text:
    PEOPLE v. ADAMS.
    1. Criminal Law — Argument of Counsel — Failure of Defendant to Testify.
    In a prosecution for burglary, argument of tbe prosecuting attorney tbat be bad done everything in bis power, that there were seven men present and be bad called six of them to testify, objected to by defendant’s counsel as calling attention of tbe jury to tbe fact tbat defendant bad not taken tbe stand in bis own behalf, held, not reversible error, in view of tbe statement of tbe court not to consider any of tbe argument based on tbe defendant’s not taking tbe stand.
    Authorities discussing tbe question as to whether comments by prosecuting attorney on failure of defendant to produce witness is grounds for reversal or new trial, are collated in notes in 46 L. It. A. 641: 34 L. R. A. (N. S.l 811.

      2. Same.
    The inadvertent nse of defendant’s name, by the prosecuting attorney, in bis argument, in referring to another person’s refusal to come from out of the State and testify in defendant’s behalf, which was immediately corrected, held, so obviously an epror as not to have misled the jury.
    3. Same — Alibi—Beiattiang Witnesses — Cueing Error.
    Where the defense was an alibi, supported by the testimony of a saloon keeper and three of his patrons, the prosecuting attorney’s reference to them in his argument as an “alibi club,” while unfortunate, held, not reversible error, where the rights of defendant were amply protected by a full and fair charge.
    Error to Lenawee; Hart (Burton L.), J.
    Submitted October 15, 1920.
    (Docket No. 117.)
    Decided December 21, 1920.
    William Adams was convicted of burglary and sentenced to imprisonment for not less than 15 nor more than 30 years in the State prison at Marquette.
    Affirmed.

      Herbert R. Clark, for appellant.

      Leland F. Bean, Prosecuting Attorney, for the people.
   Brooke, J.

Defendant stands convicted of the crime of “burglary with explosives” under the provisions of section 15338, 3 Comp. Laws 1915. He did not take the stand in his own behalf, his sole defense being that of an alibi. He tendered the testimony of a saloon keeper in Toledo and three habitues of that place, all of whom swore that they saw him in Steck’s bar at an hour which would have made it impossible for bim to have been at the scene of the crime (50 miles distant from Toledo) at the time of its commission.

The only errors argued by counsel for the defendant relate to the closing argument of the prosecuting attorney in which it is urged the prosecutor improperly commented upon the fact that defendant had not taken the stand in his own behalf. The question arose in the following manner. During the closing argument of the prosecutor to the jury, counsel for the defendant said:

“I object to the argument that there were seven known men there and he had brought six of them to testify, and had done everything in his power.
“Mr. Bean (prosecuting attorney): That is the proof.
“Mr. Clark (defendant’s counsel): You have no right to comment on that question.
“Mr. Bean: Mr. Clark commented on the fact that I hadn’t tried to enlighten this jury or to bring evidence to them.
“Mr. Clark: No. It was that you hadn’t explained the evidence in the case.
“The Court: I think you may go ahead and comment on the evidencé you brought.
“Mr. Clark: He said, T wrote it down on my notes, and if I am mistaken about it, don’t pay any attention to what I say/
“Mr. Beam,: I say this to you, that we have done every single thing in our power to throw enlightenment for your benefit as jurors as to what occurred down there, and as to why this defendant William Adams was at that bank. We have done everything that we can.
“Mr. Clark: Just a minute. I want the record to show that the prosecutor made the argument that there were seven men there, six detectives and William Adams, and that he had brought six here and done everything in his power to bring all the evidence he could. I want a ruling and exception.
“The Court: All right. I will say, gentlemen, on that objection, you have no right to consider any of the argument based on the defendant not taking the stand. You may consider any argument based on what the prosecutor has done, that he has brought these men here, but nothing as to the defendant should be considered by you whatever.
“Mr. Clark: May I have an exception?
“The Court: You may have an exception.”

It is the contention of counsel for the defendant that the argument, of which complaint is made, is in direct violation of section 12552, 3 Comp. Laws 1915, in that by calling the attention of the jury to the fact that seven men were there and six had been produced (the seventh being the defendant) it amounted to a statement that the prosecutor had no power to compel the defendant to testify. While we have very frequently held that the provisions of this statute must be strictly observed by the prosecutor, we are unable to say that the language of the prosecutor quoted, coupled as it was with the statement of the trial judge, constitutes reversible error.

Later, and bearing upon the same question, the following occurred:

“Mr. Bean: But Mr. Clark says that if a man was any kind of a man he would come. If he knew that William Adams was in the city of Toledo that night, he would come in here and tell you so, I submit. Take Mr. Clark’s own statement, that if William Adams was any kind of a man he would have taken the stand—
“Mr. Clark: I object to that, your honor.
“Mr. Bean: When he was out there in the corridor.
“Mr. Clark: That if William Adams were any kind of a man he would take the stand.
“The Court: Do you mean that Adams would have taken the stand?
“Mr. Bean: No. I mean William Burmeister.
“The Court: You said ‘he.’ That refers to the last man.”

And it is said by defendant’s counsel that the matter was again brought to the attention of the jury through the inadvertence of the prosecutor in using the name of Adams instead of the name of Burmeister. We think the error in the use of the name is obvious and the jury could not have been misled in the light of the correction made in the next sentence.

Error is assigned upon the following remarks of the prosecutor:

“Mr. Bean: Why, gentlemen of the jury, Mr. Clark told you about the witnesses for the defense, that I didn’t discuss, them in my opening argument. I didn’t. Let us discuss them now. This alibi club from Steck’s saloon in the city of Toledo. What is the testimony of the proprietor of this alibi club ? i “Mr. Clark: I take exception to that kind of argument.
“The Court: I think, gentlemen, there is no evidence in the case that there is any club or any president of it. You have a right to consider where they came from, and all that, as bearing on the weight you will give their testimony. You may proceed.”

It is the contention of the defendant’s counsel that to characterize the witnesses from Toledo as an “alibi club” was unfair, tended to belittle and discredit the testimony of said witnesses in the minds, of the jury, and to interfere with the fair and orderly administration of justice. Of course, it is the right as well as the duty of the prosecutor to comment upon the testimony given by witnesses for the defense and to draw such legitimate inferences from such testimony as may be warranted. While the use of the term “alibi club” may have been unfortunate, we do not think that it should be held to constitute reversible error. The rights of the defendant were amply protected by a very full and fair charge.

The judgment is affirmed.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    WESTERHOUSE v. OTTAWA CIRCUIT JUDGE.
    1. Execution — Statutes — Uncertainty — Common Daw Applicable.
    The common law on the subject of body executions obtains in this State except as modified or amplified by statute (3 Comp. Laws 1915, § 12816 et seq.), and where uncertainty as to the meaning of the statute exists recourse should be had to the common-law rule.
    2. Same — Failure to Charge on Alias Writ — Discharge—Supersedeas.
    Where plaintiff’s property and body executions on defendant had been returned unsatisfied, he at that time being at liberty on special bail, and thereafter upon his surrender - in discharge of his bail plaintiff failed to charge him in execution within 20 days, upon an alias writ, as she might have done under 3 Comp. Laws 1915, § 12839, and, on order to show cause why supersedeas directing his discharge should not be granted, offered no reason or excuse for her failure to do so, he was properly discharged.
    Mandamus by Fannie Westerhouse to compel Orien S. Cross, circuit judge of Ottawa county, to vacate an order granting a writ of supersedeas.

    Submitted November 4,1920.
    (Calendar No. 29,336.)
    Writ denied December 21, 1920.

      Charles E. Misner, for plaintiff.

      Daniel F. Pagelsen, for defendant.
   Steere, J.

Plaintiff, Fannie Westerhouse, commenced a tort action by capias against defendant Orrie J. Staal in the circuit court of Ottawa county on September 7, 1918. He obtained release from arrest by bail to the sheriff, and filed special bail to the action on September 23, 1918. The case was duly brought to trial by jury and plaintiff secured a judgment against him for $600 on March 28, 1919. He moved for a new trial which was denied, and on April 21, 1919, plaintiff caused a property execution to be issued and levied upon a certain piece of land then standing in the name of defendant Staal and wife, claimed by them as a homestead and exempt from levy. Plaintiff unsuccessfully tested this question by bill in aid of execution filed on May 7, 1919, in the Ottawa circuit court, in chancery, proceedings in which lasted until April 2, 1920. Unable to-collect her judgment by said property execution, the return day of which was May 14, 1919, she caused the same to be returned unsatisfied on April 20, 1920. On April 21, 1920, she caused body execution to issue against defendant, and on May 13, 1920, the sheriff returned the same not served becausé defendant not found. On the same day plaintiff com- > menced an action against defendant’s two sureties on his special bail bond. Shortly thereafter defendant appeared and surrendered himself, and on May 14, 1920, his sureties produced him before a circuit court commissioner of Ottawa county who committed him to the custody of the sheriff, and proceedings were then had pursuant to statute before and by the commissioner under which he exonerated the sureties from all liability on said special bail bond.

