commission of the alleged offense defendant was a licensed auctioneer. On the contrary, it appeared that he was not, but that he was a licensed pawnbroker. It further appeared that the sales made were not made by defendant but were made by another, a duly licensed auctioneer. Upon this point the learned associate recorder charged the jury that the offense charged was a- misdemeanor, and that, if defendant aided and abetted the auctioneer who made the sales, he could be held guilty as a principal. This ruling raises the only question we find it necessary to consider.

It is, we think, very clear that the offense created by the ordinance in question can be committed only by a licensed auctioneer. It is equally clear that defendant does not belong within that classification.

Whenever an ordinance or statute fixes a classification and creates an offense which can be committed only by persons within the class, it is necessary not only to allege but to prove that the accused person belongs to the class described. Shannon v. People, 5 Mich. 71.

Where an offense can be committed only by a specified class, aiders and abettors cannot be charged as principals if they are outside the statute designation. In Shannon v. People, supra, at page 87 of 5 Mich., Justice Cheistiancy says:

“But even in a case of misdemeanor, if the person indicted cannot legally be guilty as a principal, as is sometimes the case where the principal offense can only be committed by a certain class of persons (and the defendant does not come within that class), he cannot be indicted as a principal where he only becomes guilty by the aiding and abetting; but if indictable at all, he must be indicted specifically for the aiding and abetting, as a substantive offense. This must be so in the nature of things, if there were no authorities to support it.”

No opinion is expressed as to the constitutional validity of the ordinance in question. It is not the policy of this court to pass upon constitutional questions until their determination is necessary to a decision of the case presented. People v. Quider, 172 Mich. 280 (137 N. W. 546), and cases cited.

The judgment is reversed, and defendant discharged.

Steeee, C. J., and Mooee, McAlvay, Kuhn, Stone, Osteandee, and Bied, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v. DRIESSEN.
    1. Criminal-Law — Statutes — Water — Unlawful Taking — Indictment and Information — Municipal Corporations.
    An information charging that the respondent did “unlawfully hinder and interfere with the proper action and just registration of a certain water meter,” etc., stating the charge in the language of the statute (3 Comp. Laws, §§ 11603-11605), sufficiently advised the respondent of the exact nature of the offense and imported wilful and fraudulent interference.
    2. Same — Amendment of Information — Appeal and Error.
    But “an amendment at the trial adding to the information the words “wilfully and fraudulently,” did not prejudice the rights of the respondent and charged no different offense.
    3. Same — Repeal of Statute — Construction.
    Under the saving clause of Act No. 277, Pub. Acts 1911 (5 How. Stat. [2d Ed.] § 14626 et seq.), which repealed 3 Comp. Laws, §§ 11603-11605, but created a similar offense, providing also that all proceedings pending and all rights and liabilities existing, acquired or incurred should be saved, an offense committed before the law was repealed might be prosecuted; “rights” included the right of the public to institute a prosecution and “liabilities” covered the respondent’s liability to be prosecuted.
    Exceptions before sentence from Kalamazoo; Knappen, J.
    Submitted November 10, 1918.
    (Docket No. 168.)
    Decided December 20, 1913.
    John Driessen was convicted of unlawfully interfering with a water meter.
    Affirmed.

      Milo O. Bennett, Prosecuting Attorney, for the people.

      Jackson & Fitzgerald, for respondent.
   Brooke, J.

Respondent was tried before a municipal justice under a warrant which in the first count charged that he—

“Did unlawfully hinder and interfere with the proper action and just registration of a certain water meter situated in a certain factory building, known as the plant of the Standard Paper Company, at the city of Kalamazoo, county of Kalamazoo, aforesaid; said meter belonging to the city of Kalamazoo, a municipality owning and operating a plant for producing; transmitting, and conducting water, without the written consent of said city of Kalamazoo or its duly authorized agent or officer,” etc.

The second count charged respondent with having wilfully and fraudulently used and caused to be used some 20,000,000 gallons of water, without the same being metered, by means of a by-pass which carried it around the meter. The third count charged the same offense in different phraseology. Respondent was found guilty under the first count, and judgment was rendered thereon by the justice. From this judgment respondent appealed to the circuit court, where a second verdict of “guilty” was rendered. He has now removed his case to this court for review upon exceptions before sentence.

In the circuit court before the jury were impaneled, respondent moved to quash the first count in thé complaint and warrant for the following reasons:

“(1) The first count charges no offense known to the laws of the State of Michigan.
“(2) The first count charges no wilfulness or fraud upon the part of the respondent.
“(3) The first count does not allege or set forth in what way the respondent hindered or interfered with the just and true registration of the water meter mentioned therein.
“(4) The first count is indefinite and uncertain and charges only a conclusion of the pleader.
“(5) The first count does not set forth facts by which the offense can be identified.
“(6) The first count does not acquaint the respondent with the facts which he may be required to meet upon trial.
“(7) The first count does not show that the water meter mentioned therein was in any manner used by the city of Kalamazoo, or that the water mains of the city of Kalamazoo were in any way connected with said water meter.
“(8) For the reason that the first count as charged in the complaint and warrant is not sufficiently definite to inure to the subsequent protection of the respondent upon a conviction or acquittal, should he be again questioned on the same grounds.”

This motion was denied, whereupon counsel for the people moved for permission to amend the first count by inserting after the word “unlawfully” the words “wilfully and fraudulently.” This amendment was allowed over objection, and the trial proceeded. The prosecution was had under the provisions of sections 11608-11605, 3 Comp. Laws. That law was repealed by Act No. 277 of the Public Acts of 1911 (5 How. Stat. [2d Ed.] § 14626 eb seq.). Section 4 of the latter act, after providing for the repeal of the earlier act, proceeds:

“But all proceedings pending and ail rights and liabilities existing, acquired or incurred at the time this act takes effect are hereby saved, and such proceedings may be consummated under and according to the law in force at the time such proceedings were commenced.”

Before considering the various assignments of error, it may be well to note the following facts. The city of Kalamazoo, having discovered the alleged wrongful diversion of its water by respondent for the benefit of the Standard Paper Company, brought suit against that company in the circuit court. Upon the trial of that case respondent was sworn as a witness. His testimony, there given, was read without objection upon his own trial and was in part as follows:

“Q. I show you a diagram here.
“A. Yes, sir.
“Q. And ask you whether it is a fair and correct representation of the by-pass around the meter.
“A. It looks like it.
“Q. Now this represents the 2]/2-incli line that went through the meter?
“A. Yes, sir.
“Q. This represents the by-pass going around the meter?
“A. Yes, sir.
“Q. On that by-pass was á valve?
“A. Yes, sir.
“Q. The valve was just about as indicated there? “A. It looks like it.
“Q. We will make that valve ‘A.’
“A. About the other one?
“Q. I will get to that. Answer my questions. That valve controls the flow of water through the by-pass, doesn’t it?
“A. Yes, sir.
“Q. Now here was another valve here?
“A. Yes, sir.
“Q. This is ‘B.’ That valve was to close the water from going through the meter, this one here?
A. Yes, sir.
“Q. Now that valve ‘A’ on the by-pass was worked by a hand wheel?
“A. It certainly was; yes, sir.
“Q. And that hand wheel was held there by a nut? “A. Yes, sir.
“Q. And that valve was sealed?
“A. I think it was.
“Q. Do you remember when it was sealed?
“A. When it was put on, I presume.
“Q. You have seen the seal on it? *
“A. Yes, sir.
“Q. When was that seal taken off?
“A. It was never taken off.
“Q. You swear it was not?
!‘A. I swear it was not.
“Q. Was there not a lock and chain put on?
“A. Yes, sir.
“Q. This seal was taken off and a lock and chain put on, was it not?
“A. I can’t recollect whether the seal was missing or not when they put the chain on.
“Q. First they had a seal and then had a lock and chain?
“A. Yes, sir.
“Q. Now explain to the jury how you would remove that hand wheel from there without breaking the seal—
“Mr. Fitzgerald: I object to any testimony of this nature concerning the acts of the respondent in this case showing him concerned with this by-pass or any portion of it unless it is shown first that the respondent has parted with his constitutional right not to testify in any way to incriminate himself.
“The Court: The objection is overruled.
“Mr. Fitzgerald: An exception.
“Mr. Bennett: (Reading continued) — and let the water run through the by-pass.
“A. I testified to that question; however, I will answer it again; I did that once.
“Q. When was that? State how you did it?
“A. I did state how.
“Q. You may answer how you?
“A. I opened it with a wrench..
“Q. How did you take the hand wheel off? The whole process?
“A. By taking the wheel, off, of course.
“Q. You could take the nut off of the hand wheel?
“A. Yes, sir.
“Q. Didn’t you?
“A. Yes, sir.
“Q. I will indicate the seal by T>;’ in other words, this represents the seal on the by-pass there.
“A. Yes, sir.
“Q. Now you would simply unscrew that nut from the hand wheel?
“A. Yes, sir.
“Q. And leave the hand wheel off?
“A. Yes, sir.
“Q. Without breaking the seal?
“A. Yes, sir.
“Q. Then take the wrench and turn the water around the by-pass?
“A. Yes, sir.
“Q. Then slip the hand wheel back?
“A. Yes, sir.
“Q. And put the nut back on?
“A. Yes, sir.
“Q. And the water would be going around the bypass?
“A. Yes, sir.
. “Q. And the hand wheel would still be sealed?
“A. Yes, sir.
“Q. And it would not be registered by the meter?
“A. It would not to any extent; this valve would also be open and some of the water would go through there.
“Q. If it were closed none of the water would be registered by the meter, if it were closed?
“A. Yes, sir.
“Q. You stated you did that once, did you?
“A. Yes, sir.
“Q. When did you open that?
“A. Some 2% or 3 years ago.
“Q. Why did you do it?
“A. I did it; I don’t know why I did it; it was the mistake of my life to do so and I regret it.
“Q. Then you did steal water from the city of Kalamazoo?
“A. You may call it that if you can accuse me and prove I stole water. I will finally give in that I stole city water for half an hour.”

