text:
    The People vs. George Vanderpool.
    In a prosecution for murder, it devolve upou the People to establish not only the fact of the killing, but that such killing was malicious.
    Malice may be said to be the spirit desiring harm or misfortune to another, without just
    The doflnitiou of murder, under our statute, remains tho same as at common, law.
    Tho corpus delicti must bo established by clear and uneqivocul proof, and this must be done by direct evidence when it can be made; or, when direct evidence cannot be made, then by circumstances of equal power.
    If circumst-mtial evidenco satisfios tho mind, then it is equal to positive evidence, because it produces the same effect.
    To warrant a verdict of guilty, the jury must find that tho theory of tho guilt of the prisoner flows naturally from the facts proved, and from all of the facts, and must be consistent with all such facts, and utterly inconsistent with any other theory.
    5© rendor any fact or circumstunce alleged by the prosecution, or attempted to he proven, f any value in establishing the guilt of the defendant, such fact or circumstance roust, not only be proven beyond all reasonable doubt, but it must be such a fact as is consistent with the guilt of tho defendant and inconsistent with his innocence.
    If the light drawn from any given fact, taken in connection with all the facts upon which it has a bearing, contributes no more to sustain tho theory ot guilt than of innocence •such fact should be rejected.
    So uncertain and unsatisfactory are our conclusions drawn from moral phenomena, that in. matters of great importance, especially such as involve the life or liberty of the citizen, w© should only give effect to such conclusions as are corroborative of other facts and circumstances.
    The rule to bo applied in weighing testimony, discussed. Also, the weight to be given to tho statement of the accu6t d.
    The reasonable operation of evidence of the previous good character of the accused, is to create a presumption that the party was not likely to have committed the act imputed to him; and inasmuch as it is the duty of the jury to find beyond a reasonable doubt, the guilt of the respondent before they should convict, it is immaterial whether such doubt is induced by want of testimony, or by the introduction of auy evidence, whether of good character or any other fact or tacts which the Court permits to go to ¿he jury.

      Reasonable certainty of the respondent’s guilt, is vhat the law requires to justify u conrlc tion — that degree of certainty upon which the jury would return to net in their own gravo and important coucorus.

      Kalamazoo Circuit,

      November, 1870.
    The theory of this case is sufficiently stated in the charge of the Court.

      Attorney General Dwight May, B. M. Cuteheon, ayid G. V. N. Lothrop for the People.

      D. Darwin Hughes and John Van Arman for the Respondent.
   By the Court,

Brown, J.

Gentlesiex of the Jury: — The People, by tin; public prosecutor, have informed, agaiust the respondent at the bar, charging him with having wilfully and with malice aiorethought, on the fifth day of September, A. 1). 1869, at the City of Manistee in county of Manistee, in this State, killed and murdered Herbert Field.

The theory of the prosecution is, that Field was murdered in the Bank of Manistee, by the respondent; and to support this theory they rely upon the establishment of certain facts which, they insist, have the effect to carry conviction to the mind, of the correctness of this theory.

The People do not claim that any positive or direct 'evidence has been given upon the main fact of killing, or as to who the guilty perpetrator is. These alleged facts they have sought to establish by what we call circumstantial evidence.

The Prosecution insist, among other things, that the effect of the dissolution of the partnership, and the withdrawal of Field’s capital, was to leave the respondent in a crippled, if not insolvent condition : that shortly after the return of the defendant and Field from the shoe shop, where they went to procure witnesses to then; agreement, into the hank, the respondent struck Field with some hammer-like weapon, inflicting the wounds claimed to have been found on Field’s head, and causing his almost instant death — that the shuffling sounds testified to by the witness Ramsdell, were the sounds of the assault and dying struggles of Field — that the respondent was ■ obliged to take off his pantaloons and vest, to hide the evidences of his crime — that he hastened' home as soon as possible, carefully taking the little dog with him to prevent his cries from giving alarm : that for the purpose of diverting suspicion, he carefully kept in the presence of his guests during] the afternoon and early part of the evening: that during the night he took the bleeding body from the bank to the river, having tied a weight to it, and so cast it into the .river: that almost as soon as daylight he went to the bank to obliterate the evidence's of his crime, and that his scrubbing, burning papers, clothes and carpet were all for that purpose: that his assertion that Field had taken some of his property and run away, were wilfully false and designed to divert suspicion from himself, as were also the alleged acts of hiding the gold, of concocting the “ Jim Nolan and Bill Brown letter,” and the alleged fraudulent alteration of the entries against Field, in the bank journal. This I believe to be a correct statement of the theory of the Prosecution, The respondent’s plea of “ not guilty ” puts in issue all the facts relied upon by the People in order to make out their case. And it now becomes your duty to say whether the facts in this case justify the allegations and conclusions of the prosecution.

In the administration of justice — in the determination of matters in cortroversy, the value of trial by jury is, for many reasons, considered invaluable, and especially is this the case where persons are charged with having violated the law.

It-devolves upon you, under the solemnity]©! your oaths, to say whether, the respondent, George Yanderpool, is guilty of the crime with which he is charged ; and it becomes my duty to instruct you as to the rules and principles of law necessary to aid you in arriving at a correct conclusion, from the fácts presented to you by the evidence. It is not the province of the Court to comment upon the facts, but only to furnish you, as I have indicated, the guides to aid you in arriving at a correct conclusion. Whatever may be my views as to the guilt or innocence of the accused, you are to act upon your own convictions. Indeed, it would be improper for me to indicate to you my impressions as to the facts. The Court must be responsible for the accuracy of the rules of evidence and principles of law to be submitted to you, and you are to be responsible ior their correct application.

It has been held in apparently well considered cases that when the People establish the fact of the killing, by the respondent, the law presumes that such killing was malicious. It is now recognized as the law in Michigan, at least,“that there is no such thing as the separation of the ingredients of the offence, so as to leave a part to be established by the prosecution, while as to the rest the defendant takes upon himself the burden of proving a negative. The idea that the burden of proof shifts in these cases is unphilisophical, and at war with fundamental principles of criminal'law, People vs. Garbut, 17 Mich. 22. I do not mean to be understood that it is incumbent upon the People to give direct proof, at the outset, of the malicious or criminal intent. To intend, is to fix the mind upon; to have a design; to purpose ; and as neither the purposes or volitions of the mind of one individual can be determined by another, except by the conduct and expressions of such individual, it follows that such conduct and expressions must constitute the means of inducing in the mind of one person the intent or purpose of another.

A man may kill another purposely and not do it maliciousli/. He may do it in defence of his person or his. possessions; and in such case it is not murder,-for there is no malice; no intent to do an unlawful act. Malice may be said to be a spirit desiring harm or misfortune to another without just cause. It is defined to be “ a depraved inclination to mischief; intention to do an act which is wrongful, without just cause or excuse ; a wanton disregard of the rights or safety of others;” and “ malice aforethought” is “'malice previously and deliberately entertained.”

The main facts iri this case are, 1st, The killing of Herbert Field, and 2d, Whether the respondent is guilty of such killing, in the manner and form set forth in the information.

The humane policy of the law is, that every man is presumed to be innocent until proven guilty. Indeed, the well-being of society, and the hajipiness of the people require that there should be that mutuality and confidence in the integrity, honesty and purity of each individual member, which assumes that every man is upright before the law. You will keep this in view, when you retire to your room, divesting yourselves of ' every prejudice.

The third request of counsel for respondent correctly states this proposition as follows:

•'The legal presumption is that the prisoner is innocent of the crime charged, and the burden is upon the prosecution of proving every requisite to establish his guilt, and nothing can be taken by implication against him.’’

It was your duty, in entering the jury box, to look upon George Vanderpool as an innocent man, and as still innocent unless the People have made the contrary clearly to appear. You will now proceed to enquire whether the People have proven that he is guilty in the manner and form as they have charged.

To constitute the crime of murder, there must not only be a killing, but the person charged with the offence must be shown to have committed the act wilfully and maliciously. Sir Edward Coke defines murder, at common law, as being “ Where a person of sound memory and discrimination unlawfully killeth any reasonable creature in being, and under the King’s peace, with malice aforethought, express or implied.” In other words, Gentlemen, the act must have been the offspring or rather the dictate of a wicked, depraved and maglignant heart.

By using the word malicious, in this connection, I do not. mean that it is necessary that he should have entertained any spite or malevolence towards the deceased ; but he must have had an evil design.

The definition of murder, under our statute, remains the same as at comon law; and all that our statute does is to divide it into classes; and 1 charge you, Gentlemen, that in order to find a person guilty of murder in the first degree, you must find that he killed the deceased either by poison, or lying in wait, or, that it was some other kind of wilful, deliberate,' and premeditated killing; or that the killing w as done while the ac cused was engaged in the prepetration or attempt to perpetrate one or more of the four offences mentioned in the statute: to--wit, arson, rape, robbery, or burglary.

Any slaying without deliberation, or where the intent was to commit another and lesser injury, is either murder in the second degree or one of the lighter grades of homicide.

Homicide has been defined as “the destruction of the life of one human being, either by himself or by the act, procurement, or culpable omission of another.” Murder is the killing with criminal intent.