On June 3, 1920, petition for writ of supersedeas to release defendant from custody was filed by his counsel in the circuit court of Ottawa county, and an order made for plaintiff to show cause on June 15, 1920, why the same should not be granted. Showing was duly filed and the matter thereafter heard, resulting in an order signed by the circuit judge and filed June 18, 1920, granting said petition for a writ of supersedeas but staying all proceedings until further order of the court. Plaintiff thereupon obtained an order from this court requiring the circuit judge to show cause why a writ of mandamus should not issue directing said order be set aside as petitioned by plaintiff, to which return was duly made.

Two contentions against the validity of the order granting a writ of supersedeas are urged for plaintiff: First, that under the law applicable to the facts in this case the court had no jurisdiction to grant the writ, because the time within which body execution may issue as a matter of right after return of property execution unsatisfied is not limited to 20 days from the return day of the execution, as held by the circuit judge, but following the return thereof; and, second, if that contention is not well founded, that there was an abuse of discretion in holding no good cause was shown for the delay.

Our statute law upon the subject of body execution is found in chapter 23 of the judicature act entitled “Of Execution,” which begins with section 12816, 3 Comp. Laws 1915, and is first directly mentioned in section 12818, first authorizing property executions generally and second, “against the body of such party, in the cases authorized by law.” Of this it is said in Fuller v. Bowker, 11 Mich. 204: “The law by which this may be done must either be an existing statute or the common law.” Thus distinctly recognizing that except as modified or amplified by statute the common law on the subject of executions obtains in this. State, which suggests, as permissible consideration of the common-law rule in those cases where uncertainty as to the meaning of a statutory provision is open to construction.

It is unquestioned that in thistfcase execution .against the body is authorized by law, and that plaintiff is entitled to the same unless her right was lost by failure to act within a time limit of 20 days as specified by statute. The claimed relevant sections of the statute upon that subject are (3 Comp. Laws 1915, §§ 12837-12841, 12843):

“Section 22. When an officer shall have begun to serve an execution issued out of any court of record on or before the return day of such execution, he may complete the service and return thereof after such return day.
“Sec. 23. When any defendant at the time judg-i ment shall be rendered against him, in any court of ¡ record, shall be in the custody of the sheriff or other. officer, either upon process in the suit in which such;' judgment shall have been rendered, or upon being sur-; rendered in discharge of his bail in such suit, the1 plaintiff in such judgment shall charge such defendant in execution thereon, within twenty days after such ; judgment shall have been obtained.
“Sec. 24. When any defendant shall be in custody ¡ upon a surrender in discharge of his bail, made after a judgment obtained against him, and such bail shall) be thereupon exonerated, the plaintiff in such j udg-. ment shall charge such defendant in execution thereon,; within twenty days after .such surrender, or if an exe-; cution against the property of such defendant shall! have been issued within twenty days after the return'; day of such execution. \
“Sec. 25. If any plaintiff shall neglect so to charge any defendant in execution, as required by the two last preceding sections, such defendant may be discharged from custody by a supersedeas, to be allowed by any judge of the court in which such judgment shall have been obtained, unless good cause to the contrary is shown; and after being so discharged, such defendant shall not be liable to be arrested upon any execution which shall be issued upon such judgment.
“SecI 26. In those cases in which bail shall have been taken on the arrest of a defendant, and the bail bond shall have been assigned to the plaintiff; and in those cases in which special bail shall have been filed, no execution shall issue against the body of the defendant in such action, until an execution against the goods and chattels, lands and tenements of such defendants shall have been issued to the sheriff or other proper officer of the county in which such defendant was arrested, and shall have been returned unsatisfied, in whole or in part.
“Sec. 28. When the body of a party shall have been taken on an execution issued for that purpose, no other execution can be issued against him or his property, except in cases specially provided for by law.”

These sections have been upon our statute books for many years in the form and phraseology they now appear re-enacted in the judicature act, with the exception that in section 12838 the time for charging defendant in execution is shortened to “twenty days after such judgment shall have been obtained” from “three months after the last day of the term next following that at which such judgment shall have been obtained,” and section 12839 shortens the “three months” provision in the former corresponding section to “twenty days.”

It is urged for plaintiff that under the facts shown this case is controlled by section 12841, which made it imperative to have a property execution issued and “returned unsatisfied, in' whole or in part,” before a body execution could issue; that this was done and levy made during the life of the writ, but the service could not be completed and return made until after the return day, owing mainly to objections interposed by defendant and the necessity of filing a bill in aid of such execution, and pending those proceedings it was imperative that the sheriff hold his writ and withhold return, as authorized by section 12837 which, without other time limit, only requires that such execution “shall have been returned unsatisfied,” as a prerequisite to body execution, citing La Branch v. Herbst, 192 Mich. 129, and that in any event “good cause to the contrary” was shown under section 12840 by such undisputed facts that it was not within, the judicial discretion of the court to reject them.

For defendant sections 12838, 12839 are cited and it is contended that, in any aspect of the case, the plainly stated limit of 20 days controlled. Citing Douglass v. Manistee Circuit Judge, 42 Mich. 495; Metcalf v. Moore, 128 Mich. 138; In re Lauer’s Estate, 184 Mich. 497. Though illuminating in some respects, none of the cases cited nor any to which we are referred impresses us as directly in point upon the controlling question involved here.

The Douglass Case was removed by defendant to this court on writ of error without filing a bond to stay execution. The sheriff held a property execution unserved and unretumed long after the return day awaiting the result in this court, although he was at full liberty to proceed in the usual manner to levy and collect the judgment.

In the Metcalf Case the chancery proceeding urged as excuse for the delay had been decided and the amount decreed'paid upon the execution November 23, 1898, as appears by the printed record, while the execution, issued July 20,1897, was thereafter held by the sheriff until July 18, 1899, and then returned unsatisfied in part.

The Lauer Case turned upon the proposition that taking defendant on a void execution under which he could have obtained release at any time by applying to the court did not satisfy the judgment.

In the La Branch Case the concluding comment in the opinion, that defendant should be charged in execution “within three months from the date that the property execution is returned,” quoted by plaintiff and urged as a construction of the statute, was true as applied to the facts in that case but in its nature obiter, as not essential to a decision of the question involved nor to be taken as a construction of general application. In that case there was no dispute over whether the time for a body execution had passed. Defendant was yet in custody on a capias ad respondendum. Judgment had been taken and property éxecution had been seasonably returned unsatisfied. The record shows it conceded that the time in which body execution could issue thereafter had not yet expired. Plaintiff sought a statutory order of discovery to compel defendant to disclose under oath his financial resources. It was held under the facts shown that plaintiff was not entitled to such an order, which was the only question in controversy.

But conceding that plaintiff’s showing of justification for delay in making return of her property execution is persuasive, and even assuming that the return day thereof should be construed as advanced until the time of actual return under the exigencies shown and authority given the officer by section 12837, we are yet confronted with the fact that plaintiff did not charge defendant in execution at all after he was in custody on surrender in discharge of bail. Her previous body execution had expired unserved. Upon its return an alias body execution was at her command. People v. Kehl, 15 Mich. 330; Cir. Ct. Rule No. 18.

Reverting to sections providing a 20-day limit, we note section 12838 has no application here, for defendant was not in charge of the sheriff or other officer at the time judgment was rendered against him. He was then at liberty on special bail and so remained until after plaintiff’s property and body executions had been returned unsatisfied.

A situation then presented itself squarely covered by section 12839. On and after May 14, 1920, he was “in custody upon a surrender in discharge of his bail made after a judgment obtained against him and such bail” had been exonerated. Plaintiff did not charge him in execution on such judgment on an alias writ, as she might have done, within 20 days after such surrender, nor within 20 days after the belated return so far as appears, and on June 3d, 20 days after he was surrendered into custody and his sureties exonerated, defendant filed an affidavit with order of the circuit judge for plaintiff to show cause on June 15th, why a writ of supersedeas directing his discharge should not be granted. On that day plaintiff offered no reason for not charging defendant in execution within 20 days after his surrender. Her ineffectual attempt to do so before his surrender was not an excuse. That writ had not been executed, was returned non est inventus by the sheriff and was dead.

A quite analogous state of facts was before the court in Gray v. Thornber, 5 Cowen (N. Y.), 278. Defendant had then been surrendered to the sheriff in discharge of bail and later obtained an order, dated March 7th, from the recorder requiring plaintiff to show cause on March 11th why a supersedeas should not issue. On the showing it appeared a body warrant had been delivered to the sheriff on March 4th, returnable that day. The sheriff failed to serve the warrant and returned it non est, although defendant was in his custody “on the limits” when return was made. The recorder granted a writ of supersedeas tentatively, but declined to make the same absolute until it had been reviewed on appeal. • In a curia opinion the court of review said in part:

“The plaintiff has made an ineffectual attempt to charge the defendant. The execution was returned non est; and he might have issued an alias ea. sa. on the 11th. That would have been good cause, under the authorities cited for the motion. He did not do so; but seems to rely on the sheriff’s liability. In Minturn v. Phelps, 3 John. (N. Y.) 446, had it been shown to the court that the ea. sa. had miscarried, or had not been executed, * * * is there a doubt that a supersedeas would have followed? We think the recorder decided correctly.”

