author: Christiancy J.: Manning J.:

text:
    William Maher v. The People.
    In a prosecution for an assault with intent to murder, the actual intent to kill must be found, and that under ciroumstances which would make the killing murder.
    Malice aforethought is as essential an ingredient of the offense of murder as the act of killing, and the presumption of innocence applies equally to both ingredients of the offense. Hence the ^burden of proof, as to eaoh, rests upon the prosecution.
    If a homicide be committed under the influence of passion, or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition, the offense is manslaughter only, and not murder.
    To reduce the offense to this grade, the reason must, at the time of the act, be disturbed or obscured by passion to an extent which -jmght render an ordinary man, of fair average disposition, Viable to act rashly, or without due deliberation or reflection, and from passion rather than judgment.
    The question as to what is an adequate or reasonable provocation, is one of fact for the jury.
    So also is the question whether a reasonable time had elapsed for the passions to cool, and reason to resume its control.
    Indictment for assault with intent to murder one H. The prisoner offered evidence tending to show the commission of adultery by H. with the prisoner’s wife, within half an hour before the assault; that the prisoner saw them going into the woods together under circumstances calculated strongly to impress upon his mind the belief of an adulterous purpose; that he followed after them to the woods; that they were seen not long after coming from the woods, and that the prisoner followed on in hot pursuit, and was informed on the way thatAthey had committed adultery on the day before; that he followed H. into a saloon, in a state of excitement, and there committed the assault. Held, that the evidence was proper, as from it it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which would have given to the homicide, had death ensued, the character of manslaughter only.

      Held further, that these facts, and all the circumstances which led to the assault, were a part of the res gestae, which the jury were entitled to have before them to show what was tbe real nature of the act, and the state of mind and intention with which it was done.
    Tbe statement of the prisoner in a criminal case is for the consideration of the jury, who may give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.

      Heard April 19th.

      Decided May 21st.
    Error to Houghton District Court. The case is sufficiently stated in the opinion of Christiancy J.

      Buel & Trowbridge, for plaintiff in error:
    1. Malice aforethought is the grand criterion which distinguishes murder from all other killings.
    The quo animo, or state of mind under which the offense is committed, is always a legitimate subject of inquiry: — Bish. Cr. L. § 227; 2 Ibid. § 616 ; Pond v. People, 8 Mich. 150; 3 Inst. 107; Burr. Cir. Ev. 282 and n.

    Accordingly the appearance of an actual necessity for taking- life in self-defense, though it in fact do not exist, may justify the act; insanity may excuse it, and sudden transport of passion may mitigate it to a lesser offense. Yet each of these circumstances is a state of the mind.
    The definition itself of murder requires, that it be committed by a person of sound mind and memory, and with malice aforethought: — 3 Coke's Inst. 47; 4 Bl. Com. 195. Each of these ingredients is a fact; each puts in issue the state of the mind, and each must be passed upon by the jury.

    In a case of murder it is always a proper subject of inquiry, whether the accused acted from deliberation and intelligence; whether he had command of his passions and acted from a mind undisturbed; or whether reason had lost in part its sway: — 2 Bish. Cr. L. §§ 630, 631 and n; 1 East P. C. 222; Whart. Cr. L. §§ 983, 984 ; Burr. Cir. Ev. 284 and n.

    It is a true test of manslaughter that the homicide be committed in a sudden transport of passion arising upon a reasonable provocation, and without malice. The law requires only a reasonable provocation. The authorities use the terms adequate, sufficient and reasonable, when applied to the provocation, as equivalent: — 1 East P. C. 232; Whart. Cr. L. § 987; 2 Bish. Cr. L. § 630 and n ; 11 Humph. 200. A reasonable provocation, is one for which a good reason can be given, and which might naturally and rationally, according to the laws of the human mind, produce the alleged sudden transport of passion.

      By sufficient cooling time, is meant a reasonable time; therefore, each case depends on its own circumstances:— Whart. Cr. L. § 990; 2 Bish. Cr. L. § 641; 1 Speers, 384. A reasonable cooling time, is that for which a good reason can be given, and in which the sudden transport of passion might naturally and rationally, according to the laws of the human mind, pass away.
    2. Acting on information: “When it becomes a subject of inquiry whether a person acted bona fide, prudently or wisely, the information and circumstances on the faith of which he acted, whether true or false, are original and material evidence. This is often illustrated in actions for malicious prosecution:”— Whart. Cr. L. § 663; 1 Greenl. Ev. §101, and n. Such evidence bears directly upon the question of malice, and state of the prisoner’s mind. In the following cases of alleged murder, the parties acted under provocation arising on information which was admitted in evidence: — Gases of Jarboe, of Mercer, and of Norman, cited in Sickles' ease ; Boyley’s case, 2 Cro. 296; McWhirt's case, 3 Gratt. 594.
    So evidence is often admitted of information communicated to the prisoner, of prior threats against him by the assailing party. See Pond’s case, 8 Mich. 153.
    3. As to the taking in the act; the law does not require that the husband stand by and actually see the adulterous act.
    Adultery can always be proved by facts and circumstances. Those offered in this case transpired under the eyes of the accused; they tended to establish a taking in the act, within the meaning of the law. Would a blind man be without protection when his remaining senses leave no room for doubt?
    A mistake may exist; still “the guilt of the accused must depend upon the circumstances as they appear to him.” One may act in self-defense upon reasonable grounds for believing that the danger is actual and imminent, though he be mistaken: — Pond's case, 8 Mich. 150.

      So too, an insane delusion or belief may exist, as to unreal -facts, which, will justify or excuse a homicide committed under its influence, if, being real, they would have that effect: — 1 Bish. Cr. L. § 295.
    4. As to the res gestae: most of the Matters offered and excluded immediately preceded the assault, tended to illustrate it, were directly connected with it as its cause, and with it constituted one continuing occurrence. They were, therefore, clearly admissible in evidence as belonging to the res gestae: — Potter’s case, 5 Mich. 5; 1 Greenl. Ev. §108 and n.

    They belong to the class of concomitant circumstances, which include those immediately following and preceding the criminal act, as well as those strictly contemporaneous with it: — Burr. Cir. Ev. 368.

      C. Upson, Attorney General, for the People:
    If a husband find his wife in the act of adultery, and, provoked by the wrong, instantly takes the life of the adulterer, the homicide is only manslaughter. But to entitle it to this tender consideration, the detection must be in the very act. In all cases the party must see the act done, and if, after merely hearing of, or suspecting such an outrage, the wronged individual immediately takes vengeance on the other, by pursuing and killing him, his offense is murder: — Foster, 296 ; T. Raym. 212; 1 Vent. 158; 1 East P. C. 234 ; 8 G. & P. 182; 2 C. & K. 814; 3 Gratt. 594; 8 Ired. Law, 330; 1 Russ. on Cr. 525 and 581; 2 Bish. Cr. L. § 638 and notes 2, 3 and 4; Whar. Cr. L. § 984 and n. a, 4th ed.

    The books which speak of the slaying of the adulterer by the husband as only manslaughter under certain circumstances, all instance the case where he finds the adulterer in the act of adulterous intercourse with his wife, and immediately kills him; but none of the cases speak of thus justifying the killing of a person by the husband, on account of information or suspicion of acts of adultery committed with Ms wife. Most of them expressly say that in all such circumstances the killing would be murder.
    See particularly on this point the language of the Court in 8 Car. & P. 182, and 2 C. & K. 814, above quoted.
   Christiancy J.:

The prisoner was charged with an assault with intent to kill and murder one Patrick Hunt. The evidence on the part of the prosecution was, that the prisoner entered the saloon of one Michael Foley, in the village of Houghton, where said Hunt was standing with several other persons; that prisoner entered through a back door and by a back way leading to it, in his shirt sleeves, in a state of great perspiration, and appearing to be excited; and on being asked if he had been at work, said he had been across the lake; that, on entering the saloon, he immediately passed nearly through it to where said Hunt was standing, and, on his way towards Hunt, said something, but it did not appear what, or to whom; that as soon as the prisoner came up to where Hunt was standing, he fired a pistol at Hunt, the charge of which took effect upon the head of Hunt, in and through the left ear, causing a severe wound thereon; by reason of which Hunt in a few moments fell to the floor, was partially deprived of Ms sense of hearing in that ear, and received a severe shock to his system which caused him to be confined to his bed for about a week, under the care of a physician; that immediately after the firing of the pistol prisoner, left the saloon, nothing being said by Hunt or the prisoner. It did not appear how, or with what, the pistol was loaded. The prisoner offered evidence tending to show an adulterous intercourse between his wife and Hunt on the morning of the assault, and within less than half an hour previous; that the prisoner saw them going into the woods together .about half an hour before the assault; that on their coming out of the woods the prisoner followed them immediately (evidence having already been given that prisoner had followed them to the woods); that, on their coming out of the woods, the prisoner .followed them and went after said Hunt into the saloon, where, on his arrival, the assault was committed; that the prisoner on his way to the saloon, a few minutes before entering it, was met by a friend who informed him that Hunt and the prisoner’s wife had had sexual intercourse" the day before in the woods. This evidence was rejected by the Court, and the prisoner excepted. Was the evidence properly rejected? This is the main question in the case, and its decision must depend upon the question whether the proposed evidence would have tended to reduce the killing — had death ensued — from murder to manslaughter, or rather, to have given it the character of manslaughter instead of murder?' If the homicide — in case death had ensued — would have been but manslaughter, then defendant could not be guilty of the assault with intent to murder, but only of a simple assault and battery. The question therefore involves essentially the same principles as where evidence is offered for a similar purpose in a prosecution for murder; except that, in some cases of murder, an actual intention to kill need not exist; but in a prosecution for an assault with intent to murder, the actual intention to kill must be found, and that under circumstances which would make the killing murder.