The first thing you are to determine, is, whether Herbert Field was killed, as alleged in the information. If you shall be satisfied upon this point, that such- was the case, you will then inquire who inflicted the wounds causing his death.

“The fact that Herbert Field is dead and that he came to his death by the criminal act of another, or in other words the corpus delicti must be established by clear and unequivocal proof, and this must be done by direct evidence when it can be made; or when direct evidence cannot be made, then by circumstances of equal power.”

As I have already intimated, the evidence upon which it is sought to establish and support the allegations in the information is circumstantial, and what I desire to be understood in saying that these circumstances must have equal power with positive testimony, in order to warrant a conviction, is,-that they must be sufficient to satisfy the mind beyond a reasonable doubt. This amount of power is required in the case of positive evidence; and the same amount of power, to wit, sufficient to satisfy the mind beyond a reasonable doubt is required in the case of circumstantial evidence. I have been requested to insUoct you that “ the leading characteristic of circumstantial evidence is that it is a substitute for positive evidence, and when as in this case, it is solely relied upon, it should be so strong as to produce upon the mind of the jury a conviction, equal to that of positive evidence, or the prisoner must be acquitted.”

This is true, Gentlemen, but what is meant by being equal, must have reference to Jits effect. If circumstantial evidence satisfies the mind, then it is equal to positive evidence, because it produces the same effect. The object of all evidence is the discovery of truth, and whether this is accomplished by circumstantial or positive evidence, the result being the samé, the means producing it must be the same in power. |If the one accomplishes the same thing as the other, then they are equal

As the main facts alleged in this case, on the part of the Prosecution, depend for their establishment upon the existence of collateral facts and circumstances, it is highly important that you should understand clearly what is meant by circumstantial evidence.

We often speak of men and things as occupying an entirely independent position; and yet, our observation and experience teach us that every fact is dependant upon some other fact. It is true that the relations of persons to each other or of one thing to another, may be so very remote as to justify the conclusion that there is no direct dependence of the one upon the other. Where, from our experience and observation, we are satisfied that one fact may exist as well without the existence of a certain other fact as with it, we then speak of those two facts as independent of each other. But when, in relation to certain established facts, human observation andbxperence teach us that certain other things maybe deduced and presumed from them as a natural and very probable conclusion, so as to gain the assent of an inteligent and conscientious person, we are justified in permitting the mind to settle and rest upon the conviction which the established fact produces.

When we rely upon one fact to establish another, the fact relied upon is styled an evidentiary fact, — a fact furnishing evidence of the existence of some other fact. In our researches after truth, it often happens that we are compelled to group together various facts which, when so grouped, constitute a body of evidence carrying conviction to the mind of the establishment of truth.

In this connection it is proper that I should direct your at tention to what we call presumptions. A legal presumption is £( the taking of a fact or proposition to be true before it is positively shown or certainly known to be so; an inference as to the existence of one fact not certainly known, from the existence of some fact known or proved, founded on a previous experience of their connection.” In such cases the presumption is assented to as a fact — is taken for granted until the contary is made to appear.

Sometimes circumstances are such as to show that they necesarily attend the fact presented. At other times these circumstances are more remote, and the truth of the theory sought to be established is not so easily arrived at; and careful, intelligent and patient investigation, coupled with the exercise of our reasoning powers and aided by our experience and observation are required. These circumstances when resorted to as evidence are called certain or uncertain-certain where the conclusion in question necessarily follows: as, where a man had received a mortal wound, and it was found that the impression of a bloody left hand had been made on the left arm of the deceased, it was certain some other person than the deceased must have made such mark. 14 How. St. Tr. 1324. But it is uncertain whether the death was caused by suicide or by murder, and whether the mark of the bloody hand was made by the assassin, or by a friendly hand that came too late to the relief of the deceased.

As to those matters which we frequently associate in our minds, the mere suggestion of one presents the other to the mind almost instantly. We see a human footprint, and as an explosion follows the igniting of gun powder or as thunder follows the lightning, so, following the view of the footprint is the conviction upon the mind that it was made by some hnman being. In the case I have just put, the footprints would indicate that some human being had been there, but they would not, standing alone, point to any particular individual. Some other fact or circumstance would be required to direct the mind to the person whose feet made those inpressions; and those other facts might, perhaps, require the laborious process and exercise of the reasoning faculties and powers. Our intellectual processes are sometimes rapid, so rapid that we are unable to trace the connection between the act of the judgment and the train of reasoning of which it is the result. Wills on Cir. Ev., 31.

Sometimes when the process is less rapid, we may fancy that we have weighed carefully every fact composing the links in the chain which couples and connects the theory with the main fact, and makes that appear real which at first appeared but theoretical. But in weighing these collateral facts we must not forget the frailty of humanity; we must not forget that we are creatures of passion and prejudice. The cause of Truth and Justicd demands, especially in the investigation of questions of great magnitude, that we should examine ourselves carefully and see to it that we are uninfluenced by any considerations which would tend in the slightest degree to interfere with our intellectual processes. We must repel every suggestion which may be presented to the mind as to what others may think or say of our conclusions, or as to the consequences of our conclusions. The only desire by which we should be actuated is the desire to do right. Truth is right, always right, and the moment we attempt to compromise it, we do it violence and disgrace our manhood. Sometimes truth falls into the pit of obscurity and is covered up by the subtle web of falsehood. It is the duty of jurors to penetrate the darkness and obscurity into which it has fallen, and brushing aside the webs and toils which encircle it,, bring it hack to light again. That you may he the better prepared to do this, it is important that you take the rules of evidence as established and sanctioned by the experience and wisdom of ages, and rely upon and he guided by them as is the mariner by his unerring compass.

Having explained to you what is meant by circumstantial evidence, I now call your attention to the rules by which I trust you will be guided in your deliberations. One of these rules iff that from the facts proved, the theory contended for must naturally flow. In the application of this rule you will remember that “ to warrant you in finding a verdict of guilty, you must find that the theory of the guilt of the prisoner flows naturally from the facts proved, and from all of. the facts; and must be consistent with all such facts; and if you find any one of the establishtd facts to he inconsistent with the guilt of the prisoner, then it is your duty to acquit him, although all the other, facts may he consistent with and point to his guilt.” That is, it you find that while numerous facts point to tlieguiU of the accused, and an other fact or facts are inconsistent with the theory of guilt., then you could not convict; for, truth is.always consistent with itself. To illustrate : Suppose that aU the circumstances of a given case should point to a certain person as tha murderer, except that the wound was evidently indicted with tha right hand; and it should appear that the right hand of the accused was paralyzed so as to render it powerless; here would be a fact inconsistent with the theory of guilt. Take another illustration : Ten men swear positively that they saw a certain person stab and instantly kill another; that the assassin was barefooted and immediately fled accross a recenty harrowed field, where, on account of a recent rain, and the peculiar nature of the soil, every foot-print could be easily traced; that the traoks or impressions thus made weie followed from the very spot where the homicide was perpetrated and in the precise direction taken by the accused, to the house in which he was shortly after arrested, while in the company of four or five associate». The-foot-prints indicate that they were made by feet both perfect in form, with all the toe marks well defined. An examination of the accused developed the fact that he has no toes upon one foot, and the evidence shows that his foot has been thus deficient from the day of his birth. Here is a fact dev'oloped vnmuütent with the theory of the prisoner’»• guilt — a tact which must overturn and defeat the effect of the positve testimony of - tea men; It was a case of mistaken identity, or each and all of the ten men committed willful perjury. So,. Gentlemen, you will perceive that one fact, inconsistent with the theory ot guilt, is as conclusive as a dozen ; and such a fact has the same effect in defeating the effect oi positive testimony as circumstantial evidence. This being so, the position of learned-counsel forth» respondent is strictly corrrect, to-wit, that “ in order to convict the prisoner, the jury must find that the facts proved are all consistent with the theory of guilt, and they must . also, find that they are inconsistent with the theory of his innocence, and if the facts in the case may be reconciled with innocence, and also with guilt, or in other words if there is a single-hypothesis which will reconcile the facts, besides .that of guilt, then the prisoner should be acquitted."

I have been requested, to advise you that,. “ Tfie value or.effect of criminative facts and circumstances, depends not only upon their consistency with the guilt of the accused, but their inconsistency with the thebry of his innocence,(and no fact or circumstance should be considered as criipinative or allowed to exert any influence against the respondent unless the jury can clearly see that, such fact or circumstance is not only entirely consistent with the theory of guilt but also inconsistent with the theory of innocence.”

To render any fact or circumstance alleged by the Prosecution or attempted to be proven, of any value in establishing the guilt of the. defendant, such fact or circumstance must, not only be.proven beyond all reasonable doubt, but it rmust-be sucha feet as is consistent with the guilt o'f the defendant and inconsistent with his innocence.

“To justify a conviction upon circumstantial evidence, each of the circumstances relied on by the Prosecution and material to a conviction must be proven and established with the same degree of certainty with which the. guilt of the respondent is required to be established, and no fact or circumstance alleged by the Prosecution is to be considered at all by the jury, in determining the question of guilt or innocence, unless the truth of said fact or circumstance is fully established by credible evidence to the entire satisfaction of the jury, and beyond all reasonable doubt.”

