text:
    GATES v. COMSTOCK.
    1. Trespass to Land — By Whom Maintainable.
    A vendee in a land contract, who has neither actual nor constructive possession of the land, cannot maintain an action for a trespass thereon.
    2. Same — Assignment.
    A right of action for trespass to land in cutting timber therefrom is assignable.
    3. Same — Pleading.
    A declaration in trespass by an assignee of the demand sued upon is fatally defective in not setting up the assignment.

      Error to Alpena; Kelley, J.
    Submitted November 20, 1895.
    Decided December 24, 1895.
    Trespass under 2 How. Stat. chap. 272, by Samuel G. M. Gates against Andrew W. Comstock and others. From a judgment for plaintiff, defendants bring error.
    Reversed.

      Joseph H. Gobi) (MeDonell & Sail, of counsel), for appellants.

      J. D. Turnbull, for appellee.
   McGrath, C. J.

This is trespass on lands. The declaration alleges that on the 8th day of January, 1891, and on divers other days and times between that day and the commencement of suit (January 8, 1894), defendants cut, etc., against the leave and consent of said plaintiff, the owner thereof, a large number of trees, etc. The cutting was done in the winter of 1891 and 1892. At that time the fee of the land was in Seligman, Rupp, and Thompson. On July 17, 1891, these parties had entered into a contract of sale of these lands to one Hurst. On October 30,1891, Hurst had contracted to sell to plaintiff the timber thereon. Plaintiff had agreed to pay $7,000 in six months, $7,000 in one year, and $8,500 in eighteen months. Hurst agreed to convey by timber deed on full performance by plaintiff. Gates had agreed not to cut or permit to be cut or carried away any timber without the consent, in writing, of Hurst, and Gates was to have six years to enter, and cut and remove the timber. Seligman,'Rupp, and Thompson, in June, 1893, conveyed to Hurst; and January 6, 1894, Hurst conveyed to plaintiff. On January 6, 1894, Hurst assigned to Gates, and on January 5, 1894, Seligman, Rupp, and Thompson assigned to. Gates, all timber standing, lying, or being on said real estate, or which had at any time been cut and removed therefrom, and each and every claim for damages and triple damages, and all right of action, of every kind or nature, which belonged to or had in any way or manner accrued to him or them on account of trespass on said land. The defendants objected to the introduction in evidence of the deeds from Seligman, Rupp, and Thompson, and from Ilurst to Gates, and of the assignments to plaintiff, on the ground that they were incompetent, irrelevant, and immaterial, under the declaration and pleadings. They were, however, admitted.

In order to maintain trespass, one must have the legal title or be in actual possession of the premises. A vendee in a land contract, who has neither actual nor constructive possession, cannot maintain the action. Moyer v. Scott, 30 Mich. 345; Ruggles v. Sands, 40 Mich. 559; Pfistner v. Bird, 43 Mich. 14; Goetchius v. Sandorn, 46 Mich. 330. At the time of the commission of the trespass, plaintiff was not the owner, of the fee. He had contracted for the timber, and held a license to enter upon the land for the purpose of cutting it; but that contract was not performed upon his part, and he could not cut or allow the timber to be cut, without the consent of Hurst. The declaration did not allege the assignment by virtue of which he acquired the right to bring trespass for the acts committed prior to such assignment, and it was therefore defective. Blackwood v. Brown, 32 Mich. 104; Rose v. Jackson, 40 Mich. 29; Cilley v. Van Patten, 58 Mich. 404; Altman v. Fowler, 70 Mich. 57; Peirce v. Closterhouse, 96 Mich. 124. The rule is otherwise in trover and replevin. Warren v. Dwyer, 91 Mich. 414, and cases cited. The objection made called special attention to the declaration, and an amendment was not asked for. Although, at the time of the introduction of these instruments in evidence, it did not appear when the trespass was committed, and the dates named in them were within the time mentioned in the declaration, the assignments were immaterial, except as they afforded a basis for recovery for a trespass committed before their date.

The cause of action w'as, we think, assignable. Final v. Backus, 18 Mich. 218, 231; Grant v. Smith, 26 Mich. 201.

For the error referred to, the judgment is reversed, and a new trial granted.

Long, Grant, and Montgomery, JJ., concurred. Hooker, J., did not sit.


source: Caselaw Access Project

author: Grant, J.

license: Public Domain

text:
    HUDSON v. EMMONS.
    1. Promissory Notes — Negotiability.
    The indorsement on the back of a promissory note of a statement by the maker as to his financial responsibility does not destroy the negotiability of the note.
    2. Pleading and Proof — Notice of Special Defense.
    A notice of defense setting up an agreement between defendant and two other parties is not sustained by proof of an agreement entered into with one of said parties.

      3. Sale — Statute of Frauds.
    An agreement whereby certain chattels are to be turned over by the owner in consideration of the surrender of a note given by him for the purchase price is a contract of sale, within the meaning of the statute of frauds.
    4. Same — Sufficiency of Delivery.
    A parol contract for the sale of goods exceeding $50 in value is not taken without the statute of frauds, at the option of the vendor, by a seizure of the property by the vendee under, a chattel mortgage.
    Error to Clinton; Daboll, J.
    Submitted December 5, 1895.
    Decided December 24, 1895.

      Assumpsit by Joseph L. Hudson against Elmer E. Emmons on a promissory note. From a judgment for plaintiff on verdict directed by the court, defendant brings error.
    Affirmed.

      Plaintiff’s suit is based upon a promissory note, which reads as follows:
    “$212.00. St. Johns, Mich., July 30, 1890.
    “On or before the first day of November, 1893, for value received, we, or either of us, promise to pay to the order of Arbuckle, Ryan & Co., Toledo, Ohio, two hundred and twelve dollars, payable at the State Bank of St. Johns, Mich., with interest at eight per cent, per annum, payable annually, until maturity; if not then paid, amount due at maturity to draw interest at 10 per cent, per annum until paid.
    [Signed] “E. E. Emmons.”
    A copy of this note was attached to the declaration^ with the usual notice that it was the basis of the plaintiff’s claim. Defendant pleaded the general issue, and gave notice of a special defense that the note was one of four notes executed by him to Arbuckle, Ryan & Co., of Toledo, Ohio, in part payment of the purchase price of a certain threshing machine; that one Peter Clavey was the agent of said company; that in December, 1892, defendant made an agreement with Clavey and the company by which he agreed to refrain from using the engine in his sawmill in the winter of 1892 and 1893, and to deliver the same to the company and to Clavey as soon as the roads should become thoroughly settled to run the said engine upon the road to St. Johns in the spring of 1893; that, in consideration thereof, the said company and Clavey agreed and promised to cancel, surrender, and deliver to him said note and one other of the four notes above mentioned; that he did desist and refrain from using said engine in said sawmill, and held the same ready to deliver at the time agreed upon, but before the time arrived, and in April, 1893, said Clavey, in defendant’s absence, and without his knowledge or consent, seized and took said engine and fixtures into the possession of said company and said Clavey, thereby preventing him from delivering the same as agreed, and that by reason thereof he was discharged from liability on said'note; and that plaintiff had knowledge of the above facts at the time he acquired title to the note.
    Upon the back of the note was indorsed:
    “Pay Peter Clavey or order, without recourse on us.
    “Arbuck.de, Ryan & Co.”
    Also:
    “Without recourse.
    “Peter Cdavey.”
    There was also indorsed upon the back a statement signed by the defendant that he was the owner of 55 acres ' of land, worth $2,000, unincumbered except by a mortgage of $800; and that he owned $3,000 of personal property, over and above- all indebtedness and exemption.
    The further facts, so far as material, will be considered in .connection with the points raised.

      Lyon & Looting, for appellant.

      Ledeioa & Walbridge, for appellee.
   Grant, J.

{after stating the facts). 1. The first point raised is that the note is not a negotiable instrument on account of the statement upon its back, signed by the defendant. This statement did not affect the negotiability of the note. It did not change the date, amount, or time of payment, or rate of interest. Citation of authorities is unnecessary. The note was negotiable.

