author: Grant, J. Moore, C. J.

text:
      In re MOSER.
    1. Witnesses—Privilege—Self-Crihinating Evidence.
    The protection against self-incrimination afforded by the State and Federal Constitutions is personal to the witness, and cannot be used by him for the protection of others, no matter how closely associated they are with him.

      3. Same—Incriminating Tendency of Testimony—Determination of Question.
    The witness himself is not the sole judge of whether his testimony will tend to incriminate himself, but he must answer a question put to him unless the answer may actually tend to criminate him. Where it is perfectly apparent that the answer cannot injure him the court should compel him to answer.
    3. Same—Corporate Officers—Production of Books.
    The president of a corporation, subpoenaed to testify before the grand jury, which was investigating charges of corruption against municipal officers in connection with a contract between the city and the corporation, could not refuse to produce the books of the corporation, by invoking the provisions of the State and Federal Constitutions protecting witnesses from self-incrimination, where he himself was not connected with the corporation at the time covered by the investigation, and was in no way connected with or interested in the contract under investigation, and had no personal knowledge of the entries which were being investigated, so that nothing contained in the books could in any way incriminate him. Moore, C. J., dissenting.
    4. Searches and Seizures—Corporate Books — Compelling Production.
    One cannot be compelled to produce his own books, or the books of another which are under his control, where their production would tend to criminate him, nor can his clerk be required to produce them; but when, as the agent of a corporation, he makes entries on the corporate books, and those books are in the actual and legal possession and control of another officer of the corporation, or of the corporation itself, such officer may be compelled to produce them, in a proper case, under a subpoena duces tecum, and such compulsion does not amount to an unjustifiable search and seizure, within the prohibition of the Constitution.
    Certiorari to Saginaw; Beach, J.
    Submitted November 20, 1903.
    (Docket No. 239.)
    Decided December 7, 1904.
    Augustus G. Moser was convicted of contempt in refusing to produce certain books of account before a grand jury.
    Affirmed.

      The petitioner was convicted of contempt of court, in refusing to produce before the grand jury, in obedience to a subpoena duces tecum, certain books of account of the Bartlett Illuminating Company. The case is before us for review on certiorari. The defenses now urged are (1) that the entries might tend to criminate the petitioner; (2) that, as the avowed purpose in demanding the books was to obtain evidence against other officers of the Bartlett Illuminating Company, compulsory process for their' production was in violation of section 26, art. 6, of the Constitution of Michigan, and of the fifth amendment of the Constitution of the United States.
    The material findings of the court are:

      “ 1. That on the 9th day of April, 1903, and for some days prior, said grand jury were engaged in investigating and inquiring into certain alleged violations of the provisions of section 11312 of the Complied Laws of 1897, which said section makes it a felony for certain municipal officers to corruptly accept any gift or “gratuity, or any promise to make any gift or to do any act beneficial to such officer, under an agreement or with an understanding that his vote, opinion, or judgment shall be given in any particular manner or upon a particular side of any question which is or may be by law brought before him in his official capacity.
    “ 2. That said books and records referred to in said subpoena contain material and necessary evidence to aid said grand jury in making an investigation, in determining whether said section of the statute had been violated.
    “3. That said respondent on said 9th day of April, 1903, was the president of said company; was in possession and had full control of the books and records described in said subpoena; that it was within his power and ability, if he so desired, to produce to said grand jury the books and records called for by said subpoena.
    “4. That said respondent on said 9th day of April appeared before said grand jury and refused to produce the books and records called for by said subpoena, and further refused and declined to produce any one of said books and records to said grand jury as commanded by said subpoena.
    “5. The respondent’s refusal to produce said books to said grand jury for the year 1900, and from January 1 to July 22, 1901, was not for the reason that the entries contained in said books or records would tend to criminate him, and he repeatedly stated to said grand jury that the books and records called for by said subpoena,from January 1, 1900, to July 22, 1901, could in no way tend to criminate him.
    “6. That said respondent’s refusal to produce the books and records called for by said subpoena for the year 1900, and from January 1 to July 22, 1901, was a violation of section 1098 of the Complied Laws of 1897.
    “7. That the production of the books of the Bartlett Illuminating Company for the year 1900 and the year 1901, containing the accounts up to the 22d day of July of that year, could in no way tend to criminate the respondent, and that he should produce to this court, before said grand jury, the books and records called for in said subpoena, from January 1, 1900, to July 22, 1901.
    “ 8. That the respondent was in no way connected with or interested in said municipal contract; that in fact he ; was not in this State at the time, nor interested or connected with said company until nearly a year after said matter was closed, and that no bill is pending before said grand jury against him; and that said jury is not considering any matter in which he is personally interested.”

      Weadock &. Purcell and James II. Davitt, for petitioner.

      John F. O’Keefe, Prosecuting Attorney, for the people.
   Grant, J.

(after stating the facts). Under the Constitutions of Michigan and the United States, no witness can be compelled to give testimony which might tend to criminate himself or expose him to a criminal prosecution. The provision in each Constitution is the same. Many cases have arisen in the courts, both of the States and of the United States, under this provision. The only difficulty has been in determining whether the facts of each case bring the party under the protection afforded him by the Constitution.

The shield afforded is personal to the witness, designed for his own protection, and not for the protection of others. The witness himself is not the sole judge of whether an answer to a question will tend to criminate himself. The due administration of the law does not permit him to arbitrarily hide behind a fancied or intangible danger to himself. It gives him no right to attempt to avert real danger from others, no matter how closely he may be associated with them. Unless the answer to the question may tend to criminate himself, he must answer, whatever the consequence may be to others; otherwise the administration of justice would be seriously obstructed.

' The position on behalf of the petitioner appears to be that the witness himself is the sole judge, and that, when he says the answer may tend to criminate him, the controversy is closed. The Constitution vests in the witness no such arbitrary power, and we are cited to no decision which goes to that extent.

Counsel for petitioner cite and rely upon People, ex rel. Taylor, v. Forbes, 143 N. Y. 219, and Adams v. Lloyd, 3 Hulst. & Nor. 351. The language of those cases extends the right of’ the witness to protect himself as far as any which I have examined. In Adams v. Lloyd it is said:

“Where the judge is perfectly certain that, the witness is trifling with the authority of the court, and availing himself of the rule of law to keep back the truth, having in reality no ground whatever for claiming the privilege, then the judge is right in insisting on his answering the question. ”

In People, ex rel. Taylor, v. Forbes the testimony of the witness and the facts elicited clearly showed that the replies to the questions put might naturally tend to criminate the witness. In that case the court say:

“The weight of authority seems to be in favor of the rule that the witness may be compelled to answer when he contumaciously refuses, or when it is perfectly clear and plain that he is mistaken, and. that the answer cannot possibly injure him, or tend in any degree to subject him to the peril of prosecution. * * * Where it is not so perfectly evident and manifest that the answer called for cannot incriminate, as to preclude all reasonable doubt or fair argument, the privilege must be recognized and protected.”

In Ex parte Senior, 37 Fla. 1, it is said:

“It has never been recognized that he [the witness] •alone has the right in all cases to decide whether his answer will tend to criminate him. Such a rule would be mischievous and enable unscrupulous witnesses to defeat the ends of justice.”

In the recent case of Ex parte Irvine, 74 Fed. 954, it is said: *

“ The true rule is that it is for the judge before whom the question arises to decide whether an answer to the -question put may reasonably have a tendency to criminate the witness, or to furnish proof of a link in the chain of •evidence necessary to convict him of a crime. * * * It must appear to the court, from the character of the question, and the other facts adduced in the case, that there is some tangible and substantial probability that the answer of the witness may help to convict him of a crime.”

Considering the importance of the question, I deem it proper though this opinion may be long, to here quote the language of Chief Justice Marshall in Burr’s Trial [Fed. Cas. No. 14,692 e] :

“ It is a settled maxim of law that no man is bound to ■criminate himself. This maxim forms one exception to the general rule which declares that every person is compellable to bear testimony in a court of justice. For the witness who considers himself as being within this exception, it is alleged that he is, and from the nature of things must be, the sole judge of the effect of his answer; that .he is consequently at liberty to refuse to answer any question if he will say, upon his oath, that his answer to that question might criminate himself.

“ When this opinion was first suggested, the court conceived the principle laid down at the bar to be too broad, .and therefore required that authorities in support of it might be adduced. Authorities have been adduced, and have been considered. In all of them the court could perceive that an answer to the question propounded might criminate the witness, and he was informed that he was at liberty to refuse an answer. These cases do not appear to the court to support the principle laid down by the counsel for the witness, in the full latitude in which they have stated it. There is no distinction which takes from the court the right to consider and decide whether any direct answer to the particular question propounded could be reasonably supposed to affect the witness. There may be questions, no direct answer to which could in any degree affect him; and there is no case which goes so far as to say that he is not bound to answer such questions. The Case of Goosely [Fed. Cas. No. 15,230], in this court, is perhaps the strongest that has been adduced. But the general doctrine of the judge in that case must have referred to the circumstances which showed that the answer might criminate him.