Homicide, or the mere killing of one person by another, does not, of itself, constitute murder; it may be murder, or manslaughter, .or excusable or justifiable homicide, and therefore entirely innocent, according to the circumstances, or the disposition or state of mind or purpose, which induced the act. It is not, therefore, the act which constitutes the offense, or determines its character; but the quo animo, the disposition, or state of mind, with which it is done. Actus non facii reum nisi mens sit rea.” People v Pond, 8 Mich. 150.

To give the homicide the legal character of murder, all the authorities agree that it must have been perpetrated with malice prepense or aforethought. This malice is just as essential an ingredient of the offense as the act which causes the death; without the concurrence of both, the crime can not exist; and, as every man is presumed innocent of the offense with which he is charged till he is proved to be guilty, this presumption must apply equally to both ingredients of the offense — to the malice as well as to the killing. Hence, though the principle seems to have been sometimes overlooked, the burden of proof, as to each, rests equally upon the prosecution, though the one may admit and require more direct proof than the other; malice, in most cases, not being susceptible of direct proof, but to be established by inferences more or less strong, to be drawn from the facts and circumstances connected with the killing, and which indicate the disposition or state of mind with which it was done. It is for the Court to define the legal import of the term, malice afore- - thought, or, in other words, that state or disposition of mind which constitutes it; but the question whether it existed or not, in the particular instance, would, upon principle, seem to be as clearly a question of fact for the jury, as any other fact in the cause, and that they must give such weight to the various facts and circumstances accompanying the act, or in any way bearing upon the question, as, in their judgment, they deserve: and that the Court have no right to withdraw the question from the jury by assuming to draw the proper inferences from the whole, or any part of, the facts proved, as presumption of law. If Courts could do this, juries might be required to find the fact of malice where they were satisfied from the whole’ evidence it did not exist. I do not here speak of those cases in which the - death is caused in the attempt to commit some other offense, or in illegal resistance to public officers, or other classes of cases which may rest upon peculiar grounds of public policy, and which may or may not form an exception; but of ordinary cases, such as this would have been had death ensued. It is not necessary here to enumerate all the elements which enter into the legal definition of malice aforethought. It is sufficient to say that, within the principle of all the recognized definitions, the homicide must, in all ordinary cases, have been committed with some degree of coolness and deliberation, or, at least, under circumstances in which ordinary men, or the average of men recognized as peaceable citizens, would not be liable to have their reason clouded or obscured by passion; and the act- must be prompted by, or the circumstances indicate that it sprung from, a wicked, depraved or malignant mind — a mind which, even in its habitual condition and when excited by no provocation which would be liable to give undue control to passion in ordinary men, is cruel, wanton or malignant, reckless of human life, or regardless of social duty.

But if the act of killing, though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by .which the control of reason was disturbed, .rather than of any wickedness of heart or cruelty or recklessness of disposition; then the law, out of indulgence to the frailty of human nature, or. rather, in recognition of the laws upon which human nature is constituted, very properly regards the offense as of a less heinous character than murder, and gives it the designation of manslaughter.

To what extent the passions must be aroused and the dominion of reason disturbed to reduce the offense from murder to manslaughter, the cases are by no means agreed; and any rule which should embrace all the cases ,that have been decided in reference to this point, would come very near obliterating, if it did not entirely obliterate, all distinction between murder and manslaughter in such cases. We must therefore endeavor to discover the principle upon which the question is to be determined. It will not do to hold that reason should be entirely dethroned, or overpowered by passion so as to destroy intelligent volition : State v. Hill, 1 Dev. & Bat. 491 ; Haile v. State, 1 Swan, 248; Young v. State, 11 Humph. 200. Such a degree of mental disturbance would be equivalent to utter insanity, aud, if the result of adequate provocation, would render the perpetrator morally innocent. But the law regards manslaughter as a high grade of offense; as a felony. On principle, therefore, the extent to Avhich the passions are required to be aroused and reason obscured must be considerably short of this, and never beyond that degree Avithin which ordinary men have the power, and are therefore morally as Avell as legally bound, to restrain their passions. It is only on the idea of a Adolation of this clear duty, that the act can be held criminal. There are many cases to be found in the books in Avhich this consideration, plain as it Avould seem to be in principle, appears to have been, in a great measure, overlooked, and a course of reasoning adopted which could only be justified on the supposition that the question was betAveen murder and excusable homicide.

The principle involved in the question, and which, I think, clearly dedueible from the .majority of well considered cases, Avould seem to suggest as the true general rule, that reason should, at the time of the act, be disturbed or obscured by passion to an extent which might render ordinary men, of fair average disposition,; liable to act rashly or without due deliberation or reflection, and from passion, rather than judgment.

To the question, what shall be considered in law a reasonable or adequate provocation for such a state of mind, so as to give to a homicide, committed under its influence, the character of manslaughter; on principle, the answer, as a general rule, must be, anything the natural tendency of which would be to produce such a state of mind in ordinary men, and which the jury are satisfied did produce it in the case before them — not such a provocation as must, by the laws of the human mind, produce such an effect with the certainty that physical effects folíolo from physical causes; for then the individual could hardly be held morally accountable. Nor, on the other hand, must the provocation, in every case, be held sufficient or reasonable, because such a state of excitement has followed from it; for then, by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men, and on account of that very wickedness of heart which, in itself, constitutes an aggravation both in morals and in law.

In determining whether the provocation is sufficient or reasonable, ordinary human nature, or the average of men recognized as men of fair average mind and disposition, should be taken as the standard — unless, indeed, the person whose guilt is in question be shown to have some peculiar weakness of mind or infirmity of temper, not arising from wickedness of heart or cruelty of disposition.

It is doubtless, in one sense, the province of the Court to define what, in law, will constitute a reasonable or adequate provocation, but not, I think, in ordinary cases, to determine whether the provocation proved in the particular case is sufficient or reasonable. This is essentially a question of fact, and to be decided with reference to the peculiar facts of each particular case. As a general rule, the Court, after informing the jury to what extent the passions must be aroused and reason obscured to render the homicide manslaughter, should inform them that the provocation must be one, the tendency of which would be to produce such a degree of excitement and disturbance in the minds of ordinary men; and if they -should find such provocation from the facts proved, and should further find that it did produce that effect in the particular instance, and that the homicide was the result of such provocation, it would give it the character of manslaughter. Besides the consideration that the question is essentially one of fact, jurors, from the mode of their selection, coming from the various classes and occupations of society, and conversant with the practical affairs, of life, are, in my opinion, much better qualified to judge of the sufficiency and tendency of a given provocation, and much more likely to fix, with some degree of accuracy, the standard of what constitutes the average of ordinary human nature, than the Judge whose habits and course of life give him much less experience of the workings of passion in the actual conflicts of life.

The Judge, it is true, must, to some extent, assume to decide upon the sufficiency of the alleged provocation, when the question arises upon the admission of testimony; and when it is so clear as to admit of no reasonable doubt upon any theory, that the alleged provocation could not have had any tendency to produce such state of mind, in ordinary men, he may properly exclude the evidence; but, if the alleged provocation be such as to admit of any reasonable,doubt, whether it might not have had such tendency, it is much safer, I think, and more in accordance with principle, to let the evidence go to the jury under the proper instructions. As already intimated, the question of the reasonableness or adequacy of the provocation must depend upon the facts of each particular case.' That can, with no propriety, be called a rule (or a question) of law which must vary with, and depend upon the almost infinite variety of facts presented by the various cases as they arise. See Stark. on Ev., Amer. Ed. 1860, pp. 616 to 680. The law can not with justice assume, by the light of past decisions, to catalogue all the various facts and combinations of facts -which shall be held to constitute reasonable or adequate provocation. Scarcely two past cases can be found which are identical in all their circumstances; and there is no reason to hope for greater uniformity in future. Provocations will be given without reference to any previous model, and the passions they excite will not consult the precedents.

The same principles which govern, as to the extent to which the passions must be excited and reason disturbed, apply with equal force to the time during which its continuance may be recognized as a ground for mitigating the homicide to the degree of manslaughter, or, in other words, to the question of cooling time. This, like the provocation itself, must depend upon the nature of man and the laws of the human mind, as well as upon the nature and circumstances of the provocation, the extent to which the passions have been aroused, and the fact, whether the injury inflicted by the provocation is more or less permanent or irreparable. The passion excited by a blow received in a sudden quarrel, though perhaps equally violent for the moment, would be likely much sooner to subside than if aroused by a rape committed upon a sister or a daughter, or the discovery of an adulterous intercourse with a wife; and no two cases of the latter kind would be likely to be identical in all their circumstances of provocation. No precise time, therefore, in hours or minutes, can be laid down by the Court, as a rule of law, within which the passions must he held to have subsided and reason to have resumed its control, without setting at defiance the laws of man’s nature, and ignoring the veryj principle on which provocation and passion are allowed to be shown, at all, in mitigation of the offense-The question is one of reasonable time, depending upon all the circumstances of the particular case; and where the law has not defined, and can not without gross injustice define the precise time which shall be deemed reasonable, as it has with respect to notice of the dishonor of commercial paper. In such case, whore the law has defined what shall be reasonable time, the question of such reasonable time, the facts being found by the jury, is one of law for the Court; but in all other cases it is a question of fact for tho jury; and the Court can not take it from the jury by assuming to decide it as a question of law, without confounding the respective provinces of the Court and jury: — Stark. Ev., Ed. of 1860, pp. 768, 769, 774, 775. In Rex v. Howard, 6 C. & P. 157, and Rex v. Lynch, 5 C. & P. 324, this, question of reasonable cooling time was expressly held to be a question of fact for the jury. And see Whart. Cr. L., 4th ed., § 990 and oases cited. I am aware there are many cases in which it has been bold a question of law; but I can see no principle on which such a rule can rest. The Court should, I think, define to the jury the principles upon which the question is to be decided, and leave them to determine whether the time was reasonable under all the circumstances of the particular case. I do not mean to say that the time may not be so great as to enable the Court to determine that it is sufficient for the passion to have cooled, or so to instruct the jury, without error; but the case- should be very clear. And in .cases of applications for a new trial, depending upon the discretion of the Court, the question may very properly be considered by the Court.