It is first contended by respondent that the. first count (without the amendment) is insufficient and defective because it is uncertain and does not set forth facts by which the offense could be identified, nor in such manner as to enable respondent to prepare for his defense. We are disposed to the view that this claim is hypercritical. The object of the complaint and warrant is to advise respondent of the exact nature of the offense charged. How was respondent misled or left in doubt after examination of the count in question? He was charged with interfering with and hindering "the proper action and just registration of a certain water meter.” This is one of the offenses described in the statute, and, when it is alleged that respondent did this -act “unlawfully,” the elements of chance, accident, and mistake are eliminated, and wilfulness and fraud may be said to be imported. The cases of People v. Enders, 20 Mich. 233, and People v. Olmstead, 30 Mich. 431, relied upon by respondent, have been examined, but in our opinion they are not controlling. The offense is charged practically in the language of the statute.

Having concluded that the first count was sufficient without amendment, it is unnecessary to consider the propriety of allowing the amendment. Respondent was not harmed by the allowance of the amendment. No different offense was charged. If the insertion of the words of the amendment had any effect, that effect was simply to place a greater burden upon the prosecution.

It is next urged by respondent that the saving clause in Act No. 277, Public Acts of 1911 (5 How. Stat. [2d Ed.] § 14626), does not permit the institution of a prosecution under the old law after the new law went into effect for an offense committed under the old law. This contention, if sound, would lead to the result that one who committed an offense under the old law which was not discovered until after the new law went into effect could not be prosecuted at all, although the new law was simply a re-enactment of the old law, with somewhat more stringent elaborations. The legislature certainly never meant by its action to accomplish such an anomaly, nor do we believe it did so. It may be admitted that the saving clause is not happily framed to express the undoubted legislative intent, but we are of opinion that it is sufficient.

“All rights and liabilities existing, acquired, or incurred at the time this act takes effect are hereby saved.”

Among those “rights” is the right of the people to prosecute, and among the “liabilities” is the liability of respondent to be prosecuted. The balance of the saving clause simply takes care of such proceedings as may have been already instituted. Where the legislative intent is plain, it must control. Township of Leoni v. Taylor, 20 Mich. 148.

The claim of respondent that, having been acquitted by the jury in the lower court under the second and third counts, the prosecution should not have been permitted to sustain the charge under the first count with the same evidence that served to prove the allegations contained in the second and third counts required no discussion. That evidence may have been insufficient to show respondent’s guilt under the last two counts, while ample for that purpose under the first count.

Finally it is urged by respondent that there was not sufficient evidence on the part of the people that his offense was committed “without the written consent” of the city of Kalamazoo or its duly authorized agent or officer. In the absence of all evidence to the contrary, we think that offered by the people sufficient. The question was submitted to the jury, and they, by their verdict, determined that no such consent was given. Indeed, none such is claimed to have been given.

Respondent, under oath, has frankly admitted the perpetration of acts, which under the provisions of the statute constitute the offense charged. Under such circumstances it would seem that technical errors might well be disregarded upon the theory that respondent could not be prejudiced thereby. We have, however, examined all of respondent’s assignments of error and have concluded that his conviction should be affirmed.

The lower court is directed to proceed to judgment.

Steere, C. J., and Moore, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Steere, C. J.

text:
    PEOPLE v. EMMONS.
    1. Criminal Law — Evidence — Opinion Evidence — Intoxica-uno Liquors..
    On the trial of a respondent charged with selling fermented cider in violation of the local option law, the court did not err in permitting a farmer who was familiar with apple growing and with the popular terms applied to cider in the process of aging, to give his opinion as a witness that the cider which he had drunk was fermented.
    2. Same — Intoxicating Liquors — Cider.
    Hard cider commonly means fermented cider. Cider includes, in a popular sense, the expressed juice of the apple before and after fermentation, but in law and commerce cider is applied only to the fermented juice of apples. It is a vinous or fermented liquor.

    3. Same — Instructions—Trial.
    The court did not commit reversible error in charging the jury that the sale of fermented cider was a violation of law without stating the exact or scientific measure of fermentation.
    4. Same — Intent—Local Option.
    Intent is not a necessary element of the offense of selling prohibited liquors in a county in which the local option law is in force.
    5. Same — Collateral Issue — Evidence.
    The respondent was, however, entitled to offer evidence that the parties who bought cider from him had whisky in their possession, and that they had the means and opportunity to adulterate the cider after he sold it, in support of his defense that the beverage was not fermented. He should not have been limited to the cross-examination of the witness for the prosecution.
    Exceptions before sentence from Clinton; Searl, J.

      Submitted November 7, 1913.
    (Docket No. 165.)
    Decided December 20, 1913.
    Elmer E. Emmons was convicted of violating the law relative to the sale of intoxicating liquors in a county that had adopted prohibition.
    Reversed.

      Edward J. Moinet, Prosecuting Attorney, for the people.

      J. Earle Brown and Dean W. Kelley, for respondent.

       On the question whether cider is an intoxicating liquor, see note in 20 L. R. A. 648.

   Steere, C. J.

At the January term, 1913, of the circuit court of Clinton county, respondent was convicted, by the verdict of a jury, under an information charging that on August 30, 1912, at the city of St. Johns, in said county, he unlawfully sold to one Charles Lance “a certain quantity of malt, brewed, fermented, spirituous liquor, to wit, two gallons of cider.” The provisions of the local option law are, and then were, in force in said county. No question is, nor so far as the record discloses can be, raised as to the sufficiency of the information or regularity of the proceedings leading up to the trial of defendant, and the case is removed to this court for review upon exceptions before sentence directed against certain alleged errors made during the trial, in the admission and rejection of testimony and in charging the jury.

The purchase of two gallons of cider by Lance from respondent at the time and place charged is, admitted. It is denied that it was fermented, spirituous, or intoxicating liquor. The prosecution claimed that it was fermented and its sale forbidden, within the terms of the statute. This raised the single and controlling issue litigated and submitted to the jury. Upon that question of fact an abundance of conflicting testimony, scientific and otherwise, was introduced, within the range of which it was possible for the jury to find, according as the testimony convinced, either that the beverage in question was a sweet, pleasant, and innocuous combination of water, sugar, and boiled cider properly blended by stirring with a stick, free from alcohol and innocent of fermentation, or that it was distinctly fermented and contained a liberal percentage of alcohol, being what is known as hard cider which had “worked,” and was yet capable of working definite results, objectionable in a temperance community, if liberally indulged in. Respondent owned a cider mill in the suburbs of St. Johns, where he engaged in the cider and vinegar business. Lance resided with his family in Washington township, Gratiot county. A brother named James Lance and two brothers-in-law named James and John Baum, who were witnesses in the case, also resided in the same neighborhood.

The prosecution’s testimony tended to show that on the day in question Charles and James Lance and James Baum went over the border into Clinton county and visited St. Johns on business missions. Charles Lance rode with James Baum, who was taking to that city a load of lambs carried in his lumber wagon. These they delivered at the stockyards near respondent’s cider mill. They reached the city about noon, and after unloading the lambs drove to a feed barn, where the team was left during the afternoon while they remained in the city. Charles Lance met his brother James, who had driven in with his conveyance, and they together visited the stockyards. From there they went to respondent’s cider mill near by. James bought a quart of cider which they drank together. This was not bought from respondent, but from an employee at the mill. Later in the day they again visited the mill, and James then bought a quart of cider from respondent, which they also drank. Charles was by this time so favorably impressed with the beverage that he asked for and obtained a two-gallon jug of it. Being assured on inquiry that it was of the same quality as that they had been drinking, he paid for it. He and James, on sampling the contents of the jug later, pronounced the quality similar to if not identical with that they had previously partaken of. Charles Lance and James Baum drank from the jug during the afternoon and on the way • home that evening events so shaped themselves that on their return the team was cared for by Mrs. Charles Lance, who drove it down to her brother John Baum’s place. John, who stated he did not drink, secured the jug from the wagon the next morning, took the cork out, and smelled but did not taste. He testifies, “It smelled like vinegar or something like that.” He put it temporarily in a cool place, and in the afternoon delivered it to the sheriff, who tasted it and then delivered it to Dr. Holm, the State bacteriologist. His analysis, made September 3d, showed 7.95 per cent, of alcohol by volume and 6.4 by weight. He, Charles and James Lance, James Baum, and the sheriff all testified that it was fermented hard cider and had' worked.

In behalf of the defense, the keeper of the feed barn testified he had a drink from the jug and it was sweet cider, quite as fresh and unfermented as though it had just come from the press.

Respondent gave testimony that the jug contained sweet eider, of his own compounding and not fermented, drawn from a 14-gallon keg. He testifies:

“I recall Charles Lance buying a jug of cider at my place the 30th day of August; it was on Friday. I know where the cider that he bought came from. It was cider made from boiled cider, sugar, and water. The boiled cider was made the fall before. The cider that I sold Lance on Friday was prepared on the Monday before. I got the boiled cider from which I made this cider that I sold out of a large, galvanized, iron hooped barrel, * * * filled with boiled cider when hot the fall before and bunged up. On this Monday before the 30th day of August, I used two gallons of the boiled cider from this barrel. I put it into a 14-gallon keg with common iron hoops. The keg was cleansed before I used it. It was rinsed with cold water, thoroughly cleaned every time it is used, and then rinsed with a solution of benzoate of soda, but none left in the keg, all drained out. I am talking about this particular time. After the boiled cider was put in this 14-gallon keg, there was put in five pounds of sugar, filled the barrel nearly full with water, and stirred it good with a stick we have on purpose. We used H. & E. sugar; that is the brand I bought; H. & E. granulated sugar.”