2. This note was transferred by Clavey, together with other property, to secure a past-due indebtedness from Clavey to plaintiff. Plaintiff foreclosed the security, and thus obtained title. It was conceded upon the trial that the defendant was entitled to make the same defense as if the note were in the hands of Clavey. Clavey, for a full and valuable consideration, purchased the note from Arbuckle, Ryan & Co. before due. It appears by defendant’s own testimony that Arbuckle, Ryan & Co. had nothing to do with the agreement set up with the plea. It also conclusively appears that Clavey had no authority from the company to make any such agreement, and that it had no knowledge thereof. Defendant’s own evidence shows an agreement with Clavey alone, and it was that Clavey should procure from the company and deliver to him these two notes, and take the engine and fixtures, which defendant was to deliver in the spring, and which remained in defendant’s possession until the latter part of April or first of May, 1893, when the property was seized by Clavey, under the direction of the company, upon the chattel mortgage given to secure the payment of the four notes, one of which the company still owned, and which was unpaid. May 18, 1893, due notices of the foreclosure sale were posted, and on May 27th it was sold,- and bid in by the company for sufficient to satisfy the amount of the note. The court directed a verdict for the plaintiff, stating that Clavey took the note for a valuable consideration, and that the agreement set up and testified to was void under the statute of frauds. Defendant admits he did not deliver the property, and claims that the roads were not, in his judgment, good enough to justify delivery at the place mentioned. It is also claimed that the seizure by Clavey amounted to a delivery, or, in other words, estops him to assert that the parol agreement was not executed, in that no delivery was made. Defendant failed to prove the agreement set up in his notice. He alleged an agreement with Arbuclde, Ryan & Co. and Clavey. He testified to an agreement with Clavey alone. He could not have recovered in a suit upon a declaration alleging a contract with the two and proving a contract with one alone. The same rule applies in setting up the same contract as a defense. Having failed to prove it as alleged, his defense falls.

3. The contract, as claimed by defendant, was one of sale. It rested entirely in parol. There was no delivery nor part performance to take it out of the statute. It was of no binding force until the property was delivered. Webster v. Bailey, 40 Mich. 641. Clavey seized the property by direction of the company under the chattel mortgage. There was no agreement that Clavey might take the property. If Clavey had taken it without permission of defendant under the alleged parol agreement of sale, and defendant had replevied it, and Clavey had set up this contract, the obvious reply would have been the statute of frauds. The parol agreement could bind neither party until there had been delivery and acceptance. Un; til such delivery, either party could refuse to carry out the parol agreement, and set up in defense the statute.

The judgment is affirmed.

McGrath, C. J., Long and Hooker, J.J., concurred. Montgomery, J., did not sit.


author: Long, J.

text:
    PERINE v. STANDFIELD.
    Building Contract — Duty as to Materials.
    A building contractor who sublets a part of the work by contract expressly providing that the subcontractor is to furnish no material, and that the work shall be done without delay, is bound to see that material is supplied as needed, and his neglect to do so renders him liable to the subcontractor for the loss of time occasioned thereby, notwithstanding the fact that, as between the contractor and the owner, the latter was to furnish all material, of which fact the subcontractor had knowledge.
    Error to Wayne; Donovan, J.
    Submitted November 20, 1895.
    Decided December 24, 1895.

      Assumpsit by Charles W. Ferine against Bobert S. Standfield and another for the breach of a building contract. From a judgment for plaintiff, defendants bring error.
    Affirmed.

      Albert J. Chapman, for appellants.

      JE. T. Wood, for appellee.
   Long, J.

This case was commenced in justice’s court, where plaintiff had judgment. On appeal by defendants, the cause was tried in the circuit court, and plaintiff again prevailed.

The plaintiff is a carpenter and joiner, and entered into á written contract with the defendants to do certain work on a house which they were building for John J. Black, the owner. The contract under which plaintiff was to perform his work provides, among other things, as follows:

“All work to be done in a good and workmanlike manner, for the sum of $100; part payment when work is two-thirds completed, and balance when the job is finished, and it is accepted by the architect and owner. All work to be done without delay. C. W. Perine is to furnish no material of any kind, but to do the labor.”

This contract was signed by the parties to this cause.

The plaintiff admitted on the trial that he had been paid $70, and claimed the right to recover the other $30 due under the contract, as well as for loss of time, which was occasioned, as he contended, by the defendants’ not furnishing material from time to time, as he called for it; that he did call for material, and was told by the defendants that it would be furnished, and not to quit work, as Mr. Black, the owner, would find fault if he did so. The defendants contended that the work was not performed in accordance with the contract; that there had been no acceptance of the work at the time the suit was commenced; that there had been no such loss of time as plaintiff claimed; and that, if any time was lost, they were not responsible for it.

On the trial the plaintiff put in evidence the contract between himself and defendants, and testified that he had performed it in accordance with the plans and specifixations, and that the work had been accepted by the architect. He then gave evidence, under objection, that he had lost certain time, by reason of not being furnished with material. The objection to this was that, under the contract, the defendants were not to furnish the material; that the contract did not specify this, but simply provided that plaintiff was to furnish no material. The court ruled that the contract meant that defendants were to furnish material. After this ruling was made, defendants offered to show a contract in writing between the defendants and the owner, by the terms of which it was provided that the owner was to furnish all material, and defendants gave testimony tending to show that they notified the plaintiff of that fact, and that upon one occasion the plaintiff read the contract. While the court admitted this testimony, the contract between the owner and the defendants was ruled out.

The court, in its charge, speaking of the contract between plaintiff and defendants, stated:

“It being silent, I deemed the defendants were to furnish the material, and, if you should find from all the testimony that any other arrangement was made about the furnishing of the material, I will leave that to you. I will not be arbitrary about it, but the whole matter is before you as to who furnished all the material.”

1. There was evidence from which the jury might well find that the contract was completed and the work accepted by the architect and owner, and that question was fairly left to the jury.

2. Even if the court was in error in leaving to the jury the question whether the defendants were to furnish the material, the defendants’ rights were not prejudiced, as it could not matter whether the defendants or the owner was to furnish the material, so far as the right of the plaintiff to recover for loss of time was concerned. The contract under which he was to do the labor provided that he was not to furnish any of the material. It was tbe duty of the defendants to see that the material was on hand, so that plaintiff could carry out the contract. Defendants had, as admitted, a contract with the owner, by the terms of which he was to furnish the material, and, for any neglect on the part of the owner in this respect, they had a remedy; but there was no privity of contract between the plaintiff and the owner. Plaintiff was relying on his contract, and, if delay and loss of time were occasioned by the neglect of defendants, they were responsible for it to the plaintiff, as he could not look to the owner.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


text:
    PEOPLE v. O’NEILL.
    1. Criminal Law — Pleading.
    On the overruling of a demurrer to a plea in abatement in a criminal case, the prosecution may reply to the plea upon the merits.

      2. Same — Appointment of Assistant Prosecutor.
    Section 551, 1 Plow. Stat., requiring the prosecuting attorney to conduct all criminal prosecutions in the circuit court, and section 560, authorizing the employment of additional counsel upon a prosecution for a felony, do not prohibit the employment of counsel to assist in the preparation and investigation of cases before the grand jury, although involving misdemeanors only, if, in the judgment of the board of supervisors, the prosecuting attorney, and the court, such action is necessary.
    3. Same — Violation of Liquor Law.
    The fact that an attorney is strongly prejudiced against the liquor traffic does not disqualify him from assisting in the prosecution of one charged with a violation of the local option law.

      4. Same — Competency of Jurors.
    A juror is not disqualified because he has formed an opinion as to the guilt of the accused, where it appears that such opinion is based upon hearsay, and is not fixed or positive, and he swears that he can render a fair and impartial verdict according to the evidence.
    5. Same.
    A juror who states that, if the evidence were about equally balanced, he would render a verdict of guilty, is incompetent.
    6. Same — Evidence.
    A witness who testifies to having delivered certain goods, together with the shipping bills, to the respondent, cannot be permitted to state where the goods were billed from, no notice to produce the bills having been given, since the bills aré the best evidence.
    7. Same — Hostile Witnesses — Examination.
    Upon the examination of an unwilling witness for the people, it is competent for the prosecution to call the attention of such witness to deposilions given by him on other occasions, not for the purpose of impeachment, but to refresh his memory, and, if possible, elicit the truth.
    8. Same — Testimony Given Before Grand Jury.
    Under the rule stated, the prosecution may interrogate such witness regarding his testimony before the grand jury, testimony so given being subject to disclosure, under 2 How. Stat. $ 9502, for the purpose of testing the credibility of witnesses.
    Error to Eaton; Smith, J.
    Submitted November 21, 1895.
    Decided December 24, 1895.
    Edward O’Neill was convicted of violating the local option law, and sentenced to imprisonment in the state house of correction at Ionia for a term of six months, execution of sentence being stayed pending his appeal to this court.
    Judgment reversed.