When two principles come in conflict with each other, the court must give them both a reasonable construction, so as to preserve them both to a reasonable extent. The principle which entitles the United States to the testimony of every citizen, and the principle by which every witness is privileged not to accuse himself, can neither of them be entirely disregarded. They are believed both to be preserved to a reasonable extent, and according to the true intention of the rule, and of the exception to that rule, by observing that course which, it is conceived, courts have generally observed. It is this: When a question is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this be decided in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate himself, then he must be the sole judge what his answer would be. The court cannot participate with him in this judgment, because they cannot decide on the effect of his answer without knowing what it would be; and a disclosure of that fact to the judges would strip him of the privilege which the law allows, and which he claims. It follows necessarily, then, from this statement of things, that if the question be of such a description that an answer to it may or may not criminate the witness, according to the purport of that answer, it must rest with himself, who alone can tell what it would be, to answer the question or not. If, in such a case, he say upon his oath that his answer would criminate himself, the court can demand no other testimony of the fact. * * *

“The gentlemen of the bar will understand the rule laid down by the court to be this: It is the province of the court’ to judge whether any direct answer to the question which may be proposed-will furnish evidence against the witness. If such answer may disclose a fact which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be, and if he say, on oath, that he cannot answer without accusing himself, he cannot be compelled to answer.” 1 Burr's Trial, 243.

Other cases might be cited, but these we deem sufficient. It follows that, if the facts are as stated in the finding of the court, the petitioner was properly convicted of contempt. The question was determined by the court below upon the testimony of the petitioner, given before the grand jury. From that it is established that, during the time in which the books sought and ordered to be produced were kept, and the entries therein made, the petitioner had no connection whatever with, and no interest in any form in, the Bartlett Illuminating Company, or any of its officers. He did not during that time live in this State, but lived in Little Rock, Ark. He testified that he knew nothing about those entries personally, and had no part in making them. He testified as follows:

“ I was not here during the letting of the contract by the city to the Bartlett Illuminating Company for lighting. I had no connection whatever with that matter. That was long before I came here. I was not in the city at that time. * * * I had nothing to do with the books in 1900. I don’t think there is anything in these books that •would tend to criminate me in 1900. * * *

“Q. Does the customers’ledger contain anything for the year 1900 that might tend to criminate you ? * * * A. Personally; no, sir.

“Q. You decline to produce the customers’ ledger for 1900 ? A. Yes, sir.

“Q. Not because it would tend to criminate you; that’s not the reason you decline to do it ? A. Not the books for 1900; no, sir.

“ Q. There is nothing in the books of 1900 that would tend to criminate you ? A. No, sir.”

He further testified that he refused to produce the books under the advice of his attorneys.

“ They have advised me not to produce any of the books. They said I shouldn’t do it, because I didn’t have to do it.”'

He nowhere testified that his attorney advised him that there was anything in the books during the time covered that could in any way tend to criminate him. In one part of his examination, after testifying that he did not see how the production of the books during that time could in any way criminate him, he said:

“I decline to answer these questions on the ground our' attorney says. ‘ We don’t have to.’ That is the sole reason I decline to produce them.”

Again he testified that he did not decline to produce, them for the year 1900 because they would tend to criminate him, for he said they would not, but he declined to produce them on the advice of his attorney. These statements are reiterated several times during his examination. The only basis furnished in his testimony which could be construed as protecting him is this:

Q. The only question is this: Whether or not you decline to produce those books before this grand jury because there is evidence in the books that would tend to criminate you; that is what we want to know; and whether that is the reason why you decline to produce the books ? A. I decline to answer the question on the ground it might have a tendency to criminate me.

Q. The production of the books ? A. Yes, sir.

Q. You think, then, there is some evidence in those books, that, if it should come to the light of this grand jury, might tend to criminate you ? A. I decline to answer.

“ Q. You decline to answer that question ? A. Please' state the question again.

“ (Question read.) A. It might.”

This testimony is followed by the statement again that he had no connection whatever with the letting of the contract which the grand jury were investigating; that it was long before he came there; that he had nothing to do with the Saginaw business then, and knew nothing about it. It is then asked why there was evidence in the books which might tend to criminate him, to which he replied:

■ “ There may be some little things that would come up from time to time, where I might have given a few things away, perhaps—lamps or things of that kind—that might have a tendency to criminate me, although there is nothing in it; absolutely nothing.”

From this evidence, I think it manifest that he only based his claim for the privilege upon the entries made upon the books after he became the president of the company, and not that there was anything in the former entries which could by any possibility tend to criminate him. I think it apparent that the sole basis for the petitioner’s refusing to produce the books was his desire to protect the officers of the corporation during the time under investigation, and those with whom they dealt as officers of the municipality.

In re Peasley, 44 Fed. 271, is very similar in its facts to this case, and the Federal court (Judge Gresham presiding) held the witness guilty of contempt.

In Brown v. Walker, 161 U. S. 591, it was held that the Federal act of 1893 shielded the witness from criminal prosecution in consequence of his testimony. The court, however, recognized the rule applicable here, in holding that the witness could not refuse to testify against his fellow officers, saying:

“ It would be to convert a salutary protection into a means of abuse if it were to be held that a mere imaginary possibility of danger, however remote and improbable, was sufficient to justify the withholding of evidence essential to the ends of justice.”

See, also, 77. S. Express Co. v. Henderson, 69 Iowa, 40.

Does the production of these books under the order of the court amount to unjustifiable search and seizure prohibited by the Constitution ? The learned counsel for the petitioner state their position upon this point as follows :

‘ ‘ There is no difference in principle between the forcibly seizing and carrying away of such books by the sheriff or other court officer, and the compulsory production of them on a subpoena duces tecum. If the officers of this company, whom the people are seeking to indict, have any rights in the information contained in those books, or in the books themselves, which would enable them to resist the sheriff if he sought to take the books away by force, then obedience to a subpoena duces tecum cannot be compelled unless the law will sanction an attempt to do by indirection what it would be unlawful to do directly. * * *

“And therefore we contend that, even if there was nothing in these books which would involve Mr. Moser in a criminal charge, still he was right in his refusal to produce them if they contained evidence of the guilt of other officers and members of the corporation—persons who, if actually present, would have a right to take them and keep them for their own protection, as against all the powers of the prosecution.”

The difference between seizing record books and documents of another upon a search warrant, and the production of the same upon a subpoena duces tecum, is apparent. In the former the owner is absolutely deprived of all possession and control thereof, and they and their contents are subject to the gaze and examination of others. In the latter the records and documents are not taken from the possession of the owner. They are produced in court by him in his possession, and only such matters therein as pertain to the issue involved can be subject to the examination of the proper officers of the court.- The production of books and papers for inspection and use in suits, both civil and criminal, is as old as the law itself. Whether the production is by search warrant or by a subpoena duces tecum, the necessity therefor must be shown to the court, and the particular documents or records required sufficiently specified in the application; and, in either process, courts will permit only the examination of such parts thereof as relate to the issue before the court. The process for search and seizure is the one usually resorted to to determine whether property stolen or unlawfully seized is in the possession of another. The usual process to secure evidence from records and documents is by subpoena duces tecum, and no case is cited where an attempt has been made to proceed by search warrant. No private individual can be compelled to produce his books or papers for the purpose of affording evidence against himself in a criminal prosecution. Neither can the subterfuge of subpoenaing his clerk, who has access to or temporary possession of the books for the purpose of his employer’s business, be resorted to, to compel a production of the books. The possession of the clerk in such case is the possession of his employer. The books of a corporation are not the private property or books of petitioner or any other officer of the company. The corporation is a distinct entity. Randall v. Dudley, 111 Mich. 437; Rough v. Breitung, 117 Mich. 48, and authorities there cited.

The petitioner asserts that the conduct of his predecessor, the former president of the corporation, is under investigation by the grand jury. Mr. Moser testified that he, as president, had possession and control of the books required. They are not in his possession as owner thereof, but as an officer of the company. The former president presumably was entitled to the control in the same manner as is Mr. Moser, but when he ceased to be president he ceased to be entitled to the actual possession or control of the books, and the right of actual possession became vested in Mr. Moser, as president. If the former president made or caused to be made entries upon the books of his principal which tend to convict him of crime, neither the corporation itself, which is not subject to a penalty, nor any agent thereof who has the actual and legal possession of the books, can refuse to produce such entries.

The question was not involved in Boyd v. U. S., 116 U. S. 616. The court characterized the proceeding in that case as “an attempt to extort from the party his private books and papers to make him liable for a penalty, or to forfeit his property.” It was equivalent to compelling him to produce evidence of his own criminality. It did not involve entries which he had made in books belonging to another.

