author: Brooke, J.

text:
    HUBBARD v. OLIVER.
    1. Variance — Novation—Fraud—Corporations— Stock — Sales.
    There was not a fatal variance, in an action for fraud in. a transaction whereby plaintiff canceled certain notes due from defendant, the principal stockholder of a corporation, in exchange for stock in the concern, issued to and standing in the name of defendant who claimed that he caused the amount of the notes to be credited on the company’s books to working capital and that the corporation had, without plaintiff’s knowledge, assumed to pay the indebtedness; the suit was properly brought against defendant, instead of the corporation, in the absence of testimony that plaintiff consented to a substitution of debtors.
    2. Same — Sales.
    As to two shares of stock directly purchased and paid for by plaintiff, an action for fraudulent representations alleged to have been made by defendant was properly brought against him, after rescission and tender of the stock,
    8. Frauds, Statute op — Representations as to Credit op Another.
    Plaintiff’s case was not governed by the statute requiring representations as to the credit of another person to be in writing, where the proofs showed that defendant sold his own stock, not. that of the corporation, and made false statements relating to the value of its property, its net assets and the stock conveyed. 3 Comp. Laws, § 9518, 4 How. Stat. (2d Ed.) §11402.
    4. Fraud — Knowledge or Notice — Intent.
    False or fraudulent representations made by defendant as to the value of the stock transferred to plaintiff were actionable whether or not the defendant knew they were false.

    5. Same — Opinion.
    Where defendant was the majority stockholder of a corporation which he had established and had managed and controlled, his representations as to the value of the net assets of the company and of its stock were not mere matters of opinion, but were actionable in favor of plaintiff who had been a mere traveling salesman of the corporation, and who relied on the superior knowledge of defendant.
    6. Same — Rescission—Tender.
    And where plaintiff tendered back to defendant the stock received by plaintiff as increased by the act of the corporation increasing its captial stock, after he obtained the shares of defendant, the tender was sufficient; and though plaintiff brought suit for a money judgment the claim of defendant that by so doing he deprived defendant of his defense of usury on certain notes surrendered by plaintiff to him in payment of the stock, was not tenable.
    7. Same — Usury.
    While a voluntary payment of a usurious claim does deprive the injured party of any right to recover it, the theory of plaintiff was that he had been fraudulently induced to acknowledge payment of the notes, that payment had not in fact been made, and accordingly he is entitled to recover only the amount legally due on the notes after deducting the interest to the date of sale and that part of the principal which represented usury.
    8. Same — Evidence.
    The trial court was right in excluding testimony offered to show the value of the corporate assets at a time subsequent to the date of the sale of stock.
    9. Same.
    And it was proper to exclude evidence of the earning capacity of the company, on a record showing that defendant’s representations excluded that element of value.
    Error to Kent; McDonald, J.
    Submitted October 17, 1912.
    (Docket No. 127.)
    Decided December 17, 1912.
    Case by George C. Hubbard against Joseph W. Oliver for fraud and deceit. Judgment for plaintiff. Defendant brings error.
    Affirmed on condition..

      Norris, McPherson & Harrington, for appellant.

      Kleinhans & Knappen, for appellee.
    Prior to the year 1907, defendant was the sole owner and operator of a manufacturing business, which he ran under the name and style of “ Oliver Machinery Co.” He had started the enterprise about the year 1900 in a small way and without capital. The business met with considerable success from the outset. In the year 1902 the plaintiff, then about 27 years of age, was hired by defendant to act as a traveling salesman, vending the product of the business owned by defendant. Plaintiff’s salary in the beginning was $75 per month. He had been brought up upon a farm in Vermont, had graduated from the Agricultural College of that State, and had traveled two years selling headstones for the Vermont Marble Company. Up to the time of hiring with defendant, he had no knowledge. of the machinery business. After his engagement he spent about 10 days in the factory learning the points of the machinery he was to sell. He then went on the road, and thereafter visited the shop infrequently and spent little time in each visit. He had no knowledge of the cost or value of defendant’s plant and equipment, nor of the cost of the machinery he was selling.
    In the year 1907 defendant, having built and moved into a new factory, incorporated his business under the same name he had theretofore used. The capital stock of the company was placed at $150,000, $100,000 common and $50,000 preferred. All the common stock, except two or three qualifying shares, was issued to defendant. Some time prior to the incorporation, and on April 18, 1906, defendant had become indebted to plaintiff for unpaid salary to the amount of approximately $2,000. Defendant suggested that plaintiff leave this money in the business, taking defendant’s personal notes therefor. Plaintiff informed defendant that he was in a position to secure 10 per cent, upon his money by loaning it in a western State; whereupon defendant agreed to add to the principal a sum sufficient, with the 6 per cent, provided in the notes, to make the interest 10 per cent. This was accordingly done, and on the last-named date defendant gave to plaintiff two notes. Both bore the same date, the same rate of interest, and ran for one year. One was for $1,037.74; the other $1,038.92.
    These notes were not paid at maturity, but shortly thereafter defendant suggested to plaintiff that he should take some of his (defendant’s) stock in the corporation in lieu thereof. At this conference it is undisputed in the record that defendant represented to plaintiff that the net assets of the corporation, exclusive of good will, amounted to $300,000 or $350,000. As the common stock was but $100,000, this valuation would make each $1 thereof worth from $3 to $3.50. No sale was consummated at this interview, but on May 29, 1907, defendant wrote the following letter to plaintiff:
    “Grand Rapids, Mich., 5/29/07.
    “ (Personal).
    “ Mr. G. C. Hubbard,
    “c/o 'Oliver’ Machinery Co.,
    “New York, N. Y.
    “Dear Hubbard:

    “We have your favor of the 27th in which you are making disposition of the money we have of yours on hand. Your wishes will be cheerfully acceded to, in regard to sending $500.00 to Mr. Campbell, Great Falls, Montana. With respect to the balance, would suggest that if the propositions made you are acceptable now and you care to join forces with us we would let you have some of our common stock at 300 instead of 350 as was offered when you were here last.
    “We have no particular desire to dispose of this stock but presume that it is somewhat desirable on your part to become identified with us in that way. We are going to dispose of some to Mr. Lovell, and inasmuch as the writer does not care to make a profit on the sale of this stock, but merely selling it for what it is worth, we think this opportunity to invest a small sum on your part would be a good idea.
    “ If this is satisfactory to you kindly instruct us, and ws will forward you the stock certificates and get our balances squared up in that way. With best wishes, believe me,
    “ Yours very truly,
    “ J. W. Oliver.”

      This offer was accepted by plaintiff, and defendant sent him eight shares of the common stock in the following letter:
    “ Grand Rapids, Mich., June 27, 1907.
    “George C. Hubbard, Mgr.,
    “Oliver Machinery Co., N. Y.
    “ My Dear Mr. Hubbard:

    “Replying to yours of the 22d inst., beg to call your attention to the inclosure of certificate for eight shares of common stock of the ‘Oliver’ Machinery Co., the net price of which is $2,400.00.
    “Mr. Thompson will inclose in this letter a statement of your account, which we trust will prove satisfactory, and we will be glad indeed to have you return the notes you hold against us in payment for this stock.
    “ The reason for the delay in sending you this stock is that the writer forgot to get it out of the safe at home two or three days, and then it had to he taken back and forth to the bank to have it registered, and between it all it has taken time. We trust, however, that it is just as valuable now as it would have been a few days earlier,— besides your notes are that much more valuable — nothing like having an eye for business. * * *
    “ With kindest regards, believe me,
    “Yours very truly,
    “ J. W. Oliver, Prest.,
    “ Oliver Machinery Co.”
    On July 6, 1907, plaintiff inclosed in a letter to the Oliver Machinery Company the two notes, indorsed upon the face of each:
    “Received payment in stock in the Oliver Machinery Co. George C. Hubbard. July 5, 1907.”
    The two notes, with interest, amounted on that day to $2,235.90. Plaintiff had at the time a further balance due for salary amounting to $850, from which was deducted sufficient to make the sum up to $2,400, the agreed purchase price of the eight shares. On March 17, 1908, defendant wrote plaintiff, urging him to take some of the preferred stock in lieu of salary. To this request plaintiff replied that he would prefer to take more common stock, but thought, as dividends were so long deferred, the price should be less than $300 per share. Defendant replied:
    “ In reference to your taking your salary in common stock under all the circumstances, would say that the writer would let you have two more shares at $275.00 each instead of $300.00 as you formerly paid.”
    This proposition was accepted by plaintiff, and two shares of, defendant’s stock were transferred to him and his account debited with the cost, $550.
    The proceeds of both sales of stock were credited to an account on the books of the corporation called “ Working Capital.” Whether this account represented entirely sums advanced by defendant to the corporation for which he became its creditor is not expláined in the record. During all the time since the organization of the company, defendant has been its president and general manager, and has been at all times, and still is, the owner of the vast majority of the stock. In 1909 the capital stock of the corporation was increased to $650,000, $50,000 preferred and $600,000 common; $400,000 of the common stock was issued to the holders of the original stock in the ratio of four to one. Through this inflation plaintiff received a certificate for 40 shares in- lieu of the 10 shares he then owned. He was present at the stockholders’ meeting at which the increased capitalization was authorized, and voted in favor of the resolution. On September 6, 1911, plaintiff was discharged. For several years prior to that event he had been in charge of the eastern business of the Oliver Machinery Company, with headquarters in New York. Upon receiving his discharge, he repaired to Grand Rapids and began an investigation of the affairs of the company. He found that defendant, over his own signature, had certified in his annual reports that the net assets of the corporation in 1908 were but $87,952.62, in 1909 they were $77,499.24, in 1910 they were $78,363.02. If the preferred stock issued and outstanding in each of these years is considered as a liability in determining the net assets, these totals would each be reduced about $36,-000, thus making the total of net assets about $50,000. In each of the reports in question the defendant certified that “ the value, as near as may be estimated, of all property owned by the corporation, itemized as follows: Good will — nothing.”
    Plaintiff, having become convinced that the value of the stock had been misrepresented to him, tendered the same to defendant and demanded a return of his money. This being refused, he brought suit. The declaration is in trespass on the case, and avers that plaintiff bought the stock in question from defendant and paid defendant therefor. The plea was the general issue. Plaintiff recovered a judgment for $3,597.53, and defendant has brought the case here for review.

      As to whether statements made without knowledge of falsity constitute a ground of action for fraud, see note in 18 L. R. A. (N. S.) 379.

   Brooke, J.

(after svating the facts). At the close of plaintiff’s proofs, defendant moved for a directed verdict, upon the ground that there was a fatal variance between the declaration and the proofs. It is defendant’s contention that the transaction, in essence, was between plaintiff and the Oliver Machinery Company, and that the consideration for the stock was paid by the discharge of an indebtedness of $2,950 owing from the corporation to the plaintiff. We think this position of defendant untenable. In the first instance, it is undisputed that the stock sold was all the personal property of defendant. It was not treasury stock. In the next place, the two notes turned over in the purchase of the first eight shares represented a personal liability of defendant to plaintiff. It is claimed that the record shows conclusively that the corporation had assumed liability for these notes. We do not think it at all clear that this debt was assumed by the company. It certainly was not paid by the company; for, as before pointed out, the stock which paid it was defendant’s stock. If, as between defendant and his corporation, the corporation was obligated to pay the debt, then defendant, in himself paying it, and causing the amount thereof to be credited to “Working Capital,” became a creditor of his company to that extent. But, as between defendant and the corporation, it is not important to determine whose duty it was to pay the debt. It is not claimed that plaintiff ever knew or assented to a substitution of debtors. As between him and defendant, defendant was unquestionably liable. This disposes of defendant’s claim, so far as it affects the eight shares first purchased.

It is urged, however, that the last purchase of two shares stands upon a different footing. It is true that as to that purchase defendant was not personally indebted to plaintiff when it was made. The stock sold, however, was the defendant’s stock, and plaintiff made payment therefor in the manner solicited by the defendant. We think it may well be said that payment was made to defendant. Defendant certainly was under no legal obligation to pay the salaries of the employés of the corporation, and in doing so and causing the amount to be credited to “Working Capital” it may well be assumed that defendant became a creditor of his company for the amount so paid. The method of bookkeeping adopted by defendant for his corporation was a matter of no moment to plaintiff, and one over which he had no control. It must be borne in mind that in the beginning the defendant owned practically all of the common stock of the company, and at the time of the trial he still owned $320,000 of the $400,000 issued. He was in a position to take personal credit for the payment of these debts, and it made little difference in fact whether he took credit as an individual, or in the name of the corporation which he owned. There was no variance between the pleadings and proofs.

The defendant next claims that the statute of frauds precludes recovery, the representations having been made as to the credit of another, citing Bush v. Sprague, 51 Mich. 41 (16 N. W. 222), Hubbard v. Long, 105 Mich. 442 (63 N. W. 644), and Getchell v. Dusenbury, 145 Mich. 197 (108 N. W. 723). All these cases are clearly distinguishable from the case at bar. In Hubbard v. Long, supra, it is said:

It appears that the arrangement for the purchase was made with the defendant, but the money was paid directly to the bookkeeper of the furniture company, and defendant never received personally a dollar of the purchase price. The fact appears conclusively that the stock which plaintiff received was unissued stock of the company, and which the defendant never possessed.”

In Getchell v. Dusenbury, supra, Mr. Justice Grant said :

“ The defendant directors were not acting in their own behalf. They were not selling their own stock. They made no profit by the transaction. * * * Defendant Bahlke occupies a different position in the transaction than do the other defendants. He was the only one who was directly to profit by the transaction by receiving a commission. * * * I think that under the authorities the statute does not cover the representation made by Bahlke. See Krause v. Cook, 144 Mich. 365 (108 N. W. 81).

In the instant ease defendant not only owned the stock sold, but, as we have seen, by means of the transaction he -secured release of a personal liability upon more than $2,000 of paper. As was said in French v. Fitch, 67 Mich. 492, at page 494 (35 N. W. 258):

“ The statute was never intended to apply to a case like the present. The representations made were as to the value, then and prospective, of the property of the defendant, and which he was selling to the plaintiff. The fact that the representations were applied as well to the company’s property as to the defendant’s, cannot affect the defendant’s case.”
It is well settled that the statute is limited in its application to cases in which the representation is made for the purpose of obtaining credit for a third person.” 20 Cyc. p. 196, and cases cited in note 83.

Here the defendant, by means of his alleged false statements, did not undertake to secure credit for the corporation, but did undertake to sell to plaintiff bis own property.

The third and fourth positions of defendant are stated in appellant’s brief as follows:

“ (3) There was no proof of misrepresentation nor of wilful or reckless misstatement.
" (4) The representations were of opinion, and not actionable:
“(a) There was no evidence of superior knowledge which would make inapplicable the rule of caveat emptor.
“ (6) There was no warning to defendant that plaintiff was not capable of judging for himself, and that he would rely on the defendant’s opinion.
“ (c) The opinion was not coupled with any representation of fact, and a mere opinion is never actionable, unless all the elements of the superior knowledge rule are present.
(d) If the trial judge should not have held that the representations were of opinion only, he should have submitted the question to the jury.”

These will be considered together. Upon this subject the court charged the jury in part as follows:

“ (1) That the representations were made as he claims, and that they were false; (2) that the defendant knew the representations were false when he made them; or (3) that, without any knowledge of their truth or falsity, he made them recklessly, for the fraudulent purpose of inducing the plaintiff to purchase the stock; (4) that the plaintiff relied upon the representations, and was damaged thereby.
“ Taking up in their order these elements of the plaintiff’s case, you will first consider: Were the-representations made by the defendant false ? You will remember that the representations which it is claimed the defendant made were that the stock was worth more than three times its par value, or was worth at least $300 a share, and that the net assets of the corporation were three times its capital stock, or $300,000. Testimony has been offered and received in evidence as bearing upon the value of the stock at the time it was purchased and the net assets of the corporation. From this evidence you will determine whether the representations made by the defendant were true or false. If you find that they were true, then the defendant made no false representations, and the plaintiff cannot recover. If you so find, you need not further consider the case; for your verdict in that event will be, ‘ No cause of action.’ But if you find that the representations were false you will then consider the second element: Did the defendant know the representations he made were false ?
“In considering this question you may consider all of the elements in the case that may have any bearing on the defendant’s knowledge at the time he made the representations ; and if you find that he did not know they were false you will then consider whether he made the statements recklessly of which he had no knowledge, and without regard to their truth or falsity, intending in making them to defraud the plaintiff and deceive him, and induce him to make the purchase; for, as I said, if thdefendant made false representations and knew they were false, or if he made statements of which he had no knowledge, intending in making them to defraud the plaintiff, and relying on those statements the plaintiff was defrauded, the plaintiff could recover.
“It is just as much fraud for a man to make statements of which he hak no knowledge in a reckless disregard of the truth as to make statements with the knowledge that they are false; and if you find that the representations were false, and that the defendant knew they were false, or without such knowledge made them recklessly, you will then consider the next element of the plaintiff’s case, viz.: Did the plaintiff rely upon these representations, and was he damaged thereby ?
“ In order to hold the defendant liable for false representations, it must appear that they were the proximate cause which induced the plaintiff to make the purchase. It is not necessary, however, that they were the sole cause, or the sole or principal inducement to the plaintiff to buy the stock; but it is sufficient for plaintiff’s recovery if you shall find that the representations as to the value of the stock and assets were false and known by the defendant to be false, or made recklessly, or made without knowledge and in reckless disregard of the truth, and exerted a material influence upon the mind of the plaintiff to induce him to purchase the stock. In other words, the plaintiff may recover, even though there were other inducements that led him to make the purchase; but, as I said, the defendant would be liable for his false representations if they exerted a material influence upon the mind of the plaintiff to induce him to purchase the stock. That is the question for you to consider in determining if the plaintiff relied upon the representations.
“ If you find that these various elements which I have explained to you were present in this case, they will constitute fraud on the part of the defendant. Fraud is the gist of this action. Fraud is never presumed, but must be proved; and the burden of proof is upon the party alleging the fraud to prove such allegations by a fair preponderance of the evidence. It cannot be lightly inferred, but must be proved as alleged.
“ If the defendant is guilty of fraud, it means that he knowingly, intentionally, and fraudulently deceived the plaintiff, as I have heretofore instructed you. If you find that the defendant was guilty of fraud — that is, that he made false representations knowing that they were false, or made false representations without such knowledge, but recklessly and with a disregard as to their truth, and the plaintiff relied thereon, and thereby was induced to purchase this stock — then your verdict should be for the plaintiff. If you find from the evidence and instructions which I have given you that these various elements, or any of these various elements, of the plaintiff’s case have not been proven by a fair preponderance of the evidence, your verdict will be for the defendant.”

This charge is, to say the least, as favorable to defendant as he had the right to demand. This court has frequently held that scienter is not necessary to sustain the action. Aldrich v. Scribner, 154 Mich. 23 (117 N. W. 581, 18 L. R. A. [N. S.] 379), and cases there cited.

Was the representation one of fact or opinion? On cross-examination defendant testified:

”Q. You offered it to him at 350 when he was there at that conversation, didn’t you ?
“A. Yes.
"Q. Did you tell him at that time what the net assets of the company were, that they were about $350,000, at that conversation ?
“A. I dare say I did.
“Q. What is that?
“A. Undoubtedly I must have done so ?”

It seems obvious to us that this is not a mere expression of opinion, but is clearly an assertion of a fact. It is urged that the rule of caveat emptor should be applied, upon the ground that the record does not show the defendant to have had superior knowledge of the facts. We are somewhat at a loss in endeavoring to follow defendant’s argument upon this point. Defendant undoubtedly had the means of ascertaining accurately the facts he represented, and we think the record demonstrates that he had ascertained them. He was the founder, general manager, and principal owner of the business. Its books and system of accounting were under his supervision and control. All its assets had been acquired under his immediate supervision, and he knew their value as no other individual knew or could know it. On the other hand the plaintiff had never seen an inventory; nor did he know the amount of the obligations of the corporation. His activities in relation to the company were performed at a distance from the factory and in a subordinate capacity. Moreover, the relations existing between plaintiff and defendant at the time both sales were made were such as necessarily to import confidence on the one hand and ability to exert influence upon the other. Under such circumstances the representations, even if doubtful in character, should be held to be more than mere expressions of opinion. Moon v. McKinstry, 107 Mich. 668 (65 N. W. 546); Coulter v. Minion, 139 Mich. 200 (102 N. W. 660).

Defendant next contends that there could be no rescission, because plaintiff did not try to restore the status quo, in so far as he was able to do so. This claim is based upon two grounds: First, that in demanding money instead of the return of his notes he has deprived defendant of his defense of usury in an action upon the notes; and, second, that to return 40 shares under the increased capitalization is not the exact equivalent of returning 10 shares under the old capitalization. With reference to the first claim, the court charged:

“Under the statute of Michigan in force at the time when the notes were executed, 7 per cent, was the maximum rate of interest which a creditor’ could lawfully contract for, and the statute in effect at that time provided that if a greater rate of interest should be contracted for, either directly or indirectly, the defendant should not be compelled to pay any interest whatever upon the indebtedness, but such claim of usury can be waived by the party entitled to claim it. If he pays voluntarily, he waives the usury, and cannot recover it back. That was done in this ease. The notes contained the usurious interest, paid upon the transfer of the stock, and the defendant thereby lost any right to claim usury.”

We think the learned circuit judge was in error in this portion of his charge. It is undoubtedly true that one who voluntarily pays a usurious claim cannot recover it back. The trouble with the proposition is that the plaintiff is here urging that his claim has not been paid; that he has been fraudulently induced to acknowledge payment when none has in fact been made.

It seems plain that, if successful in his action, plaintiff is entitled to recover only that which he paid for the stock he received. If he did so recover, he would be in possession of the two notes against which, under the admitted facts, the defense of usury might be urged.

Defendant’s nineteenth request embodied an instruction that in determining the amount plaintiff paid for the stock the usurious interest must be deducted. The other ground urged upon this branch of the case is without merit. When one chooses to disaffirm a contract upon the ground of fraud, 'it is his duty to restore the other party to the same situation he would have been in if the contract had not been made, so far as it then can he done. The law requires only that the plaintiff restore what he has received. That plaintiff tenders in this case. If the stock returned has any different value, relative to the whole issued stock, from that issued originally to plaintiff (which may well be doubted), that difference was brought about by the act of the defendant, who, being in control, caused the increased capitalization. Jewett v. Petit, 4 Mich. 508; O'Shea v. Vaughn, 201 Mass. 412 (87 N. E. 616).

The last ground for reversal urged by defendant is that the court erred in excluding certain testimony as to the value of the assets of the corporation in 1911 and its earning capacity during a series of years. We think the evidence was properly excluded. The issue here was: What was the net value of the assets in 1907 and 1908, when the sale was made ? The value of those assets in 1911 would not affect the question, nor, in our opinion, would their earning capacity. It is, of course, well understood that it is a common practice in modern high finance to capitalize "earning capacity.” That element, however, is eliminated in this case, as the basis of the sale was "net assets” exclusive of “good will.” The amount of the usurious interest inserted in the notes was $76.66. The interest accruing thereafter to the date of sale was $162.29, making a total of $238.95.

The judgment will be reversed and a new trial ordered, unless the plaintiff, within five days, remits this amount from his judgment, in which event it will stand affirmed at the reduced figure.

Moore, C. J., and Steers, McAlvay, Kuhn, Stone, Ostrander, and Bird, JJ., concurred.


source: Caselaw Access Project

author: Moore, C. J. Bird, J.

license: Public Domain

text:
    MACOMBER v. COTTRELL.
    Appeal and Error — Amendment—Demurrer—Statutes.
    On appeal from an order sustaining a demurrer to a bill of complaint it is discretionary with the court, in affirming the case, to permit an amendment to complainant’s bill or to dismiss it without leave to amend. Act No. 299, Pub. Acts 1909, 1 Comp. Laws, § 549, 4 How. Stat. (2d Ed.) § 12071. Bird, J., dissenting.
    Bill of complaint by Allen E. Macomber against George Cottrell and others. On motion to amend decree entered in case of Macomber v. Cottrell, 171 Mich. 371 (139 N. W. 68).
    Submitted October 18, 1912.
    (Calendar No. 24,762.)
    Amendment denied December 17, 1912.

      William S. Jenney, for the motion.

      Stevenson, Carpenter & Butzel, contra.

   Moore, C. J.

This is an application for leave to substitute Esther Macomber as complainant and to amend the decree heretofore entered, and for other relief. The application is opposed for various reasons, and among these it is made to appear by affidavits that since the decree was entered, after due notice, the estate has been distributed, and the administrators de bonis non with the will annexed have been discharged.