“ In determining the question of guilt ot innocence, the jury are bound to exclude entirely from their consideration every fact and circumstance alleged or sought to be proved by the Prosecution, which is not proven to a moral certainty and beyond all reasonable doubt.”

It is, perhaps, proper that I should add to these propositions; a few suggestions. It is a well Settled rule “ that the circumstances from which the presumption of guilt is to be drawn, must themselves be fully established.” That is, each fact which is necessary to the conclusion of guilt, must be distinctly proved, because they are the facts from which the main fact is to be inferred. Each o( these essential facts and circumstances must be proved in the same manner and to the same extent, as if: the whole issue rested npon the proof of each individual essential circumstance. I think Judge GeddiB, of the Richland Common Pleas Court, of Ohio, in the recent Robinson-Lunsford murder case, correctly stated that “ the rule under consideration does not require that every circumstance which the State attempts to prove must be so established, because it may and often does happen in the trial of a case based on circumstantial evidence, that the proof attempted fails in some respects. Just so far as it does fail it must be rejected.

What you are to-understand, therefore, is that only such facts as have been sufficiently proved shall be taken into consideration in arriving, at a conclusion as to the guilt or innocence of the defendant. You should determine then what circumstances are proved and what are not proved, and exclude from your minds and consideration all such as are not satisfactorily established.

We may infer one fact from another; but sometimes the existence of one fact does, standing alone, appear consistent with two very different conclusions. For instance, the track of a horse, while it suggests the olass of the animal, it may not indicate til. e color of that animal. It may bo the track of the male or female. Hence while you would be warranted in saying it was the track of a horse, you would not be justified in concluding, from that fact alone, what was the color or sex of the animal.

If you find a fact, which, considered in connection with all its surroundings, is as equally consistent with innocence as with guilt — that is, if the light which you draw from it, taken in connection with all the facts ppon which it has a bearing, contributes no more to sustain the theory of guilt than of innocence, then you may reject it.

I have been requested, on the part of counsel for the respondent to instruct you in relation to the proper effect and bearing of certain facts upon each other. One of these requests is as follows:

“ If the jury should be satisfied by the evidence that' during the afternoon or night of the 5th of September, Herbert Field was wilfully murdered, and that during the forenoon of that day, he went with the defendant alone into the bank building occupied by said Field arid respondent, and that the respondent has failed to prove that Field ever left the building alive, still the jury ought not, from such failure, to infer that-Field did not leave such hank alive.’’

This, if properly understood, is correct. If Field was wilfully killed in the afternoon or night of the 5th of September, in the bank, the mere fact that he went into the bank with the defendant alone in the forenoon, added to the fact that the defendant has failed to prove that he ever came out alive, would not be sufficient to warrant the inference that he did not leave the bank alive; but it is, after all, for you to say whether, combining these with other and additional facts, you believe he ever left the bank alive after he returned' there with the respondent from the shoe shop.

I have also been requested to advise you that,

“Although you believe from the evidence that Herbert Field was, on the afternoon or night of the 5th of September, 1869, murdered in the bank building at Manistee, occupied by Field and the respondent, and that the defendant was with said Field in the said bank alone from about eleven to twelve o’clock of said day, and the evidence fails to show that any other person entered the bank after the defendant left the same, the jury ought not to infer from the mere absence of proof of the fact, that no one else did enter said bank.”

This is true, Gentlemen, but is only material to this issue upon the theory that Field was killed in the afternoon; and I leave it for you to say, from the testimony, what are your convictions in this regard. If he was killed in the afternoon, you will perceive the pertinency of the instruction. If he was not, you will perceive its irrelevancy.

I am also requested to advise you that, “Although the jury should be satisfied that Herbert Field did, on the 5th day of Sept., in company with the respondentalone enter the bank building at Manistee) occupied by said Field and respondent, at about eleven o’clook in the forenoon, and that respondent there remained alone with said Field until about twelve o’clock of that day, and then left the bank, and although the evidence, fails to satisfy the jury that Field was ever afterwards seen alive, and although the juif should be further satisfied by the evidence, that after the said Field and respondent entered said bank, and before the seventeenth of said month, Field was wilfully murdered, still such evidence merely showing that respondent had such opportunity to commit the murder, and absence of evidence showing that some other person had such opportunity, is not sufficient to justify the inference that respondent was the murderer. To justify suoh a cbnclusion, it is necessary to show further to a reasonable certanity that no other person except respondent had an opportunity to commit the murder.”

This proposition is also correct if properly understood. It is not my purpose to misinterpret it, but if my interpretation of it should not be warranted from the language used, then such interpretation must be taken as a modification of the request. It is this: The mere fact that Vanderpool had the opportunity to murder Field is not sufficient to justify the conclusion that he did murder him, unless it appear that nobody else had the opportunity. But if you find that the respondent not only had the opportunity, but the motive, and if you find further and other facts naturally pointing to him as the guilty party, then, ibwould not be necessary to show that no other person had the opportunity but in such case it would be incumbent to show, to a reasonable certainty that no other person did kill him. Thus far and no farther would the prosecution be bound to go.

You may, perhaps, ask why your investigations and deliberations are to be restricted by rules. They are not, éxcept. so far as is deemed necessary to enable you to discriminate between truth and error. These rules are by no means complicated. Thay are “the practical maxims of legal and philosophic sagacity and experience, matured and methodized by a succession of wise men, as the best means of discriminating truth from error and of contracting as far as possible the dangerous power of judicial discretion. They have their origin in man’s nature as an intellectual and moral being; and ‘are founded in the charities of religion, in the philosophy, of nature, in the rules of history and in the experience of coinmon life/ ” 20 St. Tr. 966; Wills on Cir. Ev. 245.

The relation of one fact to another; their coincidences and the inferences which we draw Am them are matters of great interest to the careful observer. Some of these relations and coincidence* are of a physieial and others of a moral nature; and to approximate (o correct conclusions we must resort to both. As to those circumstacnes denominated physical, we more readily draw our conclusions than from moral circumslanees ; and the conclusions from an investigation and contemplation of the former, are usually more satisfactory than the latter, because the feelings and passions which actuate men, are exhibited in such different degrees in different 'individuals. One man, in the hour of severe trial, gives way to grief and becomes the creature of dispair ; another, will, in the darkest hour of adversity, when the waves of affliction break over him, be joyous and hopeful. And yet, the ordinary feelings and passions by which different individuals are actuated, are so similar, that observation and experience often enables us to gather, with a considerable degree of certainty, from the conduct, sayings and- acts of a person, that which tends to carry conviction to our minds that such acts, conduct and sayings are induced by a consciousness of guilt. We knew that men are actuated by motives. We know that there is some moving cause — some influence — that impels the mind to act. We know that hatred^ revenge, jealousy and cupidity, are some of the motives which prompt men to desperate acts ; and when a person is accused of crime, it is natural to enquire after the motive by which he was, if guilty, actuated; and in determining who the perpetrator is, we associate evidences of motive with other circumstances and apply our knowledge of human nature to it. But it is all important that in weighing evidences of motive, we should be sure that our judgment rather than our suspicions should control in forming our convictions. So uncertain and unsatisfactory are our conclusions, derived from moral phenomena, that in matters of great importance, especially such as involve the life or liberty of the citizen, we should only give effect to such conclusions as are corrobora-, ted by other facts and circumstances. Solomon’s knowledge of the power of maternal love enabled him to judge righteously in determining to which of the two harlots the living child belonged, and that knowledge was an infallible criterion of truth. Bible, 1 Kings, 3 ch. 16 — 28 V The nineteenth century, however, has no Solomons, and we should weigh well the presumptions afforded by moral phenomena before we act upon them as morally certain, or ■as even sufficiently satisfactory to amount to a high degree of probability.

In the application of circumstantial evidence, the facts relied upon, whether established by moral or physical evidence, or both, must not only be consistent with guilt, and harmonize with that theory, but they must be such as to exclude, to a moral certainty, every reasonable hypothesis, but that of the defendant’s guilt of the crime imputed to him. You must group together all the facts and circumstances of the case, and then, applying to them the legal tests, enquire whether, on the whole, they carry conviction to the mind that the respondent is guilty.

In investigating truth, through the instrumentality of circumstantial evidence, the process has been correctly styled “ the process of shedding light upon darkness.’’ The object which it is sought to bring to view, is enshrouded in darkness, and each fact relied upon to reveal it, is a light. There may be hundreds of these lights, no one of which would be sufficient to penetrate to the object; but the result is accomplished if the combined illumination reveals the hidden object.

Before referring to the amount of proof required to justify a verdict of guilty, I desire to call your attention to the weight to be given to the testimony.

