author: Bird, J.

text:
    LANDERS v. CITY OF MUSKEGON.
    Master and Servant — Workmen’s Compensation Law — “Accident” — Exposure.
    A city fireman does not receive an “accident” resulting in his death within the workmen’s compensation act, where he is drenched while attempting to put out a fire on a vessel and a few hours later is again drenched by a sudden rush of water from the deck, and later dies of pneumonia due to the drenching and exposure, it not being'an unusual occurrence for firemen to get wet in fighting fires, even though the disease germs were dormant in his system and were aroused to activity by his exposure.

    Certiorari to Industrial Accident Board.
    Submitted April 20, 1917.
    (Docket No. 146.)
    Decided June 1, 1917.
    Mary B. Landers presented her claim for compensation against the city of Muskegon for the accidental death of her husband in defendant’s employ. From an order granting compensation, defendant brings certiorari.
    Reversed.

      Cross, Vcinder werp & Foote, for appellant.

      Sutherland, Johnson & Sessions, for appellee.

      On construction and effect of workmen’s compensation acts generally, see comprehensive note in L. R. A. 1916A, 23.

   Bird, J.

Claimant’s husband, William Landers, was employed in defendant’s fire department. On the morning of December 30, 1915, the department was called upon to extinguish a fire in the hold of the steamer Nyack, which was being wintered in that port. The boat stood out of the water about 40 feet, and more or less of the water thrown from the hose would strike the side of the boat and' splash back onto* the firemen. By reason of this, the deceased became very wet. He was on duty nearly 12 hours before the fire was extinguished. The next morning he was taken ill, but kept at his work until January 2d, when a physician was called and diagnosed his illness as lobar pneumonia. On January 13th he died. Claimant afterward made an application to the industrial accident board for compensation, and after the usual proceedings were had she was allowed the death award, provided in such cases, of $7.81 per week for a period of 300 weeks, and also the further sum of $70.90 for doctor’s services, medicines, and hospital charges.

The defendant questions the validity of this award on the following grounds:

(1) Because no accident occurred to William Landers, husband of claimant, that either directly or indirectly caused the pneumonia from which he died.
(2) Because the severe wetting and physical exhaustion suffered by William Landers was a necessary incident to his employment as fireman, and cannot be said to have been an accident within the meaning of Act No. 10, Extra Session 1912 (2 Comp. Laws 1915, § 5423 et seq.).
(3) Because the deceased, William Landers, suffered no injury arising from any accident whatever.
(4) Because the pneumonia from which William Landers died was not due to an accident, but was in the nature of an occupational disease.

The events which caused the death of Landers, undoubtedly, arose out of and in the course of his employment, but did those events constitute an accident within the meaning of the compensation act? An “accident” is defined, in Fenton v. Thorely & Co., 72 L. J. K. B. 790, as follows:

“The expression 'accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or an untoward event which is not expected or designed.”

This definition is approved in Adams v. Color Works, 182 Mich. 165 (148 N. W. 485, L. R. A. 1916A, 283, Am. & Eng. Ann. Cas. 1916D, 689).

Landers was employed as a fireman. It was a part of his regular duties to- go to fires and help extinguish them. In doing so, it was not an unusual thing for him to get wet. Not only does the proof show, but we think it is a matter of common knowledge, that firemen are subjected to exposure and drenching while attempting to extinguish fires. The engineer of the department testified:

“It was nothing unusual to get wet, but we don’t get wet though at all fires. We never get wet intentionally, nor we don’t wet each other. We do everything possible to keep from getting wet.”

Mr. McShannock, one of the firemen, testified:

“It is no unusual occurrence for us to get wet; the men are bound to. We wear oilskin coats, hats, and rubber boots. We don’t get as wet as we did at this fire every time.”

We must therefore conclude that pneumonia was brought on, not by an unexpected event, but by an event which was an incident to his regular employment.

At about 11 o’clock in the forenoon, there was a sudden rush of water from the upper deck, which fell onto and drenched the firemen as they were working around the boat. This is assigned as the unexpected event which constituted an accident. The uncontradicted proof is that they were wet through two or three hours before this took place. We think this incident should be classed among the ordinary ones attending the duties of a fireman, and not as an accident.

Dr. Durram, who attended the deceased, testified:

“The cause of death was lobar pneumonia. Lobar pneumonia is a disease condition caused by the diplococcus germ. This germ may lay dormant in the system. In fact, no doubt some of the people in this room have the germ in their system, and do no harm until some intervening cause arouses it to activity. The drenching and physical exhaustion and exposure would bring the pneumonia.”

If it can be said in the present case that the diplococcus germ was dormant in the system of the deceased, and that it was aroused to activity by his exposure at the fire, the case must fail, because the thing which aroused the germ into activity was caused by events which were incident to his regular employment, and not by the unusual and unexpected event.

The award made by the industrial accident board must be reversed and set aside.

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


source: Caselaw Access Project

license: Public Domain

text:
    BROWN v. GEORGE A. FULLER CO.
    1. Master and Servant — Workmen’s Compensation Law — Basis op Award — Defenses—Waiver.
    The defenses that an award by the Industrial accident board was void because claimant was not incapacitated and away from his work for two weeks, and no notice of the injury was given within three months from the happening thereof, and no claim was made within six months after its occurrence, were waived where the employer joined in arbitration, paid the amount due thereunder, and acquiesced in the board’s order by taking claimant back into his employ and giving him lighter work.
    2. Same — Assignment op Claim — Effect.
    The assignment to defendant of claimant’s cause of action against a physician for malpractice did. not affect claimant’s right to compensation in proceedings under the workmen’s compensation act.
    2. Same — Return to Work.
    Where claimant was awarded a certain sum as compensation to date of the award and to a certain sum per week thereafter, and the award provided that claimant should return to work at certain wages at light employment, the fact that the work to which claimant returned ended did ' not take away his right to compensation allowed him by the board.
    4. Same — Evidence.
    The questions raised which assumed that claimant was not injured as badly as he claimed, or if he was, that he had wholly recovered and that respondent had fully complied with the terms of the award, were questions of fact upon which the conclusions of the board were supported by the evidence.
    Certiorari to Industrial Accident Board.
    Submitted June 13, 1916.
    (Docket No. 85.)
    Decided June 27, 1917.
    James B. Brown presented his claim for compensation against the George A. Fuller Company for injuries received in defendant’s employ: On petition by defendant to be relieved from making further payments. From an order denying the petition, defendant brings certiorari.
    Affirmed.

      H. Monroe Dunham and John M. Dunham, for appellant.

      E. A. Maher, for appellee.
   Bird, J.

While defendant was engaged in constructing the Hotel Pantlind, in the city of Grand Rapids, claimant was in his employ. On July 28, 1913, while at his work, plaintiff fell and sustained injuries which were diagnosed as a “strain of the left wrist and a contusion of the upper arm.” On August 11th he returned to his work, and thereafter served in the capacity of a watchman and did some light work on full pay. In December, 1914, he was discharged. On February 10, 1915, he filed his claim with the industrial accident board, and on April 28th was awarded by a committee of arbitration $7 per week for partial disability, and this sum was made to date from the time of discharge. The board further ordered that claimant should return to work with full pay if defendant would furnish him with light work. The defendant acquiesced in this order, and claimant remained in its service until the 1st day of September, 1915, on which date the hotel was completed, and claimant was discharged. By reason of the continued demands of plaintiff upon defendant for compensation, it filed its petition in November, 1915, praying to be relieved from making further payments to him. Claimant answered the petition, and a hearing was. had, at the conclusion of which the board denied the prayer of the petition and ordered defendant to pay him $7 per week from August 28,1915, to the date of the hearing, amounting to $138.83, and it was further ordered that from and after the 13th day of January, 1916, the defendant should pay claimant “one-half of the difference between his weekly wage prior to the injury and the average weekly wage that he is able to earn within the limits, prescribed by the statute.” . It is this order that is before us for review.

The first point made by defendant is that the original award was Void:

(a) Because claimant was not incapacitated and away from his work for two weeks.

(b) Because no notice of the injury was given within three months from the happening thereof.

(c) Because no claim was made within six months after its occurrence.

Had defendant intended to raise these questions, it should have done so before the arbitration committee. Instead of doing so, it selected an arbitrator and joined in the arbitration, and after the award was made, it not only paid what was then due, but acquiesced in the optional order made by the board, by taking claimant back into its employ and furnishing him lighter work. These defenses were clearly waived by its conduct and its failure to raise them at the proper time.-

After claimant’s second discharge, he commenced suit in the circuit court of Kent county against Dr. Smith to recover damages for malpractice in the treatment of his injuries; but the suit never got beyond the service of process. Before the declaration was -filed, claimant assigned whatever cause of action he had against Dr. Smith to defendant. It is now claimed that by reason of such assignment plaintiff has parted with all of his right to demand further compensation for his injuries. Plaintiff’s right to recover compensation in this proceeding is based upon injuries incurred while in the course of his employment. His claim against the doctor for damages, if he had one, depended upon his ability to show that the doctor improperly treated his injuries. By assigning his right to damages in the latter case, which was an action of tort, it would not necessarily carry with it a cause of action given him by the statute and resting upon contract. We think there is no merit in this contention.

Counsel assert that if the original award was valid it has been entirely complied with by defendant. Therefore the board should have declared it terminated. For the purpose of determining whether this point is well taken, it will be profitable to examine the terms of the award made by the committee of arbitration. The language is:

“That the said applicant, James B. Brown, is entitled to receive and recover from said respondent, George A. Fuller Company, the sum of seven dollars per week during disability (partial) from the 28th day of July, 1918, and that said applicant is entitled to receive and recover from said respondent on this date $77 (11 weeks), being the amount of such compensation that has already become due under the provisions of law, the remainder of said award to be paid to James B. Brown, applicant, by said respondent in weekly payments, commencing one week from the date of the award.
“It is the decision of the arbitration committee that Brown is to return to work for the George A. Fuller Company and furnished with such employment as he may be able to do. Wages to be $2 a day ($14 a week of 7 days). No time was lost by applicant from date of accident until December 26, 1914.”