His testimony was. substantiated by the employee who sold the first quart to James on the same day. Respondent also testified he “got wind” that he was accused of making an unlawful sale to Lance shortly after the day in question, and before the contents of the keg were all gone, there being “three or four jugs left out of that batch;” that he took a sample of it and gave some to others who, being called as witnesses, testified that the cider given them was sweet and unfermented. Respondent is not, however, shown to have preserved any of “that batch” for scientific analysis; but he later took to Dr. Clarke, teacher of chemistry at the Agricultural College, a can of boiled cider which he testified was taken from the barrel out of which that used in compounding the sweet cider sold to Lance was taken. Testimony was given that with this a measure of liquid was mixed, according to respondent’s formula for sweet cider, of the same ingredients, in the same temperature, and kept for the same length of time as that sold Lance. Of this liquid the doctor testified in substance that it was unfermented, and that such a mixture when properly compounded would not ferment.

The two doctors, called by the respective sides as experts, were asked lengthy hypothetical questions, examined, and cross-examined critically as to processes of fermentation and scientific tests of apple juice for alcohol and other properties.

The testimony of the nonexpert witnesses who made their nontechnical tests by the simple processes of smelling and tasting the contents of the jug, or keg, consisted of plain and direct statements that the beverage was or was not fermented, sweet, strong,' or hard cider. On direct examination Charles Lance was asked: “Q. Was that cider fermented?” Objection was made to the question as incompetent. The court said:

“The ordinary man that lives on a farm, I think, can tell whether cider is fermented if he drinks it. He may answer.”

Error is assigned on this ruling. Counsel for respondent state that—

“Under the theory of respondent in this case, the question called for an expert conclusion, and the witness was not able under the showing to make competent answer to that question.”

The witness had previously testified without objection that “it was fermented cider; I would call it strong cider.” After the objection, the witness gave his understanding of fermented cider to be that it had worked, and that this was hard cider. We have no hesitation in holding that a farmer of average intelligence, who has resided for years on a farm with his family in the apple growing regions of Southern Michigan, and who shows familiarity with the popular terms applied to cider in its process of aging, is competent to testify upon the subject; the weight of his testimony being for the jury.

In common meaning “hard cider” is “fermented cider.” In Eureka Vinegar Co. v. Printing Co. (C. C.), 35 Fed. 570, it is said:

“In a popular sense, the term ‘cider’ includes the expressed juice of apples, either fermented or unfermented, and hence the terms ‘sweet cider’ and ‘hard cider’ are in popular use to distinguish between the juice of the apple before and after fermentation. In strictness, the juice of the apple before fermentation is simply apple juice, and it is only by fermentation that it becomes cider; and, when the word ‘cider’ alone is used in law or commerce, it is commonly understood to mean the fermented juice of apples. * * * The quantity of alcohol in vinous or fermented liquors is variable, but the average per cent, is common knowledge. * * * I have looked with some care through a great many special acts of prohibition, and have not found one under which an alcoholic, vinous, fermented, or intoxicating liquor can be lawfully sold as a beverage. * * * All the acts include alcoholic, vinous, and fermented liquor, and cider falls under all of these heads. It is also an intoxicating liquor, for it is common knowledge that a fermented beverage which contains from 5 to 10 per cent, of alcohol, which is freely drunk by the glassful, will produce intoxication. This is a fact of daily observance in communities where such beverages are sold. Whisky contains from 40 to 50 per cent, of alcohol, and cider contains one-fifth as much alcohol as whisky, so that drinking a pint of cider is equivalent to drinking one-fifth of a pint of whisky; but to bring it under the operation of the liquor laws of the State it is not essential that it should be an intoxicating liquor. It is enough that it is a ‘vinous or fermented liquor.’ ”

The foregoing is in' harmony with the utterances of this court in passing upon our own statute. People v. Foster, 64 Mich. 715 (31 N. W. 596); People v. Adams, 95 Mich. 541 (55 N. W. 461); People v. Ingraham, 100 Mich. 530 (59 N. W. 234); People v. Kinney, 124 Mich. 486. (83 N. W. 147); People v. Hickman, 164 Mich. 672 (130 N. W. 331).

We think the charge of the court, to various parts of which error is assigned, followed the spirit of the foregoing decisions. The chief complaint of the charge apparently is that the court did not more fully, scientifically, and technically explain the meaning of the word “fermented” as used in the statute, nor designate definitely the degree or point of fermentation which must be reached to make a sale unlawful. The trial court used in that connection the language approved by this court in People v. Kinney, supra, and also said:

“You must not understand from that portion of my charge that, simply because there might have been some slight amount of ferment in the cider at the moment it came from the press, that would make it an unlawful sale. But you will see from what I have said to you that it means what we commonly call fermented cider; you understand that. If it is sweet cider, unfermented cider, he had a right to sell it; if it was not that kind of cider, but was fermented cider, then he had no right to sell it and it is against the law.”

The charge, taken in its entirety, was sufficient and not misleading. Even if respondent’s contention that an exact degree, or scientific standard, of fermentation is necessary to be declared in order to protect the legitimate and honest industry of cider making, it is for the legislature and not the courts to fix the standard. The common meaning and popular understanding of “fermentation” in its application to aging cider, as explained in the charge quoted and approved in the Kinney Case, and as followed by the trial court in this case, is presumptively the legislative meaning, and is a sufficient statement of standard under the statute. In People v. Adams, supra, this court said:

_ “The jury were properly instructed that, if the cider sold was fermented, the respondent should be convicted. The statute prohibits the sale of fermented cider, and forecloses inquiry as to whether cider which is fermented is intoxicating, whatever the stage of fermentation.”

This rule was again recognized in People v. Hickman, supra, as follows:

“Under the statute, evidence that the cider kept for sale was fermented liquor was sufficient without proof that it was intoxicating.”

Error is assigned on rulings of the court sustaining objections to questions asked by respondent’s counsel as to his knowledge, intention, and motives, and instructions given his employee relative to the sale of fermented cider. The rulings complained of are in harmony with previous decisions of this court. The questions of motive and intent are not involved. Intent is not made an ingredient of the offense charged and does not become the subject of evidence. The last utterances of this court upon that question, with citations of previous decisions, are found in People v. Hatinger, 174 Mich. 333 (140 N. W. 648), and People v. Worges, 176 Mich. 685 (142 N. W. 1100).

Numerous other errors are assigned on, and serious complaint is made of, various rulings and remarks of the court during the progress of the trial which it is urged disclosed views of the court belittling the testimony of certain of defendant’s witnesses and excluded material evidence essential to a full development of defendant’s theory of the case; it being said in counsel’s brief—

“That the accused was not permitted to have a fair and impartial trial because of the several rulings of the trial court which improperly restricted and hampered him in presenting evidence to the jury upon which his theory of the case could be and was founded.”

In its omnibus form this complaint is unwarranted by the record. With one unfortunate exception the rulings of the court gave ample latitude to the evidence offered by both sides, including the technical elaboration with which the case was freighted and dignified.

The exception which we are constrained to conclude deprived respondent of a substantial right and entitles him to a new trial is as follows: It was his claim and testimony that the jug of cider he sold Lance was sweet, free from intoxicating properties, and unfermented; and that it would not ferment without other ingredients added, particularly in the short time between when it was sold and when it was analyzed by Dr. Holm; that, if it then contained the percentage of alcohol which the doctor found, alcohol was added to it by some one from an external source after it left respondent’s hands. The prosecution did not attempt to prove that Lance and James Baum, who drove home together with the jug in their wagon and drank from it, were intoxicated, though some of their testimony suggested as much. Baum, being asked, by the prosecuting attorney who drove the team on the way home, testifies:

“Lance and I were both on the seat and had the jug right between us. * * * I was in the wagon, but I don’t suppose much of anybody drove them. * * * I left the team at my sister’s place. * * * My sister took the team down to my brother John’s place.”

On cross-examination Baum testified that he had been drunk lots of times, and that when they left for home that evening he was “feeling good” and “quite drunk.” Under objection he was asked if he did not have a bottle of whisky at the feed barn and offer a drink to Burnham, the keeper of the barn, and if he did not have it with him wrapped up in paper when they started home? This he denied. Lance, being also questioned on the subject, answered in the negative. As a part of the defense, Burnham was called and interrogated upon the same subject; but, objection being interposed by the prosecution, he was not allowed to testify. It was urged by the respondent that, in substantiation of his theory of the case, it was competent to show, and he offered to show, as part of the res gestse, that the parties had, and indulged in, whisky on the same afternoon they were drinking this cider, and that they left the barn taking with them together the jug of cider and a bottle of whisky, thus showing the means, opportunity and probability of their adding alcohol to the cider, to blend ¿ more palatable drink by putting the contents of the whisky bottle into the jug. The prosecution contend, although it might be competent to interrogate the witnesses on the subject in cross-examination, that this was a collateral matter and the defense was bound by their answers. If it was collateral matter, this is true; but we think it was more, under respondent’s theory and claim. It was competent for either the prosecution or defense to show, as a part of the res gestse, that these parties were intoxicated the afternoon they bought the cider and the means by which they became so. From the time the jug of cider left respondent’s hands, at which time he claims it was sweet and unfermented, until after midnight that night, it was in possession of Baum and Lance. As bearing upon his claim that it was adulterated by others, evidence that the buyers, while drinking freely from it, had conveniently with them alcoholic liquor with which to mix and strengthen it, was unquestionably competent testimony in support of respondent’s claim.

