author: Stone, J.

text:
    PEOPLE v. BOWEN.
    1. Criminal Law — Evidence—Confession — Privileged Communications.
    After the prosecution had introduced evidence of an alleged confession made by a respondent charged with the murder of his wife, and witnesses testified to the statements so made, respondent was entitled to testify to the whole of such conversation or admissions, including what he had told the witnesses concerning privileged communications passing between himself and the deceased wife.
    2. Same.
    The error was not cured by striking out the testimony of the first of such witnesses, leaving the testimony of the others standing.
    Error to Newaygo; Cogger, J.
    Submitted April 18, 1912.
    (Docket No. 120.)
    Decided May 3, 1912.
    Clyde Bowen was convicted of murder in the second degree.
    Reversed.

      William J. Branstrom, Prosecuting Attorney, for the people.

      Dunham & Phelps, for respondent.
   Stone, J.

The respondent is charged with the murder of his^wife on October 31, 1909, by cutting her throat. Under the plea of not guilty, the respondent sought to show that he was mentally irresponsible at the time he committed the act. The case was here in 1911. See 165 Mich. 231 (130 N. W. 706). We then held that it was not competent, under the statute, for the respondent in his own behalf to testify to conversations that occurred between himself and wife on the occasion of, and immediately preceding, the homicide, as well as on other occasions, when they were alone. Because of certain rulings in the admission of testimony the case was reversed and a new trial ordered. A second trial has been had, which resulted in a verdict of guilty of murder in the second degree, and the respondent has been sentenced to imprisonment for life in the State prison at Jackson. He has brought the case here on bill of exceptions and writ of error.

Upon the last trial of the case, the people produced and had sworn as witnesses William Duga, George Grow, R. D. Norwood, David Moot, and five other witnesses, all of whom testified to conversations between themselves and respondent or between other persons and respondent in their presence, after the arrest of respondent, concerning the taking of the life of his wife.

The questions involved arose upon the direct examination of respondent when called as a witness in his own behalf. His counsel sought to show by him all that was said by him to and in the presence of the various witnesses of the people relating to the taking of the life of his wife. We shall refer principally to what occurred in respondent’s examination relating to the testimony of William Duga. Duga was the turnkey of the county jail, to which place the respondent was taken on the night of November 3, 1909. His testimony related to the claimed conversation in his presence between a newspaper reporter and respondent at the said jail on the night referred to. Mr. Duga did not pretend to give fully and in detail just what was said by the respondent to the newspaper reporter, but testified that he gave all that he could remember of such conversation. This newspaper reporter made a statement at the time, purporting to be a statement of the respondent, and Duga swore that the conversation or interview lasted about half an hour. The respondent, when produced as a witness in his own behalf, testified that he heard the testimony of the witness Duga, and the following took place:

“Q. Now, was there anything else said there by you that Mr. Duga didn’t relate ?
“A. Yes, sir.
“Q. What?
“A. You want me to tell what I said to the reporter ?
“Q. Yes; while Mr. Duga was there.
“A. Well, Mr. Duga and the reporter came up there, came to my cell, and the reporter said to me—
“Q. I don’t care about you going all through what the reporter said to you. If there was anything that took place in that conversation farther than Mr. Duga gave it, you may state it. What, if anything, did you say to the reporter more than Mr. Duga testified to ?
“A. You want me to tell what I said to them there?
“The Court: He wants you to tell what you said that Mr. Duga didn’t repeat.
“A. They asked me if I wanted to make this confession, that it wasn’t right in the papers, and they said some things were not right in there, and I said they were not, and I went on and told them about it, and told them about going up to church on this here Sunday. Before that I told them the places where I had been; told them about going up to church on this Sunday, and about coming back, my wife getting up and going out into the — well, the classroom, Sunday school room. I got up and went out from there, started for home. We stopped at Charles Hefferan’s. After we left Charles Hefferan’s, we got down to the corner, and I said, I guess I will go home ’—
“The Court {interrupting:) Leave out what you said between you and your wife.
“A. I was telling this to Mr. Duga and the reporter.
“ The Court: Leave out what you and your wife said; don’t repeat any of that between each other when you were there alone.
Q. Are you stating now what you told to the reporter ?
“A. I am stating now what I told to the reporter.
“Mr. Dunham: It don’t make any difference whether your wife told it to you or you told it to your wife. I want you to tell all the conversation.
The Court: No; any conversation between him and his wife when they were alone, although it may have been repeated to a reporter, I will not allow.
“Mr. Dunham: I will take an exception to that ruling. I submit, if you will just reflect a moment, that they cannot put in a part of a conversation and then say that we cannot have it all. It would be error. They cannot attempt to put in things that he said and then stop.
The Court: The Supreme Court has said square toed that all conversations between this respondent and his wife, where they were alone, is incompetent.”

A lengthy colloquy occurred between court and counsel, which it is unnecessary to repeat. It is sufficient to say that the learned circuit judge distinctly ruled that it was not competent or proper for the respondent to testify to anything which he said to the reporter in the presence of Duga, relating to any conversation between himself and his wife when they were alone immediately preceding the homicide. And he ruled that, because such communications were privileged, the respondent could not testify to what he had said to the reporter upon that subject, that it was an indirect way of getting before the jury privileged communications, to which ruling respondent’s counsel excepted. After much debate upon the subject between court and counsel, the court finally ordered that the entire testimony of William Duga relating to any conversation or interview with the roporter in his presence in the jail should be stricken from the record, and the same was so stricken, to which counsel for respondent excepted. The record does not disclose that these same questions were asked of the respondent relating to the testimony of the other witnesses named; but in the bill of exceptions it does distinctly appear that respondent’s counsel stated to. the court that certain of the other witnesses had testified upon the same subject, .and the testimony of the other witnesses was allowed to stand.

It will not be necessary to notice all the assignments of error. The questions discussed are sufficiently raised in the following:

(1) The court erred in refusing to let the respondent testify to the entire conversations between himself and the witnesses William Duga, George Grow, David Moot, and others, after said witnesses had given what each of them claimed to be the conversation between himself and respondent concerning the taking of the life of respondent’s wife by him.

(8) The court erred in ruling and deciding that the respondent could only testify to such statements as he made to the various witnesses on the part of the people, that did not include anything he said to them about what occurred between himself and his wife when they were alone, notwithstanding such talk was a part of the conversations between respondent and said witnesses, and concerning which conversations the said witnesses above named testified on the part of the people.

(7) The court erred in striking out upon its own motion the entire testimony of William Duga in the case.

The assignments of error raise two questions:

(1) Did the court err in refusing to allow the respondent to testify to the entire conversations between himself and the reporter and the witnesses William Duga, George Grow, and others.

(2) Did the court err in striking out the entire testimony of William Duga upon its own motion ?

It is the claim of the respondent, and about this there seems to be no question from this record, that the testimony of the witnesses named was introduced on the part of the people as tending to show respondent’s guilt from his own utterances or confessions, and that it is the rule that, where this kind of testimony is introduced, it was proper to place before the jury the entire utterances of the respondent on those occasions as a whole. It is an elementary rule in the trial of criminal cases that, where a confession is introduced by the people, the accused has the right to require that the whole of the conversation containing it shall go to the jury, although, if the witness does not recollect all of the conversation, he may state what he does recollect, and its weight and sufficiency is for the jury. Where the prosecution puts in evidence a confession which is part of a conversation, the accused is entitled to prove as part of his defense the entire conversation. In 3 Wigmore on Evidence, at section 2113, the following language is used :

“For the reasons already sufficiently examined (ante, § 2094), the opponent, against whom a part of an utterance has been put in, may, in his turn, complement it by putting in the remainder, in order to secure for the tribunal a complete understanding of the total tenor and effect of the utterance. It has been seen, in the foregoing sections, that there is much opportunity for. difference of opinion whether the proponent in the first instance must put in the whole. But there is and could be no difference of opinion as to the opponent’s right, if a part only has been put in, himself to put in the remainder. Indeed, it is the very fact of this opportunity and right which (as already seen) has frequent bearing upon the question whether it is worth while to require it from the proponent in the first instance.
“ This right of the opponent is universally conceded, for every kind of utterance without distinction; and the only question can be as to the scope and limits of the right. The ensuing controversies are in effect concerned merely with drawing the line so that the opponent shall not, under cloak of this conceded right, put in utterances which do not come within its principle and would be otherwise irrelevant and inadmissible. In a definition of the limits of this right, there may be noted three general corollaries of the principle on which the rights rest, namely: (a) No utterance irrelevant to the issue is receivable, (b) No more of the remainder of the utterance than concerns the same subject, and is explanatory of the first part, is receivable. (c) The remainder thus received merely aids in the construction of the utterances as a whole, and is not in itself testimony.”

The author then proceeds at considerable length to quote authorities under the above subheads.

