author: Montgomery, J.

text:
    LOCKARD v. VAN ALSTYNE.
    1. Intoxicating Liquors — Civil Damages — Evidence—Admissibility.
    In an action under the civil-damage act (section 5398, 3 Comp. Laws) against a druggist and his sureties for the unlawful sale of intoxicating liquor to plaintiff’s husband, testimony of the county treasurer that others were engaged in the drug business in the same city was properly refused, in the absence of any showing that such druggists had sold liquor to plaintiff’s husband.
    3. Evidence — Conclusions—Preliminary Facts — Cross-Examination.
    The admission of testimony, objected to on the ground that it called for conclusions rather than statements of facts, is not error when it is apparent that the statements were preliminary in their nature and were followed by detailed statements, since on cross-examination further details could be obtained if desired.
    3. Intoxicating Liquors — Civil Damages —Evidence —Hearsay Evidence — Matters Brought'Out on Cross-Examination.
    "Where, on cross-examination, plaintiff had testified that she had not forbidden defendant to sell intoxicating liquor to her husband, it was proper, on redirect examination, to give her reasons for not doing so; and testimony that her husband said it would do no good to prohibit the selling of liquor to him, that he would get it anyway, is not objectionable as hearsay, it being a statement of fact.
    4. Same — Civil Damages — Evidence—Hearsay Evidence — Res Gestjb — Competency.
    Where a witness, a physician, testified that, in making a professional call upon plaintiff in her home, witness saw her husband in a partially intoxicated condition, that he was drinking liquor out of a bottle, and that he asked witness if he would have some. Held, that such statement was admissible as part of the res gestas, and tended to show the drinking habits of plaintiff’s husband; and, when considered in connection with the testimony showing that he secured whisky from defendant in bottles and took it home, might be some evidence of the drinking of the very whisky sold by the defendant.

      5. Appeal and Error — Harmless Error — Hearsay Evidence.
    Where, on the trial, defendant’s counsel called one of plaintiff’s counsel as a witness and by implication charged him with advising a witness, who had been subpoenaed for plaintiff, to get out of town on a certain train, the error, if any, in permitting said counsel, on cross-examination, to state that he had received information that said witness would give certain testimony, but that on talking with the witness himself he discovered that he would not so testify, was not prejudicial.
    6. Intoxicating Liquors — Civil Damages — Evidence—Admissibility.
    The admission of plaintiff’s testimony that her husband engaged in a fight and directly afterwards went into defendant’s store and remained nearly two hours, and that when he came home he was intoxicated, was not prejudicial to defendant, since he could not contend that plaintiff’s husband became intoxicated by visiting his store, and such testimony indicated that he must have been intoxicated before he went there.
    7. Same — Civil Damages — Evidence—Competency.
    Testimony of the employer of plaintiff’s husband that her husband drew money from him nearly every day and went immediately to defendant’s store1 and came back with whisky and drank it in the shop and was intoxicated, was competent as bearing on the habits of her husband, and also on the fact that defendant was furnishing him liquor, and rebutted the idea that the liquor was sold for any other purpose than as a beverage.
    8. Same — Expert Witnesses — Competency.
    Testimony of physicians as to the causes which might have produced a miscarriage, no objection having been made that the testimony was not admissible under the pleadings, was not prejudicial to defendant, where, in answer to hypothetical questions, they testified they would be unable to state what cause produced said miscarriage.
    9. Same — Civil Damages — Evidencl — Proof of Other Offenses — General Bule — Exception.
    It is the general rule that proof of one offense cannot be admitted to prove another, yet, where it is necessary to show a particular intent in order to establish the offense charged, proof of acts of the same kind is admissible to show such intent; and where, under the theoryof the defense, as far as disclosed, it was claimed that sales of intoxicating liquor were lawfully made for medicinal purposes, it was competent to prove sales to third parties of such liquor to be used as a beverage. Hilliker v. Farr, 149 Mich. 444, distinguished.
    10. Same — Civil Damages — Evidence.
    Testimony that a druggist sold beer to be drunk upon the premises, and that he kept a refrigerator in which such beer was stored, was competent as bearing upon the good faith of the claim that the liquor was sold for medicinal purposes.
    11. Same.
    The report of defendant to -the prosecuting attorney showing sales of liquor to plaintiff’s husband was properly received in evidence, there being other evidence that such sales were unlawfully made.
    12. Same — Civil Damages — Instructions.
    In such action, an instruction that if defendant made sales of intoxicating liquor to plaintiff’s husband for any other purposes than those provided by the statute he would be liable in damages, was a correct statement of the law. Merrinane v. Miller, 148 Mich. 412, distinguished.
    Error to Van Burén; Des Voignes, J.
    Submitted November 16, 1908.
    (Docket No. 63.)
    Decided March 3, 1909.
    Case by Carrie E. Lockard against Charles H. Van Alstyne, principal, and Matthew Van Alstyne and Ered Niffenegger, sureties, under the civil-damage act. There was judgment for plaintiff, and defendants bring error.
    Affirmed.

      Barnard & Lewis, for appellants.

      W. G. Bessey and Benjamin F. Heckert, for appellee.
   Montgomery, J.

This action was brought under the civil-damage act against the defendants Charles H. Van Alstyne, as a druggist, and his codefendants, as sureties. The declaration alleges that between the 27th of April, 1907, and the 26th of December, 1907, unlawful sales of liquor were made to plaintiff’s husband, and that in consequence of the sales of liquor the husband used profane and abusive language to plaintiff, and she was injured in her means of support. The plea was the general issue, and on the trial before a jury plaintiff recovered a verdict of $750, upon which judgment was rendered, and the defendants bring the case here for review on error.

The record contains 61 assignments of error, but even this liberal number seems not to have been sufficient to cover the points desired to be raised, for under the 59th assignment of error 5 distinct questions are raised, under the 60th 15 distinct questions are presented, and under the 61st 25 questions are sought to be raised. The learned trial judge must have been very unfortunate indeed if he was guilty of committing as many errors as he stands charged with on this record, namely, something more than 100. Fortunately for the administration of justice in his circuit, we are able to say that we think the defendant’s counsel are seriously mistaken in supposing the trial to have been so replete with error. The testimony on the part of the plaintiff tended to show that the defendant Van Alstyne, commencing with the 29th of April and continuing to the 19th of December, reported to the prosecuting attorney sales having been made to Bradford Lockard of whisky from time to time, consisting of two, three, four, and up to seven ounces of whisky at a time, and in many instances these sales were on consecutive days, as reported. Other testimony on behalf of the plaintiff tended to show even a larger number of sales than these by the defendant, and there was abundant testimony tending to show that during this period the plaintiff’s husband became at times intoxicated and used abusive language towards her, so that there was ample justification for a verdict in favor of the plaintiff upon the facts. But it is contended that error was committed in the progress of the trial in the admission of testimony, in the remarks of counsel, in the refusal of the court to submit special questions, in refusing defendants’ requests to charge, and in the charge of the court as given.

The first assignment discussed is the refusal of the court to permit evidence on cross-examination of the county treasurer to show that other druggists were engaged in business in the city of South Haven. Of course it goes without saying that this testimony in and of itself was of no consequence whatever. It was intimated by the defendants’ counsel that they would follow it up by showing that other druggists sold the plaintiff’s husband liquor. If defendants were prepared to do this, it would be immaterial as affecting the plaintiff’s case as to whether such druggists had filed bonds or not. The fact of the sale by other druggists, in so far as it tended to account for the condition of plaintiff’s husband, might have been admissible; but whether the place at which such sale was made was a drug store which had complied with the law or not would be unimportant. It is to be noted that, so far as the record discloses, no subsequent offer was made to show any such state of facts as suggested by counsel.

Numerous assignments of error are based upon the claim that witnesses were permitted to testify to conclusions rather than to facts. To illustrate the captious nature of these objections, we quote two consecutive questions and answers propounded to the plaintiff:

“Q. You may state whether or not he did support you between the 27th of April, 1907, and the time you commenced this suit ?
“A. No, sir.”

Defendant’s counsel moved to strike out the answer. The nest question propounded was:

Q. Now state to the jury in what respect there was a failure to furnish you with the necessary provisions and clothing during that time.”

It is perfectly obvious that the first question was preliminary, with the purpose of immediately following it with the details of the plaintiff’s deprivation, and it may be said of all the questions objected to upon this ground that, in so far as they were not preliminary in their nature, they related to questions of fact which might properly be stated in the manner in which they were, leaving the defendants the opportunity to cross-examine as to details if they sought to enter upon them.

The next group of errors relates to rulings on testimony which counsel denominates as “grossly hearsay.” This testimony was admitted upon redirect examination of plaintiff. On cross-examination the plaintiff testified as follows:

“ I never went over to Van Alstyne’s and forbid them selling to him. Yet he was coming home in a beastly state of intoxication. I never forbid them selling him liquor because I have ofttimes spoken of going and forbidding Van Alstyne selling him, and he would only swear at me and say it would do me no good. The more trouble I made him the worse he would be.”

On redirect examination plaintiff’s counsel asked:

“Q. Counsel asked you whether you had notified Mr. Van Alstyne not to sell your husband, whisky?
‘A. I didn’t go and tell him myself.
Q. But you did talk of doing that to him?
“A. Yes, sir; I have.
“ Q. What did he say and do about it?
“A. He said it would make no difference, he would get it anyway, and he said I must not go over there and say one word to him about it.”