In Re Peasley, 44 Fed. 271, the grand jury were investigating certain alleged violations of the interstate commerce law by the general agent of a railroad company. Mr. Peasley was its treasurer, and had control and possession of the documents sought to be produced before the grand jury. He was held guilty of contempt for refusing to produce them. That case seems to be the parallel of this.

In Brown v. Walker, 161 U. S. 591, the auditor of a railroad company was asked whether it had transported coal at a lower rate than those established between terminal points, and whether any rebate, refund, or commission had been paid by the company, and to state the amount, if any. He was held guilty of contempt in declining to answer. If the boobs had contained entries of such rebates and illegal rates, in the handwriting of the officer of the company whose conduct was under investigation, or made by his authority, and the auditor had control or possession of the boobs, could he refuse on the ground of an unjustifiable search and seizure ? There would be no seizure of the officer’s books or papers. Neither would there be any seizure of the corporation’s hooks or papers. The officer in whose possession they are would produce' them in court, still in his possession, and show the entries required, if there were any.

In U. S. Express Co. v. Henderson, 69 Iowa, 40, the agent of an express company was subpoenaed to produce the boobs of the corporation, for the purpose of showing that the company had transgressed the law. The refusal to produce was based upon the identity of the witness with his employer, and this was held insufficient.

We think the rule is this: One cannot be compelled to produce his own boobs, or the boobs of another, which are under his control as agent or otherwise, where their production would tend to criminate him; neither can his clerk, whose possession is his possession, be required to produce them; but when, as the agent of another, he chooses to make entries on the books of that other, and those books are in the actual and legal possession and control of another officer of the corporation, or of the corporation itself, such officer may be compelled to produce them, in a proper case, under a subpoena duces tecum.

The unreported case of Frazer v. Circuit Judge does not apply here. In that case the officers of the Detroit City Railway Company, in whose possession and control the books were, and who were under investigation by the grand jury, were ordered by a subpoena duces tecum to produce the books. It requires no argument to show that they were thus required to produce testimony against themselves and were therefore within the protection of the Constitution. In that case the circuit judge found “that Robert J. McKenny, the person against whom the order for the production of said books and papers is sought, is but an employe of the said Detroit City Railway Company, as one of its bookkeepers, and has no control over said books and papers independent of the officers of said corporation, and has access to them and uses them simply in a clerical capacity; said books being under the actual and legal control of the officers of said company at the office of said company.”

The order of the court below is affirmed.

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

Moore, C. J.

(dissenting). A grand jury was convened in Saginaw county. It was charged by the circuit judge to investigate the conduct of parties connected with certain municipal contracts. While pursuing the investigation, Augustus G. Moser was examined as a witness before the grand jury. By a subpoena he was commanded to bring certain books of the Bartlett Illuminating Company, a corporation of which he has been president since July 24, 1901. Mr. Moser appeared before the grand jury, but refused to produce the books. This action was reported to the circuit judge, who, after a hearing, made an order that Mr. Moser produce all original books of the Bartlett Illuminating Company for the year 1900, and all the books for the year 1901, to and including the 22d day of July, 1901, called for by said subpoena, and, in case respondent is not able to seal said books of the year 1901 so as not to disclose the entries made therein on and after the 22d day of July, 1901, that then he produce a copy or transcript of all entries of January 1, 1901, to July 22, 1901; that said books be produced before said grand jury at the court-house in the city of Saginaw on or before the 29th day of April, 1903, at 9:30 o’clock in the forenoon of said day, and, in default thereof, that he stand committed to the common jail of the county. The case is brought here by certiorari to review the action of the circuit judge.

It is insisted the relator was under no obligations to produce the books, for two reasons: First, that the entries might tend to criminate him; and, second, that, as the avowed purpose of the people in demanding them was to obtain evidence against his fellow officers and directors of the Bartlett Illuminating Company, compulsory process for their production was in violation of section 26 of article 6 of the Constitution of Michigan, and of the fifth amendment of the Constitution of the United States.

The circuit judge was of the opinion that the production of such portion of the books as his order required Mr. Moser to produce would not tend to criminate him. This opinion is based upon the following testimony of Mr. Moser:

“ I don’t see how it [the books] would have a tendency to criminate me, because I wasn’t here at that time. * * * I decline to produce the books on the advice of our attorneys. * * * I don’t know whether the production of the books would tend to criminate me or not. * * * I have been connected with the Bartlett Illuminating Company since July 23, 1901, as president of the company. I was not here during the letting of the contract by the city to the Bartlett Illuminating Company for lighting. I had no connection whatever with that matter. That was long before I came here. I was not in the city at that time. * * * I had nothing to do with the books in 1900. I don’t think there is anything in these books that would tend to criminate me in 1900. * * *

Q. Does the customers’ ledger contain anything for the year 1900 that might tend to criminate you ? * * * A. Personally; no, sir.

Q. You decline to produce the customers’ ledger for 1900 ? A. Yes, sir.

Q. Not because it would tend to criminate you; that’s not the reason you decline to do it ? A. Not the books for 1900; no, sir.

Q. There is nothing in the books of 1900 that would tend to criminate you ? A. No, sir.”

Counsel for petitioner insist this testimony should be read in connection with the following testimony of Mr. Moser, and, when so read, brings him within the rule that he shall not be compelled to produce testimony which may tend to criminate him:

Q. “Why? A. As T stated awhile ago, on the advice of our attorneys.

Q. Do you decline to produce those books to this grand jury for the reason that the production of those books would tend to criminate you ? A. I decline to produce the books on the advice of my attorneys. Yes, sir.

(Question read.) A. It might have a tendency to criminate me.

Q. You say, then, Mr. Moser, that the production of those books—the entries that they contain—might have a tendency to criminate you, and that is the reason why you declined to produce them ? A. Well, I don’t see how it would have a tendency to criminate me, because I wasn’t here at that time.

“Q. What this grand jury wants to know is whether or not there is evidence in those books that, if produced, would tend to criminate you, and that is the reason why you decline to produce those books before this grand jury. A. No, sir; I decline tó produce the books on the advice of our attorneys.

“Q. You don’t decline to produce the boobs because the production of the books would tend to criminate you ? A. Why, I don’t know whether the production of the boobs would criminate me or not.

“Q. The only question is this: Whether or not you decline to produce those books before this grand jury because there is evidence in the books that would tend to criminate you; that is what we want to know; and whether that is the reason why you decline to produce the books ? A. I decline to answer the question on the ground it might have a tendency to criminate me.

“Q. The production of the books ? A. Yes, sir.

Q. You think, then, there is some evidence in those books, that, if it should come to the light of this grand jury, might tend to criminate you ? A. I decline to answer.

“ Q. You decline to answer that question ? A. Please state the question again.

(Question read.) A. It might.

“ Q. You mean that, do you? A. Yes, sir. I have been connected with the Bartlett Illuminating Company since July 23, 1901, as president of the company. I was not here during the letting of the contract by the city to the Bartlett Illuminating Company for lighting. I had no connection whatever with that matter. That was long before I came here. I was not in the city at that time. I did not know Mr. Hermann. Did not know Mr. Bontaat that time, only by reputation. He was connected with the same company I was, but I hadn’t met him at that time. I had nothing to do with the business in Saginaw then, and knew nothing about it. There has been nothing crooked going on, to my knowledge, since this contract was let to the Bartlett Illuminating Company. I have not done anything that is crooked.

Q, Why, then, is there evidence in those books that will tend to criminate you ? A. Well, there may be some little things that would come up from time to time, where I might have given a few things away, perhaps—lamps or things of that bind—that might have a tendency to criminate me. Although there is nothing in it; absolutely nothing.

Q. Have you been giving away lamps—to aldermen, you mean? A. I decline to answer that question.

“ Q. Because it would have a tendency to criminate you? A. It might have a tendency to criminate me.

Q. Have you given lamps to any one else, except aldermen? A. Certainly; yes, sir.

Q. Now, what else have you done that is criminating? A. I don’t think I have done anything that is criminating.

“ Q. You say these books contain evidence that might tend to criminate you? A. Well, it might in some way. I don’t know exactly. But I am not going to take any chances.

“ Q. You think you have been doing something that is crooked ? A. No, sir, I don’t think so. This is not simply bluff I am putting up to keep this grand jury from seeing these books. I had nothing to do with the books in 1900. I don’t think there is anything in these books that would tend to criminate me in 1900. I refuse to produce these books before this grand jury under the advice of our attorneys, Weadock and Davitt. They have advised me not to produce any of the books. They said I shouldn’t do it, because I didn’t have to do it. I came here in 1901, in July. Up to July there is nothing in those books in which I am in any way interested personally, of the customers’ ledgers. There are entries in the meter books for the years 1900, 1901, and 1902, in which I am interested personally.

“Q. Do those books contain a record of anything you gave away at that time ? A. I decline to answer that question.