As applied to a similar situation in the instant case, we think the same was disposed of correctly.

The writ is denied, with costs to defendant.

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


author: Brooke, J.

text:
    DE CROUPET v. FRANK.
    1. Frauds, Statute of — Oral Contract to Purchase Land.
    In an action for .money had and received, no recovery could be had under the special count based upon an oral contract by which plaintiff paid money to defendant for the purchase of certain land, title to which was taken in the name of defendant, said contract being void under the statute of frauds (3 Comp. Laws 1915, § 11977).
    2. Same — Assumpsit—Common Counts — Pleading.
    Where the common counts were also relied upon, the trial judge was in error in directing a verdict for the defendant, since they are equitable in their nature and will support a recovery where money has been paid by plaintiff to defendant under a void contract.
    Error to Wayne; Hunt (Ormond F.), J.
    Submitted October 6, 1920.
    (Docket No. 25.)
    Decided December 21, 1920.
    Assumpsit by Jacob DeCroupet against Anna Frank for money had and received. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Reversed.

      Thomas A. Conlon, for appellant.

      Barbour, Field & Martin, for appellee.
   Brooke, J.

In the summer of 1916 Christian De-Croupet died. He had, some four years prior to his death, incorporated the DeCroupet Iron Works, with a capital of $25,000 (250 shares at $100 par each). Of this capital stock he held in his own name at the time of his death 240 shares, Frederick Hesse held 5 shares and Charles Frank held 5 shares. By the terms of his will, a daughter, Elizabeth DeCroupet, received 96 shares; a son, Jacob DeCroupét (plaintiff herein), received 96 shares; and a daughter, Anna Frank (defendant herein), received 48 shares. Through the consent of his sisters, plaintiff, in the fall of 1916, took charge of the business as general manager. At that time plaintiff and defendant seem to have been running the business without much reference to the wishes of the sister, Elizabeth DeCroupet, owner of 96 shares of the stock.

There is no dispute about the fact that plaintiff and defendant decided that it would be of advantage to the corporation if additional land could be acquired in the vicinity of that already occupied by the corporation. To that end'it was agreed between them that a parcel should be acquired in the name of defendant Anna Frank, costing approximately $6,000. Anna Frank agreed to and did mortgage some property of her own for the sum of $5,000, which she contributed to the purchase, and the plaintiff gave to her approximately the sum of $1,100, which she in turn paid over to the vendors of said land, taking title to same in her own name.

In February, 1917, the friendly relations between plaintiff and defendant came to an end, defendant Anna allying herself with her sister, Elizabeth, and plaintiff was ousted from the management of the business, the same being turned over finally to the husband of Anna. The corporation, controlled as it was by Anna and Elizabeth, declined to take over the land and pay for it, whereupon plaintiff demanded that defendant return to him the $1,100 he had invested therein. This being refused, this action followed.

The first count in the declaration was a special count, setting up the agreement of the parties, and this is followed by the common counts in assumpsit.

There is no dispute between the parties that it was intended ultimately to turn the lot over to the corporation and to receive back the money advanced by plaintiff and defendant in the purchase thereof. It is, however, the claim of the defendant that after the corporation had refused to take the lot, she demanded that the plaintiff reimburse her for the amount that she had invested in the lot and take it himself.

It seems to be conceded upon all hands that no recovery could be had under the special count, the agreement being void under section 11977, 3 Comp. Laws 1915. The learned circuit judge directed a verdict in favor of the defendant, and upon motion for a new trial said:

“The court is of the opinion that if plaintiff has any remedy it would not be for money had and received, but possibly upon a bill in equity for a sale of the property and a distribution of the proceeds to the respective parties proportioned to the amount of money invested, but as at present advised, the court adheres to its original decision, that no recovery can be had in this action for money had and received, and accordingly the motion for a new trial is hereby denied.”

The sole question involved is the propriety of the action of the court in directing a verdict and in holding that no recovery could be had under the common counts, and it is this question which is argued in the briefs. A consideration of the facts involved leads us to the conclusion that the learned circuit judge was in error in so holding. It is undisputed that the money contributed by the plaintiff was paid to defendant under an agreement void under the statute. It is undisputed that the title to the property purchased, being in her name, she has had the beneficial use of the plaintiff’s money. We have many times held that the common counts in assumpsit are equitable in their nature and will support a recovery where money has been paid by plaintiff to defendant under a void contract. Davis v. Strobridge, 44 Mich. 157; DeMoss v. Robinson, 46 Mich. 62; Murphy v. McGraw, 74 Mich. 318; Harty v. Teagan, 150 Mich. 75; Taylor v. Belton, 188 Mich. 302. See, also, Scott v. Bush, 26 Mich. 418; Nims v. Sherman, 43 Mich. 45; Duquette v. Richar, 102 Mich. 483.

The judgment must be reversed and a new trial granted.

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


text:
    TESKE v. TESKE.
    Trusts — Accounting—Admissions.
    In a suit by a mother against her son to set aside a deed to him and for an accounting by him for the proceeds of a sale of said premises, where defendant claimed to have purchased the land from his mother for $3,000, but admitted that he held the proceeds in trust for her, the decree of the court below for plaintiff for the amount of said claimed purchase price only will be modified and one entered in this court for the full amount received by him less his expenses and commission paid.
    Appeal from Macomb; Lamb (Fred S.), J., presiding.
    Submitted October 13, 1920.
    (Docket No. 93.)
    Decided December 21, 1920.
    Bill by Caroline Teske against William Teske and others to set aside a deed and for an accounting. From the decree rendered, plaintiff appeals.
    Modified and affirmed.

      William, E. Henze, for plaintiff.

      Lungerhausen, Weeks & Lungerhansen, for defendants.
    The bill in this case is filed to set aside a deed from plaintiff to her son, defendant William Teske, and for an accounting. Plaintiff herein, at the time of the transaction of which complaint is made, an old lady about 85 years of age, on May 6, 1919, made a warranty deed of her home (consisting of 9% acres of land) to her son, defendant William Teske, for the nominal consideration of one dollar. The real consideration, as testified to by defendant Teske, was the sum of $3,000. No money was paid to plaintiff by defendant Teske at the time of the execution of the deed, nor at any time thereafter.
    Eight days later (on May 14, 1919) plaintiff and defendant Teske executed an option to one C. R. Tromley, covering said property, the price named in said option being $5,000. This option was later exercised by defendants Tromley and Lyness, at which time they paid to defendant Teske the sum of $2,000 in cash and gave him two mortgages, one for $1,500 and one for $1,300, the difference between the sum of these amounts ($4,800) and the $5,000 mentioned in the option being the agreed commission upon the sale. With reference to the execution of the option, defendant Teske testified:
    “I explained it to my mother in German and I says, if you want me to sell the place I says, you have got to be satisfied when this option is drawn and when they are ready to buy, we have to sell the place and she said, ‘Yes.’ She thought it was a big price and ought to let it go.

      “Q. How much was the price?.

      “A. Five thousand dollars and two hundred dollars commission. * * *

      “Q. What talk was had at that time?

      “A. She said she thought it was a good big price, $5,000, and I ought to sell it and give him an option and I said, you aré willing, and she said, ‘Yes.’ You ought to sell it and I says, it depends all on you, that I would just as lief keep it and I says then go ahead. (Continuing:)
    “Mother and myself signed the option at that time. She was satisfied to sell the land. Nothing was said at that time as to what was to be done with my mother. This was some time in May. I didn’t hear from Mr. Lyness or Mr. Tromley again for a long time, one or two months. I am not sure but 1 saw my mother once or twice between the time of making the option and signing the deed in August. When I executed the deed, I received $2,000 cash and two mortgages, one for $1,500 and one for $1,300, which mortgages have been recorded and still are in my name. * * *
    “Q. Why have you not paid any money to your mother on account of her support under this arrangement?

      “A. She never asked me for any. (Continuing:)
    “I have made no effort in that respect. She never asked for any, and if she wanted some, she could get it. I had no reason to go- and see if she needed anything when they ordered me out. I am willing to spend the money and mortgages on the old lady for her benefit for the rest of her life, for her board and funeral expenses and doctor bills, clothes and whatever she needs.

      “Q. What, if anything, was said at that meeting as to what should be done with any of the funds left over • after your mother’s death, if there was any left then?

      “A. That is a hard thing to say; the fellow that had trouble he ought to have what was left.
    “Q. Was anything said about that?

      “A. No, sir.

      “Q. Was anything said about any amount that would be short in case your mother used up- all the $4,800?

      “A. No, nothing said.

      “Q. It is your claim that you hold it as a trust fund for the benefit of your mother.

      “A. Yes, sir.”

