author: Moore, J. Blair, J.

text:
      In re MANACA.
    1. Habeas Corpus — Nature op Remedy — Questions Considered —Record.
    This court will not inquire on habeas corpus whether or not the court, after receiving a plea of guilty, made the investigation required by law before sentencing petitioner, where the record of conviction does not affirmatively show that he did not.
    8. Criminal Law — Maximum Sentence — Statute—Construction.
    A sentence of 15 years for rape, the punishment for which is / life or any number of years (section 11489, 3 Comp. Laws), is a sentence for the maximum term of 15 years, and as such sufficiently complies with section 1, Act No. 136, Pub. Acts 1903, requiring a maximum sentence in such cases.
    3. Constitutional Law — Amendment op Constitution — Power op People.
    The people of Michigan had a right to pass the amendment to the Constitution (art. 4, § 47) providing for indeterminate sentences, such provision not being within any of the prohibitions of the Constitution of the United States.
    4. Same — Criminal Law — Indeterminate Sentences.
    Article 4, § 47, of the Constitution, expressly authorizes an indeterminate sentence law such as Act No. 136, Pub. Acts. 1903.
    5. Statutes — Repeal — Effect on Judgments — Indeterminate, Sentences.
    Act No. 184, Pub. Acts 1905, repealing in express terms Act No. 136, Pub. Acts 1903, does not affect sentences already-pronounced under the latter act and in process of execution.
    Certiorari to Ionia; Davis, J.
    Submitted October 16, 1906.
    (Calendar No. 21,924.)
    Decided December 21, 1906.
    Habeas corpus proceedings by Abraham Manaca to obtain his release from the Michigan reformatory at Ionia. There was an order denying the petition, and petitioner-brings certiorari.
    Affirmed.

      A. A. Ellis and Nichols & Sheldon, for petitioner.

      John E: Bird, Attorney General ( George S. Law, of counsel), for respondent.
   Moore, J.

On January 2, 1904, the petitioner was. convicted of the crime of rape, and sentenced to the Michigan reformatory at Ionia for the period of 15 years. He applied to the respondent for a writ of habeas corpus, claiming his sentence was illegal, and that he should be> set at liberty. After a full hearing the circuit judge decided that he was legally imprisoned. He seeks to review that decision by the writ of certiorari.

The claim of counsel is that petitioner is illegally restrained of his liberty:

(1) Because the record failed to'show that the circuit judge after receiving the plea of guilty, and before pronouncing sentence, made the investigation required by law.

(2) Because the court in passing sentence failed to fix any minimum or maximum as required by law.

(3) Because the title of the act under which he was sentenced, as well as the act under which he was detained, do not give any intimation that any person is to be sentenced or detained for a definite period as provided in the body of the act.

(4) Because the act is unconstitutional. ■

We quote from the brief of counsel:

“We claim that the laws of 1903 and 1905 are in direct violation of the Constitution of this State in the following particulars:

(a) That they violate the provisions of article 3, § 1, in this: That they attempt to divest the judicial department of the government of its rights and duties and place the same with the executive and his appointees.

“ (b) That they violate the provisions of article 4, § 20, in this: That the power given by the amendment to the Constitution (see article 4, § 47 [ratified in November, 1902]) only relates to the ‘punishment * * * detention and release of persons imprisoned or detained on such sentences,’ and the titles to said acts read:

“ ‘An act to provide for the indeterminate sentence and for the disposition, management and release of criminals under sentence, and for the expense attending the same.’ Title of Act No. 136, Pub. Acts 1903.
“ ‘ An act to provide for the indeterminate sentence as a punishment for crime, upon the conviction thereof, and for the detention and release of persons imprisoned or detained on such sentence, and for the expense attending the same.’ Title of Act No. 184, Pub. Acts 1905.

“ Section 4 of Act No. 136 provides:

“‘No prisoner who has been twice previously convicted of a ■ felony shall be eligible to parole under the provisions of this act.’

“Section 5 of Act No. 184 provides:

“ ‘ And prisoners who have been twice convicted of a felony shall not be eligible to parole.’

“ These provisions are certainly in violation of article 4, § 20, providing: ‘ No law shall embrace more than one object, which shall be expressed in its title ’ and they also violate section 47 of the same article conferring power only upon the legislature to provide for the indeterminate sentences, as a punishment for crime on conviction thereof, and for the detention and release of persons imprisoned or detained on such sentences.

“(c) That they violate the provisions of article 5, § 11, in this: That they place in other hands aside from the executive the right to grant reprieves, pardons, commutations and absolute discharges as t© certain defined offenses.

“(d) That it violates the provisions of article 6, §§ 1, 27, 28, 31 and 32 of said article in this: That it not only deprives the court of the right of inflicting punishment for crime, but it deprives the accused of all right of a trial by a jury; and also deprives him of his liberty without due process of law.

_ “(e) That by the provisions of this act, it makes it possible to detain a man in prison' for life for the statute provides that where a prisoner has been twice before convicted he shall not be subject to parole, and that means in a certain class of cases life imprisonment; and in other cases, the maximum term running from 5 to 30 years without making provision for any hearing upon the question, and violates the provisions of the Constitution relating to cruel and unusual punishments.”

We will consider these claims of counsel in the order in which they are presented.

1. The writ of habeas corpus is not adapted to review the proceedings of a trial court where jurisdiction is shown. As it does not appear affirmatively that after respondent pleaded guilty, and before pronouncing sentence, the trial judge did not make the investigation required by law, we will not inquire into that question in this proceeding. In re Lewis, 124 Mich. 199.

2. Section 1, Act No. 136, Pub. Acts 1903, provides:

“In all cases where the maximum sentence, in the discretion of the court, may be for life or any number of years, the court imposing sentence shall fix the maximum sentence.”

The penalty provided for the offense of the petitioner is imprisonment for life or any number of years, in the discretion of the judge (section 11489, 3 Comp. Laws), and it was the duty of the trial judge in sentencing the petitioner to fix the maximum sentence. Was the sentence imposed by him such a failure to comply with the provisions of the statute as to entitle the prisoner to his discharge ? We think the provisions of the second section of the act would prevent such a construction. Is not what was done by the judge equivalent to fixing a maximum sentence ? The word maximum is defined as meaning the greatest, superlative of great. “The greatest quantity or value attainable in a given case.” Webster.

The trial court was authorized to sentence the petitioner for life. Instead of pronouncing such a sentence he sentenced him for 15 years, thereby fixing a maximum sentence, beyond which the petitioner could not be lawfully detained in prison. We think this was the effect of the sentence, and it should be held to be a substantial compliance with the provisions of the statute.

Counsel say, even if the original sentence is valid under the act of 1903, that as petitioner has served the minimum sentence prescribed therein, and as said act is repealed, and as the act of 1905 is void as to him because ex post facto, that petitioner is entitled to his discharge. As we have reached the conclusion that the sentence imposed must be treated as a maximum sentence, it is not necessary to discuss this contention.

3. It is claimed the title is not broad enough to allow the provision in the body of the act for the detention of a prisoner for a definite period of time. This contention is based upon the provision in the.act:

“ That no person who has been twice convicted of a felony shall be eligible to parole under the provisions of this act.”

This contention of counsel can very well be discussed with paragraph four.

4. Is the law unconstitutional for any of the reasons stated under this head ? An indeterminate sentence law is not a new thing; men and women interested in sociology have for a long time endeavored to enact into law provisions that should be an incentive to law breakers, who have been convicted of crime, to reform and become good citizens. Provisions which it was hoped might have this result were enacted by our legislature in the law which was before the court in People v. Moore, 62 Mich. 496. A statute having the same general purpose in view relating to discipline in the State prison at Jackson was before the court in Re Walsh, 87 Mich. 466. In 1889 an indeterminate sentence law (Act No. 228, Pub. Acts 1889) was •passed. This act came before the court in People v. Cummings, 88 Mich. 249 (14 L. R. A. 285). The provisions of the act were discussed at great length by Justice MORSE, who wrote the majority opinion, holding the law to be unconstitutional, and at lesser length by Justice Grant, who was of the opinion the law did not violate any constitutional principle. Not only were the members of this court disagreed, but there was a very considerable conflict in the conclusions reached by other courts. Those of Ohio, Kansas, Massachusetts, and perhaps other States, had sustained similar legislation. A reading of the opinions in the three Michigan cases cited will show that nearly every question assailing the validity of the present indeterminate sentence law was presented in one form or another in those cases, and was discussed and passed upon by the court; the conclusion of the majority of the judges being that the Constitution, as it then existed, made the legislation invalid.

With these decisions, in relation to the parole of convicted persons and construing indeterminate sentence laws, in mind, the legislature submitted the question to the people as to whether they desired to amend their fundamental law. An affirmative answer was given by adopting article 4, § 47, reading as follows:

“ The legislature may, by law, provide for the indeterminate sentences, so-called, as a punishment for crime, on conviction thereof, and for the, detention and release of persons imprisoned or detained on such sentences.