A motion was made to strike out this testimony as hearsay. It is perfectly manifest that this testimony was redirect examination of what had been brought out on cross-examination. The most that can be said against it is that it was unnecessary to have the witness repeat what she had already testified to; but, the defendants having drawn out the fact that she had failed to notify the defendant to refrain from selling her husband intoxicants, it was entirely proper for her to give her reasons on redirect examination, and this was not in any objectionable sense hearsay testimony. It was a statement of fact.

Another item of so-called hearsay testimony: Dr. W oolsey, a witness for the plaintiff, testified that at one time when he was attending upon plaintiff he saw her husband partially intoxicated, and, when asked if he had ever seen him drinking intoxicating liquors in the house, replied that he had. He proceeds:

“ I went out into the second room from the front room to get water for my medicine, and he didn’t know I was coming, of course, I don’t suppose, and he was drinking something out of a bottle, and I patted him on the back. I says—
‘‘Mr. Barnard (interrupting): I object to what he said.
‘A. All right. He was drinking out of a bottle, and he asked me if I would have some.
“Mr. Barnard: I move to strike it out as hearsay.”

This testimony, including the statement made at the time, was entirely competent. The statement was a part of the res gestee, and it tended to show the drinking habits of the plaintiff’s husband, and, when connected with the testimony showing that the plaintiff’s husband secured whisky from the defendant in bottles and took it home, it might well be found by the jury to have been evidence of the drinking of the very whisky sold by the defendant.

W. G. Bessey, one of the plaintiff’s counsel, was called to the stand by defendants’ counsel, and testified, in answer to questions propounded to him:

“I know Mr. Henning; yes, sir. * * * I think he was in this court-room day before yesterday, yesterday, and today. I subpoenaed him; yes, sir.
“Q. He was the man referred to by the little boy as drinking with his father in Van Alstyhe’s back room, wasn’t he ?
“A. I think he was, yes. I didn’t find out over at A. O. Martin’s this noon that he hadn’t drank any whisky in four years, and sent him home; no, sir. I didn’t tell him to get out of town on that train; no, sir.”

On cross-examination the witness stated:

“I did not talk with Mr. Henning about this case before I subpoenaed him. Mr. Knapp talked with him. And I got my information from Mr. Knapp; yes, sir.
“Q. I want to ask you what he said about it to — your understanding was that he would testify that he did drink in there, wasn’t it ? ”

Under objection, the witness answei’ed:

“A. Yes, sir. I have talked with him since he came here; yes, sir.
“Q. What did he say about it to you ?
“A. About what he would testify to ?
The Court: I have some doubt whether you can show that.
“A. He didn’t say to me that he could testify to anything that would be beneficial; no, sir. Or to my client.”

Had this testimony been offered as affirmative testimony, it might in part be subject to the objection of being hearsay, although, in view of the last statement of the witness, we cannot conceive how it would have been prejudicial; but defendants’ counsel had by implication charged the plaintiff’s counsel with having advised a witness to get out of town on a certain train, and this a witness who had been subpoenaed by him as a witness for the plaintiff. It is not unnatural that the plaintiff’s counsel should desire to resent this imputation, if unfounded, and his connection with the subpoenaing of the witness and the reason for not calling him was essential to be shown in order that the jury might correctly understand his conduct. The most that can be derived from the testimony of this witness is that he had received information that the witness would give certain testimony, but that upon investigation by a talk with the witness himself he discovered that the witness would not so testify. This could hardly be deemed prejudicial to the defendant.

The next subdivision of defendants’ brief discusses objections to the testimony of the plaintiff tending to show that her husband was engaged in a fight in the fore part of November. In answer to a question as to whether he was intoxicated at the time, she replied:

“I could not say whether he was intoxicated at the time of the fight or not.”

A motion was then made to strike out this testimony, which was denied, and the following occurred:

"Q. Do you know where your husband went after the fight was over ?
“A. I do. He went directly to Yan Alstyne’s drug store.
“Q. Do you know how long it was before he returned to his home ?
‘‘A. It was nearly two hours.
“Q. What was his condition when he came home ?
“A. He was intoxicated when he came home.”

It hardly lies in the mouth of the defendant to say that plaintiff’s husband became intoxicated by visiting his place of business. This testimony would indicate that he must have been intoxicated before he went there, if there is any good faith in the defense in this case.

It is urged that the court was in error in permitting the employer of plaintiff’s husband, Mr. Knapp, to testify to the fact that Lockard drew money from him almost every day, and went immediately to Yan Alstyne’s, and came back with whisky, and drank it in the shop, and was intoxicated. It is said that this testimony was not admissible as bearing upon the plaintiff’s damages, as she was not entitled to recover for the money spent by her husband, citing the case of Friend v. Dunks, 39 Mich. 733. The circuit judge in the present case charged the jury in response to defendants’ request:

"You are further instructed, if the plaintiff is entitled to recover at all, she cannot in this action recover for the money paid to the druggist, Yan Alstyne, for the sales of liquor mentioned in the druggist’s reports and offered in evidence in this case.”

We think, however, the testimony was competent for another purpose, and it was so treated by the trial judge. It was proper as bearing upon Lockard’s habits, and also on the fact of Yan Alstyne’s furnishing liquor, and it rebuts the idea that he was selling liquor for medicine or for any other purpose than as a beverage.

Two physicians were called, who testified that the plaintiff was in a nervous state, and gave testimony tending to show that this state might be attributed to mental worry. They were also asked as to whether a miscarriage which plaintiff suffered might be attributed to worry over the husband’s conduct. It is now contended that these inquiries were foreign to the issue, as a miscarriage was not counted on in the declaration. As to the testimony of Dr. Woolsey, no objection upon any such ground appears to have been made. On the contrary, the only objection was that the doctor had said that he was not an expert. He had testified, however, that he was a physician and surgeon, had graduated from the Detroit College of Medicine, and had practiced his profession at South Haven. He was only called upon to give an opinion as a medical man as to the conditions which he observed, and what causes might lead up to such conditions. This he certainly was competent to do. Dr. Webster was called on December 9th to treat the plaintiff, and found her afflicted with emaciation and nervousness, and was informed that she had had a miscarriage about two weeks before. He was then asked to state how such a condition as he observed might be produced. This was objected to by defendant’s counsel as incompetent, irrelevant, and immaterial and too remote. The answer was:

“The nervous condition is almost invariably produced in any case by worry.”

The question was again propounded:

“From your medical knowledge and the learning of your profession and your experience in your profession, would you be able to assign any cause for the miscarriage or nervous condition in which you found her, and from which you learned her condition had been ?
Mr. Barnard: I want an objection on the record now. I object to it as incompetent, irrelevant, and immaterial. First place, it is too remote, and in no way connecting the defendant with it.”

Which objection was overruled. The answer was:

“As to miscarriage, I would be unable to state, as there was very little trace of it at the time I was called. As to nervousness, I would state as I did before that it was undoubtedly due to worry.”

A hypothetical question was then propounded, and a similar answer given, namely:

“Such conditions might cause worry. It would depend altogether on the temperament of the person.”

It will be noted that there was no specific objection that this testimony was not admissible under the pleadings in the case, but, more than this, the testimony as to the miscarriage was not prejudicial, as the doctor expressly stated that he would be unable to say what would cause the miscarriage. There was no error committed to the ■prejudice of the defendants.

It is next urged that the court was in error in permitting evidence, on cross-examination of defendants’ witnesses, to show improper sales of liquor to third parties, and the case of Hilliker v. Farr, 149 Mich. 444, is cited. We think this case is clearly distinguishable from that. In the present case the sale of liquor to be drunk as a beverage by the defendant Van Alstyne was per se unlawful. On the other hand, sales for medicinal purposes were perfectly lawful. It was the theory of this defense, so far as a theory is disclosed, that the sales to Lockard were made in the regular course of defendant’s business, and were lawful sales of liquor to be used by Lockard for medicinal purposes. Now, as bearing upon the question of intent and purpose with which these sales were made, it was entirely competent for the plaintiff to show that the practice and custom of the defendant was to make sales of liquor to be used as a beverage. In People v. Seaman, 107 Mich. 348, the general rule that proof of one offense cannot be admitted for the purpose of proving another was asserted, but the exception which rules the present case was recognized, and it was held that, where it was necessary to show a particular intent in order to establish the offense charged, proof of previous acts of the same kind is admissible for the purpose of proving guilty knowledge or intent, or, where it is claimed that the thing done is the result of an accident, proof of a like occurrence under like conditions has been held admissible, as where the question is whether a fraud has been perpetrated. So in this case, if the defendant was commonly engaged day after day in selling liquor as a beverage, the theory or claim that these frequent sales to Lockard were made in good faith for medicinal purposes is entitled to little credence. And while on this subject we may add that the charge of the circuit judge which indicated to the jury that these circumstances were circumstances to be considered in determining the fact was entirely proper. For the purpose indicated it was proper to show on the cross-examination of the defendants’ witnesses that they drank beer themselves on these premises, that a refrigerator was kept in the store in which beer was stored, and that beer was sold by the case. It all bore upon the question of whether the defendant was conducting the business lawfully, and upon his good faith and intent. It is true that the mere fact that a witness was in the habit of drinking beer does not affect his credibility, but the facts that one employed in the drug business, selling intoxicating liquors only for medicinal purposes, permits beer to be drunk upon the premises and sells beer by the case and has all the requisite conveniences for that purpose, have some relation to the question of whether he is acting in good faith or not.