It is impossible to lay down any precise rule to govern in all cases. Indeed, there is nothing arbitrary about it. You are to take into consideration the appearance of the witnesses on the stand, their apparent interest or anxiety in the result of the case, the probability and’reasonableness of th'eir statements and their means of knowledge. You are also to scrutinize ■closely to detect, if possible, whether the witness has a proneness to distort and color the facts — whether ¡he entertains a decided opinion as to the main fact ¡^controversy and whether or not his testimony is unduly guarded or restrained so as to disclose only such facts within his knowledge, as tend to support one side of the issue. The zeal and activity of a- witness in collecting testimony for a party, as well as the contribution of funds to carry on the litigation, are considerations tó be borne in mind in giving due weight to the testimony. In view bf all these considerations, you are to ask yourselves what con-vi'ctions are produced by the testimony. In short, you are to resort to your experience as the result of your every-day associations with your fellow men, and then answer, each for himself, the question. “ What do I believe from the testimony

By the law of Michigan, the accused is permitted -to make his statement, though not under the solemnity of an ‘oath,’’ arid the question of his credibility is left to the good] sense and judgmental the jury.

His interest and the magnitude of that interest, the consistency of his statements, are to be considered by you and you must pass upon jt according to the impression it makes upon your minds; or, to use the language embodied in' the request of the learned counsel for the the respondent :

“ The statement of the prisoner although not under oath, is for the consideration of the jury,^ and [they may give it such credit, in whole or in part, as under[all the circumstances they may think it entitled to; and they may believe it in preference to unimpeached sworn testimony, if, under all the circumstances, and in view of all the evidence in the case, they believe it entitled to greater weight.
In this connection I call your attention to the statements and explanations of the respondent as to certain facts and occurrences, and advise you as requested, that “ If the jury do not find from evidence other than the statement of Vanderpool, that he burned the carpet and clothes, they [must consider the reasons and explanations which he gave for burning them; and if those reasons and explanations have not been contradicted by evidence given by the prosecution, and are not improbable in themselves, they must consider those reasons and explanations to be true.’’

You are not to understand by the word “ contradicted,” as used in the request I have just submitted to you, that an absolute denial of the truth of his explanation and statement of ieasons is required, but you may consider any well established feet which is inconsistent with the truth of his statement as a denial of the truth of such statement, explanations and reasons.

In reference to the character of the defendant in criminal cases, Lord Ellenborough held that in doubtful cases, evidence of the previous good character of the accused is highly important, and if it hangs in even balance, good character should make it preponderate in favor of the defendant. Rex v. Davison, 31 St. Tr. 217. Such is undoubtedly the law. The reasonable operation of such evidence is to create a presumption that the party was not likely to have committed the act imputed to him; but which presumption, however weighty in a doubtful case, can but be irrelevant and unavailing against evidence which irrefragahly establishes the fact.” Wills on Cir. Ev. 131. Perhaps the language of Lord Ellenborough would not, even by implication extend the rule far enough, I think right reason would indicate the rule to be, that in all cases where evidence of the previous good character of the accused begets in the minds of the jury a reasonable doubt as to his guilt, they should acquit. I can see no reason or sense in making any distinction between the effect of reasonable doubts of guilt, whether induced by want of testimony or by the introduction of any evidence pertinent to the issue. The question is, “ Do the jury entertain a reasonable doubt ?” And it is immaterial whether that doubt has existed from the beginning of the trial, or whether it has been induced by any kind of evidence offered by the respondent, which the Court has permitted to go to the jury.

Much has been said during the argument, in relation to the kinds of evidence, and as to the effect which they should have upon the mind. You are not to overlook the fact that the consciousness that the law punishes offenders, induces persons who commit crime to avoid publicity; and the general rule is, that the greater the crime, the greater the secrecy with which it is perpetrated. In such cases positive evdience cannot be furnished. To require it, in order to secure a conviction, would be to throw wide open the doors to crime, and would work a dissolution of civil society. The learned Judge in the Robinson-Lunsford murder case already referred to, in referring to circumstantial evidence, correctly says: “ Nor has experience shown that such evidence cannot be relied on, under proper rules and restrictions, and when used with proper oare, as leading to safe and Satisfactory results.

“ It is true that, absoluté perfection does not' belong to the works of man, in any of the departments of human life, and as a result we find each of these modes of proof, possessing disadvantages as well as advantages, and it is not easy or essential to compare their exact relative value. The advantage of positive evidence is that it is' the direct, positive testimony of a witness to the fact to be proved, who, if he speaks the truth, saw it done, and the only question is whether he is entitled to belief. The disadvantage is that the witness may be false and corrupt, and the case may not afford the means of detecting and exposing the falsehood.

“ In the case of circumstantial evidence, on the other hand, the witnesses testify not to the ultimate fact to be proved, but to a number of intermediate facts from which it may be inferred. The testimony of the witnesses, as applied to the intermediate facts is subject to the same causes of error, as if they were ultimate facts. And an aditional disadvantage attending this class of testimony is that a jury has not only to weigh the evidence of facts, but to draw just conclusions from them.

“But circumstantial evidence possesses certain advantages not to bejoverlooked In the actual occurrances of human life nothing is inconsistent. All the real circumstances in any event which actually transpires, must be consistent with each other, and harmonize perfectly. Everything that really does happen is consistent with all its parts. In a detailed account of a transaetio'n where all the surrounding facts are made to appear minutely, and assume each a place in the uarative, if there be any one or morfe which have been fabricated or misstated, the fact so falsely stated must stand alone — it cannot agree with the others, and make a consistent whole, because it is false — it never had an actual existence and is improperly there.

“ Usually where the evidence is circumstantial, there are numerous witnesses testifying to a- great variety of facts and circumstances, some of which may appear immaterial at first, and whose true relation to eaoli other cannot be perceived until they are all grouped together. And thus the chances of a fraudulent combination of witnesses to misrepresent the fact, is, greatly diminished.

“ Human ingenuity is not equal to the invention of a series of circumstances, each agreeing perfectly with the others, and all agreeing with all other known collateral circumstances. When, there, fore, the circumstances proved are numerous, and testified to by different witnesses, and they together form a connected ohain of circumstances, each and all concurring to establish the hypothesis of guilt, and to be accounted for on no other reasonable hypothesis, the mind may be led to inferences and conclusions as strong as those arising from positive testimony. And the danger of error does not arise so much from the employment of this kind of proo as from the want of correct understanding of its nature and uses-"

The question as to how much proof is required to justify a verdict of guilty'should, as next in order, be considered. And upon this point have been requested to say to you that “to justify a conviction of the respondent, it is not sufficient that there is a preponderance of evidence in favor of guilt, even although such prer ponderence should be so great as tp create, in the opinion of the jury, a strong probability of guilt. The- guilt of the respondent must be proved to a moral certainty, and to the exclusion of all reasonable doubt.” 3 Gr. 29, n. 2.

The guilt or innocence of the prisoner is pot to be'determined upon amere preponderence of the proof. This-is the rule in-civil causes, but in this case the prisoner must be acquitted unless the evidence removes every reasonable doubt of. his guilt from the minds of the jury; and in cases of doubt it is safer to acquit than convict.”

In the application of these legal propositions you are to understand that what we mean by a preponderance of evidence in favor of either party, is, that the reasons for believing -that what one jjarty claims is true, are stronger, and more weighty than for .believing otherwise. Thus, if you were trying a civil cause your virdict would be in accordance with the mere inclination of your convictions as produced by the evidence. Holding in your hands the scales of justice, if they perponderated one grain either way, that would indicate for which party your, verdict should be given. If .they perponderated neither way, but hung, evenly balanced, your virdict would be for the defendant; for, nothing would be proved, and the plaintiff’s case would remain where it was when he commenced. The rule however, as already announced to you, is different in criminal cases. You must, in order to convict the respondent, be satisfied of his guilt beyond a reasonable doubt. And here again I am constrained to quote from the learned judge who delivered the instructions in the Robinson case: “ What then should be the state of mind of a juror to require or permit him to oppose a virdict of guilty on the ground of reasonable doubt f In the first place, it must not be because he thinks it possible merely that the defendant is not guilty. The mind might in almost every criminal case feel that^the^case was subject to possibility of mistake. Almost everything relating to human affairs and depending on moral evidence is open to possible doubts. Hence the rule does not require absolute mathematical certainty. “Nor would it be a reasonable doubt if it results from” any consideration unconnected with the duty imposed by your' oath — as if it should be produced by undue sensibility in' view of the conse. quences of your virdict in a capital case. A mere speculative doubt excited in the mind against the evidence¿.from any cause, as a pretext for acquittal is not a reasonable doubt. The doubt should , not be the result of trivial and fanciful suppositions or remote con* jectures as to passible states of fact, differing from that established by the evidence. Again it must not be a captious doubt, or one based, oh suspicion.

Reasonable certainty is what the law requires, and it may be that degree of certainty upon which you would return to act in your own grave and important concerns.
“ If at the close of your investigations, after exhausting every means within your reach to know the truth, when all the facts upon both sides have been faithfully examined — when you have fairly and honestly exercised the best powers of your mind to know the truth, without any desire to find a doubt, or exclude one, you Btill find your minds in a condition that you cannot say that you have an abiding conviction to a reasonable certainty of the truth of the charge, then you must acquit.
“ But if after such diligent and mature deliberation, you find the evidence sufficient to convince your understanding and conscience, to such a degree of certainty that you would be willing to act upon it in matters of the highest importance to yourselves, then you should not hesitate. Thus you see it must be a real, well grounded doubt, fairly and reasonably entertained after proper effort is made to know the truth.”