      T. JS. Tarsney and W. W. WicJcer, for appellant.

      Horace 8. Maynard, Prosecuting Attorney, for the people.
   Grant, J.

1. The respondent was convicted of a violation of the local option law, in force in Eaton county, upon an indictment presented against Mm by the grand jury. After a motion to quash was denied, the respondent interposed three pleas in abatement, setting forth that the circuit court had no authority to make an order for the appointment of an assistant prosecuting attorney, that said assistant prosecuting attorney unlawfully counseled and advised the grand jury, that said assistant prosecuting attorney had no authority to act, and that he had been employed by private parties to assist in the prosecution of violators of this law. To these pleas the prosecutor demurred. The demurrer was overruled, and the prosecutor permitted to file replications to the pleas. To these replications the respondent demurred, upon the ground that the former order overruling the demurrer was final, that its effect was to quash the indictment, and that he should be discharged. This demurrer was overruled, and a jury tendered to the respondent to try and determine the questions of fact set up in the plea. This the respondent refused, whereupon the plea in abatement was overruled, a plea of not guilty entered, and a trial had.

Formerly in England, even in cases of felony, when the demurrer to an indictment was overruled, the prisoner was not allowed to plead over, upon the theory that his demurrer admitted his guilt. Such, however, has not been the rule in this country, except, perhaps, in some cases of misdemeanor. Such a rule finds no commendation in reason. The purpose of a demurrer is to obtain the judgment of the court upon the law, and to determine whether the pleading on its face establishes a case. Of course, if the party stands by his demurrer, judgment must go against him. But the usual and proper practice is, where the demurrer is overruled, to permit the proper pleading to be filed to join issue. The respondent’s counsel cite Douglass v. Satterlee, 11 Johns. 16. The practice permitted in that case is against the learned counsels’ contention. Upon overruling the demurrer to the plea, it was held that the defendant was entitled to judgment, but with liberty to the plaintiff to withdraw his demurrer and reply. The universal rule in this country, when a demurrer to an indictment or information has been overruled, is to permit the respondent to plead over. The court in such case has determined that the indictment is good, and allows the respondent to plead to the merits. There is no good reason why the same ruling should not apply in behalf of the people to a .plea in abatement, and such is the "rule. State v. Barrett, 54 Ind. 434; State v. Nelson, 1 Ala. 610.

2. The board of supervisors authorized the employment of an assistant prosecuting attorney to assist the prosecutor in preparing and investigating cases before the grand jury. Acting under this resolution, the prosecutor applied to the court, asking the appointment of Mr. McPeek, and an order was entered making the appointment. The statutes (sections 551, 560, 1 How. Stat.) prescribing the duties of the prosecuting attorney, and authorizing the employment of additional counsel in cases of felony, do not prohibit the employment of additional counsel when, in the judgment of the board of supervisors, the prosecuting attorney, and the court, such additional counsel is necessary.

3. Objection was made to the employment of Mr. McPeek to assist in trying this cause, because of his strong prejudices against the liquor traffic. Before the court made the order, Mr. McPeek was examined under oath, and testified that he had a very strong prejudice against the sale of intoxicants as a beverage. This did not disqualify him. The public authorities were not required to employ an attorney who believed in the liquor traffic, or was indifferent to the illegal sales of liquor. The traffic in Eaton county was made illegal by the vote of the peox>le. The stronger one’s convictions are against an illegal traffic, the more efficient prosecutor he is likely to make, and to such a prosecutor the people are entitled.

4. Objection was made to the competency of several jurors on the ground that they had formed opinions. Their opinions were based upon hearsay, were not fixed or positive, and the jurors swore that, notwithstanding such previously-formed impression or opinion, they could render a fair and impartial verdict. They were competent jurors.

5. One juror was incompetent. He had been a clergyman and was then a farmer. When asked what his verdict would be, if he found the testimony about equally balanced between the people and the respondent, he replied, “I should think it should be guilty.”

C. A witness who had drawn some cases of goods to the respondent’s place, billed as “hop pop,” testified that he delivered the bills to the respondent, and was asked, “Where was the hop pop billed from?” The testimony was incompetent, and the question should have been excluded. The bills were the best evidence, and no notice was given to produce them. We decide this point in view of a new trial. The answer was unimportant, did no harm, and the case would not be reversed for this error.

7. Some witnesses for the prosecution were asked by the prosecutor about their testimony before the grand jury. It is apparent upon the record that these were unwilling witnesses for the prosecution, who were evidently prejudiced against it. It is competent, in such cases, for the prosecution to call the attention of witnesses to their depositions given on other occasions, for the purpose of refreshing their memories, and, if possible, eliciting the truth. This cannot be done for the purpose of impeachment. A party, however, is entitled to some latitude in the examination of hostile witnesses.

It is, however, insisted that the witness could not disclose the evidence he gave before the grand jury. The decisions are not uniform upon the question how far evidence given before the grand jury may be disclosed in judicial proceedings. The decisions appear to be, to some extent at least, determined upon the statutes of the various States, In State v. Knight, 48 Me. 1, it appears to have been conceded upon the trial that such testimony was not admissible. In Tindle v. Nichols, 20 Mo. 326, plaintiffs were husband and wife, and brought their action against defendant for slander of the wife. The defendant justified., by alleging the truth of the words spoken, and that she, as a witness before the grand jury, swore falsely. The defendant, in order to prove his answer, called some of the grand jurors as witnesses to state what the wife had testified to before the grand jury. This was held incompetent under the statute of Missouri, which is the same as that in this State. 2 How. Stat. § 9502, reads as follows:

“Members of the grand jury may be required by any court to testify whether the testimony of a witness examined before such jury is consistent with, or different from, the evidence given by such witness before such court; and they may also be required to disclose the testimony given before them by any person, upon complaint against such person for perjury, or upon his trial for such offense,” etc.

• The present case is completely covered by this statute. Members of the grand jury can testify, in a proper case, to statements of witnesses made before them. The respondent could have introduced their testimony to contradict the testimony of the people’s witnesses. State v. Fasset, 16 Conn. 467; State v. Broughton, 7 Ired. 96; Way v. Butterworth, 106 Mass. 75; 3 Rice, Ev. § 255.

8. Complaint is made that some of the remarks of the assistant prosecuting attorney in his closing argument to the jury were intemperate, and an unjustifiable appeal to prejudice. It is unnecessary to state them in this opinion. In view of a new trial, we deem it proper to say that we think they are the subject of just criticism, and ought not to be repeated. They were outside the limit of legitimate argument in a criminal case.

The judgment must be reversed, and a new trial ordered.

Long, Montgomery, and Hooker, JJ., concurred with Grant, J. McGrath, C. J., concurred in the result.


author: Montgomery, J.

text:
    PEOPLE v. SHAVER.
    1. Burglary — Sufficiency of Information.
    2 How. Stafc. §§ 9132, 9133, merely prescribe different degrees of punishment for burglary, and do not create new offenses. An information for burglary, therefore, may still be laid as at the common law.
    2. Same — Intent.
    An information charging the breaking and entering of a dwelling house in the night-time, with intent to commit a larceny, is a good common-law information for burglary, larceny being a felony at common law,
    3. Criminal Law — Testimony of Accomplice — Instructions.
    It is error to charge the jury in a criminal case that the testimony of an accomplice, if corroborated, is to be taken as true.
    Exceptions before judgment from Eaton; Smith, J.
    Submitted November 21, 1895.
    Decided December 24, 1895.
    Ira Shaver was convicted of burglary.
    Reversed.

      MePeelc & Jones and Lyman H. McCall, for appellant.

      Horace 8. Maynard, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of burglary, and brings the case here on exceptions. It is contended that the information fails to charge any offense known to the law. The charge, after fixing the time and place, is that the respondent, at about the hour of 1 o’clock in the night-time, with force and arms, the dwelling house of Benjamin F. Rowson, there situate, feloniously did break and enter, with intent the goods and chattels of said Benjamin F. Rowson, in said dwelling house then and there being, feloniously to steal, take, and carry away, no person then and there being, being put in fear, etc.