It remains only to apply these principles to the present ease. The proposed evidence, in connection with what had already been given, would have tended strongly to show the commission of adultery by Hunt with the prisoner’s wife, within half an hour before the assault; that the prisoner saw them going to the woods together, under circumstances calculated strongly to impress upon his mind the belief of the adulterous purpose; that he followed after them to the woods; that Hunt and the prisoner’s wife were, not long after, seen coming from the woods, and that the prisoner followed them, and went in hot pursuit after Hunt to the saloon, and was informed by a friend on the way that they, had committed adultery the day before in the woods. ,1 can not resist the conviction that this would have been sufficient evidence of provocation to go to the jury, and from which, when taken in connection with the excitement and “great perspiration” exhibited on entering the saloon,' the hasty manner in which he approached and fired the pistol at Hunt, it would have been competent for the jury to find that the act was committed in consequence of the passion excited by the provocation, and in a state of mind which, within the principle already explained, would have given to the homicide, had death ensued, the character of manslaughter only. In holding otherwise the Court below was doubtless guided by those cases in which Courts have arbitrarily assumed to take the question from the jury, and to decide upon the facts or some particular fact of the case, whether a sufficient provocation had been shown, and what was a reasonable time for cooling.

But there is still a further reason why the evidence should have been admitted. No other cause being shown for the assault, the proposed evidence, if given, could have left no reasonable doubt that it was, in fact, committed in consequence of the alleged provocation, whether sufficient or not; and all the facts constituting the provocation, or which led to the assault, being thus closely connected, and following each other in quick succession, and the assault itself in which they resulted, constituted together but one entire transaction. The circumstances which, in fact, led to the assault were a part of the res gestae, which the jury were entitled to have before them, to show what was the real nature of the act, the quo animo, state of mind and intention, with which it was done. The object of the trial should be to show the real nature of the whole transaction, whether its tendency may he to establish guilt or innocence / but, until the whole is shown which might have any bearing one way or the other, its tendency to establish the one or the other can not be known. Any inference drawn from a detached part of one entire transaction may be entirely false. And, for myself, I am inclined to the opinion, that all the facts constituting the res gestae, so far as the prosecuting counsel is informed of, and has the means of proving them, should, on principle and in fairness- to the prisoner, be laid before the jury by the prosecution. They naturaEy constitute the prosecutor’s case. And whenever it may appear evident to the Court, that but a part of the facts, or a single fact, has been designedly selected by the prosecution from the series constituting the res gestae, or entire transaction, and that the evidence of the others is within the power of the prosecutor, it would, I think, be the duty of the Court to require the prosecutor to show the transaction as a whole. See by. analogy, Holden’s case, 8 C. & P. 606 ; Stoner’s case, 1 C. & K. 650; Chapman’s case, 8 C. & P. 559 ; Orchard’s case, Ibid, note; Roscoe Cr. Ev. 164. Until this should be done it is difficult to see how any legitimate inference of guilt, or of the degree of the offense, can be drawn; as every reasonable hypothesis of innocence, or a lower degree of guilt, is not, it seems to me, excluded. Criminal prosecutions do not stand on the same ground, in this respect, as civil cases. In the latter no such presumption is to be overcome; nor is it necessary to exclude every other hypothesis than the one sought to be established: — 3 Greenl. Ev. § 29. But however this may be, it was clearly competent for the defendant to show the rest of the transaction, whether known to the prosecution or not. I think, therefore, for the several reasons stated, the evidence offered was erroneously rejected.

After the evidence was closed, the prisoner was caEed by his counsel to make a statement under the statute. This statement went strongly to corroborate the facts offered to be shown by the evidence rejected. The prisoner’s counsel requested the Court to charge, that the prisoner’s statement was for the consideration of the jury; that they should receive it as evidence in the cause, and give it such credit as, under the circumstances, they believed it entitled to; which the Court refused, and the prisoner’s counsel excepted. But the Court in this connection did charge, that the statement could not be received in relation to matters of defense excluded by the Court, the conduct of Hunt and the prisoner’s wife; but that where there were |facts and circumstances in relation to the commission of the offense, the jury might consider the prisoner’s statement in considering the evidence, and give it such weight as they thought proper.

The only substantial error of the Court in 'relation to this “ statement,” is that which grew out of the exclusion of the evidence, and was the natural consequence of that error. All he intended to say was, that the statement might be considered by the jury so far only as it had any bearing upon the case; but that, so far as it related to the conduct of Hunt and the prisoner’s wife, it had no such bearing. It was, thus far, erroneous; but in other respects substantially correct. It is of little consequence whether the statement be called evidence, or by some other name. It is not evidence within the ordinary acceptation of that term; because not given under the sanction of an oath, nor is the prisoner liable for perjury or to any other penalty, if it be false; nor can a full cross-examination be enforced. Tet it is clear the jury have a right to give it such credit, in whole or in part, as under all the circumstances they may think it entitled to.

The judgment should be reversed, and a new trial granted.

Martin Ch. J. and Campbell J. concurred.

Manning J.:

I differ from my brethren in this case. I think the evicence was properly exclude.d. To make that manslaughter which would otherwise be murder, the provocation — I am not speaking of its sufficiency, but of the provocation itself— must be given in the presence of the person committing the homicide. The cause of the provocation must occur in his presence. Park J. in Regina v. Fisher, 8 C. & P. 182, in speaking of the cause of provocation says, “ In all cases the party must see the act done.” Any other rule in an offense so grave as taking the life of a fellow being, in the heat of passion, I fear would be more humane to the perpetrator than wise in its effects on society. More especially since the abolition of the death penalty for murder, and the division of the crime into murder in the first and second degree. There is not now the same reason, namely, the severity of the punishment, for relaxing the rules .of law in favor of a party committing homicide as before. It would, it seems to me, be extremely mischievous to let passion engendered by suspicion, or by something one has heard, enter into and determine the nature of a crime committed while under its influence. The innocent as well as the guilty, or those who had not as well as those who had given provocation, might be the sufferers. If it be said that in such cases the giving of the provocation must be proved or it would go for nothing; the answer is, that the law will not, and should not permit the lives of the innocent to be exposed with the guilty in this way, as it would do did it not require the cause of the provocation to occur in the presence of the person committing the homicide. See Regina v. Fisher, 8 C. & P. 182; Regina v. Kelly, 2 C. & K 814; and State v. John, 8 Ired. 330.

I think the judgment should be affirmed.

Judgment reversed, and new trial ordered.


source: Caselaw Access Project

author: Christiancy J.: Campbell J.:

license: Public Domain

text:
    Samuel Bryan v. Henry B. Smith.
    The complaint in summary proceedings against tenants and others to recover possession of laud, may be in general form, without setting forth the particular facts making a case within the statute; but it must show that complainant is entitled to the possession of the premises at the time of the maki'-g of the complaint.
    Where the complaint only showed that complainant became entitled to the possession upwards of fourteen months before»the proceeding was instituted, it was held not sufficient to confer jurisdiction upon the Commissioner to try and determine the case.
    And where the complaint was insufficient to confer jurisdiction, but the Commissioner nevertheless proceeded to hoar the .case, and gave judgment for the complainant, and the defendant appealed to the Circuit Court, which decided that the complaint did not confer jurisdiction, and reversed the judgment; it was held that the Circuit Court had jurisdiction to render a judgment for costs in favor of the defendant.

      Heard May 7th and 8th.

      Decided May 23d.