“Q. Because it would tend to criminate you? A. Might have a tendency to criminate me.

“Q. Does the customers’ ledger contain anything for the year 1900 that might tend to criminate you, or in which you are in any way interested ? A. It might.

“Q. For 1900, before you came here? A. You said in •any way interested. I understood ?

“Q. Well, anything that would tend to criminate you? A. Personally ?

“Q. Yes, personally ? A. No, sir.

“Q. You decline to produce the customers’ledger for 1900 ? A. Yes, sir.

Q. Not because it would tend to criminate you; that is not the reason you decline to doit? A. Not the books for 1900; no, sir.

Q. There is nothing in the books of 1900 that would tend to criminate you? A. No, sir.

“ Q. Got a cashbook for the year 1900? A. Yes, sir,

Q, Anything in that book for the year 1900 that would tend to criminate you? A. I don’t think so. There is nothing in the books of 1900 that will criminate me—I don’t think in any book. I decline to produce the cashbook for 1900.

Q. You don’t decline to produce the books for the year 1900 because they might in any way tend to criminate you personally? A. I decline to produce the books on the advice of my attorney.

‘ Q. And that is the only reason you decline to produce them ? A. And there might be things appear in there that might have a tendency to criminate me in some way. I don’t know. I don’t propose to take any chances on them. I don’t know of a thing criminal, or that might tend to be criminal, that I did in 1900, in connection with the business of the Bartlett Illuminating Company. Mr. Weadock was the one, mainly, who advised me not to produce these books. I first talked with him about it perhaps last week, or week before last—since this grand jury has been called. I don’t remember whether or not I told Mr. Weadock what was in the books. I don’t know that I told him what boobs they were. (Witness is here given the instructions by prosecuting attorney that he is not obliged to answer any question that might tend to criminate him, and that if he commits perjury an indictment might be found against him by the grand jury.) I don’t believe I can say how many customers’ ledgers there are for the year 1900.

“Q. The books are in your possession ? A. Oh, yes.

“Q. Under your control ? A. Yes, sir.

”Q. And you are able to produce them here if you want to? A. Yes; I could produce them.

“Q. If you want to? A. Yes, sir.

“Q. You decline to produce them ? A. Yes, sir.

Q. Not because they tend to criminate you for the year 1900 ? A. Perhaps.

“Q. Perhaps? A. I don’t see how it could; no, sir. I decline to answer these questions on the ground our attorney says we don’t have to. That is the sole reason I decline to produce them.

“Q. Will you look at your books and see, and then report to the grand jury what they show ? A. Why, Mr. Attorney, why don’t you get that information from the secretary ? He is the man that handles the books. * * *

Q. How many members of the common council were carried upon the free list, as appears from the records and books in your office prior to the time that you became connected with the company ? A. I decline to answer that question, also.

Q. ' Because it would tend to criminate you ? A. Yes, sir.

Q. For no other reason ? A.' That is all.

Q. That is your only reason ? A. Yes, sir.

Q. And yet you admit you had no connection with the company prior to that time ? A. I was connected with another company on the same basis as the Bartlett Illuminating Company—with another branch concern.

“ Q. You had nothing to do with the business of this branch? A. No interest, except I was interested indirectly in it.

Q. Have any stock in it ? A. No, sir.

Q. Or an employe of the company? A. Not of this Bartlett Illuminating Company; no, sir.

“ Q. Have you ever had any talk or conversation at any time or place with Alderman Hermann on this subject ? A. I decline to answer that question.

“ Q. Why? A. Might have a tendency to criminate me.

Q. What—the talk you had with Hermann ? A. Yes, sir.

Q. You were mixed up in it with him—is that what you mean to say ? A. I said I declined to ansWer the question that you put to me, on the ground that it might have a tendency to criminate me.

Q. Yes; because you were mixed up in the matter with him ? A. I didn’t say so, Mr. O’Keefe.

Q. Well, why would it tend to criminate you, if you had nothing to do with it ? A. I am president of the company, and general manager when Mr. Hermann is out of town.

‘ ‘ Q. Do you have any knowledge of any crookedness in connection with this company ? A. Crookedness; no, sir.

“ Q. In letting this contract to the city ? A. No, sir; none whatever. There wasn’t any. The contract didn’t warrant it. If they contract to give you lights for $65, that don’t warrant them spending money. * * *

Q. Has any officer of the company instructed you not to submit the books of the company to this grand jury, and, if so, who is he ? A. Well, I can’t be positive about that. I am not sure whether Mr. Bonta told me not to do it or not, but our attorney—

Q. When did you see Mr. Bonta since this grand jury was called ? A. Oh, I met him in Chicago about a week or ten days ago.

Q. What did he tell you about transferring the names of certain aldermen from the F. L. list to the regular customers’ list ? A. I decline to answer that question.

Q. Why ? A. It might have a tendency to incriminate me.

Q. Did you have any conversation with him upon that subject ? A. I decline to answer that question also.

Q. Because it might tend to criminate you ? A. Yes, sir.

Q. Are you president of the company ? A. Yes, sir.

“ Q. What is the man you met in Chicago ? A. He is Vice-president. ”

On the part of the people it is said:

“ There are four cases that settle beyond controversy the law upon every question presented by the petitioner against his contention,-viz., In re Peasley, 44 Fed. 271; U. S. Express Co. v. Henderson, 69 Iowa, 40; Brown v. Walker, 161 U. S. 591; Wertheim v. Trust Co., 15 Fed. 716, note on page 721.”

The note referred to in the last case discusses the use which may be made of the subpoena duces tecum, and does not aid in solving the question before us. The case of U. S. Express Co. v. Henderson, supra, was one where the privilege was claimed not because the production of the books would tend to criminate the witness, but because they would tend to criminate the employer, and the court held that was not sufficient. In the disposition of the case, the court said:

“If it had been claimed that the books called for tended to render the witness criminally liable, it may be that he could not properly be required to produce them.”

In re Peasley, supra, and Brown v. Walker, supra, were both cases under the interstate commerce act, which act required persons to testify, and provided, among other things:

“But no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing, concerning which he may testify, or produce evidence, documentary or otherwise, before said commission, or in obedience to its subpoena, or the subpoena of either of them, or in any such case or proceeding.” 37 U. S. Stat. at Large, 443.

And it was held that because of that provision the witness could not avail himself in this class of cases of the constitutional provision that he shall not be compelled to be a witness against himself. We have no such provision in this State applying to such a proceeding as was under investigation by the grand jury.

Amendment 5 of the Constitution of the United States reads as follows:

“ No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”

Section 33, art. 6, of the Constitution of this State, is as ■follows:

“No person shall be compelled, in any criminal case, to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.”

In the case of People, ex rel. Taylor, v. Forbes, 143 N. Y. 219, the witness had testified, in the broadest terms, that he had no connection with the transaction which was the subject of inquiry by the grand jury, but refused to answer further questions put to him upon the ground that the answer might tend to criminate him. The court adjudged him guilty of contempt. In reversing his conviction, after quoting the constitutional provisions, the court said:

“ These constitutional and statutory provisions have long been regarded as safeguards of civil liberty quite as sacred and important as the privileges of the writ of habeas corpus, or any of the other fundamental guaranties for the protection of personal rights. When a proper case arises, they should be applied in a broad and liberal spirit, in order to secure to the citizen that immunity from every species of self-accusation implied in the brief but comprehensive language in which they are expressed. The security which they afford to all citizens against the zeal of the public prosecutor, or public clamor for the punishment of crime, should not be impaired by any narrow or technical views in their application to such a state of facts as appears from the record before us. The right of a witness to claim the benefit of these, provisions has frequently been the subject of adjudication in both the Federal and State courts. The principle established by these decisions is that no one shall be compelled in any judicial or other proceeding against himself, or upon the trial of issues between others, to disclose facts or circumstances that can be used against him as admissions tending to prove his guilt or connection with any criminal offense of which he may then or after-wards be charged, or the sources from which or the means by which evidence of its commission, or of his connection with it, may be obtained. The cases cover the point so completely that no comment or explanation is necessary, and it would not be useful to quote at much length from the language in which the decisions are expressed. It will be quite sufficient for every purpose of the opinion to note where they may be found: Counselman v. Hitchcock, 142 U. S. 547; Emery’s Case, 107 Mass. 172; State v. Nowell, 58 N. H. 314; Ex parte Boscowitz, 84 Ala. 463; Minters v. People, 139 Ill. 363; Temple v. Commonwealth, 75 Va. 892; Printz v. Cheeney, 11 Iowa, 469; People v. Mather, 4 Wend. 230; In re Hackley, 24 N. Y. 84; People v. Sharp, 107 N. Y. 427; 1 Burr’s Trial, 245. The question was fully discussed at an early day by Chief Justice Marshall on the trial of Aaron Burr, and every phase of it so completely explained and exhausted that his views were followed in the subsequent decisions. A single quotation from the language used will illustrate the scope and extent of the immunity which the witness can lawfully claim:

“ ‘ Many links frequently compose that chain of testimony which is necessary to convict any individual of a crime. It appears to the court to be the true sense of the rule that no witness is compellable to furnish any one of them against himself. It is certainly not only a possible but a probable case that a witness by disclosing a single fact may complete the testimony against himself, and to every effectual purpose accuse himself as entirely as he would by stating every circumstance which would be required for his conviction. That fact of itself might be unavailing, but all other facts without it would be insufficient. While that remains concealed within his own bosom he is safe, but draw it from thence and he is exposed to a prosecution. The rule which declares that no man is compellable to accuse himself would most obviously be infringed by compelling ■a witness to disclose a fact of this description.’ * * *

“ The testimony which the relator voluntarily gave before the grand jury, in general terms exonerating himself from all connection with the transaction, seems to have had great weight with the learned trial judge. It was argued that the relator could not possibly be put in peril by his answer to the question, since he had already testified that he had no connection with the transaction. But the conclusion was not warranted by the facts. The testimony of the witness might be ever so strong and clear in favor of his innocence, but it did not conclude the public prosecutor, in the absence of some constitutional or statutory provision securing the relator from prosecution. The general statements of a person charged with crime, in regard to his innocence, avail but little against incriminating facts and circumstances. His protestations of innocence and his broad general denial of any knowledge of or connection with the transaction might be overcome by facts and circumstances if the district attorney could be permitted to draw them from the witness. Any one who has had much experience in the conduct of criminal trials is aware of the fact that frequently the most dangerous proof that a person charged with crime has to meet are his own statements made for the purpose of warding off suspicion, or of satisfying others with regard to his innocence. It is not unusual on such trials to confront the accused with his own declarations made for the very purpose of ' exonerating himself from all suspicion, but which, when all the evidence is collected, are so far at war with all the facts and circumstances as to furnish evidence of guilt. The witness, by answering the general questions as to his connection with the affair, whether his answers were true or false, did not waive his right to remain silent when it was sought to draw from him some fact or circumstance which, in his judgment, might form another link in the chain of facts, and capable of being used under any circumstances to his detriment or peril. The circumstances relating to the purchase of the jugs, and the means employed to place them under the banquet room, were important as furnishing a clue that might lead to the identification of the guilty person or persons, and the witness was or appeared to be so related to the transaction that he might lawfully refuse to furnish the same, notwithstanding his general statements to the effect that he had nothing whatever to do with them. The witness who knows what the court does not know, and what he cannot disclose without accusing himself, must in such cases judge for himself as to the effect of his answer, and if, to his mind, it may constitute a link in the chain of testimony, sufficient to convict him, when other facts are shown, or to put him in jeopardy, or subject him to the hazard of a criminal charge, indictment, or trial, he may remain silent. While the guilty may use the privilege, as a shield, it may be the main protection of the innocent, since it is quite conceivable that a person may be placed in. such circumstances, connected with the commission of a. criminal offense, that, if required to disclose other facts within his knowledge, he might, though innocent, be looked upon as the guilty party. Adams v. Lloyd, 3 Hurlst. & Nor. 363.”

In the case of Temple v. Commonwealth, 75 Va. 892, the court, in disposing of the case, used the following language:

_ “ It is argued, however, that it is a question within the discretion of the court, always, whether the witness shalL be compelled to answer, and that the court must judge in the case before it whether the witness will criminate himself, and that the witness is not to judge of that fact for himself.

“Upon this question there has been some conflict in the. English decisions. But in this country the great weight, of authority is in favor of the rule that where the witness, on oath, declares his belief that the answer to the question would criminate or tend to criminate him, the court cannot compel him to answer unless it is perfectly clear, from a careful consideration of all the circumstances in the case, that^the witness is mistaken, and that the answer cannot possibly have such tendency. See Fries v. Brugler, 21 Am. Dec. 52, 57 (12 N. J. Law, 79), and cases there cited.

“In the famous Burr trial, Chief Justice Marshall said:

“‘It is the province of the court to judge whether any direct answer to the question which may be proposed will furnish evidence against the witness. If such answer may disclose a fact, which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict him of any crime, he is not bound to answer it so as to furnish matter for that conviction. In such a case the witness must himself judge what his answer will be, and if he say, on oath, that he cannot answer without accusing himself, -he cannot be compelled to answer.’

“In the case of People v. Mather, 4 Wend. 229, 254. Judge Marcy said:

“ ‘ If the witness thinks the answer may in any way criminate him, the court must allow his privilege, without exacting from him to explain how he would be criminated by the answer which the truth may oblige him to give. If the witness was obliged to show how the effect is produced, the protection would at once be annihilated.’

“See, also, Queen v. Boyes, 101 Eng. C. L. R. 309, 329 [1 Best & Sm. 311]. I think, upon the authority of these decisions, it may be safely said that wherever a party, on oath, declares that the answer to the question propounded to him will criminate himself, the court must accept that answer as true, and as making a prima facie case in which the witness must be excused unless there is something in the circumstances of the particular case which makes it appear either that the witness contumaciously refuses to answer, or where it appears that, from all circumstances, he is clearly mistaken as to any possibility of his future prosecution. The witness ought not in any case to be compelled to answer after declaring on oath that such answer may criminate himself, especially after he has taken the advice of counsel, unless it clearly appears to the court that he is mistaken. In the case before us it appears that the plaintiff in error, while held in jail as a witness, consulted with counsel, who advised him that he would criminate himself if he testified in the case against Berry, and gave the same testimony which he had given before the grand jury. The court might well have inquired into the fact whether he had actually received such advice of counsel, or, if it believed that such counsel was disreputable, and that the advice was given simply to protect the offender or to shield a contumacious or bribed witness, all these matters might have been properly inquired into by the court. But here we have a case where a witness states that he has consulted counsel, and that counsel has advised him not to answer the question' propounded to him, because it would criminate himself; and there is not a suggestion in the record that there was any motive, either in the witness or in his counsel, other than to raise the legal question whether he could be compelled to testify in a case where such testimony might tend to criminate the witness.”

See, also, Boyd v. United States, 116 U. S. 616; Counselman v. Hitchcock, 142 U. S. 547; United States v. Burr, Fed. Cas. No. 14,692 e; Adams v. Lloyd, 3 Hurlst. & Nor. 351, at 361-363; People v. Lauder, 82 Mich. 109; Entick v. Carrington, 19 How. State Trials, 1063; Cooley, Constitutional Limitations (6th Ed.), pp. 364-373; In re Archer, 134 Mich. 408.

.Applying these principles to the case at bar, I think the privilege claimed by Mr. Moser was within his constitutional right, and should have been respected.

I think it not necessary to discuss the second question raised by counsel, and that the conviction should be set aside and the petitioner discharged.


source: Caselaw Access Project

author: Carpenter, J. Moore, C. J.

license: Public Domain

text:
    BYRNE v. WERNER.

    Vendor and Purchaser — Conveyance op Partially Constructed Building—Building Materials—Passing op Title.
    Cub stone and structural iron belonging to the owner of a partially completed building, secured by him for use in the building, and lying on the lot on which the building stood and on an adjoining one, passed by the owner’s warranty deed of the lot on which the building stood. Moore, C. J., and Hooker, J., dissenting.

      Error to Marquette; Stone, J.
    Submitted April 7, 1904.
    (Docket No. 20.)
    Decided December 7, 1904.
    Trover by Samuel E. Byrne, Jr., against Jacob P. Werner and another for the alleged conversion of certain building material. There was judgment for- plaintiff, and defendants bring error.
    Reversed.

      Ball & Ball, for appellants.

      Button & Culver, for appellee.

       Rehearing denied January 30, 1905.

   Carpenter, J.

Plaintiff brings this suit to recover for the conversion of certain cut stone and structural iron. The property originally belonged to plaintiff’s father, Samuel E. Byrne. Both parties claim to have acquired his title. Plaintiff claims to have acquired it by a bill of sale executed in 1896. It is defendants’ claim that in 1887 the property in controversy was transferred by Samuel E. Byrne to Henry C. Thurber, and that they have acquired Thurber’s rights. It is clear that defendants have acquired the rights of Thurber, and that, therefore, the validity of their claim depends upon whether Byrne transferred the property to Thurber. The facts respecting the transfer are as follows:

In 1887 Byrne conveyed to Thurber by a warranty deed (intended to be a mortgage) lots 4 and 5 of block 17 in the city of Marquette. At that time there was situated upon these lots a partially completed building in the process of erection. There was also situated on the land conveyed and on an adjoining lot the cut stone and structural iron involved in this case, which was intended to be used in the completion of the building. The stone had been cut and dressed for the front of the building. Each piece of the structural iron was of the dimensions provided in the plan of the building, and fit for the place where it was to go. At that time it was intended that the building would be completed. The plan of completing the building was, for some reason, abandoned, and defendants used the stone and iron for another purpose.

