text:
    MARSHALL v. R. M. OWEN & CO.
    1. Judgment — Conflict of Laws — Jurisdiction of Foreign Court — Evidence.
    A judgment of a sister State sued upon in Michigan may be assailed for want of jurisdiction of the foreign court; recitals of jurisdiction appearing in the record are immaterial.
    2. Same — Process—Statutes—Evidence.
    Without some proof of the statutes of Illinois, the courts of this State cannot determine whether a corporation, foreign or domestic, was properly served with process in that State, or whether a foreign corporation may transact business in Illinois without complying with conditions prescribed by statute.
    3. Same — Corporations.
    It is a rule applicable to corporations and to individuals that whenever it appears from the record of a foreign court of general jurisdiction that the defendant against whom judgment was rendered was, at the time of the alleged service, outside of the jurisdiction of the court, and never appeared in the action, the burden of showing jurisdiction is imposed upon the party claiming rights under the foreign judgment.
    4. Process — Foreign Corporations — Service—Attacking Jurisdiction of Foreign Court.
    Service of summons upon an agent of a foreign corporation is not sufficient to prove jurisdiction unless it appears in the record that the corporation is engaged in business in the State, and the agent is appointed to act there; the transaction of business by the corporation in such State appearing, a certificate of service by the proper officer upon a person who is its agent is prima facie evidence that the agent represented the corporation in the business, but the corporation may, when the record is offered as evidence in another State, show that the agent stood in no such representative character to the company as to justify service upon him.

    5. Same.
    If process is duly served upon an agent, the judgment binds the defendant in the courts of other States.

      6. Judgment — Record—Process.
    The court will not assume that the defendant was a foreign corporation unless evidence to that effect appears, or recitals of record establish the fact; mere allegations contained in plaintiff’s declaration upon the foreign judgment do not aid or contradict a record purporting to show judgment against a domestic corporation of Illinois.
    7. Same.
    Such judgment offered in evidence was properly received.
    8. Same — Collateral Attack.
    But defendant should have been permitted to show that the person upon whom process was served in Illinois was not defendant’s agent, and the court failed to obtain jurisdiction.
    9. Same.
    Nor did the court acquire jurisdiction because defendant made a special motion to dismiss the action in the Illinois courts, which was denied; if the court had not jurisdiction, the motion and a special appearance therefor'did not confer it.
    10.Same — Motions—Res Judicata.
    Such order being interlocutory did not preclude the court from considering new or further motion to vacate the judgment, and the determination of it is not conclusive of the validity of service.
    Error to Ingham; Collingwood, J.
    Submitted April 11, 1912.
    (Docket No. 148.)
    Decided July 11, 1912.
    Assumpsit by George H. Marshall against R. M. Owen & Company upon a judgment of the circuit court for the county of McLean, Illinois. Judgment for plaintiff. Defendant brings error.
    Reversed.

      James H. Thompson and Thomas A. Lawler, for appellant.

      William M. Smith, for appellee.
    The defendant and appellant was sued in the circuit court, for the county of McLean, 111. The sheriff returned the summons with the indorsement:
    “Executed this writ this 28th day of October, 1908, by reading and delivering a true copy of the same to W. G. Bell, local agent for the within named defendant, R. M. Owen & Co., Incorporated. The president, vice president, treasurer, secretary, superintendent or other officer not found in my county.”
    A declaration was filed in the cause February 10, 1909, with a copy of the account sued on, and at the April, 1909, term of court the cause was called and the following record made:
    “ Friday, April 30,1909. Walter E. Johnston, et al., In assumpsit, 25,435, v. R. M. Owen & Co.

    “ And now at this day comes said plaintiffs by their attorneys, and it not appearing to the satisfaction of the court that said defendant R. M. Owen & Co. was duly served with process of summons herein at least ten days prior to the first day of the present term of this court, and now said defendant being three times solemnly called in open court came not but herein made default herein. And now it is considered by the court that said plaintiffs have sustained damages by reason of the nonperformance of certain promises in their declaration mentioned and the amount of plaintiffs’ damages being unknown to the court, it is ordered by the court that a writ of inquiry issue herein for the assessment thereof.”
    The judgment entry is:
    “ Friday, July 2, 1909, Walter E. Johnston and William Hurt, copartners by the name and style of Johnston & Hurt, 25,435, In assumpsit, v. R. M. Owen & Co. (Incorporated.)
    “And now at this day comes said plaintiffs by their attorneys, and now the court having heard the evidence and being fully advised in the premises doth assess said plaintiffs’ damages at one thousand seven hundred forty-seven dollars and five cents. Therefore it is considered and adjudged by the court that the said plaintiffs, Walter E. Johnston and William Hurt, copartners, by the name and style of Johnston & Hurt have and recover of and from said defendant R. M. Owen & Co. (Incorporated) one thousand seven hundred forty-seven dollars and five cents their damages so assessed by the court as aforesaid and also their costs by them in this behalf expended and that execution issue therefor.”

      George H. Marshall, as assignee of the said plaintiffs and as owner of the Illinois judgment, began suit thereon in the Michigan court in November, 1910, and the cause being at issue, and coming on to be tried before the court and a jury, the record of the Illinois judgment was offered in evidence and, over objection of defendant, was admitted. The objections to it were that it does not show affirmatively that defendant was ever served with process, that service upon a local agent was not permitted by the statute of Illinois, that it does not appear that defendant was an existing or going corporation either in Michigan, Illinois, or elsewhere, that the fact of the agency of Bell is not affirmatively stated or asserted in the judgment. Over objection, the court also admitted in evidence the files and record (called Exhibit 3) of a certain proceeding in the said Illinois circuit court, in the matter of the special appearance of defendant in said court and its motion to vacate the said judgment upon the ground that W. G. Bell was not on October 28, 1908, nor at any other time, the agent of defendant, nor authorized nor with any right to accept service of process. The granting of the motion was opposed, and upon the issue made and upon the affidavits and other papers presented and considered, which are exhibited in this record, the Illinois court determined, and the record of the said court shows, the following:
    “ This cause came on to be heard upon the motion of the defendants, R. M. Owen & Co., incorporated, by John Stapleton, their attorney, limiting appearance for the purpose of said motion, wherein said R. M. Owen & Co. did move the court to set aside and vacate the judgment in this cause heretofore entered upon the grounds and for the reason that W. G. Bell was not on the 28th day of October, 1908, nor at any other time, the agent of the defendant company, and was never at any time authorized to accept service, and had no right to accept service, nor in any way was authorized to represent the defendants, and that the defendants had no notice whatever of the said suit or the judgment until the month of December, 1910, which said motion was filed on January 7, 1911, .and the court having considered the affidavits of Raymond Owen and Otto O. Owen in said cause on behalf of the defendants dated January 7, 1911, and the affidavits of W. W. Whitmore and W. E. Johnston in said cause filed on behalf of the plaintiffs on February 25, 1911, and the supplemental affidavits of W. E. Johnston in said cause filed March 1, 1911, and the court, being fully advised in the premises, doth overrule and deny defendants’ said motion to vacate and set aside said judgment for want of jurisdiction of the defendants at the time said judgment was entered.”
    The assignment of said judgment to plaintiff was made July 25, 1910. The bill of exceptions is certified as containing substantially all testimony taken, evidence admitted, and proceedings had on the trial. No testimony appears upon the subject of defendant’s authority to do business in Illinois, and; except as contained in Exhibit 3, none to show that it did any business in that State. No proof was offered to show the residence of defendant or in what State it was incorporated. The law of Illinois governing the bringing of suits against corporations, either domestic or foreign, and the manner of serving them with process, was not proved. Plaintiff did not attempt to prove his demand except by the said judgment record.
    Plaintiff having rested his case, the court denied a motion to dismiss the same or to direct a verdict for defendant, whereupon defendant offered, pursuant to notice given with its plea, to introduce testimony to show—
    “ That, as a matter of fact, W. G. Bell was never in the employ of and never acted as agent or representative for the defendant company or for O. C. Owen; that O. C. Owen was not the agent or representative of the defendant company during the year 1908 or at any time thereafter ; that no service of process was ever had upon W. G. Bell; that no service of process was ever had upon any officer, agent, or representative of the defendant company; that the judgment upon which suit is brought in Michigan was obtained through fraud; that it is void and of no force and effect; that W. G. Bell nor any other person was ever authorized, directly or indirectly, to appear for, represent, or accept service of process for defendant company.”

      The offer was refused. The ground of refusal is indicated by the following:
    “ The Court: I will say that this proof is rerused because on the face of the judgment rendered in Illinois and the findings in regard to that judgment, as shown by the records presented in this case marked Exhibit 3, are final and cannot be attacked in this court. I think that covers the matter.”
    No other testimony being offered for defendant, the court directed averdict for plaintiff. The exceptions taken upon the trial raise, and counsel for appellant discuss, propositions stated by them in the following form:

      “ (1) Defendant had the right to inquire into the jurisdiction of the Illinois court.
    “(2) An inquiry into the jurisdiction of the Illinois court does not violate the full faith and credit clause of the Federal Constitution.
    “(3) Plaintiff cannot build rights upon the refusal of the Illinois court to vacate the judgment.
    “ (4) The rulings of the circuit court were violative of the fourteenth amendment of the Federal Constitution.”

       Who may be served in suit against foreign corporation, see note in 23 L. R. A. 490.

   Ostrander, J.