The people had the right to pass such an amendment. Mr. Justice Cooley, in his work on Constitutional Limitations (7th Ed.), p. 62, says that the power of the people to amend or revise their Constitutions is limited by the Constitution of the United States in the following particulars :

“1. It must not abolish the republican form of government, since such act would be revolutionary in its character, and would call for and demand direct intervention on the part of the government of the United States.

“2. It must not provide for titles of nobility, or assume to violate the obligation of any contract, or attaint persons of crime, or provide ex post facto for the punishment of acts by the courts which are innocent when committed, or contain any other provision which would, in effect, amount to the exercise of any power expressly or impliedly prohibited to the States by the Constitution of the Union. * * *

“6. Subject to the foregoing principles and limitations, each State must judge for itself what provisions shall be inserted in its Constitution; how the powers of government shall be apportioned in order to their proper exercise; what protection shall be thrown around the person or property of the citizen; and to what extent private rights shall be required to yield to the general good. And the courts of the State, still more the courts of the Union, would be precluded from inquiring into the justice of their action, or questioning its validity, because of any supposed conflict with fundamental rules of right or of government, unless they should be able to show collision at some point between the instrument thus formed and that paramount law which constitutes, in regard to the subjects it covers, the fundamental rule of action throughout the whole United States. ”

In the case of Dreyer v. Illinois, 187 U. S. 71, it is said:

“Whether the legislative, executive and judicial powers of a State shall be kept altogether distinct and separate, or whether persons or collections of persons belonging to one department may, in respect to some matters, exert powers which, strictly speaking, pertain to another department of government, is for the determination of the State. And its determination one way or the other cannot be an element in the inquiry whether the due process of law prescribed by the Fourteenth Amendment has been respected by the State or its representatives when dealing with matters involving life or liberty. ‘ When we speak,’ said Story, * of a separation of the three great departments of government, and maintain that that separation is indispensable to public liberty, we are to understand this maxim in a limited sense. It is not meant to affirm that they must be kept wholly and entirely separate and distinct, and have no common link of connection or dependence, the one upon the other, in the slightest degree. The true meaning is, that the whole power of one of these departments should not be exercised by the same hands which possess the whole power of either of the. other departments; and that such exercise of the whole would subvert the principles of a free constitution.’ 1 Story on the Constitution (5th Ed.), p. 393. Again: ‘ Indeed, there is not a single constitution of any State in the Union which does not practically embrace some acknowledgment of the maxim, and at the same time some admixture of powers constituting an exception to it.’ 1 Story on the Constitution (5th Ed.), p. 395.”

By the adoption of this amendment the people of the State so changed their fundamental law as to do away with the constitutional objections which had been presented to, and found insurmountable by, this court. We quote from the opinion of Justice Carpenter in Re Campbell, 138 Mich. 597:

“ Petitioner also urges that, as thus construed, the indeterminate sentence law is unconstitutional, because the ‘imposition of a sentence is a judicial act, and the exercise of discretion relative to the term of imprisonment is a judicial function,’ which, under our Constitution, can be exercised only by certain specified courts. This argument assails the constitutionality of characteristic and essential features of the indeterminate sentence law. We must hold that the constitutional amendment (see Pub. Acts 1903, p. 452) which gave the legislature express authority to enact such a law, gave it authority to enact a law containing these features. ”

We do not deem it necessary to discuss the case more in detail.

The writ is dismissed, and the petitioner remanded.

Grant, J., concurred with Moore, J.

Blair, J.

I concur in the result. I do not wish to be understood, however, as expressing any opinion as to the constitutionality of Act No. 184 of the Public Acts of 1905. In my opinion, the constitutionality of that act is not involved in this proceeding. The petitioner committed his offense, was tried, convicted and sentenced while Act No. 136 of the Public Acts of 1903 was in force. He had no appeal pending when Act No. 184, Pub. Acts 1905, took effect, and his rights and obligations must be determined throughout the term of his sentence by the provisions of said Act No. 136.

The repeal of Act No. 136 by Act No. 184 did not, in my judgment, affect sentences already pronounced and in process of execution. In re Lambrecht, 137 Mich. 450. Under that decision the law of 1905 must be given a prospective application and relate only to such convictions as were had, after it took effect. While Act No. 184, Pub. Acts 1905, expressly repeals Act No. 136, Pub. Acts 1903, such repeal should not, in my opinion, be held to extend to cases like the present, where sentence had been regularly pronounced and was in due course of execution. 26 Am. & Eng. Enc. Law (2d Ed.), pp. 755, 756; State v. Addington, 2 Bailey (S. C.), 516; Arron v. State, 40 Ala. 307.

Carpenter, C. J., and McAlvay, J., concurred with Blair, J.


source: Caselaw Access Project

author: Carpenter, C. J.

license: Public Domain

text:
    DEHRING v. BECK.

      1. Fixtures — Breweries — Storage Tanks — Landlord and Tenant.
    Where the tenant of a brewery on surrendering his term left in place storage tanks, fermenting tubs, chip casks and the like, used by him in operating the brewery, it is proper to assume, on the issue of ownership between the landlord and his mortgagee, that they were the property of the landlord.
    2. Same — Mortgagor and Mortgagee — Intent op Parties.
    Whether articles used in the operation of a brewery are covered by a mortgage of the brewery, depends not upon the way in which they are attached to the realty, but upon the intent of the parties.
    3. Same.
    A mortgage of a brewery covers storage tanks, fermenting tubs, chip casks, a large kettle, pipes for the purpose of cooling beer and for passing beer from the kettle to the tanks, all belonging to the mortgagor and all adapted for and used in the manufacture of beer in the brewery, and not removable therefrom without being taken to pieces, though not attached to the realty otherwise'than by their great weight.
    Appeal from Alpena; Emerick, J.
    Submitted October 18, 1906.
    (Docket No. 47.)
    Decided December 21, 1906.
    Bill by Anna Dehring against John Beck to restrain the removal of certain brewery fixtures. From a decree for complainant, defendant appeals..
    Affirmed.

      I. 8. Canfield, for complainant.

      Joseph H. Cobb (C. B. Henry, of counsel), for defendant.
   Carpenter, C. J.

The controversy in this case relates to the ownership of certain storage tanks, fermenting tubs, chip casks, a large kettle, pipes for the purpose of cooling beer, also pipes for the purpose of passing beer from the kettle to the various casks and from the casks to the storage tanks; all of which are situated in a certain brewery formerly owned by Teresa Leins in the city of Alpena, or in the cellars underneath said brewery, and all of which are essential to the operation of said brewery. Complainant is the owner of said brewery, having purchased the same at the foreclosure sale of two certain mortgages given to her by said Teresa Leins, and it is her claim that the property in controversy constituted a part of the mortgaged premises, and was, therefore, embraced in the mortgages, and transferred at the foreclosure sale. Defendant’s claim is based on a title acquired from certain tenants of said Teresa, whose lease was made subsequent to the mortgages of complainant.

On the trial in the circuit, testimony was taken in open court; the learned judge in a very carefully prepared opinion decided that the articles in controversy belonged to complainant and granted a decree enjoining defendant from removing them from the brewery. The opinion of the trial judge, proceeded upon the assumption that these articles were in place on the premises and belonged to Teresa Leins at the time, she executed the mortgages to complainant. In the course of that opinion the trial judge said that all the articles in controversy were placed on the premises by Augustine Leins (the husband of said Teresa) during his lifetime. It is pointed out in defendant’s brief that this statement is erroneous; that certain of the tanks were placed on the premises by a Mr. Roach, a tenant of Teresa Leins, after the death of Augustine. This error does not affect the reasoning of the circuit judge, for, at the time the last mortgage was given to complainant, Roach had surrendered his tenancy, leaving these articles in place, and therefore the trial judge had a right to assume that these articles did belong to said Teresa at the time complainant’s rights accrued. It is of no consequence that the tanks had been put in place by a tenant, since, at the time the last mortgage was given, they constituted a part of the mortgaged premises, and belonged to the mortgagor. Nor is it of consequence that, at the time the first mortgage was given, the tanks belonged to the tenant and not to his landlord, the mortgagor. If this circumstance exempted the tanks from the operation of the first mortgage, they would none the less be subject to the operation of the second, and, as complainant acquired title by foreclosing the second mortgage, it is immaterial what property was covered by the first. This preliminary discussion brings us to the meritorious claim presented by defendant, viz., that the storage tanks, fermenting tubs, and chip casks were not covered by complainant’s mortgages. To show the character of these tanks, tubs, and casks, their location and their relation to the brewery, we quote from the opinion of the trial judge:

“In the subcellar, upon one side, standing upon a heavy framework of timbers, are four tanks, known as ‘ storage tanks.’ These tanks have a capacity of about 50 barrels each, and are used for the storage of the manufactured product. They are constructed of white pine staves, held in place by iron hoops. From the fact of their great size, they were built in the subcellar itself. They cannot be removed from the cellar without being taken in pieces, but they are only affixed to the realty and held in place by their great weight. Upon the other side of this sub-cellar, and resting upon a similar foundation or framed timbers are seven chip tanks, ’ having a capacity each of 20 barrels and upwards. These tanks are also constructed of heavy staves, with iron hoops, and are used during the process of curing the beer, before the same passes by the means of pipes, into the storage tanks. These chip tanks or casks could not be taken out of such cellar without being completely taken to pieces. Neither are they affixed to the realty, except as they are held in place by their own great weight.