2 How. Stat. § 9132, reads as follows:

“Every person who shall break and enter any dwelling house in the night-time, with intent to commit the crime of murder, rape, robbery, or any other felony, or larceny, or, after having entered with such intent, shall break any such dwelling house in the night-time, any person being lawfully therein, and the offender being armed with a'dangerous weapon at the time of such breaking or entry, or so arming himself in such house, or making an actual assault on any person being lawfully therein, shall be punished by imprisonment in the state prison not more than twenty years.”

Section 9133 is as follows:

“Every person who shall break and enter any dwelling house in the night-time, with such intent as is mentioned in the preceding section, or who, having entered with such intent, shall break such dwelling house in the nighttime, the offender not being armed nor arming himself in such house with a dangerous weapon, nor making any assault upon any person then being lawfully therein, shall be punished by imprisonment in the state prison not more than fifteen years.”

The contention is that an information for burglary should so describe the offense as to bring it within one or the other of these sections, and that, if an attempt is made to bring it under the latter section, it is the duty of the prosecutor to aver that the accused was not armed, etc. The counsel for the people contends, on the other hand, that the statute creates no new offense, hut provides for different degrees of punishment for burglary, the punishment being augmented if the offender is armed, etc., but if not armed, or if the offense is not so charged, the lesser penalty is to be inflicted, and that the offense may still be charged as at the common law. Both parties rely upon Harris v. People, 44 Mich. 305. That case was one of an attempt to commit burglary, and the question involved was whether it .was necessary to describe the attempted burglary as coming within one or the other of the above-quoted sections. This was held unnecessary, and while we recognize that, as the charge was a charge of an attempt, the case is not necessarily controlling, the reasoning of the court, if followed, rules this case. Mr. Justice Graves, speaking for the court, said:

“Burglary is a common-law offense, and not a crime ordained by legislation; and it is a single or identical offense, as it was originally. The statute does not carve it into two. It exposes it to different grades of punishment, according as it may or may not be accompanied by the incidents specified in the statute. It may be laid according to the common law, and without referring to the facts on which the imposition of the higher penalty depends, but in such case the punishment cannot exceed the lesser penalty. The accusation will support nothing more. Where the facts are supposed to warrant it, and the higher penalty is contemplated, the crime must be described with the attending facts which justify that penalty.”

It is true, this language is followed by the statement:

“The various breakings resembling burglary which have been declared criminal by the legislature are distinguishable from the ancient offense of the common law. They owe their definition to the statute, and the statute must- be consulted to ascertain their ingredients. When they are charged, they must be set forth in substance as in the statute, with all descriptive incidents, whether negative or otherwise.”

But the learned justice is here plainly referring to those breakings which are for the first time constituted offenses by statute, and which are not such at the common law. We think the reasoning of this case is sound, and it follows that a common-law information for burglary is still good.

It is suggested that the information is not good as a common-law information, for the reason that at the common law burglary consisted of the breaking and entering of a dwelling house in the night-time with intent to commit a felony, and that this information charges the intent to commit a larceny, which, it is said, may or may not be a felony. This objection is without force. Larceny is a common-law felony. See Drennan v. People, 10 Mich. 169.

The case of the people depended in a large part on the testimony of one Perkins, who was indicted with respondent, and, if his story is true, was a participant in the crime. The circuit judge, in charging the jury, said:

"Now, Mr. Perkins, who has taken the stand here, is known in the law as an accomplice, or, as it is sometimes said, he has turned state’s evidence. Now, his testimony is governed by the same rules that govern the testimony of other witnesses, and its credibility is entirely for you. You measure up his testimony, gentlemen, as you measure up the testimony of any other witness upon the stand. Has he told a reasonable story? Is it consistent? You also take into consideration his interest in the case, and his surroundings, and the situation in which he is placed, and from it determine whether he has told the truth about this matter or not. It follows just as naturally as anything can, if you believe him, Mr. Shaver should be convicted, — if you believe what he said here. On the other hand, if you do not believe a word he said; if you believe he has sworn to a lie in this case, and you do not believe the other testimony in the case that tends to convict Mr. Shaver; and, I think I can safely say, if you do not believe him, — Mr. Shaver ought to be acquitted. I don’t think there is any error in that, either. If you believe the testimony of Mr. Perkins in this case,— believe he has told the truth about this matter, — Mr.’ Shaver should be convicted. If you do not believe him, he should be acquitted. Now, you weigh up his testimony by the rules I have given you as to the other witnesses, talcing into consideration his surroundings, his interest, and all the other facts and surroundings that surround him; and, if you are satisfied of its truth, then you should believe his testimony.”

At the conclusion of the charge, and after an officer was sworn, the court said to the” jury:

“The prosecutor has called my attention to the fact that probably you may have been misled by what I said about the testimony of Mr. Perkins. I said to you that, if you believed Mr. Perkins, this man should be convicted, and I do not recede from that, and that, if you do not believe him, he should be acquitted, and I do not recede from that; but, gentlemen, it is your duty, in determining whether Mr. Perkins has told the truth or not, to look the case all over, — the testimony of all the witnesses. Has he been corroborated? Has his testimony been corroborated by other witnesses, or by the surroundings in the case? If you believe it is, then you would believe him. If you do believe him, then you should take the course which I have suggested to you. In other words, I did not wish to be understood it all depended upon his testimony, because you weigh all the other testimony, and all the surroundings in the case, to determine whether the story that he has told is a true story or not.”

We think this instruction open to the construction placed upon it by respondent’s counsel, i. e., that, if the jury should find Perkins’ testimony corroborated, then, under the charge, they were bound to accept his testimony as true. This would not by any means follow, as matter of law. Much would depend upon the extent of the corroboration, and whether the corroborative testimony was in itself credible. The fact that the witness himself was an offender against the law, and an alleged accomplice, bore upon his credibility; and, while the jury might convict respondent on his uncorroborated testimony, they were not bound to do so, nor is it the rule that, as matter of law, they are bound to accept his testimony as true, when corroborated. If such were the case, the testimony of two accomplices showing guilt would leave no room for escape. The damaging error in this instruction is the more apparent when it is considered that the defense offered testimony tending to prove an aMbi.

Exceptions will be sustained, and a new trial ordered.

The other Justices concurred.


author: Grant, J. McGrath, C. J.

text:
    NEWBERRY v. CARPENTER.
    Constitutional Law — Criminal Evidence — Seizure of Private Property.
    An order of the circuit court, purporting to authorize the officers of the law to enter a private inclosure, and take from the possession of the owner a wrecked boiler and its appurtenances for use as exhibits upon the trial of another person for criminal negligence in causing the explosion of the boiler, is not only-bey ond any power vested in the court either by statute or common law, but is in violation of the constitutional guaranty against unreasonable searches and seizures. McGrath, C. J.) dissenting.

      Mandamus by Helen H. Newberry, trustee, to compel William L. Carpenter, circuit judge of Wayne county, to vacate an order impounding certain property belonging to relator, for use as exhibits in a criminal cause.
    Submitted November 22, 1895.
    Granted December 24, 1895.

      Wells, Angelí, Boynton & McMillan (Otto Kirehner, of counsel), for relator.

      Allan S. Frazer, Prosecuting Attorney, and Ormond F. Sunt, Assistant Prosecuting Attorney (John G. Sawley, of counsel), for respondent.
   Grant, J.

The facts in this case are as follows: The relator was the owner of a large building in the city of Detroit, occupied by a printing establishment and other business enterprises. A large number of persons were employed in it. A steam engine and boilers were used in heating the building, and situated in the basement. On November 6,1895, one or both of the boilers exploded, completely wrecking the building, causing the death of 37 persons, and injury to others. It was claimed by the prosecutor of the county that one Thompson, the engineer, caused the explosion by his criminal negligence in the management of the engine and boilers, and was therefore guilty of manslaughter. An indictment was promptly returned by the grand jury against him, charging him with that crime. Immediately after the explosion, the police department of the city of Detroit took possession of the building, and removed the debris and the bodies of those killed.

On November 16th the prosecuting attorney appeared before one of the circuit judges of the county of Wayne, and upon his verbal statement, without any sworn petition or affidavit, the following order was made:

“On motion of O. F. Hunt, assistant prosecuting attorney, and after hearing argument of H. E. Boynton and Otto Kirchner, friends of the court therein, it is ordered that the steam engine, boiler or boilers, and materials surrounding the same, and now upon the premises known as 45 and 47 Larned street, west, be and the same are ordered into the custody of the police department of the city of Detroit, as exhibits in said cause; the same, however, not to be removed from said premises. This order to remain in force only until the decision of a motion for injunction now pending before Judge Lillibridge, and subject to the terms of an order this day made by him.”