This was within the well-recognized rules of circumstantial disproving evidence, by which a denying defendant is allowed to support his claim that the offense, if committed at all, was the act of others, by showing that another had at the time charged available means, opportunity, and motive to do that which the accused denies doing. Such evidence is correlative with the hypothesis it is sought to support, and the weight of the exculpatory inference is for the jury.

It is elementary that the theory of the defense, when supported by competent evidence, should be left to the jury, and the evidence excluded was competent in support of respondent’s theory. The strength of the inferences to be drawn from it and the degree of belief it carried were questions within the province of the jury.

For the reason stated, we are constrained to hold that the conviction must be set aside and a new trial granted.

Moore, McAlvay, Brooke, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


author: Stone, J.

text:
    PEOPLE v. COURTNEY.
    1. Criminal Law — Pleading—Plea in Abatement — Burglary— Amendment — Information.
    No error was committed by tbe trial judge in a prosecution for breaking and entering a bank, in overruling respondent’s plea in abatement and permitting tbe prosecuting attorney to amend tbe information so as to show that tbe property and bank belonged to a private individual instead of a corporation as alleged.
    2. Same — Evidence—Identity—Sufficiency of Proof.
    It was also proper to receive testimony of a witness tending to identify tbe respondent as one of three persons seen near the bank at 2 o’clock in the morning of the alleged burglary, although the witness was not positive and did not see the face of the person that he observed.
    3. Same — Admissions—Acquiescence in Statement of Another —Hearsay.
    The court erred, however, in receiving, tbe testimony of the sheriff that an officer of another city who arrested respondent and turned him over to the witness, had delivered to the sheriff certain burglars’ tools which he stated, in the presence of the respondent, had been found on the latter, — in the absence of further proof that respondent’s attention was called to the conversation, or that he was near enough to hear it, or that the circumstances were such as to call for a response or contradiction of the statement.
    4. Same — Imprisonment—Arrest—Witnesses.
    In order to warrant the admissions ' of testimony that such statement was made in the presence of the accused who was under arrest, it should appear that the circumstances called for a reply or denial.
    5. Same — Burglars’ Tools — Evidence.
    Proof that the respondent had burglars’ tools in his possession three years after the date of the crime of which he was accused . was improperly received in the evidence.
    Error to Genesee; Wisner, J.
    Submitted November 7, 1913.
    (Docket No. 148.)
    Decided December 20, 1913.
    James Courtney was convicted of breaking and entering a store occupied as a bank.
    Reversed.

      Grant Fellotvs, Attorney General, James A. Greene, Assistant Attorney General, Clifford A. Bishop, Prosecuting Attorney, and James S. Parker, for the people.

      William T. Kelly and Fred W. Brennan, for respondent.
   Stone, J.

The respondent was convicted of a violation of section 11547, 3 Comp. Laws (5 How. Stat. [2d Ed.] §14593), by feloniously and burglariously breaking and entering the store building known as the Bank of Mt. Morris, not adjoining to or occupied with a dwelling house, being then and there the property of Charles D. Stanley, with intent the goods and chattels of Charles D. Stanley in the said bank then and there being found, feloniously and burglariously to steal, take, and carry away, at the village of Mt. Morris, in the county of Genesee, on the night of November 24, 1908.

Neither the complaint, warrant, nor original information alleged the ownership of the building, and alleged the ownership of the goods and chattels therein contained to be in the Bank of Mt. Morris, a banking company organized and doing business under the laws of the State of Michigan. There was a preliminary examination, and it there appeared that the bank was a private bank and was the property of Charles D. Stanley. Upon the filin'g of the original information, the respondent filed a plea in abatement, alleging that upon his examination there was not produced or given any legal or competent testimony tending to show that there was probable cause for charging him with being guilty of the crime set forth in the information. This plea was overruled by the trial court, whereupon the prosecuting attorney moved to amend the information by striking out the words, “did break and enter with intent the g'oods and chattels of the Bank of Mt. Morris, a banking company, organized and doing business under the laws of the State of Michigan,” and by inserting in lieu thereof the words, “did break and enter with intent the goods and chattels of Charles D. Stanley, doing business as the Bank of Mt. Morris, a private bank.” The trial court finally permitted the prosecuting attorney to file an amended information containing the change above indicated, to which respondent’s counsel excepted. The respondent standing mute, a plea of not guilty was entered, and the trial proceeded. There was testimony that the bank was a private bank owned by Charles D. Stanley.

At the close of the people’s testimony, counsel for respondent moved for a directed verdict in his behalf, because the ownership of the building had neither been alleged in the information nor proven. The trial court thereupon permitted an amendment to the amended information alleging that the building was “then and there the property of Charles D. Stanley,” and evidence was received tending to prove the fact; to which ruling counsel for respondent excepted. Upon the trial there was no direct evidence of the guilt of the respondent, but the people relied upon circumstantial evidence. The evidence was to the effect that on the night of November 24, 1908, the store building, known as the Bank of' Mt. Morris, was entered by forcing the door of the building, and the doors of the safe or vault were forced open by the use of explosives. The door of the money vault was not forced open, but about $35 in pennies were missing. This was discovered the next morning, and there were at that time various parts of locks or combination of the safe lying about the floor, together with money, papers, and documents that had been placed in the safety deposit boxes of the bank.

On the day preceding the night upon which the bank was broken into, the respondent and one Kelly, who seem to have been strangers, were at the village of Mt. Morris. They were first seen there about 6 o’clock in the morning at the hotel in the village. They had a satchel in their possession. They took breakfast at the hotel, after which they took a room, to which they carried their satchel, and which room they occupied continuously until after 1 o’clock p. m., when they came down and asked for dinner, which was served to them. After eating their dinner, they went to the lobby of the hotel, and one of them, offering to pay their bill, presented a $20 bill to the hotel keeper. Before change was made, the other interrupted and said he had the right change, whereupon the right change was accepted, and the $20 bill was returned to the one who presented it. After paying their bill, respondent and Kelly went directly to the Bank of Mt. Morris (being the same bank that was broken into), and respondent presented a $20 bill to the cashier and asked for change. The cashier gave in exchange one $10 bill and two $5 bills, which were accepted by respondent; but after counting the money he returned to the paying window and asked to be given ten $1 bills for the $10 bill, which request was complied with. After this the parties left the bank, returned to the hotel, but soon went away, and were not seen again, so far as this record shows, unless it can be said that they were seen by the witness Bache the following night. This witness testified that he was that night at a raffle until about 2 o’clock in the morning; that on going home he went by the bank building in question and saw three persons near the bank; that when he was on the opposite side of the street from the bank the men were about the west end of the bank; as he went toward the bank they moved toward the witness; that when he got within 12 or 15 feet of them they turned and went back west; and that he went along home. He testified as follows:

“Q. I will ask you to look at Mr. Courtney, the gentleman that sits between Mr. Brennan and Mr. Kelly, and tell this jury whether or not he was one of those that was there?
“A. Well, I could not say; of course there are lots of men the same size.
“Q. How was he for size?
“A. This man was — would weigh I should judge about 160 or 162, although I could not see the third , one very close; he did not seem to come toward me.
“Q. What would you say in regard to the one,you saw compared to the size of Mr. Courtney?
“A. Well—
“Q. Look at him now.
“A. I could not state for sure; he had an overcoat on.
“Q. What?
“A. They had an overcoat on, I think.
“Q. Did you get a chance to observe his face particularly?
“A. No, I did not, not close enough.
“Q. Did he make any effort to conceal his face from you?
“A. He did not.
“Q. Was it any person you had ever seen around Mt. Morris before that?
“A. I could not say; I don’t think so.
“Q. Now, did you hear the reports that night of an explosion?
“A. I did.
“Q. How far did you live from the bank building?
“A. Oh, I lived probably 250 feet or 300; somewhere around there.”

On cross-examination he testified as follows:

“Q. T understand you to say, Mr. Bache, that you could not state whether Mr. Courtney, the gentleman that sits here, was one of the men you saw that night or not ?
“A. Well, I am not positive, as I was not close enough to identify his face.”

It appeared in evidence that about three days after the burglary of the Mt. Morris Bank the United States post office at the village of New Baltimore, in the county of Macomb, was broken into and an attempt made to open the safe in said post office by means of explosives. The next day after the New Baltimore affair, the respondent and Kelly were arrested at a certain hotel in the city of Detroit, and they were turned over to the sheriff of Macomb county for trial for the offense committed in that county. At that time certain keys and other claimed burglarious tools, as well as a revolver and satchel claimed to have been found in the possession of respondent and his associate, were turned over to the officers; there being evidence that the satchel resembled the satchel seen in the possession of respondent and his associate at Mt. Morris. These articles, except the satchel, appear in the record in the photograph marked “Exhibit B.”

The respondent and his said associate were in the custody of the Macomb county authorities from November 28, 1908, until July 6, 1909, when they broke jail and escaped. In the meantime they had been tried, but the jury disagreed. Nothing more was heard of the man Kelly. About March 25, 1912, the respondent was arrested at Oakland, Cal., and upon proper requisition papers he was turned over to two officers of Macomb county, George H. Harris and John Matthews. Upon the trial of this case it appeared that the respondent was returned to Macomb county, and upon a change of venue was tried in St. Clair county in the circuit court for that county upon the Macomb county charge, and was acquitted. Whereupon he was turned over to the authorities of Genesee county, resulting in the trial we are now considering.