(after stating the facts). There are really two points to be considered; the second point only if the first is answered unfavorably to plaintiff. They are, first, whether, upon inspection of the record, it appears or may be presumed that the Illinois court had jurisdiction of the defendant; second, whether defendant is precluded, by the decision of the Illinois court upon its motion to vacate the judgment, from now contesting the fact that defendant was properly served with process.

No argument is required and no citation of authorities is necessary to support the proposition that the judgment of a foreign court when sued upon in the courts of this State is open to impeachment for want of jurisdiction of the foreign court. The recital or assertion of jurisdiction, in the record of the judgment, is in this respect immaterial. Thompson v. Whitman, 18 Wall. (U. S.) 457; Old Wayne Mut. Life Ass’n v. McDonough, 204 U. S. 8 (27 Sup. Ct. 236). See Wilcox v. Kassick, 2 Mich. 165; People v. Dawell, 25 Mich. 247 (12 Am. Rep. 260); Peed v. Reed, 52 Mich. 117 (17 N. W. 720, 50 Am. Rep. 247); Copas v. Provision Co., 73 Mich. 541 (41 N. W. 690).

The act of Congress (Act May 26, 1790, 1 U. S. Stat. at Large 122), passed in pursuance of the Constitution of the United States, requires a general faith, validity, and. credit to be given to them as evidencó. Corporations, like individuals, are either residents or nonresidents of a State. A corporation is frequently domesticated for various purposes in States other than the one from which the corporate charter is received. Such domestication is usually upon conditions prescribed by statute, the general purpose of which is to place them upon the same footing with domestic corporations, and as nearly as may be with natural persons with respect to the jurisdiction of the courts.

We cannot take judicial notice of the statutes of Illinois, and therefore cannot, upon this record, determine whether a foreign corporation may do business in that State with or without complying with prescribed conditions, or determine whether defendant, whether it be a domestic or foreign corporation, was served with process in that State in accordance with the laws thereof. Certain presumptions may be indulged in support of the jurisdiction of the courts of a State in certain cases.

It is the general rule, and it applies to corporations, that, whenever it appears from inspection of the record of a court of general jurisdiction that the defendant, against whom a personal judgment or decree was rendered, was at the time of the alleged service without the territorial limits of the court’s jurisdiction, and thus beyond the reach of its process, and that he never appeared in the action, the presumption of jurisdiction over his person ceases, and the burden of establishing jurisdiction is cast upon the party who invokes the benefit or the protection of the judgment or decree. 2 Black on Judgments, §§ 895, 896, 910; Newell v. Railway Co., 19 Mich. 336.

It was held in St. Clair v. Cox, 106 U. S. 350 (1 Sup. Ct. 354), that the service of a summons upon an agent of a foreign corporation is not sufficient to give jurisdiction to a State court unless it appears in the record that the corporation is engaged in business in the State and the' agent is appointed to act there; that, the transaction of business by the corporation in the State appearing, a certificate of service by the proper officer upon a person who is its agent there is sufficient prima facie evidence that the agent represented the corporation in the business, but that the corporation may, when the record is offered as evidenoe in another State, show that the agent stood in no such representative character to the company as to justify the service of the writ on him. See, also, Cunningham v. Hydraulic Co., 18 Wash. 524 (52 Pac. 235) ; Hazel-tine v. Insurance Co. (C. C.), 55 Fed. 743.

A corporation must be served with process through its agent. If subject to the jurisdiction of the State courts, and process is served upon it in accordance with the laws of the State, the judgment is, according to the general rule, binding upon it in the courts of other States. 2 Black on Judgments, § 907.

The record of the judgment describes defendant as R. M. Owen & Co., Incorporated, from which description it is to be inferred that it was, or was considered to be, a domestic corporation. It is said in the brief for appellant that this court should assume that defendant was a corporation organized under the laws of New York, and therefore a nonresident of Illinois, and thereupon apply the rule announced in St. Clair v. Cox, supra. Upon the other hand, the brief for plaintiff contains the answering statement:

“We have searched in vain through the record in this case for any testimony or offer to prove that defendant is a New York corporation.”

But plaintiff alleges the fact in his declaration and the further fact that defendant has been authorized, since 1907, to do, and has been doing, business in Illinois, to wit, buying and selling automobiles and parts of automobiles. I think this court should indulge no presumptions of fact founded upon the unproved allegations in plaintiff’s declaration, not admitted upon the trial to be true, for the purpose of aiding, or of contradicting, the record of the Illinois court. Apparently the defendant was sued as a domestic corporation, and there is nothing to the contrary in the record. Upon the face of the record it appears that defendant was lawfully served with process. It was not error to admit in evidence the record of the judgment. It was error to refuse defendant the right to introduce the offered testimony, unless the. facts proposed to be shown were conclusively determined, adversely to defendant, by the decision of the Illinois court upon the motion to vacate the judgment.

The validity of the judgment was not aided by the second ruling of the court. The court either had or did not have jurisdiction to render the judgment. It acquired none by the special appearance and motion of the defendant.

The order made was interlocutory and did not preclude the court from considering a new or further motion to vacate the judgment. Defendant did not appeal from the ruling. See Roach v. Privett, 90 Ala. 391 (7 South. 808, 24 Am. St. Rep. 819). It must be held that the court was in error in refusing the offered testimony. Wissler v. Herr, 162 Pa. 552 (29 Atl. 862).

The judgment is reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: Steere, J.

license: Public Domain

text:
    PEOPLE v. DAVIS.
    1. Criminal Law — Want of Testimony on Examination — Justices of the Peace — Intoxicating Liquors.
    After a jury had been sworn in a criminal action for keeping open respondent’s saloon on Sunday, it was too late to raise the objection that the prosecution had offered no evidence before the examining justice to show that defendant was a saloon keeper, or had filed the statutory bond, or had secured a liquor dealer’s license.
    2. Same — Quashing Proceedings — Motions.
    The question should have been raised by motion to quash before the accused had been placed in jeopardy.
    8. Same — Evidence—Public Officers — Witnesses.
    The prosecuting attorney was properly permitted to testify in identification and proof of records obtained by him from the office of the county treasurer to establish the fact that respondent had qualified as a liquor dealer, and further to give testimony that the accused had posted the required receipt or license card in his place of business.
    4. Same — County Treasurer’s Office — Proof of Public Records.
    That the prosecutor also stated he knew nothing about the records except what he had been told, did not render the evidence inadmissible, upon proof being made that the records were obtained from the office of the county treasurer.
    5. Same — Public Records as Evidence.
    When public records are produced and shown to have come from the proper official depository they are sufficiently proved.
    6. Same — Trial—Cross-Examination.
    The court committed no abuse of discretion in limiting respondent’s attorney, who repeatedly asked the same or similar questions concerning the motive of a witness who claimed to have purchased liquor on Sunday and in permitting no further cross-examination on that line after respondent’s attorney had twice cross-examined the witness and had apparently concluded.

      7. Same — Appeal and Error — Argument—Conduct op Prosecuting Attorney.
    Criminal cases are not usually reversed on account of impassioned or questionable argument of the prosecuting attorney, unless the arguments were unwarranted by the evidence and probably contributed to the conviction; when the trial judge interposes to correct the effect of such improprieties his exercise of discretion will not usually be disturbed.
    8. Same — Trial—Reasonable Doubt.

      Held, that the charge of the court explaining the meaning of a reasonable doubt was, considered as a whole, correct.

    Exceptions before sentence from Mason; Withey, J.
    Submitted June 13, 1912.
    (Docket No. 131.)
    Decided July 11, 1912.
    Benjamin D. Davis was convicted of keeping open his saloon on Sunday in violation of 2 Comp. Laws, § 5395 etseq. (2 How. Stat. [2d Ed.] § 5071 etseq.)

    Affirmed.

      Henry G. Reek, Prosecuting Attorney, and Franz G. Kuhn, Attorney General, for the people.

      F. E. Wetmore, for respondent.

       Propriety of instruction to the effect that a reasonable doubt is one for which a reason can be assigned, see note in 16 L. R. A. (N. S.) 260.

   Steere, J.

Respondent was • convicted in the Mason county circuit court of keeping open his saloon in the city of Ludington on Sunday, October 1, 1911, in violation of the statute regulating sale of intoxicating liquors. Preliminary examination was had before a committing magistrate, in which testimony was introduced by the prosecution tending to show that on the day in question a witness visited respondent’s saloon in company with .respondent’s barkeeper, who had, in answer to an inquiry if there was any drink going around, told him that “he guessed he could slide some,” and led the way around through a back alley, entering the saloon by the back door, where witness was served with whisky and beer, saw respondent there, and treated him and another who was present.

No testimony was offered in behalf of respondent, and he was bound over to circuit court for trial. When arraigned in the circuit court, he stood mute and refused to plead to the information filed against him, whereupon a plea of not guilty was entered by order of the court in his behalf. On January 3, 1912, his case was brought on for trial before a jury duly impaneled and sworn. The prosecution then called a witness, who was sworn to testify and was about to be interrogated, when counsel for respondent objected to the introduction of any evidence in the case for the reason that the return of the magistrate, purporting to contain all th¿ evidence taken on the preliminary examination, disclosed no testimony to the effect that respondent was a saloon keeper within the meaning of the statute, it not being shown that he had filed a bond, or taken out a license qualifying him to maintain a lawful saloon at times when sales were not forbidden. This objection was overruled, and error is assigned on such ruling.