It is contended that error was committed in receiving in evidence the statement made to the prosecuting attorney by the defendant Yan Alstyne showing sales of liquor to Lockard. It is said that no proper foundation had been laid for its reception. The answer to this is that no such objection was urged on the trial. It is secondly contended that there was no testimony tending to show that the sales set forth were unlawful sales. The answer to this is that there is abundant evidence that the liquor was not sold for medicinal purposes, but to be drunk by the plaintiff’s husband as a beverage.

It is further claimed that there is no proof that the Bradford Lockard mentioned in the reports was the plaintiff’s husband. One of the defendant’s clerks was called as a witness and testified to numerous sales made to Bradford Lockard, and sufficiently identifies the party to whom the liquor was sold with the plaintiff’s husband.

Further objection is made that the defendant’s attention had not been called to these sales. We assume that the point attempted to be made is that the evidence of sales is not admissible as impeaching the testimony. Defendant in fact did not take the stand, but the testimony is admissible as affirmative evidence to show the want of good faith.

This brings us to a consideration of what may be deemed the chief contention of defendants’ counsel, namely, that the plaintiff could only recover for injuries resulting from unlawful sales of liquor when such sales were made to a person in the habit of becoming intoxicated or to a person while intoxicated. Upon this subject the circuit judge charged the jury:

“A druggist may sell liquors only for medicinal, sacramental, mechanical, or scientific purposes. If he sells for any other purpose, makes general sales for any other purpose than that authorized by law, he sells at his peril. A druggist is given the privilege under the law to make sales of liquor upon the theory that he, being such druggist or pharmacist, will make such sales in the capacity of a druggist for the purposes that are recognized to be not offensive to the police regulation of the liquor law of this State and in compliance with the statute. If he sells intoxicating liquor indiscriminately and for a beverage and produces intoxication or drunkenness resulting in injury, he is liable under the law, under this declaration.”

This is claimed to he in conflict with the case of Merrinane v. Miller, 148 Mich. 412. We think that case does not necessarily rule this. The gist of the action in that case was the selling of liquor to a man in the habit of becoming intoxicated or at times when he was intoxicated, and the court held that it was immaterial whether defendant sold out of hours or in hours, but permitted evidence that sales were made out of hours as bearing upon the wantonness, recklessness, or carelessness of defendant in the way he was dealing with the plaintiff’s husband. This charge of the trial court was sustained, but in referring to the case of Peacock v. Oaks, 85 Mich. 578, where it was held there could be no recovery under the statute for injuries caused by the selling or furnishing of liquor to another, unless such selling or furnishing was in violation of law, it was said:

“Whether this broad statement of the law may not require some qualification it is unnecessary to determine in this case. Plaintiff’s counsel conceded that plaintiff could only complain of illegal sales, but contended that among such sales were included sales after hours or on Sundays, etc. We think the instruction properly limited the effect of such sales.”

As applied to the issue presented in that case, this language is not open to objection. It will be noted that the plaintiff had recovered a judgment, and the only question presented was the question of the amount of damages.

It would, as bearing upon the question of damages, be obviously immaterial whether the sales were made at lawful hours or at other times. The damages were to be measured by the effect upon the plaintiff’s husband; but, as applied to the present case, we think it should be held that the court’s instruction properly presented the law. The statute (section 5398, 2 Comp. Laws) is certainly sufficiently broad to justify the instruction. It reads as follows:

“Every wife, child, parent, guardian, husband or other person who shall be injured in person or property or means of support or otherwise by any intoxicated person, or by reason of the intoxication of any person, or by reason of the selling, giving or furnishing any spirituous, intoxicating, fermented or malt liquors to any person, shall have a right of action in his or her own name against any person or persons who shall by selling or giving any intoxicating or malt liquor have caused or contributed to the intoxication of such person or persons, or who have caused or contributed to such injury; and the principal and sureties to the bond hereinbefore mentioned shall be liable severally and jointly with the person or persons so selling, giving or furnishing any spirituous, intoxicating or malt liquors as aforesaid. And in an action provided for in this section the plaintiff shall have a right to recover actual and exemplary damages.”

If thereis to be read into this section any qualification, we think that qualification is sufficiently favorable to the seller if the word “unlawful ” be interpolated by construction. The statute seems designed to give a remedy to one injured by reason of the intoxication of any person or by reason of the selling, giving, or furnishing any spirituous, intoxicating, fermented, or malt liquors to any person. If we interpolate the word “ unlawful,” the statute would read “by reason of the unlawful selling,” etc., and the plaintiff’s case is still within the statute. In this case there can be no such thing as a lawful sale of liquor to be drunk as a beverage. If such sale be made, and plaintiff suffer damage by reason of it, she is within the terms of the statute.

This view of the law disposes of many of the contentions of defendants’ counsel. Complaint is made of the argument of counsel in which he criticised somewhat harshly some of the witnesses who appeared for the defendants. While the language might perhaps have been better chosen, the record indicates that the witnesses left themselves open to a serious criticism by their testimony.

As to the numerous requests to charge which were omitted, and as to the charges of the court on his own motion, we think it sufficient to say that in our judgment the circuit judge presented the issues to the jury fairly, and that the result reached was amply justified by the testimony in the case, and that no error to the prejudice of the defendants was committed.

The judgment will be affirmed.

Blair, C. J., and Grant, Ostrander, and Brooke, JJ., concurred.


source: Caselaw Access Project

license: Public Domain

text:
    JACKSON CONSOLIDATED TRACTION CO. v. JACKSON CIRCUIT JUDGE.
    Corporations — Actions—Pleadings—Averment op Consolidation-Evidence — Judicial Notice.
    In an action against a domestic corporation, a general averment that it is a consolidation of other domestic corporations is sufficient, since the court takes judicial notice of the legal consequences of such consolidation.
    Mandamus by the Jackson Consolidated Traction Company to compel James A. Parkinson, circuit judge of Jackson county, to vacate an order granting discovery of relator’s books and papers.
    Submitted November 17, 1908.
    (Calendar No. 23,117.)
    Writ granted March 3, 1909.

      Sanford W. Ladd, for relator.

      Thomas, Cummins & Nichols, for respondent.
   Montgomery, J.

One Thomas Green, of the city of New York, instituted a suit in the circuit court for the county of Jackson by summons against the relator on the 8th of May, 1908. Shortly thereafter a petition was filed by the plaintiff, Green, asking to have certain books and papers of the relator produced in court to enable the said Green, as such plaintiff, to declare upon his cause of action, which consisted of a judgment theretofore recovered against the Jackson & Suburban Traction Company in the circuit court of the United States for the southern district of New York. The petition, asking for the discovery of the books and papers, avers that the defendant in that case, the present relator, is a consolidation of the Jackson & Suburban Traction Company and certain other corporations, to wit, the Wolf Lake Railway & Resort Company and the Highland Resort Company, and avers that an examination of the books and papers of these various corporations would show such to be the case. The order for production of these books and papers was made by the circuit judge, and, the motion to vacate that order having been entered and denied, this is a petition for a mandamus to compel the vacation of such order.

It is conceded by the respondent’s counsel that the sole question is as to whether the facts averred in their petition for the production of the books and papers show that they have sufficient information upon which to base a declaration. It is said that if a general averment that the present relator is a consolidation of the various companies named, then the necessity for a discovery does not exist. But if it is necessary to aver in detail the facts showing the incorporation, then a discovery is essential. We think that the general allegation is sufficient. See Noyes on Intercorporate Relations, § 91, p. 146, and Collins v. Railroad Co., 14 Wis. 492. The case of Hubbard v. Chappel, 14 Ind. 601, was not a case dealing with domestic corporations, and is therefore distinguishable from the Wisconsin case, as in case of domestic corporations the court takes judicial notice of the legal consequences of a consolidation, whereas in case of a consolidation occurring in a foreign jurisdiction, these consequences depend upon proofs, and hence require specific allegations.

As we are of the opinion that the plaintiff’s counsel, in the case of Green v. Jackson Traction Co., was in possession of sufficient information to enable them to declare, the order for the production of the books and papers was improvidently made, and the writ will be granted as prayed.

