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    M. Henry Roberts v. The People.

      Offenses charged with a particular intent: Proof of intent: Intent as affected by voluntary intoxication; by insanity ; or by insanity produced by voluntary intoxication. When a statute makes an offense to consist of an act committed with a particular intent, which act and intent constitute,, substantially an attempt to commit a higher offense than that which was accomplished; proof of the particular intent is as necessary as of the act itself; but not, necessarily, by direct and positive testimony. It may be inferred from any facts in evidence which satisfy the jury of its existence. People v. Scott, 6 Mich., 296.

    Voluntary intoxication will not excuse acts which constitute an offense. The criminal intent may be inferred, as a fact, from the acts. But when the offense charged is an act combined with an intent to commit an offense not actually committed; and the jury are satisfied that the intoxication is of a degree which rendered the accused incapable of entertaining the particular intent charged; and that he had no such intent prior to the intoxication, nor any knowledge that he was liable, when intoxicated, t6 such a condition of mental disorder as would render him capable of the offense charged, they must acquit.
    The question of the particular intent in this case so far as affected by intoxication alone, is one, rather of the exercise of the will, than of the reasoning powers. If the prisoner had the capacity to form the simple intent to kill by the means used, this is sufficient; and his voluntary intoxication will be no protection, though his mental faculties were so far obscured that he was incapable of judging of the right or wrong of his actions. If his mental faculties were so far overcome by the intoxication that he was not conscious of what he was doing, or if he know what he was doing, but did not know why he was doing it, nor that his acts and the means he was using were naturally adapted to produce death; then he had not the capacity to entertain the intent, and in such case the intent could not be inferred from his acts. But if he knew what lie was doing, wliy lie was doing it, and that Ms acts, with the means lie was using, were likely to kill; then he is responsible for the intent as well as the acts, to the same extent, and the jury may infer the intent from his acts in the same manner, as if he were sober. Nor will insanity excuse, if occasioned by voluntary intoxication, and he is aware of his liability to insanity from that cause, and sufficient mental capacity remain to form the intent to kill as above explained.
    But if a person be subject to a tendency to insanity of which he is ignorant, which is liable to be excited by intoxication, and if in consequence of intoxication, though voluntary, Ms mental faculties become excited to diseased action to such an extent that he does not know what he is doing nor why he is doing it; or, if conscious of this, he is not conscious of any object in doing it, or if he does not know that what he is doing or the means he is using are adapted or likely to kill; or, though conscious of all these, yet if the diseased action of Ms mind has so far overcome or perverted his reason that he does not know that what he is doing.is wrong, then he will not be responsible for the intoxication nor its consequences.

      Heard October 15.

      Decided January 5.