The objection came too late. If the point could have been well taken at any time, counsel should have moved to quash the information and dismiss respondent before the jury was sworn. In People v. Brott, 163 Mich. 150 (128 N. W. 236), it was said:

“ The motion to quash for want of testimony before the justice on the examination was properly overruled. Upon that question, also, the magistrate was permitted to act without his attention being called to this claim, which was first raised at circuit after the jury was sworn, and when a discharge on a technical point might be final, by reason of defendants having been in jeopardy.”

During the progress of the trial Henry Gr. Reek, the prosecuting attorney, was sworn as a witness for the purpose of proving records from the county treasurer’s office showing that defendant had taken the regular steps qualifying him to legally conduct a saloon where intoxicating liquors were sold at the place alleged. Under objection, said witness was permitted to testify that a liquor license, or red card, or receipt, containing respondent’s name, was posted up in his place of business; that he had examined the records in the county treasurer’s office with reference to retail liquor dealers’bonds; that he there found a liquor dealer’s bond, filed April 26,1911, executed by respondent as principal, bearing the filemark C. F. Meads, county treasurer, which he produced, identified, and offered in evidence. Said witness also identified as an official record taken from the county treasurer’s office, and offered in evidence, a record of liquor licenses of the county. On cross-examination witness testified that he was not county treasurer, nor a deputy, and what he knew of the record was what he had been told.

For the purpose of identifying the proprietor, it was proper for the witness to testify as to a license card posted up in the saloon, and its contents. People v. Baumann, 52 Mich. 584 (18 N. W. 369).

While it is more regular, reliable, and indicative of proper official care and responsibility for public records to be produced and identified by the legal custodian rather than a borrower, the bond and record of licenses issued were testified to be from the county treasurer’s office, the proper place therefor. The record of licenses is of that class of writing known as “official registers,” kept by persons in public office, in which they are required either by statute or the nature and demands of their office, to record certain official transactions in the routine of their regular duties. Such records, when identified, are generally admissible in evidence, notwithstanding their authenticity is not sustained as to their contents by the testimony either of the person who knew the facts reoorded, or who made the record, and upon whose authority and integrity the truth of the record depends. When such books are produced, and shown to have come from the proper official depository, they are, as a rule, admissible in evidence without further attestation. 1 Greenleaf on Evidence, § 485. It is true that the witness, after testifying that the record of liquor licenses issued, which he produced and offered in evidence, was the official record kept by the county treasurer of Mason county, further answered, on cross-examination, that all he knew of the records was what some one else told him. But he also testified that he found them in the treasurer’s office. The effect of such apparently inconsistent statements went to the sufficiency and probative force of such evidence, rather than its admissibility, and was a question of fact for the jury rather than of law for the court. His testimony as to the liquor dealer’s bond, a file of the county treasurer’s office, was more specific and properly admissible under McLeod v. Crosby, 128 Mich. 641 (87 N. W. 883).

Error is alleged on the following ruling:

“Q. Mr. Papke, when you went there to Mr. Duyer’s room on this Sunday, which you told us about, to get him to go to that saloon, was it because you really wanted a drink, or was it because you wanted to get him to violate the law ?
The Court: You have been all over that, and asked exactly the same question. Once will do.”

Aside from the reason given by the court for the ruling, the record shows that the witness had been twice before thoroughly cross-examined by counsel until apparently through and satisfied. Numerous derogatory questions had been asked him along the same lines, the court allowing ample latitude in that particular. Control of cross-examination as to motive, purpose, and intent, as bearing on the credibility of a witness is largely within the discretion of the trial judge, and we find no abuse of discretion in the ruling complained of.

It is claimed respondent’s rights were prejudiced, and the case should be reversed, because of improper comments by the prosecuting attorney while making his argument to the jury. The record only gives such fragmentary and disjunctive expressions from his address as objections were made to, leaving the cause and context largely to conjecture, though it is manifest in some instances and inferable in others that his remarks were in response to arguments or statements of respondent’s counsel. The following expressions are those most seriously complained of:'

“ I want to say first that these eases, prosecutions of saloon cases, are very difficult cases. * * * Further, that it is difficult to make local witnesses stand up in cases of this character.
“Mr. Wetmore: I take exception to that statement. * * #
“The Court: Yes; it is objectionable. Disregard it, gentlemen of the jury.
“Mr. Reek, Prosecuting Attorney: Very well, then, I want to say further that in order, where there are liquor violations, that in order to get convictions, to get men to stand up, you have got to get men from sources where they are not under local influence.
“Mr. Wetmore: I take an exception to that remark.
S(The Court: I am inclined to think that is all right.
“Mr. Wetmore: An exception.,
“The Court: It refers to the weight to be given to the detective’s testimony, I suppose, and to the remarks that have been passed on the subject by the other side. * * *
“Mr. Reek: I say he had to do something, my good friends, he did something, and this wasn’t the only job he did.
“ Mr. Wetmore: I object to that remark as being entirely outside of the evidence.
“Mr. Reek: Yes, but your honor; there was nothing in the case that would call for the attorney for the defendant to remark that ‘ he had to do something at that particular time.’
“ The Court: Strike it out, gentlemen, the statement that he did any other job, and you will disregard it.
“ Mr. Reek: Yery well, if the court objects to it, I will take it back. * * * It is all a matter of defense, and Duyer is associated with Davis, and drinks out of the same whisky glass. * * . * I say why didn’t they furnish me with Spike’s right name at that time, instead of waiting until after Spike was fixed up to go on the witness stand, and make a monkey of himself as he did yesterday.
“Mr. Wetmore: I take an exception to that remark.
“The Court: Yes; I don’t think that was a legitimate remark, or a legitimate argument. Disregard that, that Spike had been fixed up. It is stricken out.
“Mr. Reek: Well, then, I will say instead of fixed up, I will say until they knew what he would testify to.
“Mr. Wetmore: I take an exception to that remark.
“The Court: I think that is in the same category. The same ruling, the same caution to the jury.
“Mr. Reek: And Spike isn’t a myth, because Spike appears. He actually appears here. He appears here finally. Davis brings Spike in finally—
“Mr. Wetmore: I take an exception to that remark.
“The Court: Oh, I suppose that refers to the fact that counsel for respondent told the prosecutor who he was and what his name was.”

While these remarks, on their face and unexplained, are not very intelligible and appear somewhat unseemly, they evidently are, for the most part, in the nature of retorts in answer to comments of opposing counsel. In view of the rulings of the court and cautions given the jury, we are not able to regard them as more prejudicial to one side than the other, if at all, and cannot say from the record that they were, as checked and treated by the court, so prejudicial to the rights of defendant as to present reversible error. We regard it rather as a question of good taste than of law.

“ Ordinarily these matters must be left to the sound discretion of the trial court, who hears the entire arguments of counsel, and can better judge whether the language is justified by the arguments of the opposing counsel.” People v. Tubbs, 147 Mich. 1 (110 N. W. 132).
“We are not disposed to reverse convictions in criminal cases because of the impassioned arguments of the prosecuting officers, unless we can clearly see that such arguments were unwarranted by the evidence and probably contributed to the result.” People v. Peck, 147 Mich. 84 (110 N. W. 495).

Error is alleged on the following brief excerpt from the court’s charge touching reasonable doubt:

“ A doubt which would cause you to hestitate in the ordinary affairs of life.”

This is claimed to be reversible error on the strength of People v. Albers, 137 Mich. 678 (100 N. W. 908). The language there used, and held by the court to be improper, was as follows:

“Whatever would convince you beyond a reasonable doubt, in the judgment which you use in your ordinary affairs of life, is all that is necessary to convince you, sitting as jurors, in any criminal case.”

The language made use of by the trial court in this case, though questionable considered alone, does not import the same limitation when read in connection with that which goes before and after. The court instructed the jury that the respondent was presumed innocent until proven guilty, and that the presumption of innocencé was with him all through the case until the testimony tore it away, and then said:

“ No man can be convicted of crime in this jurisdiction until his guilt is established beyond a reasonable doubt. A reasonable doubt ’ is what the word implies; a doubt founded in reason; a doubt for which you can give a reason; a doubt growing out of the testimony in the case, or the lack of testimony; a doubt which would cause you to hesitate in the ordinary affairs of life. It is not a flimsy, fanciful, fictitious doubt which you could raise about anything and everything. It means a reasonable doubt. If, when all is said and done, you have such a doubt about the guilt of the accused, it is your duty to acquit him.”

This, taken as a whole, is very different from instructing the jury that a doubt which they use in the ordinary affairs of life is all that is necessary to convince them sitting as jurors in any criminal case. This case is pre-' eminently one of facts, limited to a comparatively narrow issue, which depends on the credit given by the jury to witnesses who swore in direct contradiction as to the main facts in relation to which it was impossible to be honestly mistaken.

We think the trial court fairly and impartially submitted this plain issue to the jury, with plain and correct instructions, considered as a whole, as to the rules of law involved and their rights and duties in deciding the facts within their province.

We find no reversible error, and the case will stand affirmed.

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


author: McAlvay, J.

text:
    PEOPLE v. NEELY.
    1. Criminal Law — Evidence—Cross-Examination.
    Error was not made to appear, in a prosecution for aiding and abetting the crime of rape, where the trial court excluded a question on cross-examination, but the same ground was substantially covered by a subsequent question and answer.
    2. Same — Rape—Evidence of Intent.
    Although evidence of prior offenses committed by a respondent is, as a rule, inadmissible, it was not incompetent to show that the respondent, at whose home the crime of statutory rape had been committed upon a girl of 13 years of age, was informed by her of the fact, and two days later connived at a similar offense between the same parties; as testimony concerning the first crime bore upon respondent’s intent.