Upon the trial of this case the following occurred upon the examination of the witness John Matthews relative to certain burglarious tools which were turned over to the officers by the California authorities, and represented in the photograph contained in the record marked “Exhibit C■

“Q. Now, after Mr. Courtney had escaped, what is the date you stated that was, the Mt. Clemens jail?
“Respondent’s Counsel: I object to that as incompetent and immaterial.
“The Court: He may answer it. (Exception.)
“A. July 6, 1909. From that time I did not see him again until at Oakland, Cal.
“Q. Now at the time of the arrest of Mr. Courtney in Oakland, Cal., and at the time of your bringing him back from Oakland, Cal., to Mt. Clemens, I will ask you what implements and what possessions were turned over to you as an officer belonging to him and on him when arrested?
“Respondent’s Counsel: I object to that as incompetent and immaterial.
“The Court: I overrule it. (Exception.)
“A. They were not turned over to me; they were turned over to Sheriff Harris in my presence. He is my superior officer. We were together when they were turned over.
“Q. I will ask you to show the jury what they are?
“Respondent’s Counsel: I object to that as incompetent and immaterial.
“The Court: I overrule the objection. (Exception.)
“Prosecuting Attorney: I offer this in evidence
(referring to various articles taken from satchel, Exhibit C).
“Respondent’s Counsel: I object to it as being incompetent and immaterial.
“Q. What are those, Mr. Matthews?
“A. Those are dynamite fuses. I would say that dynamite is inside of those blackened things there. I do not know exactly what they are. They are used in setting off nitroglycerine. They could be set off by an electric current.”

There was other evidence describing these articles as burglar’s tools, after which Mr. Matthews was recalled and further cross-examined as follows:

“These tools, Exhibit C, were turned over to Mr. Harris at Oakland, Cal., in my presence by the chief of police or the acting chief. I do not remember who were present at the time. I could not say where Mr. Courtney was at that time. I could not say whether he was there when the stuff was turned over or not.”

It appears that the court made the following remark:

“The instrument exhibited (Exhibit A) to the jury has been placed on the vault door down in the clerk’s office. I think the jury will get a very much better idea of it if they see it in actual working order, and so the jurymen and the respondent and the attorneys and stenographer will step down into the clerk’s office and examine the matter.”

Thereupon the jury went to the clerk’s office and examined the instrument shown in Exhibit A, which was the assembling of a portion of the articles described, in Exhibit C, constituting a brace and drill adjusted to the safe door in the clerk’s office. After the jury returned, respondent’s counsel moved the court as follows:

“Now I will ask to have all this stricken out about the tools, and all this that is in the record respecting this demonstration of the tools.
“Prosecuting Attorney: I would like to ask Mr. Harris a question if he is still in the room.
“The Court: Unless Mr. Courtney was present and made some acknowledgment of its being his property it would not be competent.”

Whereupon George H. Harris, being sworn, testified :

“I reside in the city of Mt. Clemens; am sheriff of the county; was sheriff in March and April of last year. John Matthews and myself went to California after Courtney. When we arrived in California, Mr. Courtney was in jail at police headquarters. The chief of police there, the acting chief,, turned Mr. Courtney over to me. * * *
“Q. At the time Mr. Courtney was turned over to you by the officers of Oakland, Cal., what else was turned over?
“A. This stuff here (indicating articles in Exhibit C).
“Q. Who was it turned to you by?
“A. The chief of police.
“Q. What was it turned over to you as; where was Mr. Courtney when it was turned over to you?
“A. He was there.
“Q. .Right there?
“A. Yes, sir.
“Q. What was it turned over by the chief of police as?
“A. Burglar’s tools.
“Q. State if the sheriff at that time in Mr. Courtney’s presence stated what they were, where they were found? (Objection.)
“The Court: He may answer it. (Exception.)
“A. He stated to me he took this stuff out of Mr. Courtney’s room on his clothes. He had, I guess, about two dry goods boxes of stuff and clothes there.,
“Q. Did Mr. Courtney make any denial of that at the time?
“A. Not to me.
“Q. Did he to anybody at that time?
“A. Not that I heard.
“Q. He was present and heard what the chief said?
“A. He stood there.
“Respondent’s Counsel: In view of Mr. Harris' testimony, I renew the motion to have it all stricken out.
“The Court: The motion is denied. (Exception.)”

During the course of the argument of respondent’s counsel to the jury, he stated as follows:

“You cannot use what was found in their possession as evidence to convict them, but simply to account for the lapse of time.
“The Court: That does not apply to the satchel and stuff in California. They can consider that for anything they desire.
“Respondent’s Counsel: An exception to what the court says. In view of what the court says about California, I want to call your attention to one thing: That was four years after it is claimed this bank was burglarized in Mt. Morris.”

The respondent was convicted and sentenced, and the case is here upon writ of error. There are 43 assignments of error. Some of these we shall not specifically refer to.

The first, second, and 29 & assignments allege error in overruling the plea in abatement and in permitting amendments, as above indicated, to the information. In view of the fact that there was a preliminary examination in which the witness Charles D. Stanley had testified that the bank in question was his bank, and that his bank was broken into on the night of November 24, 1908, we are of opinion that the trial court did not err in overruling the plea in abatement, or in permitting the amendments. We need only call attention to the case of People v. Pichette, 111 Mich. 461 (69 N. W. 739), where the Michigan cases are collected, to show the liberal rule applied in this State. See, also, People v. Butler, 122 Mich. 35 (80 N. W. 883). Our statute of amendments is very broad. See sections 11908 and 11922, 3 Comp. Laws (5 How. Stat. [2d Ed.] §§15079, 15093). In other jurisdictions it has been held that in describing real estate, in cases of arson, burglary, and malicious mischief, a more liberal rule applies than in reference to personal property, as to ownership. In Commonwealth v. Williams, 2 Cush. (Mass.) 582, the indictment charged the defendant with breaking into and entering the city hall of the city of Charlestown. It was objected that there was no averment of property in the city of Charlestown. The court said:

“But a reference to the best books of precedents in criminal pleading will fully sustain the distinction between the modes of describing real and personal property, in reference to the ownership of such property. While the latter is described as has been stated, a very general, if not universal, mode of describing the ownership of real estate, is similar to that adopted in the present case. This is peculiarly so in indictments for arson, burglary, and malicious mischief.”

It was held that the indictment sufficiently alleged the ownership of the property and that it was a public building.

Respondent’s counsel made a motion to strike out the testimony of the witness Bache, above set forth, on the ground that it was immaterial and irrelevant. This motion was denied and exception taken, and the ruling is complained of in assignment 29c, and our attention is called to People v. Gotshall, 123 Mich. 474 (82 N. W. 274). As was said in that case, we say here:

“Although this testimony of identification is very unsatisfactory, we do not think that we can hold that there was no evidence for the jury to act upon. The verdict, however, based upon this testimony, leads to a careful examination of the errors assigned.”

One of the most important questions raised in the case by the assignments of error is whether the court erred in receiving the testimony of the witness Harris, above quoted, repeating the statement. made to the witness by the chief of police at Oakland, Cal., relating to the possession of the burglarious tools and instruments by the respondent at the time of his arrest in California.

It is not claimed that the conversation was addressed to the respondent, or that he said anything; neither is it clear that respondent heard it. The most that can be said upon the last point is that in answer to a leading question by the prosecuting attorney, i. e., “Q. He was present and heard what the chief said?” Harris answered, “He stood there.” Whether respondent’s attention was called to the conversation does not appear. It is significant that the witness Matthews, who was also present, was unable to testify whether the respondent was present or not.

Mr. Greenleaf, in his work on Evidence (vol. 1, § 197), says:

“Admissions may also be implied from the acquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. And whether it is acquiescence in the conduct or in the language of others, if must plainly appear that such conduct was fully known, or the language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply, from men similarly situated.” Many cases are cited.

A somewhat similar question was before this court in the case of People v. O’Brien, 68 Mich. 468 (36 N. W. 225). There it was said:

“I do not think the statement made by O’Brien, Sr., was admissible against the respondent.
“The admissions or declarations of an accused party, when voluntarily made, are competent; but the statements of another are purely hearsay, unless made under such circumstances, in the presence and hearing of the accused, that his acquiescence in such statements can be plainly inferred from his demeanor or conduct.”

After quoting from Greenleaf, this court said:

“The record states that this remark of the father was made in the presence of the respondent, but there is nothing to show that he heard it, or paid any attention to it. There are no circumstances shown that lead to any inference that he heard and understood it, except that four men were in the same field or lot, picking squash bugs. It is not probable that any two of them were picking bugs from the same hill of vines, and, for all that the record discloses, the respondent might have been so far away, or of such defective hearing, that the remark did not reach him.”

Here the witness Harris says of the respondent that “he stood there.” Where, he does not say. How far from where this conversation was carried on, or whether he was otherwise engaged, he does not state. Yet upon the strength of this testimony the trial court permitted the introduction in evidence of what is shown in Exhibit C.

Prof. Wigmore, in volume 2 of his work on Evidence, § 1072, at page 1258, says:

“So, too, if the party had plainly no motive for responding, his silence permits no inference; and this is often the case where the statement is addressed to another person, and not to the party himself. Much more is the silence without significance when a positive deterrent motive, such as fear, was operating upon the party. Certain situations in particular may furnish a positive motive for silence without regard to the truth or falsity of the statement. Whether the fact that the party is at the time under arrest creates such a situation has been the subject of opposing opinions; a few courts (for the most part in acceptance of an early Massachusetts precedent), by a rule of thumb exclude the statement invariably; but the better rule would seem to allow some flexibility according to circumstances.”