“In the cellar above the subcellar are a large number of casks, known as ‘ fermenting tanks ’ more often called ‘fermenting tubs.’ These tanks or tubs run from a capacity of 20 barrels upwards, and cannot be removed from the cellar in question without being taken in pieces. All of these tanks, in both cellars, are connected with the brewing kettle in the brewery proper, by iron pipes of a considerable diameter, the pipes being hung upon iron brackets, securely affixed to the walls of the brewery and cellar by means of iron brackets and hangers. * * *

“They are all adapted for, and were all used, prior to the time of the making of the mortgages, in the manufacture of be'er at the premises in question.”

It is the claim of defendant that the articles in dispute were not covered by the mortgage because they were not annexed to the realty, and were “ capable of removal by simply knocking off the hoops, and could be reassembled or set up for use in any other place, and would have been equally adapted to use in any other brewery, or other industry where liquids are stored or used in large quantities in open vessels. ” Whether or not these articles were covered by the mortgage is to be determined, not by the way they were attached to the realty, but by the intent of the parties. Smith v. Blake, 96 Mich. 542; Byrne v. Werner, 138 Mich. 328 (69 L. R. A. 900). In Smiths. Blake, we held that heavy machinery, which, like that in the case at bar, was not fastened to the soil or building, was included in a mortgage upon the realty. That case rules this, unless it should be distinguished — as defendant contends — because there it was said: “Furthermore, the preponderance of the proof shows that the parties understood that this property was to be covered by the mortgage,” while here there is no competent testimony tending to prove that, at or before the time the mortgage was given, the parties thereto agreed that it should cover the articles in controversy. Such testimony, if admissible (and its admissibility has been denied, Wadleigh v. Janvrin, 41 N. H. 503), is unnecessary in this case. The intent that the mortgage should cover these articles is to be inferred from its proper construction — that is, by applying its language, to its subject-matter — for it is impossible to believe that the mortgagor and mortgagee intended to exclude from its operation articles without which the brewery property described in the mortgage could not be operated and which could not be removed except by being taken to pieces. The case is therefore indistinguishable from Smith v. Blake, supra. The decree is affirmed.

McAlvay, Grant, Blair, and Moore, JJ., concurred.


author: Hooker, J.

text:
    DEDENBACH v. CITY OF DETROIT.
    Limitation of Actions — Commencement of Suit — Detroit Charter.
    . The commencement of suit consists in suing out the summons and delivering or transmitting it to an officer with the bona fide intention of having it served; and where the summons in a negligence case against the city of Detroit was not issued until November 15, 1904, the accident having occurred November 16th of the previous year, and not delivered to an officer until December Sd following, the action was barred. Detroit charter, § 279, compilation of 1904.
    Error to Wayne; Donovan, J.
    Submitted November 14, 1906.
    (Docket No. 143.)
    Decided December 21, 1906.
    Case by Appoline Dedenbach against the city of Detroit for personal injuries. There was judgment for defendant on a verdict directed by the- court, and plaintiff brings error.
    Affirmed.

      Barnes & Stowers, for appellant.

      J. Walter Dohany (Timothy E. Tarsney, of counsel), for appellee.
   Hooker, J.

The appellant was plaintiff in a negligence case commenced against the city of Detroit by summons issued November 15, 1904, said to have been served the same day upon the city controller, but not by an officer; it appearing that the writ was not placed in the hands of an officer until December 3, 1904. Upon that day the officer served it upon the city clerk. The injury complained of occurred on November 16, 1903. The plea was the general issue, with notice that the action was not commenced within one year from the time when the injury was received, as required by section 279 of the charter of Detroit, compilation of 1904. A verdict was directed for the defendant, and the plaintiff has appealed.

It is not contended that the service upon the controller was valid. This case is clearly within the rule laid down in the case of Peck v. Insurance Co., 102 Mich. 52; i. e., that “the commencement of suit consists of suing out the summons, and delivering or transmitting it to an officer with the bona fide intention of having it served.” Such is believed to be the rule generally in this country. See authorities cited in Peck v. Insurance Co., supra. In Angelí on Limitations, § 312, the rule is stated as follows:

“ The general rule appears to be, in this country, that, at the time of suing out of the writ, the action commences; and either, when the writ is delivered to the sheriff, or to his deputy; or when it is sent to either of them, with a bona fide intention to be served upon the defendant, it is considered to have issued.”

Counsel for the plaintiff rely upon the case of Harvey v. Insurance Co., 120 Mich. 606, construing it to hold that delivery of the writ to the officer within the year is not essential, if it be actually issued within that period, with bona fide intent that it shall be delivered to the officer for service within the year. If that is a necessary conclusion, the case should be overruled in that particular, as at variance with the correct rule stated in Peck v. Insurance Co., supra.

The judgment is affirmed.

. Carpenter, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred.


author: Montgomery, J.

text:
    SHAW v. CITY OF YPSILANTI.
    Municipal Corporations — Special Assessments — Restraining Enforcement — Laches .
    An abutting owner who has stood by with full notice and seen a necessary public improvement affecting his property fully completed by a municipality at reasonable cost cannot maintain a bill to restrain the collection of the special tax therefor on the ground that the city council, in its proceedings to make the improvement, ignored many of the important provisions of the charter.
    Appeal from Washtenaw; Kinne, J.
    Submitted November 14, 1906.
    (Docket No. 139.)
    Decided December 21, 1906.
    Bill by Amon W. Shaw and others against the city of Ypsilanti to restrain the collection of a paving tax. From a decree dismissing the bill, complainants appeal.
    Affirmed.

      Lee N. Brown, for complainants.

      Tracy L. Towner and John P. Kirk, for defendant.
   Montgomery, J.

The bill in this case was filed to restrain the collection of a paving tax.

The circuit judge stated his conclusions as follows:

“The bill of complaint charges, and the proof in the case fully establishes, the fact that the common council of said city in its proceedings to make this improvement disregarded and ignored many of the important and essential provisions of the charter.

“ It is difficult to understand why this was done. There appears neither any explanation or excuse for such utterly gross laxity on the part of the members of the common council. If they are unwilling or incompetent to reasonably' and faithfully discharge their public duties, they should resign and the welfare of the city should be committed to those who are ready and willing to respect their duties and the law. Such indifference and disregard of the law under which they act is seldom witnessed and rarely surpassed.

“But fortunately or otherwise this improvement has been fully completed, the cost and expense incurred, and the benefit therefrom realized and enjoyed.

“ The evidence satisfies me that the improvement was a necessity, that the work was well done, and that the complainants have and are receiving the full benefit of such improvement. I see no reason to criticise the character of the improvement, the manner in which the work was done or the reasonable economy exercised.

“If the complainants had filed this bill when the proceedings were pending and before the cost and expenditures had been incurred and the improvement actually made, it seems to me that they must have succeeded, and the city would have been enjoined from proceeding with this contemplated improvement. I think it is now too late for them to interfere and raise these objections. They have remained silent so far as taking any legal measures or remedies. They are now in the full possession of the benefits of this improvement, and it seems to me that now it would be inequitable for them to'be heard and to be relieved from the payment of this assessment.”

The conclusion reached by tbe circuit judge is in full accord with many previous decisions of this court. Byram v. City of Detroit, 50 Mich. 56; Lundbom v. City of Manistee, 93 Mich. 170; Goodwillie v. City of Detroit, 103 Mich. 283; Atwell v. Barnes, 109 Mich. 10; Farr v. City of Detroit, 136 Mich. 200. The complainants cite the cases of Mills v. City of Detroit, 95 Mich. 422, and Walker v. City of Ann Arbor, 118 Mich. 251. In each of these cases it appeared that complainant had no notice that the improvement was being made until after the same was completed. . In the present case the complainants had full knowledge of the progress of the improvement.

The decree is affirmed, with costs, of this court to defendant.

Carpenter, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


author: Per Curiam.

text:
      In re MARK.
    1. Witnesses — Privilege — Self Crimination — Character op Testimony — Determination of Question.
    Where.the question put to a witness is such that an answer to it may or may not incriminate him, depending on the purport of the answer, the witness must he the sole judge of whether he will avail himself of his constitutional privilege, and in such case if he say, on his oath, that his answer would criminate himself, his statement is conclusive, and the court can demand no further testimony of the fact.
    2. Same — Waiver of Privilege.
    That a witness testified on an ex parte hearing to facts resulting in the arrest of another for perjury, does not waive the privilege of such witness against self crimination when called to testify at the preliminary examination of the person so arrested.
    Certiorari to Luce; Steere, J.
    Submitted December 18, 1906.
    (Calendar No. 22,047.)
    Decided December 21, 1906.
    Habeas corpus proceedings ■ by Henry Mark to obtain his release from the county jail of Luce county. There was an order dismissing the writ, and petitioner brings certiorari.
    Reversed on condition.