Now, Gentlemen, I have endeavored to discharge my duty faithfully to the People, faithfully to the respondent. I have stated to you the rules of law applicable to this case as I understand them. You are to take these rules as guides in your deliberations. Apply them properly to the facts in the case. If you do this you will have discharged your duty faithfully,, and I trust satisfactorily.

If you should find the respondent guilty, the law requires you to specify in your verdict the degree oí the respondent’s guilt. I understand counsel to agree that if guilty at all, your verdict should be, “guilty of murder in the first degree.” Now Gentlemen, remembering and guided by the results of your experience in your intercourse with your fellow men, and your knowledge of human nature, you will review the testimony in this case, without fear or favor. You will not forget that while you hold in your hands the liberty of this man, who, in the morning off life is called upon answer for the alleged crime of murder, you also, for the time being, have confided to you the interests of the people; and under the solemnity of your oaths, you are to say whether George Vanderpool is guilty. The law is no respecter of persons; and when a crime has been committed', the well being of society and the safety of the people demand that the officer of the law pursue the offender, and, whether he be found in the palace, reveling in the lap of luxury, or, in the lowly cottage, basking in the sunlight of a happy home, enjoying the society of loved ones, in the immediate presence of an affectionate, constant wife — I say that the people demand that their officer bring the offender to the temple of justice to reoeive his just reward. You are to determine the truth,in the premises, and there your duty ceases. You are not to look to consequences. Take this case, Gentlemen, discharge your duty to the. prisoner and to the public; and render such a verdict as shall* satisfy, your consciences, such ás will satisfy you now, a«d as will enable you in the great day when we must all appear before the Judge, from whose decree theie is no appeal, tó say with truth, “ I discharged my duty to myself, to the people of the Commonwealth, and to George Vanderpool.


source: Caselaw Access Project

author: Brown,. J:

license: Public Domain

text:
    James M. Longwell vs. Levi R. Day.
    By the provisions of nil© 79 the plaintiff is nót required to make proof of the execution of certain instruments or of the’ hand-writing of the defendant, unless the defendant or some one in his behalf shall file and serve a copy pf an affidavit denying the Bame. It is a substantial and sufficient compliance with this rule if the defendant file and serve a copy of an affidavit which, though not positively denying the execution of the instrument, sets up facta-which if true, necessarily carries the same conviction to the mind as s would a positive and unequivocal denial.
    Where a person is induced, through fraud, to sign an1 entirely different instrument from what ho intended, such instrument is to be treated as a foro-ed instrument,and as creating no liability upon the signer.
    If A sign a bond undertaking to discharge certain duties, or in case of default, to pay a certain sum of money, and subsequently so much of the paper.as contains the conditions on which the money is to be paid is detached, without the knowledge or’ consent of the obligor, so as to make his undertaking to pay money to appear to be absolute, this i« such an alteration as^amounts to a forgery, and oo recovery can' be had upon such promise, even by a bona fide holder.

      Van Buren Circuit,

      Nov., 1870.
    The alleged facts in this case sufficiently appear in the charge of the Court.

      Stevenson and Barnwrn and N. A. Balcfi., for Plaintiff.

      Arthur Brown and G. W. Lawton, for defendant.
   By the Court,

Brown,. J:

Gentlemen of the Jury: — The plaintiff in this action seeks to recover of the defendant upon a certain promissory note, which reads as follows:

“ $200. March 13th, 1869.
One year after date, I, the subscriber, of Porter Township, County of Yan Burén, State of Michigan, promise to pay Webster & Kimball, or bearer, Two Hundred Dollars-cents, Yalue received, with ten per cent interest.
P. O. — Porter. Levi R. Day.”

The defendant has filed an affidavit setting forth what he claims were the circumstances under which he was induced to sign'the instrument. He does not deny- bu£ that the signature is his. He however claims in his affidavit and in his testimony that one Lester Holcomb came to his, defendant’s residence, in Porter, about the 13th day of March, 1869, representing himself as the agent of Webster & Kimball, dealers in a certain patented machine called the “Sulky Wheel Cultivator,” and as desirous’of, constituting the defendant an agent to introduce and sell the machines in the' Township of Porter — that Holcomb required of the defendant a bond in the sum of two hundred dollars for the faithful execution of his duties as such agent; which bond, he alleges, Holcomb then and there drew up, or at least a paper which he read to the defendant purporting to be a bond, and which the defendant signed. The defendant furthér alleges that Holcomb gave him a power of attorney to act as such agent. He also alleges in his affidavit “ that at no time before, on or after the said 13th day of March, A. D., 1869, did he write his name to or enter into any contract or obligation of the nature, tenor and effect, knowing it to be such, as that set-forth in the said plaintiff’s declaration” — that if he did sign the instrument declared upon, he so signed it supposing he was signing the bond agreed upon.

The plaintiff claims that he purchased the note before maturity, having no knowledge of the circumstances under which' it'was given.

The defendant insists,

1st, That'he never signed the note as such, but that it was attached to and constituted a part of the bond executed by him to Webster & Kimball; and being a part of such instrument, it could have ho validity or vitality when detached.

2d, That if not absolutely void, yet being procured by fraud and without consideration, the payee could not recover upon the note; nor can the plaintiff, who purchased the same before maturity, if he had knowledge of the alleged fraud or of facts which made it incunfbent upon him to enquire into the considerations and circumstances attending the execution of the note.

The affidavit filed in the case, and to which I have already called your attention does not, perhaps, in direct terms deny the execution of the note. At least it does not allege that the paper offered in evidence was not signed by the defendant; but the allegations are such as that if true, would carry conviction to the mind, that he did not sign the note while in its present condition, but that he signed what purported to be a bond. By provisions of Circuit Court rule number 79, the plaintiff, in a case like this, is not required to make proof ofthe execution of the instrument, or the handwriting of the defendant, unless the defendant or some one in his behalf shall file and serve a copy of an affidavit denying the same ” To “ deny ” is to contradict ; to gainsay. If the defendant should say, in his affidavit, “ I never executed the instrument," this would be a direct denial. Language is used to express ideas, and, when such language is used as neccessarily to carry conviction to the mind» of a given fact, it'is immaterial what words are used, unless, indeed, some particular form of words are required by some rule or law. The language used in the affidavit, if true, must, I think, be taken as a denial of the execution of the note declared upoii. Therefore the burden of proof rests on the plaintiff to prove its execution. In other words, the plaintiff must show', by a preponderance of evidence, that the defendant executed the note, — and by a preponderance of evidence I mean that the reasons for believing what the plaintiff claims in this respect, are more satisfactory than are the reasons for believing otherwise.

If the defendant did not execute the note nor authorize any one to do so forjiim, then that which purports to be a note is without vitality — is void, and being void could never create a liability against#the defendant.

A promissory note is a promise to pay money, reduced to writing. A promise is an assurance or binding declaration. If therefore, a party signs a promise to pay money on certain conditions, the assurance is not'binding when severed from the conditions without the consent off. the promisor. While a man should be bound by his contract, he is not to be bound by any alleged agreement into which he never-entered. It therefore follows that if a promissory note is, at the time of its execution attached to another instrument constituting a part of the contract it would be a material alteration to detach it and leave, the note as though it had been absolute. A Iona fide holder is allowed to receive the genuine contract, discharged of any equities attaching to the contract itself, as between the original parties, but he cannot get a contract where none was made. In this case the plaintiff claims - that he purchased he note before maturity, and it is insisted that he had no knowledge of the alleged fraudulent manner in which it was obtained. It is a rule of law that if a person executes a negotiable promissory note, knowing it to be such, and the note is transferred to a bona fide holder for a valid consideration, before maturity, such holder or any person holding under him may recover of the maker, notwithstanding he was induced to execute the note through fraudulent-representations. Suppose, for instance, A fraudulently represents to B, that an article which he is selling to him is worth a thousand dollars, and thereby secures B’s note ’ for that amount, clue in one year. The actual consideration turns out to be not worth a rush. A sells the note to D, before due, who knows nothing of the want of consideration or of circumstances which would require an honest man to make inquiry. In such a case, D would be entitled to recover from the maker. In the case referred to, B knew that he executed the note. He intended to make it. But if through fraudulent representations, B had been induced to execute the note, supposing it was some other instrument, or if the note was attached to, and was a part of some other agreement, then the case would be different. He did not intend to make the note or to create any such liability as the note, standing alone, imports; and such instrument would be void wherever found, and no person could recover upon it. If you should find the tacts in this case to accord with this last illustration, then the plaintiff is not enti. tied to recover. If, however, you should find that the defendant executed the note in question and gave it to the at ent of Webster & Kimball, with knowledge that he was executing such note, and that the conditions of the note were not affecte by some other and further stipulation as a part of the same written’ contract, and if you further find' that the note was, before maturity, sold to the plaintiff for $100, or other valuable consideration, without notice, — such notice as I shall soon refer to — then the plaintiff .is. entitled to .recover. A person who executes a note knowing it to be such, even though he is induced to make such note, by fraud, is bound to pay the same to a bond fide holder before due, for value. But when an instrument is forged, or made by one who has not the legal capacity to contract, it is not the promise of any one, and therefore there ia no promise to enforce. In such case.the instrument is void and no one can recover upon it.