The trial judge seemed to be of the opinion that to permit the respondent to testify to statements made to the reporter, which embraced his conversation with his wife, would be to get before the jury evidence of the fact of such privileged communications. Wigmore distinctly covers this ground in the language which we have quoted above under the subhead “c,” and distinctly , states that an utterance, regarded as an assertion of the facts contained in it, is merely a hearsay statement, and as such has no standing. It should be considered by the tribunal merely in order to piece out and interpret the first fragment, and ascertain whether as a whole the sense of the first becomes modified. What the respondent might have testified to relating to his conversation with the reporter would be no evidence of any conversation which he had with his wife when they were alone, but would be used in connection with the testimony' of the people, and it would be for the jury to say, under proper instructions, whether the testimony of the respondent upon the same subject in any way qualified or modified the testimony of the people’s witnesses. If it related to the same subject-matter as testified to by the people’s witnesses, it would be relevant, and could not be said to be irrelevant merely because it would have been incompetent for him to have testified to conversations had with his wife when they were alone, on the ground that the same constituted a privileged communication. This view is supported by an abundance of authorities cited by Wigmore and other test-writers. 2 Chamberlayne on Modern Law of Evidence, § 1297. The rule has been well stated in this language :

“ The statements or declarations of the accused in his own favor which are independent of the res gestos of the crime, and which are simply narrative in their character, are not relevant as part of his defense. An exception, however, is made where the prosecution introduces in evidence declarations of the accused which tend to incriminate him. The accused may then introduce that portion ' of the conversation of which those declarations form a part, which relates or is connected with what the accused said in the first instance, though it may be partly or wholly in his favor.”

And, where admissions of the accused are offered, he has a right to have the whole conversation admitted, whether the same consists of self-serving statements or not; the test being whether they form a part of the conversation proved by the people. See cases cited in 12 Cyc. p. 462. Commonwealth v. Trefethen, 157 Mass. 180 (31 N. E. 961, 24 L. R. A. 235). The headnote upon this subject reads as follows :

“If a defendant is charged with crime, and unequivocally denies it, and this is the whole conversation, it cannot be introduced in evidence against him as an admission. If any part of a conversation with the defendant put in evidence tends to show, directly or indirectly, that he is guilty of the crime charged, the defendant has the right to have put in evidence all that was said to and by him at the same time, and relating to the same subject, although it is in his favor.”

See, also, Commonwealth v. Keyes, 11 Gray (Mass.), 323; Paulson v. State, 118 Wis. 89 (94 N. W. 771); State v. Napier, 65 Mo. 462; State v. Patterson, 63 N. C. 520; McAdory v. State, 62 Ala. 154; People v. Murphy, 39 Cal. 52; Hanrahan v. People, 91 Ill. 142; People v. Strong, 30 Cal. 151; People v. Farrell, 31 Cal. 576; Walker v. State, 28 Ga. 254; Bennett v. People, 96 Ill. 602; Parke v. State, 48 Ala. 266; Frazier v. State, 42 Ark. 70; People v. Yeaton, 75 Cal. 415 (17 Pac. 544); Johnson v. Powers, 40 Vt. 611. Of course, parts of the conversation having no reference whatever to the issue upon trial are not admissible under the rule that a party is entitled to the entire conversation. The rule means only that he is entitled to the entire conversation bearing upon the subject in controversy. This is well illustrated in Atherton v. Defreeze, 129 Mich. 364 (88 N W. 886). We are persuaded that the exclusion of the evidence relating to the entire of this conversation was prejudicial error, resulting in withholding from the jury the entire statement made to the reporter upon the subject-matter in question.

In our opinion, this error was not cured by striking out the testimony of the witness Duga. It left standing the testimony of other witnesses. In fact, we think it would be a dangerous rule to permit the striking out of relevant testimony of one of the people’s witnesses under the circumstances shown in this record. Under the well-settled rules of evidence, we feel compelled to reverse the judgment and sentence of the court below, and to order a new trial. The respondent should be remanded to the sheriff of Newaygo county, to be dealt with as the law directs.

Moore, C. J., and Steers, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did not sit.


source: Caselaw Access Project

license: Public Domain

text:
    PEOPLE v. CARUSO.
    1. Criminal Law — Trial—Challenges.
    Joint respondents tried together on a criminal charge are each, entitled to five peremptory challenges, as if they were tried separately. 3 Comp. Laws, § 10238.
    2. Same — Statutes—Waiver.
    The election of respondents to be tried jointly instead of separately, under 3 Comp. Laws, § 11956, does not waive their right to challenge five talesmen each.

      Error to St. Clair; Tappan, J.
    Submitted April 18, 1912.
    (Docket No. 131.)
    Decided May 3, 1912.
    -Luigi Caruso and Ignatio De Martino were convicted of larceny.
    Reversed.

      Thomas H. George, Prosecuting Attorney, for the people.

      Navin, Sheahan & Kennary, for respondents.
   Stone, J.

The respondents were jointly charged with the larceny of three horses, in violation of the provisions of section 11595, 3 Comp. Laws. The respondents were tried together, and were represented by the same counsel. After five jurors had been peremptorily challenged by respondents’ counsel and excused by the court, respondents’ counsel peremptorily challenged William Hyde, one of the twelve jurors then sitting. The court overruled this sixth peremptory challenge, respondents’ counsel duly excepted, and Juror Hyde sat as one of the twelve jurors who tried the case.

The record upon the subject of the said peremptory challenge is very brief. After respondents’ counsel had exercised five peremptory challenges, and the panel was again filled, the following occurred:

Prosecuting Attorney: This jury is satisfactory.
Mr. Kennary: I will excuse Mr. Hyde.
The Court: Not peremptorily. You have had your five.
“Mr. Kennary: An exception to the court’s ruling.
The Court: Swear the jury.”

After the jury had rendered their verdict of guilty as charged,” respondents’ counsel moved to set aside the verdict and to grant a new trial, on the ground of the refusal of the court to allow and sustain the sixth peremptory challenge; it appearing that the juror so peremptorily challenged sat in the trial of the case. This motion was denied, the court filing its reasons for such denial, to which counsel for respondents duly excepted, and the court later sentenced the respondents to the Marquette prison.

The respondents have brought the case here on writ of error, and the sole question raised by the assignments of ■error and presented is whether the trial court erred in overruling said sixth peremptory challenge. In giving his reasons for denying the motion for a new trial, the •circuit judge said:

“In the ease at bar, Mr. Kennary, and he alone, spoke •for both respondents during the selection of the jury, and throughout the entire trial. During the selection of the jury, and in announcing each of the five peremptory challenges above specified, he gave no intimation to the court, directly or indirectly, that he did not intend each peremptory challenge for both defendants. He gave the court no intimation or information that he challenged the five jurors in part for Caruso and in part for De Martino. At the time of the making of the sixth challenge to the juror, Mr. Hyde, Mr. Kennary made no claim, and gave no intimation that the sixth peremptory challenge was made, or that any additional peremptory challenges were claimed because of the fact that respondents were being tried jointly. At no time during the trial did either respondent request to be tried separately, either personally or through their attorney. * * ■ * By virtue of this statute, it was optional with each defendant and with him alone whether or not he be tried by a separate jury. By exercising this option the two defendants would have been tried by two juries, 24 jurors. By remaining silent they have elected to be tried by a single jury, 12 jurors. It is a grave question, undetermined in this State, if a waiver of the right to be tried by a separate jury in case of felony does not operate as a waiver of the right to five additional peremptory challenges that accompany such separate trial.’

The claim of the respondents is based upon the ground that each of the respondents was entitled to five peremptory challenges. The statute granting the right to peremptory challenges is as follows (section 10238, 3 Comp. Laws):

“ In all civil cases each party may challenge peremptorily four jurors, and in all prosecutions in the name of the people of this State, not otherwise especially provided, for, the attorney appearing for the people may challenge four jurors peremptorily, and the defendant may challenge five persons peremptorily.

By section 11956, it is also provided as follows:

“When two or more defendants shall be jointly indicted for any felony, any one defendant requiring it shall be tried separately; and in other cases, defendants jointly indicted shall be tried separately or jointly, in the discretion of the court.”

It is the claim of counsel for respondents that the question here involved has been settled by this court in the cases of Stroh v. Hinchman, 37 Mich. 490, and People v. Welmer, 110 Mich. 248 (68 N. W. 141). The case of Stroh v. Hinchman, supra, was a civil case against two defendants, who pleaded separately by different counsel, and it was held that each defendant was entitled to the two peremptory challenges then allowed by statute. Chief Justice Cooley, in the opinion, quoted with approval the following language from the case of Sodousky v. McGee, 4 J. J. Marsh. (Ky.) 267:

“ In criminal cases, if several persons be tried on ajointindictment by the same jury, each has a separate and independent right to his challenges, whether peremptory or for cause; because, although the trial is joint in form, it is in substance and effect several. The verdict must be several. Each must be punished according to his own guilt, and not according to that of another; and the punishment' is individual and several, not joint. There can be no contribution, no substitution. Hence, to avoid the inconveniences which would result from separate challenges in the same trial, it is the practice of courts of criminal jurisdiction to order separate trials, unless the parties jointly indicted will waive their right to separate challenges.”