This seems to be another phase of a very protracted litigation where a large estate is involved. A reading of the opinions therein rendered, which are found in Macomber v. Cottrell, 162 Mich. 91 (127 N. W. 402), Id., 162 Mich. 718 (128 N. W. 796), and Id., 171 Mich. 371 (139 N. W. 68), will afford a complete understanding of the questions involved.

One of the contentions of the solicitors for complainant is stated in the brief as follows :

“Section 549, subsec. 143, 1 Comp. Laws, as amended by Public Act No. 299 of 1909, p. 701, provides ‘ that when an appeal is taken from an order sustaining or overruling a general demurrer, the case shall, upon decision thereof by the Supreme Court, be remanded to the circuit court in chancery, and the complainant may amend his bill of complaint, within such time as the Supreme Court may prescribe and the cause shall then be disposed of as though no appeal had been taken.’ It would seem that the foregoing statute is mandatory, and that any decree not in harmony therewith is a nullity, and should be disregarded by the court.”

A claim, substantially the same, was made before in this case. In discussing it Justice Hooker, speaking for the court, said:

“We are of the opinion that it (the statute relied upon) should be construed to be declaratory of the pre-existing practice in circuit courts and its application to cases in this court upon appeal, the question being heard de novo, and that it was not the intention to make the giving an opportunity to amend mandatory in all cases. The rule has never been so construed although the language seems to be equally broad. We see no reason for giving the statute a different construction from that given the rule. We must, therefore, overrule the first ground (the ground now taken in the solicitor’s brief) relied on.” Macomber v. Cottrell, 162 Mich. 719 (128 N. W. 797).

Every phase of the case as presented by the motion has been passed upon by this court.

The motion is denied, with costs.

Steers, McAlvay, Brooke, Stone, and Ostrander, JJ., concurred with Moore, O. J.

Bird, J.

(dissenting). In the light of the chancery practice as it existed in 1909, the legislature of that year provided—

“ That when an appeal is taken from an order sustaining or overruling a general demurrer the case shall, upon decision thereof by the Supreme Court, be remanded to the circuit court in chancery, and the complainant may amend his bill of complaint * * * within such time as the Supreme Court may prescribe, and the cause shall then be disposed of as though no appeal had been taken.”

This language is plain, simple, and unambiguous, and I am convinced that it means what it says — that, after a decision by this court, the case shall be remanded to the circuit court in chancery. The right is reserved to this court to prescribe the time in which the amendment shall be made, but clearly contemplates that the question of the amendment shall be disposed of in the trial court. If this is not the proper construction, what significance can be given to the closing words of the act, “ the cause shall then be disposed of as though no appeal had been made ” ? Under the construction given to the act by the Chief Justice, there would be nothing left to dispose of in the circuit court.

Taking this view of the statute, I think an order should be entered in this court giving complainant 30 days in which to move for an amendment in the circuit court, and the case should then be remanded to the county of Ma-comb and there be disposed of by the trial court under the rules of law.


author: Moore, C. J.

text:
    PEOPLE v. KARAMOL.
    1. Criminal Law — Indorsement on Information — Witnesses.
    Without some excuse for delay the prosecuting attorney was not entitled to and should not have been permitted to indorse a new witness’ name on the information at a second trial of the case. 8 Comp. Laws, § 11984.
    2. Same — Presumptions.
    On the trial of a prosecution for violating the local-option law, the respondent was entitled to have a request given that he was presumed innocent until proved guilty, and could only be convicted if he was proved guilty beyond a reasonable doubt; nor was the point covered by a charge that he could not be presumed to be guilty, that he must be found guilty by the evidence, and was not required to introduce evidence in his own behalf unless the people had proved him guilty by testimony so convincing as to convince the jury of his guilt beyond a reasonable doubt.
    Exceptions before sentence from Emmet; Shepherd, J.
    Submitted November 14, 1912.
    (Docket No. 129.)
    Decided December 17, 1912.
    John Karamol was convicted of violating the local-option law.
    Reversed.

      Henry 8. Sweeny, Prosecuting Attorney (Wade B. Smith, of counsel), for the people. ,

      Halstead &, Halstead and C. J. Pailthorp, for respondent.
   Moore, C. J.

Respondent was convicted of a violation of the local-option law, so called, in the city of Petoskey. The case is here upon exceptions before sentence.

In the course of the trial the following occurred:

“Pros. Atty.: At this time I ask permission to indorse upon the information the name of Fred Simons, the dray-man.
“Mr. Halstead: That is objected to. It seems to us that there has been sufficient time for the prosecutor to have found the importance of this witness before the other trial, and no reason why it should not have been known has been given.
“ The Court: I will, allow it.
“Mr. Halstead: Note an exception.”

No showing was required or made excusing the delay in indorsing this name. It was urged on the oral argument that a reading of the record will satisfy the court that the delay was excused. A careful reading of the record does not satisfy us that the course pursued was within the statute as construed by this court. See section 11934, 3 Comp. Laws; People v. Hall, 48 Mich. 482 (12 N. W. 665, 42 Am. Rep. 477); People v. Price, 74 Mich. 37 (41 N. W. 853); Peoples. Howes, 81 Mich. 396 (45 N. W. 961); People v. Evans, 72 Mich. 367 (40 N. W. 473); People v. Machen, 101 Mich. 400 (59 N. W. 664), and cases cited.

The respondent, by his counsel, requested the court to charge, among other things, as follows:

In this case, as in all criminal cases, the defendant is presumed, or held, to be innocent until he is proved guilty, and, before a conviction can be had, he must be proved guilty beyond a reasonable doubt. He is not called upon to prove his innocence; that being presumed without proof.”

This request was not given, but the jury were charged as follows:

“ Lest I forget it further along in my charge, I will say now that it is the duty of the court in every criminal case to instruct you upon two principles appertaining to the trial of criminal cases. The first of these is that a person, though accused of a crime, cannot be presumed to be guilty. He cannot be found guilty until he is found guilty by the evidence. He is not required to introduce testimony in his own behalf, unless the people have proved by a preponderance of the testimony, by testimony so convincing as to convince the jury beyond a doubt of his guilt. Not beyond all possible doubt — there are but few matters in human affairs that are susceptible of such a high degree of proof as that — but it means that, if you have a doubt that is fair and candid and reasonable as to whether or not he is guilty as charged, you must give him the benefit of the doubt and bring him in not guilty.”

The language used by the judge was not a correct statement of the law. In People v. De Fore, 64 Mich. 693 (31 N. W. 585, 8 Am. St. Rep. 863), it was said:

“ It is the duty of the trial judge in a criminal case to instruct the jury in reference to the presumptions of law applicable to the case before them, distinguishing those which are conclusive from those which are disputable. The presumption of innocence is present in every criminal case; and he should instruct the jury to that effect, and that it stands good until overcome by evidence, which convinces the jury beyond a reasonable doubt that the respondent is guilty.”

See Tiffany’s Criminal Law (4th Ed.), pp. 526, 527.

Error is assigned upon the argument of the prosecuting attorney. The zeal of the prosecuting attorney led him to make an argument that is not to be commended, but we find it unnecessary to decide whether it constituted reversible error.

For the reasons stated, the case must be reversed. We think it not neoessary to discuss the other assignments of error.

The case is reversed, and a new trial ordered.

Steere, McAlvay, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.


author: Steere, J.

text:
    PEOPLE v. MIRE.
    1. Constitutional Law — Punishment, Cruel and Unusual-Statutes.
    Imprisonment of not less than 15 nor more than 30 years, for the crime of burglary accompanied with the use of high explosives, is not a cruel or unusual punishment prohibited by the State or Federal Constitution and Act No, 64, Pub. Acts 1907, creating the crime, is valid, being within the discretionary power of the legislature.
    2. Same — Criminal Law — Title—Burglary.
    The purpose of the act is sufficiently expressed by the title which describes the object as “defining the crime of burglary with explosives and providing the punishment therefor.”

      3. Same.
    That it creates a crime not recognized by the common law, or defines burglary in a new and different way, is not a ground for adjudging the statute unconstitutional.
    4. Same — Equal Protection.
    The objection that the enactment places a greater burden on some than on others and provides unequal protection, because various other statutory enactments prescribe milder penalties for kindred offenses, included within the offense charged against respondent, is overruled; as is also the objection that it is invalid because it places in the hands of the prosecuting attorney the authority to determine under what statute prosecution shall be instituted.
    5. Same — Repugnant Statutes.
    Sections 11545-11548, 3 Comp. Laws, covering burglary under specified conditions, do not conflict with Act No. 64, Pub. Acts 1907, and are distinguishable, in that they do not mention the use of explosives.
    6. Same.
    If 3 Comp. Laws, § 11506, is, in any respect, repugnant to the later statute, the first enactment must be held to have been repealed by the subsequent law in so far as the respective provisions conflict.
    Error to Lenawee; O’Mealey, J.
    Submitted November 15,1912.
    (Docket No. 139.)
    Decided December 17, 1912.
    Joe Mire and three others were convicted of burglary with explosives. Said Mire brings error.
    Affirmed.