In other jurisdictions there are many cases upon the subject. A leading case is that of Merriweather v. Commonwealth, 118 Ky. 870 (82 S. W. 592, 4 Am. & Eng. Ann Cas. 1039). There it was held that to admit in evidence in a criminal case, as an implied confession of guilt, undenied inculpatory statements uttered in the presence of the accused when he was under arrest, and when it appears that he did not, and did not intend to, commit himself on the subject, is reversible error. In a lengthy note to this case more than 100 cases are cited. Some of the States hold that statements made while the accused is under arrest are inadmissible. But we think the great weight of authority is to the effect that the mere fact that the accused is in custody will not of itself exclude the statement, if the circumstances otherwise properly call for a reply or denial.

In People v. Smith, 172 N. Y. 210 (64 N. E. 814), Judge Martin, speaking- for the court, said :

“The only possible ground upon which the silence of a party can be admitted as evidence against him is that it amounts to an acquiescence in a statement or act of another person. The rule admitting such evidence is to be applied with careful discrimination. Such evidence is most dangerous and should be received with great caution, and not admitted unless of statements or acts which naturally call for contradiction, or unless it consists of some assertion with respect to his rights in which, by silence, the party plainly acquiesces. To have that effect, his acquiescence must be exhibited by some act of voluntary demeanor or conduct. If the claimed acquiescence is in the conduct or language of another, it must plainly appear that such conduct or language was fully known and fully understood by the party before any inference” against him “can be drawn from his passiveness or silence. The circumstances must not only be such as to afford him an opportunity to act or speak, but such as would ordinarily and naturally call for some action or reply from persons similarly situated.”

It was held in Commonwealth v. Walker, 13 Allen (Mass.), 570, that one who is held in custody on the charge of crime and confined to a cell in the lockup is not called upon to contradict statements, tending to implicate him in the crime, in his hearing by another person to an officer of the law; and such statements, though heard and not contradicted by him, are not admissible in evidence against him. The court said:

“The defendant was not bound to deny or reply to the statements made between them, and his silence under such circumstances warranted no inference against him. Commonwealth v. Kenny, 12 Metc. [Mass.] 235 [46 Am. Dec. 672], states fully the rule of law applicable to such a case, and applies it to a state of facts almost precisely identical with those disclosed in these exceptions, which must be sustained.”

In Fry v. Stowers, 92 Va. 13 (22 S. E. 500), it is held that declarations of a mere stranger to a controversy, having no interest in the matter, though made in the presence of the party, but not addressed to him, and to which no reply is required or made, cannot be given in evidence as an admission of such party. Mr. Greenleaf says, in discussing this subject:

“But, in regard to admissions inferred from acquiescence in the verbal statements of others, th'e maxim qui taeet consentiré videtur, is to be applied with careful discrimination. ‘Nothing can be more dangerous than this kind of evidence. It should always be received with caution; and never ought to be received at all, unless the evidence is of direct declarations of that kind which naturally calls for contradiction; some assertion made to the party with respect to his right, which, by his silence, he acquiesces in.’ A distinction has accordingly been taken between declarations made by a party interested and a stranger; and it has been held that, while what one party declares to the other, without contradiction, is admissible evidence, what is said by a third person may not be so. It may be impertinent, and best rebuked by silence; but if it receives a reply, the reply is evidence.” 1 Greenleaf on Evidence, § 199.

See, also, Larry v. Sherburne, 2 Allen (Mass.), 34; People v. Kennedy, 164 N. Y. 449 (58 N. E. 652); State v. Mullins, 101 Mo. 514 (14 S. W. 625); Kelley v. People, 55 N. Y. 565 (14 Am. Rep. 342); Commonwealth v. Trefethen, 157 Mass. 180 (31 N. E. 961, 24 L. R. A. 235).

In 2 Wharton’s Criminal Evidence, § 679, that author, in speaking of the subject of silence as admission, says:

“The ground of admission of such statements is expressed by the courts in varying phraseology, such as, the omission to controvert the statement affords an inference of its truth; silence under the accusation is regarded as an acquiescence in its truth and an implied admission of guilt; it is not admitted because the statement was made, but because the accused impliedly ratified it and adopted it as his own statement. Such accusations are admissible in evidence, not as evidence of the truth of the accusation, but to show that it calls for a reply, and to show the acquiescence of the accused” — citing Davis v. State, 131 Ala. 10 (31 South. 569), and many other cases.

We are of opinion that the trial court erred in admitting the testimony of the witness Harris, and in permitting the tools and instruments shown in Exhibit C to be exhibited to the jury, and that the same was prejudicial and reversible error.

Had it appeared by competent evidence that the tools and instruments shown in Exhibit C were found in the possession of the respondent when he was rearrested in California, which fact might have been shown as a part of the res gestae of the rearrest, still, in our opinion, it would have been error to permit the jury to consider them as tending to show the respondent guilty of the offense charged.

It should be remembered that the offense charged was committed on November 24, 1908. The rearrest was on March 25, 1912, three years and four months after the burglary was committed for which respondent was being tried. It further appears that all of the tools and implements found in the possession of respondent and his comrade when they were arrested in Detroit, a few days after the burglary, were already in evidence in the case, and we think properly so. We think that the correct rule is stated in 6 Cyc. at page 239, as follows:

“After preliminary proof of a burglary, it is competent for the State to prove that the defendant was found in the possession of burglarious tools or implements shortly after the alleged burglary, and to introduce the tools or impleménts in evidence.”

State v. Campbell, 7 N. D. 58 (72 N. W. 935). Like the possession of stolen goods, the possession must be recent, or soon after the commission of the offense. It is proper to prove the possession by the prisoner at the time of his arrest, shortly after the commission of the crime, of a set of burglar tools, in order to show his intent in entering the building. It is just as competent as the possession of the stolen property. State v. Franks, 64 Iowa, 39 (19 N. W. 832).

In Commonwealth v. Brown, 121 Mass. 69, it is said that the object and purpose of the introduction of burglarious tools upon the trial of a defendant for burglary is that they tend to show that the defendant had at the time of the offense the means and opportunity to commit the crime charged. In 3 Bishop’s New Criminal Procedure, at section 151, that author says:

. “Assuming the corpus delicti to have been proved, burglar’s tools found ón the defendant’s person, in his dwelling, or otherwise in his possession, may, to connect him with the offense, be produced, with a showing of the attendant circumstances.”

Section 152. The same rule is stated with regard to stolen goods.

Tools with which the burglary is supposed to have been committed may be exhibited to the jury. People v. Larned, 7 N. Y. 445; People v. Winters, 29 Cal. 658; People v. Hope, 62 Cal. 291; Cornwall v. State, 91 Ga. 277 (18 S. E. 154); State v. Harrold, 38 Mo. 496. In People v. Winters, supra, it was held that burglarious tools, found in the possession of the defendant, soon after the commission of the offense, may be offered in evidence by the prosecution, whenever they constitute a link in the chain of circumstances which tend to connect the defendant with the particular burglary charged in the indictment.

The use made of the tools (Exhibit C) was, in our opinion, very damaging to the respondent. The trial court stated during the argument of respondent’s counsel before the jury that they (the jury) could consider the “satchel and stuff” in California, “for anything they desire.” Just what was meant by this remark we do not know, but it was certainly broad enough to permit the jury to consider the possession of such tools by respondent in California, as evidence of a burglary committed nearly 3 y% years before. We think this was reversible error.

We have examined the other assignments of error, but find no other reversible error in the record.

For the errors pointed out, the judgment of the circuit court is reversed, and a new trial granted. The respondent will be remanded to the sheriff of Genesee county to be dealt with according to law.

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


author: Ostrander, J.

text:
    PEOPLE v. BROWN.
    Forgery — Bills and Notes — Uttering Forged Instruments — Passing Check Without Funds — Names.
    Evidence that the respondent, who was charged with uttering a forged check (3 Comp. Laws, §§ 11659, 11660, 5 How. Stat. [2d Ed.] §§ 14695, 14696), indorsed and delivered to the witness for the prosecution a check for ?10 signed by respondent who was also the payee, that there were no funds in the drawee hank in the name of respondent, that the witness had known him since boyhood and his name was not that which he signed on the instrument, hut respondent went by the name so used and the witness supposed respondent was signing his own name to the check, held, not to support the charge, and that it did not tend to prove the instrument was false or forged.
    Error to the recorder’s court of the city of Detroit; Phelan, J.
    Submitted November 7, 1913.
    (Docket No. 159.)
    Decided December 20, 1913.
    Leo Brown was convicted of uttering a forged im strument.
    Reversed; respondent discharged.

      Grant Fellows, Attorney General, for the people.

      Louis T. Herman, for respondent.
   Ostrander, J.

Respondent who is charged in.the information as “L. Brown, whose first name is unknown, but whose person is well known,” was convicted by a jury of the offense of having uttered and published as true a certain false, forged, and counterfeit order for the payment of money, with intent to injure and defraud. The order, set out in the information, is as follows:

“$10.00. Detroit, Mich., Feb. 2, 1913.
“German-American Bank: Pay to the order of L.
Brown, ten and 00/100 dollars, value received, and charge the same to
“No. 2. L. Brown.”