      This evidence was elicited from defendant Teske by his own counsel.
    Plaintiff, upon the stand, after a long examination finally said:
    “I was satisfied to take $5,000 and give the man $200 for his trouble.”
    The learned circuit judge before whom the case was heard entered a decree holding the deed to be valid and that the true consideration therefor was $3,000, which sum was, upon the entry of the decree, paid into court by defendant Teske. The decree also ordered that said sum be paid to the plaintiff upon her filing a proper receipt therefor. The bill was dismissed as to the remaining defendants who were apparently held to be innocent purchasers without notice.
    Plaintiff has appealed solely for the purpose of compelling defendant Teske to account for the $1,800 retained by him and the $200 allowed by him as commission, it being admitted by her counsel that the other defendants were bona, fide purchasers and that the decree was properly .dismissed as to them.
   Brooke, J.

(after stating the facts). After a careful perusal of the evidence contained in this record and in particular consideration of the testimony of defendant Teske relative to what passed at the time the option was given to Tromley, we have reached the conclusion that the learned circuit judge was in error in holding that the true consideration was but $3,000. It is, we think, quite evident that defendant Teske intended to act in the transaction for the benefit of his mother, and if he considered the transaction when he secured the deed for one dollar as a valid one, conveying title to himself, it is not apparent why he should have secured his mother’s signature to the option 8 days later. As he now admits in his testimony that he considers himself the trustee for the mortgages as well as the cash, we can see no reason why the decree should not compel him to account for that portion of the consideration now retained by him. He should be allowed the $200 paid as commission and such other legitimate expenses as, he has incurred in the transaction. A decree will be entered in this court, charging him with $4,800, less such expenses, upon the amount of which counsel can no doubt agree at the time of the settlement of the decree.

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


text:
    PEOPLE v. VINUNZO.
    1. Homicide — First-Degree Murder — Statutes — Ejusdem Generis — Malice—Evidence.
    In a prosecution for murder, the contention of counsel for defendant that because in the statute defining murder in the first degree (3 Comp. Laws 1915, § 15192) the words “or any other kind of willful, deliberate and premeditated killing,” follow the language “all murder which shall be perpetrated by means of poison or lying in wait,” the doctrine of ejusdem- ffeneris should be applied, and in all acts of murder not of the general kind or class mentioned malice cannot he inferred, hut evidence of express malice is necessary to sustain a conviction of murder in the first degree, cannot he sustained.
    2. Same — Evidence—Sufficiency.
    Evidence that defendant, without any previous altercation with deceased, at close range fired a revolver shot into the hack of deceased’s head and three or four into his hody, and then immediately ran away from the scene of the shooting, held, to justify a verdict of murder in the first degree.
    Error to Wayne; Webster (Arthur), J.
    Submitted November 6, 1920.
    (Docket No. 107.)
    Decided December 21, 1920.
    Barbro Vinunzo was convicted of murder in the first degree, and sentenced to life imprisonment in the State prison at Jackson.
    Affirmed.

      Roscoe Griffith and Maurice E. Fitzgerald (Hollis Harshman, of counsel), for appellant.

      Alex. J. Groesbeck, Attorney General, Matthew H. Bishop, Prosecuting Attorney, Allen W. Kent and Collins B. Scott, Assistants Prosecuting Attorney, for the people.
   Brooke, J.

Defendant is now undergoing a life sentence in solitary confinement, at hard labor, as punishment for the commission of the crime of murder in the first degree. The evidence introduced on behalf of the people tended to show that about the hour of half-past seven p. m., on March 27, 1918, defendant, in company with one James H. Blair, was walking west of Hamilton boulevard on Banner avenue in the village of Highland Park; that when they had arrived at the alley first west of Hamilton defendant reached around behind Blair and fired a revolver shot into the back of his head; that Blair fell to the ground, whereupon defendant shot three or four other bullets into Blair’s body and immediately ran up the alley. He was pursued and in a very short time was overtaken and placed under arrest.

He took the stand and testified in his own behalf. He admitted being within four or five paces of Blair at the time of the shooting, but claimed that the shots were fired by another man. He further admitted that he ran up the alley immediately after the shooting, but claimed that he did so being impelled by fear.

The one assignment of error discussed in the brief of counsel for defendant deals with the contention of counsel that express, malice, under the statutes of Michigan, is an essential element of the crime of murder in the first degree, and that there is no evidence in this case of express malice within the meaning of the statute. The statute (3 Comp. Laws 1915, § 15192) is as follows:

“All murder which shall be perpetrated by means of poison, or lying in wait, or any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and shall be punished by solitary confinement at hard labor in the State prison for life.”

It is argued by counsel for defendant that because the words “or any other kind of willful, deliberate and premeditated killing” follow the language “all murder which shall be perpetrated by means of poison or lying in wait,” the doctrine of ejusdem, generis should be applied and the words “or any other kind of willful, deliberate and premeditated killing” should be construed as applicable to acts only of the same general nature or class as those enumerated, i. e., killing by means of poison or lying in wait. Counsel say:

“The statute makes the crime more explicit by requiring that the murder shall be perpetrated by willful, deliberate and premeditated killing. It seems to counsel that the character of willfulness, deliberation and premeditation meant is that of the character evidenced by killing by poison, lying in wait or in the perpetration of some of the crimes mentioned.”

We are of the opinion that this question is definitely settled by our own decisions contrary to defendant’s contention. The doctrine was announced in this State in the early case of People v. Potter, 5 Mich. 1 (71 Am. Dec. 763), and is correctly summarized in the brief of counsel for the people as follows:

“The use of a lethal weapon is not in itself sufficient evidence to warrant a verdict of murder in the first ’ degree but in addition to this there must be evidence in the case, as to circumstances surrounding the killing or the manner in which the weapon is used, from which a logical inference may be drawn that there was willfulness, deliberation and premeditation.”

In the case of People v. Wolf, 95 Mich. 625, it is said:

“The learned counsel for respondent contends that there was no evidence to sustain the verdict because there was no proof of previous deliberation or premeditation. This would result in holding that deliberation and premeditation cannot be inferred from the character of the weapon used, the wounds inflicted upon vital parts, the circumstances surrounding the killing, the acts, conduct and language of the accused before and after the killing and the improbability of the story told by him.”

See, also, People v. Jackzo, 206 Mich. 183, where the doctrine announced in these two cases is affirmed.

Evidence introduced on the part of the people indicated that powfler marks and burns were found on the cheek of Blair, the deceased, indicating that the weapon had been fired at very close range. Defendant’s evidence was to the effect that the man who did the killing stood at a distance of some 15 or 20 feet from Blair at the time of the shooting. This fact, together with the defendant’s evidence as to his flight and the reasons therefor indicate the improbability of the story told by him. Aside from this, the evidence of the people’s witnesses shows that the killing was willful, deliberate, and premeditated. There was ho sudden affray nor was the homicide preceded by any altercation, according to the evidence of eyewitnesses.

We are of the opinion that the verdict and judgment are fully justified by the evidence. The judgment is affirmed.

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


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    CORLISS v. CLINTON CIRCUIT JUDGE.
    1. Receivers — Motion to Dismiss — Mandamus.
    In mandamus proceedings to compel the circuit judge to vacate an order appointing a receiver, plaintiffs’ contention that the receiver should not have been appointed pending a decision upon their motion to dismiss the suit for receivership is without merit, where it appears that the motion to dismiss was denied at the time the order for the appointment of the receiver was made.
    2. Same — Appointment of Receiver Before Pinal Decree — Discretion of Court — Statutes.
    Where it clearly appears that said receiver was not appointed primarily for the purpose of acquiring possession of plaintiff corporation’s property and income, but in order to preserve the property and avert danger of a ruinous loss, amounting to at least 50 per cent, of the value in case the plants remained closed, there is nothing in 3 Comp1. Laws 1915, § 13221, to prevent the court from so exercising its sound discretion in appointing said receiver for tlie purpose of keeping said plants in operation prior to a full hearing and final decree.
    Mandamus by Leroy Corliss and another to compel Edward J. Moinet, circuit judge of Clinton county, to vacate an order appointing a receiver.
    Submitted November 6, 1920.
    (Calendar No. 29,429.)
    Writ denied December 21, 1920.

      Hotz & Lee and Searl & Searl, for plaintiffs.