      Earl O. Michener, Prosecuting Attorney, for the people.

      Solon T. Klotz, for respondent.
   Steere, J.

This ease comes before us on a declaration in error launched against the record, without any bill of exceptions.

Respondent was charged and convicted and sentenced in the circuit court of Lenawee county under Act No. 64, Pub. Acts 1907, which, including the title, is, in full, as follows:

“An act defining the crime of burglary with explosives and providing the punishment therefor.
The people of the State of Michigan enact:
“Section 1. Any person who, with intent to commit crime, breaks and enters any building and for the purpose of committing any crime, uses or attemps to use nitroglycerine, dynamite, gunpowder, or any other high explosive, shall be deemed guilty of burglary with explosives, and on conviction shall be punished by imprisonment for a term of not less than 15 years nor more than 30 years.
“Approved April 25, 1907.”

From the record, which includes the testimony taken on preliminary examination, counsel for the prosecution makes a statement of the case in his brief, which counsel for respondent accepts as correct and adopts and ratifies so far as the facts are concerned, not, however, admitting any of the conclusions of law therein stated. The facts contained in such statement, helpful to an understanding of the case, are, briefly, as follows: On the night of December 22, 1910, in the village of Britton, Lenawee county, Mich., the People’s Bank was broken into and entered by four persons, of whom respondent was one, who blew up and practically demolished a large safe in said bank, using therefor five charges of nitroglycerine. ' These four persons all participated and co-operated in the perpetration of this offense. After an extrance to the building had been made, two of them stood guard on the outside armed with large revolvers, while the other two proceeded to use the explosives on the safe in the building. When officers and citizens of the village, aroused by the explosions, appeared, the two men on the outside repulsed them for a time, firing many shots in the direction of those approaching, although no one was killed. They kept those seeking to apprehend or stop them in their depredations at bay for over half an hour, and then all four of the parties thus criminally engaged withdrew together and fled. They were pursued. during the night by officers and others, across the country, over fields, through woods and thickets, and finally were captured a distance of over 19 miles from Britton. During the chase they were persistently and closely followed directly from the scene of the crime to the place of their apprehension. When arrested, respondent was heavily armed and resisted the officers. He was complained against, tried by a jury, and convicted under the statute quoted, and on January 12, 1911, sentenced by the court to the State house of correction, and branch of the State prison in the Upper Peninsula at Marquette, Mich., in compliance with the said statute and the indeterminate sentence law, for a term of not less than 15 years, minimum sentence, and not more than 30 years, maximum statutory sentence; 20 years being recommended by the court as in his judgment a proper maximum. The other offenders were also charged with a like offense, tried by jury, convicted, and each sentenced accordingly to the same institution. All four are now serving their sentences.

In behalf of this respondent, it is claimed that his conviction and sentence were without jurisdiction and void, and he should be discharged from his imprisonment, without day, because the statute under which he was prosecuted and sentenced violates the Constitutions of the United States and of this State in the particulars that it deprives him of his liberty without due process of law, does not give him equal protection under the laws, abridges his privileges and immunities as a citizen of the United States, imposes cruel and unusual punishment, and the provisions of said statute are not expressed in its title.

Certain fundamental principles, from which the arguments in respondent’s behalf are built up, are well stated and elaborated in the brief of his counsel, fortified by abundant authority. They must be conceded as sound in principle and by precedent. Unquestionably if the" statute, under which respondent was prosecuted and which defines the offense of which he was found guilty and prescribes the punishment administered, is unconstitutional and void, the court was without jurisdiction to act, and the prisoner should be discharged. If this statute places a greater burden upon one than upon another, and does not give equal protection to all under like circumstances, denying to one rights which are accorded to others and inflicting upon one individual a more severe penalty than is imposed upon another in like case offending, if its object is not expressed in its title, or if it prescribes cruel and unusual punishment, it is unconstitutional and void, and it follows that the accused was deprived of his liberty without due process of law.

The punishment prescribed in the act in question is imprisonment, a most common and usual method of punishment the world over. The claim that it is cruel and unusual must of necessity be directed, not to its nature, but to its limits of time, “not less than 15 years nor more than 30.” That class of cruel and now unusual punishments at one time sanctioned and prevalent under the common law of England, such as burning at the stake, drawing and quartering, mutilation, starvation, and lesser forms of physical torture, to which the constitutional prohibitions were primarily directed, is not involved here. Approaching the dividing line, the inquiry as to what does in any particular case constitute cruel and unusual punishment under the constitutional provisions, turns, not only upon the facts, circumstances, and kind of punishment itself, but upon the nature of the act which is to be punished.

The most serious part of the crime defined in this statute, and the especial depravity which is to be punished, is manifestly the use of high explosives in a building as an agency to facilitate the perpetration of a felony, a branch of criminal activity regarded with increasing disfavor since the time of Guy Fawkes and steadily becoming more dangerous, more easily resorted to, a greater menace to organized society and more fear-inspiring with the development in kinds, strength, facilities in handling and use of those deadly agencies. The ease with which they can be procured and applied and the common knowledge of methods obtained from their general use in legitimate lines has resulted in an alarming increase of their application to unlawful ends. The results of their criminal use, like the use of fire in arson and the scattering of poisons, are not to be foreseen, and are often far-reaching, beyond the crime intended. As the intentional firing of a hovel may result in the unintentional burning of a city, so the intentional dynamiting of a building for revenge or as a warning to the owner, or the use of explosives to obtain access to the interior of a vault or safe, may cause the unintentional destruction of many lives. The viciousness of the crime is not only in the actual or intended result, but in the possible and unknown result. It can legitimately be inferred that the legislature enacted this new law with reference to the growing activities in that branch of criminal endeavor.

“It will be conceded that the legislature has the constitutional power to fix the minimum as well as the maximum of the punishment. It has also the exclusive jurisdiction to define ‘crime’ and prescribe the punishment. It is supposed to represent the sentiment and wishes of the people.” People v. Morris, 80 Mich. 641 (45 N. W. 591, 8 L. R. A. 685).
“The legislature is ordinarily the judge of the expediency of creating new crimes and prescribing penalties, whether light or severe, for prohibited acts.” Commonwealth v. Murphy, 165 Mass. 66 (42 N. E. 504, 30 L. R. A. 734, 52 Am. St. Rep. 496).

We are not prepared to hold that the punishment prescribed in this act does not fit the crime, or that the minimum punishment, which is the test, should be regarded as so unusual and cruel, and so disproportionate to the offense as to shock the moral sense of the public.

A question somewhat analogous to this was raised in People v. Morris, supra, which involved a statute prescribing a particularly severe punishment for horse thieves, who were said to have become specially active and obnoxious at the time of the passage of the act. The court there said:

“ When a statute is challenged as in conflict with the fundamental law, a clear and substantial conflict must be found to exist to justify its condemnation. * * * It is argued that under this law a prisoner must be sentenced from three to fifteen years, while under other statutes, for the larceny of property of the same value, he could only be imprisoned for one year. This is not a fair or legitimate test. Our statutes, and so probably the statutes of all the States, recognize this distinction. Under our statutes, larceny from the person, larceny from a dwelling house, or at a fire, may be punished by imprisonment for five years. The cashier or any officer or servant of a bank, who takes any of the property intrusted to his care, and thereby commits larceny, may be imprisoned for ten years. Any officer, clerk or person employed in the State treasury may, for larceny therefrom, be imprisoned for fourteen years. So, too, any person who shall, at the same term of court, be convicted of three distinct larcenies, may be imprisoned for fifteen years. In all these cases the property stolen may not exceed the value of a dollar. It has never been contended that any of the punishments imposed by these statutes were cruel or unusual.”