      James J. McNeil (P. H. O'Brien and F. T. McDonald, of counsel), for petitioner.

      Louis H. Fead, Prosecuting Attorney, for respondent.
   Per Curiam.

A writ of certiorari brings before us for review habeas corpus proceedings determined in the circuit court for tho county of Luce. Petitioner was prosecuted in that court for the crime of arson! The case was once tried and resulted in a disagreement. It is still pending, and is expected to be tried at the next term of said court.

One William Michaels was a witness for the people on the trial of defendant and on the preliminary examination that took place before said trial. It is charged that, in testifying on the preliminary examination, said Michaels committed perjury in testifying as follows:

In the back room of Henry Mark’s [petitioner’s] saloon there was a little arrangement made between Mark and myself that * * * I was to borrow a gun from Mr. Olmstead and go down the railroad track from Olmstead’s east on the main line and shoot it off twice. I got the gun and shot it off twice. * * * It was the request of Henry Mark that I should cut my coat to make out that some one shot at me. - I cut it next morning on the sleeve. * * * I heard Henry Mark say one night in his saloon that those fires were just for a bluff.”

A complaint alleging this charge was made by the prosecuting attorney upon suspicion before William J. Embury, a justice of the peace. Before the warrant was issued, petitioner was brought before said justice, sworn, and, on an ex parte examination conducted by the prosecuting attorney, gave testimony which fully sustained the charge of perjury. A warrant was thereafter issued against Michaels, and, on his examination before said justice, the people- made petitioner a witness, and the prosecuting attorney asked him several questions, each of which he declined to answer upon the ground that said answer would have “ some tendency to incriminate him.” Five of those questions, viz., 1, 3, 4, 6, and 7, related to the testimony given by petitioner on the ex parte examination heretofore referred to. Question No. 1 may be taken as a type of these questions. It is as follows:

“ Did you or did you not last Monday evening testify before William J. Embury, justice of the peace, that you did not at any time make an arrangement with William Michaels whereby said Michaels was to borrow a gun from one Olmstead, Tuesday, June 5, 1906, and go down the railroad track from Olmstead’s east on the main line and shoot it off twice ?”

Question 2 goes directly to the charge. It is as follows:

“Did you have such an arrangement with William Michaels as is mentioned in the question above ?”

Question 5 relates to the testimony given by Michaels upon the preliminary examination. It is as follows:

“ I ask you, Mr. Mark, whether, on'the examination before Harry L. Harris, justice of the peace, in the arson case against you and others, Mr. Michaels testified as follows, to wit: ‘ I cut my coat, and said some unknown men shot at me, at the request of Mr. Mark. Mr. Mark told me that, if I do this, they would assure me the office of highway commissioner.’ ”

Because of his refusal to answer these questions, the justice committed petitioner to the sheriff to be by him held in custody “until he shall submit to answer the said questions. ” The circuit court dismissed the writ of habeas corpus issued to inquire into the legality of this commitment and remanded petitioner to the custody of the sheriff. Is this decision correct ?

It is quite obvious that the questions relating to the testimony given by petitioner upon the ex parte examination are preliminary in character, and answers thereto should not be compelled unless the court had a right to proceed further and obtain an answer to question No. 2, which had a tendency to prove that the alleged perjured testimony of Michaels was false. The important question, then, for our determination is this: Had the court authority to compel petitioner to testify (notwithstanding his claim that such testimony would criminate him) whether or not he had made an arrangement with Michaels whereby Michaels was to borrow a gun from one Olmstead and go down the railroad track and shoot it off twice ?

Petitioner contends that section 32, art. 6, of the Constitution of this State, reading, “No person shall be compelled in any criminal case to be a witness against himself,” excuses him from answering that question. In support of the action of the justice and of the learned circuit judge, it is contended: First, that the claim of petitioner that his answer would tend to criminate him was a' mere pretext not made in good faith, but for the dishonest purpose of protecting a confederate; and second, that by testifying on the ex parte examination petitioner waived his constitutional privilege. We will consider each of these questions.

First. Is petitioner’s testimony that he declines to answer upon the ground that it would tend to criminate him a mere pretext ? Before we can undertake to determine this issue, it must appear that the court has a right to determine it. Has it that right ? The rule by which this is to be determined is correctly stated by Chief Justice Marshall, 1 Burr’s Trial, p. 244, as follows:

“When a question is propounded [a question which the witness declines to answer upon the ground that it may tend to criminate him] it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. It follows necessarily, then, from this statement of things, that, if the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact.”

This language was cited and approved in Re Moser, 138 Mich. 302, and our decision in that case is in conformity therewith.

Can we say no direct answer to the question under consideration may criminate petitioner ? Clearly not, for, if he answer the question “Yes,” thereby admitting that he made the arrangement therein stated, he does criminate himself. This is, therefore, a case in which petitioner’s statement “upon his oath that his answer would criminate himself ” is conclusive. It precludes further inquiry No court has authority to disregard it.

2. Did petitioner waive his constitutional right by testifying at the ex parte examination before the justice? A similar question arose in Temple v. Com., 75 Va. 892. There it was held that “ the fact that the witness testified before the grand jury, and that it was on his testimony that the indictment was found, will not deprive him of his privilege to decline to testify on the trial of the party indicted.” In the course of that decision the court said (quoting with approbation from an earlier decision, Cullen v. Com., 24 Grat. [Va.] 624):

“If a full disclosure of the facts might tend to criminate the witness, we cannot see how that tendency is at all removed by showing that the witness had elsewhere made a statement tending to criminate him. The question before us is not what the witness may have said elsewhere, but whether, when it is apparent that a disclosure from him may tend to criminate him, he shall now, in a pending trial, be compelled to make that disclosure, although he claims his constitutional right of refusal. We do not see that his statements elsewhere have anything to do with the question.”.

In Samuel v. People, 164 Ill. 379, the court held (as stated in the headnotedn that case):

“ The right of a witness in a criminal case to refuse to give evidence tending to criminate himself is not waived by the fact that he has signed an affidavit of the truth of the allegations in an information upon which the case is based.”

We cannot hold that petitioner waived his constitutional privilege.

It follows from this reasoning that the court had no authority to commit petitioner for refusing to answer questions 1, 2, 3, 4, 6, and 7. This reasoning, however, does not apply to question 5. We are unable to see how any answer to that question would have a tendency to criminate petitioner.

The order of the circuit court dismissing petitioner’s writ should be vacated, and an order made directing his release upon his submitting to answer said question No. 5.


author: MoAlvay, J.

text:
    MILLER v. DAVIS.
    Deeds — Execution—Forgery—Evidence.
    On a bill by a husband to quiet title to land' alleged to have been conveyed to him by his deceased wife, evidence examined, and held, to show that the deed to the husband was not a forgery, but was in fact executed by the wife, conveying to him a half interest in the premises, and was valid as against a grantee claiming the premises as a gift from the deceased wife under a subsequent deed.
    Appeal from Ingham; Wiest, J.
    Submitted October 11, 1905.
    (Docket No. 18.)
    Decided December 4, 1905.
    Rehearing denied December 21, 1906.
    Bill by Robert Miller against May Patterson Davis and William Gr. Patterson to correct a description in a deed, and to quiet title. Prom a decree dismissing the bill, complainant appeals.
    Reversed, and decree entered for complainant.

      Q. A. Smith and O. J. Hood, for complainant.

      L. B. Gardner, for defendants.
   MoAlvay, J.

Complainant filed his bill of complaint in this case to correct a description of land in a certain deed given to him by his wife, since deceased,' and to quiet title to the same as against defendants, who are the children of said wife by a former marriage. The premises in question are situated in the city of Lansing, and the mistake in the description referred to was in describing the land as lot 13 of the D. M. Bagley subdivision of the “ east ” 12 rods of certain lots of block 248 of the city of Lansing, when the subdivision was of the “west ” 12 rods of said lots. The fact that this mistake occurs in the description of these premises in this deed is not disputed; but the defendants deny that any deed was ever in fact made, executed, or delivered to complainant by his deceased wife. The title to this lot was derived by complainant, Robert Miller, and his son, Charles A. Miller, from one Caroline Bower, June 22, 1896, subject to a mortgage of $1,000. Charles A. deeded his undivided one-half to Willis N. Walker, a son-in-law of complainant, June 29, 1896. October 1, 1896, complainant married Mary Patterson, since deceased. Willis N. Walker deeded his undivided one-half interest to Mary Patterson Miller October 3, 1896. Complainant paid the mortgage of $1,000, and interest, December 17, 3 896. He deeded his one-half of the premises to his wife January 12, 1897. Mrs. Miller never paid anything in consideration of these conveyances to her. The deed under which complainant claims title is dated August 1, 1902. The consideration expressed is one dollar, and immediately following the description contains the following clause:

“And it is further stipulated and agreed between the aforesaid parties, that in case the said Robert Miller should survive the said Mary Patterson Miller her entire interest in the above property shall become the property of the said Robert Miller immediately.”