      Smith, Beckivith & Ohlinger, E. C. Froehlich, and F. J. Shields, for defendant.
    In this proceeding plaintiffs seek to compel defendant by mandamus to set aside an order appointing a receiver prior to final judgment. By bill of complaint and supplemental bill in the original case, it is made to appear that the National Bank of Commerce, plaintiff therein, is the holder of three $10,000 notes, executed by defendant Leroy Corliss, plaintiff herein, to the order of defendant the Ekenberg Company, said notes having been duly indorsed by the Ekenberg Company and negotiated to plaintiff. The notes became due and payable, respectively, on the 15th of February, 1920, March 1, 1920, and April 1, 1920. The notes in question are but a part of a series of notes amounting to $80,000, given by plaintiff Corliss to the Ekenberg Company in part payment for two milk plants, one located at the village of Elsie, in Clinton county, and the other at the village of Ovid, in Clinton county, and a cheese factory and a residence in the village of Eureka, in Clinton county.
    By proper assignment, plaintiff Corliss turned over his contract of purchase to plaintiff Waterloo Creamery Company, both Corliss and said Waterloo Creamery Company being defendants in the original case herein. Neither the notes held by plaintiff nor those negotiated elsewhere by the Ekenberg Company were paid at maturity, although it is averred that payments aggregating some $2,000 have been made upon two notes held respectively by the State Savings Bank of Elsie and the State Savings Bank of Ovid. It further appears from said bill that the Ekenberg Company, a New York corporation, is now insolvent and in the hands of a receiver, appointed by the United States district court for the northern district of New York. It is averred in the pleadings that plaintiffs Corliss and the Waterloo Creamery Company, defendants, are insolvent.
    The record discloses a very earnest effort on the part of the plaintiff to secure payment of the overdue paper held by it all through the summer and up to September. Many promises, were made by Corliss to meet the demands of plaintiff, but he has been unable to pay the notes or any part thereof, nor was. plaintiff Waterloo Creamery Company, the assignee of Corliss’ contract, able to make payment.
    Late in September a supplemental bill was filed in which it was made to appear that the farmers in the vicinity of the plants in question, being in doubt as to the solvency of the plaintiff Waterloo Creamery Company, refused further to supply the plants with milk, and the plants were therefore forced to shut down. It is. further averred that to permit said plants to remain closed would result in a very serious depreciation in the value, and that unless they were maintained as going concerns the assets would be wholly insufficient to pay plaintiff and the holders of the other notes. A prayer for the appointment of a receiver was attached to the amended bill of complaint.
    Defendants in said proceeding (plaintiffs herein) moved for a dismissal of the bill of complaint principally upon the following grounds:

      “1. That several causes of action are improperly joined in said original bill and in said supplemental bill.
    “2. That the subject-matter involved in said original bill and in said supplemental bill is now under the jurisdiction of the United States district court for the northern district of New York and in the hands of a receiver in a bankruptcy proceeding pending in that court and that this court has no power or authority to appoint a receiver in this cause or grant any relief prayed for by said plaintiff.
    “3. That the court has no jurisdiction of the subject and the subject-matter of the action as set forth in the original bill of complaint filed and in the supplemental bill of complaint filed herein nor under either or both of them.

      “4. That neither the original bill nor the supplemental bill of complaint filed herein state facts sufficient to constitute a cause of action for equitable relief or for any relief prayed for therein.
    “5. That there is no equity in either of said original bill or said supplemental bill nor in both of them.
    “6. That each and both of said bills show upon their face that the plaintiff is not entitled to the relief prayed for or any relief whatever.
    “7. That the said plaintiff has a full, complete and adequate remedy at law.
    "8. That the said supplemental bill filed herein shows upon its face that the said plaintiff, if entitled to any relief whatever, is entitled to a money judgment only, which judgment a court of equity has no power to enter.
    “9. That there is now pending in the circuit court for the county of Clinton an action at law based upon the same cause of action set forth in said original bill of complaint and said supplemental bill of complaint commenced since the filing of said original bill and in which the plaintiff herein is plaintiff and in which these defendants are defendants and in which suit has been brought upon the same notes and obligations mentioned and set forth in said amended bill of complaint; and that by electing to pursue its remedy at law the said plaintiff herein has lost its right to ask any relief in the above entitled cause.”

      Defendants later filed objections to the appointment of a receiver upon practically the same grounds. Affidavits were filed by the parties in support of their several positions and testimony was taken in open court upon the question of whether a receiver should be appointed. An examination of the testimony discloses the fact that the Waterloo Creamery Company, plaintiff herein, defendant in the principal suit, was, on the first of October, indebted to the various farmers who had furnished milk to the several plants of the company in the sum of about $16,000 and that it was unable to pay the same. It further appears that without assurances that they would receive their pay for milk furnished, the farmers in the vicinity will not continue to supply milk. It further appears that if the plants are allowed to remain idle for any considerable length of time, the herds from which milk is now secured will be dissipated or the milk derived therefrom will seek other outlets, and if, at a later day, these plants are reopened, it will be very difficult if not impossible to secure a supply of milk. It further appears that the plants are worth, as going concerns, at least double the amount they would be worth if they were closed down indefinitely and that if so closed down, their value would be insufficient to pay the plaintiff in the original suit and the holders of the other notes given by Corliss as part consideration for the purchase thereof.
    These facts, having been made fully to appear, the learned circuit judge, defendant herein, before whom the matter was heard, denied the order to dismiss and made an order appointing a receiver, stating in his opinion:
    “I think from the proofs in this case and this matter for preliminary application for appointment of a receiver, they fairly show that this Waterloo Creamery concern is in somewhat a precarious financial condition at the present time. While there are some questions as to the right of the court of equity to appoint a receiver to take charge of real estate ordinarily the courts hold that cannot be done, but this is a little peculiar situation it seems to me. Here is an endeavor upon the part of the plaintiff to have a receiver appointed to take charge of this property for the purpose of preserving it and preserving the security. Proofs show that the plant is closed now, the milk supply has stopped, due in part to the fact that the farmers in that locality do not deem it safe to furnish any more milk to the concern on account of the fact they have some doubt as to whether they will get their pay for it. The proofs also show that the amount of money due now for milk supply, and past due, is not paid; indications are that there is no money on hand to pay it. A tentative settlement was made between the defendant creamery and that settlement has not been carried out. If a receiver were not appointed — • still the burden is not on the plaintiff to show this, yet I am convinced if a receiver is not appointed it will stand idle in about the same condition it is now. There is about $70,000 worth of notes outstanding against the company now past due. It seems to me that the situation is one which appeals to the discretion of the court, to the discretion of a court of equity for appointment of a receiver. I do not see any other way. I am satisfied from the proofs that a going concern is much more valuable than an idle concern as it is now, and that, of course, is manifestly so without any proof, because a concern of this character depends upon the agricultural community to supply the milk and when that is cut off there is nothing for the concern to do except to lie idle, and after lying idle for a length of time it would seem to me the supply of milk would be scattered, the farmers would sell their herds or dispose of the milk supply in other directions— probably be a hard thing to get it back again, I don’t know about that. I think from the proofs it is a matter which strictly appeals to the discretion of the court and I think I will enter an order appointing a receiver. You, gentlemen, may be able to agree upon the receiver without any waiving of your rights as to who shall be appointed, and I will defer to your wishes; otherwise I will name someone. An order may be made denying motion to dismiss and also an order made appointing a receiver; a similar order will be prepared.”
    In his return to the order to show cause, defendant finds, as a matter of fact, that the defendants are insolvent. The return not being denied, it will be accepted as true upon this point.
   Brooke, J.

{after stating the facts). The first contention of counsel for plaintiffs is based upon the assertion that the receiver should not be appointed pending a decision upon the demurrer (motion to dismiss), putting in issue the right to file the bill. This point is, we think, without force inasmuch as an order was made denying the motion to dismiss at the time the order for the appointment of the receiver was made.

The principal contention is that the court was without authority to appoint a receiver prior to a full hearing and a final decree. Many authorities are cited in support of this proposition, including Wagar v. Stone, 36 Mich. 364; Union Trust Co. v. Electric Co., 152 Mich. 568, and Sanford v. Newell, 204 Mich. 91, Reference is made likewise to the statute (8 Comp. Laws 1915, § 13221). It should, we think, be noted that the receiver in the case at bar is not appointed primarily for the purpose of acquiring possession of the property and income thereof, but in order to preserve the property and avert danger of a ruinous loss, not alone to plaintiffs but to the other holders of the purchase money notes. We are of the opinion that the statute cited does not prevent the circuit court, in chancery, from exercising a sound discretion under such circumstances. Ralph v. Shiawassee Circuit Judge, 100 Mich. 164; Union Street-Railway Co. v. City of Saginaw, 115 Mich. 300; Union Trust Co. v. Electric Co., supra; Webber v. Genesee Circuit Judge, 184 Mich. 112; Millen v. Potter, 201 Mich. 1. We are of the opinion that the true rule was announced by Mr. Justice Steere in the case of Sanford v. Newell, supra, where it is said:

“In that connection, however, it may be added that while not questioning the generally recognized broad power of equity courts in rare cases, of special emergency, where imminent danger of loss of the corpus of the litigation or irreparable injury is clearly shown, to interpose a receiver against the possession of real estate held under color of title, this court has consistently emphasized that the power of dispossessing a defendant by receivership pendente lite should be exercised with extreme caution in all cases, and adhered to the wide distinction between disturbing by receivership the peaceable possession of real estate at the instance of a party out of possession not in privity with the defendant in possession under claim of right, and cases where such relief is asked for the conservation pendente lite of claimed personal property involved in litigation.”

It is difficult to imagine a set of facts more strongly appealing to the discretion of a circuit judge than that presented by the case at bar. The testimony clearly shows without denial, although the plaintiffs were represented in court at the time of the hearing, that if the various plants involved in the litigation were permitted to remain closed for any considerable length of time the loss would amount to at least 50% of their value as going concerns and that the remaining value would be insufficient to answer the claims of the plaintiff and the other holders of the purchase money notes. We are of the opinion that the defendant wisely exercised his discretion in the appointment of a receiver in order that the plants might be kept in operation and the property preserved.