We think the objection that the law is unconstitutional because the object of the act is not expressed in its title is not tenable. The title describes the act as “defining the crime of burglary with explosives and providing the punishment therefor.” The one short paragraph constituting the body of the act is devoted exclusively to that subject and purpose. That the statutory burglary there defined varies from the definition of common-law burglary and is to some extent a departure from the principles which underlie the ancient law on that subject does not militate against the act. As already observed, it is within the constitutional power of the legislature to create and define the elements which constitute new crimes, and to name them as it sees fit.

The claim that this act is unconstitutional because it places a greater burden on one than upon another* does not give equal protection to all, and inflicts on one greater penalty than on another, is based upon the fact that there are several kindred acts in this State, prescribing a less severe punishment, which include, to a greater or less extent, elements of the offense created by the act under which respondent was convicted. As a consequence, it is said the legislature has so arranged these laws that the prosecuting attorney may at will choose the one under which he will proceed, and thus decide the penalty to be inflicted upon the accused, usurping in effect the power of the court to exercise its discretion in pronouncing sentence. The prosecuting attorney has been declared by this court to be a quasi judicial officer, and is vested with certain discretionary powers in the administration of the criminal law. As was pointed out in People v. Morris, supra, the laws of this State, as well as of other States, present numerous cases of similar statutes covering allied offenses and degrees of offense, like the different forms of assault and of larceny, in which the nature of the case might render it possible for the prosecutor to bring any one of several different charges against the accused. So long as these laws are not repugnant, they are not invalid because the accused could have violated more than one of them at the same time in a certain transaction.

It is claimed, however, that said Act No. 64, under which respondent was convicted, is repugnant to sections 11545-11548, and particularly section 11506, 3 Comp. Laws; the latter section covering the identical offense of which respondent was convicted, and which prescribes a much lighter minimum punishment than the one under which he was charged. Sections 11545-11548 of said 3 Comp. Laws define, grade, and fix the penalty for various forms of statutory burglary, covering breaking and entering, entering without breaking, in the nighttime and in the daytime, armed and unarmed, with and without making an assault, a dwelling house or other prescribed buildings, occupied and unoccupied, committing or attempting to commit, under the various conditions enumerated, different stated crimes. In none of these sections is any mention made of the use of explosives. They are readily distinguishable from, and not repugnant to, the statute in question.

Section 11506, entitled “An act relating to the punishment of bank, safe and vault robbery,” is as follows:

“Section 1. The people of the State of Michigan enact, that whoever, with the intent to commit the crime of larceny, or any felony, shall confine, maim, injure or wound, or shall put in fear any person for the purpose of stealing from any building, bank, safe, or other depository of money, bonds, or other valuables, or shall by intimidation, fear, or threats compel, or attempt to compel any person to disclose or surrender the means of opening any building, bank, safe, vault, or other depository of money, bonds, or other valuables, or shall attempt to break, burn, blow up, or otherwise injure or destroy any safe, vault, or other depository of money, bonds, or other valuables in any building or place, shall, whether he succeeds or fails in the perpetration of such larceny or felony, be punished by imprisonment in the State prison for life or any term of years.”

This statute was enacted in 1817, 30 years before said Act No. 64. If yet in force in all its provisions, it would seem clearly applicable to the facts in this case, and the prosecuting attorney could properly have charged the respondent with a violation of the older statute, under which his minimum sentence might be but two years. The act, however, does not in the portion relating to the use of explosives specifically make the breaking and entering of a building with intent to commit crime an ingredient of the offense, nor name the various high explosives, the use of which shall constitute the crime of “burglary with explosives,” as does said Act No. 64. Under the older law, respondent could be convicted without proof that he broke and entered a building with intent to commit crime, if it were shown he at any time or anywhere attempted to break, burn, blow up, etc., for the criminal purposes charged, while under the later law he could not.

When acts are pari materia, though enacted at different times and not referring to each other, they are to be taken and construed together, as explanatory of and supplemental to each other, and sustained, if possible, in order to effectually carry out the legislative intent and produce a consistent and harmonious system. In the disposition of this case, it is not necessary to determine whether or not such a result can be reached here, and both statutes sustained. Conceding that said section 11506, passed in 1877, is inconsistent with, and repugnant to, said Act No. 64, passed in 1907, and applying the rule of construction which obtains in such cases, the later law prevails, and the earlier falls.

“It is a principle of universal application in the construction of statutes that, if two legislative provisions are found to be inconsistent, the court in construing them will give effect to the later expression of legislative will. Therefore, if two statutes make inconsistent provisions for the punishment of the same act, the later repeals the earlier. * * * In the absence of an express repealing clause, a subsequent statute repeals a former one only so far as the two are inconsistent.” 1 McClain on Criminal Law, §§ 91, 92.

This is an old and long established doctrine. In the early case of Rex v. Cator, 4 Burr. p. 2026, it appeared that two statutes had been enacted punishing the offense of enticing away artificers to foreign parts. The earlier act imposed a punishment not exceeding £100 and imprisonment of 3 months for the first offense, and for a second offense a fine in the discretion of the court, and imprisonment for 12 months. The later statute, defining the same offense, imposed a forfeiture of £500 and imprisonment for 12 months for the first offense, and for the second a forfeiture of £1,000 and imprisonment for 2 years. It was held that the second statute repealed the first, the court saying:

“ By the latter act, there is no discretion left in the court. The punishment directed in it is peremptory.”

It has also been held where two acts of different dates, covering the same offense, are found upon the statute books, that when the legislature imposed in the second act a different punishment for the offense, whether it be smaller or larger than the former one, the former is repealed by implication. Nichols v. Squire, 5 Pick. (Mass.) 168. This subject has been reviewed and numerous authorities cited in Commonwealth v. Davis, 77 Mass. (11 Gray) 48, wherein a former statute defining and providing the punishment for maintenance of a disorderly house was held to .have been repealed by a subsequent statute upon the same subject prescribing more severe penalties.

In the case at bar, if, as claimed by respondent, the two statutes under consideration cover identically the same offense, providing a different and greater punishment in the later, the earlier is repealed, and therefore said Act No. 64 of the Public Acts of 1907, under which respondent was convicted and sentenced, stands alone, as the only law in this State under which he could be prosecuted for such offense.

For these reasons, we are constrained to hold that said act is constitutional and valid, that the court pronouncing sentence was not without jurisdiction, and the judgment must stand affirmed.

Moore, C. J., and Me Alva y, Brooke, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J., did not sit.


text:
    PEOPLE v. DUNSTON.
    1. Criminal Law — Divorce—Desertion—Abandonment.
    Desertion or abandonment of wife and family within the meaning of Act No. 144, Pub. Acts 1907, includes both the idea of a wilful and perpetual separation by. the husband and failure to support.

      % Same — Alimony—Wife Desertion — Husband and Wife.
    After respondent’s wife had procured a divorce from him, awarding to her the custody of their minor children, and requiring him to furnish a stated sum each week for the support of the two children, his failure to comply with the order as to payments did not constitute abandonment under Act No. 144, Pub. Acts 1907.
    Exceptions before sentence from Oakland; Smith, J.
    Submitted November 14, 1912.
    (Docket No. 130.)
    Decided December 17, 1912.
    William E. Dunston was convicted of deserting and abandoning his minor children.
    Reversed: respondent discharged.

      Carl H. Pelton, Prosecuting Attorney, and Clinton Mc&ee, Assistant Prosecuting Attorney, for the people.

      Andrew I. Moore, for respondent.
   Steere, J.

This case involves the question of whether or not respondent is liable to criminal prosecution for desertion and abandonment of his children, as defined in Act No. 144 of the Public Acts of 1907; he having previously been divorced from his wife, to whom the court had granted possession and custody of their minor children, decreeing an allowance to be paid to her for said children’s support, which allowance respondent has failed to fully pay. Respondent was arrested, prosecuted, and convicted under said Act No. 144 in the circuit court of Oakland county, and has removed the proceedings to this court for review, on exceptions and assignments of .error after verdict and before sentence.

The complaint in this case was made by his former wife, Margaret Dunston, to whom he was married on February 8, 1904, and from whom he was divorced January 9, 1909, by a decree in her favor under a bill alleging cruelty, drunkenness, and nonsupport. By the terms of said decree she was given possession and custody of their minor children, Ruth Dunston and William Dunston, aged, respectively, 4 and 2 years; it also being provided in said decree that defendant must pay to his said wife the sum of $1.50 per week for the support of each child until it should arrive at the age of 14 years. The testimony discloses that until March 1, 1910, defendant was absent from the State and made no payments, but on his return he entered into an agreement with his divorced wife that the back payments would be waived by her, provided he then commenced paying according to the decree and continued to pay from that time on. Following this agreement, he paid to her the sum of $144 in all; the last payment being made on April 6, 1911.