On November 18, 1902, Mrs. Miller, in consideration of one dollar and love and affection, by warranty deed conveyed these entire premises to her daughter, the defendant May Patterson. On the same day she deeded some other property to her son, and a life lease to herself of both properties from the son and daughter was also drawn and afterwards executed. These deeds, the lease, and two other papers, made at the same time, which will be referred to later, were placed in the hands of Mrs. Miller’s brother, to be delivered to the children after her death. It appears that the deed of these premises to the daughter was recorded November 21, 1902. Mrs. Patterson died June 21, 1903. Complainant on the day after his wife’s death caused the deed in dispute to be duly recorded, and it remained in the office of the register of deeds of Ingham county a short time, until the commencement of this suit, June 29, 1903, when it was given to complainant’s solicitor, Mr. Heck, and was kept by him until in October, 1903. There was a substitution of solicitors by complainant, the date of which does not appear.

The foregoing facts are established by the record, without taking into consideration the testimony of any of the parties as to matters equally within the knowledge of the deceased wife. 'The defense is that this deed of the undivided one-half interest in these premises from the complainant’s wife to him is a forgery. The evidence which supports this claim is the testimony of the notary who appears from the record of the deed to have taken the acknowledgment, and the defendant William G. Patterson, who saw the instrument. The acts of the deceased wife with reference to her property, the conduct of the complainant, and the loss of the deed, are also urged as supporting this theory. This notary was a justice of the peace, and, although he positively asserted to complainant and his solicitor, Heck, when he was shown the instrument, that the signature to the acknowledgment was not his, and testified to the same effect, yet in both instances he says that about the date mentioned in the acknowledgment complainant and his wife came to his office to have an instrument executed and acknowledged by him, that the wife signed the paper and he took the acknowledgment; that the complainant went out and brought in two witnesses, who signed as such; that the instrument was already made out when produced by the wife; that these witnesses are the same whose names appeared upon the disputed deed; and that he did not know what the instrument was. These facts are identical with the testimony of the complainant upon this matter. Attention in the case is called to no other deed, and these parties had but one instrument acknowledged and witnessed before the notary. The defendant William G. Patterson testified that he saw this deed and examined the signature of the grantor, and that it was not his mother’s signature. Complainant says he took the deed from Mr. Heck to deliver to his present solicitor; that he did not find him in his office; that he drove to these premises with his horse and buggy, hitching the horse near the corncrib; that he took off his coat, in the pocket of which was this deed, and put it in the buggy. The buggy top was up. After storing some beehives in a shed, he put on his coat and went home. The next day he went to his solicitor’s office to deliver the deed, and, on reaching into the pocket into which he had put it, found it was not there. He says he searched for it and could not find it, and has not seen it since, and does not know where it is. This deed was lost some months after the notary and one of the defendants had inspected it. Another circumstance in the case is that the wife is dead, as also are Dr. Secor, who, complainant says, drew the 'deed, and both subscribing witnesses. The wife deeded this and other property to her children, as before stated, and made other writings at the same time relative to desiring to give complainant $800 and a horse and buggy. She also said her property was clear from all incumbrances.

To find that complainant committed a forgery of this instrument and all these signatures, the proof should be clear and” convincing. This property came to the wife from the complainant. She never paid anything for it. He paid the mortgage and all the taxes upon it. They occupied it as their home during their married life. The conveyance to him was a natural and just disposition for her to make, under the circumstances. It was not property her children could justly claim. The deed was delivered to him, and, considering the peculiar clause it contained relative to the entire estate to be his if he survived her, it is not unreasonable that he waited until her death before it was recorded. That he so understood it appears from his testimony “ that the deed was not to be consummated until after her death; that is why I kept it.” Whatever may have been attempted by this deed, whether to create a joint tenancy or to make a testamentary disposition of the undivided half not conveyed, is not clear. It operated in neither respect by reason of her subsequent conveyance to her daughter. Much stress is laid upon the fact that the grantor, the witnesses, and the scrivener are dead. Such fact would certainly give greater opportunity to successfully accomplish a criminal design; but the fact would nevertheless exist if no question had ever been raised concerning the genuineness of the instrument. To discuss or quote at length the testimony in the case relative to the validity of the deed to complainant will be of no benefit to the profession. We are satisfied from all the evidence in the case that the deed in question was not a forgery. It conveyed to complainant an undivided one-half interest in the premises. The conveyance to her daughter was in the nature of a gift. Although purporting to convey the whole premises, she thereby received title only to the one-half interest remaining in her mother.

The decree of the circuit court is reversed, and a decree in accordance with this opinion will be entered in favor of complainant, granting the prayer of his bill of complaint, correcting the description, and confirming him in his title to an undivided one-half of the premises, and removing the cloud therefrom, with costs of both courts in his favor.

Moore, C. J., and Grant, Blair, and Ostrander, ■JJ., concurred. . ,


author: McAlvay, J.

text:
    PEOPLE v. TUBBS.
    1. Jury — Oh allenge — Array—Sueeioienoy .
    It is well settled that a challenge to an array must be in writ ing.
    2. Same — Waiver.
    Where, during the argument of a challenge to the array, it appeared that the challenge was not in writing and the judge requested that he might see it when filed, and the chaPenge, though afterwards filed, was not called to his attention or passed upon by him, it was waived.
    3. Witnesses — Examination—Redirect — Changing Testimony.
    Where a witness for the prosecution, on cross-examination, materially changes his testimony from that given on the preliminary examination of respondent, the prosecuting attorney is properly permitted to examine him on redirect with reference to his prior testimony.'
    4. Homicide — Evidence—Admissibility—Acts oe Accused.
    On a trial for murder, evidence is admissible showing that about two hours after the homicide witnesses were at the house where the respondent, who was known to have done the killing, lived with his parents, and that he furnished them with cider and his mother showed them through the house which had been newly finished and papered, though respondent did not accompany them through the rooms.
    5. Witnesses — Cross-Examination—Propriety.
    Where, on a trial for homicide occurring during a quarrel over the cleaning out of a drain through defendants’ farm, the county surveyor has testified in behalf of defendants to their peaceable disposition when the drain was originally constructed, he is properly asked on cross-examination if he has not made statements to the contrary.

      6. Same — Impeachment.
    Questions tending to impeach a witness are proper cross-examination.
    7. Same — Improper Questions — Good Faith — Reversible Error.
    Propounding an improper question in good faith to a witness in a criminal case is not reversible error.
    8. Criminal Law — Trial—Argument oe Counsel — Discretion oe Court — Review.
    Courts of last resort will interfere with the exercise of the discretion of the trial court in controlling the argument of counsel only in cases where the attorney has clearly departed from the evidence and the line of legitimate argument to the evident prejudice of the opposite party.
    9. Same.
    For the prosecuting attorney, in arguing a murder case to the jury, to say that the story of a witness was a “damnable yarn,” that the respondent was as “vicious as a rattlesnake and as active as a hornet,” and that if such affairs as this are to go unpunished the people would better discharge officers and defend themselves, is not reversible error, being based on the evidence, but is a question of good taste rather than of law.
    10. Homicide — Self-Defense — Apprehension of Danger — Instructions.
    In charging the jury as to the belief of respondent arising from his surroundings and the circumstances of the homicide, which would justify it in self-defense, it is not error, in addition to the words ‘ ‘ reasonable belief ” and ‘ ‘ honest belief, ” to use the expressions “reasonable cause to believe,” “reasonable cause to apprehend,” and “reasonable cause to believe and did believe.”
    11. Criminal Law — Trial—Instructions — Burden of Proof-Defenses.
    An instruction not to acquit on the ground of self-defense unless such defense is established by the respondent, examined in connection with the remainder of the charge, and held, not reversible error, in view of clear instructions on the burden of proof, and it being apparent that the jury could not have been misled.
    12. Homicide — Justification.
    Provisions of law forbidding work on Sunday do not justify an assault on a drain contractor attempting to prosecute work upon a drain across respondent’s farm on Sunday.

      13. Same — Trespass.
    On a trial for homicide in killing a drain contractor who, by virtue of a deed of right of way, had a right to enter upon the land of respondent and work at clearing the drain thereon, instructions relative to trespassing beyond the limits of the right of way are properly refused, in the absence of anything to show that at the time of the homicide anything was being done not within the license granted.
    Error to Eaton; Smith, J.
    Submitted February 15, 1906.
    (Docket No. 219.)
    Decided January 4, 1907.
    George Tubbs was convicted of murder in the first degree and sentenced to imprisonment for life in the State prison at Jackson.
    Affirmed.

      Frank A. Dean and Garry C. Fox, for appellant.

      Elmer N. Peters, Prosecuting Attorney (Lewis J. Dann, of counsel), for the people.
   McAlvay, J.

The respondent was, with his father, Levi Tubbs, and his uncle, Charles Tubbs, jointly informed against for the murder of John Boutts at the township of Kalamoin Eaton county on November 20, 1904. He demanded a separate trial, which was granted, and which resulted in a conviction of murder in the first degree on May 4, 1905.