The writ is denied.

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


author: Fellows, J.

text:
    PEOPLE v. LIPSCZINSKA.
    2. Criminal Law — Homicide—Evidence—Admissibility.
    In a prosecution for homicide, where it was charged that defendant had killed a nun and buried her body under a pile of lumber in the basement of the church where it had remained for a number of years, and where the priest of said church had testified that he had secretly exhumed a human skeleton from the basement of the church and buried the same in the cemetery, it was proper to permit him to explain his reasons for so doing.
    2. Same — Evidence—Waiver.
    Where defendant offered proof by way of an affidavit of said priest that the original source of the information as to the presence of the skeleton was the bishop of the diocese, and that the skeleton was that of the nun whose murder was charged, defendant could not complain because the prosecution was permitted to confirm these facts, since she first introduced them.
    3. Same — Privileged Communications — Confessional—Waiver.
    If said testimony was privileged because obtained through the confessional, said privilege was waived by defendant, and she could not complain of the admission of testimony which went no further than to confirm the facts already proven by her.
    4. Same — Confessions—Admissibility.
    If a confession testified to, claimed to have been made by defendant, was made as the'result of inhuman treatment accorded to her by witness and the sheriff, which affected her mind, as claimed by her, it should not have been received in evidence.
    5. Same — Charge of Inhuman Treatment — Denial—Weight of Testimony for Jury.
    Where defendant’s testimony as to said inhuman treatment was denied by the witness and the sheriff, although the latter did not specifically deny seriatim each and all of the many indignities defendant claimed was heaped upon her, applying the maxim falsus in uno, falsus in omnibus, it was for the jury to say whether any of her testimony upon material matters was to be believed, and what weight should be given to said confession.
    6. Same — Confessions—Voluntary—Inducements.
    Testimony by said witness, who was not one in authority, that said confession was made to her following a request by defendant that witness do something for her, when witness answered “If ydu want me to do anything, tell me what and tell me all,” held, not to be such an inducement as rendered the confession inadmissible.
    7. Same — Admissibility of Confession Obtained by Deceit.
    Nor was said confession inadmissible because obtained by the deceitful method of placing said witness in the cell with defendant ostensibly as a prisoner, but for the real purpose of obtaining information.
    8. Same — Witnesses—Adverse Witness.
    Where defendant’s daughter was an inmate of the priest’s home with defendant and the nun whose murder is charged, and was in the house the afternoon the crime is alleged to have been committed, she was a proper if not a necessary witness for the prosecution toi produce, and where her testimony did not accord with an affidavit signed by her, the court properly allowed the prosecution to conduct' her examination along the lines of cross-examination, and treat her as an adverse witness.
    9. Same — Cross-Examination — Collateral Hatter — Answer Binding.
    Testimony offered by defendant to contradict some of the sheriff’s state.ments on cross-examination in reference to having defendant sign her name on a blank piece of paper, was properly excluded, since it was a collateral matter, and defendant was bound by witness’ answer.
    10. Same — Exhibition of Skeleton Not Objectionable. Exhibition of the skeleton found under the church, and used
    by the physicians in giving their testimony, held, not open to the objection that such gruesome exhibit was made to prejudice the jury.
    11. Same — Trial—Instructions—Requests.

      Seld, that the charge of the court fully protected the defendant’s rights, and that defendant’s reguests were given either in the language of the reguests or in substance.
    12. Same — Trial.
    Defendant’s reguest for reversal on the broad ground that she has not had a fair trial, and that she should have been acguitted, must be denied, where it appears that she had able counsel to defend her,, that her rights were fully protected by the trial judge, and that the evidence of her guilt is strong and convincing.
    Error to Leelanau; Mayne (Frederick W.), J.
    Submitted October 15, 1920.
    (Docket No. 116.)
    Decided December 21, 1920.
    Stanislawa Lipsczinska was convicted of murder in the first degree and sentenced to imprisonment for life in the house of correction at Detroit.
    Affirmed.

      P. T. Glassmire and Charles A. Withey, for appellant.

      Alex. J. Groesbeek, Attorney General, C. L. Dayton, Prosecuting Attorney, and P. C. Gilbert, Assistant Prosecuting Attorney, for the people.
   Fellows, J.

At the hamlet of Isadore in Leelanau county in a Polish settlement there was in 1907 a Catholic church presided over by Father Bieniawski. In his household were his sister, then a young girl, his housekeeper, the defendant, her daughter, 16 or 17 years old, and a chore boy named Gruba. There was, near the church, a convent and school where three nuns of the Felician order lived and taught the children of the parish. They were Sister Mary Janina, or Mary John, as she was sometimes called, Sister Angelina and Sister Josephine. Sister Janina was the superioress. These sisters were of somewhat delicate health and all of them remained at the convent during the summer vacation. It was expected that the bishop of the diocese would come to Isadore to bless the school on Sunday, August 25th. Upon such events the school was usually decorated. Among the .decorations used on such occasions were some artificial flowers which were stored when not in use under the church. The mother superioress usually saw to getting and putting up these decorations. The church faced on a north and south street and the ground sloped towards the back of the church. The basement under the church followed the slope of the land, no excavating having been done,- and was of uneven height. There was wainscoting around it, and there was a pile of pieces of lumber and boards stored there.

On the Friday preceding the expected visit of the bishop, Father Bieniawski, his sister and the lad, Gruba, went on a fishing trip for the afternoon to a lake not far from Isadore. They left shortly before one o’clock. The Father had been about home during the forenoon and saw Sister Janina several times. She was preparing for the decoration of the school. When they left for the fishing trip the three sisters, the housekeeper, and her daughter waved them goodbye. These five persons were the only ones left about the premises. The sisters were in the habit of taking an afternoon nap. They had separate rooms and defendant says she saw them draw the-shades in their respective rooms preparatory to taking their usual siesta.

Later in the afternoon and near four o’clock Sisters Angelina and Josephine discovered that Sister Janina was missing and communicated this fact to the housekeeper and her daughter. Search was made about the premises and in the neighborhood, but she could not be found. The fishing party returned about half-past seven or eight o’clock and the Father was informed of the disappearance of the Sister. The search continued until late in the night and was resumed the following day. The officers were notified and joined in the search. On Sunday the Father reported to his congregation the disappearance of Sister Janina and requested the men to organize and conduct a systematic search. Some 350 or 400 responded, but of no avail. Detectives were brought in from outside and a large reward offered. These efforts were likewise fruitless. Some two weeks after thé disappearance a bloodhound was brought to Isadore and being given the scent led the searching party through the cornfield into the woods. No thorough search of the basement was made, although some of the searching party went into it. It does not appear that the pile of boards or lumber was disturbed. All efforts to discover the whereabouts of Sister Janina, if living, or the location of her body, if dead, came to naught, and for years her disappearance was. among the unsolved mysteries.

In February, 1919, the officials of Leelanau county received information which caused them to make an investigation. They sought out the sexton of the church and from him learned1 that in the autumn before he had, by direction of, and assisted by, Father Podlaszewski, then priest of the parish of Isadore, dug up a human skeleton in the basement of the church where the boards and lumber had been, and that he had interred the bones in the cemetery. He showed the officials where they could be found. The officials dug at the place indicated and found the bones. The officials summoned the coroners of the county who assembled the bones and determined that the skeleton was that of a female from 62 to 65 inches in height. They also discovered a fracture in the skull. The officials then went to the basement of the church and screened the dirt where the grave had been. They recovered, among other things, pieces of cloth, a cross with an image on it, a piece of cord, a spool, a little metal cross, a part of a scapular, a thimble and a ring. It should be stated at this point that upon the trial it appeared that the cloth found in the grave was of similar texture to that worn by the Felician Sisters; that the cord was likewise similar to the cord worn by the members of this order; that the piece of scapular and the cross were like those worn by this Sisterhood. But the most convincing proof of identification was the ring. It was of special design. The inside was of silver, the outside of steel. Sister Janina had graduated in a class of 22, each of whom had been given a ring of this design in which the date and certain characters were engraved. They were always worn by the Sisters after they took their perpetual vows and were left on their fingers at death and buried with them. There were but 22 of these rings made, one for each member of the class. Twenty-one of these rings were accounted for. The missing one— the one worn by Sister Janina — was found in this grave underneath the church. The identification of the skeleton as that of Sister Janina was as near perfect as circumstantial evidence could make it.

Shortly after the finding of the skeleton the defendant was arrested, charged with the murder of Sister Janina. At the October term, after a trial lasting something over three weeks, she was found guilty of murder in the first degree and sentence was imposed. It is the theory of the prosecution, and the case was tried upon this theory, that after the fishing party left Isadore that August afternoon there were left but four persons beside Sister Janina: the defendant and her daughter and the two Sisters, Angelina and Josephine. That of these four persons the defendant only was shown to have borne' ill-will towards this nun; that she had on many occasions deprecated her character, and had intimated that she would or should soon leave. It is the theory of the prosecution that Sister Janina, in preparing the school for the visit of the bishop, went to the basement for the artificial flowers which were there stored, was then struck down by the defendant not far from the door — glasses similar to those worn by Sister Janina being there found — that defendant, a Polish woman accustomed to outdoor work, moved the pile of lumber or boards away, dug a grave in the sandy soil, buried her victim and replaced the lumber. The proof of the prosecution was directed to the sustaining of this theory.