Did the title to that material pass to Thurber by his deed ? The learned trial judge held that it did not. It is urged that the building material had not become a part of the land, and was, therefore, in a legal sense, personalty at the time of the conveyance to Thurber. If this be true, it is not, in my judgment, decisive of this controversy. Though the building material was personalty, it is our duty to declare that it passed with the partially completed building, if the parties so intended, and if that intent may be ascertained from a proper construction of the conveyance of the land upon which' said building stood. The question is, then, not whether the building material was in fact personalty, but whether it was intended to transfer it with the conveyance of the partially completed building. And this intent is to be determined by a proper construction of the conveyance; that is (see Norris v. Showerman, 2 Doug. 16; Davis v. Belford, 70 Mich. 120), by applying the language of the conveyance to its subject-matter. No uncertainty results from this rule. Upon the land con- • veyed to Thurber was an incomplete building in the process of erection. Situated upon that land and upon the adjoining land was building material designed to be used for the completion of the building. It was surely intended that the incomplete building should be transferred to Thurber. It was surely intended that the building would be speedily completed with the building material at hand. And I think it therefore equally certain that it was intended that such material should pass with the conveyance. In my judgment, there is no sound principle of law which compels us to defeat this intention. On the contrary, I maintain that it is our clear legal duty to give it effect. I think, therefore, that the building material became the property of Thurber. This conclusion is sustained by authority.

In Wistow’s Case of Gray’s Inn, (14 Hen. VIII.) 11 Coke, 50b, it was resolved that a millstone temporarily severed from the mill, with the intention that it should be replaced, passed with the conveyance of the mill. “So of doors, windows, rings, etc. The same law of keys, although they are distinct things, yet they shall pass with the house.”

In Conklin v. Parsons, 1 Chand. (Wis.) 240, it was held that rails placed along the boundary line, “not laid up into a fence, but which had been placed on the land for the purpose of building the fence,” passed with the conveyance of the land.

In Ripley v. Paige, 12 Vt. 353, there was a controversy as to whether certain rails passed with the conveyance of land from plaintiff to defendant. Defendant offered to prove that when the conveyance was made the rails were distributed upon the farm for the purpose of being there erected into a fence. The court said:

“ Upon this branch of the case we are inclined to regard the rails, if it was evident from the manner of their distribution upon the land, and other appearances, that they were designed for immediate use in fencing the land, as we should the materials. of a fence accidentally fallen down, or of one purposely taken down to be immediately reconstructed, or those of an intended wall distributed in like manner. As fences always pass by a deed of the soil on which they stand if the grantor has an unrestricted right to convey both, so we are disposed to think that such materials for a fence may, in all these cases, as against the grantor, be treated as being within the operation of his deed.”

In Hackett v. Amsden, 57 Vt. 432, it was held that stone posts, which it seems were deposited on a farm for the purpose and with the intention of building necessary fences, could not be seized and sold as personalty; the court saying:

Whatever the rule may be elsewhere, it seems to be settled in this State that suitable materials, deposited upon a farm for the purpose and with the intention of building necessary fences with them thereon, pass by a conveyance of the land as a part of the realty.”

In Wadleigh v. Janvrin, 41 N. H. 503, it was held that certain stanchion timbers, stáples, tie chains, and planks, which had been removed from a barn for the purpose of making repairs, passed to plaintiff by a conveyance from defendant of the land upon which the barn stood, notwithstanding the fact that the latter had formed a plan unknown to the former to make changes in the barn and to dispense with their use. The court said:

“It was entirely immaterial what purpose the defendant had formed, so long as he had not carried it out. By the conveyance the barn passed to the plaintiff just as it then was, with portions afterwards carried off by the defendant dissevered from the rest. The plaintiff saw the barn in the process of repair. He had a right to infer, and to act upon the inference, that the dissevered portions constituted an integral portion of the edifice.”

In Palmer v. Forbes, 23 Ill. 301, it was held that the title to rolling stock and the material provided for the repair of tracks was transferred by a mortgage of the real estate of a railroad company; the court saying:

“Itis a familiar principle to all that rails hauled onto the land designed to be laid into a fence, or timber for a building, although not yet raised, but lying around loose and in no way attached to the soil, are treated as a part of the realty, and pass with the land as appurtenances.”

This decision and reasoning go farther than it is necessary for us to go in the case at bar. .

In McLaughlin v. Johnson, 46 Ill. 163, it was held that rails which had once been and which were intended to again be used for a fence passed with the conveyance of the land notwithstanding the fact that at the time of such conveyance they were actually in temporary use on adjoining land. See, also, Curtis v. Leasia, 78 Mich. 480.

Harris v. Scovel, 85 Mich. 32, is not inconsistent with these views. There it was held that rails piled on land did not pass with its conveyance. The rails had once formed part of a fence. The grantor had taken down the fence because it was no longer needed, intending to use the rails elsewhere. It is clear that there was no ground upon which the grantee could assert that it was intended that the rails should pass with the land.

Johnson v. Mehaffey, 43 Pa. St. 308, relied upon by-plaintiff and the learned trial judge, is, in my judgment, clearly distinguishable from the case at bar. In that case it was held that rolls originally purchased to be put in a mill did not pass upon a conveyance of the mill. At the. time of the sale these rolls had for nearly three years re-' mained on the property, unused, and in a rough, unfinished state. They were not necessary to the operation of the mill, for the mill had always run without them. This afforded a ground for saying that it was not intended that the rolls should pass to the purchaser of the mill. That gound does not exist in this case, for the building material in question was necessary for the completion of the building.

Woodman v. Pease, 17 N. H. 282, cited by plaintiff, is very similar to Johnson v. Mehaffey, supra, and is likewise distinguishable from the case at bar. It is true that the court in deciding each of these cases stated that personalty does not become a part of real estate until actually annexed thereto. If by this it was intended to assert that, notwithstanding the obvious intent of the parties, property originally personalty, will not, unless actually annexed thereto, pass on a conveyance of real estate, the court made a statement not necessary to its decision—which might have rested upon the intention of the parties concerned—and which, as already indicated, I cannot approve. Other cases cited by plaintiff are even more easily distinguishable.

In Cook v. Whiting, 16 Ill. 480, it was held that the c< simple intention ” of the vendor, before he sold his farm, to erect posts into a fence and hewed timber into a granary, without having done anything towards those objects more than to haul said posts and timber onto the farm, “is not sufficient to pass the property in said posts and timber.”

In Peck v. Batchelder, 40 Vt. 233, the court gave effect to the obvious intention of the parties in deciding that certain property, viz., detached extra blinds and windows, did not pass with the sale of the house.

It was held in Carkin v. Babbitt, 58 N. H. 579, where the controversy arose between the owner and an attaching creditor, that lumber designed for the erection of a house was personalty. The facts in that case were very unlike those in the case at bar. The lumber was “neither in form nor position as it was designed to be permanently used.” There was nothing “ to distinguish it from ordinary lumber suitable for building purposes.” Nor could the court apply in that case the principles applicable to a controversy between mortgagor and mortgagee.

I think, therefore, that the defendants were entitled to a verdict, and that the judgment should be reversed, with costs, and a new trial ordered.

Grant and Montgomery, JJ., concurred with Carpenter, J.

Moore, C. J.

(dissenting). In 1886, Samuel E. Byrne, father of the plaintiff, was the owner of part of lots 4 and 5 of block 17 in Marquette, and commenced the erection of a building thereon. He had plans and specifications drawn, specifying each piece of structural iron to go into the building, with the size and length of each piece. He ordered a considerable quantity of structural iron, each piece of which was of the dimensions provided in his plans, and fitted for the place where it was to go. After commencing to lay the foundation, he brought some of the structual iron upon the premises and some on an adjoining lot, where it would be most convenient to put into the building. He also purchased some building stone, which was cut and dressed for the front of the building by the masons hired by him, some of which were on the premises and some on an adjoining lot. He continued the work of building until the following year. A considerable quantity of the structural iron was built into the structure and some of the stone was used. After finishing the basement story, the work was suspended, but Mr. Byrne intended to go on with the work, and the iron and stone were left there for that purpose. Mr. Byrne gave Mr. Thurber a warranty deed of the premises April 20, 1887, and no work was done on the building after that time. The deed was intended to operate as a mortgage, and Byrne expected, notwithstanding the deed, to complete the building. Mr. Byrne had, in 1883, mortgaged the premises to one Michael Hagerty to secure the payment of $2,500, which remained unpaid. He also executed mortgages on the property—one to Campbell & Wilkinson, February 14, 1885, for $1,100, and one to James Dwyer, July 20, 1887, for $1,400. The Thurber title was sold on execution July 13, 1889, for $2,000. Hénry C. Thurber, by warranty deed dated April 23, 1889, acknowledged February 4, 1890, conveyed the premises to Peter White for $4,000. After making this purchase from Thurber, Mr. White purchased all these other mortgages and the execution lien. The several deeds and mortgages above enumerated covered the real estate, and made no mention of building material. The structural iron and stone remained on the premises as they were left at the suspension of building operations. April 15, 1902, Mr. White, by warranty deed, conveyed the premises to the defendants. The deed, when first drawn, included the building material on the premises, for which this suit was brought, but at the request of the defendants it was stricken out of the deed, and a separate bill of sale was given for it. Defendants moved the material out of the way, and proceeded to put up a business building on the premises, using therein a small portion of the material involved in this suit, and disposing of the rest. Samuel E. Byrne executed a bill of sale of the said building material to the plaintiff May 20, 1896. The plaintiff brought an action of trover for this building material, and recovered judgment. A motion for a new trial was made, which was overruled. The case is brought here by writ of error.