Levi and Charles Tubbs are the owners of a farm in said township, through which, years before, had been laid out and constructed a county drain; the right of way for said drain 20 feet wide having been duly released by them. The Tubbs farm is on the north side of the highway, which runs east and west in front of it. The drain enters from the highway on the south line of the farm some distance west of the house, and runs across to the north line, making several angles in- its course. The water in the drain flows to the north. The deceased, John Boutts, had a contract with the county drain commissioner for cleaning out portions of this drain, including that part which crosses the Tubbs farm. This ditch is 2 to 3 feet in depth and averages 8 to 10 feet wide at the top. He commenced work on this portion of the drain towards the north end October 24, 1904, and continued until November 2, 1904. The work was done at the lower end first at the request of Charles Tubbs, who said that the corn would be husked and out of the way by the time that was completed. This corn grew in a field close to the drain on the upper portion. On the morning of November 1st, in driving along the ditch to his work, Boutts went through a portion of the corn alongside of it. Some words about driving into the corn arose between Charles Tubbs and Boutts. Respondent came up and engaged in the dispute with Boutts, whose wife stepped between them, and no blows were exchanged. There is evidence tending to show that at this time respondent declared he would kill the first man that tried to dig the ditch. This is denied by respondent and his uncle, Charles Tubbs.

This was the first time respondent and deceased had any words about the ditch. Deceased worked on the ditch that day with his wife, and when they returned next morning respondent and Charles Tubbs were there and a dispute arose about some grass which grew in the bottom of the ditch and which was cut by Boutts in order todo the digging and was carried away by him. By the request of the drain commissioner, who desired the water to have an outlet, Boutts worked on the lower end of the drain that day, so nothing occurred between the parties. Boutts next worked on this drain Friday afternoon, November 18th, at the lower part, finishing up and shoveling out the bottom. Respondent on Saturday, November 19th, went to the village of Nashville and purchased a revolver, for the purpose, as he said, of shooting a dog. On the same day Levi Tubbs went-to Charlotte and saw drain commissioner Carr, telling him he would forbid putting dirt from the drain outside the right of way, and told him he would see that Boutts did not work there on Sunday. The next morning, Sunday, November 20th, Boutts, with two men, Powers and Bigley, as helpers, came along the highway from the east and passed the Tubbs house, for the purpose of going to work on the drain at a point near the highway about 80 rods west of the.house. They were seen by respondent and Levi and Charles Tubbs, who at once left the house and started for the drain. Charles Tubbs carried a walking stick, and respondent was armed with his revolver. Boutts and his workmen were riding upon the wagon which carried the tools and some tent stakes. A team of horses was led behind.. They let down the fence, drove into the field, and began to unload the tools. While they were doing this, Charles and Levi Tubbs came up. Respondent was a little behind them. Boutts said, ‘ ‘ Good morning.” Levi ordered him off from the place and to take his tools off, telling him he could not work there on Sunday. Charles also said he could not work there on Sunday. Respondent came up to Boutts at the back end of the wagon. It is in dispute whether or not he pushed against him with his shoulder; but it is admitted that he asked him if he was not going to leave. Boutts said he was not;, that he had come there to ditch. He walked around respondent and continued to unload the tools. When going along the north side, of the wagon, about the middle of the box, Levi Tubbs stepped in front of him and took him by the shoulder and told him to get off the place. Boutts said he had no right to put his hands on him and follow him around with a club. Charles Tubbs advanced towards Boutts with his stick in his hand, raised in a threatening manner. Boutts reached into the wagon box, took up a tent stake, and struck at and hit Levi Tubbs, who grabbed the stake, and Boutts attempted to pull it away from him, but was unable to do so, and let go of it and took another stake from the wagon. Levi and Charles Tubbs, both with clubs in their hands, advanced towards Boutts. The man Powers rushed in to stop the difficulty, and caught the stick Charles had raised to strike. Boutts started around the back end of the wagon. Respondent was then some 10 or 15 feet away, and as Bontts, with his back towards respondent, was walking away from where Levi and Charles stood, respondent fired his revolver at him, missing him. Boutts turned partly around towards respondent, who fired again, killing him almost instantly.- The men, Powers and Bigley, put Boutts into the wagon to take him away. Powers asked if the tools could remain there, and Levi Tubbs said, “ No.” The men drove away with Boutts’ body, and the Tubbses dragged the tools out into the highway.

The cause is here upon exceptions after judgment. Errors are assigned upon overruling a challenge to the array, upon portions of the charge of the court, the refusal to charge as requested, and the argument of the prosecutor to the jury. The challenge to the array made to the court was oral. Respondent’s attorney said:

“ Eor the purpose of saving the record, I desire to interpose a challenge to the array and will have the clerk sworn.”

The clerk was sworn and examined. The challenge was overruled and an exception taken. Respondent’s attorney said that, in order to make the challenge effective, it was suggested to him it should be in writing and filed, and asked permission to prepare and file it later and treat it as being filed now. The court said:

“I thought it had been filed by what you said. Let me see it when it is filed.”

A jury was selected and sworn, and the case proceeded to trial. Three days afterwards the challenge to the array was filed. The record does not show that it was called to the attention of the court, or that he ever saw it. It is well settled that a challenge to an array must be in writing. People v. Doe, 1 Mich. 451; Ryder v. People, 38 Mich. 269. No such challenge to the array as the practice requires was ever presented to or passed upon by the court. Respondent must be considered to have waived such challenge.

Error is assigned upon the allowance of certain redirect examination of the witness Youngs, called by the people to show that respondent had purchased the revolver from him the day before the shooting. His testimony on the trial differed materially from that given for the people on the examination, and the court allowed the prosecutor to examine him with reference to such prior testimony. Prom the witness’ testimony on the trial it appeared that he had been subpoenaed by respondent. He had materially modified his former testimony, and it was proper to permit the prosecution to read to him such of his former testimony as was material, and examine him upon it. This was done by reading two of his former answers, which he admitted were true. People v. Case, 105 Mich. 92; People v. Gillespie, 111 Mich. 241.

Two witnesses, Rouse and Clemens, testified as to what occurred at respondent’s house about two hours after the homicide. Respondent at this time furnished the witnesses with cider. Mrs. Tubbs showed them through the house, which had been refinished and papered. They did not testify as to what she said. It is urged that it was error to allow testimony as to what she did. Respondent was present. He did not follow them through the rooms, but knew that they looked through the house. The testimony was properly admitted.

The question asked by the prosecutor of the county surveyor, who had been called to show the peaceable disposition of defendants when the drain was originally surveyed and laid out, was proper cross-examination, as tending to show that he had made statements to the contrary.

The error assigned upon certain cross-examination of Charles Tubbs is not meritorious. The questions answered were proper cross-examination and tended to impeach the witness. One question objected to was held by the court not proper, and was not answered. Propounding such questions in good faith is not reversible error. Knickerbocker v. Worthing, 138 Mich. 239, and cases cited.

Several errors are assigned upon the statements of the prosecutor made in his argument in closing the case. The whole argument is not in the record, and none of the argument for the respondent appears. Many of the statements are claimed by the prosecutor to have been made in answer to attacks made by respondent’s counsel upon certain of the people’s witnesses, and the trial judge indicates that this was the fact. 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. Courts of last resort will interfere by granting a new trial only in a case where the attorney has clearly departed from the evidence and the line of legitimate argument, to the evident prejudice of the opposite party. People v. Conley, 106 Mich. 427. It was held not reversible error to call respondent “the lowest of dead beats.” People v. Winslow, 39 Mich. 505. So it was held not error for the prosecutor to say to the jury that a witness lied. Driscoll v. People, 47 Mich. 414. The court, speaking through Justice Campbell, said:

“As it was apparently within the proper range of the prosecution to insist before the jury that Fennell was a false witness, the matter became a question of good taste, and not of law.”

That language was certainly as objectionable as, in the case at bar, to call the story of a witness “a damnable yarn,” or to say that the respondent was as “vicious as a rattlesnake and active as a hornet.” Further language of the prosecutor relied upon as constituting reversible error, necessary to be considered, is his statement that, if affairs of this kind should go unrebuked and are justified by the verdict of a jury, each man would better protect himself, that they would better discharge officers, and buy ammunition for the purpose of self-protection. This was said in the heat of an argument, at the close of a hotly contested case. It is not language which meets with our approval, nor does it display that good taste Justice Campbell suggested in the Driscoll Case, supra. It was, however, not in the nature of an appeal to the passions and prejudices of the jury. The language amounted to no more than to say to the jury that, if criminals cannot be convicted upon testimony as clear and convincing as that in this case, prosecutions are useless, and the people must defend themselves.

Courts have seldom reversed convictions in criminal cases for the language of the prosecutor in denouncing the conduct of a respondent, or a witness, when such language is based upon the record. They frequently reverse cases where the prosecutor has thrown his own belief into the scale, or has based an argument on matters not appearing on the record, or used language clearly prejudicial. Courts will be very slow to reverse a case for the language of the prosecutor, which, in his judgment and that of the trial court, is based upon the evidence in the case. The language complained of was based upon the evidence and “became a question of good taste, and not of law.”