The People v. Welmer, supra, was a criminal case in which two respondents were jointly charged with the violation of the local-option law, a misdemeanor. The doctrine of that case is that, where two persons jointly charged with a misdemeanor are tried together, each is entitled to the same number of peremptory challenges he would have had if separately tried. In that case reference is made to Stroh v. Hinchman, supra.

It is the claim of counsel for the people that the doctrine of People v. Welmer, supra, does not apply in the instant case, because there the parties could not have had separate trials, except by order of the court, under the provisions of the statute; whereas, here the respondents could have had separate trials had either of them required or demanded it, and that, by waiving the right to separate trials, they have waived their right to separate and distinct challenges. We think that the position here taken by counsel for the people raises the vital question in the case. Either of the respondents could have required a separate trial. Neither of them having done so, have they both waived their right to separate challenges ? We may take notice that in actual practice a joint respondent frequently prefers a joint trial, believing that his chances of acquittal will be greater than in a separate trial. Respondents are frequently antagonistic to each other. Does the failure of one of two respondents to require a separate trial operate as a waiver of both to the right of separate challenges ? Really the verdict must be several. Each must stand upon the merits of his own case. There is much force in the language of the quotation from Sodousky v. McGee, supra:

“Hence, to avoid the inconveniences which would result from separate challenges in the same trial, it is the practice of courts of criminal jurisdiction to order separate trials, unless the parties jointly indicted will waive their right to separate challenges.”

There is no claim in this case that either of the respondents expressly waived his right to separate peremptory challenges. It is claimed that there was an implied waiver only. We are of the opinion that such waiver cannot be implied from the mere fact that one of them failed to require a separate trial. In 17 Am. & Eng. Enc. Law (2d Ed.), at page 1182, the following language is used:

“Unless the statute expressly or impliedly provides the contrary, a defendant who is tried jointly with others is entitled to the same number of peremptory challenges as if he were tried alone; and such has been the construction of statutes giving a certain number of challenges to ‘every person ’ indicted, providing that the State and the defendant shall each be entitled to challenge a certain number, or authorizing the ‘defendant’ to challenge a certain number.”

Many cases are cited in support of the text. In State v. Stoughton, 51 Vt. 362, which was an indictment for burglary against four respondents, it was held that every respondent, whether indicted and tried alone or with others, is entitled to the statutory number of peremptory challenges; and, if indicted with others, he waives not that right by consenting to be tried with them. In State v. Durein, 29 Kan. 688, there is a learned opinion by Justice Brewer, afterwards an associate justice of the Supreme Court of the United States, to the same effect. It is there held that it is essential that the right of challenge be regarded and enforced as the personal right of each individual defendant, and many cases are cited. Counsel for the people have called our attention to the following cases: State v. Reed, 47 N. H. 466; People v. McCalla, 8 Cal. 301. In the case last cited the matter of challenges is regulated by a statute, which provides as follows:

“Where several defendants are tried together, they are not allowed to sever their challenges, but must join therein.” C. L. p. 464, § 327.

And it was held that this statute applied as well to peremptory challenges as to challenges for cause. In our opinion the great weight of authority, both English and American, is to the effect that in criminal cases each defendant is entitled to his separate peremptory challenges, and, in the absence of any express waiver, that right is in no way abridged or affected by a joint trial. An examination of the printed record in People v. Welmer, supra, discloses the fact that the same reasons given by the circuit judge in the instant case, limiting the joint respondents to five peremptory challenges, in denying the motion for a new trial, were urged in that case. We are of opinion that the doctrine of the Welmer Case is applicable to this case, and has been so understood by the profession generally.

We are constrained to reverse the conviction and judgment, and grant a new trial. The respondents will be remanded to St. Clair county, to be committed until, bailed.

Moore, C. J., and Steers, McAlvay, Brooke, Blair, and Ostrander, JJ., concurred. Bird, J., did. not sit.


author: Ostrander, J.

text:
    PEOPLE v. OSBORN.
    1. Elections — Domicile — Intention — Colleges and Universities.
    While a student at a college will not be deemed to have lost or acquired a residence during his attendance there, under' Const, art. 3, sec. 2, a person having no other domicile may, in good faith, become a resident of the city in which such college is situated, entering the institution as a citizen thereof.
    2. Same — Criminal Law — Illegal Voting — Residence.
    Criminal intent is a necessary element of the offense defined by § 11439, 3 Comp. Laws, prohibiting voting in a ward of which the voter is not a resident; good faith being a defense-to such prosecution.

      Exceptions before sentence from Calhoun; North, J.
    Submitted April 18, 1912.
    (Docket No. 123.)
    Decided May 3, 1912.
    George Osborn was convicted of illegal voting.
    Reversed.

      Robert H. Kirschman, Prosecuting Attorney, and Edward R. Loud, Assistant Prosecuting Attorney, for the people.

      Weeks & Cooper, for respondent.
    Respondent is unmarried, 27 years of age, and, born in Canada, is a naturalized citizen of the United States. His father, an itinerant Methodist clergyman, is not a citizen of the United States, though living in Michigan. From Canada respondent came to Whittamore, Mich., but just before going to Albion, Mich., in September, 1905, he was teaching school in the township of Burley, Iosco county, Mich., where he was registered as an elector and voted. He has not lived with his parents for 12 years and has supported himself since he was 15 years of age. When he left Iosco county, he did so without expecting ever to return, and his name was stricken from the registration book. At Albion he registered at the college as a resident of the city. He has lived there continuously, in the third ward, where he is registered as an elector and where he voted for five years. His permanent address since September, 1905, has been Albion, Mich., and during that time he has earned his living in and about the city. He has no definite plans for the future. At the spring election in the year 1911, respondent’s vote was challenged, but was received by the inspectors, whereupon he was arrested, and, in an information filed in the circuit court for the county of Calhoun, is charged with having voted illegally. The material facts are not in dispute. Respondent testified, at the trial, that his primary purpose in going to Albion was to attend college; that he had been for six years fitting himself for the ministry, and went to Albion because he could there obtain an education and because there were offered there inducements to work his way through college. He said:
    “If after graduating I should receive a call to go to some other place, I expect I would go. I may receive a call to preach in a church in Calhoun county but not in Albion. I don’t expect to in Albion.”
    He was asked by the court the following question:
    “Is there anything now, or has there been anything during the past two years, that has caused you to remain there except the fact that you are taking the course of instructions provided by Albion college ?”
    To which he replied:
    “There is. In the first place, the ecclesiastical history of the college, and, in the second place, the opportunity we get in supplying pulpits around the immediate vicinity and attending college also, and also the work we get during vacations in the city at various employments as the employment bureau suggests and discovers for us.
    “Q. Those things which you have just enumerated are the only things that have caused you for the past year or so and are now causing you to continue your residence there in Albion. Is that true ?

      “A. Yes, the school advantages plus the opportunities of earning my way through.”
    Respondent’s motion for a directed verdict was denied, and the court advised the jury that, upon the undisputed evidence, respondent could not have acquired a residence in Albion. Pro forma he submitted the question of respondent’s guilt to the jury, which returned the following verdict:
    “Under the direction of the court only, we return a verdict of guilty.”
    The cause is here on exceptions before sentence.
   Ostrander, J.

(after stating the facts). In the Constitution of 1850, section 5 of article 7 reads as follows:

“No elector shall be deemed to have gained or lost a residence by reason of his being employed in the service of the United States or of this State; nor while engaged in the navigation of the waters of this State or of the United States; or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse or other asylum at public expense; nor while confined in any public prison, except that honorably discharged soldiers, sailors and marines who have served in the military or naval forces of the United States or of this State, and who reside in soldiers’homes established by the State, may acquire a residence where such home is located.”

Construing this provision, it was said, in Wolcott v. Holcomb, 97 Mich. 361, 367 (56 N. W. 837, 839 [23 L. R. A. 215]):

“We are of the opinion that the terms ‘by reason of’ and ‘ while ’ were understood by the framers of the Constitution to have a different meaning. In the former case the intention would very largely, if not entirely, govern the question of domicile, while in the latter it would not. It was clearly the intention of the former provision to give the citizen the right, if he chose, to carry his residence with him to the place where he was employed in the service of the United States or of the State, and in the latter case it seems equally clear that it was the intention not to give that right.”