In overruling the motion for a new trial the circuit judge filed a written statement, which states so admirably the questions involved, that we reproduce it here:

“ 1. The first reason assigned for the motion is that the court erred in refusing to charge the jury as requested by defendants’ counsel in the first request. This request related to the subject of fixtures, and was to the effect that the property which was the subject-matter of this suit passed by virtue of the deed from Samuel E. Byrne, Sr., to Thurber. This deed was in the usual form of a deed of lands. There was evidence tending to show that it was intended by the parties thereto to be a mortgage. But as the rule, when applied to mortgages, is no more favorable to the plaintiff than when applied to a deed, it is not very material here. I refused this request at the trial upon a somewhat hasty examination of such authorities as were at hand. A more careful examination of the authorities has confirmed my position at the trial. The evidence was undisputed that Samuel E. Byrne, Sr., had, as early as 1886 or 1887, commenced the erection of a building, and had purchased the structural iron and stone in question to go into the building, and that the same had been prepared for the building, and had been delivered upon or near the premises, with the intention to place the same in the structure. My recollection of the evidence is that work on the building had ceased for want of funds at the time of the deed to Thurber, but of this I am not positive. It certainly had ceased before the deed to White. These were articles to be annexed to the land.

‘ ‘ ‘ The question as to the necessity of actual annexation also arises as to articles which have not yet been annexed to the land, but have merely been brought on or near the land with the intention of annexing them. Such articles are, by the weight of authority, perhaps, to be considered as still personalty, though the contrary has quite frequently been decided.’ 13 Am. & Eng. Enc. Law (2d Ed.), pp. 601, 602, and cases there cited.

“ It seems to me that it cannot be said that this iron and stone formed or constituted a necessary accessory to the' enjoyment of the land, which seems to be the rule laid down by some of the courts as the true test where annexation had not actually taken place. Much of the iron in question never went into the building since erected by defendants, but was exchanged for that more modern and suitable. The old rule seems to have been, that there must be physical annexation, but under some circumstances that rule has been relaxed where the article is shown to be a necessary accessory to the enjoyment of the land. The fact that a place was prepared in which to put an article does not necessarily make the article part of the realty. Id. 608, 610. Notwithstanding the language of our Supreme Court in the case of Curtis v. Leasia, 78 Mich., at page 483, I understand that in a case like the one under consideration the question may be said to be an open one in this State.

“ Having ruled as I did upon the trial, and finding upon further examination no reason to change the ruling, I feel like adhering to the ruling, and must refuse a new trial upon this ground. Upon this subject I refer to the following case: The reasoning of Lowrie, C. J., speaking for the court, in Johnson v. Mehaffey, 43 Pa. St. 308, is very satisfactory. The action was replevin for two rolls' which had been cast for a certain rolling mill. The mill was sold to the plaintiff, who claimed the’ rolls. The rolls had been sold on execution as the personal property of the grantor. The rolls had been paid for and delivered at the mill, where they remained for about three years, in a rough and unfinished condition, without having been put into the mill. After stating these facts, the court said:

“ ‘These rolls were cast for this rolling mill, and paid for and delivered beside it, and lay there two or three years without being turned or finished oft’ or put into the mill, and then the mill was sold by the sheriff. Do the rolls go with the mill to the purchaser ? The test question is, Were they elementary parts of the mill at the time of the sale ? And as matter of fact it is quite plain that they were not, for the mill had always run without them. No doubt they were intended to be made part of the mill, but we do not see how we can take the intention, without fact, in order to declare what constitutes the mill. If we do, then'the sale of a half-built or half-ruined house would include all the materials provided for its completion or repair. A very provident man is quite sure to have on hand materials which he sees will some time be necessary for the repair of his works, or for supplying deficiencies in them; but his having them with this intention does not make them constituent parts of his works. Thus he will provide extra saws for a sawmill, or bolting cloth for a flourmill, or extra castings for the running gear, or lumber, nails, screws, and other materials, to make improvements or repairs; but this prudence does not convert personal into real property, so long as the fact remains that they are not yet made constituent elements of the mill or other structure. That fact we can ascertain and define with reasonable certainty, but we can have no measure for the ever-varying degrees of prudent forethought. And if mere intention could affix such articles to the realty, then a mere change of intention would unfix them, or prevent their becoming affixed, and we should thus be without any rule at all to guide us. Besides, it is rather a contradiction in terms to say at the same time that they are parts of the structure, and are intended to be made so. That these rolls will fit no other mill does not make them part of this one, or prove them so. Furniture for a dwelling house, shelving and drawers for a store, boilers, and flywheel for an engine, the frame for an addition to a house, have often this very peculiarity, and great loss would arise if they should not be applied according to the intention with which they were made. Yet they cannot be a part of the real estate without a purpose of annexation actually eifectuated, though this peculiarity of adaptation may, by inference or corroboration, supply the want or the weakness of direct evidence of annexation, whenever this fact can be reasonably said to be left in doubt by the other evidence.’

%. It will be borne in mind that defendants’ requests upon the subject of abandonment were all given. The second reason for the motion is that the jury disregarded the clear weight of evidence and the charge of the court upon this subject. The jury were charged that abandonment is the relinquishment or surrender of rights or property by one person to another; that it includes both the intention to abandon and the external act by which the intention is carried into effect; that to constitute an abandonment there must be the concurrence of- the intention to abandon and the actual relinquishment of the property, so that it may be appropriated by the next comer. In View of the fact that Samuel E. Byrne, Sr., had in 1896 made a bill of sale of this property to the plaintiff, and that both the plaintiff and his vendor testified that they never intended to abandon it, I cannot say that the verdict was against the clear weight of the evidence upon this subject.

“3. Upon the question of adverse possession or the statute of limitations the jury were charged as requested by defendants’ counsel. Now for the first time defendants’ counsel take the position that ‘the uncontradicted evidence of the case showed continued adverse possession of the property by the defendants and their grantor for more than six years prior to the beginning of the suit.’ The evidence showed that the lot and real estate, with a partially constructed wall, had been unoccupied for a long term of years before the defendants commenced the erec-' tion of their building in 1902. The premises near the sidewalk were in a somewhat dangerous condition, as they were upon a level with the walk, and Mr. White had placed guards there to prevent persons from going upon the wall, and a small candy store had stood there for a short time. I do not think that there was any evidence that Mr. White had done or performed any act that would indicate that he claimed to own the structural iron and stone that lay loosely scattered about upon and near the premises covered by his deed. In fact, all of his acts were more consistent with assertion of ownership of the real ■estate, than with an open, adverse claim of the ownership of this personal property, until he sold the same by bill of sale to the defendants in 1902. So I cannot agree with defendants’ counsel that the verdict was even against the weight of the evidence upon this subject.

‘ ‘ 4. The court, upon its own motion, and without request from defendants’ counsel, fully charged the jury upon the subject of estoppel. Defendants’ counsel claim that the jury disregarded the evidence in the case and the charge of the court, and that defendants were entitled to a verdict upon that ground. In the light of the testimony of Samuel E. Byrne, Sr., it is not fair to say that the evidence upon the subject was undisputed. A question of fact was raised by the testimony of Mr. White and Mr. Byrne, which was for the jury to consider. Mr. White had testified to the representations claimed to have been made by Byrne that all of the material went with the premises, and that, relying upon that, he purchased from Mr. Thurber, in the spring of 1889, and that he and Thurber walked upon the premises, and that he then took possession of this personal property. It appeared by reference to the deed from Thurber that it was executed in Washington, D. C., some time after its date. There is no doubt that this fact may have influenced the jury. It was unexplained by Mr. White. It also appeared that at the time Mr. Byrne, Sr., had a talk with Mr. White about his getting a deed from Thurber, he, Byrne, contemplated finishing the building. Had the building been completed, this material would, in all probability, have gone into it, and the security or value of the property would have been increased. So there was some force in Mr. Byrne’s claim in his testimony that, while he did refer to the material as possessing a value, he did not say that it went with the land. I simply refer to this to show that there was here a question of fact for the jury, and that I cannot say, as matter of law, that the defendants were entitled to a verdict upon the ground of an estoppel.”