    3. Same — Husband and Wife — Declarations of Husband.
    The court properly ruled that acts done by respondent’s husband, in respondent’s presence, were presumed not to be done with the wife’s consent, and rightly permitted the introduction of evidence that the wife pushed the girl into a bedroom and at the same time the husband pushed said third person, who had committed the previous offense, into the room, saying, “There’s the bed. Stay as long as you want to.”

      4. Same — Appeal and Error — Correction of Record.
    On error, a correction of the record made by affidavit of the stenographer and accompanied by the judge’s certificate of its correctness, and upon notice to appellant, who made no objection to the amendment, will be treated as proper.
    5. Same — Harmless Error.
    A question was not improperly excluded, when the reply would have covered the same ground previously covered by the witness.
    Error to Livingston; Miner, J.
    Submitted April 18, 1912.
    (Docket No. 128.)
    Decided July 11, 1912.
    Emma Neely was convicted of aiding and .abetting the crime of statutory rape.
    Affirmed.

      William E. Robb, Prosecuting Attorney, for the people.

      Gienn C. Yelland and Judd Yelland, for respondent.

       Evidence of other Crimes in criminal case, see note in 62 L. R. A. 194.

   McAlvay, J.

Respondent was prosecuted and convicted in the circuit court for Livingston county for aiding and abetting one Arthur Phillips in the commission of the crime of rape upon Eva Leahy, a female child of the age of 13 years. After such conviction and sentence, respondent sought to be discharged upon a writ of habeas corpus before this court on account of the claimed invalidity of her sentence. The writ was denied, and respondent re-; manded to the trial court for resentence. She was after-wards duly sentenced, and now brings the case to this court upon a writ of error. The case is of such a character that extended details of the facts involved may properly be omitted.

This girl and a brother 11 years old were permitted by the mother, who went out to work, to remain at the house of respondent for two weeks or more, at respondent’s request, the girl to assist her on Mondays and go to school the rest of the week. During this period, on Sunday evening, April 2d, before the offense for which she was prosecuted was committed, which is claimed to have occurred on April 5th following, Arthur Phillips and his brother, respondent and her husband, and the girl, Eva Leahy, and her brother, 11 years old, were all together at respondent’s house, and spent the evening playing cards and dominoes, until 3 o’clock in the morning. In the morning, about half past 7, and after breakfast, Arthur Phillips followed her into a bedroom and had intercourse with her. The girl during the same forenoon related the details of this offense to the respondent, who told her not to cry about that, as it amounted to nothing, that she did it with other men, and her husband with other women. On Wednesday evening following, Phillips was again at the Neely home, and all of the above-mentioned persons were present, except his brother. After he came, they had supper, and passed the evening playing cards and drinking hard eider. About 11 o’clock, while they were looking at postcards which were Strung on both sides of the door of the girl’s bedroom, Phillips mentioned that he had better go home, and the Neelys told him not to be in a hurry. Respondent then pushed the girl into the room and her husband pushed Phillips into the room, saying to him: “ There’s the bed. Stay as long as you want to.” And the girl’s testimony is that the door to her room was closed and locked. Phillips remained in the room with the girl about one hour, when he went away. During this time Phillips again had intercourse with her.

For the commission of this crime that evening, Wednesday, April 5, 1911, Phillips was tried and convicted, and respondent was prosecuted and convicted for aiding and abetting Phillips in its commission.

The foregoing is a very brief statement of the facts which the prosecution claims were proved upon the trial of the respondent, upon which Phillips, who had absconded to Minnesota §nd was brought back for his trial, was a very material witness on the part of the people. The issues of fact raised in the case by the evidence on the part of the respondent were submitted to and passed upon by a jury.

Many errors are assigned upon the part of the respond» ent. Those discussed and relied upon by counsel for respondent are considered in four groups. (1) It is claimed that the court erred in not permitting cross-examination of the girl’s mother, who had testified concerning a complaint the daughter had made to her about the offense, to show that such complaint referred to the offense committed Monday morning, which respondent is not charged to have aided and abetted; (2) that the court erred in allowing evidence of what occurred at the house of respondent on Sunday night and Monday morning, which was not connected with the offense charged in this case; (3) that it was error to permit any evidence relative to the first offense to be introduced; (4) that the argument of the prosecutor was prejudicial to respondent, and the court' erred in certain portions of the charge given. The foregoing errors assigned and relied on by respondent will be considered in the order they are presented by her counsel.

First. We think that counsel for respondent is in error in claiming that the cross-examination referred to was not allowed. The record shows the following:

Q. Before you went to Howell to make complaint, did your daughter make any complaint to you of what had happened last Wednesday night in the Neely home ?
Mr. Robb, Prosecutor: I object to that.
“A. Well, I don’t know, how can I. (Objection sustained. Exception taken on the part of defendant.)
Q. Before you went to Howell — I would like to have you answer this by ‘yes’ or ‘no’ — before you went to Howell to see the prosecuting attorney, or some other attorney, had your daughter made any complaint to you that she had been pushed into any room ?
ltA. I don’t know anything about it, but I do not think she did.”

It will be seen from this excerpt from the testimony that the question in substance was repeated without objection and the answer given. No other question upon the subject was asked by counsel for respondent of this witness. No error was committed by the trial court.

The second and third groups of errors assigned may be considered together. They refer to the matter of the allowance of evidence of what occurred Sunday night and Monday morning, not connected with the offense charged. This includes, not only the first offense committed by Phillips, but also the evidence of what occurred at the Neely home during the samé time. As to the matter of who was present, and how they occupied their time during Sunday evening and night, the larger portion of the testimony in the case is quoted in respondent’s brief in the discussion of these propositions. W e think the evidence was material as bearing upon the circumstances and surroundings, the relations of these parties at that time, and the kind of a place this in fact was, as bearing upon the probability of the occurrences which followed. Strenuous objection on the part of the respondent is made to that portion of this testimony given by the man Phillips and the girl relative to the offense committed Monday morning; and also the testimony of the girl relative to her claimed statement of these occurrences to the respondent during Monday forenoon. The rule is well established that in criminal prosecutions evidence of the commission of a previous crime is not admissible. The exception to this rule is that previous like offenses of a certain character between the same parties may be shown. In the instant case it is not charged or claimed, that respondent was present and aided and abetted in the commission of the first offense. It is claimed, however, that she had knowledge that this offense had been committed by the complaint made to her by the girl of its details, which we have not deemed proper to spread upon this opinion. This evidence was admissible to show her knowledge of the fact that the offense had been committed, and to bear upon the question of her intent in pushing the girl into the bedroom with the man Phillips. The character of her answer to the complaint made by the girl would have a bearing upon the probability as to whether respondent committed the offense charged. In our opinion this case in this respect is distinguishable from the cases cited and relied upon by the respondent. The evidence objected to was offered to show the relations of these parties, including respondent, and also as bearing upon her intent at the time of the commission of the offense with which she is charged. The authorities cited by counsel for respondent do not, in our opinion, cover the question involved in the instant case, nor is our attention called to any authority involving the same question. Our opinion is that, for the reasons stated, the evidence was admissible and material, and the court was not in error in allowing it.

One other matter is involved under this same head, and that is the ruling of the court during the admission of this objectionable testimony. This occurred during the testimony of Phillips, when he was allowed to testify as to what the husband of respondent said relative to the bed when he pushed Phillips into the bedroom. This record has been corrected by a certificate of the trial judge and the affidavit of the court reporter, who took the testimony upon the trial. The printed record omitted the word “not.” The ruling of the court upon the objection made by counsel for respondent as corrected reads:

The Court: I think I will let it stand, but anything done by the husband is presumed not to be done with the consent of the wife, but I will let it stand to explain the circumstances that were happening there, for the purpose of showing whether the wife, the defendant here; if you should find she pushed Eva Leahy there, you may determine that from facts and surroundings what she pushed her in therefor.”

No objection having been made to this correction of the record by counsel for respondent, who were notified of the same, we presume that it is accepted and the question requires no discussion.

Fourth. We have examined the argument of the prosecuting attorney upon which respondent has assigned error, and do not find that it contains statements of a character which this court has frequently held is so prejudicial that it amounts to reversible error. It is general in its character, and, although somewhat heated, it does not contain an appeal to the individual juror’s prejudices or passions. The first objection made to the charge of the court refers to that portion where the court speaks of the offense committed on Monday morning. We do not think that this charge warrants the construction given to it by respondent, who claims that proof of this was received as substantive proof of the offense charged against respondent. The court distinctly says in the same paragraph of his charge that it was allowed to show the relations between the parties. Further objection is made to the charge in the paragraph where the court mentioned the matter as to whether the bedroom door was locked. Our reading of this paragraph upon that matter satisfies us that it was not misleading, and the charge was in accord with the evidence in the case. The contention was not that the door was locked when they went in there, but, after they went into the bedroom, there is evidence to show that the girl in trying to get out found it locked.

The charge of the court in this, as in other cases, must be read as a whole, and, so reading it in connection with the paragraphs excepted to, we do not find that it was prejudicial or misleading.

Another claim of error relates to the cross-examination of respondent’s husband upon what he testified to in another case, claiming that the court would not allow counsel for respondent to explain his correction of former testimony. From the record we find that there is no merit in this contention. The examination upon this matter extended over several pages of the record and the witness testified:

“ * * * On the other trial last week I did not understand the question. I afterwards fully corrected that. I testified substantially at that time what I have testified to here. I afterwards on that trial testified substantially the same as I have testified in this case.”