Blair, C. J., and Grant, Ostrander, and Brooke, JJ., concurred.


text:
    PEOPLE v. GREEN.
    1. Criminal Law — Assault and Battery — Evidence of Subsequent Events — Nonprejudioial Effects — Admissions.
    On a prosecution for assault and battery, a witness for defendant was asked, on cross-examination, if, after the happening of the event complained of, the respondent’s fellow employés had not circulated a petition threatening to quit if respondent was not discharged. The court did not permit the question to be answered, but in a colloquy between court and counsel it became apparent to the jury that such petition had been circulated, and that respondent had been discharged or forced to resign. Held, to have been manifest error as having no bearing on his reputation at the time of the commission of the offense complained of, but, in view of respondent’s admissions of the facts constituting the offense, was not prejudicial to his rights.
    2. Same — Former Conviction of Offense — Instructions.
    The mention, in the opening statement of the trial judge, in the charge to the jury, of the fact that respondent had been convicted in the police court of the offense charged, and that he had appealed, was not reversible error, in view of the facts (a) that on the trial mention of such former trial was made by respondent’s counsel; (b) it is apparent that only by conviction in said court can a oriminal case be appealed; and (c) the court clearly warned the jury that they had no right to consider anything which had occurred in another court as bearing upon respondent’s guilt or innocence.
    3. Same —Parent and Child — Parental Authority — Extent of Punishment.
    In such action, it is not necessary, to sustain a conviction, to show that the punishment inflicted by a person on a child to whom he stood in loco parentis was such as to cause permanent injury or disfigurement. It is sufficient to show that the punishment was cruel and unreasonably severe, and such as in its very nature would negative the idea of good faith on the part of the parent. And, where the uncontra- ' dieted evidence, supplemented by the admissions of respondent, disclosed that when the complaining witness, a girl about 13 years of age, denied the taking of a sum of money, respondent, after compelling her to disrobe, whipped her
   til the blood had oozed out, and scabbed over, and when I bathed the little thing with witch-hazel and water she cried, and I could not bathe them any more.”

With reference to the alleged assault, the respondent testified as follows:

“ There is no doubt I gave this child a whipping on Friday, the 16th day of August. I used the whip in court here. I could not say as to the number of times. I do not know the number of times I hit her, but it was no 70. My purpose in whipping her was not to wring a confession from her. * * * I tied her hands to prevent her leaving the room and ending the punishment of her own volition. * * * I whipped her when she was naked. She was standing before me nude when I applied that whip to her body. * * * What I was trying to get her to say from Friday afternoon to Sunday morning was that she was going to try to do better and to refrain from habits of dishonesty. I could not limit the number of times I struck her. It was not a great number. * * * As I have had a chance to look over the past two years and a half, I am satisfied that some other method might have been used with the child to better advantage. It is hard for a man to decide those questions on the spot.”

There are many assignments of error on the part of the respondent, only a few of which we think require discussion. The witness George W. Mutter, sworn on behalf of defendant, gave testimony tending to show that the respondent’s reputation up to the time of the alleged assault was good. On cross-examination the prosecuting attorney asked the witness if there was a petition signed by practically all the employés of Parke, Davis & Co., saying that they would quit if respondent was not discharged. The court did not permit the question to be answered, but in a colloquy between the court and counsel it doubtless became apparent to the jury that such a petition had been circulated, and that the respondent had been discharged or forced to resign. We are of the opinion that this is manifest error. It is quite clear from the record that the discharge of the defendant, if he was discharged by Parke, Davis & Co., and the circulation and signing of the petition referred to, were all facts subsequent to the date of the alleged assault, and could have no legitimate bearing on the question of his reputation up to the time of the assault. The only question that remains therefore with reference to this particular matter is whether or not the defendant was prejudiced by the error. We think that the respondent by his own testimony as to the assault in question practically admitted his guilt of the offense as charged, provided, only, that it should be determined by this court that the punishment inflicted went beyond the legitimate exercise of parental authority. We therefore conclude that, improper as this cross-examination was, it was not prejudicial to the respondent’s rights.

Error is assigned upon the opening statement of the trial judge in his charge, which is as follows:

“The defendant in this case, gentlemen of the jury, was convicted and appealed from a case before one of the police justices into this court, for inflicting what is termed in law unlawful punishment.”

It is the contention of the respondent that the mention by the trial judge of the fact that the respondent had been tried and convicted in the police court is reversible error. We are unable to agree with this contention. During the examination of more than one of the witnesses reference was made to the trial in the police court; at least one of such references being made in response to questions by respondent’s attorney. A case tried in the police court can only reach the recorder’s court where a conviction is had in the police court. It is therefore apparent that there having been a trial in the police court, and the case being on trial in the recorder’s court, a conviction must have resulted in the police court. Further, the judge in his charge clearly warned the jury that they had no right to consider anything which had occurred in another court as bearing upon respondent’s guilt or innocence, as is shown from the following portion of his charge:

“It can make no difference with you, it should make no difference with you, and under the law it must make no difference with you, what the police magistrate determined in this case.”

We will next consider the assignment of error based upon the court’s refusal to charge as requested by respondent’s counsel with reference to the law applicable to the case. This brings us to a consideration of the question as to how far a parent or other person in loco parentis may inflict corporal punishment upon a child legally in his control, without becoming liable for an assault and battery. It was the respondent’s claim that in order to render him criminally liable the punishment must be such as to cause permanent injury, and that correction, however. severe, which produces temporary pain only and no permanent injury, involves no such liability. The people urge that a proper construction .of the law is that, whether or not the particular punishment under consideration is or is not reasonable is a question of fact for the jury, to be determined by all the circumstances surrounding the case, and that a punishment may be held to be unreasonable which does not involve permanent injury, disfigurement, or disability.

The respondent relies, among others, upon the case of Boyd v. State, 88 Ala. 169. In this case the defendant, a schoolmaster, had been convicted of assault and battery upon a pupil of the school. Somerville, J., speaking for the court, says, at page 171:

“All of the authorities agree that he will not be permitted to deal brutally with his victim so as to endanger life, limb, or health. He will not be permitted to inflict ‘cruel and merciless punishment.’ Schouler’s Domestic Relations (4th Ed.), § 244. He cannot lawfully disfigure him, or perpetrate on his person any other permanent injury.. As said by Gaston, J., in State v. Pendergrass, 19 N. C. 365, a case generally approved by the weight of American authority:
“ ‘ It may be laid down as a general rule that teachers exceed the limit of their authority, when they cause lasting mischief; but act within the limits of it when they inflict temporary pain. ’ ”

He further quotes Mr. Bishop, as follows:

“ ‘ The law has provided no means whereby a parent, meditating chastisement, can first obtain a judicial opinion as to its necessity, the proper instruments, and its due extent. In reason, therefore, if he acts in good faith, prompted by pure parental love, without passion, and inflicts no permanent injury upon the child, he should not be punished merely because a jury reviewing the case do not deem it was wise to proceed so far.’” 1 Bishop on Criminal Law (7th Ed.), §883.

In the case there under consideration the conviction was sustained, although a careful examination of the case fails to reveal that the pupil had received at the hands of the teacher any permanent injury.

Another case relied on by respondent is that of State v. Alford, 68 N. C. 322. This was a case where a man living with a woman as man and wife committed an alleged assault upon the woman’s son, to whom he stood in loco parentis. For some misconduct the defendant whipped the boy, who made considerable outcry, and four days afterwards there was a mark on his back the width of a broom straw, two inches long, where the skin had been broken, and there was some discoloration. Thé defendant was convicted, and on appeal discharged upon the authority of State v. Pendergrass, supra.

In State v. Pendergrass, 19 N. C. 365, Gaston, J., speaking for the court, lays down the following principles:

“The law has not undertaken to prescribe stated punishment for particular offenses, but has contented itself with the general grant of the power of moderate correction, and has confided the graduation of punishments, within the limits of this grant, to the discretion of the teacher. The line which separates moderate correction from immoderate punishment can only be ascertained by reference to general principles. The welfare of the child is the main purpose for which pain is permitted to be inflicted. Any punishment therefore which may seriously endanger life, limbs, or health, or shall disfigure the child, or cause any other permanent injury, may be pronounced in itself immoderate, as not only being unnecessary for, but inconsistent with, the purpose for which correction is authorized; but any correction, however severe, which produces temporary pain only, and no permanent ill, cannot be so pronounced, since it may have been necessary for the reformation of the child, and does not injuriously affect its future welfare. We hold therefore that it may be laid down as a general rule that teachers exceed the limits of their authority when they cause lasting mischief; but act within the limits of it when they inflict temporary pain. * * * It was their duty to acquit the defendant, .unless the facts testified induced a conviction in their minds that the defendant did not act honestly in the performance of duty, according- to her sense of right, but under the pretext of duty was gratifying malice.”

Schouler, in his work on Domestic Relations (4th Ed.), § 244, lays down the law as follows :

“ The common law, far more discreet, gives the parent only a moderate degree of authority over his child’s person, which authority relaxes as the child grows older. With the progress of refinement, parents have learned to enforce obedience by kindness rather than severity; and although the courts are reluctant to interfere in matters of family discipline, they will discountenance every species of cruelty which goes by the name of parental rule. The common law gives the right of moderate correction of the child in a reasonable manner, ‘ for,’ it is said ‘this is for the benefit of his education.’ But at the same time the parent must not exceed the bounds of moderation, and inflict cruel and merciless punishment, for if he do he is liable to be punished by indictment” — citing 1 Hawk, P. C. 130; Gorman v. State, 42 Tex. 221; State v. Alford, supra; State v. Burton, 45 Wis. 150; Danenhoffer v. State, 69 Ind. 295; State v. Jones, 95 N. C. 588.