The Fuller Company agreed to furnish applicant with light work. Signed by the three members of the committee of arbitration.

Defendant elected to take claimant back into its employment, and up to the time that it discharged him, in September, 1915, it complied with the order. After that date it has not complied with the order, but for some reason assumes that its duty was at an end when the hotel was finished and it had no further work for the plaintiff. It is said he was given work as long as defendant had work to give him. The fact that it did or did not have employment for claimant would not terminate his right to compensation. The fact that it did not have any further work for claimant after September, 1914, would, doubtless, change the method of complying with the order; but it would not take away claimant’s right to the compensation allowed him by the board.

Several other questions are raised and argued which assume claimant was not injured as badly as he claimed to be, or that if he were he has wholly recovered, and that defendant has fully complied with the terms of the award. These are questions of fact about which we shall not concern ourselves, as we are satisfied that the conclusions of the board are supported by evidence.

The order appealed from is affirmed.

Kuhn, C. J., and Stone, Ostrander, Moore, Steere, and Brooke, JJ., concurred. Person, J., took no part in the decision.


text:
    PEOPLE v. CUTLER.
    1. Criminal Law — Jurors—Voir Dire Examination — Presumption of Innocence.
    In a criminal prosecution for murder a question put to a juror on his voir dire as to whether he would consider the presumption of innocence as evidence in favor'of the accused, was properly sustained.
    2. Same — Murder — Evidence — Question for Jury — Instructions.
    It was proper to submit first and second degree murder for the consideration of the jury, where the evidence tended to show previous threats by the accused to shoot deceased and that the shooting was not in the house of accused, as claimed by her, but in the public highway.
    3. Same. — Examination of Witnesses — Discretion of Court.
    The preliminary examination of witnesses by the court to determine the admissibility of the declarations of a deceased party as dying declarations may be conducted by the court itself or by. the prosecuting attorney in the court’s presence, and it lies within the discretion of the court as to conducting such examination in the presence of the jury.
    4. Same — Murder—Defenses—Evidence—Competency.
    The plea of self-defense having been filed, the testimony of several witnesses in rebuttal on behalf of the people that deceased had stated to them that his wife was immoral, that she seemed to have an anxiety for other men, that she was not living right, and was unfaithful to her marriage vows, was incompetent.
    5. Same — Evidence—Admissibility—Harmless Error.
    The admission of incompetent testimony in rebuttal by the people was harmless error where such testimony tended to support the plea of self-defense.
    6. Same.
    Where accused had testified to certain previous assaults by her husband upon her, the exclusion of the testimony of ' certain witnesses as to her appearance following such assaults, on the ground of lack of personal knowledge of the assaults, was harmless error, the witnesses subsequently describing her appearance.
    7. Same — Evidence — Cross-Examination oe Witnesses — Impeachment.
    It is permissible, within the discretion of the court, to discredit a witness, upon cross-examination, by showing the witness’ want of chastity.
    8. Same — Instructions—Requests to Charge — Weight oe Evidence.
    Where the general charge was to the effect that the jury should give such weight to the testimony of accused as in view of all the facts and circumstances as shown it should appear to them to be entitled to and should test such testimony the same as that of any other witness, the .refusal to comply with a request to add that such testimony “if rational, natural and consistent may outweigh the testimony of all other witnesses,” was not erroneous, the general charge having fairly covered the request and fully protected the accused, since a trial court is not required to give a request in the exact language tendered.
    9. Same.
    Where a plea of self-defense was interposed in a prosecution for murder, and evidence introduced in support of such plea, a charge that "if the person assailed honestly believes his or her life in danger or that he may suffer or that she may suffer serious bodily harm, he has a right to resist even to the taking of the life of his assailant. The person assailed is to be judged by the circumstances and conditions as they honestly appear to her at the time,” and a charge that “if you find from the evidence that the defendant had reasonable cause to believe that the deceased was about to strike her with a knife in the vestibule of the house at the time and in the manner described by her, she was not bound to flee, but had a right to defend herself from such threatened attack,” fairly safeguarded the rights of the accused.
    10. Trial — Instructions—Appeal and Error.
    Where the court referred by name to certain witnesses in its charge, but did not comment upon their testimony, except to indicate that they were witnesses for the people, and concluded the charge with an admonition that the verdict should be based entirely upon the evidence actually produced before the jury and not upon the statements of attorneys or the court as to the testimony, any undue impression from such reference was cured hy such admonition.
    Error to Berrien; Bridgman, J.
    Submitted June 15, 1916.
    (Docket No. 126.)
    Decided June 27, 1917.
    Carrie May Cutler was convicted of murder in the second degree, and sentenced to imprisonment for not less than two nor more than twenty years in the Detroit house of correction.
    Affirmed.

      John J. Sterling and Hurry A. Plummer, for appellant.

      Grant Fellows, Attorney General, -L. W. Carr, Assistant Attorney General, Chester P. O’Hara, Prosecuting Attorney, and James O’Hara, Assistant Prosecuting Attorney, for the people.
   Bird, J.

Respondent shop and killed her husband in Benton Harbor on April 30,1915. She was afterwards convicted of murder in the second degree, and sentenced to the Detroit house of correction for a term of not less than 2 nor more than 20 years. She has brought the proceedings to this court by writ of error for review. !

The record discloses that in June, 1914, respondent was married to John Cutler in Benton Harbor, where they both resided. At that time she was 31 years of age, and had been twice married,. Cutler .vyas 44 years of age, and had been previously married. They lived together until February, 1915/ when they separated and respondent went to work as a domestic. She claims that during the time they lived "together they had frequent quarrels; that he was cruel to her, and, that on two occasions she left him temporarily on account of harsh treatment; that after they separated he assaulted her several times on the streets of Benton Harbor, and beat her and threatened to take her life; that about the middle of April, 1915, she went to work in the home of Mr. M. N. Berger, who resided about a mile from the business center of Benton Harbor. It appears that on the afternoon of April 30th Cutler called the Berger home by telephone, and learned that respondent was there, and that the Bergers were away. He at once went to the Berger home, and respondent claims that he struck her in the face and threatened to kill her with a knife which he had in his hand; that when she recovered from the blow she went to her employer’s bedroom and secured a revolver and returned to the front door. Cutler was then standing just outside of the screen door, and her claim is that he still had the knife in his hand, and that his attitude was a threatening one, whereupon she shot him in self-defense. It was claimed by the prosecution that Cutler went to the Berger home in the afternoon in question to induce his wife to return and live with him; that Cutler was not angry, and did not threaten her; that respondent was the angry one; and that she did what she had threatened to do on former occasions, if he did not stop following her.

Respondent’s counsel inquired of a juror on his voir dire if he would consider the presumption of innocence as evidence in favor of the accused. The question was objected to, and a discussion followed between court and counsel as to whether the presumption of innocence should be regarded as evidence in the case in favor of the accused. At the close of the discussion the court sustained the objection and stated to the jury that:

‘‘The respondent here starts with the presumption of innocence, and that presumption of innocence will continue with her until such time as the jury are satisfied beyond all reasonable doubt of her guilt.”

This assignment of error raises a question which has been the subject of much discussion and disagreement among the courts and law-writers. It is stated by Greenleaf on Evidence that “this legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled.” 1 Greenleaf on Evidence, § 34. This theory is attacked as unsound by Thayer’s Preliminary Treatise on Evidence, p. 551; also by Wig-more in his work on Evidence (volume 4, § 2511). Wharton on Criminal Evidence also declares against the evidence doctrine (volume 2, pp. 1817, 1818). In Coffin v. United States, 156 U. S. 460 (15 Sup. Ct. 394), the Federal Supreme Court declared in favor of the rule as laid down by Greenleaf, but in a later case it appears to have receded in part from its position in that case. Agnew v. United States, 165 U. S. 36 (17 Sup. Ct. 235). In the State courts some of them have declared in favor of the evidence doctrine, while others have declared against it. It does not seem necessary to determine that question in this case. Whether the legal presumption of innocence is to be regarded by the jury as evidence in favor of the accused, or whether it is to be regarded merely as fixing the status of the accused before the court is not a matter of much concern in this case. Such a discussion is very much out of place with a jury of laymen. To ask a layman to draw fine legal distinctions about which the profession and courts kre unable to agree is not only without profit, but is absurd. Counsel insisted upon asking a very common question in a technical and perplexing way. The trial court indicated clearly that he would be permitted to ask the question in the usual way, namely, whether the juror understood that the accused was entitled to the presumption, and whether he would give her the benefit of it. The juror to whom the question was put made answer that he understood that the accused was entitled to the presumption. Whether she was entitled to the benefit of the presumption on one theory or the other was of no importance to the juror. The ruling of the court was proper. For a valuable review of the authorities on this question, see Culpepper v. State, 4 Okl. Cr. 103 (111 Pac. 679, 31 L. R. A. [N. S.] 1166, 140 Am. St. Rep. 668).

Error is predicated upon the refusal of the court to eliminate first and second degree murder from the consideration of the jury. If the court were to assume that the circumstances attending the shooting were as claimed by the defendant, this contention would have some force. But the prosecution claimed that the shooting took place under very different circumstances than those detailed by the respondent. While respondent claimed that she shot her husband when he was on the porch or in the vestibule, the people’s proof tended to establish the shooting on the viaduct in the public highway some distance from the house. This, coupled with the proof of her previous threats to shoot her husband if he did not quit following her, was sufficient to submit to the .jury upon the question of her act being deliberate, wilful, and premeditated.