This covers the entire objection made by counsel for respondent who claims that he was not allowed to show that fact, and the ruling of the court refusing to allow the question asked later, an answer to which would have been a repetition of the above testimony, was not prejudicial or erroneous. None of the other matters discussed require consideration. We find no reversible error in the case.

The. conviction is affirmed.

Moore, C. J., and Steers, Stone, and Ostrander, JJ., concurred. Brooke and Bird, JJ., did not sit. Blair, J., took no part in this decision.


text:
    CRAIG v. BROWN.
    1. Loas and Logging — Assignment of Claims — Statutes—Log Lien.
    The combination of claims of lienors against timber products, under 3 Comp. Laws, § 10762, is not an assignment but the appointment of an agent to act for all the claimants, and need not be in writing.
    2. Same-tJustices of the Peace.
    Justices of the peace have jurisdiction of such combined claims, under section 10761, 3 Comp. Laws.
    8. Same — Infants—Next Friend.
    Infants appointing such agent or representative to enforce their claims with others, need not secure the appointment of a next friend; as the infants are not parties plaintiff. 1 Comp. Laws, § 756.
    4. Same — Evidence—Memorandum.
    Testimony of a witness who refreshed his recollection from a ledger, which he proved as correct, was not erroneously received.

      Error to Chippewa; Steere, J.
    Submitted January 23, 1912.
    (Docket No. 148.)
    Decided July 11, 1912.
    Attachment in justice’s court by Stephen Craig, Eugene Paul, Samuel La Plant, and John McRae against Eugene Brown, principal defendant, and Millard D. Olds, intervener, to enforce labor claims against timber products. From a judgment for plaintiffs said Olds appealed to the circuit court. Judgment for plaintiffs; intervener, Olds, brings error.
    Affirmed.

      C. 8. Beilley, for appellant.

      John A. McMahon and L. O. Holden, for appellees.
   McAlvay, J.

By stipulation, this is a combination of four cases heard and determined at the same time, each brought by one of the plaintiffs above named, representing himself and others who had united their claims of lien for labor with plaintiff’s claim and designated plaintiff in each case as their agent and attorney for prosecuting such liens. Defendant Eugene Brown was a contractor engaged in lumbering certain forest products owned by Millard D. Olds, appellant, and the cases are brought by the plaintiffs in behalf of themselves and as representatives of others, all of whom performed labor for the principal defendant in lumbering certain forest products, and these suits were brought both in their own behalf and for those they represented to enforce their liens for such labor upon such forest products.

The cases were brought in justice’s court, where the intervener (Olds) appeared specially and moved to dismiss them on the ground that the affidavit for lien showed a combination of claims not authorized by the statute. This motion was overruled, and defendant Olds by special and general appeal brought the cases to the circuit court. In the circuit court the same motion was made to dismiss each of the cases on the ground that, under the log-lien law, there was no authority authorizing the assignment or combination of claims in suits commenced in justice’s court, and, the lien being a personal right, the assignment destroyed the lien. The court held that the suits were properly brought, and denied the motion.

Upon the trial, the introduction of the statements of lien in each case was objected to practically upon the same ground, and the objection was overruled. Over the objection of appellant, permission was granted by the court to amend the declarations, showing the combination of claims and designation of plaintiffs as agents for those they represented to prosecute the suits. Exceptions were duly taken. The authority referred to, given by these groups of workmen to the persons named as plaintiffs, and their designations to represent and act for them, was verbal. It appears from the record that two of these workmen in one case were minors, and no next friend had been appointed. The cases were tried together before the court without a jury, and written findings were requested, and exceptions were duly taken.

The following are the findings of the court, which, being brief, are given in full:

“Findings of Fact.
“ In this proceeding four separate cases, under the log-lien law, are combined and heard together by stipulation, the testimony taken during the trial to be considered in each case as it might be applicable.
“ Defendant Eugene Brown was a contractor engaged in getting out forest products for the intervening log owner, Millard D. Olds. The plaintiffs, together with various others who had assigned their accounts to them and designated them to act as agents in the enforcement of their liens, worked in defendant Brown’s camp upon certain forest products gotten out for the intervening log owner, Olds.
“The designation of the plaintiffs by certain parties whom they represent was made orally in the presence of witnesses.
“In the suit of Samuel La Plant against defendants, ■two of the parties plaintiff represents, to wit, William La Plant and Joseph Kroll, were infants, who, according to the testimony, were earning their own living and had been manumitted by their parents. It appears undisputed that each of the parties claiming a lien in this suit worked upon the forest products involved within 30 days before the lien was filed.
“According to the testimony, the amounts due to the plaintiffs herein and the parties they represent, for services rendered on the forest products mentioned, are found to be as follows: Eugene Paul, $287.49; Stephen Craig, $291.56; Samuel La Plant, $25.10; John McRae, $267.85.
“All files, records, and exhibits in these cases are hereby made a part of these findings.
“Conclusions of Law.
“The statute providing that two or more persons having claims for labor on forest products for less than $100 may unite their claims and institute suit applies to justice court proceedings to perfect liens as well as to circuit court proceedings.
“ In behalf of defendant Olds, intervening log owner, it is contended that no judgment can be rendered in favor of the parties claimed to have assigned their accounts to the plaintiffs, for the reason that it is the intention of the statute that such designation should be in writing, whereas the designations in these cases were made orally. It is also contended that no judgment could be rendered in favor of the minors William La Plant and Joseph Kroll, because no next friend was appointed to represent them.
“ While the statute does not expressly provide that the united claims shall be assigned to the parties designated to act as agent in enforcing liens, it becomes in effect, by operation of law, an assignment. It is a well-settled principle that a chose in action can be assigned orally. The statute in this case does not require any particular method of assigning. It has been held that an assignment of claims for labor against a company which employs them need not be in writing, and that an oral assignment of a chattel mortgage, and of the debt secured thereby, though not otherwise evidenced, when accompanied by a delivery of the mortgage, passes the mortgage and the claim to the assignee, who may enforce the same in his own name.
“ Inasmuch as the legislature, in passing this act, did not particularly specify that the assignment of the claims, or the designation of the parties to act as agents to enforce the lien, should be in writing, we see no reason why the general principles of law which apply in such cases should not maintain here. It being clearly and satisfactorily shown in these cases that there were specific oral designations of these claims, and appointments made to the plaintiffs to act as agents in the enforcement of the liens, in the opinion of the court such oral designations and appointments are sufficient.
“As to the minors whose claims are contested, the statute does not, as applied to these proceedings, authorize the appointment of a next friend. The statutory recognition of an infant’s incapability to make a contract is for the infant’s protection, and cannot be pleaded by a stranger to protect himself. An infant’s contract is not void, but merely voidable, and is valid as to third parties who are strangers to it, and do not claim under either party. Neither these minors nor their parents who had manumitted them could repudiate their action in designating plaintiff to collect the wages which they had earned and to which they were entitled.
“ In the opinion of the court it is not necessary, in proceedings of this kind, brought to collect the wages of minors, for a next friend to be appointed where the minors have been manumitted.
“ Judgment will be rendered in these cases in favor of the plaintiffs for the amounts heretofore stated, declaring in that connection that plaintiffs have a lien upon the forest products mentioned for such amounts.”

Defendant Olds, the intervening log owner, has removed these cases to this court by writ of error, and has assigned errors upon the said conclusions of law.

The claim is made by appellant that the appointments and designations of plaintiffs in these cases as agents of the individual claimants, with the right to prosecute the liens for their common benefit, are invalid because made verbally. The statute under which said proceedings are instituted, and which makes provision for combining claims, contains no requirement that such authority given must be written. An examination of this statute shows that these are in fact not assignments. It provides:

“It shall be lawful for two or more persons claiming such lien to unite their claims, either before or after filing statement of liens, and designate one of their number their agent or attorney for prosecuting such lien, or any suit necessary to enforce the same, and claims, when thus united, shall be received and be treated as one lien, and suit or attachment may be brought as for one claim and concluded as one cause or suit, and the person so designated as such agent or attorney shall be named in such suit or attachment as plaintiff.” Section 10762, 8 Comp. Laws.

In our opinion there was no intent on the part of the legislature to provide for the assignment of claims in cases of this kind. The party designated is the agent and attorney with the power and authority conferred by the statute, and such designation need not be in writing. The court was not in error in so holding.

Counsel in the case give most consideration in their brief to the error assigned upon the holding of the court that the provision of the statute authorizing two or more persons having claims for labor on forest products for less than $100 to combine their claims and institute suit applies to cases brought in justice’s court. The consideration of this contention requires an examination and construction of this statute, known as the log-lien law. The argument is that there are no specific words in section 10764, 3 Comp. Laws, which give jurisdiction to justices of the peace over these lien cases authorizing such combination, and that such authority is contained only in section 10762,3 Comp. Laws, as quoted, supra. These provisions relative to the jurisdiction of both circuit and justice’s courts were in this statute as originally enacted. The section referred to, supra, giving jurisdiction to justices of the peace in these cases, reads:

“ Justices of the peace within their respective counties shall have cognizance and jurisdiction of all cases arising under this act when the amount claimed, over and above all legal setoffs, does not exceed three hundred dollars, and any person and persons having such lien shall be entitled to proceed by attachment in justices’ courts against the property on which he, she or they may have such lien for the enforcement of the same.”