We think the law is correctly stated in State v. Koonse, 123 Mo. App. 655. The defendant in that case was convicted of the crime of assault and battery inflicted on the person of one Willie Brown, who was an orphan being raised by the defendant. The boy had run away from the defendant’s home several times. The offense in question arose out of his treatment of the boy when he had found him after one of his runaway trips. The defendant rode horseback and compelled the boy to run on ahead, the distance of about four or five miles, home. The boy was barefooted, and part of the way lay on stony ground. At different times the boy was urged forward by being whipped over the back with a horse whip. The defendant contended that the conduct of the boy called for parental correction and denied administering as severe a punishment as was claimed by the State’s witnesses. We approve the following reasoning of Johnson, J., speaking for the court in that case:

4 ‘ The parent is the sole judge of the necessity for the exercise of disciplinary right and of the nature of the correction to be given, and the mere fact that a castigation he gives his child may appear to others to be unnecessarily harsh or severe does not make of his conduct a subject of judicial cognizance. As long as he acts in good faith, honestly thinking that what he does is for the benefit of the child, he is within his prerogative, and the law will not interfere. Courts do not and should not constitute themselves the arbiters of the household. There the authority of the parents, within the limits we shall presently define, is supreme, and from their judgment there is no appeal; but those domestic tribunals have limits to their jurisdiction, beyond which they may not go with impunity. The welfare of the child is the principal ground on which the parental right to chastise him is founded, and where the punishment inflicted is so excessive and cruel as to show beyond a reasonable doubt that the parent was not acting in good faith for the benefit of the child, but to satisfy his own evil passion, he no longer is to be considered as a judge administering the law of the household, but as a malefactor guilty of an unlawful assault on a helpless person intrusted to his care and protection. Thus to maim the child or endanger his life or health, or to severely beat him with an improper and dangerous instrument, though no permanent injury be given, or to subject him to unusual forms of physical torture, or to whip him with such excessive severity as implies the absence of a due appreciation of parental duty, are acts which in themselves bespeak evil intent; and a parent guilty of such excess will not be heard to say that he a thought he was acting for the' benefit of the child.”

See, also, Hinkle v. State, 127 Ind. 490.

Prom a careful review of all the authorities, and for the purpose of defining the rule of action which should govern this jurisdiction, we are of the opinion that it is not necessary, to sustain a conviction, to show that the punishment inflicted by the parent was such as to cause permanent injury or disfigurement to the child. It is sufficient to show that the punishment was cruel and unreasonably severe, and such as in its very nature would negative the idea of good faith on the part of the parent. The uncontradicted evidence of the people’s witnesses in the case, supplemented by the testimony of the respondent himself, disclosed such a state of facts as in the opinion of the court fully warranted and demanded the respondent’s conviction. We' think one of the most serious elements of the respondent’s offense is the conceded fact that he compelled the complaining witness, a female between 12 and 13 years of age, to stand before him nude and receive the castigation. This act tended to shock her modesty, to break down her sense of decency and the inviolability of her person, which is the most valuable possession of a young girl. It is not the intention of the court to in any wise weaken parental authority. On the contrary, we hold that it is the unquestionable right of. parents and those in loco parentis to administer such reasonable and timely punishment as may be necessary to correct growing faults in young children; but this right can never be used as a cloak for the exercise of malevolence or the exhibition of unbridled passion on the part of a parent.

We do not believe the errors discussed, or the errors assigned which have not been deemed worthy of discussion, are reversible or prejudicial.

The conviction is affirmed.

Blair, O. J., and Grant, Montgomery, and Ostrander, JJ., concurred.


author: Grant, J.

text:
    PEOPLE v. MINNEY.
    1. Criminal Law —Trial—Insufficient Evidence — Directing-Verdict,
    If, on the trial of a person accused of crime, it appears that the evidence is insufficient to warrant a conviction, the court, as a matter of law, should direct a verdict for defendant.
    2. Same — Appeal — Review — Evidence — Verdict of Guilt Based on Incompetent Evidence,
    An appellate court, after an examination of the evidence, will not determine that it was insufficient to justify a verdict of guilty, where it appears that on the trial incompetent and damaging evidence was submitted for the consideration of the jury, and' that neither the jury nor the trial court had passed upon defendant’s innocence or guilt with such evidence eliminated.
    3. Same — Evidence — Intent — Proof of Other Offenses to Show Intent.
    On the trial of a person accused of the crime of mutilating a horse by cutting out its tongue, proof of the act is sufficient to establish the malicious intent, if done by a sane person; and evidence that respondent had been guilty of other acts of a similar nature was incompetent.
    4. Same — Animals—Mutilation—Malice.
    Under the statute (section 11581, 3 Comp. Laws), providing a penalty for the mutilation of animals, malice toward the owner or custodian of the animal is an essential element of the crime; it is not necessary to show expressed malice, but it may be shown by the character of, and the circumstances surrounding, the crime.
    Error to Berrien'; Coolidge, J.
    Submitted November 19, 1908.
    (Docket No. 168.)
    Decided March 3, 1909.
    Max Minney was convicted of mutilating a horse in violation of 3 Comp. Laws, § 11581, and sentenced to imprisonment for not less than two nor more than five years in the State prison at Jackson.
    Reversed.

      Gore & Harvey, for appellant.

      Charles E. White, Prosecuting Attorney (Ira W. Biford, of counsel), for the people.
    Respondent was convicted under section 11581, 3 Comp. Laws, of mutilating a horse belonging to one Murphy by cutting off its tongue. The mutilation occurred during the night of September 19, 1907, while the horse was in its owner’s barn. Respondent had lived in the vicinity for more than 20 years. For two years prior to September 19th, he lived in the family of one Lucius M. Hogue, a farmer. For about four weeks respondent had been working with the team belonging to Mr. Hogue, assisting in the construction of a large dam across the river St. Joseph.at Berrien Springs. The distance between Berrien Springs and Mr. Hogue’s residence was seven miles, over a hilly and sandy road. Mr. Murphy did not live on this road, but about one mile from it, on another road which led into this one. Respondent left work on the dam at the close of the day’s work, stating that one of his horses showed signs of lameness, and that he was going to Mr. Hogue’s place to get another horse. He had a room in Mr. Hogue’s house, but had fixed a bed in the barn or stable where he oftentimes slept during hot weather. He was seen by, and conversed with, some persons on the road between Berrien Springs and Mr. Hogue’s. He usually came home on Saturdays. His usual time of arriving at Mr. Hogue’s after his work was done, was about 9 o’clock. The first Mr. Hogue saw or knew he was at home was when he came into the house about 4 o’clock in the morning. He then told Mr. Hogue what he came for; that.one horse showed signs of giving out, and he had come home to make the change. Mrs. Hogue offered to get breakfast for him, but he said he had been to the pantry and helped himself, and that he must start if he got back in time to work. He reached the dam about 6:30, in time for the day’s work. It is a fair inference that he slept in the barn during the night. It was not shown that respondent had any motive for the commission of the crime. He had no ill will against Mr. Murphy, had done some work for him about two years before, and they had had no intercourse since. The only evidence of motive on the part of any one to commit such a crime was the testimony of Mr. Murphy that some time previous he had had trouble with two other persons, whose arrest he had caused. There is no evidence that respondent was seen in the vicinity of Mr. Murphy’s house. The people gave some evidence tending to show that about 9 o’clock on the following morning the respondent told one of the men with whom he was working that there was a report that another horse had been mutilated, but that he did not know whose it was. There were some 150 men then working upon this dam, some of whom went to their homes overnight in the surrounding country, and others remained at the dam. The respondent gave no testimony* His counsel requested the court to direct a verdict of not guilty on the ground that the people had failed to establish his guilt. This the court refused, saying:
    “Under all the circumstances, I think the case is one that the court can properly submit to the jury for their deliberation. The case may be very weak, indeed the evidence may be entirely insufficient upon which to base a conviction, and yet it does not follow that the court should direct a verdict for the defendant.”
    The case was submitted to the jury, and a verdict of guilty resulted.
   Grant, J.

(after stating the facts). 1. After an examination of the evidence we will not determine that it is insufficient to justify a verdict of guilty. We may remark that the statement of the court that it should not direct a verdict when the evidence is entirely insufficient upon which to base a conviction is not correct. If upon the conceded or undisputed facts there is no ground to sustain a verdict of guilty, the court should direct a verdict. The question then becomes one of law for the court. The statement by the court was made undoubtedly upon the entire evidence in the case, some of which was incompetent, and very damaging. With this incompetent evidence eliminated it is doubtful if there is evidence to justify a conviction. Appellate courts, however, should be very slow to discharge a prisoner convicted upon the entire evidence, where the jury has had no opportunity to pass upon his guilt or innocence with the incompetent testimony eliminated, and the trial court has not passed upon it.