In order to constitute a forgery, there must be the making of a false instrument for the purpose of creating another’s liability with the fraudulent intent to injure him; but such instrument may be made in various ways. It may be done by creating the instrument entire, by adding to or taking from it some part of its terms or conditions, or by procuring the signature of a person to an instrument, by means of artifice and fraud, which he had no intention of signing. In all such cases the instrument is a forged oné, and no person, whether an innocent purchaser or otherwise, can recover upon it. If, therefore, you find from the evidence in this case that the payee obtained the defendant’s signature by deceit and fraud, by falsely pretending to read the same to him, and reading it not as a note but as another and different contract, and the defendant was thereby deceived and induced to sign it, the instrument is a . forgery, and the plaintiff cannot recover.

If you should believe from the evidence, that the defendant executed the note in. question, intending to deliver it to the payees or their agent, ax a noUy whether to hold as security or otherwise, then the plaintiff, if a boria fide holder before due, for a valuable consideration, is entitled to recover, even though the original consideration entirely failed.

A bona fide holder of negotiable paper is- one who acquires the paper in good faith, for a valuable consideration, from onle capable of transferring the paper, without notice of the consideration or of the attending facts and circumstances. Whatever is sufficient to direct the attention of the purchaser of the paper to the rights and equities of the maker and to enable him to ascertain their nature by inquiry, is sufficient notice. Although notice or knowledge of defecting circumstances may not be proved, the facts of the case may be such aa to show that there was either knowledge or an intentional and careful avoidance of knowledge. This would have the same effect in law as knowledge. . 1 Parsons on Notes and Bills, 259. When a party having knowledge of such facts as would lead an honest man, using ordinary feaution, to make further inquiries, does not make, but on the contrary studiously avoids making such inquiries, he must be taken to have notice of those facts which, if he had «sed such ordinary, diligence he would have readily ascertained.

It is the duty of the jury to look at all the facts in the case, and to draw from them such conclusions as your experience and observation dictates to you are warranted. You may consider the fact that the body of the note is written with black ink while the signature is in 4-ed ink. You may take into consideration the fact that the note was offered and sold for half-price ; and you may consider the statements of the plaintiff as to the way in which he procured the note, and his subsequent statements, in determining whether he had notice of siioh facts as would put an honest man on inquiry. In short, Gentlemen, if the instrument is forged, that is an end of the ease — the plaintiff is not entitled to Recover. It the note was procured through fraud, not amounting to forgery, and knowledge of the fraud or of such facts as I have indicated, was brought home to the knowledge of the plaintiff before purchasing the note, then he must stand in the same relation to the defendant as did the original payees.

Take the case, Gentlemen, apply to the facts the rules of law I have given you, and render such a verdict as shall satisfy your consciences that you have discharged your duty faith fully and well.


author: Brawn, J.

text:
    Thomas W. Holmes, Complainant, vs. David Heywood, Lewis E. Gordan, Nathaniel Robbins and Franklin Muzzy, Defendants.

    An affidavit taken in any other State, to entitle it to be read in any Court in this State, moat basworn to beforo’a Judge of a Court or reoord or a Commissioner appointed by the Governor of this State.
    A rale or order entered by eoneent of Counsel, 'will not be set aside on application of a party unless it te shown that the Counsel is pecuniarily irresponsible.
    *Where an affidavit of merits ifl required, to set aside an order or decree, the facts should besot forth.

      Berrien Circuit in Chancery,

    October, 1870.
    The facts in the case, briefly stated, are as follows:
    Bill for foreclosure filed July 26, 1861. Answer of all the defendant’s filed prior to January 1st, 1862. Replication filed March 5, 1862. June 25, 1862, order entered closing proofs, on motion’of defendant’s Solicitor. Though the order of 'closing proofs does not appear ever to have been opened, some testimony was taken afterwards, and filed in tbe cause. The complainant’s Solicitor noticed the case for hearing for the June term, 1870, The note of issue was not received by the Register 'in time to place the cause on the calandar. but on application to the Court, the same was placed on the calendar on the fi l day of the term.
    June 15, 1870, the Solicitors for the respective parties filed a written stipulation that the cause should then be submitted to the Court on pleadings and proofs, to he argued on briefs— within forty days from date of submission, complainant’s Solicitor to furnish brief to Court and defendant’s Counsel, and within ten days thereafter defendant’s Counsel to furnish brief to Court and Counsel for complainant, and complainant's Counsel to reply in ten days after delivery of defendant's brief,.
    By the same stipulation it was agreed that the defendants should he at liberty to present to the Court any additional testimony, provided the same he taken under the rules, within thirty days after date of stipulation.
    In pursuance of this stipulation the cause was submitted to the Court.
    August 22, 1870, Mr. DePny was substituted Solicitor for defendants, and now moves to vacate the stipulation for hearing. This motion is based upon the affidavit of Fr ml. tin-Priest, claiming to have succeeded to defendant’s title and alleging, that on the 20th of May last, “defendant’s Solicitor delivered the papers in the case to him. Priest, refusing to proceed further in the case; and that-his relation as defendant’s Solicitor then ceased; and of DePuy, the Solicitor, who swears that he was retained as Solicitor for the defendant, about the 20th of May-last, to the loss of the file papers, and that Priest had “ stated to him legal, substantirl and equitable grounds for defense, the evidence of which was not submitted, but which he is able to produce if permitted so to do, — that, without the evidence of Gordon and others, whose names deponant does not recollect, .great injustice may and will be done the assignee.”
    The motion is resisted on defendant’s own showing, and apon a cross affidavit of D. Darwin Hughes, of Counsel for complainant. The affidavits were read on both sides, with the understanding that objection both as to form and substance might he made at the argument.
    The following • are some of the objections urged by complain" ant’s Solicitor — 1, to the affidavit of Priest,
    Because it was not properly authenticated — being made in «he State of Illinois, and sworn to before a Notary Public.
    2d, There are i.o merits shown by the affidavits of defendant’s Solicitor or Pries’.
    3d, The motion, if granted, can result in no practical benefit to the defendants or to the mover.
    4th, The Court cannot vacate the stipulation for hearing, for the reason that a stipulation is a consent-order.
    At the argument, Counsel for eomj.liinants stated that the file papers were delivered to his Hon., Julge Blackmail, at the time of submitting the case to him, on pleadings and proofs, who had taken them for the purpose of perusing them preparatory to making a final decree-

      Theodore DePuy, for the motion.

      D. Darwin - Hughes, contra.
   Brawn, J.

As to the fmt> ground of objection, to wit, the insufficiency of the authentication of Priest's affidavit, the statute, G. L., § 4259, is clear and explicit. The affidavit was taken in Illinois, and it can not properly be read unless certified by a Judge oí a Court of record or a commissioner appointed by the Governor of this State.

2d, Where an order or consent rule has been entered in a cause, and the proceedings have been regular, such order or rule will not be set aside in any event unless an affidavit of merits is filed. The affidavit of DePuy, that Priest has stated to him “legal, substantial and equitable grounds of defense, the evidence of which- he is able to produce, and that without the evidence of Gordon and others, great injustice may and will be done,” is not within the rule requiring an affidavit of merits.

An affidavit that a party has a good defense without sfating the nature and substance of it is not sufficient. In fact it is not the practice of the Court to receive a general affidavit of merits”

The party must state npon oath, wffiat such merits are, to enable the Court to see whether they are not merely imaginary; and in order that the deponent may be liable to punishment for perjury if his affidavit is false.” Sea Ins. Co vs. Stebbins, 8 Paige, 563; Meach vs. Chappell Id,, 135.

3d, The motion if granted can result in no practical benefit to the defendants or the mover.

He could not take further proofs, because it is not an application to open the proofs.

He could, at the most, be heard in argument upon a hearing of the case, but it is not suggested what argument could be made, and the whole thing must result in hearing the case over again precisely as it has now been heard.

The Court will not do this to satisfy a mere caprice of the party.

4th, The Court is asked to “vacate the stipulation for hearing.” A stipulation is made by consent of the parties, and consent rules and orders are seldom set aside by the Court. 1 Hoff. Ch. Pr., 27.

When a decree is made by consent of Connsel, there lies not an appeal or rehearing, though the parly did not really' give his censent, but his remedy is against bis Counsel. Bradish vs. Gee Ambler, 229; Harrison vs. Ramsey, 2 Vesey, 488.

The consent qf counsel to a decree is to be given upon their own conception of the authenticity oí their instructions. And as the client is bound by the act of his counsel, he must, • if the counsel has consented without sufficient authority, seek his remedy against his counsel. 2 Dan. Ch. Pr., 1180.

It may be mentioned with reference to the subject of consent causes, that a decree or order made by consent of the counsel for the parties, cannot be set aside, either by rehearing or appeal or by bill of review, unless indeed it be made to appear that the counsel is pecuniarily irresponsible. 2 Dan, Ch, Pr., 1179, 1180; Atkinson vs. Manks, 1 Cow,, 693.