The relator moved to vacate this order, which the court refused, and the object of this proceeding is to set aside that order.

Upon the hearing of this motion the prosecutor filed an affidavit, from which it appears that, after the police department took possession of the debris, an arrangement was made between him and Mr. Thompson, through his attorney, and the relator, that certain persons (expert -engineers) should, on behalf of the respective parties, have free access to the engines, boilers, machines, and the premises, for the purposes of examination. The learned prosecutor further states in his affidavit that this property is essential to be used as exhibits upon the trial of Mr. Thompson, as well as for the further investigation into the causes of the disaster by the grand jury, and claims the right of the prosecution to hold them until all criminal cases connected with the disaster are tried. It thus appears that the prosecution had the entire control and charge of this property for a period of 10 days prior to the making of this order, and have had ample opportunity for an examination thereof by the officers and experts to determine the cause of the disaster, so far as it can be determined from these articles.

The importance of this case to the relator is apparent from the statement of her counsel in their brief that she is threatened with civil ' suits for damages upon the ground that she was guilty of negligence. Not only, therefore, is she by this order deprived of her private property, which she may desire to use in her business, but may be deprived of the evidence which may establish her innocence of any fault. She is charged with no crime. .The broad claim of the learned prosecutor is that the courts possess the power, upon his motion, to enter upon the premises of private persons, and seize any property which may, in his judgment, have any bearing upon a crime with which another is charged. If the order in this case be sustained, it results in holding that a citizen’s team, with which he earns a livelihood, may be seized by the police authorities because the prosecutor believes that such team was used by an alleged.criminal in the commission of a crime. If A. he arrested, charged with arson in the burning of B.’s house, and there be some evidence in the house believed to connect A. with the crime, the police authorities may seize and hold possession of the house for months, and until the trial, and prevent the owner from rebuilding. So, under like circumstances, a manufacturer might be deprived of the possession of his property necessary for the successful carrying on of his business. Other illustrations will readily suggest themselves. The power is certainly an extraordinary one, and those who assert it ought to be able to find some common or statute law authorizing it. The exercise of power no more arbitrary than this, has caused revolutions.

The learned prosecutor cites the following authorities in support of his contention: Whart. Cr. Pl. & Prac. § 60; 1 Bish. New Cr. Proc. §§ 210, 211; Ex parte Hurn, 92 Ala. 102; Woolfolk v. State, 81 Ga. 551; Spalding v. Preston, 21 Vt. 9; O’Connor v. Bucklin, 59 N. H. 589. These authorities do not even hint at such an arbitrary and broad power. The citation in Wharton says only that “those arresting a defendant are bound to take from his person any articles which may be of use as proof in the trial of the offense with which the defendant is charged.” The citation from Bishop goes no further. In Ex parte Hurn, money was taken from the possession of the prisoner, and delivered to the sheriff, who was afterwards served with a writ of garnishment at the suit of an attaching creditor of the prisoner. The sheriff paid the money into court, and asked instructions as to what he should do with it, while the prisoner asked an order for its restoration to himself. It was held that the case could not be reviewed upon mandamus. Many cases are cited and reviewed in that decision, none of which sustain the present case. That court quotes with approval the case of Boyd v. U. S., hereinafter referred to. The conclusion of the court in that case is that “it is the duty of an officer, having no other authority than the right to make the arrest, to search the party arrested, and seize and remove from him any dangerous weapon found on his person.” That authority is confined by the decision to the seizuré of articles found upon the person, and connected with the offense. In Woolfolk v. State, the respondent was charged with murder. During the progress of the inquest he was required to remove his clothing, and while so doing he made statements which were introduced upon the trial. It was objected that the circumstances surrounding the defendant amounted to force and compulsion, but the testimony was held proper. In deciding that case the court discusses the right of seizure, and speaks only of seizure from the person. In Spalding v. Preston, a large number of pieces of German silver, of the precise size and thickness of Mexican dollars, and made in that form for the purpose of being stamped and milled into counterfeit coin of that description, were taken by a sheriff from the person who was carrying them at the time to a place of manufacture, for the purpose of having them finished, so that he could put them in circulation as genuine coin, and were detained by the sheriff to be used as evidence against the person from whom they were taken, and also for the purpose of preventing their circulation. These were material to be used in counterfeiting. It was held that “the owner of them, in the absence of evidence that they were put in that form, without his hnowledge or against his consent, could not sustain trover against the sheriff therefor.” O’Connor v. Bucklin is another case of taking property found upon the person of the party accused.

In my judgment, no case cited in the opinion of my brother, the chief justice, sustains the power here asserted. In Closson v. Morrison, 47 N. H. 482, the property was taken from the person of the respondent, and was levied upon by attaching creditors while in the hands of the sheriff. The decision quotes the statute of that State authorizing search and seizure, and maintains the right of the officer to take weapons from the prisoner, and also money or other articles of value found upon him, by means of which, if left in his possession, he might procure his escape. Commercial Exchange Bank v. McLeod, 65 Iowa, 665, is a similar case, where the property of the prisoner, taken from his person upon arrest, was attached in the hands of the officer. In Langdon v. People, 133 Ill. 382, the property seized was a forged official certificate. It was held not to be private property, and was seized upon a search warrant made . upon due complaint.

In the case of Boyd v. U. S., 116 U. S. 616, Mr. Justice Bradley, in delivering the opinion of the court, quotes with approval the language of Lord Camden in Entick v. Carrington, 19 Howell, St. Tr. 1029:

“No man can set his foot upon my ground without my license, but he is liable to an action, though the damage be nothing; which is proved by every declaration in trespass where the defendant is called upon to answer for bruising the grass, and even treading upon the soil. If he admits the fact, he is bound to show, by way of justification, that some positive law has empowered or excused him. The justification is submitted to the judges, who are to look into the books, and see if such a justification can be maintained by the text of the statute law, or by the principles of the common law. If no such excuse can be -found or produced, the silence of the books is an authority against the defendant, and the plaintiff must have judgment.”

The right of search and seizure is very fully and ably discussed in the Boyd case, at page 622 et seq.

In Hibbard v. People, 4 Mich. 125, an act to authorize the issue of a warrant to seize liquor, and,retain it to abide the order of the court, to be used in evidence upon a trial, was held to be unconstitutional. This decision was approved in Robison v. Miner, 68 Mich. 557.

The people of this State, through their legislature, have made ample provisions for the seizure of property in criminal cases, and they are summarized as follows: (1) Personal property stolen, embezzled, or obtained by false pretenses; (2) counterfeit or spurious coin, forged bank notes, or other forged instruments, or any tools, machines, or other materials provided ■ or prepared for making them; (3) obscene matter; (4) lottery tickets; (5) gaming apparatus. Section 9619, 2 How. Stat., provides what shall be done with the articles so seized. These statutes are declaratory of the legislative will upon the subject of search and seizure, and cannot be extended by the courts to include the right to enter the inclosures of private-citizens, and seize their lawful property, to be held as evidence against alleged criminals. No intimation is found in any statute of this State, or in any decision of this court, that a prosecutor may cause to be' seized the property of third parties, the possession, ownership, and use of which are not prohibited by law, and which are useful and required in the legitimate prosecution of their businesses, and their private inclosures to be entered for that purpose. Such seizures are unwarranted, unreasonable, and prohibited by the Constitution of the United States and of this State. Important as is the proper administration of the criminal law, the power to administer must be exercised with due regard to the constitutional rights of the citizen, among which is the right to the possession and control of his lawful property. Justice Cooley says:

“The only lawful mode of making search upon one’s premises is under the command of search warrants, and these are allowed to discover stolen or smuggled goods, or implements of gaming, and in a few other cases, for which provision must be found in the statutes. The authority to issue them is liable to great abuses, and the law is justly strict regarding their requirements.” Cooley, Torts, 295.

See, also, Cooley, Const. Dim. (6th Ed.) 364-370; 2 Hare, Const. Law, 830; Potter v. Beal, 49 Fed. 793.

The order of the circuit judge was without authority of law, and must be set aside. The writ will issue.

Long, Montgomery, and Hooker, JJ., concurred with Grant, J.

McGrath, C. J.