Officer Foeltzer and Dr. Ryno were the first to arrive on the scene after the shooting. They found Cutler on the viaduct in a dying condition, and they removed him to the hospital, where he died a few hours later. On the way there Cutler made a statement concerning the shooting, which was admitted on the trial as his dying declaration. Error is assigned on its admission on the ground that the trial court should have personally conducted a preliminary examination of the witnesses out of the hearing of the jury to ascertain whether it was admissible as a dying declaration. Counsel cite the recent case of People v. Christmas, 181 Mich. 634 (148 N. W. 369), in support of this contention. In that case it was stated:

“It is elementary that before a statement made by the deceased should be received as his dying declaration, a preliminary investigation shall be made by the court to determine its admissibility as such.”

We think counsel is mistaken in assuming that this language was intended to establish such a rule as he contends for. It is the duty of the court to determine by preliminary examination of the witnesses whether the declarations were made in- extremis, and whether the deceased so understood it, but it is of little importance whether the court conducts the examination himself or whether the prosecuting attorney conducts it in his presence. The trial court in reply to counsel’s objection observed that if the inquiries of the prosecuting attorney did not satisfy his mind, he would interrogate the witnesses himself. The preliminary examination was conducted in his presence, and he determined that the statement was admissible, and the fact that the examination was conducted in the presence of the jury did not make it error. Whether the examination should proceed in the presence of the jury was discretionary with the trial court.

On rebuttal the prosecutor was permitted to show by several witnesses that the deceased stated to them that the respondent, his wife, was immoral; that she seemed to have an anxiety for other men; that she was not living right; and that she .was unfaithful to her marriage vows. It is said this testimony was hearsay and therefore objectionable. We have much doubt about the competency of this testimony on behalf of the people. In admitting it the trial court took the view that it had a tendency to show the state of Cutler’s mind. Conceding that it did, when that was established no inference could be drawn therefrom which would tend to refute the claim of self-defense. It would operate to show a state of mind which might cause him to do just the things that defendant claimed that he did. While we think the testimony was incompetent, it tended to strengthen the theory of respondent, and tended to show, as her testimony did, that Cutler was of the belief that she was running with other men. We think the error was harmless. Whittemore v. Walter, 193 Mich. 365 (159 N. W. 525).

Three of respondent’s witnesses were asked upon direct examination to describe respondent’s physical appearance following the occasions when she claims she had been assaulted by her husband. The answers appear to have been excluded upon the ground that the witnesses had no .personal knowledge of the assaults or who made them. Respondent had, however, previous to this, testified to the assaults having been made upon her, and she was entitled to the testimony of the witnesses as to her physical appearance following them. The witnesses saw her appearance, and it was competent for them to describe it. It does not appear that any injury resulted by the exclusion of the answers, as each one of the witnesses afterward described her appearance.

Assignments 16, 17, and 18 relate to the questions propounded to respondent upon cross-examination affecting her chastity. It is insisted that it was error to permit them to be answered over counsel’s objection, under the rule laid down in People v. Cahoon, 88 Mich. 456 (50 N. W. 384); People v. Gotshall, 123 Mich. 474 (82 N. W. 274); People v. O’Hare, 124 Mich. 515 (83 N. W. 279). The first two cases cited are not in point. In People v. O’Hare the prosecuting attorney interrogated the witness with questions affecting her chastity, and upon their being answered in the negative he was then allowed to show affirmatively by other witnesses that her answers were untrue. This is not permissible, but it is permissible within the discretion of the court to discredit a witness upon cross-examination by showing a want of chastity. Some doubt was cast upon.this rule in People v. Mills, 94 Mich. 630 (54 N. W. 488), but the authorities there cited by Mr. Justice McGrath do not support that view. Mr. Justice Montgomery’s observations on this holding in Knickerbocker v. Worthing, 138 Mich. 224 (101 N. W. 540), are in accord with the general rule. The late case of Lunde v. Railway, 177 Mich. 374 (143 N. W. 45), very clearly points out the distinction. It was there said:

“There is a clear distinction between attempting to impeach a witness by showing a want of chastity and a cross-examination for that purpose.”

The general rule has been stated as follows:

“That on cross-examination a witness may, for the purpose of impeachment, be asked and compelled to answer as to particular traits of character, or as to particular facts, or whether he' has committed particular wrongful or immoral acts, subject always, of course, to his personal privilege and right to refuse to answer incriminating questions, even though such facts or acts may be irrelevant and collateral to the principal controversy or issues involved in the case. So he may be asked whether he has committed certain crimes, whether he ran a saloon without a license in violation of law, whether he has been criminally intimate with a certain person, or whether he swore falsely on a certain occasion, or interrogated as to his occupation or vocation, habits, or associates; and a female witness may be asked whether she is a prostitute, is living in adultery, or is or has been the kept mistress of a particular man, or has had illegitimate children, or has kept girls for the purpose of prostitution.” 40 Cyc. p. 2616, and cases.

While this rule is denied in some jurisdictions it appears to be the rule in this State subject always to the proper discretion of the trial judge. Wilbur v. Flood, 16 Mich. 40 (93 Am. Dec. 203); Threadgool v. Litogot, 22 Mich. 271; Beebe v. Knapp, 28 Mich. 53; Bissell v. Starr, 32 Mich. 297; People v. Whitson, 43 Mich. 419 (5 N. W. 454); Driscoll v. People, 47 Mich. 418 (11 N. W. 221); Leland v. Kauth, 47 Mich. 508 (11 N. W. 292); McBride v. Wallace, 62 Mich. 451 (29 N. W. 75); People v. Harrison, 93 Mich. 594 (53 N. W. 725); People v. Mulvaney, 171 Mich. 272 (137 N. W. 155); Totten v. Totten, 172 Mich. 565 (138 N. W. 257); Lunde v. Railway, 177 Mich. 374 (143 N. W. 45).

In several of the foregoing authorities the precise question was raised, namely, the competency of questions asked a female witness affecting her chastity, and such cross-examination was held proper, subject, however, to the discretion of the trial court. As the questions in the instant case appear to have been asked in good faith, we think the trial court did not abuse his discretion in allowing them to be answered.

The following request to charge was tendered:

“The defendant, under our statute, is allowed to testify under oath in her own behalf, and it is the duty of the jurors, where she has done so, to give her testimony such weight as in view of all the facts and circumstances as shown it shall appear to them entitled to. Her testimony is to be tested the same as that of any other witnesses. If rational, natural and consistent, it may outweigh the testimony of all other witnesses.”

This request was given, save that portion in italics. The general charge fairly covered the request, and fully protected respondent’s rights in that connection. This court has repeatedly held that the trial court is not bound to give a request in the precise language tendered. Miller v. Sharp, 65 Mich. 21 (31 N. W. 608); People v. Swartz, 118 Mich. 292 (76 N. W. 491); People v. Quimby, 134 Mich. 625 (96 N. W. 1061) ; People v. Hammond, 177 Mich. 416 (143 N. W. 244).

In the McArron Case cited (121 Mich. 1, 40 [79 N. W. 944]) a similar request vas made and refused by the court, and it was held error, but a reference to that case will disclose that the request was refused and not covered by the general charge.

Counsel has this to say about requests 22, 27, 28, and 30:

“It was unnecessary under the law for the respondent’s apprehended danger to be real or actual before resisting to protect herself from it. Each of these instructions requested the court to charge that if she, in good faith,- believed the threatened danger to her. life or limb to be real or actual, she was justified in resisting even to the taking of life to protect herself from it. * * * If she was assailed in the manner described by her, she had an absolute right to shoot deceased. The law does not require that she should ‘draw very fine distinctions concerning the extent of injury that an infuriated and reckless assailant may probably inflict.’ * * * We insist that the foregoing instructions should each have been granted, and it was reversible error to refuse them, especially when the court wholly ignored the subject in his voluntary charge to the jury.”

In covering these requests in his general charge the trial judge instructed the jury in part that:

_ “If, however, the person assailed honestly believes his or her life in danger or that he may suffer, or she may suffer, serious bodily harm, he has a right to resist, even to the taking the life of his assailant. The person assailed is to be judged by the circumstances and conditions as they honestly appear to her at the time.”

He further instructed them that:

“If you find from the evidence that the defendant had reasonable cause to believe that the deceased was about to strike her with a knife in the vestibule of the house, at the time and in the manner described by her, she was not bound to flee, but had a right to defend herself from such threatened attack.”

These portions of the charge fairly safeguarded the rights of the respondent upon that phase of the case. In view of these instructions, the charge which counsel makes in his brief that the subject-matter of the requests was entirely ignored by the trial court in his charge does not appear to be justified by the record.

The trial court said to the jury in the course of its charge that:

“On the other hand, the people insist that Mr. Cutler was not killed at the time, the place,''and under the circumstances stated by respondent herself, and offer the testimony of Miss Schaub, Mrs. Sonnenberg, the two girls or ladies, the two street car men, Osborn and Haney, and also the testimony of one Kingsland, which they insist, if you believe these witnesses, that the facts testified by them are inconsistent with any theory or facts of self-defense shown in this case.”

Counsel complains of these references to the people’s witnesses, and says that the trial court “singled out each of the witnesses by name and impressed their testimony upon the jury.” Reference to the language of the court will show that while he referred by name to some of the witnesses on behalf of the people, he made no comment upon their testimony any further than to indicate that they gave testimony on behalf of the people, a fact which the jury already knew. Immediately following the language complained of the court said:

“But, gentlemen, you are not to take the testimony as final as stated by either of the attorneys for the defense or for the people, or even from the court, but you will recollect the evidence for yourselves, and in arriving at a verdict you will take into consideration the testimony of all the witnesses, and every fact and circumstance shown by the evidence. But your verdict, gentlemen, should be based upon — entirely upon — the evidence in this case, and upon nothing else but just such evidence as has been actually produced before you and in your hearing.”

If the jury were unduly impressed by reason of the instruction, this admonition was sufficient to dispel it.