It is said the court erred in admitting the testimony of' Byrne as to the gross cost of the structural iron. Mr.. Byrne had testified that the structural iron cost him $62 a ton; that it had remained about the same price from then until now, and that he did not think over a fourth was affixed to the structure; that he was positive not more than a third was affixed. He was then asked for its gross purchase price, and the judge -said that in connection with his other testimony, where he stated he thinks there has been no change, he would, for that reason only, permit the answer. We think this ruling was not error. See Kendrick v. Beard, 90 Mich. 589; Johnston v. Insurance Co., 106 Mich. 96.

It is said the evidence did not warrant a verdict for the plaintiff, and the court erred in submitting the case to the jury.

1. Samuel E. Byrne, Sr., was estopped by his words and acts from claiming ownership of the materials as against Mr. White after his purchase from Thurber.

2. If the plaintiff, or his grantor, ever had any right of action, it was barred by lapse of time before this suit was commenced.

There is nothing in the record to show that the judge was requested to take the case from the jury. Upon the question of estoppel the jury were charged:

“I first call your attention to this question of estoppel that is. claimed here by the defendants in this case. It seems that at one time this property had been deeded by Mr. Byrne, Sr., to Mr. Thurber, of this city, and subsequently Mr. White obtained the interest that Mr. Thurber had by a deed of conveyance made in 1889, as I remember it. The claim of Mr. White here is that before he made the purchase from Mr. Thurber of the land or any of this property that he had certain conversations with Mr. Byrne, 'Sr., at a time when Mr. Byrne had not yet parted with this property by his bill of sale to his son, and the claim of Mr. White is that at an interview had between him and Mr. Byrne, at which Mr. Byrne desired him (White) to .obtain the interest of Mr. Thurber, that Mr. White expressed the belief that the property was not worth the amount he would have to pay Mr. Thurber, together with the mortgages that were upon the property—referring to the Campbell & Wilkinson mortgage, the Dwyer mortgage, and the Hageriy mortgage; and Mr. White claims before you in his testimony that Mr. Byrne said to him: * There is a great deal there that you don’t see, that you don’t count. There is material enough to almost finish the building. It all goes with it.’ And Mr. White claims that in many talks had with Mr. Byrne before he (White) became interested by purchasing from Mr. Thurber, Mr. Byrne said to him that that property would all pass if he dealt with Thurber, and belonged to the property, and would go into and with the lot or building. Now, gentlemen, the first question that arises, Was this statement made by Mr. Byrne to Mr. White ? While the court advises you that this personal property, consisting of this .structural iron and stone, would not pass by a deed of the realty simply to Mr. Thurber, whether that was a mortgage or a deed, it would not pass by virtue of the instrument, it would have been perfectly competent for Mr. Byrne by an oral arrangement—by a verbal .agreement—with Mr. Thurber at that time to have passed over and conveyed to him this personal property. And if, before Mr. White purchased this real estate of Thurber, and took, as he claims, Mr. Thurber’s interest in this personal property—for I understand that it is claimed that accompanying this transaction of the deed from Thurber he took, by virtue of a verbal arrangement with Thurber, the right to receive this personal property, and claims that it was pointed out to him and delivered to him by Mr. Thurber; and it is for you to weigh this evidence and say whether Mr. White is correct or not; that being his claim, I say, that if Mr. Byrne gave him to understand by any conversations with him that Mr. Thurber owned not only the real estate, but also owned the personal property there; that it belonged to him, would pass to him (White) if he dealt with Thurber—then Mr. Byrne is es-topped, and his vendee, his son, is estopped, from claiming any interest in this property. For a roan cannot stand by, or cannot induce another' to purchase property in which h& claims an interest, if he gives such purchaser to understand that he will get a good title if he deals with somebody else with reference to it. He is estopped from asserting any such claim. If you stand by while I am purchasing a horse of your neighbor, and say that your neighbor owns that horse, and, if I buy him, I will get a good title, and I purchase the horse and pay my money for it, you are estopped—your mouth is closed—from ever after-wards claiming that you owned the horse at that time;, because you have by your conduct and language induced me to part with my money, and it is inequitable and unjust for you to make a claim inconsistent with that. The doctrine is a familiar one in the books. When a person, by his words or conduct voluntarily causes another to believe in the existence of a certain state of things, and thereby induces him to act upon that belief, so as to change his previous condition, the person inducing such belief will be estopped from afterwards denying the existence of such a. state of things to the prejudice of the person so acting. In other words, if a person knowingly and voluntarily so conducts himself in relation to his business as to justify persons dealing with him in supposing and believing that a certain state of facts exists, and such person so dealing-with him relies upon that inference and belief, the person so conducting himself will not afterwards be permitted to deny that such state of facts did exist, to the prejudice of the person acting upon such belief.

“You will remember that in the conduct of the trial yesterday, and while Mr. White was upon the stand, the court asked him this question:

“ ‘ You may state whether the fact that Mr. Byrne, Sr., stated to you that this material was to go with the building, and the other conversations you have referred to, had any influence upon you in purchasing the property.’

“ And you remember that Mr. White claimed and said in answer to that:

“ ‘Most decidedly. I wouldn’t have touched it—I wouldn’t have paid him 84,000—without the complete understanding that all the material there belonged to or went with the building. Mr. Byrne’s, own argument was that it was ample to cover the 84,000.’

“I do not wish to emphasize this language by calling' your attention to that; more than to call your attention to the 'point involved. You will weigh the testimony of Mr. Byrne upon the opposite side of this question, in which he denies that he said to Mr. White that it would go with the building, or with the transaction or trade with Thurber. Now, who is right about this, gentlemen ? If you shall say that Mr. Byrne used this language, it having been perfectly competent and proper for Mr. Byrne to have conveyed this property by oral arrangement to Mr. Thurber, if you shall say that he did do that, or, even if he didn’t do that at all, but gave Mr. White to understand by language that a reasonable man would believe and be induced to act upon, that he had so conveyed it over to him, by a verbal or other arrangement, so that if he (White) did deal with Thurber he obtained the interest in this personal property, then I say Mr. Byrne is estopped from claiming this property; and his son, who afterwards became the alleged owner of it by virtue of a bill of sale, could take no greater title than his father had; and, if his father had parted with his title to that property, then he could convey no interest in it. So much for this doctrine or claim of estoppel on the part of the defendants.”

Mr. Byrne denied most emphatically Mr. White’s testimony as to Byrne’s telling him the title to the iron and stone passed to Thurber by the deed.

In Maxwell v. Bridge Co., 41 Mich. 453, the court said:

“The doctrine of estoppel rests upon a party having directly or indirectly made assertions, promises, or assurances upon which another has acted under such circumstances that he would be seriously prejudiced if the assertions were suffered to be disproved or the promises or assurances to be withdrawn. But as the doctrine, when applied, operates to take away legal rights, it is no more than common justice to require that the facts which are supposed to call for its application shall be unquestionable, and the wrong which is to be prevented shall be undoubted. Fredenburg v. Lyon Lake Church, 37 Mich. 476; Cronin v. Gore, 38 Mich. 381. Moreover, the question of its application in any case is a mixed question of law and fact, and in cases of jury trial must be submitted to the jury under proper instructions. Now, however clear the facts in support of the estoppel may seem to be, it is always possible that there may be qualifying or overruling facts; and the conclusions from the evidence must be drawn by the jury, not by the court.”

In relation to the claim of plaintiff being barred by lapse of time, we think it sufficient to refer to what was said by the learned trial judge in overruling the motion for a new trial.

We now come to the most difficult question in the case; that is, whether, as claimed by defendants, the court erred in the instruction given to the jury that the structural iron and stone did not become a part of the realty, and refusing the request of defendants’ counsel on that subject. It must be confessed there is a good deal of conflict in the authorities. They are collated at length in 13 Am. & Eng. Enc. Law (2d Ed.), at pages 601 to 610, and in the notes thereto. We are impressed with the reasoning of Chief Justice Lowrie in Johnson v. Mehaffey, 43 Pa. St. 308, from whose opinion Judge Stone quoted so copiously. There is an expression used in Curtis v. Leasia, 78 Mich. 483, by Justice Sherwood, that tends to support the claim of defendants, but it is obiter dictum. The court held in the case that the rails which were claimed to be realty were not realty, but were personal property. See Harris v. Scovel, 85 Mich. 32. In this case it appears the defendants made new plans for a building, which rendered the structural iron and dressed stone unfitted for use therein. Was this material up to that time real estate, and from that time on personal property? If so, would the same result have followed had Mr. Byrne changed the plan of the building while he owned the property ?

We are inclined to agree with the trial judge as to the weight of authority, and that the judgment should be affirmed.

Hooker, J., concurred with Moore, C. J.