The application must be denied, with usual motion costs.


author: Mitchell, J:

text:
    Polly Button, vs. John Mitchell, Mary E. Brown, Isabel Brown and Rosa L. Brown.
    A bill in chanceiy, under the Statate, to quit title, ¡should set forth what tho adverse title is that it seeks to have released. The cloud should be made apparent and so pointed out that the Court can seo the necessity of its interposition. The mere statement that the defendant “ sets up ” an adverse claim or title is not enough.
    Tni-j Court will not interfere to restrain the commencement of & suit at law to try the title unless something is made apparent that requires the aid of the Court and that which a jury could not determine. The suit at law Is the proper remedy and if about to bring it, the party is not tobe stopped, ills delay would be a better cause for asking the aid of Chancery.
    A doubtful construction of the granting clause in a will or d«**d does not constitute a cloud requiring the aid of this Court to dispel

      R. P. <(' J. B. Eldridje, Solicitors for Complainant.

      IIuLbard cfc Crocker, Solicitors for Defendants.
    Case Submitted on demurrer to bill, October 10th, 1870.
    The hill states that one Joseph Mitchell, in his life-time was seized of the S. E. quarter of N. E. quarter of Sec. 80, T. 2 N., R. 13 E.
    On the 31st of May, 1836, he made a will by which he bequeathed this land to his wife Emily, as follows: “ I give and bequeathe to my beloved wife, Emily Mitchell, and her heirs if any there be, at my decease,” the land described. Spine time in the year 1848, Joseph Micthell died, seized of the land, leaving his widow, Emily Mitchell and.vJohn Mitchell, Emily Mitchell and Harriet E. Mitchell his children., and heirs at law. The will was proved and administration thereof committed to Emily Wixon, formerly Emily Mitchell. Nov. 10th, 1868, complainant is informed and believes that by the will, Joseph Mitchell gave the land to Emily Wixon, late Emily Mitchell, and that on his decease, she became seized of the same in fee simple. And complainant believing said Emily had full right to sell the same, bought it and received a deed of the land, giving a mortgage back,” and she thereupon avers that she is the legal owner of the land, and is in its actual possession and occupation.
    The hill then states that the defendant, John Mitchell, claims and sets up that he is the lawful owner of,, and has the legal title to, an undivided one-fourth, and gives out and declares that he intends to institute legal proceedings for the recovery of his pretended interest and title, in some court of competent jurisdiction, and will do so unless restrained by the timely-interposition of this Court, as therein-after prayed, — that the other defendants, minors and children of Harriet E. Brown, (supposed to be Harriet E. Mitchell, one of the daughters of Joseph Mitchel, but not so stated in the bill) lately deceased, set up and claim that as heirs of Harriet E. Brown, they are the lawful owners of another fourth of the land. That these claims are mere pretences and are contrary to equity and good conscience, and complainant entered into the actual possession of the land on receiving her deed, and still remains in actual possession and therefore cannot bring ejectment. The three minors named, are under ten years of age, ranging from two to seven years.
    , The bill prays that the complainant’s title may be settled and established, that the defendants severally release all claims and for a perpetual injunction restraining them from commencing or prosecuting any suit at law lor the recovery of the premises.
   By the Court,

Mitchell, J:

The most important question raised by the demurrer, is whether the alleged adverse claims-are sufficiently set forth. The bill does not state under what title or supposed right any of the defendants claim, except that the minors claim as heirs of Harriet E. Brown.

So far as the bill shows, the supposed cloud is a mere naked assertion of claim, without any' foundation whatever. It does not show that John Mitchell claims as heir of Joseph Mitchell, nor in any manner allude to the nature of the claim he sets up. The other defendants are stated to claim as heirs of Harriet E. Brown, but what claim she had is not stated.

I think this is not enough — there must be something stated to show, to the Court that there is a claim that in .some way constitutes a cloud. A mere claim without foundation, cannot constitute a cloud requiring the aid of this Court to dispel. The adverse cloud should be so pointed out and described as to inform the Court of the necessity of its interposition.

In order to justify the interposition of a court of equity to remove a cloud from a title, the cloud must be appárantly good against the title for which the relief is sought.” Gamble vs. Loop, 14 Wisconsin, 465.

But for aught that appears in the bill, the defendants may have the true legal' title, and in that case a court of equity ought not to interfere to prevent its operation in a court of law, and so deny the parties the right of trial by a jury.

“ Where there is an outstanding legal title adverse to the actual pqssession, courts of equity only interfere when the adverse claimant neglects or refuses to proceed at law to have*the title determined.”

The bill states that John Mitchell not only sets up his claim but intends to and will sue at once to determine the title unless restrained &e.

In Stockton vs. Williams, Walker’s Chancery Report, 126, Chancellor Manning said “ The object of the statute(Laws of 1840. the same as Sec. 3490 of Comp’d Laws,) seems to be to enable a person in possession of réal estate and having a title thereto, to remove all doubts in regard, to his title arising from the claims of third persons, who are taking no steps to test the validity of their claim, either in law or equity, and who (by their refusal or neglect to institute proceedings for that purpose, keep the. party in possession in a state of suspense.

This is the extent, I think to which the Court should go «ader the statute.

In Moran vs. Palmer, 13 Mich., 370, Judge Cooley, in giving the opinion of the Court, says; The claimant of a legal title has a right to have the facts upon which his claim is based, submitted to a jury, and it is only when the remedy at law is inadequate, that'resort can be had to equity. Nothing is better settled than that equity will not aid in clearing a title to land where complainant's remedy at law is complete.”

TheseTviews of Chancellor Manning and of the Supreme Court, seem clearly to determine that it is not within the per- . view of the statute for this Court to entertain'a bill to restrain a claimant from doing the very thing, the not doing of which, would be a good ground for relief and the exercise of equity jurisdiction.

The bill in this respect asks the Court to restrain a party from persuing his legal rights and doing what the courts always encourage, i. e., testing in the proper courts and before a jury, mere legal claims and rights, that do not involve any question of fraud or other matter that cannot most properly be settled in a court of law.

Upon the suposition that John Mitchell claims as the so» and heir of Joseph Mitchell, this Court is called upon to interpret the granting clause in the will and to determine whether it conveyed an estate in fee to Emily Mitchell, or a limited, divided estate.

In considering this question, I think the Court bound by the same rules it would be in construing the granting clause in a deed. “ A doubt as to the legal construction of a deed is not a cloud on a title that a Court of equity can be called upon to clear away. — Brown vs. Austin, 35 Barb., 431.

The complainant in her bill «ays she is the legal owner, and so leaves no doubt for the Court, and nothing for the Court to do to make her title more perfect. A legal title would seem to be all that can be wanted, and she needs no aid to remove u» imaginary cloud.

The bill however leaves an implied question, that is alluded to, as it may possibly aid in determining the necessity of further litigation.

John Mitchell and Harriet E. Brown are said to be children of Joseph Mitchell. If born before the will was made, they' would have no rights to the land unless provided, for in the will.

If born since the will was made, no provision having been made therein for them, they have, under the provisions of Sec. 2849, of Comp’d Laws, the same share in the estate of the testator as if he had died intestate, and in that case the will to the mother had no effect as to their shares or portions and the will would not be a good source of title against them, “unless it shall be apparent from the will that it was the intention of the testator, that no provision should be made” for them.

The demurrer is sustained with costs, with leave to complainant, if so advised, to amend in ten clays from filing thereof. Otherwise., decree of dismissal.


author: Mitchell, J :

text:
    Elisha Cook vs. Harrison W. Bossett.
    The action of replevin under the Statute conferring jurisdiction upon justices pf the peace, may be sustained lor cattle irregularly taken under Act 185 of & L. of 1867.
    The Statute, “ Of Distraining beasts,” does not apply to siesrares under act of 1867, p 291,8. L. The act cannot be enforced in any county until the Board of Supervisors adopt a resolution specifying some one or all of the classes of auimals to bo restrained from going at large.

      Washtenaw Circuit,

      September, 1870.
    P. M. Eaton, for Plaintiff.

      S. E. Engle, for Defendant.
    Action of replevin brought before and appealed from a Justice of the peace.
    The affidavit, writ and declaration are in the usual form and the action is not brought in pursuance of the Statute entitled, “ Of Distraining Beasts.”
   By the Court,

Mitchell, J :

The- facts as agreed upon, andas I find are, that the cow replevied was “ at the time when,” &c.3 the property of the plaintiff. Defendant found her at large in the public highway, without any one attending or driving her, in front of defendant’s house, and opposite land owned and occupied by him, — the road running through his land, at that place, in the township of Lodi, in the county of Washtenaw.

The defendant, on the 2d day of June, 1869, claiming to act under Section 3, of “An act to prevent animals from running at large in the public highways,” S. L., 1867, p 251, 2, seized and took the cow into his costody and possession and shut her up in his barn, in care of his hired man, with instructions that “ if any one came after hér, to let them have her if they paid fifty cents;” and defendant went immediately to a justice of the peace of the township,, “ to give him notice that he had taken the cow and to enquire what course" to pursue.’’ While the defendant was so absent to notify the justice, the plaintiff came and demanded his cow of the hired man, who told the plaintiff, “you can have the cow on payment of fifty cents forfeiture'” Plaintiff replied, “ I guess not, I will get her without,” and turned and went away and immediately commenced this suit.