Complaint is made of the argument of the prosecuting attorney to the jury. In some instances objection was made, but no ruling was made nor requested. In other instances the court ruled with respondent’s counsel, and cautioned the jury against the effects of the objectionable remarks. In two instances objection and exception were taken to remarks made to opposing counsel, which probably had some significance with them, but whether they had any force with the jury we are unable to decide, as the record does not show what significance, if any, they had. Nothing appears upon their face to indicate that they were injurious to respondent. As is usual in such cases, there was much earnestness and zeal manifested by counsel, and many exchanges were made between them which were uncalled for, but we think there was nothing which injuriously affected respondent’s rights.

We have examined the other errors assigned, but find nothing in them which calls for a reversal of the case. The judgment of conviction is affirmed.

Kuhn, C. J., and Stone, Moore, Steere, and Brooke, JJ., concurred with Bird, J. Ostrander, J., concurred in the result. Person, J., did not sit.


text:
    COOK v. WAYNE CIRCUIT JUDGE.
    1. Judgment — Default—Court Rules — Setting Aside Default.
    Under Circuit Court Rule No. 32, subd. 4, providing that where proceedings are taken after default on strength thereof the default should not be set aside unless application is made within six months after such default is regularly filed, where proceedings were taken after default on the strength thereof, upon defendant’s default on personal service of a bill for want of answer, and a decree was thereafter entered, an order setting aside such default more that six months after its entry was void.
    2. Abatement — Death of Codefendant — Estates by Entireties —Default.
    It was unnecessary to suggest on the record the death of the decedent, and the decree was not void because of his death prior thereto, where a decree was rendered after the death of one of the defendants, whose interest in the premises, relating to which the suit was brought, was held by the entireties by such defendant and his wife, also a party to the suit, and the defendants were in default after personal ¡service.
    Mandamus by William Cook to compel Patrick J. M. Hally, circuit judge of Wayne county, to vacate an order setting aside a default.
    Submitted November 28, 1916.
    (Calendar No. 27,499.)
    Writ granted June 27, 1917.
    Rehearing denied December 28, 1917.

      Frederick Miller and /. W. Bennett, for plaintiff.

      William Look, for defendant.
   Bird, J.

The plaintiff filed his suit in equity to establish and have confirmed in him an easement in the premises of Katherine Dehnert, Emil Dehnert, and William Ortman. The bill was filed on August 13, 1914. The defendants were personally served, and on August 27th they entered their appearance by attorney, and on the same day were served with copies of the bill. The defendants were duly defaulted on December 1, 1914, for failure to respond to the bill, and a decree was filed therein on May 14, 1915. On Januuary 17, 1916, a motion was made to set aside the default. This motion was granted on March 31, 1916, over a year after the default had been entered. Plaintiff now asks this court for a writ of mandamus to compel the trial court to set aside this order, and in support thereof he calls attention to Circuit Court Rule No. 32, subd. 4. That párt of the rule which is material hereto provides that:

“In all cases where personal service shall have been made upon a defendant, and proceedings taken after default on the strength thereof, his default shall not be set aside unless the application shall be made within six months after such default is regularly filed.”

It is insisted by the relator that, inasmuch as more than six months had expired when the decree and default were set aside, the order is invalid. The default of the defendants appears to have been duly and regularly entered. This was followed by a decree. It is obvious, therefore, that, “Proceedings were taken after default on the strength thereof.” The object of this rule was to fix the time within which a default might be set aside, and it has been repeatedly held that an order setting aside a default after the expiration of six months from its entry was void, and mandamus has issued to compel the vacation of such orders. Petley v. Wayne Circuit Judge, 124 Mich. 14 (82 N. W. 666); Carpenter v. Judge of Superior Court, 126 Mich. 8 (85 N. W. 265); Biensteadt v. Clinton Circuit Judge, 142 Mich. 633 (105 N. W. 875); St. Louis Hoop & Stave Co. v. Wayne Circuit Judge, 155 Mich. 311 (118 N. W. 989).

But it is argued that the decree was void. This is based upon the fact that Mr. Dehnert was dead when the decree was granted, and no suggestion of the fact had been made upon the record. In view of the fact that his. default had been entered during his lifetime and the further fact that the interest in the premises, out of which the contention grew, was held by himself and his wife by the entireties, we think there is no force to this point. Upon his death his interest became vested in the survivor, and she was a party. Under such circumstances it would be unnecessary to suggest the death of defendant Dehnert upon the record.

The writ must issue, with costs to the relator.

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


author: Ostrander, J.

text:
    WILCOX v. HUBBELL.
    1. Trusts — Undue Influence — Evidence—Sufficiency.
    On a bill by tbe beneficiaries of a trust agreement against tbe administrator óf tbe intestate’s estate and tbe trustee under tbe agreement, evidence held, insufficient to show undue influence upon decedent at tbe time of execution of sucb agreement.
    2. Same — Witnesses—Competency—Statutes.
    On a bill by tbe beneficiaries under a certain trust agreement executed by a decedent against tbe administrator of tbe decedent’s estate and tbe trustee to enforce tbe agreement, evidence held, sufficient to show that plaintiffs’ mother was not an agent for either the decedent or tbe beneficiaries as to tbe agreement, and that tbe attorney was not an agent for any of them, so as to render both competent to testify on behalf of plaintiffs as to tbe agreement, under 3 Comp. Laws, § 10212, as amended by Act No. 230, Pub. Acts 1901 (3 Comp. Laws 1915, § 12553), relating to transactions with deceased persons.
    3. Same — Mental Competency — Evidence.
    On a bill by the beneficiaries of a trust agreement against the administrator of the estate of the decedent and the trustee, evidence helé, sufiicient to show that decedent was mentally competent to execute the agreement at the time of the execution thereof.
    4. Same — Intention of Parties — Carrying into Effect.
    The intention of a testator in relation to a trust agreement should be carried into effect if it can be done without doing violence to established rules.
    5. Same — Trust Deeds — Wills—Revocation of 'Instrument— Effect as Will.
    Where a decedent by a trust deed assigned certain of his property to the designated trustee in trust to invest same and pay the income therefrom to decedent for life and at his death the income on hand to his heirs, or as his will might direct, and the principal estate to designated beneficiaries, and the agreement provided that such disposition of the principal estate at the death of the decedent might be changed by mutual instrument .by the decedent and the trustee within two ySars after the execution of said trust agreement, the rights of the beneficiaries accrued at the time of the execution and delivery of the trust agreement, except as it contained a limited right of revocation, and consequently the deed of trust was not testamentary, Since a power of revocation in a deed of trust does not render it testamentary.
    Appeal from Kent; Perkins, J.
    Submitted January 3, 1917.
    (Docket No. 12.)
    Decided June 27, 1917.
    Bill by Raymond H. Wilcox and others against George Hubbell, administrator of the estate of William Wilcox, deceased, and the Michigan Trust Company to enforce the performance of a trust agreement and for an accounting. From a decree for plaintiffs, defendant Hubbell appeals.
    Affirmed.

      Wilson ■& Johnson and Butterfield & Keeney, for plaintiffs.

      Jewell & Smith (Wwren, Shuster & Case, of counsel), for appellant.
   Ostrander, J.

William Wilcox, 83 years of age, and a bachelor, of Honeoye Falls, Monroe county, N. Y., a small village about 16 miles from Rochester, died December 22, 1912, at Honeoye Falls, intestate. His sister, Lorinda Kendall, George Hubbell, son of a deceased gister, Susan Riehards, a daughter of another deceased sister, Raymond H., Sanford P., Louise M., Robert C., and Marion Wilcox, of Grand Rapids, Mich., children of Frederick P. Wilcox, a nephew of the deceased, survived him. Robert C. and Marion Wilcox are infants, represented by their mother as next friend. On the 30th day of October, 1912, William Wilcox, by an instrument executed in the county of Monroe, in the State of New York, duly acknowledged on the same day before a notary public for that county, sold and assigned, transferred and set over to the Michigan Trust Company, of Grand Rapids, 86 mortgages, described in said instrument, together with the notes, bonds, or other obligations to which the mortgages were collateral. On the same date he executed another instrument, to which he and the Michigan Trust Company, of Grand Rapids, are' parties, which excepting the acknowledgments thereto, is here set out:

“This agreement made this 30th day of October, 1912, in duplicate, by and between William Wilcox, of Honeoye Falls, Monroe County, N. Y., and the Michigan Trust Company of Grand Rapids, Mich., hereinafter called the trustee, witnesseth:
“(1) Said Wilcox has a number of notes secured by mortgages on real estate in Kent county, Mich., and he desires to be relieved of the same. He has this day assigned all of said notes and mortgages to said trustee, and he may from time to time place in the hands of said trustee moneys and other property, all of said notes, mortgages, moneys, and other property to be held by the said trustee in accordance with the terms of this instrument.
“(2) Said trustee shall manage and control all of the property turned over to it under this agreement in such manner as it shall deem best. It shall have the right to invest and reinvest the principal of all moneys coming into its hands under this agreement in interest-bearing or income-producing notes, mortgages, bonds, or other securities. It shall have the right to sell and assign all or any part of the properties now or hereafter embraced in this trust, at such times and at such prices and upon such terms as said trustee may deem to be for the best interest of the trust. It shall have the right to take all legal steps and institute and conduct all suits or legal proceedings, either in its own name or in the name of said Wilcox, which may be necessary or proper for the purpose of realizing on or collecting any sums which may be due on any of the securities embraced in this agreement. It shall have the right to pay all taxes and assessments which may be levied upon any property embraced in this agreement, as well as all taxes, assessments, and insurance premiums upon properties covered by real estate mortgages and which the trustee may deem it necessary or proper to pay in order to protect the interests of the trust. Said trustee shall have the right to make such other and further disbursements as in the judgment of said trustee may be necessary or suitable for the proper care and management of the property embraced in this trust. The trustee is authorized to make such disbursements out of the funds belonging to this trust or to advance moneys therefor if it deem it best so to do, such advances to be refunded to said trustee out of said trust property.
“(3) Said trustee shall be held to no obligation under this agreement, save the exercise of good faith and ordinary diligence in the discharge of those duties which by the terms of this agreement it has undertaken.
“ (4) The trustee shall keep a true account of all the affairs of the trust and shall on the 1st days of January and July in each year, or as soon thereafter as is reasonably practical, render to said Wilcox a statement of its receipts and disbursements as such trustee during the six months preceding, keeping separate the principal of the trust fund from the income therefrom, and shall also render to the said. Wilcox such a statement at any time whenever requested so to do.
“(5) The trustee shall receive for its services under this agreement one-half of 1 per cent, per annum of the principal of said trust fund, to be paid semi-annually from the income from said trust fund. If the principal of the trust fund is increased by additions thereto made by said Wilcox, or in any other manner, the trustee’s fees shall be increased proportionately. The trustee shall also deduct from said income all reasonable expenses or charges of whatsoever kind or nature, including attorney and counsel fees, tó which said trustee shall be put in the performance of the trust or obligations created by this agreement, or by reason of its connection with the properties embraced in this agreement, or the management or discharge thereof.
“(6) The net income from the trust fund in the hands of said trustee under this agreement, after payment of its fees and expenses, shall be paid to the said Wilcox from time to time in such amounts as he may request. Should the said Wilcox not use all the said income, he may from time to time direct the said trustee to transfer any part of such accumulated income to the principal of the trust created by said instrument, and the same shall thereupon and thereafter be in all respects a part of the principal of the trust fund and be subject to all the provisions of this instrument governing such principal.
“(7) The trust created by this instrument shall terminate upon the death of the said Wilcox. All moneys then in the hands of said trustee from the income of the trust created by this instrument shall, after the payment of the trustee’s fees and expenses as hereinbefore provided, be paid by the said trustee as the said Wilcox may by his will direct, or in default of such will to his heirs at law. The principal of said trust fund, including all properties and rights of every name and nature, shall, upon the death of the said Wilcox be transferred and delivered by the said trustee as follows, viz.: To the children of his late nephew, Frederick P. Wilcox, Louise M. Wilcox, Eaymond H. Wilcox, Sanford P. Wilcox, Robert C. Wilcox, and Marion Wilcox, in equal shares, share and share alike.
“It is agreed that said William Wilcox and said trustee may at any time within two years from date, by mutual instrument, executed with the same formalities and in the same manner as this instrument is executed, provide for a different disposition at the termination of said trust of the property constituting the principal of the trust fund hereby created.
(Copy) (M. T. Co.) (Seal)
In witness whereof, the said William Wilcox has hereunto set his hand and seal and the said trustee has caused these presents to be executed by its proper officers and its corporate seal to be hereto affixed the day and year first above written.
William Wilcox. (Seal.)
The Michigan Trust Company,
By Lewis H. Withey,
President.
and George Hefferan,
Secretary.
Signed, sealed and delivered in presence of Horace J. Tuttle, as to William Wilcox.
■ Henry W. Hall, as to William Wilcox.
John H. Schouten,
Elsie E. Wurzburg, as to M. T. Co.”

Mr. Hubbell, having been appointed administrator of the estate of William Wilcox, gave notice to the Michigan Trust Company that he claimed that the assignment of mortgages and the trust agreement were invalid and directing the Michigan Trust Company not to carry out or not to further carry out the said trust agreement.

Plaintiffs, who are the beneficiaries under the said trust agreement, thereupon filed the bill of complaint in this cause, attaching, a copy of the trust agreement and of the assignment of mortgages, setting up substantially the. facts herein already stated, claiming that upon the death of the said William Wilcox they became immediately entitled to the principal of the trust fund and had requested the Michigan Trust Company to transfer and deliver the fund accordingly, and that the request had been declined on account of the notice given by the said George Hubbell, administrator of the estate of William Wilcox. Plaintiffs pray that they be decreed to be the owners of the trust fund in the hands of the Michigan Trust Company by virtue of the said trust agreement, and may have an accounting and a delivery over to them of the fund. George Hubbell, administrator, etc., and the Michigan Trust Company are made parties defendant.

The trust company filed a formal answer, submitting itself to the direction of thé court. The administrator alleges that the assignment of the .securities was procured by undue influence, fraud, and deceit practiced upon William Wilcox by the mother of plaintiffs and by other persons unknown to defendant, that the deceased, Wilcox, was at the time of the alleged execution of the assignment mentally incompetent to execute it, and he denies that said Wilcox knowingly entered into an agreement in writing with the Michigan Trust Company with reference to the notes and bonds and mortgages, and alleges upon information and belief that, if the said trust agreement was signed by him, his signature was obtained by undue influence, fraud, and deceit practiced by Caroline B. Wilcox and by other persons, and that he was mentally incompetent to execute that agreement.

The legal effect of the instrument claimed by the plaintiffs is denied by the answer, and the defendant therein asks for affirmative relief and for a decree that the alleged assignment and trust agreement are null and void, that the defendant as administrator be adjudged to be entitled to all moneys and properties in the hands and possession of the Michigan Trust Company as an alleged trustee, to whom an accounting must be made by the said Michigan Trust Company, and that, if the court find the said assignment and trust agreement to have been in fact executed by said William Wilcox while of sound mind and memory and under no restraint or undue influence, it be decreed that the trust created was immediately terminated by the death of the said William Wilcox, and thereafter no duty remained for the said Michigan Trust Company to perform except to make accounting to the legal representative of the deceased.

The court below took up the hearing of this cause December 1, 1914. The proofs were closed January 80, 1915, and on the 8th day of October, 1915, the cause having been in the meantime argued by counsel and considered by the court, a decree was entered agreeably with the prayer of the plaintiffs’ bill.

It is contended by the defendant administrator, appellant, that:

(1) Construed in the light of the facts, even though it was competently and freely made, the agreement presented as a trust agreement is invalid as a trust agreement because it was executed “without the intention necessary to a valid trust agreement.”
(2) Considered as a legal instrument, without regard to the facts, the trust agreement is invalid as a matter of law.
(3) As a matter of both fact and law William Wilcox was not mentally competent to execute the agreement, and it was not made with freedom from undue influence.
(4) Mrs. Wilcox, mother of plaintiffs, and Mr. Tuttle, a lawyer, a witness to the instruments, were not competent witnesses to the making of the trust agreement.

It will be noted that the third contention stated is double, in that it asserts lack of mental competency and undue influence. Undoubtedly a person mentally incompetent may be subject to influences which would not affect, could not affect, a person mentally competent. It would depend somewhat upon the nature of the incompetence and somewhat upon the influence exerted. But it is true, in a general way, that influence which no one would suppose could influence a person of strong mentality may affect improperly weak minds. In this case, however, the charge made in the argument that Mrs. Caroline Wilcox, the mother of the plaintiffs, and Horace J. Tuttle, the attorney at Rochester, were guilty of procuring the execution of these two instruments under circumstances which amounted to the practice of deceit, may be disposed of now without setting out here the testimony relied upon to prove fraud and deceit (and it must have been practiced by the two persons named, if by any one). It is sufficient to say, I think, that after a careful reading of the testimony I am unable to find any which tends to prove either Mrs. Wilcox or Mr. Tuttle intended at any time or for any purpose to impose upon or deceive William Wilcox, or improperly to influence him to execute either of the instruments which he did execute and which are in question here. A question wholly independent from this is the one whether William Wilcox intelligently executed the assignment and the trust agreement. But I find nothing which tends to prove that in his conduct or his apparent intelligence Mr. William Wilcox gave notice or intimation to either Mrs. Wilcox or to Mr. Tuttle that he did not appreciate the terms and conditions of the instruments which he executed, as well as their legal effect.

The fourth contention of appellant must be overruled. Mrs. Wilcox was a witness for the plaintiffs and after her examination had proceeded for a time objection was made that she was testifying to matters which were equally within the knowledge of William Wilcox. It is claimed that in what she did with reference to the trust agreement she was acting as agent for her children, for which reason her testimony was barred by the provisions of section 10212, 3 Comp. Laws, as amended by Act No. 239, Pub. Acts 1901 (5 How. Stat. [2d Ed.] § 12856, 3 Comp. Laws 1915, § 12553). A similar objection was made to a part of Mr. Tuttle’s testimony upon the ground that he was either acting as agent for the plaintiffs or acting on behalf of Mrs. Wilcox, who was their agent. In essence, this contention rests upon the truth or falsity of the charge that Mrs. Wilcox was seeking an advantage for her children and active in procuring such an advantage in whatever she said to William Wilcox before the instruments in question were executed. If, as I am satisfied is true, she had no intention or purpose of seeking from William Wilcox any advantage for her children, there is nothing to support the proposition that she was agent for her children. If she was not an agent for her children within the meaning of the statute, then the objection to the testimony of Mr. Tuttle is without any force.