It was also said, by way of illustration and argument:

“Furthermore, students in all institutions of learning, although they are in attendance there for the sole purpose of obtaining an education, might, at their own will, become electors in the places where such institutions are located. We think the Constitution prohibits a change of residence under such circumstances, and that, when one’s presence in any of the institutions named is due to the sole purpose of receiving the benefits conferred, his former residence must be considered his domicile for citizenship.”

While this decision was rendered by a divided court, it was followed, without dissent, in People, ex rel. Saunders, v. Hanna, 98 Mich. 515 (57 N. W. 738). In the Constitution of 1909 the same provision appears as section 2 of article 3. The punctuation is not the same as that employed in the earlier Constitution, and there is some slight change in the words used. There is nothing upon which a change of meaning maybe reasonably predicated. It will be assumed, therefore, that the convention which framed the last Constitution included therein the provision in question with the meaning given to it in the decisions which have been referred to. That portion of the opinion of the court in Wolcott v. Holcomb to which we have alluded was not, as respondent intimates, mere dictum. The right of a student attending an institution of learning was not involved in that case, but the right of one placed by the Constitution in the same class with such a student, in respect to a change of domicile, was involved. We think the history of the constitutional provision requires the decision to be followed in like cases. Is the case before us a like case ?

It is said in the majority opinion delivered in Wolcott v. Holcomb, that no question of disfranchisement was involved, and in the portion of the opinion above quoted the language implies a limitation of application of the rule announced to such persons as attend institutions of learning “for the sole purpose” of receiving the benefits conferred. It is clear, too, from the facts stated in the opinions, that the inmate of the Soldiers’ Home whose rights were considered was, at the time he applied for admission to the Home, a resident of Woodstock township, Lenawee county. He presented the certificate of the supervisor of the township that he was then an actual resident of the township. The inmate later declared that—

“ He always intended, and in fact made, the township of Grand Rapids, and that part of it in which said Soldiers’ Home is located, his home, subsequent to his entry therein.”

The respondent in the case at bar appears to have had no residence, in fact or by intention, when he went to Albion. If we eliminate from the circumstances to be considered the fact of his presence at the college, the inference may still be drawn that he adopted in fact and by intention a residence in Albion before entering college, having at the time, and intending to have, no other residence. I apprehend that if a young man of full age was sent to college by his father, never having acquired a residence apart from that of his father, and if his father and family should, in good faith for the purpose of establishing their family domicile there, take up a residence in the college town while he was a student there, he would thereby gain a residence as an elector. In such a case he would gain a residence “ while a student at an institution of learning;” but the fact that he was a student would he a circumstance of no importance in determining residence. So if the family of such a young man should remove from one place to another in the State, I apprehend that he might register and vote as an elector in the community in which his father lived. In such a case, he would both lose and gain a residence “ while a student at an institution of learning.” A construction of-the Constitution which would deny him the right to reside where hís father resided, and the right to gain a residence elsewhere, “ while a student,” would involve disfranchisement. The law will not permit students at institutions of learning, by any declaration of intention, to become electors in the communities in which such institutions are situated. But if respondent, having no domicile, in good faith made a domicile at Albion, entering college as a resident citizen of Albion, he was entitled to vote there. Whether he did so is a question of fact.

It is charged in the information that respondent—

Not being then and there a resident of the third ward of the said city of Albion, did * * * wilfully vote at the said third ward voting place in the said city of Albion at the election held in the said ward and city.”

I assume that the prosecution is under and by virtue of 3 Comp. Laws, § 11439, which provides a punishment for . the voting by a qualified elector in any township or ward in which he does not reside. It does not appear that the attention of the court was directed tó a question stated rather than argued in the brief for respondent, viz., that a criminal intent must be found to violate the law. The court was requested to instruct that a verdict of not guilty must be returned. The jury was instructed that respondent was presumed to be innocent and that the people must establish guilt beyond a reasonable doubt. The question of respondent’s good faith in voting was not mentioned in the charge. Counsel for neither party refer to authority upon the subject. The statute in respect to a qualified elector voting at a place not his residence does not use the words “wilfully” or “intentionally,” or any other word qualifying the act. In terms, the act of voting in a place where the elector does not reside is made a misdemeanor. In the same connection, it is declared to be a misdemeanor if an elector gives in two or more votes folded together, or votes, or offers to vote, more than once at the same election, in the same or different voting places. As a rule, there can be no crime without criminal intent; this is not a rule without exceptions. People v. Roby, 52 Mich. 577 (18 N. W. 865, 50 Am. Rep. 270); People v. Rice, 161 Mich. 657, 664 (126 N. W. 981), and cases cited in opinion. There appears to be no reason for saying that criminal intent is not a necessary element of the offense with which respondent is charged, and upon a new trial the jury should be so instructed.

It will be certified to the circuit court for the county of Calhoun that the exception to the charge delivered is sustained, and that the verdict should be set aside and a new trial ordered.

Moore, C. J., and Steere, Mo Alva y, Brooke, Blair, and Stone, JJ., concurred. Bird, J., did not sit.


text:
    PEOPLE v. SCHNEIDER.
    I. Intoxicating Liquors — Statutes — Saloons—Churches—Distances.
    Under Act No. 291, Pub. Acts 1909, § 37, a liquor dealer who opens a saloon within 400 feet along a street line from a church violates the law, whether or not he secures the consent of all property owners within 300 feet of the proposed bar.
    '2. Same — Local Option — Words and Phrases.
    The exception provided for by the terms of the aforesaid act, excluding from its operation existing saloons as of the date the act took effect, may not be construed so as to except a site occupied by a soft drink establishment of the same proprietor, who subsequently began to vend intoxicants upon the repeal of local prohibition.
    3. Same — Street Line — Construction of Local-Option Act.
    The street line, dividing private property from the public way, is to be used as a base line from the front of the several premises to lay off such 400 feet, not including the distance from the street line to the doors of either property
    Exceptions before sentence from Jackson; Parkinson, J.
    Submitted April 18, 1912.
    (Docket No. 133.)
    Decided May 3, 1912.
    Ludwig Schneider was convicted of violating the local-option statute.
    Affirmed.

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

      Albert O. Beece, for respondent.
    The information filed against respondent charges him with offending the provisions of section 37 of Act No. 291 of the Public Acts of 1909, in that he has attempted to open up and establish a new saloon and bar having its front entrance within 400 feet along the street line from the front entrance of a church. It is alleged, also, that he had not obtained consent to do so of all property own • ers within 300 feet of said saloon. The court advised the jury that the testimony was not in dispute, and that if they believed that respondent was taking steps to be a licensed saloon keeper and to open up business at 155 Pearl street, in the city of Jackson, and found the measurements submitted correct, respondent was “guilty, under the statute, of attempting to open a soloon within 400 feet of the First Congregational Church ” in that city. A verdict of guilty was returned. The cause is here on exceptions before sentence. It is admitted that respondent had obtained a State and city license to sell liquors as a retail dealer, and had paid his tax, and was doing business at 155 Pearl street, in the city of Jackson. The section of the statute referred to reads as follows:
    “No license shall be issued to any one to open up and establish a new bar or saloon having its front entrance within four hundred feet along the street line from the front entrance of a church or public schoolhouse or in any residence district, unless the consent of all the property owners within three hundred feet of said proposed bar or saloon be obtained, and after this act takes effect an attempt to open up and establish a new bar or saloon having its front entrance within four h ndred feet along the street line from the front entrance of a church or public schoolhouse or in any residence district shall be a violation of this act, and the person or persons so doing, upon conviction thereof, shall be subject to-the penalties prescribed in section seven of this act: Provided, that none of the provisions of this section shall apply to any bar or saloon established and existing at the time this act takes effect.”
    Pearl street, in the city of Jackson, extends east and west, intersecting Jackson street, which last-mentioned street extends south from Pearl to West Main street. Respondent’s place of business is on the south side of Pearl, east of Jackson. The Congregational church stands on a parcel of land which is hounded on the north by Pearl, on the east by Jackson, and on the south by West Main; the church being in the northeast corner of the parcel, facing south, and having its front entrance upon the south side. Directly in front of the church, and between it and West Main street, the land is laid out as a park, some' 8 rods square, through which persons may approach the front door. There is also a walk or approach to the front door 41 feet 6 inches long, leading from Jackson street. From the front entrance to the church east to a point in the center of J ackson street is 91 feet. From the point so reached, it is 169 feet north to the center of Pearl street; and from there to a point in the center of the street opposite to the door of respondent’s saloon is 170-J- feet. From the center of Pearl street to the entrance to the saloon is 37 feet. From a point in the center of Jackson street directly east from the front entrance to the church to a point in the center of Pearl street is 169 feet; and from there to a. point in the center of Pearl street opposite the entrance to the saloon is 170£ feet. From the door of the saloon to the door of the church, by street line measurements, is 40l£ feet. On the other hand, it is 624£ feet from a point in the center of Main street directly opposite the front entrance to the church to a point opposite the door of the saloon; the distance being measured on the center line of each street. But if one passed on the street line from a point in front of the saloon door, crossing Jackson street to its west line, thence south to a point due east from the front door of the church, the distance traveled would be substantially 356 feet.
    Respondent conducted a saloon at 155 Pearl street before and up to the time (May 1, 1909) when local option, so called, became effective in Jackson county. He maintained the place, selling non-intoxicants, etc., until May 1, 1911, when he was again licensed to keep a saloon at the same place. Decision of the questions raised by the assignments of error depends upon the construction of the statute.
   Ostrander, J.