    Error to Lenawee Circuit.
    Bryan commenced proceedings before the Circuit Court Commissioner to recover possession of certain lands. The following is a copy of the complaint.
    “The complaint of Samuel Bryan, of the.^.township of Raisin, Lenawee county, and State of Michigan, respectfully shows:
    That heretofore, on the twentieth day of August, a. d. 1850, Moses Smith and Violetta Smith, his wife, made and executed, and on the thirty-first day of August, 1850, acknowledged and delivered unto your complainant, a certain deed, of which the following is a copy:
    [This copy -is omitted. It purported to convey the premises in controversy, but the conveyance to take effeet on the decease of the survivor of the grantors.]
    “That afterwards the said Violetta Smith died, to wit, on or about the thirteenth day of April, 1854.
    That afterwards the said Moses Smith, being in possession of said premises under said agreement and deed, and according to the terms thereof, let into possession of said premises one Henry B. Smith, who held the same under the said Moses Smith, and as his tenant worked said place and carried on said place, from the twentieth day of January, a. d. 1857, or thereabouts, until the death of said Moses Smith, as hereinafter specified.
    That the said Moses Smith died on or about the fourth day of June, a. d. 1858, at Tecumseh aforesaid, by which said deaths the said complainant became entitled to the possession of said premises.
    That said Henry B. Smith has refused and still refuses to deliver up the possession of said premises to this complainant.
    And this complainant further shows that said Henry B. Smith is in possession of the lands and tenements [describing them]. And that said Henry B. Smith holds the same unlawfully, and against the right of the complainant.
    He therefore asks for such relief in the premises as is provided for by the statute in such case made and provided.
    Hated the 26th day of August, 1859.’’
    Objection was taken to this complaint before the Commissioner, as insufficient to confer jurisdiction, but the objection was overruled, the case tried on the merits, and judgment rendered in favor of complainant. Defendant appealed, and in the Circuit Court judgment was given “that the matter in controversy was not within the jurisdiction of the Circuit Court Commissioner, from whose decision the appeal in said cause was taken, and that said Commissioner had no jurisdiction to render such decision and .judgment as aforesaid, and in consequence that this Court has not jurisdiction to lieai’, try and determine the same; therefore it is considered and ordered that said cause be, and the same is hereby dismissed; and that the said defendant do recover against said plaintiff his costs by him about his defense in this behalf expended.”

      Millerd & Gondict for plaintiff in error:
    The complaint states all the facts necessary to give the officer jurisdiction.

      The statute (Comp. L. §4986) prescribes that the complaint shall set forth “that the person complained of is in possession of the lands or tenements in question, describing them, and that such person holds the same unlawfully and against the right of the complainant.”
    This the complaint does, and we submit that such a statement is all that was necessary. The statute intended to provide a general form for a complaint in these proceedings, as it does for a declaration in ejectment.— 26 Mo.' 257.
    The statute of Missouri is so' nearly like ours as to make the decision apply equally well to ours.
    In our own State it has been held that the complaint must make such a statement of facts as brings the party" within the class of cases for which a remedy is provided by the act. — 2 Doug. Mich. 374, 376 ; 4 Mich. 344. But the statute under which the proceedings in the former case were taken, did not prescribe what the complaint should contain: and in the latter case, the Court seem to have followed the decision in the former, without noticing the change in the statute in that respect, and overlooking (as it seems to us), or disregarding the provisions of the 13th' section of the present statute.
    But, however this may 'be, the complaint in this case does also make such a statement of facts as, independently of the provisions of section 13, brings the party clearly within the class of cases for which a remedy is provided by the first subdivision of section 12 of the act, and thus complies with the rule as laid down by the Court in these cases. It shows:
    1. That the complainant bought the land of Moses Smith and' wife, and was, by the terms of the deed, entitled to the possession 'thereof, at their death.
    2. That the defendant .entered as the tenant of said Moses, in- his life time, after the execution of said deed.
    3. That said Moses and wife are both dead, and that the complainant is now “the person entitled to the possession.”
    4. That the right of the defendant as lessee had terminated by the death of his lessor, and the consequent determination of his estate: and
    5. That the defendant holds over, unlawfully, against the rights of the complainant.
    The judgment for costs was clearly erroneous. — 4 Ohio, 200 ; 2 Wood. & Minot, 417; 1 Swan, 193 ; 1 Wis. 511; 4 Wis. 188.

      Geo. Kingsley and T. M. Cooley for defendant in error:
    To give the Commissioner jurisdiction, the complaint must allege all the facts necessary to bring the case within the statute. — 2 Doug. Mich. 376, 377; 4 Mich. 339 ; 16 Barb. 473. The statute does not undertake to give a form of complaint, but only indicates certain things to be set forth. The facts which show a right to take the proceeding must still be shown.
    The complaint is clearly bad because not showing that complainant, at the time of the commencement of the proceeding, was entitled to possession. — 6 Hill, 316 ; 4 Mich. 339,

    The judgment for costs was correct. It has been frequently decided that costs cannot be taxed where a cause is dismissed for want of jurisdiction. But the contrary has also been frequently held: — 3 Cranch, 514; 12 S. & M. 629; 6 Greenl. 405; 19 Me. 22; 26 Miss. 172. In this case we think our statute gives costs:— Comp. L. §§ 5597, 4991, 5600. See 7 Metc. 590; 8 Metc. 343; 8 Cush. 313; 4 Gray, 201; 28 Me. 102; 11 Ala. 122; Ibid. 340; 8 Ind. 147; 23 N. Y. 164; 5 Cow. 33, Where a proceeding is commenced in a court of limited jurisdiction, and removed thence by appeal, the appellate court has jurisdiction to set aside and annul the erroneous judgment: — 39 Me. 465; 5 Metc. 236, 240, note; 6 Fost. 203. On appeal in this class of cases the statute expressly allows the court to award costs.— Comp. B, §§ 4998, 3863.
   Christiancy J.:

This was a proceeding before a Circuit Court Commissioner to recover the possession of certain land, claimed to be wrongfully withheld by the defendant Smith. The Commissioner gave judgment for restitution in favor of complainant. The defendant appealed to the Circuit Court: and the Circuit Court, on the trial of the appeal, gave a judgment of dismissal, on the ' ground that the matter in controversy was not within the jurisdiction of the Commissioner, and, consequently, that the Circuit Court had no power to hear and determine the matter in controversy on appeal; and the complainant removes the case to this Court by writ of error.

It is clear from the nature of the case stated in the complaint, that it was intended to be brought under the twelfth and thirteenth sections of chapter 123 Rev. Stat. of 1846 (Chap. 150 Comp. laws) applicable to cases where possession has neither been taken nor held by force, and that, if the complaint cannot be sustained under these sections, it must fail.

Several questions have been raised, which, from the view we have taken of the case, we do not .deem it necessary to notice. It is objected by the defendant that, even admitting the case made by the complaint to be, in other respects, sufficient, it fails to make a case coming within the provisions of the statute, and therefore to give jurisdiction to the Commissioner; because it does not aver that the complainant was “entitled to the possession of the premises ” at the time the complaint was instituted.

This being a special proceeding, not according to the course of the common law, and before a special tribunal of limited powers, it is clear that the complaint must show upon its face all that is necessary to bring the case within the statute, and to confer jurisdiction, or none can be obtained.

Under the Revised Statutes of 1838, Chap. 5, Title III, Part 3, and the amendment of 1840 [haws of 1840, p* 83 &c.)5 which made no provision as to the ' form or requisites of the complaint,, this, on the general principles of pleading, could only be done by setting- forth the particular facts malting a case within the statute; Caswell v. Ward, 2 Doug. Mich. 374; Royce v. Bradburn, Ibid. 377. This was found to be often difficult and embarrassing, and not well adapted to a summary proceeding. The Revision-of 1846, Chap. 123, was, we think, intended to remove this difficulty to some extent, by indicating a form of complaint, in which the case might be set out in a general form, without setting forth the particular facts, and somewhat on the principle of the statute declaration in ejectment. The twelfth section of the chapter describes the various classes of cases in which this proceeding may be had. The thirteenth section is in the following words-: “In the cases specified in the preceding section, the person entitled to the possession of the premises, his agent or attorney, may make complaint in writing and on oath, and deliver the same to a Circuit Court Commissioner or Judge of the Circuit Court for the county, setting forth that the person complained of is in possesáon of the lands- or tenements in question, describing them, and that such person holds the same unlawfully and against the right of the complainant.”

It is doubtless true that a complainant is not bound to avail himself of the benefit of this section, but is still at liberty to set out in full the particular facts to bring his case within the statute. If however, he elect to do this, he can omit no fact which is essential to his case,, or which is necessarily included in, or implied by, the general form of complaint indicated by the statute.

Whether under this thirteenth section it would be necessary to indicate in any manner under what clause of the twelfth section the complainant intended to bring his case, it is not necessary here to decide; but we are inclined to the opinion that this may be left to the proof.

But the complaint must show upon its face that it is made by the “person entitled to the possession, his agent or attorney.” No other person is competent to make it. In whatever form, therefore, the complaint is made, the allegation that the complainant (or person in whose behalf the complaint is made) is at the time entitled to the possession, constitutes a necessary part of the complaint, without which no jurisdiction can be obtained. It' is true the latter part of the section does not expressly enumerate this as one of the matters to be set forth; but it is necessarily implied by'the former portion of the section, which requires the complaint to be made by the “ person entitled to the possession, his agent or attorney.” This was expressly decided in Bush v. Dunham, 4 Mich. 339. The decision, it is true, was made upon a complaint under the third section of the same chapter; but the language of the two sections is identical, in this respect; in neither is the allegation expressly required in that part of the section stating what shall be set forth; but its necessity is equally and necessarily implied in both. In the present case there is no such allegation. It is true the complaint, after setting forth- a certain deed to complainant fi;om Moses Smith and wife, which reserved a life estate to the grantors, and averring the death of the two grantors — the last on the fourth day of June 1858 — avers that complainant thereby “became entitled to the possession of the premises.” This, however, is but an allegation that he was entitled to the possession on the fourth day of June, 1858, more than fourteen months prior to the making of the complaint. As matter of evidence, ‘a fact, in its nature continuous, being once shown to exist, will often be presumed to continue, unless the contrary be shown. Whether this rule applies to pleading in ordinary cases, it is not necessary here to determine, as it certainly cannot apply to the averment of a jurisdictional fact, which is required to be an existing fact at the time the proceeding is instituted,.in order to confer jurisdiction of a special proceeding like this. This point was also directly decided in Bush v. Dunham, ubi supra. The express allegation of the existing right of the complainant to the possession can, we think, be dispensed with only by setting out the particular facts which show the right to be an existing one. Hence we think the complaint in this case was not sufficient to confer jurisdiction.