(dissenting). On the 6th day of November, 1895, a boiler situate upon relator’s premises, in the city of Detroit, exploded, killing 37 persons. At the time of the explosion a grand jury was in session, and after the explosion said grand jury brought into the circuit court for the county of Wayne an indictment against one Thompson, who was the engineer employed by relator, and in charge of the boiler in question at the time of the explosion, charging said Thompson with manslaughter. The circuit judge, upon application of the prosecuting officers, after hearing counsel for said Thompson and also counsel for relator, directed the police department to take the said boiler and attachments into custody, as exhibits in said matter. Relator afterwards moved to set aside the order. Affidavits were presented on behalf of the people, setting forth that certain parts of the boiler attachments had been taken away, that the grand jury were considering the matter of further indictments relating to said matter, and that the said boiler and attachments were necessary exhibits in the prosecution of said cause. The circuit judge declined to set aside the order, and relator applies for a mandamus to compel such vacation.

It is contended on behalf of relator that there is no warrant in law for the order of the circuit judge, and that the order violates section 26 of article 6 of the Constitution, which protects the person, houses, papers, and possessions of every person from unreasonable searches and seizures. A “search warrant” is defined as an examination or inspection by authority of law of one’s premises or person, with a view to the discovery of stolen, contraband, or illicit property, or some evidence of guilt to be used in the prosecution of a criminal action for some crime or offense with which he is charged. 2 How. Stat. § 9615 ei seg., authorizes the issuance by a magistrate of search warrants in certain cases. Section 9619 provides that when any officer, in the execution of a search warrant, shall find any stolen or embezzled property, or shall seize any of the other things for which such warrant is allowed, the property and things so seized shall be safely kept, by the direction of the court or magistrate, so long as shall he necessary for the purpose of being produced or used as evidence on any trial, and afterwards the stolen or embezzled property shall be restored to the owner, and other things shall be destroyed. Section 9396 provides that when complaint is made on oath to any magistrate that complainant believes that any of the provisions of that act [for the prevention of cruelty to animals] are being violated, or are about to be violated, a search warrant may issue, and under the warrant such officer may arrest the person complained against, and seize and bring in every article or instrument designed or adapted to torture or inflict wounds upon any animal, etc. Section 9290 authorizes indecent books and pictures .to be seized and. taken. Section 9598 authorizes the disinterment of bodies for the purpose of inquests and post mortem examinations. Sections 9472-9475 provide that a magistrate may require a recognizance from witnesses in criminal cases, with sureties, and upon failure to recognize or to give sureties, if ordered, that the witness may be committed to prison.

It is contended that none of these statutes cover the present case, and insisted that there is an absence of authority for the order here made. Hut these statutes relate to preliminary or initiatory proceedings, and are designed to confer authority upon inferior tribunals, having no general powers. The statute confers upon circuit courts power to make all orders in any cause pending therein which may be necessary or proper for carrying into effect the jurisdiction vested in such courts by law. Suppose that the attendance of a witness in the trial of a criminal case has been with difficulty procured, and there is danger that he will abscond; has the circuit court no power to secure the attendance of such witness beyond the day? Yet there is no statutory provision conferring such authority, unless it be found in the statute conferring general authority. Suppose that in the trial of a murder case the court deemed it material, in order that the ends of justice be subserved, that the body be exhumed; has the court no power in the premises ? Can it be true that a magistrate may commit the relator to prison, and that the circuit court, upon an indictment presented to it, has no authority respecting an article which has been before the grand jury, and which is, in and of itself, criminating evidence? Is an exploded boiler, or the right of property therein, more sacred than the person ?

The right of an officer to pursue a fleeing criminal in and upon my premises, and into my dwelling, does not depend upon the statute. There is no statute which authorizes an officer to take from a prisoner such evidence of guilt as may be found on the person, — the bloody knife, the revolver with an empty chamber, garments stained with blood, the shoe or boot which fits the track, the coat with the missing button, the knife with the broken blade, the hat found at the scene of the crime. Such taking and use do not violate the rule that the prisoner shall not be compelled to furnish evidence against himself. It is not only the right, but the duty, of an officer making an arrest to take from the prisoner, not only stolen goods, but any articles which may be of use as proof in the trial of the offense with which the prisoner is charged. Whart. Cr. Pl. & Prac. §§ 60, 61. He may take from the prisoner any articles of property which it is presumable may furnish evidence against him. 1 Bish. New Cr. Proc. § 210; Rex v. O’Donnell, 7 Car. & P. 138. This right of sequestration is plain, notwithstanding the property may be claimed by a third party; and stolen goods may be held as against the owner, if necessary for use as evidence, however clear the title of the claimant may be. Ex parte Hurn, 92 Ala. 102; Closson v. Morrison, 47 N. H. 482; Commercial Exchange Bank v. McLeod, 65 Iowa, 665; Woolfolk v. State, 81 Ga. 551. The right to impound exhibits, even in a civil case, has been generally exercised by the courts, and the right to hold articles found in possession of a person charged with crime is not limited to such as are supposed to be stolen, but extends to evidentiary articles.

It is not the fact that there is a contest over the ownership of stolen goods that gives the people the right to retain them, but rather that they are of the res gestee and evidential. The prisoner’s consent does not give the owner the right of possession, as against the people.

The right to the possession and enjoyment of property must be subordinated-to the law of overruling necessity. It is subject to the necessary burdens and restrictions imposed by the general police power of the State, in order to secure the general comfort, health, security, and protection of the citizen. The limitations upon the police power and its execution do not embrace such reasonable judicial orders as may be found necessary, in the course of the administration of the criminal law, for the detention of witnesses and the preservation of evidence. Police officers must be given a reasonable latitude in the pursuit of offenders, the detection of crime, and the collection of evidence; and the courts vested with jurisdiction to try such offenders must be allowed to exercise a reasonable discretion respecting the preservation of the evidence of crime in matters before them. The principle of the rule that permits the traveler upon the highway to go upon the abutting land when the highway is impassable; that permits entry upon my premises in case of fire, and the destruction of my property, if deemed nécessary to stay the conflagration; that permits the inspector to enter my close, — extends to measures necessary for the prevention of crime, the detection, pursuit, and arrest of offenders, and the preservation of criminating evidence. All are matters not alone of individual interest, but of public concern.

The cases of Entick v. Carrington, 19 Howell, St. Tr. 1029, 2 Wils. 275; Boyd v. U. S., 116 U. S. 616; and Potter v. Beal, 49 Fed. 793,—are cases of paper searches and seizures, and involve the right of the government to invade private premises and search among private papers for evidences of crime, and the right to compel the production of one’s own private papers in a criminal prosecution as evidence against himself. Entick v. Carrington was one of a series of cases of trespass, in which defendants attempted to justify under a warrant issued by the Earl of Halifax. The court held that the warrants were wholly without authority and void. The cases are fully discussed in Cooley, Const. Lim. (6th Ed.) p. 364, note.

Boyd v. U. S. was an information in a case of seizure and forfeiture of property against 35 cases of merchandise seized as forfeited under the revenue laws. At the trial it became important to show the value of a previous invoice of 29 cases of the same class of merchandise. The district judge made an order requiring the production of the invoice of the 29 cases. The claimants, in obedience to the order, produced the invoice, under objection. When the invoice was offered in evidence, claimants objected to its reception on the ground that in a suit for forfeiture no evidence could be compelled from the claimants themselves, and that the statute, so far as it compelled the production of such evidence, was unconstitutional. The question which addressed itself to the court, as stated by Mr. Justice Bradley, was whether “a search and seizure, or, what is equivalent thereto, a compulsory production of a man’s private papers, to he used in evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue laws, — is. such a proceeding for such a purpose an ‘unreasonable search and seizure,’ within the meaning of the fourth amendment of the Constitution, or is it a legitimate proceeding?”

Potter v. Beal was a proceeding in equity against a bank receiver to recover the possession of certain private and personal books, papers, and other documents in a certain trunk, which was in the bank vault when the bank was closed by order of the comptroller. The relief sought was an order that the books, papers, and other documents be delivered to plaintiff, and that defendant be enjoined from using the same before the grand jury. Defendant answered that the trunk came into his possession as assets of the bank; that it was his duty to examine the contents thereof, and ascertain whether it contained property of the bank, or memoranda, books, papers, or accounts concerning its affairs. The district attorney, appearing, was permitted to intervene, and make a motion asking for such an order as would lay the papers before the grand jury. The court held that plaintiff was entitled to speedy possession of his private and confidential papers, but that the bank was entitled to know what was taken from its vaults, and referred it to a master, with directions to open the trunk, and, after examination, to deliver to defendant such papers, documents, and other things as were the property of the bank, and were not material to the issue; to deliver to plaintiff such as were private and were not the property of the bank, together with such as related to the bank transactions, and were necessary and material to be introduced by Mr. Potter in his own behalf; and that such as were not included in the two classes named, as related to bank transactions, and, in the judgment of the master, were or might be material to the issue suggested in the motion of the district attorney and the government’s case., should be sealed and returned to the trunk and the safe custody of the clerk, who should relock the trunk, return the key to the counsel for plaintiff, but hold the trunk and contents.