(after stating the facts). The statute, some provisions of which are the foundation of the present suit, is so constructed, of such language, arranged in such a way, that the courts have experienced great difficulty in giving it effect. We have reviewed the legislation with. care, and, so far as the meaning is important here, and is regarded by counsel as debatable, have concluded:

First, that the consent of all property owners within 300 feet of a proposed new saloon or bar will not excuse the establishment of such a saloon or bar within 400 feet of the front door of a church or a schoolhouse.

Second, that, although it is provided that none of the provisions of the section in question shall apply to any bar or saloon established or existing at the time the act took effect, which was September 1, 1909, for the purposes and within the meaning, of the law, a saloon or bar is a new one, if opened, after a period of prohibition in a county, during a subsequent period of license at a place occupied as a saloon when the law went into effect. Within the meaning of the law, there were no saloons existing in Jackson county, unless unlawfully, from May 1, 1909, to May 1, 1911.

Third, in determining the distance along the street line, from the front entrance of a church to the front door of a saloon, the street line — the dividing line between private property and the highway, as recognized by building and by public travel — is the line to be measured, from a point in such street line nearest to the front entrance of the saloon to a point in such line nearest to the front entrance of the church; the distance from such street line to the door of either structure or place is not to be measured.

In making these rulings, we feel that we have not read into the act by construction language necessary to complete it and give it force, but have given to the language of the particular section, when read with other parts of the statute, and considered with reference to the general purpose of the law, a reasonable meaning.

Respondent’s exceptions are overruled; and the court is advised to proceed to judgment.

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


author: Moore, C. J.

text:
    PEOPLE v. WRIGHT.
    1. Trial — Jury—Credibility of Witnesses — Voir Dire Examination — Criminal Law.
    In a prosecution for larceny, no error was committed by the trial court, on the examination of the jurors by respondent’s counsel, in excluding questions as to any opinions the jurors may have formed concerning the credibility of the complaining witness from testimony which he gave in a previous trial, when the record contained only part of such examination, and did not show what examination was actually permitted.
    2. Same — Criminal Law — Challenges.
    Respondent, not having exhausted his peremptory challenges, was not prejudiced by the fact that four jurors, who sat in the trial, had been jurors in a previous prosecution against a woman charged with keeping a house of ill-fame, wherein the complaining witness, and other proposed witnesses against respondent, had given evidence.
    Error to the superior court of Grand Rapids; Stuart, J.
    Submitted April 18, 1912.
    (Docket No. 134.)
    Decided May 3, 1912.
    John Wright was convicted of larceny.
    Affirmed.

      Earl ff. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney, for the people.

      James J. Noon, for respondent.
   Moore, C. J.

The respondent was convicted of the larceny of the money of James Howard. The record shows, among other things, as follows:

“Alice Stearns was tried in the superior court of Grand Rapids under an information charging her with keeping a house of ill-fame, and on the 28th day of January, 1911, was found guilty and later sentenced to the Detroit House of Correction. Among other names indorsed on the information in the case of Alice Stearns were the following: James Howard, Peter Vergiver, Alex. McDonald, and Benjamin Havens, who were all sworn as witnesses upon the said trial of Alice Stearns.^ All of said witnesses, viz., James Howard, Peter Vergiver, Alex. McDonald, and Benjamin Havens, were also witnesses in the case of People v. John Wright, defendant and appellant. Among the jurors who sat in the case of People v. Alice Stearns and rendered a verdict of guilty were the following: H. J. Menall, Charles Alt, Roelf Meyering, and W. E. Northrop. These jurors named also sat as jurors in the case of People v. John Wright, defendant and appellant, which said trial of John Wright, defendant and appellant, immediately followed the trial of Alice Stearns. * * * Before the jury was sworn, defendant, by his counsel, for the purpose of testing the competency of the jurors who had been sworn to true answers make to such questions as were put to them as to their competency to sit as jurors, asked certain jurors certain questions, when the following occurred:
“Juror Northrop (examined by Mr. Allen): Have you any opinion as to whether that man (referring to complaining witness, James Howard), at the time this transaction started, on the question of whether this man was intoxicated or not?
“ Mr. Herman: I object to that as being an improper question to the juror.
The Court. Sustained.
Mr. Allen: An exception.
‘ ‘ Juror Meyering (examination by Mr. Allen, referring to Stearns case): You saw the witness, complaining witness — he is to be the complaining witness in this case ? You saw him on the stand, didn’t you ?
“A. I did.
“Q. Heard his testimony ?
“A. I did.
“Q. Prom the knowledge that you derived of that man upon the witness stand, have you any opinion as to his credibility ?
“The Court: Just a minute. That question will not be answered.
*' Mr. Allen: An exception.
Juror Alt (examination by Mr. Allen): You were a juror in the other case, weren’t you, in the Stearns case ?
“A. Yes, sir.
“Q. Have you at this time any bias or prejudice in your mind as to the credibility of the complaining witness, who was sworn in that case ?
“Mr. Herman: Same objection.
“The Court: Same ruling; objection is sustained.
“Mr. Allen: An exception.
“Juror Menall (examination by Mr. Allen) : You sat on the other jury, didn’t you ?
“A. Yes, sir.
“Q. You know this man Howard ?
“A. No, sir.
“Q. You heard his testimony in the Stearns case F
“A. Yes, sir.
“Q. Have you any opinion at this time on the question of whether the man who was the complaining witness in that case and who is the complaining witness in this case — have you any opinion, bias, or prejudice on the question of his credibility as a witness in this case ?
“Mr. Herman: I object to that.
“The Court: Sustained.
“Mr. Allen: An exception. I wish to challenge the juror Meyering for cause.
“The Court: It will be denied.
“Mr. Allen: An exception.
“A jury was impaneled and sworn as follows: M. E. Van Yranken, William Yogel, Edwin Mosher, James Lamore, H. Yonk, William R. Young, Louis Hoffer, M. T. Newton, W. E. Northrop, Roelf Meyering, Charles Alt, H. J. Menall.”

The above is all that the record contains upon the subject of the selection of the jury. It does not purport to contain all that occurred upon that subject, nor does it purport to contain all that occurred upon the trial. The contention of counsel is (we quote from the brief):

The first five assignments of error raise one issue for determination; that is, Did the court err in his refusal to permit answers by the said jurors upon their voir dire examination to the questions propounded to them ? The remaining assignment of error raises the other issue to be determined: Was it error in the court to permit the jurors Northrop, Meyering, Alt, and Menall to sit and serve as jurors upon the trial of John Wright F We claim the court erred in both instances.”

The primary object of the voir dire examination is to secure a fair and impartial jury. It involves the right to have the jurors sworn and examined as to their qualifications, and it is error for the court to deny the right. 24 Cyc. p. 337. Considerable latitude in practice should be indulged in. Id. p. 340, note 38.

Counsel rely especially upon People v. Peck, 139 Mich. 680 (103 N. W. 178). It will be observed that it cannot be learned just what examination was allowed by the trial judge. The questions.that were put by counsel and were excluded by the court were quite different from those passed upon by the authorities cited. In the case before us the questions put to the witness involve the attitude of the juror toward a single witness. In the case of People w. Peck, supra, the question related to what the juror would do after all the testimony was in, which we think distinguishes the cases. We are not able to say from the record that counsel were not permitted all the latitude in examining the jurors that was necessary to determine whether they were competent to render an impartial verdict upon the evidence in the case. We are content with the rule in People v. Peck, supra, but are not inclined to extend it. This disposes of the first five assignments of error.

We now come to the second question presented by counsel:

“Was it error in the court to permit the jurors, Northrop, Meyering, Alt, and Menall to serve as jurors upon the trial of John Wright ?”

The case against Alice Stearns was not connected in any way with the charge of larceny against the respondent. The fact that the people expected to call some of the same witnesses in the last-named case who had testified in the first-named case did not affect the question of the competency of a juror in the first case to sit in the second one. A proper examination of the juror would disclose whether he was competent to sit in the case or not. The juror might be competent to sit in both cases. There is nothing disclosed by the record to show any impropriety in allowing these jurors to sit, especially so when it is not shown that respondent had exhausted his peremptory challenges.

The judgment is affirmed.