But it is assigned as error that the Circuit Court gave judgment for costs against complainant, which it is insisted the Court had no authority to do, if he had no jurisdiction of the subject matter of the complaint.

Had the statute provided this pi;pceeding as an original one in the Circuit Court, and the complaint had been thus defective, this objection would, doubtless, be well taken. But when the statute gives an appeal, as in this case, from the Circuit Court Commissioner to the Circuit Court, it gives to the latter the jurisdiction to decide upon the jurisdiction of the Commissioner as one of the questions involved in the appeal, and the appeal may be brought for the purpose of avoiding the effect of the Commissioner’s decision on this very ground. We can see no reason therefore to doubt the power of the Circuit Court to give the judgment for costs against the complainant in this case, under § 5600 Comp. Laws, as' the complainant would have been entitled to costs had the judgment been in his favor:— Ibid. §§ SSSH and 4991. We think, therefore, there was no error in the judgment or proceedings of the Court below, and that the same should be affirmed, with costs.

Martin Ch. J. and Manning J. concurred,

Campbell J.:

I agree in the. result arrived at by my brother Christiancy, both as to the insufficiency of the complaint and the liability for costs.

I think also that enough should appear on the complaint to show that the case comes within one of the enumerated classes in which summary proceedings are allowed. It is a general rule that the jurisdiction of special tribunals over the case presented should appear on the record, and it seems to me this is not made otherwise by the statute. I see nothing in our present law to make the case of Caswell v. Ward, 2 Doug. Mich. 376, inapplicable. That case was decided upon another statute, but I do not think that upon this point there is any repugnancy between the different enactments.

Judgment affirmed.


author: Manning J.:

text:
    Dan Daniels v. Volney A. Ripley.
    Arbitrators must all bo present at tlie execution of the award.
    Where two of three arbitrators signed an award when the third was not present, and the third signed it afterwards when but one of the other two was present, it was held not a valid award.

      Heard April 23d and 24th.

      Decided May 27th.

    Error to St. Clair Circuit.
    The action was brought by Ripley against Daniels, on an award signed by H. Chamberlin, John E. Kitton and Alexander Gilchrist, purporting to be made under a submission executed by said Ripley and Daniels, by which all matters in dispute between them were referred to “the decision and arbitration of Harmon Chamberlin, John E. Kitton and Alexander Gilchrist, or to any two of them.” The questions arising on the trial sufficiently appear by the opinion.

      C. I. Wcdlcer and W. T. Mitchell for plaintiff in error:
    The award purporting to be made and signed by all the arbitrators, must be treated as the award of all. — 1 Gilm. 102.

      To constitute it a valid award, it must be the joint act of all, at one and the same time. A several concurrence in the same result is not sufficient. This results from clearly established principles.
    All the referees must joint in the award, unless it be specially provided in the submission that a less number may make it: — 4 Conn. 50; 34 Me. 161; 7 Ind. 669; 6 Johns. 39. And even where less than the whole may decide, all must be present at a hearing, unless one wilfully absent himself, in which case an award of the others may be given: — 1 Metc. 411; 30 Pa. St. 384; 3 Sandf. S. C. 405; 3 A. & E 245. And except in the case of willful absence, they have no power to do any act unless all be present. They cannot agree upon an award, nor execute it, nor even adjourn:— 2 M. & G. 351; 13 M. & W. 466 ; 5 E. & B. 404; 1 C. B. (N. S.) 695 ; 14 B. Monr. 292; 7 Wend. 534; 4 E. & B. 43.
    The refusal to charge in this case, and the charge as actually given, substantially amount to this pi-oposition of law: That if the arbitrators had come to a verbal understanding how the award should be, and had separated never to meet again, and afterwards a written award was drawn up, comformable with such verbal understanding, and was severally signed by them without further meeting or consultation, it was a good award. This can not he law. The verbal agreement is not an award, for that must be in writing. It was subject to alteration until 'signed. If they had met and consulted upon the award as drawn up,- and had interchanged viervs upon it, and carefully considered it, they might never have signed it. It was not, therefore, their joint but their several award.
    But the award, when two of the referees had met and signed it, even if void in itself, exhausted the power of the referees. And any subsequent award would be void; even an attempt to correct a mistake. — 8 N. H. 516; 3 Greenl. 85 ; 4 Comst. 375 ; 7 Ind. 672 ; 8 East, 54; 3 Mich. 527.

      R. P. Eldredge and A. B. Maynard for defendant in error.
   Manning J.:

It being admitted on the trial by the plaintiff in error, who was defendant in the Court below, that the award was signed by two of the arbitrators in the presence of each other, but not in the presence of'the other arbitrator, who signed it at a different place, and when the other arbitrators were not present — the award was offered in evidence and objected to, because it was not signed by all the “arbitrators in the presence of each other. The objection was overruled, an exception was taken, and the award was received in evidence.

Again, among other things, the judge was requested to charge the jury that, if they should find that all the arbitrators were not together at the time the award was signed, it was no award. The Court refused so to charge, but did charge the jury that, if they should find that the award was the award agreed upon by the arbitrators when all were present, the signing of the award afterwards, by one of the arbitrators in the presence of one only of the two arbitrators who had previously signed-it, and in the absence of the third arbitrator, did not vitiate the award, or render it void. The refusal to charge as requested and the charge as given were excepted to.

The question raised by these exceptions^ for our decision is, whether arbitrators, after they have agreed upon their award, must all be present when it is executed by them? By the words, executed by them, as here used, we do not mean that each must be present when the others sign their names, but that all must be present giving their assent to the award, if it has been signed by any of them'before, when it is executed by the others.

In Wade v. Dowling, 4 E. & B. 43, and in Moore v. Ewing, Coxe (N. J.) 144, it was] decided that the arbitrators executing the award must all be present when it ia signed by them, and that when it is signed by them at different times, and not in the presence of each other, the award is void. See also Lord v. Lord, 5 E. & B. 404, and Beck v. Jackson 1 C. B. (W. S.) 695. In Maynard v. Frederick, 7 Cush. 247, relied on by the defendant in error, the question did not arise and was not decided by the Court. The arbitrator who, after its terms were agreed on, drew up the award and signed it, was present when it was finally executed by the other arbitrator, who declined signing it at the time it was drawn up. This clearly appears, we think, from the statement of the case.

The reason of the law requiring the presence of all to make the award operative, seems to be twofold: 1st, It Is necessary because the award is the joint judicial act of all, at which all who sign it must be present to give their joint assent. And, 2d, That an agreement on the terms of an award to be afterwards drawn up and signed, is not binding on the arbitrators, who may at any time thereafter, before it has been signed by them, modify or change it to supply an omission, correct a mistake, or make it conform to any change of opinion that may have, taken place on further or more mature consideration. This is a right not only of the arbitrators, but of the parties who have submitted their differences to be decided by them.

But it was argued the award might be held valid as the award of two of the arbitrators. In Ott v. Schrœppel, 4 Barb. 255, the case chiefly relied on in support of the proposition, the submission required the attestation of a subscribing witness to the award. There was a witness to the execution of the award by two only of the three arbitrators, and the Court say “in law, the award not being attested as to the third arbitrator, was not his award. It was in legal intendment the award of the two who subscribed it, and whose signatures were attésfced.” In that case the award, on its face, showed of which two of the arbitrators it was the award. It is not so in the case before us. There is nothing on the face of the award showing it not to be the award of all three of the arbitrators. And if we could look into the evidence to ascertain of which two of the arbitrators it is the award, it would appear that Kitton was present when it was signed by Chamberlin and Gilchrist, but that neither of them was present when it was sig'ned by the other. We could not therefore say it was the award of Chamberlin and Gilchrist, as neither was present when the other signed, and there would be no more propriety in calling it the award of Chamberlin and Kitton, than there would be in calling it the award of Kitton and Gilchrist. The judgment must be reversed, with costs.

The other Justices concurred.


author: Christiancy J.:

text:
    Thomas Delany v. The People.
    The offense of lewd and lascivious cohabitation under the statute is a joint offense, of which both the parties must be guilty, or neither.
    And both must be joined as defendants in the same information or indictment, unless one of the parties be unknown, or since dead.
    But though both must be jointly charged, the trials may be separate; and one may be convicted and sentenced before the other is tried.
    An information which charged that one T. “did lewdly and lasciviously associate and cohabit with one M., he, the said T. being then and there a man, and she the said M. being then and there a woman, and they, the said T. and M., not being then and there married to each other,” does not charge the parties with a joint offense, but is a charge against the man alone, and therefore bad.

      Heard April 26th and 26th.

      Decided May 27th.

    Error to the Recorder’s Court of Detroit, where plaintiff in error was convicted upon an information of which the following is a copy:
    “ State ok Michigan,
    County ok Wayne,
    City ok Detroit,
    “The Recorder’s Court in and for the city of Detroit: in said Court, of the November term thereof, in the year of our Lord one thousand eight hundred and sixty-one.