    Error to Calhoun Circuit.
    Information: presented to the Circuit Court for the county of Calhoun by the prosecuting attorney of that county, charging M. Henry Roberts, the plaintiff in error, with an assault upon Charles E. Greble with intent to commit the crime of murder. The defendant was convicted on the trial and the case now comes before this Court upon the bill of exceptions settled and signed by the Circuit Judge.
    Upon the trial, to prove the issue on the part of the people evidence was given tending to show that the defendant and one Greble, met in the city of Battle Creek on or about the 10th of March, 1868, between eight and eleven o’clock in the forenoon; that Greble asked defendant when he was going to' bring the rest of the wood down; that defendant replied that he had brought all that he was going to, that he had0 agreed to bring sis cords; that Greble replied that only four or four-and-a-half cords had been brought; that defendant said he measured it when he drew it, and if Greble wanted to measure it, he ought to have come and measured it; that Greble said if defendant did not bring the wood he would sue him, but defendant said he would do nothing about it, and the parties separated:
    “That two months prior to this conversation, Greble had sold defendant a cutter, to be paid for, $13 in cash and balance in six cords of wood, to be delivered in Battle Creek; that shortly after the purchase of the cutter the defendant informed Greble that he had got the wood all out and piled on the roadside, and wanted Greble to go up and measure it, as he did not want to re-pile it when it was delivered; that Greble declined to go and measure it saying he would trust the defendant to do so
    “ That on the said 10th day of March, about 1 p. m., the defendant came into Mabley’s store at Battle Creek, where Greble was employed as a clerk, and seemed to be angry at Greble; that one J. H. Stone, who was in company with Greble, asked Greble what the trouble was, and was informed by Greble of the conversation in the forenoon ; that Boberts then said that Greble had insulted him two or three times about wood and that he wanted him never to speaK to him about it again, and if he did, he would be sorry for it, or he would fix him or words to that effect:
    “That Greble then told defendant that he was sorry if he had insulted him and asked him when he had done so; that defendant replied that he, Greble, had hallooed at him about the wood, and dunned him in public, and when he did not owe him, and that it was an insult; that Greble informed defendant that he had procured a summons to issue against him for not delivering the balance of the wood:
    “That at about six o’clock p. m. on the same day, said Greble was in said store in the act of making change for a customer, when the defendant came into the store in a hurried and excited manner, and walked up to within eight or ten feet of Greble and drew a revolver and fired a shot at him without speaking; that on the firing of the shot Greble started for the defendant, when he fired a second shot, and while in the act of firing the third shot, Greble seized him, and the load went into the ceiling of the store, overhead; that the shots were fired rapidly but none of them took effect; that defendant was immediately thrown down, disarmed, secured and arrested, when he said if he had got one more shot he would have fixed him; that up to the day on which this assault occurred the parties had been on friendly terms:
    “ That between the second interview between Greble and the defendant and the assault, the defendant complained of the insult and made threats against Greble and against the store, saying he would clean out the shanty :
    “That the defendant, immediately after his arrest, was taken to prison by one Pettee, who stayed with him until morning; that on being put into prison, he fell into a deep sleep, from which Pettee was unable to arouse him until about one o’clock, when efforts to arouse him were successful, and from that time to three o’clock, it was impossible to say whether he was in possession of his mental faculties; but, that at three o’clock he was in possession of them; but that prior to that time, he did not seem to be in full possession of his mental faculties:
    “ That on being asked if he knew what he was in prison for, or what he had been doing, he replied with apparent truth that he did not:
    “That he was told by his attendant, Pettee, that he was there for shooting a man, and asked if he knew who it was, and after thinking a few minutes he said he did not, and that he could not think of any one unless it was Greble, he was then informed that he had hit upon the right man; defendant then said that Greble had insulted him and that he first thought he would go home, but he got to drinking and then he thought he would send to Chicago and get a man to come and rvhip him, but after that he could not remember anything.”