On July 31, 1911, his former wife made the complaint upon which warrant was issued in this case, as before stated. On preliminary examination he was held to the circuit court for trial, and on December 5, 1911, he was there found guilty of the offense charged, by the verdict of a jury rendered pursuant to a charge of the court concluding as follows:

“So I say to you, gentlemen, while I am not directing a verdict, that you must retire to the room and consider the verdict yourselves; but I say to you, you ought to convict the respondent in this case upon these facts, because I believe the facts do render him liable under the statute.”

The information filed against respondent charged that he—

“ On or about the first day of May, 1911, * * * did desert and abandon his minor children under 15 years of age, to wit, Ruth Dunston, of 6 years of age, William Dunston, of 4 years of age, without providing necessary and proper shelter, food, care, and clothing for them, contrary to the form of the statute,” etc.

When arraigned in the circuit court, respondent stood mute, and a plea of not guilty was entered in his behalf by order of the court. On the trial, by direction of his counsel, he introduced no testimony. Neither he nor his counsel took any active part in the trial, except that, under the express understanding that no rights should be waived in so doing, his counsel briefly cross-examined the people’s witnesses to bring out certain of the facts contained in the statement of this case, and by pertinent objections, exceptions, and motions saved the points desired for review.

It was the testimony of complaining witness, Margaret Dunston, that she had made no demand on defendant other than for the amount decreed on granting her divorce, that the last payment was April 6, 1911, since which he had contributed nothing towards the support of their children, and that she made the complaint because he had failed to make the payments provided for in the decree. It also appeared that the children were not destitute, or liable to become a public charge, or that complainant’s people, with whom she lived, were unable or unwilling to assist her.

At the conclusion of the people’s case, respondent’s counsel requested the court to direct a verdict in his favor, for the reason that the testimony introduced only showed a failure on his part to pay all of the money which he was ordered, by the court of chancery in the divorce proceedings, to pay; that the wife had a complete and adequate remedy by contempt proceedings in the chancery court; that the word “desertion,” as used in the criminal statute under which respondent was prosecuted, meant the act of the husband leaving his wife and children wilfully, with the intention of causing perpetual separation, and inasmuch as his children were taken from Mm by a decree of the chancery court he could not be held 'guilty of deserting or abandoning them within the meaning of the statute. This request was denied, as was also a motion for a new trial based on substantially the same grounds.

The offense of desertion and abandonment, as defined in said Act No. 144, is made a felony, punishable by sentence to State prison for from one to three years. That crime is charged in the information in this case to have been committed by respondent on or about May 1, 1911, at the village of Clarkston, Oakland county. He was then living in Detroit, Wayne county. The children were living at Clarkston with their mother, to whom they had been given by the court. Though the date of the offense is charged with a videlicet, which would not bind the prosecution' to the exact time stated, no complaint was made of respondent’s misconduct prior to his last payment on April 6,1911, and all the testimony is launched against his default subsequent to the latter date. The complaining witness was not then his wife. He had no right to the custody or company of his children, no control over them, and could not even legally visit them without her permission. By the former decree, dissolving the marriage ties and awarding the children to the mother, the legal entity of the family life and relations, with him as the head of the household, was destroyed, rightfully and through his fault, we must assume, but on the initiative of his wife. His family rights ended as to her, and, for the time being at least, as to his children. She became a single woman, with the rights of a surviving parent, as fully as though the father had been taken by death. She became solely entitled to the custody, parental pleasure of association and companionship, control, services, and earnings of their minor children, which otherwise belonged to the father separately or the parents jointly. He was divested of all paternal rights. His paternal duties, which survived, were defined by the decree of a court of chancery. They could be enforced in a civil action and by punitory proceedings for contempt in disobeying the order of the chancery court.

In the absence of a provision in the decree requiring contribution by the father, even his civil liability for the support of minor children, unconditionally awarded to the mother, has been a mooted question. In Keezer on Marriage and Divorce, § 329, it is said:

“ The party to whom the custody of children is awarded must support them. But where no award is made as to the custody of children, the liability of the father to support his minor children still continues.”

This court has held that, where the custody of a child is given to the mother, a third party, supporting the child at her request, cannot recover therefor in an action of assumpsit against the father, restricting the rule, however, to the particular facts in that case; the party bringing the action having married the divorced mother of the child. Johnson v. Onsted, 74 Mich. 437 (42 N. W. 62). In Finch v. Finch, 22 Conn. 411, it was held, by a divided court, that a divorced wife, awarded the custody and control of their minor children, could not, in the absence of a provision in the decree of divorce requiring contribution from him, recover from the father for the support and education of such children. In Rodgers on Domestic Relations, § 503, the general rule is stated as follows:

“ The sundering of the marriage tie between the father and mother does not relieve the parent of his legal duty to support his children, * * * and a wife who has been divorced from her husband by reason of his fault, and who has been awarded the custody of the children, may maintain an action against the divorced husband, in any court having competent jurisdiction, for necessaries and support furnished such children by her. * * * That there are respectable authorities at variance with this contention must be admitted. But it is confidently believed that the better reasoning, as well as the pronounced weight of authority, is to the contrary.”

This question is only pertinent here for the light it may throw on the legal status of respondent at the time he is charged with the felony defined in said Act No. 144, and his criminal turpitude in failing to make the payments for support ordered by the chancery court in the divorce proceedings, Said act has been twice before this court for consideration. In People v. Stickle, 156 Mich. 560 (121 N. W. 498), the act was held constitutional; but the case was reversed on the ground that the trial court did not, in charging the jury, give to the words “ deserts ” and “abandons” the meaning which the statute imports. It was there said:

“ Desertion of one by the other means more than going away, more than separation. * * * ‘Abandonment’is defined as:
“ ' The act of a husband or wife who leaves his or her consort wilfully and with an intention of causing perpetual separation.’ 1 Bouvier’s Law Dictionary, p. 2.
“The same author defines ‘desertion’ as ‘the act by which a man abandons his wife and children, or either of them.’ * * * Respondent was entitled to have the jury instructed # * * that ‘ abandonment or desertion under the statute, means to separate from, wrongfully, without intention of again resuming marital relations.’ ”

In the case at bar, respondent had already been separated from his wife and children by the decree of a court. He was a thing apart from them. He had no right to, and could not if he wished, resume marital or family relations with them. There only existed the obligation to contribute to the wife for support of the children.

In the case of People v. Albright, 161 Mich. 400 (126 N. W. 432), respondent was charged under this statute with deserting and abandoning his wife on May 20, 1909. The proof showed that the desertion took place February 7, 1905, prior to the enactment of the statute under which he was prosecuted. This court there held that the statute does not make subsequent refusal or neglect to provide necessary shelter, etc., standing alone, a felony; that, to constitute the offense, desertion, abandonment, and refusal or neglect must contemporaneously combine; that, the desertion and abandonment having occurred in 1905, the offense could not be considered as committed in 1909, by reason of the then refusal or neglect to provide necessary shelter, etc.

Applying the construction of the statute in those cases to the facts in this case, and conceding that at the time charged, and to which the testimony was directed, respondent neglected or refused to provide necessary and proper shelter, food, care, and clothing for his children, there is no proof that he at that time separated himself from, deserted, or abandoned them, within the meaning of the statute; but, on the contrary, he was apart from them, and his legal status was such that it was impossible for him to do so. Whatever his culpability and legal liability under other laws may be, we are constrained to hold that the facts proven by the prosecution in this case do not constitute the offense charged under the statute in question.

The conviction must be set aside, and respondent discharged.

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


text:
    PEOPLE v. DAHROOGE.
    1. Perjury — Evidence.
    Evidenoe tending to show that respondent in a civil suit denied receiving or depositing certain money in the bank, that he in fact made such deposit and that a deposit slip produced by him was falsified, held, to sustain a conviction of perjury.
    2. Criminal Law — Trial—Misconduct of Prosecuting Attorney —Evidence—Privileged Communications.
    Where the prosecuting attorney called to the stand the attorney for respondent in a civil suit, wherein it was claimed respondent had testified falsely, and asked him questions as to communications made to him by his former client, who was thereby compelled to claim that such communications were privileged and to object to the questions, the conduct of the prosecutor was prejudicial and required the reversal of the case.
    Exceptions before sentence from the superior court of Grand Rapids; Stuart, J.
    Submitted November 14, 1912.
    (Docket No. 133.)
    Decided December 17, 1912.
    George Dahrooge was convicted of perjury.
    Reversed.