      “In' the name of the People of the State of Michigan, I, David E. Ilarbaugh, Prosecuting Attorney in and for said county of Wayne, who prosecutes for and on behalf of the People of said State, in said Court, come now here in said Court, and give the said Court here to understand and be informed, that Thomas Delany, late of said city of Detroit, on the first day of May, in the year of our Lord one thousand eight hundred and sixty-one, and from that day to the twentieth day of October, in the year last aforesaid, at the said city of Detroit aforesaid, did lewdly and lasciviously associate and cohabit with one Mary Stewart, of said city, he, the said Thomas Delany, being then and there a man, and she, the said Mary Stewart, being then and there a woman, and they, the said Thomas Delany and Mary Stewart, not being then and there married to each other; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the People of the State of Michigan.
    David E. Harbaugh,

      Prosecuting Attorney of Wayne County, Michigan.”

      Duel <& Trowbridge, for plaintiff in error,
    argued that the information was defective in not charging that Delany and Mary Stewart did lewdly and lasciviously associate and cohabit together. The crime created by the statute is a joint act. It requires the equal joint action of two persons: Whart. Prec. 776, 777; 1 Swan, 136; 2 Yerg. 589; 2 Humph. 414; 6 Ired. 340; 20 Mo. 210. Where the statute creates an offense which, from its nature, requires the participation of more than one person to constitute it, as in conspiracy, riot and the like, a single individual can not be charged with its commission: — Whart. Cr. L. § 367 ; 1 Chit. Cr. L. 271; 15 Vt. 22; 6 Ired. 340; 2 Dev. 569. The case can not be brought within the statute by inference, conclusion, intendment or implication: — 1 Bish. Cr. L. §§ 115, 134; Whart. Cr. D. § 364; 2 Hawk. Ch. 25 § 110; 4 Port. 410; 2 Mass. 127.

      C. Upson, Attorney General, contra,
    referred to 1 Mass. 8; 10 Mass. 153; 4 Cush. 49; 1 Pick. 136, 139 ; Train and Heard’s Prec. of Ind. 352; Wharf. Prec. 774; 2 Va. Cas. 332; 2 Metc. 190.
   Christiancy J.:

Does the information charge any offense for which the defendants can be legally convicted? It is clear it charges no offense at common law, as it is not charged to have been openly, publicly or notoriously committed: — 1 Bish. Cr. Law, § 379; 1 Bl. Com. 64; Whart. Cr. Law, § 2396; State v. Evans. 5 Ired. 603 ; Commonwealth v. Catlin, 1 Mass. 8.

It can not therefore be maintained iinless it charge an offense within the statute. The charge is that “ Thomas Delany, on the first day of May, in the year one thousand eight hundred and sixty-one, and from that day to the twentieth day of October, in the year last aforesaid, at &c., did lewdly and lasciviously associate and cohabit with one Mary Stewart, he, the said Thomas Delany, being then and there a man, and she, the said Mary Stewart, being then and there a woman, and they, the said Thomas Delany and Mary Stewart, not being then and there married to each other; contrary to the form of the statute,’’ &c.

It is urged by the prisoner’s counsel, that the offense created by the statute is a joint offense only, of which one alone can not be guilty; that both must be guilty or neither, and that the information charging Delany alone, charges no offense within the statute. The statute in question (Comp. L. § 5861) is in these words, uIf any. man and woman, not being married to each other, shall lewdly and lasciviously associate and cohabit together, or if any man or woman, married or unmarried, shall be guilty of open or gross lewdness and lascivious behavior, or shall designedly make any open and indecent exposure of his or her person, or of the person of another, every such person shall be punished,” &c. It is clear from the words of the statute that all the other offenses in this section, except that now in question, are several and not joint, as the joint language is dropped after the definition of this, the first offense mentioned in it.

The sufficiency of the information must depend, first, upon the question whether it was legally possible for Delany to commit the offense alone, without the woman being guilty of the same offense; and, if not, then, second, whether the information can be supported as a joint charge against both, and upon which both could be tried.

If the offense consisted simply in cohabiting with each other not being married, perhaps one might be guilty while the other was not; one might be insane; or the form of a marriage ceremony might have been adopted, which one might believe to be a valid and binding marriage, while the other, having a former husband or wife living, might know it to be void. Here, as one party might be acting in perfect good faith and without guilty knowledge, the cohabitation as to such party could hardly be called lewd and lascivious within the spirit of this statute. The same may perhaps be said of adultery, and even of incest; for, though the words of the statute in the latter case are in the form of a joint offense (Comp. L. § 5810) yet one might be ignorant of the relationship, while the other had full knowledge of it. In such case, therefore, it may be fair to presume that the Legislature did not intend to make the offense strictly and necessarily joint, so that one could not be legally guilty without the other; and, if so, when the question arises upon the indictment or information, the want of a joint charge against the 'two might be no objection.

But in the case of lewd and lascivious cohabitation under this statute, not only must the parties, being unmarried, associate and cohabit with each other, but that association and cohabitation must be lewd and lascivious on the part of both; if either was acting in good faith and without’ any guilty knowledge or guilty purpose, neither is guilty of this particular offense, though the one party might be guilty of adultery or some other several offense. It is not the several act, nor the criminal purpose of either, at which this particular provision is aimed; but the concurrent or combined action of the two with a common criminal purpose, which combined or joint action and common purpose constitute the offense, of which the action and purpose of each constitute only the separate ingredients. The analogy, therefore, so far as this question is involved, is complete between this offense and those of conspiracy and riot, which can not be committed by a single person: — 1 Hawk. P. C. Ch. 72; Wharf. Cr. Law, §§ 2339, 2348 and 431; State v. Tom, 2 Dev. (Law) 569.

The charge therefore must be joint; and both must be joined as defendants in the same information or indictment, unless one of the parties be unknown, or since dead: Same authorities: and see People v. Olcott, 2 Johns. Cas. 301; Rex v. Nichols, 13 Past, 412 note; Whart. Cr. Law, § 2348.

But though they must be charged jointly, they may be tried separately, and one may be convicted and sentenced before the other is tried: — Rex v. Cook, 5 B. & C. 538; State v. Tom, 2 Dev. 569; State v. Mainor, 6 Ired. 240; 13 Past, 412 and note. This, however, is on the principle that, as to the party thus tried, the guilt of both is found by the verdict: — State v. Mainor, 6 Ired. 340.

But the guilt of both can not thus be found, as to either, unless both be charged.

If one be tried, convicted and sentenced, and the other afterwards tried and acquited, this will, ipso facto, render the first conviction and judgment void; — Hawk. P. C. b. 2, Ch. 29. § 40 (7th ed.); State v. Tom, supra; Rex v. Cook, 5 B. & C. 538.

The information therefore can not he supported unless it he found to be a sufficient charge against both, and upon which both might be tried and convicted. The Attorney General insists that the information is good against both — that it was impossible for him to associate and cohabit with her, without her associating and cohabiting with him at the same time, and therefore, to charge him, is to charge her also. But the crime does not consist merely in associating and cohabiting; but both must lewdly and laseiviouly associate and cohabit together. “If any man and woman, not being married, &c., shall lewdly and lasciviously associate and cohabit- together,” &c. If a party can be charged with a crime in an indictment or information by mere implication, instead of a direct charge (which may well be doubted) — 1 Bish. Cr. Law, §§ 115 134; Whart. Cr. Law, § 364 — it must at all events be. a necessary implication, and without which the facts charged could not possibly be true. But there is nothing in the information which necessarily implies that the association and cohabitation on the part of the woman was lewd and lascivious. All that is stated may be true, and yet she may have acted with good faith and innocence in the whole matter. She is not charged with having done anything; and the very form of the charge clearly indicates the intention not to make her a defendant, or to charge her with any offense.

We have been referred to but one case which is precisely in point, — State v. Byron, 20 Mo. 210, — which is the present case in all its features. The statute was the same in effect, the charge the same against the man alone, who was convicted, but the Court held the indictment bad and the conviction wrong, for the same reason we have given here.

We are referred by the Attorney General to Hutchins v. Commonwealth, 2 Va. Cases, 332, cited in Wharton’s Free. 1000, to show that this information is good against both parties. The Court in that case say the indictment charges the offense in the very words of the statute: and if the gist of the offense consisted in the “willing, unlawful and incestuous cohabitation” (for we have not seen the statute), both parties were directly and distinctly charged. None of the cases cited by the Attorney General can, we think, be looked upon as an authority for sustaining this information against one, or to show that it is a sufficient charge against both. Commonwealth v. Catlin, 1 Mass. 8, was an indictment against the man alone for “open and gross lewdness and lascivious behavior,” which, in its nature, as well as by the words of their statute (as well as ours) was clearly a several offense. Commonwealth v. Calef, 10 Mass. 153, was a case like the present, and involved the same question in its facts, but no such question was raised, nor, therefore, decided. The only question discussed or decided was, whether one act of intercourse constitutes cohabitation under the statute: and it was very properly held that it did not. There was no necessity for raising any other question. In Commonwealth v. Hunt, 4 Cush. 49, the point was not involved, nor any opinion given upon it. The same is true of Commonwealth v. Putnam, 1 Pick. 136, and Commonwealth v. Elwell, 2 Metc. 190.

Commonwelth v. Goodhue, 2 Metc. 193 may be supposed to involve a question similar to the question involved in the present case. Defendant was indicted for a rape upon his daughter, and it was held he might be convicted of incest, it not appearing to have been committed with force or against her will. The question was in' all respects the same as it would be under our statute in a similar case. The case is not very fully reported, and no question of the joint nature of the offense was raised. But had it been raised, it may well be doubted, as already intimated, whether this statute in reference to incest (which is the same as ours) was intended to render incest strictly and solely a joint offense.