These cases do not hold that all searches and seizures are' unreasonable. They do hold that the invasion of the privacy of one’s home, and the seizure of private papers and documents, is an unreasonable search and seizure, and is within not only the article of the Constitution prohibiting unreasonable searches and seizures, but also the article that no person shall be compelled to give evidence against himself. The rule is, however, that forged documents, or such as are unlawfully held or unlawfully used, are subject to seizure. In Langdon v. People, 133 Ill. 382, a complaint was made by the State’s attorney that one P. R. Langdon had forged an official certificate, and that complainant verily believed that such certificate was concealed in the office lately occupied by said Langdon. Thereupon a search warrant was issued, and the forged certificate brought before the justice who issued the warrant. The court held that the certificate was not a private paper, within the rule of Boyd v. U. S.; that it was a forged paper; and that it was unlawful for plaintiff in error to have it in his possession.

In Com. v. Dana, 2 Metc. (Mass.) 329, the court, speaking of the constitutional provision relating to searches and seizures, say:

“This article does not prohibit all searches and seizures of a man’s person, his papers, and possessions, but such only as are ‘unreasonable,’ and the foundation of which is ‘not previously supported by oath or affirmation.’ The legislature were not deprived of the power to authorize search warrants for probable causes, supported by oath or affirmation, and for the punishment or suppression of any violation of law. The law, therefore, authorizing search warrants in certain cases, is in no respect inconsistent with the declaration of rights.”

Mr. Cooley, in his Constitutional Limitations (6th Ed., p. 370), says that the warrant is not allowed for the purpose of obtaining evidence of an intended crime, but only after lawful evidence of an offense actually committed; nor even then is it allowable to invade one’s privacy for the sole purpose of obtaining evidence against him, except in a few special cases, where that which is the subject of the crime is supposed to be concealed, and the public or the complainant has an interest in it or in its destruction. In a note the author says:

“We do not say that it would be incompetent to authorize by statute the issue of search warrants for the prevention of offenses in some cases; but it is difficult to state any case in which it might be proper, except in such cases of attempts or of preparations to commit crime as are in themselves criminal.”

The present case is not one where it is sought to compel relator to produce evidence against herself, for she is not the person charged; and, even if she were, the use of the boiler as evidence cannot be distinguished from any case where the instrument causing the death is produced, although taken from the prisoner, or found in defendant’s apartments. Nor is this a case where any attempt has been made to invade private premises for the discovery of evidence of crime. An explosion had occurred, and 37 persons had lost their lives in consequence. The matter was submitted to the grand jury, and they have brought in, and presented to the court making the order complained of, an indictment against the person in charge of the boiler at the time of the explosion, charging him with criminal carelessness with respect to the care and management of the boiler. It is insisted that the boiler, in and of itself, is evidence of the causes which led to the explosion, and of the carelessness of the management. It is true that in counsel’s brief it is said that the relator “may be subjected to suits by persons who received injuries by the destruction of the building;” but there is no good reason why the police authorities, whose mission is in part the protection of property, cannot in this particular case be intrusted with the preservation of the status quo of this property, especially as the same is held under an order of the court, and subject to its direction.

It frequently happens that animals affected-with infectious diseases are killed by the public authorities to prevent the spread of the disease; and if the poor man’s team had been stolen, and taken from the thief, the necessity for its use would not necessarily determine the owner’s right to its possession. If, in a partially burned building, there were found a package of combustible material saturated with kerosene, would there be any question of the right of the authorities to take and preserve the package for use as evidence? Illustrations of what might readily be held to be unreasonable seizures could be multiplied without effort, but they would be without force. The prohibition is against unreasonable seizures, and all seizures are not regarded as unreasonable. The question here is whether this is an unreasonable seizure. Relator’s contention is that any impounding of any of her property for the purpose named is unwarranted. Because a man may not be put out of his own house, it does not follow that a revolver or a steel drill or a knife may not be sequestered for use as evidence in a criminal proceeding. Because a man’s team with which he earns a livelihood, which has been used by another to convey away stolen goods, may not be impounded, it does not follow that the status quo of an exploded boiler, the negligent use of which, resulting in the death of 37 persons, is charged as manslaughter, concerning which no claim is made of a desire for its use, and which in fact does not appear to be other than useless, except for scrap iron, may not be preserved for use as evidence upon the trial of the offense charged, especially as it is claimed by the record here that the police authorities have, since the explosion, been endeavoring to exercise a certain surveillance over it, and in that endeavor a conflict between police officers, counsel for the accused, and the owner has arisen, and certain of the connections of the boiler have been spirited away.

It is urged that some common or statute law authorizing such a seizure should be pointed out. The cases referred to sustain the right to hold evidentiary articles, irrespective of the question of ownership, and as against the owner; and no case can be found which disputes this right, or intimates that such articles cannot be seized and impounded, where the rules referred to in the Entick and Boyd cases are not infringed. Those cases do not intimate that a search warrant may not issue in a proper case for the discovery and seizure of evidences of crime. The officers of the law, to whom is committed the prevention and detection of crime and the collection of eliminating evidence, are daily committing acts for which there is no express authority in the statutes, or elsewhere in the books. In the recent notorious Holmes cases, the officers of the law, in their efforts to secure criminating evidence, entered upon private property, and excavated under cellar floors and elsewhere, and no one raised any question as to the right so to do. Such acts are generally regarded as demanded by public necessity, in the interest of good morals and the detection and punishment of crime, — matters of public concern, to which the right of the owner to immediate possession of his property must at times be subordinated.

The police authorities certainly had the undoubted right to make an investigation under the direction of the prosecuting officers. Upon the presentation of the indictment, the court making the order obtained jurisdiction of the matter. It cannot be said that the court would not have the power, had it been found necessary, to compel witnesses to give sureties for their appearance, or to commit them on refusal so to do. If this be true, can it be seriously contended that this exploded boiler cannot be impounded? The court might in such .case order the witness into custody, although not before the court. While the order here was not technically a search warrant, yet it was in the nature of one, omitting the direction to search, and directing the officer to take into custody an article which was fully identified, and admitted to be the one with respect to which the criminal carelessness is charged, and the explosion of which is conceded to have been the cause of the loss of life. It was its unlawful use that is alleged to have produced the result. The possession is that of the court, and is but temporary. If it be claimed that the deprivation of the use is a serious inconvenience, the court may be appealed to, and possibly some means may be devised to preserve the evidence and release the property; but that is a matter which should be addressed to the judgment and discretion of the court making the order.

The writ should be denied.

       See Com. v. Mudgett, alias Holmes, 4 Pa. Dist. R. 739, 174 Pa. St. 211.


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    PEOPLE v. SMITH.
    Criminal Law — -Sentence—Imprisonment in House oe Correction.
    Section 29 of Act No. 1-18, Pub. Acts 1893, authorizing the courts to sentence to the state house of correction persons convicted of a misdemeanor, where the punishment imposed is not less than 6 months’ imprisonment, applies to one convicted under a statute in force at the time of the adoption of said act (e. g., Act No. 8, Pub. Acts 1893, prohibiting the sale of liquor upon any waters within the jurisdiction of the State, but outside of the boundaries of any city, village, or township), a violation of which is in terms made punishable by imprisonment in the county jail. People v. Gobles, 67 Mich. 175, distinguished.
    Error to Benzie; Aldrich, J.
    Submitted November 21, 1895.
    Decided December 24, 1895.
    William W. Smith was convicted of a violation of Act No. 8, Pub. Acts 1893, in relation to the sale of intoxicating liquors.
    Affirmed.

      Tweddle & Gross, for appellant.

      Fred A. Maynard, Attorney General, and D. G. F. Warner, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of a violation of 'section 1 of Act No. 8 of the Public Acts of 1893. He was sentenced to imprisonment in the house of correction and branch of the state prison at Marquette for six months. The only question raised is whether this sentence was authorized by law.