2. Evidence was introduced to show that prior to September, 1907, tongues of horses of some four farmers had been cut out. These offenses were committed several months apart. Among them were two horses owned by one Kirk, living in the vicinity. A reward of $500 was offered for the arrest, and conviction of those guilty of mutilating Kirk’s horses. Suspicion, for some reason pointing towards respondent, the sheriff employed a Chicago detective to work upon that case. This detective obtained work as foreman at the dam on September 9th. On September 12th he induced respondent to go to Chicago with him to assist in buying some horses. They arrived in Chicago about 7 o’clock in the morning, and spent the day in saloons, restaurants, theaters, and shows, returning to St. Joseph by boat the following night. The detective detailed minutely the talk he had with respondent, by which it was arranged that he (the detective) was to see one Tim Talbot and get $200 and pay him (respondent) for cutting the horses of one Johnson. While the detective was attempting to make this arrangement with respondent, he testified that respondent said “hehad done them kind of jobs before,” and said he had done the Kirk job. He also testified that respondent finally refused to do the job. The effect of this kind of testimony upon the jury can well be imagined. This was all the evidence tending to show the commission of a similar offense by respondent. It was proving another separate and distinct offense, which had no tendency to prove motive or intent any more than the commission of one burglarly or one theft had a tendency to prove the commission of another burglary or theft. All this occurred before the mutilation of Mr. Murphy’s horse, and when the detective and officers were seeking to find the perpetrator of another similar crime. Both trial and appellate courts have undoubtedly found much difficulty in determining whether the case falls within the rule prohibiting evidence of other crimes, or within the exception to it. To bring a case within the exception it must appear that there is some logical connection between the crime charged and the other similar crimes which the people seek to establish against the respondent upon trial. This court very thoroughly examined and discussed this subject in People v. Seaman, 107 Mich. 348, where many authorities are cited, and we deem it unnecessary to fully enter into the subject again. After citing many authorities, this court said, speaking through Chief Justice McGrath :

“Some of these authorities would seem to be border cases, but they illustrate the tendency of the courts to allow the introduction of this class of testimony to repel the inference that the cause was an accidental one, in cases where such an inference might otherwise obtain. Upon principle and authority it is clear that where a felonious intent is an essential ingredient of the crime charged, and the act done is claimed to have been innocently or accidentally done, or by mistake, or when the result is claimed to have followed an act lawfully done for a legitimate purpose, or where there is room for such an inference, it is proper to characterize the act by proof of other like acts producing the same result, as tending to show guilty knowledge, and the intent or purpose with which the particular act was done, and to rebut the presumption that might otherwise obtain” — citing many authorities.

In the present case the commission of another like offense was wholly unnecessary to show intent. The act itself is one of those which, when proven, conclusively establishes the malicious intent, if committed by a sane person. Any number of like offenses would not tend to show malicious intent any more than could one. If the evidence established the fact that the respondent committed the deed, he would escape conviction only by a further finding by the jury that he was irresponsible by reason of insanity. People v. Mead, 50 Mich. 228, is a good illustration of the admissibility of evidence referring to another like crime, but also having the tendency to establish the guilt of the crime charged. The respondent was charged with burglary. Several farm houses in the neighborhood had been entered the same night. At the house of one Mitchell a plate of butter was taken. The prosecution gave evidence showing that respondent, on the day after the burglary, picked up near the road fence the plate on which the butter had been carried from Mitchell’s, claiming that he had just found it there. The court says:

“ It is objected that this evidence, if of any force at all, could only have tended to connect the respondent with the burglary at Mitchell’s, or at least to have raised a suspicion that he was concerned in it. The prosecution concede that if it had no tendency to connect the respondent with the particular offense for which he was on trial, it should not have been received; but their theory of the case was that the several burglaries were all substantially one transaction, and whatever tended to show participation in one was evidence of participation in all. We agree in this view. The proof was not given to show a different and distinct felony, but as tending to prove the very felony then under investigation; and its tendency to that end was for the jury.”

The rule and the exception are ably discussed in State v. Lapage, 57 N. H. 245, a leading case upon the subject. The respondent in that case was charged with the murder of a young girl. It was claimed by the State that the respondent lay in wait near a piece of woods, had committed the crime of rape, and then murdered the girl. It was held competent ‘to show that he had pursued other girls passing in this same locality, and about the same time; that he had secreted himself in the woods, and suddenly appeared as girls walked along the highway, and pursued them; also to show obscene and vulgar language, used by him when he made inquiries about certain girls he saw passing the place at various times. It was held incompetent to show that at another place, and upon another occasion, some time anterior to the offense charged, he had committed rape upon another girl. The court in that case so tersely stated the established rule at page 389 that we quote it:

“ (1) It is not permitted to the prosecution to attack the character of the prisoner, unless he first puts that in issue by offering evidence of his good character; (3) it is not permitted to show the defendant’s bad character by showing particular acts; (3) it is not permitted to show in the prisoner a tendency or disposition to commit the crime with which he is charged; (4) it is not permitted to give in evidence other crimes of the prisoner, unless they are so connected by circumstances with the particular crime in issue as that the proof of one fact with its circumstances has some bearing upon the issue on trial other than such as is expressed in the foregoing three propositions.”

Applying the principle established in the above cases, and those cited therein, to this case, the evidence received was wholly incompetent. People v. Henry, 129 Mich. 100; Brown v. State, 26 Ohio St. 176; People v. Jacks, 76 Mich. 218.

For the same reason it was incompetent to show that the detective had induced the respondent to undertake the commission of another like crime, and especially since he finally refused to do it. The entire testimony of this detective should have been excluded. The proposition that a detective may deliberately induce for hire a suspected person to commit one crime for the purpose of showing that he committed another similar one finds no support in common sense, reason, or authority.

3. Error is assigned upon the instruction of the court that “it is not necessary that there be malice towards the owner of the animal in a case like this.” Malice is an essential ingredient of the crime, and under the clear weight of authority, both in England and the United States, the malice required must be toward the owner or custodian of the animal, and not malice toward the animal. The rule to be deduced from the authorities is that it is not essential to show expressed malice, but that the malice required may be shown by the character of, and thó circumstances surrounding, the crime. 19 Am.'& Eng. Enc. Law (2d Ed.), p. 641, and authorities there cited; note to State v. Boies, 68 Kan. 167 (1 Am. & Eng. Ann. Cas. 491); United States v. Gideon, 1 Minn. 292; State v. Harris, 11 Iowa, 414; Chappell v. State, 35 Ark. 345; King v. Pearce, 1 Leach, C. C. 527; State v. Newby, 64 N. C. 23; State v. Beekman, 27 N. J. Law, 124; 2 East, P. C. p. 1074. Mr. East says:

“But it does not appear to have been decided that it is necessary to give express evidence of previous malice against the owner in order to bring a case within the act; but, the fact being proved to be done wilfully, which can only proceed from a brutal or malignant mind, it seems a question solely for the consideration of the jury to attribute the real motive to it, to which the transaction itself will most probably furnish a clue.”

The question under this statute does not appear to have arisen before in this State. It has arisen upon two other statutes involving malicious injury to property. The statute (section 9275, 2 How. Stat.) provided:

“If two or more persons shall wilfully and maliciously combine or conspire together to obstruct or impede, by any act, or by means of intimidation, the regular operation and conduct of the business of any railroad company, or any other corporation, firm or individual in this State, or to impede, hinder, or obstruct, except by due process of law, the regular running of any locomotive engine, freight or passenger train, on any railroad, or the labor and business of any such corporation, firm, or individual, such person shall, on conviction thereof, be punished by imprisonment in the county jail for a period not more than three months, or in the State prison for a period not exceeding two years.”

In People v. Petheram, 64 Mich. 252, the defendant was arrested, charged with conspiring and combining with others to wilfully and maliciously obstruct and impede the regular operation and conduct of the business of a manufacturing company. It was there urged that the intent and malice must be aimed at the business obstructed. The court held, however, that the statute did not require malice to be shown toward the owner or his business or property, but that the malice required to be shown was the general malice of the law of crime, and that the acts shown may, as in other cases, furnish the presumption of malice. In a prosecution under section 11584, 3 Comp. Laws, for maliciously injuring a building, the same rule was followed, citing and approving People v. Petheram. People v. Burkhardt, 72 Mich. 172. The malice required under the statute now under consideration is not different from the malice required by the statutes in the above cases. To sustain the contention on behalf of the respondent in this case would be to overrule those two cases. They have stood unchallenged for many years, and we see no occasion now to overrule them. See, also, State v. Boies, supra, and Brown v. State, supra.

In view of a new trial we may say that the court should instruct the jury that malice is an essential ingredient of the crime.

Conviction reversed, and new trial ordered.

Blair, C. J., and Montgomery, Ostrander, and Brooke, JJ., concurred.


author: Hooker, J.

text:
    HARPER v. WAYNE CIRCUIT JUDGE.
    1. Bill of Exceptions — Settlement — Extension of Time — Rules.
    The provisions of the statute regarding the settlement of a bill of exceptions are to be construed in connection with the rules of the court in force at the time of its passage; and, section 10504, 3 Comp. Laws, which provides that a party appealing to the Supreme Court may incorporate into the bill of exceptions the record of all the proceedings had on a motion for a new trial, including the reason assigned for its denial, construed in connection with Cir. Ct. Rule 47, entitles an appellant to a reasonable time after the denial of such motion in which to settle a bill, where the application for such extension was made within four days after the denial of a motion for a new trial.
    2. Same — Settlement—Extension of Time — Laches.
    Laches will not be imputed to relator for a delay in bringing the motion for a new trial to be heard where it appears that such delay was occasioned by the absence of the trial judge.
    3. Same —Settlement — Extension of Time — Failure to File Bond.
    The failure to file a supersedeas bond, as provided by section 10355, 3 Comp. Laws, does not deprive the trial court of jurisdiction to grant an extension of time to settle a bill of exceptions; such bond being required only for a stay of proceedings.
    Mandamus by David N. Harper, to compel Alfred J. Murphy, circuit judge of Wayne county, to grant an extension of time to settle a bill of exceptions..
    Submitted December 21, 1908.
    (Calendar No. 23,169.)
    Writ granted March 3, 1909.

      Edward A. Barnes, for relator.'

      James Swan, for respondent.
   Hooker, J.