The exceptions to the charge of the court and the refusal to give certain requests presented by respondent may be considered in groups: .

(1) Those relating to the law of self-defense.

(2) Those relating to the evidence of previous good character.

(3) Those relating to the fact that deceased and his workmen were upon these premises on Sunday, and contrary to the Sunday statute prohibiting work, and were trespassers, who could be forcibly ejected.

(4) Those relating to trespassing beyond the right of way.

It is urged that the court, in charging the jury as to the belief of respondent arising from his surroundings and the circumstances at the time of the homicide, which would justify it in self-defense, in addition to the words “reasonable belief,” and “honest belief,” erred in using the expressions “reasonable cause to believe;” “reasonable cause to apprehend;” “reasonable cause to believe and did believe.”

In a recent case, where the whole charge properly stated the law of self-defense, this court held it was not error to use the same expressions claimed in the case at bar to be erroneous. In that charge the trial judge said:

“ But he may act upon a reasonable belief arising from appearances which give him reasonable cause for believing that danger was actually imminent, although it may turn out that he was mistaken. His guilt or lack of it depends upon the circumstances as they appeared to him.”

The judge also charged in that case that if respondent -actually believed that the person killed “was about to do him great bodily harm, and had any reasonable ground for such belief,” etc. People v. Farrell, 146 Mich. 264.

Error is assigned upon the following words of the judge in his charge, being one clause of a sentence:

“And, unless such facts constituting such reasonable cause have been established by the defense in the case, you cannot acquit on the ground of self-defense.”

This exception, as well as the one just considered, must be determined in the light of the rule that a single sentence or a part of a sentence cannot be isolated, and, standing alone, made the subject of reversible error, if, upon the entire charge, it can fairly be said that the jury were not misled. Applying that rule to this case, we do not think there is any ground for saying that the jury understood that the burden of the proof of the respondent’s innocence was cast upon him. At the commencement of his instruction the learned trial judge clearly and emphatically instructed the jury that the respondent was presumed innocent until proven guilty; that no man could be convicted until proof was brought establishing his guilt; that the presumption of innocence attended him all through the case until overcome by evidence which should convince them beyond a reasonable doubt of guilt; and that such presumption applied to every element of the offense necessary to the conviction. He then in clear language defined a reasonable doubt, and murder in the first and second degrees, and manslaughter.

He then stated the theories of the prosecution and the defense, after which he instructed the jury as follows:

“If you find from the proofs in the case and have any reasonable doubt in your minds whether or not the respondent shot Boutts for the reason that he believed at the time he fired the shots that his father, Levi Tubbs, was in danger of death, or great bodily harm at the hands of John Boutts, and fired the shots in defense of his father, then you should acquit him, and return a verdict of not guilty.
“ The right to defend one’s self against danger not of his own seeking is a right which the law guarantees to all men; and the same right which exists to protect one’s self exists also for the protection of those dependent upon him, such as members of his family. In this' case defendant had the same right to protect his father that he would have had to protect himself in a like situation, though the danger was threatened to his father, and not to himself. If at the time the defendant shot the deceased, John Boutts, he had reasonable cause to apprehend on the part of the deceased a design to do his father, Levi Tubbs, great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished, and to avert such apprehended danger he shot, and at the time he did so he had reasonable cause to believe it necessary for him to shoot in the way he did, to protect his father from such apprehended danger, then and in that case the shooting was not felonious, but was justifiable, and you ought to acquit him upon the ground of necessary self-defense. It is not necessary to this defense that the danger should have been actual or real, or that the danger should have been impending and immediately about to follow. All that is necessary is that the defendant had reasonable cause to believe and did believe these facts. But before you acquit on the ground of self-defense you ought to believe that defendant’s cause of apprehension for his father was reasonable. You are to determine from all the evidence whether facts constituting such reasonable cause have been established; and, unless such facts constituting such reasonable cause have been established by the defense in this ease, you cannot acquit on the ground of self-defense, but his actions and conduct are to be judged from tbe circumstances as they appeared to him at the time. He had the right to act under the circumstances as they appeared to him at the time, and if from all the evidence in the case there exists in your minds a reasonable doubt whether the respondent did not in fact kill John Boutts in defense of his father, honestly believing his father’s life was in jeopardy, or that he was in danger of receiving serious bodily injury at the hands of Boutts, then it would be your duty to render a verdict of not guilty.”

It was clearly not the intention of the judge to say to the jury that the burden rested upon the respondent to prove his innocence. When the charge is read as a whole, it conclusively appears that the jury could not have been misled by the language complained of. It is evident from the entire charge that the burden was placed upon the people to establish the respondent’s guilt beyond a reasonable doubt. This is apparent from that part of the sentence immediately following that which is claimed as error, viz.:

“But his actions and conduct are tobe judged from the circumstances as they appeared to him at the time. He had the right to act under the circumstances as they appeared to him at the time, and if from all the evidence in the case there exists in your minds a reasonable doubt whether the respondent did not in fact kill John Boutts in defense of his father, honestly believing his father’s life was in jeopardy, or that he was in danger of receiving serious bodily injury at the hands of Boutts, then it would be your duty to render a verdict of not guilty.”

The law of self-defense was correctly stated by the court and the requests in relation thereto properly refused.

The jury were correctly charged as to the evidence relative to respondent’s previous good character.

Tbe requests relative to the law forbidding work on Sunday justifying the assault upon Boutts were properly refused. The court correctly charged that the propositions urged, based upon said law, did not apply to the case.

By the deed of the right of way deceased had a right to enter upon the land and work at clearing the drain. There was no evidence that on this occasion anything was being done not within the license granted. The court therefore properly refused to charge as to trespassing beyond the right of way of the drain.

We do not find reversible error in the case. The conviction is affirmed.

Grant, Blair, Montgomery, and Moore, JJ., concurred.


text:
    WILKINSON v. AUDITOR GENERAL.
    Mandamüs — Propriety—Tax Sale-Compelling Refund — Limitations.
    Mandamus will not lie to compel the auditor general to refund money paid for a void tax title where the petitioner might have demanded repayment more than 14 years before suit was brought.
    Mandamus by Arthur Wilkinson to compel James B. Bradley, auditor general, to refund the amount paid on an invalid tax sale.
    Submitted February 27, 1906.
    (Calendar No. 21,531.)
    Writ denied January 4, 1907.

      Dayton W. Glosser, for relator.

      John E. Bird, Attorney General (Charles W. McGill, of counsel), for respondent.
   Per Curiam.

Relator purchased at the annual tax sale of 1891 certain tax lands in Alpena county, paid the amount of his bid, and received a certificate therefor, but he never demanded or received a conveyance. In August, 1905, he learned that at the time of his purchase the land in question was State tax land, and was then advertised and sold as such to another purchaser. Upon the ground that this fact — the fact that the land was offered for sale as State tax land — avoided his title, relator asked respondent to refund the money paid on this bid, and because this request was not complied with he instituted these mandamus proceedings to compel such repayment.

We shall assume that relator is right in his contention that he obtained no title, and that it was the duty of the auditor general to comply with any proper application for the repayment of his money; and we dispose of this case on the ground that the statute of limitations has run against his demand. In the recent case of McRae v. Auditor General, 146 Mich. 594, this court held that the State had a right in mandamus proceedings to invoke the statute of limitations. There is this difference between that case and the case at bar: There relator demanded the money in controversy more than six years before he commenced suit. Here relator made no such demand, but had a right to make it and obtain repayment 14 years before he brought suit. We think this difference unimportant.

In Baxter v. State, 17 Wis. 588, the court held:

‘ ‘ That, if a party has a claim due from the State, he cannot neglect to present it until after the statute of limitations has run, and then sustain an action upon the ground that he had no right to sue until he had presented it.”

A similar holding was made in Hintrager v. Traut, 69 Iowa, 746.

Mandamus denied, without costs.


author: Blair, J.

text:
    CARNEY v. WHELAN.
    1. Officers — Police—Character of Tenure — Detroit Police Department.
    From a reading of Act No. 416, Local Acts 1901, it appears that the patrolmen of the Detroit police force, appointed under the act, are officers, and not mere employés, and their term of office is not less than one year.
    2. Same — Salary.
    Where the commissioner of police of the city of Detroit transmitted his estimate to the city controller providing for patrolmen at the rate of $1,000 per year, and the hoard of estimates reduced the allowance to $960 per year, which sum the council appropriated, the salary of patrolmen of the city was thereby fixed at $960 per year.
    3. Same — Furloughs.
    By providing in section 34a of Act No. 416, Local Acts 1901, that “the leave of absence” of policemen should be a furlough of 20 days, the legislature recognized an existing custom of the Detroit police department to grant an annual leave of absence of 10 days with pay, and thereby extended such leave to 20 days with pay.
    Certiorari to Wayne; Hosmer, J.
    Submitted October 9, 1906.
    (Calendar No. 21,796.)
    Decided January 4, 1907.
    Mandamus by Henry Carney to compel John B. Whelan and Charles Nichols, commissioner and secretary of police, to credit relator upon the pay rolls of the department with a sum deducted from his salary by reason of absence from duty with leave. There was an order granting the writ, and respondents bring certiorari.
    Affirmed.