It is well to have the facts in mind. By one of the instruments in question William Wilcox assigned certain notes and mortgages to the Michigan Trust Company; by the other he created a trust, of which the Michigan Trust Company was trustee, and of which he and the children of Mrs. Wilcox were beneficiaries. It appears that Frederick P. Wilcox, husband of Caroline Wilcox, died July 15, 1912. He for a long time had done business for William Wilcox in Michigan, apparently to his satisfaction and profit. On July 22, 1912, Mrs. Wilcox wrote William Wilcox, telling him of her husband’s death, and advising him that he must get some one to look after his business. By her husband’s will the Michigan Trust Company had been appointed guardian for her two minor children. She herself lived in Grand Rapids, and she suggested to William that he employ either the Michigan Trust Company or Mr. Tuttle, of Rochester, to look after his affairs. To this letter she had no reply, and in August, at her request, Mr. Tuttle saw William and told him that Mrs. Wilcox must be relieved and that he must select some one to look after his Michigan business. He decided to have the Michigan Trust Company do it, which decision Tuttle reported to Mrs. Wilcox. The Michigan Trust Company was advised and the trust agreement was prepared under its direction. There was no reference in this agreement as prepared to the plaintiffs, but there was a blank place for the insertion of names of beneficiaries. There is no testimony tending to prove that any of the plaintiffs knew anything about the preparation of the trust agreement. Mrs. Wilcox took it with her when she went to Rochester on business of her own and went to Honeoye Falls to see William. Instead of asking him to make her or her children beneficiaries, as he suggested he would like to do, she urged that he select others. She suggested that he give it to the hospitals of Rochester, or to some other charitable institution, and she left him without knowing what he was going to do, and did not know until she was told Tater by Mr. Tuttle that he had left his property to her children. There is no testimony in the record to dispute this. Mr. Tuttle had nothing to do with the preparation of the trust agreement, and did not know its terms until he went with Mrs. Wilcox to Honeoye Falls to see William Wilcox. As for his advice, Mr. Tuttle declined to advise him further than to let his property go to his,heirs according to the laws of the State of New York, a suggestion which Mr. Wilcox flatly refused, and then Mr. Tuttle told him, “It is for you to figure out,” and it was after that that Tuttle was advised by William Wilcox to write into the trust agreement the names of the children of his deceased nephew, Frederick P. Wilcox.

I find in the circumstances and in the testimony on this subject nothing to support the conclusion that Mrs. Wilcox or Mr. Tuttle were agents for William Wilcox; that either was “a person who* acted as an agent in the making or continuing of a contract with any person who may have died.”

What is left of the third contention of the appellant is that William Wilcox was mentally incompetent to do what he did, namely, intelligently execute the assignment of the mortgages and the trust agreement. William Wilcox was a singular character. Witnesses were produced on the part of the plaintiffs and on the part of the defendant for the purpose of making for the court a representation or picture of the man William Wilcox, his associates, his habits, his apparent capabilities, and, as is usual, much of the testimony is negative, little or none of it that of persons who had actually made any real and continued observation of the man- for the purpose of forming an opinion of his mental strength or weakness. Certain habits and peculiar things about him were known to a great many people. There is- no real history of his early years. Apparently he had, in his later years at least, followed no occupation, engaged in no business. He did not acquire his fortune. He had at various times received money from certain estates, and this, or some of it, had been turned over and for about forty years cared for by his brother, Otis N. Wilcox, and after his death by Frederick P. Wilcox, a son of Otis, all without any charge to William. William had never drawn much of the money, and it had accumulated until there was some $70,000 invested in real estate mortgages in and around Grand Rapids. When. Frederick P. died, then, as has been stated, his wife declined to care for William’s property. For a period of twenty years William Wilcox had resided with the Hubbell family in New York, and during that time he had never paid them anything for board. When Anna Hubbell, his sister, died, he went to live with his sister Mary Rich, and lived with her about five years, when she died. From time to time he stayed with the defendant George Hubbell, at his residence in Honeoye Falls, and was often there on holidays. In the spring of 1911 he was with Mr. Hubbell three or four weeks, then he went to Grand Rapids to the home of Frederick P. Wilcox and stayed there four or five weeks, when he returned to Mr. Hubbell’s house and stayed there for three or four weeks. He was penurious, and witnesses testified that during the last two or three years of his life a change in his general appearance, demeanor, and intellectual strength was obsérved.

There is testimony that he had during the last year and a half of his life several “fainting spells.” In one of them, about six months before he died, he was carried unconscious to his room. Lapses of memory were noticed by persons who knew him, and a recurrence by him in questions he asked to matters he had been informed about. He lived poorly, dressed poorly, spent no money. For twenty-five years he had dyed his hair and whiskers, and this he ceased to do. He pilfered small articles from the stores in the village where he lived, and picked up and saved or used articles of no value. He was found dead in his room in a hotel building in which business had ceased, which he had occupied for a considerable time, sitting in a chair, partly dressed. There was no fire in the room. He had on his person six purses, containing some $500 in paper money and $16 in silver money. In a valise, a “telescope,” in his room, was a money belt containing about $1,500 in paper money, which appeared to have been placed therein many years before. There was found also in various receptacles partly’used pieces of soap, tobacco, cigars, neckties, candy, and a variety of useless, invaluable odds and ends. In the accumulation of this trash, in his dress, in his manner and habits of living, he was miserly. There is evidence of physical and mental decay, of exhibitions of childish weakness, and there are few men who pass the age of eighty years of whom such evidence cannot be given. But one need not be vigorous in body or in mind to handle and dispose of property. There is testimony which, if believed, leaves no doubt that this man had sufficient mental integrity to do understandingly what he did do. There is testimony, credible in itself, and in its source, sustaining the proposition that Wilcox did not mean to bestow his property otherwise than as he did. The. testimony relating to the conduct of deceased in executing the instruments in question is convincing that he possessed the necessary intelligence. He knew that his nephew had cared for his fortune in Michigan; that he was dead; that his widow, although he greatly desired her to do so, refused to attempt the care of it. He had given the matter little attention, but was confronted with the necessity of choosing an agent. The attorney for the Michigan Trust Company prepared the instruments, leaving the trust agreement in such form that the names of the ultimate beneficiaries could be inserted. The form and terms of the trust agreement are those which the trust company suggested, and not terms suggested by any of the parties hereto or their agents or representatives. The trust company, if it did not insist upon, preferred the agreement which was prepared and executed.

Without attempting here to analyze the testimony, and limiting myself to a statement of conclusions, I find that William Wilcox was competent to make, and that he intelligently did make, the instruments in question. This finding embraces the conclusion that they were executed with the intention imported by the terms of the instruments.

There is to be considered the second contention of the appellant, namely, that the trust agreement is in law invalid. It-is said that, assuming that upon the face of the instrument it created a valid trust to receive and pay over to the settlor for his life the income of the mortgages, the purpose of the instrument is permitted by the law of New York; but, it is. said, by the express terms of the instrument the trust was to terminate from the death of William Wilcox, and the disposition of the estate provided for in the seventh clause of the agreement cannot be sustained as made pursuant to a second trust, or a power in trust, or as a gift inter vivos or causa mortis, or a testamentary disposition of property.

Whether the trust agreement created a mere agency for the personal benefit and convenience of William Wilcox was a testamentary disposition of property, to take effect only after his death, and was therefore revocable at his pleasure, or whether, with the assignment and delivery of the fund, it created an executed express trust, or trusts, disposing irrevocably, except according to the condition of the principal of his estate to persons, who at once acquired a vested interest therein, is the serious question which is presented.

I have said that the instrument was executed with the intention imported by its terms, meaning that it was the purpose of William Wilcox to provide for doing just what has been done and what will be done if the principal of the estate is paid to the designated beneficiaries. This intention the courts should carry into effect if it can be done without doing violence to established rules. In Frederick’s Appeal, 52 Pa. 338 (91 Am. Dec. 159), a somewhat similar and in some respects dissimilar instrument was considered, with the conclusion that it was revocable in so far as before revocation it had not been carried into effect by the execution of the powers therein given to the so-called trustee. There are other similar cases. In Wilson v. Anderson, 186 Pa. 531 (40 Atl. 1096, 44 L. R. A. 542), the headnote. of the reporter, fairly stating the conclusion of the court, reads as follows:

“If the intention of the grantor at the time he delivers a voluntary deed of trust is to part with the legal title, the trust will be enforced in favor of the beneficiaries, even though their enjoyment of the estate is postponed until the death of their benefactor. Equity, because of exceptional facts in rare cases, has revoked the trust or held' it revocable by the grantor, because plainly a testamentary instrument; but the general rule has remained without change.”

In the note “a,” 1 Perry on Trusts (6th Ed.), p. 115, the author has collected and to some extent analyzed a considerable number of decisions, saying;

“There have been many cases of valid trusts which in practical effect were intended to be hardly more than dispositions of the property after the settlor’s death. Thus cases are frequent where the owner of property has, without consideration, conveyed it to another to hold as trustee for the benefit and enjoyment of the settlor during his life, and on his death upon further trust for other beneficiaries or to pay over to designated persons. Nichols v. Emery, 109 Cal. 323 [41 Pac. 1089, 50 Am. St. Rep. 43]; Lewis v. Curnutt, 130 Iowa, 423 [106 N. W. 914]; Brown v. Mercantile Trust Co., 87 Md. 377 [40 Atl. 256]; Bromley v. Mitchell, 155 Mass. 509 [30 N. E. 83]; Kelley v. Snow, 185 Mass. 288 [70 N. E. 89]; New York Life Ins. & Trust Co. v. Livingston, 133 N. Y. 125 [30 N. E. 724]; Rynd v. Baker, 193 Pa. 486 [44 Atl. 551]; Wilson v. Anderson, 186 Pa. 531 [40 Atl. 1096, 44 L. R. A. 542]; Kraft v. Neuffer, 202 Pa. 558 [52 Atl. 100]; Fry v. Mercantile Trust Co., 207 Pa. 640 [57 Atl. 43]; Brace v. Van Eps, 12 S. D. 191 [80 N. W. 197], 13 S. D. 452 [83 N. W. 572]. See, also, Durand v. Higgins, 67 Kan. 110 [72 Pac. 567].
“The essential difference between such a trust instrument and a will is that the former acts at once to vest the interests of the beneficiaries, although their enjoyment is postponed until after the death of the settlor, but a will does not take effect until the death of the testator, and until that, time vests no interests in the beneficiaries.”