In the early stages of the trial the. prosecution called Father Podlaszewski as a witness. Over the objection of defendant he was permitted to explain his unusual conduct in secretly digging up the bones and having them buried in the cemetery at night. His explanation was this:. The parish had planned to erect a new church at Isadóre on the site of the old one. Father Lempke, a priest located at Detroit, where he was chaplain of the Felician Sisters, had informed him that there was a skeleton under the church at Isadore and had suggested to him that in order to save a scandal to the church he should secretly exhume the bones and bury them in the cemetery. When the direct-examination of this witness was concluded the testimony in the case had gone no further than to show the reasons for the unusual conduct of the witness in secretly faking up the bones and secretly burying them. This witness was subjected to a most vigorous cross-examination, in the main revolving around an affidavit he had made with reference to the case, and copious excerpts were read to him and he was interrogated about them at length and finally the affidavit in its entirety was offered in evidence by defendant’s counsel. In some particulars it tended to contradict some of the testimony of this witness. It is quite voluminous and covers eight pages of the record. We cannot within the compass of this opinion state its entire contents nor quote it in full. We, however, quote from it an excerpt which is pertinent to the question we are about to consider. It is as follows:

“The next thing I heard, concerning this matter was from Rev. Father Lempke of Detroit, Michigan. I met him at Father Skory’s house at Grand Rapids, on the occasion of a 40 hours’ devotion held at that priest’s church during the latter part of May or fore part of June, 1918. I had a conversation with Father Lempke there, and I told him I intended to build a new church at Isadore, Michigan. Then Father Lempke said to me, T heard from Bishop Koslowski that Sister Mary John, who disappeared at Isadore some years ago, was buried under the church.’ And he said he thought it would be advisable to remove those remains secretly. He said, T am not positive of this, but the information I received stated that she was buried there by Mrs. Lipsczinska.’
“I questioned him more about this and he said that he did not know any more about this, but-that the rumor that Father Bieniawski was implicated in this was untrue. Then, of course, we spoke about the method of removing those bones. He advised me to do it personally so that nobody would see them, to do it at night and remove those bones to the cemetery. I did not have any further conversation with him about this subject-matter.
“Father Lempke at this time did not state to me the manner or mode by which Bishop Koslowski had communicated this information; he did not state whether he received this information from Bishop Koslowski through letter, by word of mouth, or through the interposition of a third person. I now further recollect that he, Father Lempke, also stated at that time that the body was buried under the church under a pile of boards.”

After the introduction of this affidavit in evidence by defendant’s counsel, the people were permitted, over objection of defendant’s counsel, to introduce testimony confirmatory of that portion of the affidavit above quoted. Different witnesses through whom the information was traced back to the bishop testified to the fact that such information was given; but no witness was permitted to testify to the conversation had, and only to the simple fact that the information was given. One witness did state part of a conversation, but without objection being made by the defendant’s counsel the court struck out the testimony relating to the conversation, and directed the jury not to consider it. None of this testimony went further than the statement in the affidavit introduced in evidence by the defendant. Indeed it did not go as far. None of it connected defendant with the transaction. It should be noted that by the affidavit introduced in evidence defendant and not the people first traced back to Bishop Koslowski the information that the body of Sister Janina was buried under the church at Isadore. It might be inferred from the fact that Bishop Koslowski filled a high office in the Catholic church, that the information came to him through the confessional, but there was no direct testimony to this effect until later in the case. Counsel for defendant most strenuously insist that the admission of this testimony violated the law of the confessional; that it was incompetent, hearsay, and if by any possibility it may be said that any part of it was admissible that portion of it tending to show that the information conveyed included information that the body was that of Sister Janina was absolutely incompetent and should not have been received.

Let us re-state the situation. Father Podlaszewski had secretly exhumed a human skeleton from the basement of the church and as secretly buried the bones in the cemetery. We think it was proper to permit him to explain his reason for so doing. His reasons for this secret conduct were as stated by him in his examination in chief. Defendant’s counsel then introduced proof by way of his affidavit that the original source of the information as to the presence of the skeleton was Bishop Koslowski; that the information conveyed included the further fact that these bones were the bones of Sister Janina. These facts were put into the case for the first time by the defendant. The people were then permitted to confirm these facts so put- into the case by the defendant herself. It is the uniform holding of this court that one may not complain of the admission of testimony by the other side of facts which he himself has already established by testimony offered by himself and already in the case. Weatherbee v. Byam, 160 Mich. 600; Obenauer v. Solomon, 151 Mich. 570; Buxton v. Ainsworth, 153 Mich. 315; Weaver v. Richards, 156 Mich. 320; Reese v. Railway, 159 Mich. 600.

But it is urged that the secrets of the confessional were invaded and its privileges disregarded. If we should take into consideration the testimony later put into the case, or we should accept the inference that Bishop Koslowski received his information through the confessional and assume that to be a fact, it does, not aid the defendant. We have not before us and do not decide whether this testimony would be admissible if defendant had not first introduced testimony on the subject. The privilege of the confessional is the privilege of the penitent, and if the penitent waives such privilege to the extent of giving evidence of what took place at the confessional, he or she cannot complain of evidence which goes no further than to establish the facts proven by him or her. What we have here stated is upon the assumption which defendant’s counsel seem to contend we should indulge in, that Bishop Koslowski received his information through the confessional. As already stated when the testimony under consideration was offered, there was no proof of that fact beyond what might be inferred from his position in the church.

Not long after defendant’s arrest the authorities employed a female detective, Mrs. Tylicki, a Polish woman from Milwaukee. She understood and spoke the Polish language, which defendant used better than she did the English. She was put in the jail with defendant supposedly as a prisoner. Mrs. Tylicki was called as a witness upon the trial. She gave testimony of a confession by the defendant. Before giving this testimony she was subjected to a vigorous cross-examination by defendant’s counsel and adhered to her contention that she had held out no inducements to procure the confession, and that it was a voluntary one; she denied many things which defendant’s counsel inferentially by his questions accused her of. It is well that we here give the substance of her testimony relating to the confession. Briefly stated, Mrs. Tylicki’s testimony was that after she had been in jail with defendant a few days, defendant asked her if she would do something for her. Mrs. Tylicki testifies that she said, “If you want me to do anything, tell me what and tell me all.” Defendant then requested her to go to Father Bieniawski and tell him to have Father Podlaszewski put out of the States and that he would pay her well for going there; that defendant said she went to Father Nowack, a priest in Milwaukee, and confessed her sins; that she had killed Sister Janina; that she dug the hole under the church and dragged the body to it and put the Sister in the hole she had dug, and covered the body partly with earth, and that while doing so the head rose three or four times and that she struck the Sister on the head three or four times with all her might; that she had in her confession to Father Nowack told him all, just as she related it to the witness, and that the Father had told her he could not grant her absolution without seeing Bishop Koslowski; that the priest went away for a short time and returned and granted her absolution and that then she left the church. She claimed that the murder had come out through Bishop Koslowski. This conversation witness says occurred on. April 28th. On the following day defendant repeated the confession. The witness also testified that soon after she went into the jail defendant told her she was going to pretend that she was crazy and that they would believe she was. It should be stated in this connection that defendant’s conduct became unnatural about the- first of May, and on May 17th, upon proper commitment, she entered the Psychopathic hospital at Ann Arbor where she remained under observation until July 28th when she was returned to the jail. The doctor having her in charge was called as a witness and gave the opinion that she was not insane but was simulating.

Defendant took the stand as a witness in her own behalf. She denied all connection with the death of Sister Janina, gave an account of her doings on the August afternoon in question which accounted for the time from the leaving, of the fishing party until the absence of the Sister was discovered. She denied having expressed any ill-will towards Sister Janina. She denied the confession and testified to a brutal and fiendish course of treatment, including personal violence, practiced upon her by the sheriff and Mrs. Tylicki, resulting, as she claimed, in her mental breakdown and absolute irresponsibility for her conduct or language. It is her testimony that she was struck over the head by Mrs. Tylicki1 with a dipper on one occasion and that she plied her with liquor; that she was taken into another cell where the bones of Sister Janina had been arranged, that the skull had been strung on strings so that it could be manipulated, that there were two candles by the skeleton, and that she was thrown into a box or bunk in the room where the skeleton was and kept there for a couple of hours; that on one occasion the sheriff came to her alone with the skull, and worked it with his hands and crowded it into her face, and it seems to be her claim and that of her counsel that such conduct made her mentally unbalanced, that she was not responsible for what she said, and that this treatment was what produced the confession if one in fact was made, which fact she denies.