It is indorsed, “L. Brown.” The testimony for the people tended to prove that on the 2d day of February, 1913, which was Sunday, the respondent called at the store of one Hilson, told him he had some money in the bank that he could not get until Monday, and asked him to give him $10 for his check, which Hilson did; Hilson indorsed the check, presented it at the bank on the following morning, and was told that respondent had no account there; that respondent had not since repaid him the money or taken the check. It also appeared that Hilson had known the - respondent from childhood — 25 or 28 years — that respondent drew the check in his (Hilson’s) place of business. Hilson testified:

“Q. This check, therefore, you understood to be his check?
“A. Yes, sir.
“Q. On the back, that you understood to be his signature?
“A. Yes; he wrote it out right in my store.
“Q. So all that you complain of is that he had no account at the bank, and you could not get the money?
“A. Yes, sir.
“Q. But the check is in his handwriting?
“A. Yes; he wrote it.
“Q. Made by him as maker and indorsed by him?
“A. Yes, sir.
“Q. You do not claim that it is anybody else’s check but his?
“A. His check.”

The testimony tended further to prove that the respondent had no account and no money in the bank upon which the check was drawn, and that he had stated to the detective of the police department who arrested him that he got hard up for money, made out the check, and cashed it with a friend of his, and calculated to make it good; that he had no money in the bank. Upon this testimony the people rested. Thereupon the attorney for the respondent moved the court to discharge the respondent and to quash the information, because it appeared that the instrument was not forged. After a considerable colloquy the people recalled the witness Hilson, who stated that he had known the respondent since boyhood; that his name is Leon Novakowski; that he had heard of his using the name of L. Brown; that they were from the same town, which respondent left many years ago; that he knew him there as Leon Novakowski, but had afterwards heard that he went by the name of L. Brown; that it was about ten years since he had first heard him called Leo Brown; that he understood the respondent was signing his own name to the check; that he did not understand that he was signing the name of any other person to the check or any assumed name, but knew that he was going by the name of L. Brown. No testimony was offered on the part of respondent; his counsel simply stated to the jury that, if he was guilty of any offense, it was misrepresenting that he had an account at the bank.

3 Comp. Laws, § 11659 (5 How. Stat. [2d E4d.] §14695), referred to in the information, prescribes the punishment for persons who shall falsely make, alter, forge, or counterfeit any order for money or other property, with intent to defraud or injure any person, and section 11660 provides that every person who shall utter and publish as true any false, forged, altered, or counterfeit instrument mentioned in the preceding section, knowing the same to be false, altered, forged or counterfeit, with intent to injure or defraud, shall be punished by imprisonment in the State prison not more than 14 years or in the county jail not more than 1 year.

The recorder submitted the question of respondent’s guilt to the jury, and, upon the verdict being returned, sentenced him to be confined in the State’s prison at Marquette for a term of not less than 5 years. A motion to set aside the verdict and judgment and grant a new trial was refused. The cause is here on exceptions, of which we need to consider but one, which is that the court erred in refusing to discharge the respondent at the close of the people’s case. It is obvious that the motion should have been granted; there being no testimony tending to prove that the check was a false, altered, forged, or counterfeit instrument. Upon the hearing, the attorney general confessed error.

The verdict must be set aside, and the respondent discharged.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ.f concurred.


author: Bird, J.

text:
    PEOPLE v. BOLLMAN.
    1. Criminal Law — Names of Witnesses for Prosecution — Information, Indorsing Names on — Appeal and Error.
    Under the provisions of 3 Comp. Laws, § 11934 (5 How. Stat. [2d Ed.] §15105), requiring the prosecuting attorney to indorse upon the information the names of witnesses known to him at the time of filing, it was not erroneous to permit the prosecuting officer to add the name of a witness at the trial, upon his statement that he had. just learned of the testimony that morning, although respondent’s counsel objected on the ground that there was no reason why the name could not have been indorsed before. In the absence of a specific objection that the showing made by the prosecution was insufficient, the contention that the showing was not made under oath will not be considered, on writ of error, no claim having been made that the defense was surprised, or needed more time, or that the accused suffered prejudice from the testimony of the witness.
    2. Seduction — Criminal Law — Evidence — Character—Reputation.
    The right to show good character or reputation does not authorize one charged with seduction to show by a witness with whom he had associated that his conduct with her had been good.
    3. Same — Trial—Argument.

      Held, that the argument of the prosecuting attorney relating to incompetent evidence that the court struck from the record was not so prejudicial as to require reversal of the conviction.
    Exceptions before sentence from Sanilac; Beach, J.
    Submitted November 7,1913.
    (Docket No. 164.)
    Decided December 20, 1913.
    Norman Bollman was convicted of seduction.
    Affirmed.

      H. O. Babcock, Prosecuting Attorney, for the people.

      Fred A. Farr and Robert W. McKenzie, for respondent.
   Bird, J.

The respondent was informed against and convicted of the crime of seduction in the Sanilac circuit court, and the case has been removed to this court for review. Among the errors complained of is the action of the trial court in permitting the name of a witness to be indorsed on the information after the jury had been sworn and the complaining witness had given her testimony in' part. At that point in the trial, the prosecutor applied to the court for permission to indorse on the information the name of Olive Nichol. He informed the court that, while he knew that Olive Nichol was a sister of the complaining witness, he was not aware until that morning that she knew anything material to the issue of the case. Whereupon respondent’s counsel made the following objection:

“We shall object to it. There is no reason why that name could not have been on before.”

Upon this statement the court granted permission to indorse the name over defendant’s objection.

The objection now made is that the showing of the prosecutor was insufficient and not under oath. The statute regulating the indorsement of names of witnesses upon the information provides that:

“All informations shall be filed during term, in the court having jurisdiction of the offense specified therein, by the prosecuting attorney of the proper county as informant; he shall subscribe his name thereto, and indorse thereon the names of the witnesses known to him at the time of filing the same; and at such time before the trial of any case as the court may, by rule or otherwise, prescribe, he shall also indorse thereon the names of such other witnesses as shall then be known to him.” 3 Comp. Laws, § 11934 (5 How. Stat. [2d Ed.] § 15105).

Under this statute it is clear that it would be necessary for the prosecutor to make some showing to the court in order to authorize him to indorse names on the information after it was once filed. In the case under consideration, the prosecutor stated to the court, in the presence of respondent’s counsel, that he had just been advised that morning that Olive Nichol was a material witness, and that he desired to indorse her name upon the information. As against the objection made, this showing was sufficient under the statute to authorize the court to make the order.

Had counsel at the time made the specific objection that he now makes, that the showing was not under oath, the trial court would have doubtless required the prosecutor to be sworn and granted permission to respondent to examine him touching his diligence in discovering the witness and the materiality of her testimony. There was no claim made by respondent to the trial court that he was surprised in any way, nor that he wanted time to investigate the antecedents of the witness; nor was any complaint made, after she gave her testimony, that respondent’s case was prejudiced in any way by it. In fact, the record shows that she testified to nothing which was contradicted by the respondent. Under these circumstances, we think the respondent is in no position to complain of the action of the trial court in permitting the name to be added to the information.

On the part of the defense, Lillie Gravenstein, a character witness, was sworn, and, after testifying that she was more or less in the respondent’s company prior to her marriage, she was asked the following question:

“Q. What would you say as to the character of his conduct toward you while in his company?”

This question was objected to and excluded. It is argued by the respondent that the exclusion of this testimony was error. It is competent in a criminal case for a respondent to show what his general reputation is with reference to the particular offense charged (People v. Evans, 72 Mich. 367 [40 N. W. 473]) ; but we know of no rule which permits a respondent to show particular instances of good conduct in order to establish his reputation. The question asked was not directed to his general reputation, but simply to his conduct while in the company of the witness. The proffered testimony was rightly excluded. 16 Cyc. p. 1278.

Error is assigned upon the cross-examination of Max Bollman, the brother of respondent, and also upon the use that was afterwards made of the cross-examination by the prosecuting attorney in his address to the jury. For the purpose of showing the unchastity of the complaining witness, Max Bollman testified that he had had connection with the complaining witness before the respondent courted her. The prosecutor then examined him as follows :

“Q. How many acts of intercourse had you had with other girls?
“A. I don’t know.
“Q. You can’t tell?
“A. No, sir.
“Q. Various girls?
“A. Very few.
“Q. You had had with a few others?
“A. Yes.
“Q. What is your age?
“A. 19.
“Q. What other girls have you had intercourse with?
“Mr. McKenzie: Object to that as incompetent and immaterial.
“The Court: I hardly think I will permit the question to be answered.
“A. Is it necessary for me to answer that question?
“Q. Yes.
“A. The only one that I can remember of is a Randall girl, a girl by the name of Randall.
“Q. That is the only one that you can remember?
“A. Yes.
“Mr. McKenzie: This is a trying position to put a witness in.
“Mr. Babcock: We didn’t put the witness in that position.
“Q. There are others?
“A. There might be one or two.
“Q. That you can’t remember of?
“A. No, sir.
“Mr. McKenzie: A gentleman will lie under such circumstances. I call the attention of the court that this is a trying position to put the witness in.
“The Court: I intimated that he need not give the names, and that I would not permit him to disclose the names of the other parties.
“Mr. Babcock: I misunderstood the ruling.
“The Court: It was' probably a misapprehension.
.“Mr. Babcock: That may be stricken out, the name the witness gave?
“The Court: Yes.”