In Nichols v. Emery, 109 Cal. 323, 329 et seq. (41 Pac. 1089, 1091, 50 Am. St. Rep. 43), is to be found the following statement of the controlling rules:

“It is undoubtedly the general rule enunciated by the leading case of Habergham v. Vincent, 2 Ves. Jr. 231, and oft repeated, that the true test of the character of an instrument is not the testator’s realization that it is a will, but his intention to create a revocable disposition of his property to accrue and take effect only upon his death and passing no present interest.
“The essential characteristic of an instrument testamentary in its nature is that it operates only upon and by reason of the death of the maker. Up to that time it is ambulatory. By its execution the maker has parted with no rights and divested himself of no modicum of his estate, and per contra no rights have accrued to and no estate has vested in any other person. The death of the maker establishes for the first time the character of the instrument. It at once ceases to be ambulatory; it acquires a fixed status and operates as a conveyance of title. Its admission to probate is merely a judicial declaration of that status.
“Upon the other hand, to the creation of a valid express trust it is essential that some estate or interest should be conveyed to the trustee, and when the instrument creating the trust is other than a will, that estate or interest must pass immediately. 1 Perry on Trusts (6th Ed.), § 92. By such a trust, therefore, something of the settlor’s estate, has passed from him and into the trustee for the benefit of the cestui, and this transfer of interest is a present one, and in no wise dependent upon the settlor’s death. But it is important to note the distinction between the interest transferred and the enjoyment of that interest. The enjoyment of the cestui may be made to commence in the future and to depend for its commencement upon the termination of an existing life or lives or of an intermediate estate. Civ. Code, § 707.
“Did the grantor in the present case divest himself by the instrument of any part of the estate in the land which he had formerly owned and enjoyed? By the terms of the instrument an estate was assuredly conveyed to the trustee. The language is appropriate to a conveyance, and the grantor’s execution and delivery of the deed (both found), he being under no disability, and impelled by no fraud, operated to vest so much of his estate in the trustee as was necessary to carry out the purpose of the trust. The especial purpose was to sell and distribute the proceeds upon his death — a legal purpose authorized by section 857 of the Civil Code. The term of the- duration of the trust, the life of the settlor, did not violate the provisions of section 715 of the same Code. We havé therefore an estate conveyed to a named trustee for named beneficiaries, for a legal purpose and a legal term, such a trust as conforms in all its essentials to the statutory requirements. That no disposition is made by the trust of the interest and estate intervening in time and enjoyment between the dates of the deed and the death of the settlor cannot affect the trust. The trustee takes the whole estate necessary for the purposes of the trust. All else remains in the grantor. Civ. Code, § 866. In this case there remained in the grantor the equivalent of a life estate during his own life, and he was thus entitled to remain in possession of the land, or lease it and retain the profits.
“Nor did the fact that the settlor reserved the power to revoke the trust operate to destroy it or change its character. He had the right to make the reservation (Civ. Code, § 2280), but the trust remained operative and absolute until the right was exerciséd in proper mode. Stone v. Hackett, 12 Gray (Mass.), 232; Van Cott v. Prentice, 104 N. Y. 45 [10 N. E. 257]. Indeed, this' power of revocation was strongly favored in the case of voluntary settlements at common law, and such a trust without such a reservation was open to suspicion of undue advantage taken of the settlor. Lewin on Trusts, pp 75, 76; Perry on Trusts (6th Ed.), § 104.”

See, also, Seaman v. Harmon, 192 Mass. 5 (78 N. E. 301); Kelley v. Snow, 185 Mass. 288 (70 N. E. 89); Kelly v. Parker, 181 Ill. 49 (54 N. E. 615); Brown v. Spohr, 87 App. Div. 522 (84 N. Y. Supp. 995); Rynd v. Baker, 193 Pa. 486 (44 Atl. 551).

In the instrument before us there is an estate designated, a trustee named, a trust expressed, an owner of the estate, who is settlor of the trust, designated beneficiaries. The instrument recites the transfer of title to the property by the settlor to the trustee. There are persons who have an immediate right to the possession of the property upon the ceasing of the precedent estate — upon the death of the settlor. The power to make a different designation of beneficiaries is reserved, to be exercised with the consent of the trustee, by a mutual instrument. It may be said that two trusts are declared; the second not to take effect in possession and enjoyment until the death of the settlor. This is not because the instrument is testamentary in character, but because the instrument in terms so declares. The rights of the beneficiaries accrued at the time of the execution and delivery of the instrument and the property, except as the instrument contained a limited right of revocation. A power of revocation in a deed of trust does not render the instrument testamentary. Van Cott v. Prentice, 104 N. Y. 45 (10 N. E. 257); Robb v. Washington and Jefferson College, 185 N. Y. 485, 493 (78 N. E. 359).

It is said that by the terms, of the instrument the trust ended with the death of the settlor. This argument is based upon the language of paragraph 7. But the trustee is to hold the property “in accordance with the terms of this instrument,” paragraph 1. The trust declared in the paragraphs preceding 7 relates to the acquiring, holding, investing of the fund, and paying the income thereof. No other trust is declared. As I interpret the instrument, the intention is plain to declare a second trust, and it is declared in paragraph 7. The trust declared in that part of the instrument which precedes paragraph 7 does end, terminate, with the death of William Wilcox, leaving the trustee in possession of the fund, and it is declared that then the trustee shall dispose of the fund. It would be insensible, I think, to find in the language an intention to declare a trust terminating with the death of Mr. Wilcox.

In the instruments which were executed a valid trust was created, the testimony does not impeach the capacity of the settlor, or the honesty of those charged as influencing him improperly, and the decree below, which is in accordance with these views, must be affirmed, with costs, to appellees.

Kühn, C. J., and Stone, Bird, Moore, Steere, Brooke, and Fellows, JJ., concurred.


author: MOORE, J.

text:
    MacGILLIS v. ALCONA COUNTY.
    1. Prosecuting Attorneys — Assistance — Statutes — Services Performed.
    Under 1 Comp. Laws 1915, § 2418, authorizing the prosecuting attorney of a county, under the direction of the court, to procure such assistance in the trial of any person charged with the crime of felony as he may deem, necessary for the trial thereof, payment should be made for services performed in good faith in the preparation for, as well as the trial of, a case after the order making the appointment is made.
    2. Same — Counties—Liability for Services. '
    A county is not liable for services performed before the appointment of an assistant prosecuting attorney, regardless of the nature of the services.

      3. Appeal and Ebrob — Costs—Reduction op Judgment.
    An appellant in an action at law, who has reduced the judgment substantially, should have costs.
    Error to Alpena; Mayne, J., presiding.
    Submitted January 19, 1917.
    (Docket No. 86.)
    Decided June 27, 1917.
    Rehearing denied December 28, 1917.
    Henry R. MacGillis presented a claim against the county of Alcona for services rendered. The claim was disallowed in part, and claimant appealed to the circuit court. Judgment for claimant. Defendant brings error.
    Affirmed, conditionally.

      Herman Dehnke, for appellant.

      Henry R. MacGillis, in pro. per.

   MOORE, J.

Counsel for appellant comes into this court with 77 assignments of error which, are discussed in a brief of 143 printed pages. Every important question in the case could have been presented in five or six assignments of error and could have been intelligently and exhaustively discussed in a brief of 15 or 20 pages. The course pursued makes a great deal of unnecessary work for this court, and is not to be commended.

The plaintiff is an attorney. It is his claim that the prosecuting attorney was ill and requested' plaintiff to do some work for the people in a very important case, which work was in the nature of preparing the case for trial, and needed to be done, and that the prosecuting attorney would have the circuit judge appoint the plaintiff assistant prosecuting attorney, and that this was done, and that plaintiff did a large amount of work both in and out of court in preparing the case for trial and in trying the case. During some of the litigation there was a change of venue to Iosco county. During the litigation the board of supervisors advanced a sum of money to apply on his expenses and for services.

Later plaintiff presented an itemized bill for his services and expenses, amounting, after crediting what had been paid, to $1,291.03. The board of supervisors allowed him a balance due of $448. From this allowance he appealed to the circuit court. There was a change of venue to Alpena county, where the case was tried by a jury, and a verdict rendered in favor of the plaintiff for $1,310.44. The case is brought here by writ of error.

We quote from the brief of counsel for appellant:

“The main contention in the case arises out of the construction of the statute under which plaintiff was appointed assistant prosecuting attorney in the Barber cases, in respect to the power said statute gives the prosecuting attorney and circuit judge to hire or appoint assistants at the expense of the county, and for what services of the assistant the county is liable.”

This general statement really covers the questions involved. The pertinent provisions of the statute are as follows:

Section 2405, 1 Comp. Laws 1915, reads:

“The prosecuting attorneys shall, in their respective counties, appear for the State or county, and prosecute or defend in all the courts of the county, all prosecutions, suits, applications and motions, whether civil or criminal, in which the State or county may be a party, or interested.”

The provisions of section 2418, 1 Comp. Laws 1915, germane to this discussion, reads:

“SECTION 1. That the prosecuting attorney may, under the direction of the court, procure Such assistance in the trial of any person charged with the crime of felony as he may deem necessary for the trial thereof, and the prosecuting attorney may, under the direction of the court, in case of disability of the prosecuting attorney, appoint an assistant to perform his duties during the disability of the prosecuting attorney, and such assistant shall be allowed such rea-, sonable compensation as the board of supervisors or the board of county auditors in counties having county auditors shall determine, for his services.”

It is the contention of appellant that plaintiff could recover only for work done in court during the actual trials of the case. It is also claimed that, even though plaintiff might recover for work done in the preparation of the case, his bill contains charges for much work that was entirely unnecessary in the preparation of the case and charges for expenses that were improper.

Much stress is laid by counsel upon the opinion in Green Lake County v. Waupaca County, 113 Wis. 425 (89 N. W. 549). The question presented there was the amount of compensation that might be recovered by an attorney appointed to defend an indigent respondent, and it was held that under the terms of the Wisconsin statute the compensation in that class of cases must be limited to the time spent in court.