      A lex. J. Groesbeck and Guy A. Miller, for relator.

      Wred H. Warren, for respondents.
   Blair, J.

Relator applied for a writ of mandamus to compel the respondents, who were, respectively, commissioner and secretary of police of the city of Detroit, to credit him upon the pay rolls of the department with the sum of $26.70, which had been deducted from his pay by reason of his absence from duty with leave for a period of 20 days. The application was granted by the circuit court, and respondents have removed the proceedings to this court by writ of certiorari.

Relator has served continuously as a patrolman on the police force of the city of Detroit since October 29, 1886. Prior to 1905 it had been the custom of the department to allow 10 days’ leave of absence each year, with full pay, to such officers as had not, by reason of sickness or other cause, been absent that length of time. In 1905 an act was passed by the legislature and approved by the governor on April 13, 1905 (Act No. 470, Local Acts 1905), amending the act providing a police government for the city by adding a new section, as follows:

‘ ‘ Sec. 34a. The leave of absence of each and every policeman and officer in said police department shall be a furlough of twenty days in each and every year: Provided, At least ten of the days of such furlough shall be consecutive.”

In July, 1905, respondent Whelan, as commissioner of police, issued a general order to the department that in granting leaves of absence or furloughs under the amendment of 1905 only 10 days would be granted with pay. In October relator applied for and was granted a furlough, and was absent 20 days, comprising the entire period of his absence for the year.

Rules 14 and 26 of the rules and regulations of the department are as follows:

“ Rule 14. No member of the police force should leave the department or be absent from duty without permission from the superintendent.
“Rule 26. Absence from duty of any member of the police force, whether with or without leave, shall be followed by forfeiture of pay for time absent, unless otherwise ordered by the commissioner of police.”

Relator contends that the amendment of 1905 conferred upon him the right to a furlough of 20 days, with full pay. Respondents insist that the amendment confers no right to pay, but leaves that subject to the discretion of the commissioner, which was lawfully exercised by the general order allowing 10 days’ pay.

The act to establish a police government for the city of Detroit, approved April 17, 1871, was radically amended at the session of the legislature of 1901 by Act No. 416 of the Local Acts of that session.

By section l'all powers and duties» connected with and incident to the police government and discipline of the city were vested in one commissioner of police, a superintendent, and other officers and patrolmen. The common council were authorized to appoint a commissioner of police, who should succeed to all the rights, privileges, and prerogatives lawfully pertaining to the then existing board of metropolitan police.

By section 5 the commissioner was empowered to appoint a superintendent, a deputy superintendent, a captain for each 30 patrolmen, one or more officers to act as detectives, one sergeant of police for each 50 patrolmen, an attorney, surgeon, one or more roundsmen, door man, janitors, and such patrolmen as may be deemed necessary or for whom compensation may be provided by the taxes authorized to be levied in the annual tax levy of said city for the support of said department.

“Said commissioner shall also have power, for cause assigned, and on a public hearing and on due notice, according to rules which shall be promulgated, to remove and suspend from office or for a definite time to deprive of pay, any member of such police force: Provided, That the superintendent, deputy superintendent, either of the detectives, attorney, surgeon, secretary and property clerk may be dismissed at any time at pleasure. Said commissioner shall also make rules and regulations for the discipline and government of said force, and shall cause the same to be published, and shall also make and promulgate general and special orders to said force.”

By section 7:

“Said commissioner shall assume and exercise the entire control of the police force of said city, and shall possess full power and authority over the organization, government, appointments and discipline within said city.”

By section 9 it is provided:

“That no person, except the superintendent, deputy superintendent, detectives, the attorney, the surgeon, secretary and property clerk, shall be removed from said force, except upon written charges preferred against him to the commissioner of police, and after opportunity of being heard in his defense. * * * Said commissioner of police may also at any time, in his discretion, and without charges or trial, reduce any officer from his rank, grade and pay, to a lower rank and pay, and either permanently or temporarily promote any officer to his position without regard to the relative rank or grade of such other officer. * * * The commissioner of police shall receive an annual salary payable from the treasury of the city of Detroit, in monthly installments, of the sum of $5,000 per annum. All other salaries and compensations to the officers, appointees and employés of the department shall be prescribed and determined by the commissioner of police and shall be paid semi-monthly to the persons entitled thereto. No member of the police force shall receive or share in, under any pretenses whatever, any present, fee, gift or emolument for police services, other than the regular salary and pay provided by this section, except by the consent of said commissioner of police,” etc.

Section 10 provides for the making of charges against members of the force and their trial.

By section 22 it is made the duty of the commissioner:

“To prepare and submit to the city controller, on or before the fifteenth day of February in each year, ah estimate of the whole cost and expense of providing for and maintaining the police department of the said city through the next ensuing fiscal year, which estimate shall, so far as practicable, be in detail, and shall be made by the controller before the common council at the annual estimate, such estimate, or so much thereof as the council shall approve, shall be submitted by the common council to the board of estimates of said city, and so much of the total amount thereof as shall be approved by the board of estimates shall be provided for in the general tax assessment by levy to be made on said city and collected with the other city taxes; said money when collected shall be paid in to the city treasurer, and shall be styled the police fund. * * * The amount of the estimate not approved by the council or board of estimates shall be deducted from the total amount thereof.”

, By section 26 the commissioner may require each member of the force to take the constitutional oath of office.

By section 31 it is provided:

“If said commissioner or any member of the police force during his term of office, accept or hold any office elective by the people or any other appointive office, or shall, during his term of office, be publicly nominated for any office, elective by the people, and shall not, within ten days succeeding the same, publicly decline the said nomination or appointment, he shall, in either case, be deemed thereby to have resigned his commission and to have vacated his office.”

By section 33 it is provided that the commissioner of police shall be a member of the board of estimates of said city.

It seems clear from the reading of the statute that the legislature contemplated that the patrolmen appointed under the act should be officers and not employés, and that they had provided for a term of office of at least one year. While very extensive powers are given to the commissioner, after he has appointed a patrolman in a given year, he has no authority to remove such patrolman, except, perhaps, in case of physical or mental incapacity to discharge his duties, unless after a hearing upon charges regularly preferred and reasonable opportunity to the patrolman complained of to be heard in his defense. The commissioner has no power to reduce or increase the salary of a patrolman as such, and, although he may reduce his grade and pay, until such reduction takes place, the patrolman is entitled to the compensation originally fixed by the commissioner.

In the case before us the commissioner transmitted to the city controller his estimates for said department for the fiscal year 1905, and among the estimates so transmitted was an''item for “356 patrolmen, at #1,000, $356,000.” This last-named item was allowed by the common council, but was reduced by the board of estimates to “ 356 patrolmen, at #960, $341,760,” and, as so reduced, was returned to the common council, which latter body caused said sum of $341,760 to be assessed, levied, and collected by general taxation and placed at the disposal of the commissioner of police. It seems clear that when the commissioner, in accordance, with the requirement of the statute, transmitted in detail his estimates for his department, including the item of 356 patrolmen, at $1,000, this constituted a fixing on his part of the salary of the patrolmen at the sum indicated. The board of estimates, under the act in question and its general powers, had authority to disallow any items or parts of items referred to it, and, having disallowed the part of the item of $1,000 for salary and fixed it at $960, the salary of the patrolmen for the ensuing fiscal year was fixed at the sum of $960. Attorney General v. City of Detroit, 113 Mich. 494.

It seems to us to result that, the act having provided for a term of office of at least one year and for a salary covering the term of one year and that the tenure of the office could only be terminated by charges and a hearing, it was the intention of the legislature that the term of office for which, the compensation was to be paid should be the time prescribed in the act for service, which was one year, with a furlough of 30 days. The wording of the amendment of 1905 is also significant of this intention. It had been the custom of the department for many years to allow officers whose records were favorable a leave of absence of 10 days, with pay. It is reasonable to suppose that the Detroit delegation in the legislature was familiar with this custom of so important a department, and that the amendment was framed with reference, in some degree at least, to such custom. The amendment itself would seem to indicate this. It does not provide apparently for something which had not theretofore existed, but for an amplification of a provision already in force. Instead of providing that there shall befurlough or leave of absence granted, it provides for the period of “the leave of absence,” as though such leave of absence were recognized as already provided for. Inasmuch as the leave of absence by custom was accompanied when granted by full pay during its continuance, the conclusion seems reasonable that the legislature intended that the longer furlough which it was providing for should also be accompanied by pay. We are of the opinion, therefore, that the circuit court did not err in construing the statute to provide for a furlough with full pay.

The judgment is affirmed.

Grant, Montgomery, Ostrander, and Hooker, JJ., concurred.