Steere, McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


text:
    PEOPLE v. EKOLA.
    Criminal Law — Appeal and Error — Record.
    Upon a record which fails to show that respondent filed a motion for a new trial, or that the court was asked to give reasons for his decision thereon, and which omits the charge of the court, respondent may not review, on writ of error, the • weight of the evidence or alleged errors in charging the jury.
    Exceptions before sentence from Marquette; Elannigan, J.
    Submitted April 18, 1912.
    (Docket No. 124.)
    Decided May 3, 1912.
    Gust Ekola was convicted of being accessory to the indecent exposure of the person of a patron of respondent’s saloon.
    Affirmed.

      Frank A. Bell, Prosecuting Attorney, and M. J. Kennedy, Assistant Prosecuting Attorney, for the people.

      A. W. Jurma, for respondent.
   Moore, C. J.

The respondent was convicted of lewd . and lascivious behavior, and has brought the case here upon exceptions before sentence.

In his brief, counsel for respondent recite at considerable length the testimony for and against the respondent. He then proceeds to say that the court erred in refusing the respondent a new trial on the ground that the conviction was contrary to all the evidence in the case. The record nowhere shows the motion which was made for a new trial, nor does it show that the court was requested to file any reasons for overruling the motion if he did so, or that the judge filed any reasons for so doing. Counsel also quote a portion of the charge of the court and say:

“ It should have been explained by the judge what preponderance of evidence means.”

The record does not show the charge of the court, nor does it show whether the attention of the court was called to the present claim of counsel. This being the situation, we cannot say that any error was committed.

The action of the court below is affirmed, and the case remanded.

Steers,. McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit.


author: Brooke, J.

text:
    PEOPLE v. HARRISON.
    Criminal Law — New Trial — Affidavits.
    Respondent, convicted of manslaughter committed in company of two others, was rightly denied a new trial on a motion supported by his affidavit and that of his brother, who had been also convicted, setting up facts contradictory of the testimony given at the trial, and at variance with sworn testimony of both affiants.
    Error to Presque Isle; Emerick, J.
    Submitted April 18, 1912.
    (Docket No. 129.)
    Decided May 3, 1912.

      Thomas Harrison was convicted of manslaughter.
    Affirmed.

      George A. Morris, Prosecuting Attorney, for the people.

      Dafoe & Johnson, for appellant.
   Brooke, J.

The respondent, together with his brother, Omer Harrison, and George Heinhold, was jointly charged with the crime of murder. They were tried separately at the February, 1910, term of court. Omer Harrison was tried first and was convicted of manslaughter. Respondent, Thomas Harrison, was next tried, and likewise convicted of manslaughter. George Heinhold was then tried and acquitted. Neither respondent nor his brother went upon the stand in either trial, but upon the trial of respondent there was introduced by the people, without objection, the depositions of respondent and his brother taken at the inquest. These several depositions purported to give a true account of the affray so far as the facts were known to the affiants. No person, except the three charged with the commission of the crime, and their victim, had, or claimed to have, any knowledge of the facts. Respondent and each of his co-respondents gave a version of those facts under oath, which was presented to the trial court, and passed upon by the jury.

Peter Szapeszewski, the man who was killed, was questioned shortly before his death as to who had cut him up. He replied, “Omer Harrison, Tom Harrison, and another fellow ” whose name he did not know. In May, 1910, this respondent made a motion for a new trial, supporting said motion with three affidavits, one made by himself, one by his brother Omer, and one by one Anthony SMrski, who had been a witness at the trial. The affidavit of respondent, as to the material facts in the case, did not differ much from the testimony given by him at the inquest and read without- objection upon his trial. The new fact referred to in the affidavit of Skirski (who was not an eyewitness of the affray) could have no tendency to establish the innocence of respondent. At most, it could only emphasize the fact (already sworn to by respondent and his two associates) that Szapeszewski sought the quarrel which led to his death, and that he did it with deliberation.

The affidavit of Omer Harrison is of a different character. In his testimony at the inquest he said:

“ I did not see any one use a knife there that night. I djd not have any knife in my possession at that time.”

In his affidavit in support of his brother’s motion for a new trial he says:

“He [Peter Szapeszewski] struck me a blow on the shoulder with what he had in his hands, and again struck me, striking my arm on the elbow. Heinhold then ran in and grabbed hold of what Peter had struck me with, and struggled with him to get it away. My brother Tom then ran in and grabbed hold of Peter, and about the same instant Heinhold got the picaroon away from Peter, and struck Peter with it, and Peter and Tom went down on the ground; Tom being underneath Peter. About this time Heinhold hollered he was stabbed, and I jerked out my knife and jumped on Peter, and stabbed him with the knife until he hollered, ‘Enough.’ I said: ‘You have not got enough. I will give you enough.’ I then got off of Peter and Tom. Heinhold pulled Peter off of Tom, and hit Peter with the picaroon.”

The material facts as here set forth are utterly at variance with those testified to by Omer Harrison at the inquest. He is a perjurer, not only by inference, but by direct confession as well. If the statements contained in this affidavit are true, Heinhold should have been convicted if any one of the three was guilty, for the evidence tends to show that the wounds inflicted by means of the picaroon were much the more serious. He carefully refrained from disclosing what he now claims to be the truth so long as such disclosure could imperil himself or either of his companions.

Now that Heinhold is acquitted, and he himself convicted, largely upon Heinhold’s testimony, he revises his testimony in the hope that his brother, the respondent, may be benefited thereby. In disposing of the motion fora new trial, the learned circuit judge said:

“I place no reliance upon the statements of Omer Harrison and respondent in their affidavits upon which this motion is founded.”

There is neither objection nor exception in the entire record of the trial. The sole error assigned is that the court erred in denying respondent’s motion for a new trial.

It is urged by responaent that the affidavits in support of his motion show a series of uncontradicted facts which would establish his innocence. Every fact stated in either of the affidavits of the brothers Harrison was before the jury at the trial, or is contradicted by testimony in the case. Omer Harrison’s present story is contradicted, first, by himself, and, secondly, by the testimony of Heinhold, who was sworn by this respondent in his (respondent’s) own defense. It is further discredited by the ante-mortem statement of the deceased, who said that he was cut up by Omer Harrison, Tom Harrison, and another fellow. The fact that the testimony given at the trial was not again placed before the judge upon the hearing of the motion for a new trial is of no consequence. He himself had heard it, and knew in what respects it differed from that offered by the affidavits. There is no doubt that the circuit judge might, in the exercise of his discretion, have granted a new trial upon the claim of newly discovered evidence. The authorities pertinent to this question cited on behalf of respondent go no farther than to support this proposition. In the absence of abuse of that discretion, this court should not interfere.

We quite agree with the opinion of the learned circuit judge, and his order overruling the motion for a new trial stands affirmed.

Moore, C. J., and Steere, McAlvav, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did úot sit.


author: Bird, J.

text:
    ROBINSON v. De LUXE MOTOR CAR CO. OF NEW JERSEY.
    1. Corporations — Stockholders’ Suit —Equity Jurisdiction — Demand.
    Complainant was entitled to maintain a stockholders’ suit in equity against directors of a corporation, whom he charged in his bill with fraudulently and negligently administering the affairs of the company and wrongfully disposing of its property, and who were shown to be in control of the board of directors, and to be majority stockholders: the averments of the bill sufficiently oharged facts showing that a demand would be useless.
    2. Same — Adequate Remedy at Law.
    Though the bill charged personal grievances and fraud committed against complainant individually, it was not demurrable on the theory that he had an adequate remedy at law, where wrongs to the corporation were also averred.
    3. Same — Multieariousness—Pleading.
    Nor was the bill multifarious where its sole purpose was to reinvest the corporation with its property and assets, which had been unlawfully converted to the use of such officers and directors.
    4. Same — Appeal and Error.
    The objection that such bill is multifarious is not reviewable on appeal from an order overruling a demurrer thereto; since the demurrer was special.
    Appeal from Wayne; Hosmer, J.
    Submitted April 14, 1912.
    (Docket No. 52.)
    Decided May 4, 1912.
    Bill by Roswell R. Robinson against the De Luxe Motor Car Company of New Jersey and others for an accounting. From a decree overruling a demurrer to complainant’s bill, defendants appeal.
    Affirmed.

      Bowen, Douglas & Hainan, for appellants.

      Huggins, Huggins & Johnson and Angelí, Boynton, McMillan & Bodman, for appellee.
   Bird, J.

This is an appeal from an order of the Wayne circuit court, in chancery, overruling the demurrer of defendants.