We agree with the trial judge:

“That the provision of the statute on this subject is not limited to the one purpose of allowing suits to be brought in the circuit court, * * * but that it is more comprehensive and, as our Supreme Court has said, is for the purpose of avoiding multiplicity of suits, condensing proceedings, and avoiding costs, as well as for the purpose of allowing people to get into ■ the circuit court with their claims.”

The legislature intended this act to be considered as a whole, and no conflict arises between these sections if a construction is given which allows the provisions of an earlier section to be applied to a later.

In one of the instant cases it appears that the total claims allowed plaintiff amounted to $25.10, which was divided among the claimants as follows: $14.55, $5.72, $2.67, and $2.16, showing that the construction given is both reasonable and practical.

It is also claimed that a next friend should have been appointed to represent two of the infant claimants. We do not think that statute (section 756,1 Comp. Laws) applies, as “ no process has been issued, suit brought, or issue joined ” in the name of the infant. It may also be said that the selection of the plaintiff by these infants was, as far as they were personally concerned, the designation of a next friend, and all that would have been required to remove appellant’s objection was the formal approval of the court of such selection, which could have been done at any time during the proceedings, had it been necessary.

It is also claimed that the court erred in admitting the testimony of one witness because he used a certain ledger and testified therefrom as to the amounts due to claimants individually. By the ruling of the court after objection made, the witness was allowed to use the book only to refresh his recollection. ' He also testified that he knew the account was correct of his own knowledge.

Another claim is made that there was no evidence in the case as to when the last day’s work was performed. This claim is not sustained by the record. There is positive testimony upon the proposition to the contrary. We find no error in the case. The judgment of the circuit court is affirmed.

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


author: Bird, J.

text:
      In re ADLER.
    Intoxicating Liquors — Criminal Law — Repeal op Statute— Words and Phrases.
    The saving clause of the local-option law (2 Comp. Laws, § 5424, 2 How. Stat. [2d Ed.], § 5028), providing that all actions and rights of action shall remain, after the repeal of the law by vote of the county, refers to criminal actions, as well as to civil causes, and respondent who was sentenced under the statute was not entitled to his release on habeas corpus because of a repeal of the law by an election, etc., before sentence was imposed.
    Certiorari to Wayne; Mandell, J.
    Submitted June 4, 1912.
    (Docket No. 13.)
    Decided July 11, 1912.
    Habeas corpus by Gar A. Adler for release from custody under a sentence of the circuit court for the county of Jackson. An order dismissing the writ is reviewed by petitioner on writ of certiorari.
    Affirmed.

      John F. Henigan and F. G. Badgley, for petitioner.

      JST. E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.
   Bird, J.

The respondent was convicted in the Jackson circuit court in January, 1911, of a violation of the provisions of Act No. 207, Pub. Acts 1889, as amended, known as the “Local-Option Law.” An appeal was taken to this court where the conviction was affirmed on the 29th day of March, 1911. 169 Mich. 322 (135 N. W. 289). On April 23, 1911, he was sentenced to pay a fine of $200, costs $200, and be imprisoned in the Detroit House of Correction for three months. A few days thereafter respondent petitioned the Wayne circuit court for a writ of habeas corpus. It was issued, and, after a hearing thereon, the writ was dismissed. A writ of certiorari then issued from this court to bring the proceedings here for review.

It is the contention of respondent that inasmuch as the local-option law, under which he was convicted, was repealed by a vote of the people and a resolution of the board of supervisors before he was sentenced, the sentence is invalid; there being no law which would authorize it. The prosecuting attorney admits that this would be the case were it not for the saving clause in the act, which he contends preserves the jurisdiction of the court in all pending proceedings. The saving clause is as follows:

“ That all actions which may have been brought and all rights of actions which may have accrued before such repeal shall remain and continue to exist as fully as if no such repeal had taken place.”

The respondent insists that this saving clause has reference only to civil actions. The question is, therefore, whether the word “actions,” as used in the saving clause, is broad enough to include criminal as well as civil actions.

Section 16 of the act provides for a criminal action against violators of the law. Section 19 provides for a civil action for damages against offenders of the law. Section 13 contains the saving clause. We think a fair construction of these sections is that the word “actions,” as used in section 13, refers to and includes both the civil and criminal actions created by the act. Had the legislature not intended the word “actions” to be used in its broad sense, it would have doubtless used some other word to restrict its meaning, such as “civil actions” or “actions for damages.” Not having done so, we must assume that it intended to include both civil and criminal actions. The word “ actions ” has been held broad enough in construing a statute to include both civil and criminal actions. Caha v. United States, 152 U. S. 211 (14 Sup. Ct. 518). See, also, State, ex rel. Calderwood, v. Schomber, 23 Wash. 573 (63 Pac. 221).

The holding of the Wayne circuit court will be affirmed, and the writ dismissed.

Moore, C. J., and Steere, MoAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair, J., did not sit.


text:
    CITY OF SAULT STE. MARIE v. HOTTEN.
    Mandamus — Issues—Set-off.
    Mandamus was properly allowed to compel the Chippewa county treasurer to pay over to the city treasurer of Sault Ste. Marie an admitted balance due to the city, although respondent claimed a set-off was due from said city to Chippewa county for certain checks of a taxpayer transferred upon a previous settlement with the city on which payment was refused by the drawee; the issues of diligence, notice of dishonor and sufficiency of presentment should not be tried in the mandamus proceeding.
    Certiorari to Chippewa; Shepherd, J., presiding.
    Submitted June 4, 1912.
    (Calendar No. 24,861.)
    Decided July 11, 1912.

      Mandamus by the city of Sault Ste. Marie against Michael S. Hotten, Chippewa county treasurer, to compel respondent to pay relator a balance due for taxes received. An order granting the writ is reviewed by respondent on certiorari.
    Affirmed.

      F. T. McDonald, for relator.

      M. M. Larmonth, for respondent.
   Bird, J.

This is an application for a writ of mandamus to compel respondent to pay over certain moneys due it upon the quarterly settlement of April 1,1911. The writ was granted by the trial court, and the respondent now asks this court to review it upon certiorari.

In pursuance of the statute (1 Comp. Laws, § 3910, 1 How. Stat. [2d Ed.] § 1857), the respondent, as treasurer of the county of Chippewa, rendered a statement showing the amount due relator on April 1, 1911, from the collection of delinquent taxes. He refused to pay it to the relator as he is enjoined by the statute because of a set-off which he claims the county has against the city for certain taxes collected in the year 1905. In April of that year, the city treasurer, in his settlement with the county treasurer, turned in two checks of one Victor E. Metzger, amounting to $4,066.70, and was given a receipt in full for State and county taxes. The checks were retained by the county treasurer until the summer of 1906, when they were canceled and returned to the maker, and one check was taken in lieu thereof for the aggregate amount less the accrued interest. This check was retained in respondent’s office until January, 1911, without being collected. It is alleged that several attempts have been made to collect it, but without success.

The position of the respondent is that his predecessor in office had no right to accept from the city treasurer anything but money in the payment of taxes, and, as checks were accepted by him which were never honored, the amount of the checks still remains a debt due from the city. It is clear from the allegations of relator and the admission of respondent that the county is indebted to the city on the April, 1911, statement in .the sum of $5,374.61. So far the legal right is clear. When we get beyond this, into the question of the allowance of the set-off, it is not so clear. The city treasurer had a right to accept the checks for taxes, but, if. the same were not honored, it would not amount to payment. Act No. 228, Pub. Acts, 1899. Whether the respondent acted with diligence after accepting the checks, whether he presented them for payment within a reasonable time, and whether relator was given the proper notice of the dishonor of the checks, are questions which ought not to be gone into on this record. As the record shows without dispute that the respondent is indebted to the relator in the sum of $5,374.61, we think the writ should issue as prayed, and the question of set-off be left to be determined in an appropriate action where the facts can be fully disclosed and considered. City of Muskegon v. Soderberg, 111 Mich. 559 (69 N. W. 1116). Had an action in assumpsit been brought by relator, the whole controversy cquld have been disposed of as was done in City of Muskegon v. County of Muskegon, 123 Mich. 272 (82 N. W. 131).

The order of the trial court is affirmed. No costs will be allowed in this court.

Moore, C. J., and Steere, MoAlvay, Brooke, Stone, and Ostrander, JJ., concurred. Blair, J., did not sit.


text:
    ZELLS v. STOCKWELL.
    1. Tender — Judgment—Actions—Statutes.
    In an action for money collected by an attorney at law, who paid into court half of the amount claimed, subject to - certain garnishment proceedings then pending against such attorney, subject to the lien, if any, of plaintiffs attorney, and of defendant for costs, plaintiff could not be required to recognize the conditional tender which failed to conform to the provisions of 8 Comp. Laws, §§ 10405 and 10406.

      2. Same — Instructions to Jury.
    The verdict being for an amount greater than that tendered into court, error of the circuit court giving or refusing instructions to the jury concerning the effect of the tender was immaterial.
    3. Same — Conditional Tender — Practice—Verdict.
    And it should have been treated as an insufficient tender by the court, and plaintiff was entitled to entry of judgment for the full amount of the verdict undiminished by the ineffectual tender.
    Error to St. Clair; Tappan, J.
    Submitted June 7, 1912.
    (Docket No. 42.)
    Decided July 11, 1912.
    Case by Louis Zells against Elmer E. Stockwell by capias ad respondendum for failure to account for funds collected as plaintiff’s agent and attorney. Judgment for plaintiff for less than the damages claimed. Plaintiff brings error.
    Reversed and remanded to correct judgment entry.