There was no public pound in the township .of Lodi.

On the 21st day of October, 38Ü8, the Board of Supervisors of Washtenaw county, adopted the following resolution :

Resolved. — that act 185 of the Laws of Michigan for 1867, be made operative in the county, excepting in the township of Augusta.”

No other resolution had been adopted or action taken by said Board in regard to or under said act until after this suit was commenced. A resolution in accordance with section two. of the act was adopted by the board in October, 1869.

On the 4th of June. 1S69, after the suit was commenced, defendant caused six notices ofthe seizure and intended sale of the cow to be posted in said township.

The defendant, when he took the cow, claimed that she was at large, contrary to law, as the reason of seizure.

Sec. 1, of the act, S. L., 1867, p 251, provides “ That from and after the year 1867, it shall not be lawful for any cattle, sheep or swine, to run at large in any public highway of this State. Provided, that this act shall be in operation, only in those counties in which it shall be so determined by resolution, passed by the Board of Supervisors of such county.”

Section 2, provides, “ In case the Board of Supervisors in any county, shall pass a resolution, prohibiting any of the classes of animals named in section one, of this bill, to run at large ia the public highway; then, in such county, after the year 1867, the following sections of this act, shall be in full force; but otherwise, they shall be null and void.”

Section 3, declares it “ lawful for any person to seize and take into his custody and possession, any animal which may be at large in a public highway, and opposite the land owned or occupied by him, contrary to the provisions of the foregoing section; and that it shall be lawful for any person to take into his custody and possession, any animal which may be. found trespassing upon premises owned or occupied by him.”

Section 4, makes it the duty of such person, to give notice of such seizure, to a justice of the peace, or commissioner of highways, of such township; and the duty of such justice, or commissioner, to affix notices in six public places m the township, that the animal seized, will be sold at public auction in not less than 30, or more than 60 days, and to sell the animal for cash, and out of the proceeds, pay himself certain specified charges and fees, and also to the seizor, certain sums and expenses.”

Id the suit before the justice, the defendant plead in abate- ' ment, that the co w was distrained to recover a forfeiture, supposed and claimed by the defendant, to have been incurred by said cow going at large, contrary to law, and that at the time the writ was served, he was holding the cow for the purpose aforesaid, and that the writ could only be issued in conformity with sections, 18 and 19 of chapter.153, of Comp'd Laws, while the writ in this case, was issued under section 43, of chapter 117, which, it is claimed, does not apply to this case. The plaintiff demurred to-the plea in abatement, and the justice sustained the demurrer. Thereupon, the defendant plead the general issue, with special notioe of the facts as claimed.

It is urged that the justice erred in sustaining the demurrer, and that the case ought to have been dismissed for want of jurisdiction.

I think the justice was clearly right, and that the plea in abatement was not a proper plea in the case.; the facts stated in the plea are not cause of abatement.

The plea does not show that the cow was distrained under the statute entitled “ Of distraining Beasts,” nor under any provision of that statute. It is only in oases when cattle or beasts are distrained under that act, that sections 18 and 19, chapter 153, Compiled. Laws, control the manner of commencing the action of replevin.

It is also urged that under the facts as agreed upon, and ia proof as above stated, the plaintiff cannot recover.

It is not claimed that the cow was distrained or taken under the statute “ Of distraining Beasts,” to recover a penalty or forfeiture incurred under that statute, or to obtain satisfaction for damages done, but it is claimed she was taken under the act of 1867.

This act is a departure from the common law, gives new and extraordinary powers to any land owner or occupier, to take and keep animals found at large in the highway opposite his land, and to have them sold in the most arbitrary manner, (without the possibility of a trial by jury,) on the motion of the seizor, aided by a justice of the peace or highway commissioner.

If it is a good and constitutional law it should be strictly pursued.

It makes no provision for impounding beasts, nor for what is known as a common law distress. It cannot be construed to be a part of the statute “ Of distraining Beasts,” nor can any act done under it be governed or controlled by that statute.

Before it can become operative in any locality it is necessary that the board of supervisors shall so-determine by resolution. Its provisions are crude' and uncertain in many respects and their propriety extremely questionable.

The resolution' required by section two, should specify some one or all of the classes of animals intended to be restrained from going at large. The one passed by the board did not in any essential particular comply with these requirements. It follows that the law was not in force in Washtenaw County-when the cow was seized. There was no law in force under which the defendant can justify the taking, much less under which he can say she was distrained to recover a forfeiture.

From the facts and law as above found, it follows that judgment must be entered for the plaintiff, as upon the usual finding of property in the plaintiff, and that the plaintiff unlawfully detained it, &e., with damages at six cents and costs, to be taxed.


author: Patchin, J.

text:
    Charles Faust vs. Luther Lathrop.
    . A. defendant appealed from a Justice’s Court and succeeded iu the Circuit. Held, that he has «right to tax as part of his coste, both the amount paid tho Justice on the appeal and those coste he would have recovered had he succeeded in the Court below.

      Wayne Circuit,

    October, 1870.

      Otto Kirchner, for Plaintiff.

      Irvin Palmer, for Defendant.
   By the Court,

Patchin, J.

This is an appeal case brought to this Court by the defendant, who succeeded therein, and was awarded costs, and the question now arises as to the amount which tbe defendant appellant is entitled to tax.

The law of 1863 provides that “whenever a payment shall &e rendered by a justice against any party, unless otherwise provided, it shall be with costs of the suit, but the whole amount of all the items of such costs shall not exceed six dollars in all suits npon contract, and in all other cases the whole amount of such costs shall not exceed ten dollars."

The action in this oase not being upon contract, the prevail, iag party had a right to tax the ten dollars which the appellant was compelled to pay in order to effect an appeal.

In the C. L., Sec. 3864, it is provided that “ whenever costs are awarded to the appellant he shall be allowed to tax as part ¿hereof the fee paid to the justice.” Under this provision it has always been the practice to tax as part of the appellant’s costs in this Court the whole amount paid the justice in order toperfeet the appeal, so that in the case under consideration the appellant would have the right to tax the amount of ten dollars paid the justice, as the costs in the case, together with the amount paid him for making his return.

The Laws of 1869, page,33, provide: That in all oases the party prevailing in the Circuit Court may tax, in addition to ’ other costs, such costs as he would have been entitled to tax had he prevailed in his action in the court below.

It is claimed by the appellant that under this law: he is also, in addition to the ten dollars paid by him in the Court below, entitled to tax such other costs as he would have been enltitled to tax, had he succeeded therein, up to the amount oí ten dollars.

It is claimed by the appellee that the appellant is confined to the costs actually paid the justice. But it is quite clear that the costs paid the justice were not those which the appellant would have been entitled to recover had he succeeded, but those which the appellee claimed by reason of his succeeding in that Court. It follows, therefore, that the costs referred to in the Laws of 1869 are something more than those paid the justice, and that the statutes taken together plainly allow the appellant to.tax as part of his costs in the Circuit Court, both the amount pa d the justice on the appeal and those costs which he would have recovered had he succeeded in the Court, below.


text:
    Dewit C. Holbrook, et al vs. Theodore J. Campau, et al.

    The Circuit Court in Chancery will i»t®xt*rcáae3mmttction m those cswos in which an adequate remedy existe in the Probate Court.

      Wayne, Circuit,

      October, 1870.

      D. O. Holbrook, Solicitor for Complainants.

      George H. Prcntis, Solicitor for Defendants.
   By the Court,

Patchin, J.

This isa bill in chancery filed for the purpose of compelling the administrators of the estate of Joseph Campau to submit to this Court their entire accounts, as such administrators, and that such accounts be settled and a receiver he appointed, to the end that the estate of the said Joseph Campau may be fully and finally closed.

A motion was made by the complainant to amend the bill so as to ask for the removal of said administratoi».

This motion is opposed by defendants upon tha ground, among others, that this Court ha* no jurisdiction.

This estate ha* been in litigation for a number of ’years, during which time various questions arising in it have been adjudicated upon both in this and the Supreme Court. The amount involved is very considerable, and it is of the utmost importance to all parties concerned that every proceeding should be well considered, and of such a character as to avoid the necessity of being set aside, so that the end of this controversy may be finally reached. I have therefore devoted considerable time and labor to the examindtion of the question of jurisdiction of Courts in Chancery and fhe Probate Courts under our laws in this regard. While Courts in Chancery have often assumed jurisdiction over infants and guardians, administrators, so far as I have been able to find; have always been left to the Court of Probate, except in special cases for reasons set forth in the bill.

The Supreme Court, in passing uupon one of the questions above alluded to, uses this language: “I am very strongly inclined to the opinion that under our probate system the Court of Chancery has only jurisdiction in those cases in which an adequate remedy does not exist in the Probate Court.” 11 Mich. 404. With this clear and concise language before me, I do,not feci at liflerty to assume any of the duties of the Court of Probate, without first being entirely clear that the case at bar does not come within the'meaning of the suggestion there made.

The motion must, therefore. beNenied, and the bill dismissed for want of jurisdiction.