IJpon the whole, we are satisfied that the information in this case charges no offense. The judgment of the Recorder’s Court must therefore be reversed.

The other Justices concurred.


author: Campbell J.:

text:
    Charles Jackson v. The City of Detroit.
    Equity will not interfere to relieve a party on the ground tliat assessments are irregular and unauthorized hy the strict provisions of law, where they avo substantially authorized hy and made in 'reliance upon his own express agreement.

      Heard May 6th.

      Decided May 27th.

    Appeal in Chancery from Wayne Circuit.

      Morrow <& Damson for complainant.

      Ross <& McJEhtee and Walker & Dent for defendant.
   Campbell J.:

A hill was filed in this cause setting up that an assessment has been made and is about being enforced against complainant, for paving in front of his property on Washington Avenue in the city of Detroit. The objections urged against the validity of the assessment are based upon certain provisions of the charter, whereby the powers of the city are limited, and certain rules are laid down for governing the management of public expenditures.

The principal objections urged were, that under the charter all work of the kind in question must be done by the lowest bidder, who puts in proposals after a previously determined period of advertising: that it must be done within the year when ordered: and that no extension of the time was legal on a contract made when the one in controversy was made; and also that no contract could be extended at all unless the work had been commenced under it.' All these provisions are claimed to have been violated.

It appears by the answer that, before this street was ordered to be paved, an ordinance was submitted to the property owners' on Washington Avenue, and accepted by them, whereby they were allowed to ornament and enclose a wide strip on each side of the street, and have the roadway paved or gravelled, within eighteen months, according to the adopted plans and. specifications for 1860, the year when the contract was let. In accepting this proposition, the lot owners assented that the paving and sidewalk expenses might be assessed and collected under the ordinances and charter in the usual manner.

As the time had been fixed so as to allow the work to be done within eighteen months, we can hardly presume that it was the design of the parties in accepting the proposition of the city to destroy this important provision. Taken together we think that the terms of the consent were merely designed to permit the city to get at the proper assessments, and to collect them, in the usual manner, but not to require contracts to be limited to the year 1860, or to make any new advertisement, inasmuch as the plans and specifications for paving had, as appears from the contract itself, been already adopted, and are expressly assented to. These appear from the answer to have been general, and designed to apply to all streets.

We do not think that a court of equity can properly interfere to relieve a party, on the ground that assessments are irregular and unauthorized by the strict provisions of law, where they are substantially authorized by and made in reliance upon his own express agreement. There is no charge or pretence that the work has been badly done, or at extravagant rates, nor is there any showing of bad faith. Whether therefore the agreement was void as set up on the argument, or whether the assessments can be lawfully collected, we do not feel authorized to inquire. Where an agreement has been substantially earned out, and the party at whose instance or by whose consent the work is done seeks to avoid paying for it without showing any want of equity in the other contracting party, he must seek his redress in some other tribunal. A court of equity ought not to relieve under such circumstances.

The bill was properly dismissed, and the decree below must be affirmed, with costs,

The other Justices concurred.


author: Martin Ch. J. : Campbell J.: Manning J.:

text:
    Israel E. Carleton v. The People.
    A county may be created and have existence as such, notwithstanding it has no county officers. Per Martin Oh. J.
    And where anew county is created by setting off for that purpose organized townships from existing counties, the supervisors of these townships are thenceforth supervisors of the new county, their powers being conferred and duties imposed by the general laws of the State, instead of by the act creating the new county. Per Martin On. J. and Manning J. '
    It is not absolutely necessary to the existence of a County Board of Supervisors that there be a person authorized to perform the duties of County Clerk. The Board is a constitutional body, and if there be no County Clerk, it may appoint a person to act as its clerk, so as to enable it to proceed to the discharge of its duties. Per Martin Ch. J.
    A county was organized by setting off certain townships from existing counties. The act for that purpose was passed February 4th, 1859, and provided for an election of county officers “ at the annual township election to he held in April next” which officers were to enter upon the discharge of the’ir duties “ on the first day of June next.” But the act not having been ordered to take immediate effect, did not take effect under the Constitution until May 16th, 1859. An election was nevertheless held for county officers in April, 1859, and the persons who were chosen qualified and entered upon the discharge of the duties of county officers at the time specified.

      Held per Martin Cir. J. and Manning J. that whether this election was lawful or not, these persons were officers de facto, and the legality of their tenure of office could only be questioned in a direct proceeding for that purpose, to which they were parties. Where there is an office, all that is required to make an officer defacto is that the individual claiming the office be in possession of it, performing its duties, and claiming to bo such officer under color of an election or appointment, as the case may be.
    But per Campbell J., Christiancy J. concurring, there can be no officer de facto where no officer de jure is provided for. To give the law any force it must be held to apply to the annual election next after it took effect, and prior to that time the law would negative the idea that there could be lawful incumbents of the county offices.

      Heard November 14th 1861.

      Decided May 30th.

    Error to Muskegon. Circuit.

      JB. G. Walker for plaintiff in error.

      G. Upson, Attorney General, for the People.
   Martin Ch. J. :

Carelton was elected supervisor of thp township of Oceana, at the township election held in April, 1859, and duly qualified as such. His township at that time was in the county of Oceana. By an act of the Legislature, approved February 4, 1859, the county of Muskegon was organized from territory which at the time was included within the limits of Oceana and Ottawa counties, and within this territory was the township of Oceana. The information charges Carelton with willfully neglecting to produce the assessment roll of his township, for examination and equalization, to the Board of Supervisors of Muskegon county, at its annual meeting in October of that year. It is found by the sj>ecial verdict, that at the time of the alleged neglect Carleton was supervisor of the township of Oceana; that he did refuse to present the assessment roll of his township “to a body of men calling themselves and assuming to act as the Board of Supervisors of the county of Muskegon; that such body of men, being composed of the sujiervisors of the several townships embraced within the county of Muskegon, claim to act and be a legal Board of Supervisors under and by virtue of the act approved February 4, 1859, and that -in accordance' with the provisions of the said act, county officers fpr said Muskegon county were elected and qualified in April, 1859, and entered upon the discharge of their duties, and still continue to act as such, and that no other >ori different county officers have at any other time been elected- or assumed to act.”.

Carleton" sets up by way of defense, and as ground of error, that he was not bound to present the assessment roll of his township to the body acting as the Board of Supervisors of Muskegon county, because the act of February 4th was unconstitutional, and there was therefore no such county: 1st, because, as he alleges, by such act so many townships are taken away from the counties of Ottawa and Oceana, as to leave in neither of them “the number secured by the Constitution; ” and, 2d, because the fourth section of the act provides for the election of officers prior to the day when the act could constitutionally take effect.

The first ground of defense has been held invalid by us in Hice v. Ruddiman [ante], and for reasons in which I fully concur; and.it only remains to consider the second.

The fourth section, which provides for the election of county officers, is claimed to be vital to the whole act, so that if unconstitutional it will destroy the act.

The section is as follows: “ At the annual township election to be held in April next, the proper county officers for said county shall be elected, whose terms of office shall expire on the first day of January, 1861, and when their successors are elected and qualified: said officers, on or before the first of June next, shall take and subscribe-the oath of office prescribed,” &c., “and shall have and possess all the powers and discharge all the duties- conferred upon, or required of county officers in this state, and shall enter upon the discharge of such duties on the first day of June aforesaid.” The Constitution provides that no public act shall take effect or be in force, until the expiration of ninety days from the end of the session at which it was passed, unless the Legislature shall otherwise direct by a two-thirds vote of the members elected to each house. This direction does not appear to have been given in respect to the act in question, and the ninety days expired about the middle of May, more than a month after the election of county officers under section four was held.

The special verdict finds, that an election, in April, 1859, of county officers, was had, and was so had in accordance with the provisions of the act. That such officers were elected was a question of fact, proper for the jury to find; but whether the election was in accordance with the provisions of the act, or not, was a question of law, belonging to the Court alone. I have no doubt, however, that such election was in accordance with such provisions; for the language of section four imports an intention, upon the part of the Legislature, that the new county should be fully organized, and go into active political existence upon the first day of June, 1859, as that would be the first of June next after the act took effect; while it would be-absolutely erected, and its territory severed from the counties out of which it was carved, at the time the act took effect, viz: at the expiration of ninety days after the close of the session at which it was passed, which was about the 16th of May. But although an election of county officers in April, 1859, under this section, may have been unconstitutional, yet the section was not so vital to the whole act, as to render the whole unconstitutional. The election of county officers was not a pre-requisite to the creation of the county; for, by the very terms of the act, such county became a body corporate and politic long before the officers thus to be elected could enter upon their duties; and such creation was not dependent upon their election and qualification. If the election could not constitutionally have been held until the spring of 1860, yet the territory of the county of Muskegon was completely and effectually severed from Ottawa and Oceana on the day the act took effect. I therefore hold the law organizing the county to be constitutional, so far as the separation of such territory is concerned. Vide Commonwealth v. Fowler, 10 Mass. 291. In the new county were several organized townships, and from the time the act took effect they became organized townships of such county, and their supervisors thenceforward were supervisors of such county. These supervisors were not elected under the act organizing Muskegon county, nor did they derive from that act their powers, nor were their duties imposed by it. Such powers and duties spring from the general law regulating the election, powers and duties of such officers.