The relator is a judgment debtor; judgment being entered in circuit court June 12, 1908. An order extending the time 10 days to move for new trial and 60 days to settle a bill of exceptions was made that day. The motion for new trial was entered June 22d, and between that date and July 13th the learned circuit judge offered to hear the same on several occasions, but relator did not bring it on for hearing. On July 13th respondent left home and did not return until September 14th. On September 17th he heard the motion, and, being requested to state reasons with his decision, delayed the same until November 4th. The order extending time to settle a bill of exceptions expired on or before September 2d, and, although a judge competent to hear such motion was in constant attendance, no application for a further extension was made until November 8th, which application was heard and denied by respondent. Relator now asks a mandamus to compel an extension of time for the purpose.

Review on writ of error and bill of exceptions is provided for by statute. Section 10242, 3 Comp. Laws, provides :

“Any party aggrieved by any opinion, direction or judgment of any circuit court in any civil suit or action, may allege exceptions thereto in writing at the time such opinion or direction is given, or such-judgment pronounced, or if such exception be to the charge given to the jury, it shall be made before the jury shall have delivered their verdict.”

Section 10248 provides:

“ The court may allow such time as shall be deemed reasonable to settle such exceptions, and reduce the same to form. ”

These provisions should be and evidently have been construed with regard to section 205, 1 Comp. Laws, which is as follows:

“The Supreme Court shall, amongst other things, regulate and prescribe the practice therein, and in the circuit courts, where the same is not prescribed by any statute, in relation to bills of exceptions, cases made by the parties, special verdicts, granting new trials, motions in arrest of judgment, taxation of costs, giving notice of special motions, and of such other proceedings as the court may think proper; staying proceedings when necessary to prevent injustice, and the hearing of motions, imposing terms, in their discretion, on granting such motions.”

Under these provisions this court made the following rules (Old Cir. Ct. Rules 80, 85):

' “Rule 80. Any party desiring a review by the Supreme Court, upon the evidence appearing upon the trial, either of the questions of fact or of law, when an issue of fact shall be tried by the court without a jury, may make a bill of exceptions in the same manner and with the same effect as upon a trial by jury or a case containing so much of the evidence as may be material to the question to be raised.”
“ Rule 85. Whenever exceptions are taken on a trial of a cause to any decision or ruling of the court, the party taking such exceptions shall prepare a brief statement of so many of the facts as may be necessary to show the grounds of such exceptions, and to enable the court above rightly to understand the same, and shall give notice to the opposite party when and where such exceptions, will be settled by the circuit judge, which notice shall be for some day during the term at which the trial was had, unless the court or circuit judge shall otherwise order.”

Upon this condition of the statutes and rules, the court held that the ti’ial judge had almost unlimited discretion in the matter of time within the period that a writ of error might issue, provided only that he should have made an order extending the time beyond the close of the term at which judgment was rendered. People v. Littlejohn, 11 Mich. 60; Cleveland v. Stein, 14 Mich. 334; White v. Campbell, 25 Mich. 463; Spencer v. Fish, 43 Mich. 226. In the case of Adrian Furniture Manfg. Co. v. Lane, 92 Mich. 295, the holding that the court had no authority to extend the time after the expiration of the term, unless an order made during said term had extended the time beyond such term, was so far modified as to permit the settling of a hill after the decision of a motion for new trial, although the time for settling a bill of exceptions had not been extended beyond the term by any order to that effect. The case does not show that the time for the entry of a motion for new trial was extended beyond the term, and the record shows that the motion for new trial was made and argued during the term, but decided nearly a year later. Since that time the statute allowing error to be assigned upon orders denying motions for new trial has been passed. It took effect in 1893, and is 3 Comp. Laws, § 10504. It provides:

“The People of the State of Michigan enact. That in all cases hereafter taken to the Supreme Court on writ of error or appeal, where a motion for a new trial has been previously refused by the trial judge, the party appealing the same may incorporate in the bill of exceptions, a record of all proceedings had on said motion for a new trial, including the reasons given by the trial judge in refusing to grant said new trial. Exceptions may be taken and error assigned on the decision of the circuit judge in refusing such motion, and the same shall be reviewed by the Supreme Court.”

The rules of court were amended later, and Cir. Ct. Rule 4? now provides:

“(a) A party shall have not less than twenty days after entry of judgment for the settlement of a bill of exceptions, but the stay of execution during that time shall be discretionary with the court.
“(b) Subject to the limitations prescribed by statute and upon such terms and conditions as shall be deemed just, the court may grant such further reasonable time as shall be deemed proper for a settlement of a bill of exceptions, and may extend such time when proper. But no more than sixty days further time shall be granted for that purpose, except for good cause shown by affidavit on special motion after notice to the adverse party, or on the written stipulation of the parties.”

We find nothing in the statute or rule that is inconsistent with the decision in Adrian Furniture Manfg. Co. v. Lane that a party has the right to settle a bill after a denial of a motion for new trial. Whether such right would extend to the full duration of the term in which such denial should be made, or in all cases be limited to such term, we need not now decide. The motion in this case was made within four day's after such decision, and was within the period of 30 days within which time the relator had a right to settle his bill without any extension; such right being the effect of the statute. 3 Comp. Laws, § 10504. It follows that at that time there may have been no necessity for an extension'beyond said 30 days, and, had the motion been denied upon such ground, we might not be able to grant the writ upon this record. It is obvious, however,' that it was not, and that the attitude of the circuit judge was tantamount to a refusal to settle a bill. We therefore think that he should on application fix a reasonable time for the settlement of a bill of exceptions.

It is contended that this writ should be denied for the reasons, first, that relator was guilty of laches in not bringing on the motion for new trial earlier; and, second, for the reason that the failure of the relator to file a supersedeas bond, under 3 Comp. Laws, § 10355, deprived the court of jurisdiction to settle a bill. Their claims are not tenable. Apparently the motion was not dismissed nor did defendant attempt to hasten a submission. The relator is not responsible for the delay of the circuit judge. The statute (3 Comp. Laws, § 10355) has no bearing upon the question, having to do only with a stay of proceedings.

Writ granted.

Blair, C. J., and Grant, Montgomery, Ostrander, Moore, and Brooke, JJ., concurred.


author: McAlvay, J.

text:
    PEOPLE v. JAMES.

    Certiorari — Other Remedies — Discretion.
    The writ of certiorari is a discretionary writ, and where, as in this case, respondent may review all of the alleged errors of the trial court upon a writ of error, the writ will be denied upon the ground that another remedy is adequate and available.
    Certiorari by John James to review a conviction of statutory-rape.
    Submitted January 18, 1909.
    (Calendar No. 23,228½.)
    Writ dismissed March 3, 1909.

      Cogger & Broomfield, for petitioner.

       Headnote prepared by MoAlvay, J.

   McAlvay, J.

This is'an application by respondent for a writ of certiorari to review errors claimed to have been committed upon his trial and conviction of a felony before the circuit court for Mecosta county. A disputed question of fact in the case was whether the offense charged was committed in Isabella county, within 100 rods of the county line of Mecosta county, upon which fact depended the jurisdiction of the trial court. Upon the conclusion of the trial the court stated that this question of jurisdiction depended upon the locality where the offense, if any, was committed, and then charged the jury upon that question of fact alone, and sent them out to consider and determine it. The jury returned a finding that the location where the transaction occurred was within 100 rods of the Mecosta county line. The court thereupon charged the jury in the case, and a verdict of guilty was returned. Objections and exceptions were properly taken to all these proceedings. This application is made after judgment and sentence.

We are of the opinion that, as respondent has an adequate remedy to ■ review the alleged errors of the trial court upon writ of error and bill of exceptions, this application must be denied. The writ of certiorari is a discretionary writ, and not a writ of right, and this court has consistently followed the rule that where another remedy is available and adequate, the writ will not be granted, except under peculiar circumstances, where the denial would involve a failure of justice. Farrell v. Taylor, 12 Mich. 113; Specht v. City of Detroit, 20 Mich. 168; Smith v. Reed, 24 Mich. 240; Mathias v. Mason, 66 Mich. 524, and many other cases. We find a Michigan case (People v. Murray, 89 Mich. 276 [14 L. R. A. 809]), where respondent sued out a writ of .error, and also obtained a writ of certiorari. No bill of exceptions was settled or signed. The return to the writ of error brought the entire récord before this court. The writ of certiorari was based upon many affidavits, in support of respondent’s contention, that he was deprived of the public trial guaranteed to him by the Constitution. The court said:

“We do not think that the errors brought up by the writ of certiorari could have been reached by a writ of error. Many facts which are shown in the affidavits and petition for the writ would not - appear in the return to a writ of error, or in a bill of exceptions.”

From the reasoning of this case the conclusion is unavoidable that, if the error complained of could have been embodied in a bill of exceptions, a writ of certiorari would have been denied. In the case at bar it is admitted that the errors relied upon all appear upon the face of the record. It follows that they all could have been made to appear in a bill of exceptions.

The writ is denied.