In the instant case the trial judge instructed the jury:

“For the time that the plaintiff actually and necessarily expended in the preparation for the trial of this cause he is entitled to recover a sum not less than $10 nor more than $15 per day under the testimony. The minimum price testified to is $10, the maximum $15. Between these two limits you must find. You can find $10, or $15, or any sum between those two.”

The case was much simplified by the consent of the parties in open court that for the time actually spent in court plaintiff might recover $25 a day. The testimony on the part of the defendant was that such services as were rendered out of court should be limited to $10 a day, while on the part of the plaintiff it was to the effect that they would be worth $15 a day.

Our statute has been construed. In Sneed v. People, 38 Mich. at page 251, it is said:

“That the prosecuting attorney has a right to employ counsel with, the leave of the court to assist in the prosecution of a cause, and that the services so rendered would constitute a proper charge against the county, we have no doubt. Counsel so employed are acting for and on behalf of the public, as much so and with as much impartiality as the prosecuting attorney, and many cases may arise where it is highly proper that counsel should be so employed in the interests of justice. It is quite different, however, where such counsel are employed by the. complaining witness or the party injured or by private individuals.”

See People v. O’Neill, 107 Mich. at page 559 (65 N. W. 540).

In People v. Thacker, 108 Mich. at page 658 (66 N. W. at page 564), it is said:

“Mr. Pratt, who assisted the prosecuting attorney, was not a resident of Benzie county. It is claimed that he was disqualified from acting in the capacity of prosecuting officer by reason of his nonresidence. So far as we can find, the question is a new one in this State. 1 How. Stat. § 560, provides that the prosecuting attorney may, under the direction of the court, procure assistance in the trial of felonies. It has been repeatedly held that this may be done. Meister v. People, 31 Mich. 99; Sneed v. People, 38 Mich. 251; Ulrich v. People, 39 Mich. 245; People v. Bemis, 51 Mich. 422 [16 N. W. 794]; Webber v. Barry, 66 Mich. 127 [33 N. W. 289, 11 Am. St. Rep. 466] ; People v. Fuhrmann, 103 Mich. 593 [61 N. W. 865]. In all of these cases great stress is laid upon the fact that the attorney so employed must be impartial and disinterested. To hold that the person so employed must be a resident of the county would have the practical effect, in newer counties, where there are but few attorneys, of depriving the prosecuting officer of any assistance, while there is no limit to the number of able counsel with which the respondent may surround himself if he or his friends are able to employ them. In the absence of any decision to that effect, we are not inclined to hold Mr. Pratt disqualified because of his nonresidence.”

In People v. Auerbach, 176 Mich. at page 43 (141 N. W. at page 876, Am. & Eng. Ann. Cas. 1915B, 557), Justice Stone, speaking for the court, said:

“Section 2569, 1 Comp. Laws (a more recent statute), provides that the prosecuting attorney may, under the direction of the court, procure such assistance in the trial of any person charged with the crime of felony as he may deem necessary for the trial thereof. There is no claim here that Mr. Savidge was disqualified, or that he was an improper person to act in the case.
“This court held, in People v. Trombley, 62 Mich. 278 (28 N. W. 837), that the assistant prosecuting attorney, who by statute is required to discharge all the functions and perform all the duties of the office of prosecuting attorney in ease of absence, disability, or sickness of his superior officer, has power to sign, verify, and file an information when the statutory contingency arises. There seems to be no question that such officer is competent to take charge of the trial of a criminal case.
“This court, in the case of People v. Bemis, 51 Mich. 422-424 (16 N. W. 794), said that the prosecuting attorney, and any one associated with him, must be exclusively a representative of public justice, and stand indifferent as between the accused party and any private interest.
“There is nothing in this record to show that Mr. Savidge’s position was assailable upon any of these grounds. This precise question has never been presented to this court before. The following cases refer to the subject generally: Webber v. Barry, 66 Mich. 127 (33 N. W. 289, 11 Am. St. Rep. 466); Sayles v. Genesee Circuit Judge, 82 Mich. 84-89 (46 N. W. 29); People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865); People v. O’Neill, 107 Mich. 556-559 (65 N. W. 540); People v. Thacker, 108 Mich. 652 (66 N. W. 562).
“We do not think that the court erred in its action in this matter.”

The language of the statute, we think, is broad enough to justify payment for services performed in good faith in the preparation for as well as the trial of the cases after the order making the appointment is made. No attorney of ability and experience would think of entering upon the actual trial of a cause without familiarizing himself so far as he reasonably could with the facts which were likely to be brought out in the trial. He would also endeavor to look up the law questions which were likely to arise in the progress of the case.

The liability of defendant county is rested, however, upon the statute. Among the items which plaintiff has charged against the county, which defendant asked the court to eliminate, but which were submitted to the jury for allowance, are one for 11 days’ time, November 7 to December 5, 1913, $165. These charges are for time spent before appointment, before any relations upon which the liability of the county could be asserted had been established.

While the word “trial,” used in the statute, may be reasonably held to include preparation for trial, in view of the purely statutory foundation for the liability asserted, the county cannot be held liable for services performed before appointment, whatever the nature of the services may be. See, generally, for statement of the rule of liability of counties, 4 Am. & Eng. Enc. Law (1st Ed.), p. 359; 7 R. C. L. p. 950; 11 Cyc. p. 430; Follensbee v. Board of Sup’rs of St. Clair Co., 67 Mich. 614 (35 N. W. 257); McCurdy v. Shiawassee County, 154 Mich. 550 (118 N. W. 625).

The judgment is therefore too large, and, if correct figures can be made or a proper judgment agreed to by counsel, should be affirmed in part and in accordance herewith. Otherwise the judgment must be reversed, and a new trial granted. Whatever course is taken,, appellant, having reduced the judgment substantially, should have costs.

The other assignments of error do not call for discussion. •

Kuhn, C. J., and Stone, Ostrander, Bird, Steere, and Brooke, JJ., concurred. Fellows, J., did not sit.


author: Brooke, J.

text:
    PEOPLE v. PERRY.
    1. Criminal Law — Obtaining Money Under False Pretenses— Evidence — Question for Jury.
    In a prosecution for obtaining money under false pretenses and representations, where there was evidence that defendant had sold to a certain person fence posts, that defendant represented to the purchaser that the posts had been shipped, and defendant was advanced a part of the purchase money upon such representation, and that no ' posts had been received up to the time of the trial nearly a.year after such advancement, held, that the question of the falsity of the representations was for the jury.
    2. Trial — Argument of Counsel — Appeal and Error.
    In a criminal prosecution for obtaining money under false pretenses, a remark by the prosecuting attorney that no excuse had been offered, was not error, as a comment on the fact that the defendant had testified in his own behalf as to the truth of his representations that certain goods sold had been shipped where, if the representation said to have been false had in part been true its truth might have been shown through the introduction of the railroad records and without the necessity of defendant’s taking the stand.
    Error to Lapeer; Williams, J.
    Submitted April 13, 1917.
    (Docket No. 163.)
    Decided June 27, 1917.
    Arthur N. Perry was convicted of obtaining money by false pretenses and sentenced to imprisonment for not less than one nor more than ten years in the State prison at Jackson.
    Affirmed.

      B. F, Reed, for appellant.

      Herbert W. Smith, Prosecuting Attorney, for the people.
   Brooke, J.

Defendant stands convicted of the crime of obtaining money by means of false pretenses and representations made to one F. W. Reek. The facts as disclosed by the record are as follows: On October 1, 1915, defendant sold to said F. W. Reek, 800 fence posts. The order follows:

“Ship to F. W. Reek, at Imlay City, Mich. Sold by A. Ñ. Perry, by way of G. T. R. R. About 800 fence posts, fifteen cents. 4" and up — 8 ft. 80% green.”

About January 1, 1916, Reek requested the defendant, Perry, to ship the posts. On January 14, 1916, defendant, Perry, called on Reek and told Reek that he had been north and had the posts shipped, and 'asked Reek to advance $60 on them, and that they would be there in a few days at Imlay City. Reek, believing the representation made by defendant that the posts had been shipped, gave defendant a check for $60, which was later cashed by defendant. No posts had been received by Reek up to the date of the trial, September 14,1916.

The only representation made by Perry to the plaintiff claimed by the people to have been false was the single representation that said posts had been shipped, and the only evidence offered by the people in support of the allegation that said representation was false was the fact that at the time of the trial, nearly a year after said representation had been made, no posts had been received by Reek. At the conclusion of the people’s case counsel for defendant moved for a directed verdict upon the ground that there was no evidence tending to show the falsity of the representation made by defendant that the posts had been shipped. The court refused to grant this motion, being of opinion that it was competent for the jury to determine, beyond a reasonable doubt, that the representation made was false, basing said determination upon the fact that no posts had been received by Reek, as well as upon the circumstances surrounding the case. In so holding we are of opinion that the trial court was not in error. It is to be noted that the contract of sale does not mention from what station said posts were'to be shipped. Under these circumstances it is apparent that it was practically impossible for the people to offer proof covering every station on the Grand Trunk Railway to the effect that the posts had not been shipped. On the contrary, if the representation made by the defendant was true, the railroad records at the station from which the shipment was made were available to him, and would have been a complete answer to the charge. It has been held that proof of the falsity of the representation need not necessarily be direct; it is sufficient if the evidence establish facts tending legitimately to show its falsity. It is said that as defendant is usually in a position to know the truth or falsity of the representation, slight evidence of its falsity is sufficient for his conviction, in the absence of countervailing evidence of its truth. See cases cited in note 15, 19 Cyc. p. 445.

Error is assigned upon a remark of the prosecutor in his argument to the jury. He said: “There has no excuse been offered.” It is urged by counsel for defendant that this was a reference or comment on the fact that the defendant had not testified in his own behalf. We are of opinion that the criticism is not warranted. If the representation said to be false had in fact been true, its truth might have been shown through the introduction of the railroad records and without the necessity of the defendant taking the stand.

No error having been made to appear, the judgment stands affirmed.

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