The complainant filed his bill of complaint on his own behalf and all others who might wish to join, advising the court, in substance, that he is the owner of 250 shares in the defendant Be Luxe Motor Car Company of New Jersey, for which he paid $25,000, and that he was induced to purchase the same upon the representations of defendants Kaufman as to the assets, business, and prospects of the company, which representations proved to be untrue; that at the time of his purchase the New Jersey company was admitted to do business in Michigan, and was manufacturing motor cars in Detroit, where most of its property was located; that Nathan M. Kaufman was its president, and Daniel W. Kaufman was its general manager; that its capital stock was $1,000,000, nearly $900,000 of which was then subscribed; that Nathan M. Kaufman subscribed for $525,000 of said stock, and proposed to pay in part for the same by transferring to the New Jersey company the assets of the C. H. Blomstrom Motor Car Company, which was then owned by him, but that he never carried his proposal into effect.

It is charged that Nathan M. Kaufman never paid for his stock, and that he is still owing the company upwards of $500,000 on his subscription; that by the acquisition of said stock he has controlled the voting power of said company, and. that by the use of this power the defendants Kaufman were made directors; and that they have dominated and controlled the board of directors. It is further charged that the management of the company has been loose, extravagant, and ill-advised, and that, by reason of the failure of. Nathan M. Kaufman to pay his subscription, the company did not have sufficient working capital to carry on its business, and has been obliged to suspend the, manufacture of its motor cars; that in March, 1909, the defendants Kaufman organized the De Luxe Motor Car Company of Michigan, a Michigan corporation, and transferred to it the assets of the C. H. Blomstrom Motor Car Company except its real estate, and all the assets of the New Jersey company, and that these transfers were accomplished by means of a foreclosure of a chattel mortgage, claimed to have been given by these companies to Nathan M. Kaufman. It is charged that this chattel mortgage was never legally authorized by the company, and that if it were ever given by said company it was in fraud of the rights of the New Jersey corporation, and was part of a scheme to control the assets of the New Jersey company; that since said transfer to said Michi-. gan company the defendants Kaufman have sold, or agreed to sell, to another motor car company, a majority of the stock of said Michigan company, together with certain real estate situated in the city of Detroit, which should have been transferred to the New Jersey corporation by the said Nathan M. Kaufman in part payment of his subscription.

It is further charged that, had the defendants Kaufman prudently and properly managed the New Jersey company, and if the said Nathan M. Kaufman had paid his subscription, the company would have had money sufficient to have paid its debts in full and a surplus to distribute to its stockholders.

The complainant claims that he has no adequate remedy in the premises at law, and that he can have no relief from the directors of the company, because a majority of them are dominated by the said Kaufmans, and act only under their direction.

By way of relief, the bill prays:

“That the defendants Kaufman maybe compelled to account for their official conduct in the management and disposition of the funds and property committed to their charge as officers and directors of the De Luxe Motor C&x Company of New Jersey. That the defendants Kaufman be compelled to pay to said corporation all sums of money and the value of all property which they have acquired to themselves, or to either of them, or have transferred to the De Luxe Motor Car Company of Miqhigan, or which has been lost or wasted by their violation of their duty as officers and directors of said De Luxe Motor Oar Company of New Jersey. That the pretended transfer of the property of the De Luxe Motor Oar Company' of New Jersey to Nathan M. Kaufman, and the transfer thereof by him to the De Luxe Motor Oar Company of Michigan, be set aside and held for naught; that it be decreed that the last-named company holds all property so transferred to it as trustee for the creditors, if any, and the stockholders of the De Luxe Motor Car Company of New Jersey. That a receiver of the last-named company be appointed, with power to collect all unpaid subscriptions to its capital stock, including those of defendants Kaufman.”

The defendants demurred to the bill, and assign three grounds therefor:

(1) That it is nowhere stated in the bill that any demand had ever been made upon the company to begin a suit in this behalf, and that it had refused so to do; (2) that the facts alleged to exist show that complainant has a full, adequate, and complete remedy at law; and (3) that the bill is clearly multifarious.

Ordinarily, the wrongs to a corporation must be redressed by corporate action. A court of equity will, however, entertain jurisdiction to redress them at the suit of a stockholder, when it is made to appear that, he has made an effort to have the board of directors act, and they have neglected or refused to do so (Talbot v. Scripps, 31 Mich. 268); and, in cases where the directors or those in control are guilty of the wrongs against the corporation, the stockholder is excused from making any effort to induce the board of directors to act, on the theory that the offending parties would be unlikely to start proceedings against themselves. Miner v. Ice Co., 93 Mich. 97 (53 N. W. 218, 17 L. R. A. 412); Flynn v. Third Nat. Bank, 122 Mich. 642 (81 N. W. 572); Torrey v. Cement Co., 150 Mich. 86 (113 N. W. 580).

The question presented for our consideration is whether the allegations of the bill are such as to confine the course of the proceedings to the general rule, or bring them within the exception. The hill charges that the defendants Kaufman were directors; that they held a majority of the voting power of the company, and dominated and controlled the board of directors. All the acts of maladministration and fraud are charged to them officially. These charges are of such a character as to make it unlikely that, had a demand been made, it would have been complied with. If the law were to compel complainant to make a demand in the presence of such allegations, it would certainly require him to do an idle thing.

It is urged that complainant is not entitled to equitable relief, because he has an adequate remedy at law. The bill appears to be framed upon the theory of redressing wrongs done to the corporation. True, complainant introduces the grievances of the company to the court by reciting one to himself; but his grievance is not carried beyond the first paragraph of the bill. Where the bill recites wrongs done to the corporation by its directors or officers, and corporate relief only is invoked, it is a proper case for a court of equity. 3 Comp. Laws, § 9759.

The point is made that the bill is multifarious. We think the sole purpose of the bill is to reinvest the corporation with its property and assets, which it has been unlawfully deprived of by a series of wrongful acts of commission and omission, committed by the defendants Kaufman as officers and directors of the company. All of the acts for which relief is sought are for wrongs done to the corporation, and the defendants Kaufman are charged with the commission of them. We see nothing in the way of disposing of the controversy in one suit.

Another reason for holding that no relief can be granted on this ground is found in Kerr v. Rupp, 144 Mich. 269 (107 N. W. 1059); Case v. Longyear, 168 Mich. 434 (134 N. W. 459). The order of the trial court, overruling the demurrer, is affirmed. Complainant will recover costs.

Moore, C. J., and Blair, Stone, and Ostrander, JJ., concurred.


author: Steere, J.

text:
    PEOPLE v. GREGG.
    1. Criminal Law — Embezzlement of Promissory Note —Larceny — Negotiable Instruments.
    The maker of a promissory note may be güilty of its laroeny or embezzlement from the payee to whom he has delivered it, although his indebtedness is unaffected by such act.
    2. Same — Delivery of Note as Payment.
    Respondent, who was charged with embezzlement of a note executed and delivered by him to the payee, was rightly found guilty of embezzling the property of such payee, under testimony showing that the payee bought of him some lambs to be delivered later, surrendering said note to respondent to be applied on the price of the lambs, that the lambs did not belong to respondent, but to his wife, and they were later disposed of to other parties, and that respondent refused to return the note or pay it, and claimed to have satisfied the indebtedness.
    8. Same — Trial—“Feloniously.”
    The instruction by court to jury at the trial of respondent that embezzlement meant the wrongful or fraudulent appropriation to one’s use of money or goods left in his possession by another, that the respondent should not be found guilty unless he intended when he took the note to deprive the payee of its value, and unless intent to wrong was present no crime was committed, sufficiently defined the offense under 3 Comp. Laws, § 11570, without using or explaining the word “feloniously.”
    4. Same — Words and Phrases.
    “ Feloniously” imports that an act was done with an unlawful and wicked intent, or with purpose to commit a crime.
    Error to Eaton; Smith, J.
    Submitted April 18, 1912.
    (Docket No. 135.)
    Decided May 4, 1912.
    Perry Gregg was convicted of embezzlement.
    Affirmed.

      Bussell B. McPeelc, Prosecuting Attorney, for the people.

      Garry G. Fox and Bosslyn L. Sowers, for respondent.
   Steere, J.

The respondent, Perry Gregg, was convicted in the circuit court of Eaton county in June, 1911, of embezzling, or fraudulently converting to his own use, a certain promissory note, of the alleged value of $35.84, belonging to another and previously delivered to him for a particular purpose. The information filed against him contained two counts. The first was framed under section 11570, 3 Comp. Laws, which is as follows:

“If any person to whom any money, goods or other property which may be the subject of larceny, shall have been delivered, shall embezzle or fraudulently convert to his own use, or shall secrete with the intent to embezzle, or fraudulently use such goods, money or other property, or any part thereof, he shall be deemed by so doing to have committed the crime of larceny.”

To this was added a second count, charging simple larceny. The jury found respondent guilty “as charged in the first count of the information, the same being the count charging the defendant with embezzlement of the noté under paragraph 11570, of the Compiled Laws of 1897.”