As supervisor of the township of Oceana, the plaintiff in error had certain duties imposed upon him, which, for reasons of'public policy, he was imperatively bound to discharge: among these were the assessment of the property of his township, and attendance as a member of the Board of Supervisors of his county at its October session, and the production of his township assessment roll for equalization. We cannot presume that he neglected either of these duties, except that of presenting his roll for equalization.

In October, 1859, the act had taken effect and become a law; and the supervisors of the several townships constituting Muskegon county, were the Board of Supervisors of such county. The assessment rolls of such townships were in their aggregate the rolls of the county, and not of the counties from which the townships had been detached. The revenues of State, county and towns depended upon the faithful discharge of the duties of the supervisors of the several townships, as township officers, and as members of the County Board.

Neither the election of county officers under the fourth section, or their non-election, affects the question of the duty of the supervisors of the new county, either as township or county officers. In either character, the law imposes upon them the performance of positive duties, the non-performance of which cannot be excused by evidence that some other officer could not perform his, or even that there was no competent officer, having power to perform some other duty. It is urged that there could be no county Ijoard, for want of a County Clerk — that his existence is vital to that of the Board: I think otherwise. The-Board of Supervisors is a constitutional body:— Vide Const. art. X; — and is not dependent for its lawful existence, or imwer to perform the duties imposed upon it, upon the existence of a clerk constitutionally elected. The law, it is true, provides that the County Clerk shall be the clerk of the Board, but if there be no such officer existing as County Clerk, from any cause. .at the time the Board is required to meet and equalize the assessment rolls of the several townships, and discharge its other public functions, I have no doubt that, from necessity and considerations of public policy, the Board possesses the power to appoint a clerk, who shall be clerk de facto, and that it can proceed to the discharge of its public duties. It would be perilous in the extreme to hold otherwise. The whole revenue of the State, and very much local legislation of the county, depend upon the action of the Board; and if such action could be prevented or stayed by the death, sickness or absence of the County - Clerk, or any vacancy of his office, public interests would be at the mercy of accident or caprice. I know of no instance, nor can I conceive of any instance in reason, in which the powers of a constitutional- body depend upon any such contingency, or are held by any such tenure.

But while I hold that Carleton cannot insist upon the objection that the section providing for the election of county officers rendered the whole act unconstitutional, for the foregoing reasons, I hold further, that if the act be good, except the fourth section, and that be unconstitutional, he could not refuse to discharge his duty, as the case shows that thfere was, in October, 1859, a clerk de facto of the county, and therefore a Board of Supervisors duly organized with a clerk competent to act. As to the rights of third persons and of the public this was sufficient. The question of the legality or illegality of his tenure of office, can only be raised in a direct proceeding in which he is a party. It would be impossible to maintain the supremacy of the laws, if individuals were at liberty, in a collateral manner, to question the authority of those who in fact hold public offices under color of legal title. — See People v. White, 24 Wend. 520; Morris v. The People, 3 Denio, 381. The case of People v. Bebee, 9 Mass. 231, is to my mind strikingly analogous to the present, and contains the only safe rule. The facts were that, on the 17th of August, 1812, an original writ was issued and served by a deputy sheriff of the county of Hampden. By a statute of 1811 the county of Hampden was erected, and it, among other things, provided that the law should take effect and be in force from the first day of August, 1812. In May, 1812, the Governor of Massachusetts appointed a sheriff of Hampden county, and on the first of August the sheriff appointed the deputy by whom the writ was served. It was insisted that, at the date of the appointment of sheriff, there was no county of Hampden, nor any such officer as sheriff of such county, and that the appointment of sheriff by the Governor, before the act took effect, was void; but the Court held that the sheriff thus appointed was sheriff of the county de facto, and that as he was no party to the record, and could not be legally heard,? the question of his title to the office should not be heard; saying that the decision, although he was not a party to the record, would as effectually decide his title to the office as if he were a party, and that this would be judging a man unheard, contrary to natural equity, and the policy of the law; and that from considerations like these has arisen the distinction between holding an office de facto and de jure. Tet in the case of Commonwealth v. Fowler, (10 Mass. 291), who was appointed Judge of Probate of Hampden county, at the same time as the sheriff in the above case, namely, in May, 1812,. upon an information in the nature of a quo warranto, the Court held the appointment void. In so holding the Court says, “No public inconvenience need be apprehended from the principle established by this decision; for so long as the persons were de facto officers under such an appointment, their official acts were lawful, except only in cases of direct injuries to their fellow citizens. But it is always in the power of the Legislature to provide against this inconvenience, and to prevent all question upon the subject by authorizing the appointment before the act creating the county is to come into operation.”

In Bucknam v. Ruggles, 15 Mass. 180, it was held that the acts of an officer de facto, having color of title, in the ordinary exercise of the functions of his office, are valid as respects the rights of third persons who may be interested in such acts; that the adoption of such a rule is necessary to prevent a failure of justice, and the great public mischief whifeh might otherwise be justly apprehended; and besides, that the officer’s title to his office ought not to be determined in that way. See also The People v. Collins, 7 Johns. 549 ; McInstry v. Tanner, 9 Johns. 135; The State v. Brennan's Liquors, 25 Conn. 278; The State v. Williams, 5 Wis. 308; Brown v. Lunt, 37 Me. 423. In The People v. Hopson, 1 Denio, 574, which was an indictment for assaulting and beating one Lascelles, a constable, and resisting him in the execution of his duty, the defendant offered to prove that Lascelles had never taken the oath of office, nor given the security required by law, and so was not constable; but Bronson C. J. says* “the evidence would be proper if Lascelles instead of the People were the party complaining, of an injury. If he were suing to recover damages for the assault, it would probably be a good answer to the action that he was not a legal officer; but a wrong doer who might be resisted. * * * But it is equally well settled that the acts of ah officer de facto, though his title may be bad, are valid so far as they concern the public, or the rights of third persons who have an interest in the things to be done. Society could .hardly exist] without such a rule.”

In erecting the county of Muskegon the Legislature probably intended to authorize the election of clerk and other county officers before the act creating the county took effect, to avoid any inconveniences which might otherwise result. Whether this could be constitutionally done or not I will not inquire, for as there was such an election, and the persons chosen entered upon the duties of their offices, they were de facto officers, and Carleton coulcl not refuse to perform his duty as Supervisor, under the pretext that the clerk, or any other officer, was not constitutionally chosen.

I therefore think the judgment of the Court below should be affirmed.

Campbell J.:

The principal question in this case is, whether there were lawful county authorities in Muskegon county in October, 1859.

The statute of 1859, providing- for the organization of the county, ordered an election for county officers at the next annual township election in the spring. The law did not take effect until ninety days after the adjournment of the Legislature, and therefore was not in force in time to apply to the April election of 1859. To give the law any force whatever, it must be construed as applicable to the next spring election after it constitutionally took effect; for until a law goes into operation it cannot be noticed or binding at all, Its terms being prospective must be applied to events subsequent to that time. No election or other action can derive validity from that which in itself is invalid and inoperative. In the case of Rice v. Ruddiman, decided at this term, my brother Christiancy (in whose view I concurred) gave this interpretation to the statute in question. No election could be had under this statute until 1860.

There could not be an officer de facto where no officer de jwre was provided for. Where the law has provided that an office may legally be filled, then the acts of an incumbent may be valid although not lawfully appointed, because the public, being bound to know the law, know that somebody may or should fill the place and perform the duties; and possession would as to them be evidence of title.

But where the law itself negatives the idea that there can be a legal incumbent, any one assuming to act assumes wliat every one is bound to know is not a’ legal office, "and bis acts cannot be effectual for any purpose.

I think that, until after the spring election of 1860, the law could not recognize any county authorities in Muskegon county; and that the judgment should be reversed.

Christiancv J. concurred in this opinion.

Manning J.:

The constitutional provision that “No organized county shall be reduced by the organization of new counties to less than sixteen townships, as surveyed by the United States,” &c., must be understood to include fractional townshijis, as no exception is made of them, and there is nothing from which it can be implied.

When the act organizing the county took effect — whether at the expiration of ninety days from 'the adjournment of the Legislature, or on the first day of June (then) next, when the county officers were required to enter upon the discharge of their duties — the supervisors and other township officers of the townships detached from other counties to form the new county, occupied the same relation to the latter that they had previously stood in to the former. No question therefore was or can be raised as to the supervisors of the new county. It is the county officers elected at the annual township election in April that objection is taken to.

Assuming that they were not officers de jure — for I am not satisfied that that part of the act relative to their election comes within the purview of the constitutional inhibition — were they not officers de facto ? The special verdict states that they were not only elected, but that they qualified and entered upon the duties of their respective offices, and thereafter continued to act as ^uch officers. Where there is no office there can be no officer de facto, for the reason that there can be none de jure. The county offices existed by virtue of the Constitution the moment the new county was organized. No act of legislation was neces~ sary for that purpose. And all that is required where there is an office, to make an officer de facto, is, that the individual claiming the office is in possession of it, performing its duties, and claiming to be such officer under color of an election or appointment, as the case may be. It is not necessary Ms election or appointment should be valid, for that would make Mm au officer de jure. The official acts of such persons are recognized as valid on grounds of public policy, and for the protection of those having official business to transact with .public functionaries. The wheels of government would sometimes be blocked, and the administration of justice be .stayed, if such was not the law. The oases are numerous where the official acts of such persons have been held valid, and I am unable to distinguish the case before us from Fowler v. Bebee, 9 Mass. 231, which seems to me to be on all fours with it. See also 5 Wend. 231, and 17 Conn. 585.

The judgment below, I think, should be affirmed.

Judgment affirmed.