Section 2 of the act in question provides:

“Any person who himself, or by his clerk, servant, agent, or employé, shall violate any of the provisions of section one of this act, shall for the first offense be deemed guilty of a misdemeanor, and, upon conviction thereof, be sentenced to pay a fine of not less than fifty nor more than two hundred dollars and the costs of his prosecution, or to be imprisoned in the county jail not less than forty days nor more than six months, in the discretion of the court. For the second and every subsequent offense so committed, he shall be deemed guilty of a felony, and, upon conviction thereof in any court of competent jurisdiction, be sentenced to pay a fine of not less than one hundred dollars nor more than six hundred dollars, or to be confined in state prison for a term of not less than ninety days nor more than two years, in the discretion of the court.”

This was approved and given effect February 24, 1893.

Section 29 of Act No. 118 of the Public Acts of 1893 reads as follows:

“Courts of criminal jurisdiction may sentence to the .state house of correction and reformatory at Ionia all male persons over fifteen years of age, and not known to have been previously sentenced to- a prison for felony, who shall be convicted of any crime except treason or murder in the first degree, and all male persons over fifteen years of age who shall be convicted of any misdemeanor, where the sentence for such crime or misdemeanor shall not be less than six months; and may sentence to the state prison at 'Jackson any person over the .age of fifteen years, duly convicted of any crime punishable by imprisonment in said state prison, as the courts .shall deem best; and may sentence to the state house of correction and branch of the state prison in the Upper Peninsula all persons convicted, as is or may be provided by law for sentencing prisoners to any of the other prisons in this State, as the court shall, in its discretion, •deem best.”

This was given effect May 26th.

It cannot be open to question that the terms of this latter law are broad enough to authorize imprisonment in the house of correction and branch of the state prison in the Upper Peninsula; but in People v. Gobles, 67 Mich. 475, it was held that, under the statutes then in force, it was not competent to sentence to the house of correction for an offense which, by a statute enacted after the •enactment of the law governing the house of correction, was in terms made punishable by imprisonment in the county jail. Counsel for the people do not contend against the doctrine of this case, but claim that, as Act No. 118 is later than Act No. 8, it operates as an amendment to Act No. 8, by implication. We think this contention sound. It is to be noted that section 29 of Act No. 118 is not merely a re-enactment of existing laws upon the subject. If it were, a different rule of construction might be invoked. P.ut this section contains a .substantial amendment of the former law. Under the law as it previously existed, a person convicted of a misdemeanor, when the punishment was not less than 90 days, was .subject to confinement in the house of correction at Ionia. 2 How. Stat. § 9755. And by section 9807e3, 3 How. Stat., it is provided that courts having •criminal jurisdiction may sentence -to the state house of correction and branch of the. state prison in the Upper Peninsula all persons duly convicted before them, as is or may be provided by law for sentencing prisoners to any of the other prisons in the State. It will be seen that there was a substantial change in the law embodied in section 9755, 2 How. Stat., fixing the minimum of imprisonment in these prisons at six months. It cannot be said, therefore, that the subject was not under consideration by the legislature. As before stated, we are unable to say that the enactment does not cover the case.

The judgment is affirmed.

Long, Grant, and Hooker, JJ., concurred. McGrath, C. J., took no part in the decision.


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    HORNING v. HORNING.
    1. Divorce — Custody of Children.
    Upon an appeal by a wife from the terms of a decree by which she was granted a divorce on the ground of extreme cruelty, it was held that the court properly awarded to her the custody .of the children under 14 years of age, and permitted the others to elect with which parent they would reside.
    2. Same — Alimony.
    In estimating the value of the husband’s estate as the basis for an allowance of permanent alimony, his interest in an unfinished lumbering contract, from which he has derived and will in all probability continue to derive large profits, should be taken into consideration.

      Appeal from Mecosta; Palmer, J.
    Submitted December 6, 1895.
    Decided December 24, 1895.
    Bill by William H. Horning against Hattie Horning for a divorce. Defendant answered, claiming the benefit of a cross-bill, and a decree was entered in her favor, from the terms of which she appeals.
    Decree modified and affirmed.

      Frmlo Dumon, for complainant.

      Wesley W. Hyde, for defendant.
   Long, J.

In November, 1893, the complainant filed his bill to obtain a decree of divorce from the defendant, and for the custody of their children. The defendant appeared, and filed an answer in the nature of a cross-bill, asking a decree of divorce from the complainant, upon the ground, among others, of cruel treatment. The complainant answered the cross-bill. The proofs were taken in open court, and a decree entered dismissing complainant’s bill, and granting a decree upon the cross-bill, in favor of the defendant, on the ground of extreme cruelty, and awarding her the custody of the two younger children until they should, respectively, attain the age of 14 years, and providing that the two older children should each elect with which parent she would reside. The decree further provided that the defendant was entitled to alimony and" dower in the lands of the complainant. It found the value of complainant’s estate to be $19,475, and upon that the defendant was awmrded the gross sum of $6,492 in lieu of dower and of permanent alimony, as follows: Property, real and personal, to the amount of $3,700, upon which there is no incumbrance; and provided that the balance of $2,792 should be paid in cash within 60 days after the signing of such decree, and that the defendant should relinquish her right of dower in and to the complainant’s lands, and assign to him her interest in an insurance policy upon the life of complainant. From this decree the defendant appeals.

The principal object of the appeal appears to be to secure from this court a larger sum of money as permanent alimony in lieu of dower and a larger sum for the expenses of suit than allowed in the lower court. The court below had from time to time allowed to defendant certain sums as expenses .and solicitor’s fees in the conduct of her case, and, in making a final decree, awarded no further costs than the payment of the register’s fees of that court.

We think there was sufficient evidence in the case to warrant a decree in favor of the defendant on the ground of cruel treatment, and that the court very properly awarded the custody of the two younger children to defendant, and permitted those who were over 14 years of age to choose with whom they would reside; so that the only remaining question is whether the defendant has been awarded a sufficient amount of alimony according to the financial circumstances of the complainant.

Counsel for defendant contends that the court below was in error in fixing the amount of complainant’s property to be $19,475, and insists here that the record shows him to be possessed of from $30,000 to $40,000. He further insists that the court, in fixing the amount of complainant’s property, did not take into consideration a certain interest which the complainant, as one of the firm of Horning & Hart, had in a lumber contract with William Peter, of Toledo. This contract was entered into in 1887, by the terms of which Horning & Hart were to cut and manufacture into lumber certain pine timber in northern Michigan. For several years they have been engaged upon such contract, making large profits, and it will take several years yet to complete the contract, and out of which, it is insisted, large profits will be made in the future. The witnesses called by the parties upon either side did not agree as to the present value of this contract, some of them estimating that there were 24,-000,000 feet of lumber yet to1 be cut under the contract, and others estimating it at a much less amount. There was some contention in the court below over the value of a mill belonging to the firm, which was used in carrying' out the Peter contract, complainant’s witnesses putting its value at a less sum than the defendant’s witnesses; but apparently the value of that plant was taken into consideration by the court below in fixing the- amount of alimony.

Whatever may be said as' to the uncertainty of large profits being yet made out of the Peter contract for lumbering these lands, we think it is shown beyond much controversy that something should be added to the value of complainant’s property by reason of it, and that the court below was in error in fixing the total value at $19,-475, and awarding to defendant only one-third of that, under the circumstances stated in the bill and as shown by the proofs. We think the value of complainant’s property should have been fixed at a greater sum, and the defendant awarded a larger sum as permanent alimony and for the release of her dower interest, than fixed by the court below. The Peter contract has been in the past a source of great profits to Horning & Hart, and, according to the testimony of witnesses, it is a contract which will yet produce large profits, and should be taken into consideration in fixing the amount which complainant should pay to the defendant.

The decree of the court below will be affirmed in all things except as to the amount of cash which complain-. ant shall pay to defendant, which was fixed by the court below at $2,792. That will be increased to $5,000, and to be paid within 60 days from the affirmance of the decree in this court. Defendant has been put to considerable expense in perfecting her appeal to this court, and preparing her case for argument here by her solicitor; and a further sum of $350 will be awarded as solicitor’s fee& in' addition to the other taxable costs in this court.

Grant, Montgomery, and Hooker, JJ., concurred.. . McGrath, C. J., did not sit.