      J. W. Bennett and James A. Muir, for appellant.

      O. L. Benedict, for appellee.
   Steere, J.

This cause is before us on a writ of error to the circuit court of St. Clair county without a bill of exceptions, the printed record consisting of the files and records of proceedings in said court and appellant’s assignments of error. The record shows suit commenced by capias ad respondendum issued July 2, 1910. A declaration, duly filed, being in a plea of trespass on the case, charged misconduct of defendant, an attorney at law, in neglecting and refusing for over three years to account for and pay over to plaintiff the sum of $200.05, less his fees, which amount he had collected on April 25, 1907, in his professional capacity for plaintiff on a note and mortgage intrusted to him for collection. Defendant pleaded the general issue, giving notice, as special defense, of a suit in garnishment by the St. Clair County Savings Bank, begun against him as garnishee of the plaintiff on April 21, 1910, followed by a judgment therein for $100.05, which he alleged he had paid, also of a second suit in garnishment, by the same bank, then pending against him as garnishee of plaintiff,' begun in justice’s court on August 5, 1910, and yet undetermined. No tender was pleaded. ¡

There were no further pleadings in the cause, but two days before trial in the circuit court the defendant tendered into court $100.05 and filed notice with the clerk of said court that such tender was made subject to garnishee proceedings pending and set forth in his said plea, also to all liens of J. W. Bennett, attorney for plaintiff herein, and all liens defendant himself might have by virtue of taxable costs. The record shows that this suit was tried before a jury, a verdict being rendered in favor of the plaintiff and against defendant on May 25, 1911, for the sum of $120.46, which verdict was duly entered on the journal of said court and signed by the judge thereof. On July 17, 1911, plaintiff, through his attorney, moved the court for judgment on said verdict for the amount thereof, with costs, refusing to accept or recognize said alleged tender because the verdict exceeded the sum of $100, and plaintiff’s claim was not reduced by set-off to less than $100, and no tender of any sum was made unconditionally. This motion was denied by the court, and judgment entered on said verdict for $20.41, with costs. Following this plaintiff moved for an order directing the clerk to pay him the $100.05 tendered into court, which motion was denied, whereupon plaintiff renounced in writing, filed in the case and presented to the court, all claims for the money so tendered into court, and again moved for a judgment upon said verdict for the amount determined and rendered by the jury, which motion was denied. The printed record also contains certain somewhat acrimonious affidavits, and other proceedings filed and had in the case, which we do not deem pertinent to the legal question now presented.

Error is assigned on the entry of judgment for a different and lesser amount than the verdict of the jury and on the refusal of the court, after plaintiff renounced all claims to the sum conditionally tendered, to grant his motion for a judgment for the full amount of the verdict. In denying the plaintiffs motion that the court direct the clerk to pay over to him the amount of tender, the learned circuit judge filed reasons, it being his opinion that some notice should first be given, and supplemental proceedings had to determine the rights of any claimants to the fund. No further, reasons appear to have been given for denying plaintiff’s subsequent application for full judgment on the verdict after renouncing any interest in or claim to said tender. The alleged tender was conditional, and, under the conditions, in no sense subject to plaintiff’s acquisition or control. The court properly refused to invade the conditions and order the clerk to pay it over to plaintiff.

Plaintiff could not be required to accept or recognize a conditional tender made after the pleadings were concluded. The tender did not conform to the provisions of the statute. Sections 10405, 10406, 3 Comp. Laws. A tender, to be effective, must be without qualification or condition. Noyes v. Wyckoff, 114 N. Y. 204 (21 N. E. 158); United States v. World’s Columbian Exposition (C. C.), 56 Fed. 630; Irvin v. Gregory, 13 Gray (Mass.), 215.

There being no bill of exceptions, we are not clearly advised of what transpired during the progress of the trial, or what instructions were given the jury; but this becomes immaterial on the question before us, for the reason that the verdict exceeded the amount of the alleged tender. In the case of Squire Dingee Co. v. McDonald, 61 Ill. App. 607, it is held: The jury may be instructed as to the effect of a tender, but, if the verdict is for an amount greater than that tendered by the defendant, the error of the circuit judge in giving or denying instruction will not be considered, since such verdict renders the tender ineffectual.

The alleged tender was not regular, was not sufficient in amount to cover the verdict, irrespective of costs. Plaintiff did not recognize it as a valid tender, did not receive it, acquired no control over it, and renounced all claim to it before asking judgment. It belonged to defendant to make such disposition of as he saw fit, so far as any rights between him and plaintiff in this suit were involved. As a tender it was immaterial, negligible, and invalid. It should have been so treated by the court, Plaintiff, to preserve his rights, was entitled to have judgment rendered and recorded in his favor for the full amount of the verdict. If in any way under judicial control, the disposition of the alleged tender was a matter for other and subsequent proceedings.

On the record before us the judgment must be reversed, with costs in favor of plaintiff. The cause is remanded, with direction to set aside the judgment heretofore rendered, and enter judgment in accordance with the verdict of the jury.

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


text:
    PEOPLE v. MULVANEY.
    1. Criminal Law — Cross-Examination—Evidence —Relations of Parties.
    In a prosecution for assault with intent to do great bodily harm, after respondent’s counsel had offered in evidence the examination of complaining witness, taken in justice’s court, and containing evidence of prior trespasses committed by cattle of respondent and resulting ill-feeling between the parties concerned, the court did not commit error in permitting the prosecution to examine the witness at some length upon the same point brought out in the preliminary examination.
    2. Same — Privileged Communications.
    Respondent’s act in going before a justice of the peace, after assaulting and injuring complaining witness, and offering to plead guilty to a charge of assault and battery, was not privileged: the court rightly refused to strike out the testimony.
    3. Same — Witnesses—Prejudice.
    It was within the discretion of the trial court to permit the prosecution to cross-examine a female witness, offered by respondent, as to their relations, to show that they lived together and were intimate, it appearing that the witness participated with the respondent in the assault.
    4. Same — Appeal and Error.
    Testimony which was struck out on objection by respondent’s attorney, no exception being taken to the conduct of the prosecutor in asking the questions, oould not be relied upon as error. Exceptions are necessary to review errors.
    5. Same — Argument.
    Alleged prejudicial argument of the prosecutor will not warrant a reversal, unless the attention of the court is called to the matter, a ruling made and exception taken.
    6. Same — Assault with Intent to do Great Bodily Harm — Trial — Assault and Battery.
    Whether the crime committed by respondent was assault with intent to do greatly bodily harm or assault and battery was a proper question for the jury, under the evidence.

      *7. Same — Charge to Jury — Intent.
    The refusal of a requested instruction that the jury must find an intent to do a serious injury of an aggravated nature, was not cause for reversal when it was covered by the charge as a whole, and the jury fully informed as to the law.
    8.- Same.

      Held, that the verdict was not against the weight of the evidence.
    Exceptions before sentence from Eaton; Smith, J.
    Submitted June 13, 1912.
    ( Docket No. 132.)
    Decided July 11, 1912.
    Maynard Mulvaney was convicted of assault with intent to do great bodily harm less than the crime of murder.
    Affirmed.

      Russel R. McPeeJc, Prosecuting Attorney, for the people.

      O. D. Blasier and Horace S. Maynard, for respondent.
   McAlvay, J.

Respondent in this case was convicted of an assault with intent to do great bodily harm less than the crime of murder. He was the owner of three horses, which, running at large on the morning of the day of the affray, entered upon the premises of Henry Bigley, a neighboring farmer in the township of Bellevue, Eaton county, damaging his crops, on account of which he impounded them in his barn, and caused notice thereof to be served at respondent’s house by a deputy sheriff. Out of these circumstances this case arose.

Upon return of respondent to his home that evening, he was informed by Bessie Smith, a young woman who lived alone with him as his housekeeper, of these facts, and they proceeded together to the house of Bigley for the purpose of recovering the horses. Respondent found his horses locked in Bigley’s barn, and then went to the house where Mrs. Bigley and her daughter were, rapped upon the door, and stood in the doorway, the young woman with him standing on the ground with a lantern in her hand. He demanded the horses, and was told by Mrs. Bigley that he could not have them until he settled for the damage done by them; that Bigley was at Cronk’s. He said he would have the horses if he had to get them at the point of his gun. He swore at her, and drew his revolver. Mrs. Bigley rang the farm bell to call her husband. This was between 9 and 10 o’clock at night. Bigley had gone to the bam of a neighbor named Cronk to stable his horses, for the reason that his barn was too small for his own and respondent’s horses. Returning from Cronk’s in the dark, hurrying because his wife had rung the bell, he was confronted by respondent, who jumped out, crying out at him and rushing towards him. Respondent was accompanied by the young woman. Bigley started backward for some distance, and the young woman said, “Don’t let him back clear to Cronk’s.” Whereupon respondent jumped forward, seized him by the throat, and threw him upon the ground, demanding his horses, and began kicking and choking him, and came down upon him with his knee in his side. Respondent got up, drew his gun, and said:

“ I am going to have those horses tonight if I have to use this revolver.”

He swore at him while he was holding him down, and after he drew his revolver, the young woman, whom Bigley claims was also armed with a revolver, said to respondent:

“ Do not kill the s-o-b-, just fix him so he can’t crawl.”

' Bigley’s wife, who from the house heard voices down the road, went down and met them in the road after the affray, and heard respondent calling Bigley names, and saying he could hardly keep his hands off him. Bigley claims to have been roughly handled and severely injured, his throat was bleeding, and his side was injured where respondent jumped on him with his knee.