If defendant was accorded the inhuman treatment she claims she was, and as a result she made a confession, such confession should not have been received. But her testimony is not unchallenged; in fact it was denied in toto. Mrs. Tylicki denies all charges made against her. As to the exhibition of the bones, it is the testimony of the people’s witnesses, that defendant was asked if she wanted to see the remains of Sister Janina and expressed a desire to see them. That she was taken into the room where they were and shown them; that there was an electric light burning in the room, but that there were no candles burning or arrangement of the bones or skull as claimed by her, that she was not put in a box or bunk, but returned to her own room as soon as she desired. But counsel arguing the case says the sheriff did not specifically deny her testimony as to crowding the skull in her face on one occasion when she says he was alone with her. He insists, therefore, that her testimony is uncontradicted and the court should have eliminated the confession, as matter of law. It is true that the sheriff was not called upon by the prosecutor to deny seriatim each and all of the many indignities defendant claims he heaped upon her. He was, however, asked a general question covering the treatment accorded defendant. We quote from his testimony:

“Q. Whenever you did see her, and particularly when you were in or around the jail, state whether you ever observed anything in the way of ill-treatment or neglect of her?
“A. No sir; she never entered any complaint to me or to Mrs. Anderson or to anyone else in charge about being mistreated. Some of the time between the 10th of April and the middle of May, in going to and from her meals she was attended by Mrs. Anderson and sometimes she went alone. During all the time she was in jail she had a woman attendant.”

It should be further stated that the sheriff testified to making a trip to North Manitou Island, Milwaukee, Chicago and Detroit, starting on the 25th of April. If he is correct about the date he left Leland it would be practically impossible that he was back there at the time defendant claimed he manipulated the skull in her face. Upon the argument it was stated that undoubtedly the sheriff was mistaken as to the date he left Leland. But the record does not show conclusively that he was mistaken. Whether he was or was not cannot be determined, as matter of law. We do not think it can be said that defendant’s testimony upon the question of the treatment she received at the jail was uncontradicted. Her testimony upon every material point was in direct conflict with that given by the people’s witnesses. Applying the maxim falsus in uno, falsus in omnibus, it was for the jury to say whether any of her testimony upon material matters was to be believed.

While defendant by her testimony challenges the material evidence given by the people, we do not understand her to contradict the testimony showing that she and her room were well cared for during her stay at the jail; she was provided during all the time with a womanj attendant, was not required to live on the jail fare but was permitted to take her meals at the residence of Judge Brown, the judge of probate of the county, sometimes going alone and sometimes going with an attendant.

Upon the argument much was made of the fact that Mrs. Tylicki testified that when defendant asked her to do something for her, she, Mrs. Tylicki, said: “If you want me to do anything, tell me what and tell me all.” It must be remembered that Mrs. Tylicki was. not one in authority. But this language was not such an inducement as rendéred the confession inadmissible. This is ruled by the recent case of People v. Foster, 211 Mich. 486.

This' court has recognized the universal rule that where the facts are not disputed the question becomes one of law to be decided by the court. Where the facts are disputed the question is one for the jury. In People v. Prestidge, 182 Mich. 80, Mr. Justice Bird, speaking for the court, thus announced the rule:

“If the preliminary testimony made it clear either that the statement claimed to have been made was voluntary or involuntary, it was the duty of the trial court to admit or reject it. If the testimony left the question in doubt, it was the duty of the court to admit it, and leave the question to the jury under proper instructions to determine whether it was voluntarily made.”

In the instant case the testimony was in direct conflict. If the testimony of the people’s witness was to be believed, defendant’s confession was a voluntary one. If her testimony was believed, most fiendish atrocities had been practiced upon her to procure it, and it should be entirely disregarded. It was for the jury to decide which line of testimony bore the earmarks of truth.

Nor was the confession inadmissible because deceit was used in procuring it. People v. Dunnigan, 163 Mich. 349 (31 L. R. A. [N. S.] 940). In that case the officers had arranged with one Wilcox to obtain from defendant such information favorable to the people’s case as he could, Wilcox to be paid by the officers. Wilcox was admitted to the jail to cut defendant’s hair, and procured from him a letter to his wife which Wilcox turned over to the officers. It was in the nature of a confession. While this court condemned the method used to obtain the confession, it held that it Vas admissible in evidence. This is in accordance with the holding of other courts. Burton v. State, 107 Ala. 108 (18 South. 284); State v. Brooks, 92 Mo. 542 (5 S. W. 257, 330); Heldt v. State, 20 Neb. 492 (30 N. W. 626); Commonwealth v. Flood, 152 Mass. 529 (25 N. E. 971); People v. Scott, 195 N. Y. 224 (88 N. E. 35).

In Burton v. State, supra, defendant was less than 15 years old. A'detective had been placed in jail with him, had obtained his confidence and secured a confession. The court, considering its admissibility, said:

“He seems to have acquired the entire confidence of defendant. This may have been the more easily accomplished, because of the youth and unsuspecting character of the defendant, but the question for consideration is whether the confessions were voluntary. The fact that the defendant was deceived, does not in the least tend to show that his statements in regard to the killing of Evans were induced by hope or fear, or calculated to elicit an untrue statement. What weight, if any, a jury would give to the testimony of the detective, or confessions elicited under such circumstances, rests wholly with them. We do not think the court erred, in holding that they were competent for the consideration of the jury.”

In State v. Brooks, supra, the same course had been pursued. Holding that the confession was admissible, it was said:

“It is further insisted that, owing to the methods resorted to to obtain the confession, it was error to receive it in evidence. While the officers whose duty • it was to prosecute criminal offenses, may, in their anxiety to ferret out the circumstances concerning the death of Preller, have overstepped the bounds of propriety in the course pursued by them, which is not to be commended, but condemned, it affords no legal reason for rejecting the evidence and not letting it go to the jury whose peculiar province it was to pass upon the credibility of the witness who detailed the confession and give to it such weight as, under the circumstances, they believed it entitled to. It was for the court to say what evidence should be received and for the jury to say what weight it should have when received.”

We have thus far confined our discussion to those questions which were discussed in the oral argument. Other questions are fully discussed in the brief of defendant, and to them we shall now direct our attention. The prosecution called defendant’s daughter as a witness. It will be remembered that she was at the priest’s home the afternoon of the disappearance of Sister Janina. She was a proper if not a necessary witness for the prosecution to produce and her name was on the information. She had been sworn as a witness at the preliminary examination and had also signed an affidavit. Her testimony upon the trial did not accord with the affidavit. The prosecution was permitted by the court to treat her as an adverse witness, and to conduct her examination along the lines of cross-examination. We perceive no error1 in this. It may n,ot be unnatural to expect that a daughter would attempt to screen her mother on trial for crime. The witness had by her attitude, relationship and testimony shown herself to be an unwilling and adverse witness. The court properly allowed the prosecution to treat her as such and to cross-examine her.

• Defendant was arrested by the sheriff of Leelanau county at Manistee where she was still the housekeeper of Father Bieniawski, who had moved to that city. Upon cross-examination of the sheriff this appeared and it developed that defendant was taken to the sheriff’s office in Manistee after her arrest. The witness was asked if he had not requested defendant to write her name. He admitted that he had, but denied expressing or having any ulterior purpose, or any purpose, other than to obtain her correct name. The defendant signed her name on a blank piece of paper, but no use appears to have been made of it unless we may infer that it correctly spelled this Polish name. Defendant offered by a witness to contradict some of the sheriff’s testimony brought out on cross-examination with reference to this paper. It was a collateral matter, defendant was bound by the witness' answer. People v. Williams, 159 Mich. 518, and authorities there cited. The court did not err in excluding this testimony.

The bones found under the church were brought into court and were received in evidence without objection. After they were received in evidence the physicians, over objection of defendant’s counsel, assembled the bones. We do not think defendant’s objection tenable. One of the purposes of assembling the bones was to show the height of the skeleton, to demonstrate that it was that of a female, and one of the doctors made use of the bones in explaining the difference in the bones of the male and the female. The condition of the skull and whether the fracture found in it was made before or after death was a matter of direct conflict between the experts of the State and the one called by defendant. The bones were in the same condition as when found, they were used, and legitimately so, by the physicians in giving their testimony, and we perceive no basis for the claim that such gruesome exhibit was made to prejudice the jury.

There is a general complaint that the charge was unfair to the defendant and that certain requests should have been given. We have examined the charge with care. The defendant’s rights were fully protected by it. Such requests as defendant was entitled to have given were given either in the language of the requests or in substance.

Finally we are asked to reverse the case upon the broad grounds that defendant has not had a fair trial and that she should have been acquitted, and People v. Murray, 72 Mich. 10, is cited as authority for such contention. There will be found in the opinion in that case some language not necessary to the decision which we do not at this time indorse. But that case radically differs from this one. In that case (1) the defendant was poorly defended, (2) the trial judge did not protect him in his rights, and (3) the evidence of his guilt was weak. In the instant case (1) the defendant had the assistance of three of the ablest counsel in that part of the State, (2) her rights were fully protected by the trial judge, and (3) the evidence of her guilt is strong and convincing.

The defendant has had a fair trial; she has been convicted by an impartial jury. We find no occasion to disturb the verdict. Her conviction is affirmed.

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