The note had been previously given by respondent, who was the maker, to William H. Van Auken, the complaining witness herein, who was the payee. It fell due October 15, 1909. The prosecution claimed it was never paid, but that respondent, having received it from the owner for a certain specified purpose, embezzled and fraudulently converted it to his own use, thereby committing the crime of larceny.

The evidence introduced by the respective parties as to the manner in which respondent acquired possession of the note was irreconcilable. Testimony offered by the prosecution tended to show that about October 1, 1910, the note being then about a year past due and unpaid, Van Auken visited respondent, who was a farmer, and negotiated a purchase from him of some lambs which were to be delivered about the 1st of November following; that the agreed price was 6 cents per pound and $5 extra, and any additional rise which might occur in the market before the time of delivery; that he told respondent the collection of his note was a reason why he wished to make the purchase; that he then gave him the note to be applied in part payment of the purchase price, and said to him, “ If you take the note, you will know your lambs are sold and I will know they are bought;” that the lambs were never delivered as agreed, and some time subsequent to the date set for their delivery he interviewed respondent on the subject, who then stated in profane and violent language that he owed Van Auken nothing, did not have any note which belonged to him, had sold the lambs and spent the money, and would do nothing about the note, refusing to return the same when demanded. It was the claim and testimony of respondent that he had never sold the lambs, which belonged to his wife, to Van Auken; that thére was some talk on the subject about the time claimed, in which Van Auken tried to buy them, but no agreement was reached or note then given to him; that he owed Van Auken nothing at that time, having previously taken up the note in question, paying the same in full, in cash, to Van Auken, amounting, in principal and interest, to $40. It is manifest that the witnesses thus testifying could not be honestly mistaken. One side or the other must have deliberately falsified. These issues of fact were decided by the jury in favor of the prosecution.

The case is before us on exceptions to refusal of the court below to rule that the evidence was insufficient to support the information, and to instructions given the jury; the errors relied on being thus stated:

“ (1) The refusal of the trial judge to direct a verdict of not guilty.
“ (2) The failure of the trial judge to give the jury such a charge as defendant was entitled to under the law.
“ (3) The refusal of the court to grant a new trial.”

The first question, therefore, to consider, is whether the testimony of the prosecution, taken as a whole, contained facts sufficient to constitute the offense charged. If so, it was for the jury to decide, under proper instructions. It is the theory and claim of respondent that the testimony of the prosecution shows at most but a contract of purchase and sale and a breach of such contract — a part payment of the agreed purchase price by delivery and acceptance of the note and an agreement by respondent to deliver the lambs, for which he could only be held liable in a civil suit for resulting damages; that, when Van Auken delivered the note in part payment on the purchase, he parted with both possession and title to it and passed the same to respondent, who cannot be found guilty of embezzling or stealing his own property.

This case does not involve the much discussed “shadow line” between false pretenses and larceny, or between larceny and embezzlement. The provisions of the statute under which the information is laid dispose of the latter, and the evidence fails to show any misrepresentations by respondent as to existing facts by which complaining witness was misled. False promises or false assurances as to future transactions are not false pretenses inlaw. Though, like bonds, certificates of stock, or paper money, the intrinsic value of a promissory note is insignificant, it has real value in the right of property which it represents, and is itself property which may be the subject of larceny. The fact that respondent had originally given this note to Van Auken, who had a civil right of action against him, independent of the note, would not defeat a criminal prosecution. The maker of a note may be guilty of its larceny or embezzlement from the payee to whom he has given it, though his indebtedness is unaffected by the act. Commonwealth v. Eichelberger, 119 Pa. 254 (13 Atl. 422, 4 Am. St. Rep. 642).

Must we conclude from the people’s testimony that the note became respondent’s property? Van Auken voluntarily delivered it and parted with the possession, but did he transfer and part with the title also ? Its delivery was .for a specified purpose, as part payment on the purchase price of the lambs, a payment on account. There is no proof it was applied to such purpose; defendant denies that it was, and all the testimony is to the effect that it was not. It is not inferable from the people’s testimony that Van Auken intended to forgive the debt and surrender the note, and pass title therein to respondent, whether the lambs were delivered or not. It is fairly deducible from the transaction that the note was delivered conditionally; that the ownership and title to the note remained in Van Auken, only to pass when the deal was consummated, and he had received the consideration therefor by delivery of the lambs. Respondent kept the note and sold the lambs to others, putting it beyond his power to do that which would fulfill the condition under which he received the note, and which would invest him with the title. The jury could fairly infer from the testimony as a whole that he did not apply it in part payment on the property purchased and never intended to do so. He himself testifies that he did not. We cannot agree that the payee of the note is shown to have parted with the title. The principle involved in this question has been held to be the actual intent of the owner as disclosed by what he said and did at the time he delivered possession of the property. In the case of Queen v. Russett, 2 Q. B. Div. 312, there was purchase and sale of a horse, with part payment and promised future delivery, which was never made. The seller was prosecuted for larceny of the part payment. It was claimed that the sale was fraudulent; the seller removing the animal elsewhere under circumstances indicating he never intended to deliver it. Under the proof in that case a material question was the distinction between false pretenses and larceny, but whether or not the payor of a part payment parted with the title to the money paid was involved. The respondent contended that the purchaser, who testified, “I never expected to see the £8 back, but to have the horse,” parted absolutely with both the possession and property in the money paid, and therefore respondent’s taking it was not larceny, but, if any crime, obtaining money by false pretenses. In confirming a conviction, the court said, amongst other things:'

“ In my judgment the money was merely handed to the prisoner by way of deposit, to remain in his hands until completion of the transaction by delivery of the horse. He never intended, or could have intended, that the prisoner should take the money and hold it, whether he delivered the horse or not. * * * I need only to refer to the contract, which provides for payment of the balance on delivery of the horse, to show how impossible it is to read into it an agreement to pay £8 to the prisoner whether he gave delivery of the horse or not. It was clearly only a deposit by way of part payment of the price of the horse, and there was ample evidence that the prosecutor never intended to part with the property in the money when he gave it into the prisoner’s possession.”

An examination of the charge of the court, with reference to the numerous allegations of error launched against it, leads to the conclusion that most of the claimed errors are founded on the contentions of respondent already discussed and decided, and to review them in detail would be but repetition. The charge is very full and detailed, covering, with unusual emphasis and prominence, the various rules of law relative to burden of proof, reasonable doubt, and presumption of innocence designed to safeguard the rights of the accused. The portions of the charge touching simple larceny, under the second count in the information, require no consideration, as the respondent was not convicted under that count. The court fairly submitted defendant’s claim, based on the opposing testimony, to the jury to determine, as an issue of fact, with proper explanation of their province and duties in passing upon the credibility of witnesses. As to what constituted the statutory offense of which respondent was convicted, the court instructed the jury, in part, as follows:

“ But if, on the other hand, you find that he received the note under the circumstances as claimed by the people, and afterwards at any time conceived the idea of converting the note to his own use, and did fraudulently so convert said note, then he would «be guilty of embezzlement, and you should so designate in your verdict. * * * Now, by the term e convert’ — that is, converting the note to his own use — or ‘ embezzle ’ is meant simply the wrongful or fraudulent appropriation to one’s own use of money or goods left in his possession by another. From what I have said to you, gentlemen, you will understand that to convict in this case you should be satisfied beyond a reasonable doubt that Mr. Gregg had an intent either when he took the note or later on to deprive Mr. Van Auken of its value. * * * The intent is the essence of the offense, and, unless the intent to wrong is present at the time of the commission of the offense, then no crime has been committed.”

Objection is made to the use of the word “fraudulently,” instead of “feloniously,” in instructing the jury as to what constituted the offense, and that the jury were not instructed that to constitute the crime the act must have been done with a felonious intent. The court followed the language of the statute in that respect. If the respondent fraudulently converted or used the property as specified in the act he did it, under the provisions of the act, with a felonious intent. We cannot see how any assistance would have been given the jury by using, or even defining, “feloniously.” It is not imperative that the jury shall be given technical definitions, but it is sufficient if the purport of the words as applied to their duties in deciding the facts be explained to them. It is true that, in order to convict, they must have found a felonious intent. “Feloniously” is a technical word of the legal vocabulary, originally essential in indictments charging any offense involving forfeiture of goods and lands to the crown, or, in this country, any crime involving death or imprisonment in the penitentiary. It imports that the act charged was done with a mind bent on that which is criminal, with an unlawful and wicked intent. When applied to a violation of a criminal statute, if the facts proven show the statute was intentionally violated and establish a felony, then the crime was committed feloniously. State v. Snell, 78 Mo. 240. The language of the. charge more than once clearly covered this proposition.

We find no prejudicial error in the case, and the conviction is affirmed.

Moore, O. J.,and McAlvay, Brooke, Blair, Stone, and Ostrander, JJ., concurred. Bird, J., did not sit..