After this occurrence respondent secreted himself in the attic when the officers went to make the arrest, and on the next day went to two justices of the peace in that vicinity, and desired to plead guilty to an assault and battery, which he said to one of them he had committed on Bigley. The justices refused to accept such a plea. Upon the trial respondent and the young woman denied that they were armed, but admitted an assault and battery of a mild sort upon Bigley. Respondent testified that the young woman said: csDo not let him get away. He is going back clear to Cronk’s.” He denied that he was armed, stating that he left his revolver in the house when he came home before going to Bigley’s, but admitted that he frequently carried it. The uncontradicted evidence in the case is that it was his habit to have a revolver with him. The jury upon the evidence submitted in the case found respondent guilty as charged. The case is brought to this court upon exceptions before sentence.

Numerous errors are assigned. The first to be considered are those claimed to have been committed by the court in allowing testimony on the part of the people relative to former trespasses of respondent’s stock upon the Bigley farm, which occurred in the testimony of complaining witness Bigley. Two.such questions were asked on his direct examination, both of which were objected to on the part of respondent and the objections were sustained. It appears that upon cross-examination of this witness, evidently for the purpose of showing ill feeling between these parties, the matter of former trespasses was gone into at length by respondent’s counsel, who also introduced in evidence the examination of complaining witness in justice’s court, which contained considerable testimony upon the question. Later, upon redirect examination upon this matter by the prosecutor, objection was made, and the court stated that, because the matter had been gone into by the defense, the answer was allowed to stand, and some further testimony was admitted. Evidently the defense considered the introduction of this testimony material for some reason, and therefore cannot complain because of the ruling of the court in allowing the prosecution to examine the witness upon such matter.

Counsel for respondent claim that the court was in error in permitting testimony to be admitted on the part of the people relative to the conduct of respondent in going before justices of the peace, desiring to plead guilty to the charge of assault and battery, apparently upon the ground that what he said and did was quasi privileged. The two justices of the peace testified as to these facts. The evidence was offered to show the conduct of respondent after the offense was committed, of a like character of testimony showing his hiding in the attic, and for that purpose it was material. These were the voluntary acts of respondent, without restraint, threats, or inducement held out to him, as appears by the examination of one of the justices of the peace by the court. There was no error in admitting it or refusing to strike it out.

Several errors are assigned upon the action of the court in allowing certain cross-examination of' respondent and the young woman, Bessie Smith, his housekeeper, upon matters relating to their conduct and relations, it being claimed on the part of respondent that such examination, particularly that of the young woman, was irrelevant and prejudicial. The prosecution claims that this was proper cross-examination, as bearing upon the credibility of the witness, her reliability and good faith, and within the reasonable discretion of the court. For this purpose, and when properly controlled, such examination is not improper. In the instant case we do not find any abuse by the court of this discretion. These parties had lived alone together for some time. They both participated in this affray. Their relations were a proper subject of inquiry. Underhill on Criminal Evidence ( 2d Ed.), § 221; Tiffany’s Criminal Law, pp. 621, 622; People v. Hare, 57 Mich. 505 (24 N. W. 843); People v. Harrison, 93 Mich. 594 (53 N. W. 724). When a question was asked which the witness refused to answer, before objection was made on the part of respondent, the court ruled she need not answer it, and it was not answered. It is claimed that the exception taken was to the language used by the court. The exception will not warrant such a claim, and the language of the court was not objectionable.

In the cross-examination of Bessie Smith relative to whether or not respondent usually carried a revolver, the following occurred, upon which error is assigned:

“Q. Did you hear of his holding up that young fellow down the road one night ?
“A. I never heard anything about it.
“Q. You didn’t know anything about it?
“A. No, sir.”

Respondent’s counsel objected and asked to strike it out. The court granted the motion and no exception was taken. This assignment of error upon this matter was without merit.

Errors are assigned relative to certain cross-examination of each of seven witnesses produced on the part of respondent. As the record does not show any exceptions taken upon which to base these assignments of error, they will not be considered.

It is claimed that the argument of counsel to the jury was prejudicial, and its allowance was erroneous. This court has held repeatedly that such objections will not be considered, unless the attention of the court is called to the matter and a ruling had, and exception taken to such ruling. As this practice was not followed, such errors assigned will receive no consideration.

It is claimed that the court erred in refusing to charge the jury that respondent could not be convicted of the crime charged in the information, and, under the proofs, could be convicted of no greater offense than assault and battery. The court properly refused these requests for the reason that upon the entire record these were questions of fact to be determined by the jury.

As to the remaining requests to charge refused, or given in a modified form, the principal objection is that the court refused to give in the language of the request a definition of the intent in the offense charged necessary to be found by the jury to warrant a conviction. The court charged the jury: “It must be an intent to do a serious injury of an aggravated nature.” People v. Troy, 96 Mich. 530 (56 N. W. 102), approved in People v. Ochotski, 115 Mich. 601 (73 N. W. 889). There was no error in refusing to give the requests. We have examined the charge as given by the court, and, taken as a whole, it correctly stated the law, and cannot be said to have been misleading.

A motion for a new trial was made, based upon several grounds, most of which have been disposed of in considering the foregoing assignments of error. The main ground of this motion was that the verdict was contrary to the weight of the evidence. This contention we do not find to be supported by the evidence in the case. It was a case to be determined upon the disputed facts submitted to the jury, and there was evidence in the case to support the verdict the jury rendered. The motion was therefore properly denied.

We find no reversible error in this case. The conviction is affirmed, and the case will be remanded to the circuit court, which is directed to proceed to judgment.

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


author: Brooke, J.

text:
    PEOPLE v. CAIN.
    • 1. Intoxicating Liquors — Criminal Law — Wholesale Dealer —Words and Phrases — Retail.
    A wholesale liquor dealer is one who sells in quantities of three gallons or more as defined by Act No. 170, Pub. Acts 1911, and the word includes those who sell such liquors in original sealed packages and not to be drunk on the premises.
    2. Same.
    A wholesale dealer who sells bottled beer in lots of one to five bottles, without a license to sell at retail, violates the statute.
    Exceptions before sentence from Jackson; Parkinson J.
    Submitted June 13, 1912.
    (Docket No. 136.)
    Decided July 11, 1912.
    Dennis Cain was convicted of engaging in the business of selling intoxicating liquors at retail, without having paid the tax or secured license required by law.
    Affirmed.

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

      John F. Henigan and F. G. Badgley, for respondent.
   Brooke, J.

This case is in this court upon exceptions before sentence. Respondent was convicted of being unlawfully engaged in the business of a retail dealer in malt, brewed, fermented, spirituous, and Intoxicating liquors, without having paid the tax required by law, and without having the receipt and license posted and displayed in a conspicuous place in the room where such business was conducted; he, said respondent, not being a druggist.

The facts are not in dispute. Respondent, at the time of the alleged offense, was duly licensed as a wholesaler in the city of Jackson, but held no license as a retailer. Under his license as a wholesaler, respondent sold bottled beer in small quantities — in lots of five bottles, two bottles, and even one bottle. These were pint bottles and were closed with the ordinary tin cap or stopper. The record, shows that none of the beer so sold was drunk upon the premises. Respondent received his beer in car load lots from the manufacturer. Sometimes the bottles were packed in barrels unsealed, and sometimes in boxes unsealed. The barrels usually contained 10 to 12 dozen pint bottles. The boxes or cases ordinarily contained 2 dozen bottles. It is the contention of the respondent that, in selling a single pint bottle of beer, closed or sealed, in the manner described, he acted as a wholesaler within the statutory definition of that term.

Section 2 of Act No. 170 of the Public Acts of 1911 provides :

" Wholesale dealers shall be held and deemed to mean and include all persons who sell or offer for sale such liquors as beverages at wholesale in original sealed trade packages and not to be drunk on the premises: Provided, however, that it shall be unlawful for any person, firm or corporation to engage in the wholesale liquor business in any township, village or city of less than two thousand population (or) to sell in quantities of less than three gallons.”

The word "or ” interpolated by the writer in the above quotation is necessary to give an intelligent meaning to the proviso. So read, it is consistent, too, with the definition of a retailer contained in the same section which includes " all persons who sell any of such liquors by the drink and in quantities of less than three gallons at any one time to any person or persons.”

We will not now enter upon an inquiry as to what the legislature meant by the term "original sealed trade packages.” It is not necessary to determine whether a single bottle of beer sealed by the manufacturer with the usual tin cap is or is not an original sealed trade package. In any event, respondent, according to the terms of the statute, must sell such packages “at wholesale.” Webster defines the word “ wholesale” as follows:

“ Pertaining to, or engaged in, trade by the piece or large quantity; selling to retailers or jobbers rather than to consumers.”

The Century Dictionary defines the word:

“ Sale of goods by the piece or in large quantities, as distinguished from retail; in mass, in the gross, in great quantities, buying or selling by the piece or large quantities.”

The statute definition with the proviso added makes it clear that a wholesaler may not lawfully sell in quantities of less than three gallons. Of course, if a single pint bottle of beer may be sold by a wholesaler, a single drink of whisky contained in a bottle provided and “sealed” by the manufacturer may likewise be so sold. Thus the wholesaler would be enabled to carry on the business of a retailer except that the liquors sold by him would be consumed off the premises. It is difficult to treat such a proposition seriously.

The conviction is affirmed, and the court below is directed to proceed to judgment.

Moore, C. J., and Steere, McAlvat, Stone, Ostrander, and Bird, JJ., concurred. Blair, J., did not sit.