Blair, C. J., and Grant, Montgomery, and Brooke, JJ., concurred.


text:
    MITCHELL v. BAY PROBATE JUDGE.
    1. Courts — Appellate Courts — Inferior Courts — Mandamus.
    Under section 8, article 6, of the Constitution, probate courts, in the sense of grade, are inferior courts, and an application to the circuit court for a writ of mandamus, in the absence of an exigency, is the proper procedure; but the Supreme Court, having issued an order to show cause, will dispose of the questions raised.
    2. Same — Probate Courts — Jurisdiction.
    The probate court is without jurisdiction to try title to land or personal property, either against an administrator, claiming the same in his own right, or a stranger to the estate.
    3. Executors and Administrators — Discovery of Assets — Statutes — Dismissal Without Prejudice — Res Judicata.
    Under sections 9355-9357, 3 Comp. Laws, an heir is entitled to an order from the probate court requiring the administrator of the estate to appear and answer interrogatories relative to items claimed to have been omitted from the inventory; and the failure to appeal from an order dismissing without prejudice a petition for such discovery is not res judicata of the items mentioned in said petition upon the filing of a second petition.

      4. Appeal and Error — Interlocutory Orders — Mandamus.
    An order of the probate court sustaining a demurrer to a petition against an administrator for a discovery of assets is not appealable, where it is incidental to a proceeding to compel an addition to the inventory filed by said administrator.
    Mandamus by Walter B. Mitchell to compel Gr. H. Francis, probate judge of Bay county, to vacate an order sustaining a demurrer to a petition for a discovery of assets.
    Submitted January 5, 1909.
    (Calendar No. 23,171.)
    Writ denied March 3, 1909.

      Davitt & Davitt, for relator.

      Gooley & Hewitt, for- respondent.
   Hooker, J.

The relator is a son, who, with four other sons and daughters and Mary B. Mitchell, widow and administratrix, are heirs of the estate of the late William Mitchell of Bay county. Relator, being dissatisfied with the inventory made by the administratrix, filed a petition in the probate court, alleging upon information and belief that certain real and personal property specifically described should be inventoried. It did not ask for discovery under the statutes hereinafter cited. An answer was filed stating that certain of the real and personal property was the property of Mary B. Mitchell, that she had no property, money, or effects in her hands belonging to the estate, except as stated in the inventory, and that certain of the property did not belong to the estate but to other persons. At the hearing the court found that a question of title.was involved, and that he had no jurisdiction to try the same, and it was ordered that, on the filing of a written statement by the administratrix, the petition be dismissed without prejudice. No appeal from this order was taken. Two or three weeks later a second petition was filed, alleging that certain real and personal property specifically described and claims of indebtedness not definitely ascertained were wrongfully omitted from the inventory, and praying a citation to said administratrix to appear and answer such petition and certain interrogatories contained-therein, and that she be required to produce certain books and papers, viz., those of some copartnerships of which William Mitchell was a member, viz., Mitchell & Co., and the Mitchell Transportation Company, which books are alleged to be in her own possession, or in the custody of others within her control. It also asked that she be required to submit to an oral examination at the hearing. It did not pray for any addition to the inventory. An answer was filed to this petition which contained a demurrer as to the discovery relating to the real property and certain of the personal property upon the ground that an answer had been made in the former proceeding, and that no exception nor appeal had been taken to the former order of the court. As\ to the remainder, there was a meritorious answer, accompanied with an offer of opportunity for examination of the books referred to. A hearing was had, at which the demurrer was sustained, and Mrs. Mitchell was examined orally; her testimony being attached to the petition for mandamus filed in this court. At this juncture, and without further order in relation to the case, a petition was filed in this court for a mandamus to compel the probate court to vacate the order sustaining the demurrer and to permit a full examination of the administratrix in relation to all matters set up in the second petition filed. An order to show cause issued.

The return of the probate judge states that Mary B. Mitchell appeared in obedience to the citation, and presented the books, deeds, and papers mentioned in the petition. The deed conveying lots 1 and 3 was recorded on December 39, 1887. A copy of the deed is set forth showing a conveyance duly executed, witnessed, and acknowledged from William Mitchell to Mary B. Mitchell. Also a similar deed of lots 11 and 13 was recorded November 4, 1898. On examination Mary B. Mitchell stated that she was the owner of the real estate mentioned, and had no certificates of deposit in her possession or under her custody or control belonging to said estate. The return states, further, that the probate judge allowed full examination of the administratrix and all witnesses as to matters relating to an automobile, certain checks mentioned in the petition, and certain moneys paid to William B. Mitchell, and that the order sustaining the demurrer which related to the real estate and certificates of deposit was based upon the pleadings and the oral statements of Mary B. Mitchell, and that further examination for the purpose of discovery as to title and ownership of said property so claimed by Mary B. Mitchell could not be permitted under the laws of this State.

Apparently the sole point in controversy from relator’s standpoint is whether he should be permitted to prove through the examination of Mary B. Mitchell on interrogatories and oral questions that the land and certificates of deposit belong to the estate. Counsel for the relator say that they apply to this court for, the reason that the circuit court has not jurisdiction to issue a mandamus in this cause, that the Constitution (article 6, § 8) confers upon circuit courts power to issue writs of mandamus to give them general control over inferior courts only, but that probate courts are not “ courts of inferior jurisdiction”— citing People v. Wayne Circuit Court, 11 Mich. 393; Church v. Holcomb, 45 Mich. 29; Schlee v. Darrow’s Estate, 65 Mich. 362; Fingleton v. Kent Circuit Judge, 116 Mich. 211. Section 3 of article 6 of the Constitution gives the Supreme Court a general superintending control over “all inferior courts.” Section 8 of article 6 gives the circuit courts the power to issue “ writs of * * * mandamus * * * and certiorari * * * necessary to * * * give them general control over inferior courts and tribunals,” and in all other cases and matters as the Supreme Court shall by rule prescribe. It appears from the foregoing that the term “ inferior courts ” is used in both and no good reason appears for holding that the later section does not include probate courts, and that the former does. The Constitution does not use the term ‘ ‘ courts of inferior jurisdiction ” in either section, and we must hold that the term “inferior courts” was used in the sense of grade, and means lower courts. This was evidently the understanding of this court when it amended Circuit Court Rule 46 (127 Mich. xxxiv) on May 12,1902, and expressly provided that the circuit courts might issue writs of certiorari to probate courts. It is also evident from the case of Swift v. Wayne Circuit Judges, 64 Mich. 479. It has been the announced policy of this court to enforce the spirit of section 8 of article 6 by declining to issue these writs when application could have been made to the circuit court, in the absence of an exigency. No exigency appears here. Having issued the order, however, we dispose of the questions raised.

The record shows conclusively, and, indeed, the petition indicates, that the title to the estate is disputed as to all of the items which relator specified, and that the administratrix claims title herself to some of them, and is disposed to doubt the title of the estate to others which are claimed by third persons. So long as an inventory is not conclusive either for or against an estate or an administrator, no harm necessarily results if these items are not added. It is manifest that the probate court is not a proper place to try title to land or to personal property, either against an administrator claiming the same in his own right or a stranger to the estate. For a case holding that disputed claims cannot be determined in such a proceeding, and should not be forced upon the inventory against the denial of the administrator, see Greenhugh v. Greenhugh, 5 Redf. Sur. (N. Y.) 191. See, also, Goundry v. Brink, 57 App. Div. ( N. Y.) 232. The probate judge has not expressly decided whether any of the property should be added to the inventory. It may be said that he has done so impliedly as to all covered by his ruling on the demurrer, but we infer that this proceeding is now restricted to the question of relator’s right to an examination of Mrs. Mitchell regarding the deeds and her title under them, and the certificates of deposit, and he claims this under certain provisions of the statutes. 3 Comp. Laws, §§ 9355, 9356, 9357. We understand that relator claims that the deeds were not delivered. Irrespective of the question of additions to the inventory, these statutes give broad powers to the probate court to inquire concerning alleged assets, and its powers were enlarged by the amendment of 1897 (Act No. 129, Pub. Acts 1897, 3 Comp. Laws, § 9356), making the cases of Palmer v. Jackson Circuit Judge, 90 Mich. 1, and Manly v. Washtenaw Probate Judge, 99 Mich. 441, inapplicable. We are of the opinion that relator was entitled to have the interrogatories answered and to an oral examination in relation to the matters covered by the demurrer. It is claimed that the failure to appeal from the dismissal of the first petition rendered those questions res judicata. We think not. The petition was dismissed without prejudice. True, it was done because the judge thought he had no right to try the title to these items. It does not necessarily follow that he has not the authority to enforce the statute for discovery, even if the relator be concluded in relation to the subject of “adding items to the inventory, a matter we need not determine. See Perrin v. Calhoun Circuit Judge, 49 Mich. 342, and Erwin v. Ottawa Circuit Judge, 138 Mich. 271. There is another reason, however, why we cannot grant the relief prayed. Treating the application now before us as one for discovery merely, it is incidental to the main proceeding; L e., the proceeding to compel an addition to the inventory, and therefore interlocutory. We held in Erwin v. Ottawa Circuit Judge, supra, that a similar order was not appealable, and we endeavored to show the disorder which would follow the review of such orders, and the absence of serious consequences from the denial of the right to appeal. Appeals are not matters of right unless given by statute, and, where this right is withheld by the legislature, it is not within a legitimate exercise of the power of this court to supply it in another form.

We are constrained to deny the writ, but, as the petition was dismissed without prejudice, the probate judge may consider the question upon a new application.

The writ is denied.

Blair, C. J., and Moore, Brooke, and Me Alva y, JJ., concurred.