      Earl F. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney, for the people.

      Powers & Eardley, for respondent.
   Brooke, J.

Respondent, having been convicted of perjury, brings his case to this court for review upon exceptions before sentence.

Respondent was plaintiff and one Salamy was defendant in a suit tried in the justice’s court of the city of Grand Rapids. The suit was upon a draft for $200, which sum the plaintiff (respondent) claimed was due him from Salamy. Salamy admitted the ^receipt of the money represented by the draft, but claimed that it did not represent a real indebtedness from him to respondent for the following reasons: On February 4, 1910, respondent and Salamy went to the Kent State Bank, where respondent signed and Salamy indorsed a promissory note for $300. Respondent discounted this note at the bank and claims to have then and there paid the $300 over to Salamy. The note was afterwards paid by Salamy. At the trial Salamy claimed that respondent gave him but $100 of the $300 obtained upon the note, and that the draft for $200, upon which suit was brought, was given him on May 28, 1910, to balance that transaction. Salamy produced his bank book which showed a deposit of only $105 on that day, and testified that respondent had taken $200 of the $300 and in his presence had handed the money to his (respondent’s) wife, together with $10 which he took from his pocket, and had instructed her to deposit the same in his own bank. He demanded the production of respondent’s bank book, which he claimed would show such a deposit on February 4, 1910. The bank book, be-. ing produced, did show a deposit of that amount on that day. The next morning, being the second day of the trial, respondent produced and offered in evidence a paper which, he testified, was the original deposit slip accompanying his deposit of February 4, 1910. The slip was in the handwriting of respondent and was as follows:

Kent State Bank.
Deposited by George Dahrooge, Grand Rapids Mich.
February 4,. 1910.
Please list each check separately.
Currency_______________________ §77 00
Gold................ 10 00
Silver.............. 59 50
Checks................. 63 50
Total.......................................... $310 00

The justice of the peace having secured an alleged true copy of the original slip from the bank, respondent was defeated in his civil suit against Salamy, and thereafter this prosecution was begun. The officials of the bank, being called in this case, testified that no such deposit as is described in this slip was made by respondent on said date. They identified a copy of the original slip made for the justice by Arthur Weitz, teller of the bank, on the last day of the trial in the justice’s court, a copy of which follows:

Kent State Bank.
Deposited by George Dahrooge, Grand Rapids, Mich.
February 4, 1910.
Please list each check separately.
Currency -.....-..................................§210 00
Gold-.............................................
Silver...............-.............................
Checks............................................

The wife of respondent at this trial testified that she herself got the slip produced by respondent from the bank on the second day of the trial in the justice’s court and handed it to Mr. Wesselius, her husband’s attorney, in the courtroom. A careful reading of the entire record in this case leads to the conclusion that there was abundant evidence to warrant the verdict of the jury.

It is urged, however, on the part of respondent, that reversible error was committed. There are 28 assignments of error. We think they are all without merit except two —the fifth and the twenty-seventh. The fifth is based upon the following proceeding occurring during the trial:

“The people called Sybrant Wesselius in rebuttal, and he testified as follows:
“Q. You were attorney for Dahrooge, this respondent, in justice’s court upon a trial August 29 and 30, 1910?
“A. Yes, sir. I was attorney in some case down there between Dahrooge and Salamy.
“ Q. That was a case, was it not, in which a certain deposit in the sum of $210, as shown by Dahrooge’s books, bearing date February 4, 1910, became involved ?
“A. There was a deposit involved of $210; I think that was the date.
“Q. I want to ask you, Mr. Wesselius, when that deposit became involved there, did Dahrooge tell you where he got the money that constituted that deposit ?
“Mr. Powers: I object to that as leading. In the next place Mr. Wesselius could not testify to it, anyway, because he would be barred on account of the confidential relation.
The Court: I suppose Mr. Wesselius would know in regard to whether it is a privileged communication or not.
The Court: So far as that question is concerned, you may answer.
Mr. Powers: An exception.
“A. He told me where he got part of it.
Q. Did he tell you where they were when they went to put the money in the bank ?
Mr. Powers: I submit that is incompetent and improper because this is violating this relationship between attorney and client. Mr. Wesselius was his attorney at that time.
The Court: You may answer that.
Mr. Powers: An exception.
Mr. Brown: I will waive that. * * *
Q. You can answer that by “yes” or “no.”
The Court: You may answer.
“A. He told me who was at the bank.
Q. At the bank ?
A. Yes, sir.
Q. The bank th6 deposit was made in or the other bank ?
“A. The bank the deposit was made in.
“Q. That the $210 was made in ?
“A. Yes, sir.
“Q. Did he tell you what time of day it was ?
Mr. Powers: I object to that for the same reason. Mr. Brown assumes that he can get around this statute by asking a particular question on each part and have the whole story go in, which is again a violation of the statute. An attorney cannot disclose what his client told him.
The Court: Of course, I assume Mr. Wesselius, being an attorney, will claim his privilege where he feels that it is involved. Every talk between a lawyer and client is not a privileged communication.
“Mr. Powers: The one who has the privilege and who can waive this point is the client and not the attorney.
** The Court: No, the attorney can do that sometimes.
“ Mr. Powers: I understand it is the client.
“Mr. Brown: I will ask some of these questions and see whether counsel objects to them.
“Q. Did he tell you what the character of the money was which constituted that deposit slip of $210, whether it was currency or mixed money, coin or currency ?
“Mr. Powers: At the time this conversation took place, I understand you were Mr. Dahrooge’s attorney representing him.
“A. In justice’s court.
“Mr.Powers: I object to it because an attorney cannot disclose a communication made to him by his client.
“Mr. Brown: I won’t urge that now.
“A. He told me it was money and—
“Mr. Powers (interrupting): I understand that question has been waived.
“Mr. Brown: Why he objects to the question, I understand, is that Mr. Dahrooge, on account of your being his attorney, objects to your telling here what he said. Is that right, Mr. Powers ?
“Mr. Powers: If it please the court, we take exception to this method of examination. The prosecuting attorney knows those questions cannot be answered. He asks those questions and makes us except to them to prejudice him in the eyes of the jury. I say this is an improper examination by the prosecuting attorney, and I ask the court not to permit this method of conducting the examination.
“Mr. Brown: You may take the witness.”

Of this assignment of error, counsel for the people say:

“Mr. Brown (the prosecutor) could not tell until after asking the questions whether or not any privileged communication would be waived. We submit the court fairly and fully guarded the rights of respondent.”

This court has frequently held that confidential communications between attorney and client are not to be revealed at any time. Erickson v. Railway Co., 93 Mich. 414 (53 N. W. 393); Mack v. Sharp, 138 Mich. 448 (101 N. W. 631, 5 Am. & Eng. Ann. Cas. 109); Lorimer v. Lorimer, 124 Mich. 631 (83 N. W. 609). See, also, cases cited in Lorimer v. Lorimer, supra; 40 Cyc. p. 2361, and cases cited in note 81. It may, perhaps, be said that in the case at bar the attorney did not testify to any fact which could have prejudiced the respondent. This, however, we do not think is the proper test to be applied to such testimony. In offering the attorney as a witness and interrogating him as he did, the prosecutor clearly intimated to the jury that, if the attorney was permitted to testify, his evidence would not sustain the statements made by respondent when upon the stand in his own behalf. The mere fact that respondent was compelled to interpose an objection upon the ground of privilege tended to prejudice him in the eyes of the jury. A reading of the foregoing excerpt rather indicates that the prosecutor was fully aware of this fact and deliberately sought such advantage as would naturally flow from the interposition of the objection. If such was the case, it was highly reprehensible. Kerr v. Manufacturing Co., 155 Mich. 191 (118 N. W. 925). The charge is barren of any allusion to the subject, and the remarks of the court during the colloquy certainly had no tendency to correct the error.

The twenty-seventh assignment of error is based upon the refusal to grant a new trial. A new trial should have been granted upon the ground urged in the fifth assignment already discussed.

For the error pointed out, the conviction is reversed, and a new trial ordered.

Moore, C. J., and Steere, McAlvay, Stone, Ostrander, and Bird, JJ., concurred. Kuhn, J;, did not sit.