Afterwards, in addressing the jury, the prosecutor referred to this testimony, as follows:

“Gentlemen, he tells you that he can’t remember the names of the two girls he had sexual intercourse with. The only explanation I can tell of why he didn’t know them is that perhaps he had met them in a brothel. Now think of a young man in your neighborhood, if there is any there, that in two years has had sexual intercourse with four girls, two of whom he can’t remember their names. There was no necessity for him to tell the names, the court excluded the names. That wasn’t necessary in this case; under a mistake he did tell one name, but it was excluded and you have forgotten it; but he had already said he couldn’t tell the names of the other two. But, I say, if there is a young man in your own neighborhood that had acted in that way, that has been a sport, that says he had acted in that way, and that he is a gentleman, what kind of a young man is he? If you can remember, if there is any in your own neighborhood, if you know of one, what kind of a fellow is he? And he is rather proud of it.
“Mr. Farr: I desire to take exception to that.
“The Court: The exception is noted.
“If he hadn’t been proud of it, he wouldn’t have told of the other three girls, because it wasn’t necessary. His testimony would have been better without it, a good deal.”

The testimony was given under a misapprehension by both counsel of the ruling of the court, and subsequently, when the ruling was correctly understood, it was very properly stricken out. The jury doubtless understood this, and, when it was stricken out, we think it cured any prejudicial eifect its reception may have had upon respondent’s case. How the prosecutor could have so far forgotten his sense of fairness and duty, as an official, to make use of this incompetent testimony in his address to the jury after the testimony had been stricken out upon his own motion, is not easily understood. We think, however, that the sense of fairness which pervades the average jury would put the blame for this where it belonged, and prevent any resulting injustice to the respondent.

We have examined the other errors assigned and find nothing therein that calls for a reversal of the case.

The conviction is affirmed.

Steere, C. J., and Moore, Me Alvay, Brooke, Kuhn, Stone, and Ostrander, JJ., concurred.


text:
    FLYNN v. BOGLARSKY.
    Libel and Slander — Actions—Husband and Wife.
    Testimony tending to prove the truth, of an alleged libel charging plaintiff and his wife with disorderly conduct, was not admissible where the proof related only to acts of the wife, with which the plaintiff husband was in no wise concerned, and which occurred during his absence from home.
    Error to Wayne; Van Zile, J.
    Submitted November 13, 1913.
    (Docket No. 38.)
    Decided December 20, 1913.
    Case by William Flynn against George Boglarsky and others for libel. Judgment for plaintiff for nominal damages. Plaintiff brings error.
    Reversed.

      McHugh, Gallagher, O’Neil & McGann, for appellant.

      James H. Pound, for appellees.
   Ostrander, J.

The alleged libelous article was:

“To the Honorable Judge of the Police Court:
“We, the undersigned,' do hereby request that Mr. and Mrs. Wm. Flynn, now residing at 241 Russell street, upstairs, be requested to move from said premises, and vacate entirely the immediate neighborhood of 241 Russell street, insomuch as making their residence there. The grounds for our petition is due to the obnoxious manner the said parties conduct themselves in the forced relations with their immediate neighbors, as disturbers of the peace, quarrelsome, and a general nuisance to the peaceful citizens about them. * * * ”

See 164 Mich. 513 (129 N. W. 674, 32 L. R. A. [N. S.] 740. Defendants gave notice that they would prove, among other things, that the paper writing told but the truth. Upon a second trial of the cause, plaintiff had verdict and judgment for 12 cents. His motion for a new trial was denied, and he complains in this court that the trial court erroneously admitted testimony of the misconduct of his wife occurring during his absence, and without evidence that he acquiesced in or had knowledge of it.

As plaintiff, under his pleading, can recover only for damages suffered by himself for what was written and published about himself — does not seek to recover his damages for what was written and published of and concerning his wife (see Kovacs v. Mayoras, 175 Mich. 582 [141 N. W. 662]) — it is clear that the issue does not involve the truth, or falsity, of what was written and published concerning his wife. It may be difficult, but it is not impossible, as the record before us proves, to eliminate testimony of certain conduct of plaintiff’s wife during his absence from home, with which conduct he is in no manner connected. It is unfortunate that the cause must go down for a new trial, but we are convinced that in law plaintiff’s allegations of error are-well founded.

The judgment is reversed, and a new trial granted.

Steere, C. J., and McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred. Moore, J., did not sit.


text:
    SASSAMAN v. WELLS.
    1. Parent and Child — Contracts—Medical Services — Liability oe Father for Necessaries.
    Neither express nor implied authority to pledge his father’s credit for medical services is vested in a minor son 19 years of age, who resided away from home at another city, attending school there against the consent of his parent, who contributed nothing to his support, and had no knowledge of the son’s illness.

    2. Same.
    It is necessary to show, in order to charge the parent, that some duty had been neglected or some exigency or peril of the son existed and that he was at a distance from home so that information could not be speedily conveyed to his parent.
    3. Contracts — Physicians and Surgeons — Medical Attention.
    That a father may be chargeable with necessary medical attention furnished to his minor child, there must be either an express promise to pay or circumstances from which a promise can be implied, some omission of duty or special exigency rendering the performance of service reasonable and proper.
    Error to Eaton; Smith, J.
    Submitted November 13, 1913.
    (Docket No. .112.)
    Decided December 20, 1913.
    Assumpsit in justice’s court by Franklin W. Sassaman against William R. Wells for medical services. Judgment for plaintiff on appeal to the circuit. Defendant brings error.
    Reversed; new trial refused.

      B. A. Colwell and George Iluggett, for appellant.

      J. C. Nichols and Lyman H. McCall, for appellee.

       As to the liability of a parent for necessaries furnished minor child who is living away from parent’s home, see note in 40 L. R. A. (N. S.) 488.

   Ostrander, J.

The subject-matter of the controversy is a physician’s bill of $59 for professional services rendered to defendant’s minor son, 19 years of age, in the month of October, 1911. The particulars of the demand are almost daily services from October 2d and including October 25th, with an item of $20 for an operation on October 21st. Begun in justice’s court, the cause was appealed to the circuit court, and the judgment of the latter court is reviewed here on error. Defendant pleaded the general issue. He moved at the conclusion of plaintiff’s proofs for an instructed verdict and renewed the motion when defendant’s proofs were concluded. Both motions were denied. Two questions were submitted to the jury:

(1) Was defendant’s son emancipated when the debt was contracted?
(2) Did the plaintiff charge the account to the son or to his father?

These the jury answered in plaintiff’s favor. A new trial was refused. Appellant has not set out in the brief, separate from argument, the errors relied upon, the questions involved, and the manner in which they are raised. Supreme Court Rule 40. But it appears that two principal contentions are made:

(1) That the testimony presented no issue of fact for the jury, and, if it did, then (2) that in charging the jury and in refusing to charge as requested by defendant errors of law were committed.

The value of plaintiff’s services is not questioned in the pleadings, though the testimony of the son is that they were not helpful. His ailment was of a private nature, his condition one which he would naturally desire to conceal from his parents. He lived in Wood-bury, Eaton county, and was attending school in Charlotte, in the same county.

It is undisputed that from April 3, 1911, until September 9, 1911, the son was employed by his father, who paid him $7 weekly and gave him his board and washing; that he settled with him when the son determined, contrary to his father’s wishes, to go away to school; that while the son was absent in Charlotte he contributed nothing to his support, did not know of his illness, and consequently did not know that the plaintiff was attending him; that the son returned home in October, 1911, sick, and was treated by the family physician for six weeks, after which time, and until he became of age, he was employed by his father according to their previous arrangement. It does not appear that the father knew that plaintiff had a demand against him until notified by an attorney, although plaintiff testified that he had himself previously written to him.

Plaintiff testified, and his testimony upon this point is not disputed, that he charged the account upon his books to the father. He further testified that he extended the credit to the father, to whom the son told him to make the charges, that he told the son that his father would have to pay if he did not, that the son did not pay, and therefore he looked to the father. “I had strict orders from the patient,” he says, “he would pay it; that he didn’t want this known to the father.” He denies that the son left with him a cornet as security for payment, but admits it was left with him. The son testified, in substance, that he did not inform the plaintiff that he •had been emancipated, that he did tell him his age, and who his father was, but did not tell him his father would pay. On the contrary, he testified that he told plaintiff he himself would pay and that plaintiff had repeatedly demanded pay of him.t He also testified that the cornet was left with plaintiff upon his demand for some security before performing a surgical operation. This is the substance of the material testimony.

It is manifest that the son had neither express nor implied authority to pledge his father’s credit. The plaintiff made no express contract with the father, the defendant, nor were the services rendered under circumstances, such as the knowledge of the father, from which, generally, a promise to pay for them would be implied. If defendant is liable, it is because of some general moral or legal duty to provide necessaries for his son, failing in which a stranger might supply them at his expense. Tyler v. Arnold, 47 Mich. 564 (11 N. W. 387). See Freeman v. Shaw, 173 Mich. 262, 266 (139 N. W. 66). 'There was some evidence of the real need for medical services, none of a failure of duty on the part of the father. Nor was there any exigency, such as the imminent peril of the son and his distance from home, to take the case out of the rule that parental duty must be neglected before a stranger may supply what the parent ought to supply, at the expense of the parent.

We may take notice that over the few miles lying between Woodbury and Charlotte information could have been speedily conveyed to the father.

The true rule is well stated in 29 Cyc. pp. 1608, 1609, where it is said:

“It is a necessary consequence of the duty to support the child that the parent may in a proper case be held liable for necessaries furnished to the child by a third person; but in order to hold the parent liable there must be either an express promise to pay or circumstances from which a promise can be implied, some clear and palpable omission of duty on the part of the parent in not furnishing necessaries to the child, or some special exigency rendering the interference of such person reasonable and proper.”

We are of opinion, therefore, that, without considering whether the son had been emancipated, or whether plaintiff intended to hold defendant responsible, the liability of defendant is not established, and the jury should so have been instructed.

The judgment is reversed, and no new trial will be granted.

Steere, C. J., and Moore, McAlvay, Brooke, Kuhn, Stone, and Bird, JJ., concurred.