      The people then rested and the defendant “gave evidence tending to show, .that the mother of the defendant was living, and was insane with lucid intervals, and has been so for five years last past^ and is now 56 years of age:
    “That in her lucid intervals she was a kind and quiet woman, but that paroxysms of insanity were brought on by any excitement, and that she was then very violent toward her family and friends, and that defendant’s maternal grandfather had died insane :
    “That prior to and since said assault he had borne a good character.”
    And the defendant further “gave evidence tending to show that on one occasion when two ordinary doses or drinks of whisky were administered to him for neuralgia, he was thereby deprived of the use of his mental faculties, and became ungovernable, and insisted that he must go to New York immediately, where he had formerly lived, although he had not contemplated going there before he took the whisky :
    “That at the time of firing said shots the defendant was not in possession of his mental faculties, and did not know what he was doing, and that he was in this mental condition from some hours previous to the assault until three o’clock the next morning :
    “That the disease of insanity was hereditary, and that in families where it was hereditary it might lie dormant in an individual member of the family for years and then manifest itself; and that intoxicating drinks and' exciting altercations were prominent and usual causes of its development, aud that it was more likely to be hereditary in the maternal than the paternal side.”
    After the defendant had rested the said People further, by the way of rebutting the defense “gave evidence tending to show that the defendant was deprived of the use of his mental faculties at and before and after the assault by his own voluntary intoxication.”
    The cause was then argued to the Court and jury and the said defendant, by his w counsel, requested the Circuit Judge to charge the jury as follows :
    1. “If the jury find that the defendant, at the time of the assault, had, by drinking intoxicating liquors, made himself incapable mentally of entertaining the intent to kill, then he is not guilty unless he had formed the intent to kill when mentally capable of entertaining’it.
    “ 2. In this case the act of shooting is an innocent act, unless done with a corrupt and malicious motive, and in such a case the jury may persume that from intoxication there was a want of criminal intent. The question is, did, he know what he was about ? The law depends on the answer- to this question. If he did, he is guilty. If he did not, he is not guilty.
    “ 3. The nature and essence of the crime charged in the cause depends upon the particular state and condition of the defendant’s mind at the time of the assault, and drunkenness, as a matter of fact, effecting such state and condition of the mind, is a proper subject for consideration and inquiry by the jury. The question is, what was the mental status.
    “4. In order to convict, the jury must find either that the defendant was in possession of his mental faculties and entertained an intent to kill when the assault was made, or that he had formed this intent before he lost control of his faculties.
    “o. When a man becomes voluntarily drunk, there is a wrongful intent, and if, while too far gone to have any further intent he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this combination of act and intent he is criminally liable. The application of this rule to the case on hand would be that the drunkenness is no excuse for the assault, but if defendant is charged with a criminal intent accompanying the assault, this could not exist if he was too drunk to entertain it. The wrongful intent in drinking does not supply or aid the proof of an intent to kill.
    “6. That if the jury shall find from the evidence that the respondent was afflicted with an hereditary predisposition to insanity, which was aroused and called into action by the stimulus he drank, so that he was at the time of the assault temporarily insane, as contra-distinguished from the ordinary effect of drunkenness, then he was excusable in law from any criminal intent to commit the crime charged.”
    But the Circuit Judge refused to so charge as to each of said requests; to which refusal the defendant excepted.
    The Judge then instructed said jury as follows:
    “Should you find the fact to be that the defendant made the assault alleged in the manner and with the instrument as charged in the information, and with the provocation only of the words shown to have been used by the party assaulted, the case of the prosecution is sustained, and the defendant must be found guilty, unless you should find it clearly proved on the other hand, that the defendant at the time of the assault was laboring under such a defect of reason, from disease of the mind as not to know the nature and quality of the act he was doing, or if he did know it, that he did not know he was doing what was wrong.
    “I instruct you further, that voluntary intoxication of the defendant at the time of the assault, will not excuse him and if the defendant was intoxicated at the time, there is no proof that he became so except by his own volition.
    “ It is claimed by the defense, however, that although intoxication will not excuse the act of the party, it takes away the element of specific intent, that the assault was an innocent act, unless done with a corrupt or malicious motive, and that in such ease the jury may presume that from intoxication there was a want of criminal intent.
    “It seems to the Court that the statement here made of the position of the defense, which is believed to be accurate and comprehensive, contains its refutation.
    “ In what sense could the assault with a deadly weapon be considered innocent? Does not the very act, with its circumstances, carry proof of intention which is irresistible ?
    “ The power and direction which bore the respondent to the place where Greble was to be found, and identified him there, and which aimed the pistol, fired it, and repeated the discharge, carried with it to other minds the inference of intention, which it seems to me, cannot be questioned either in reason or law.”
    To each of which charges and instructions the said defendant excepted.

      D. D. Hughes, for plaintiff in error.
    The charge in this case is assault with intent to murder.
    I. To constitute this crime there must be a specific intent to murder.—Maher v. The People, 10 Mich., 217. Mr. Bishop says in these cases the particular or ulterior intent must be proved, in addition to the more general one, in order to make out the offense, and nothing will answer as a substitute. This being the law, the Court below erroneously refused to instruct the jury on several points.
    It is not claimed by us that drunkenness is an excuse for the commission of crime. We accord fully with the doctrine of this Court on that subject in the case of The People v. Garbult, 17 Mich., 9.

    But what I contend for, is, that a man who is voluntarily intoxicated, as well as one who is sober, is not responsible lor what he has not done, and ought not to be punished for it.

      If defendant in this case committed acts which amounted to an assault, or an assault and battery, he couJd be legally convicted of that, but when he is charged with committing that assault with a specific intent, I insist that such intent must be proved; and if from voluntary intoxication he was incapable of entertaining that intent, and never did entertain it, even in his sober moments, then the offense is not complete, and the refusal of the Court to charge the first request was erroneous.—1 Bishop’s Cr. Laio, 299.

    It is no answer to this position to say that if the shot had produced death it would have been murder. This may be so and would be the legitimate result of what I concede, that drunkenness would not excuse an act done.
    To constitute murder there need be no specific intent to kill.—1 Bishop’s Cr. Law, 300, but to constitute an assault, with intent to murder, the specific intent must exist and be proved, and if from any case it is absent and does not form an element in the assault, the defendant is not guilty of the intent.
    II. The Court below erred in refusing the second request to charge: — That the shooting was an innocent act unless done with a corrupt mbtive, and that the jury might presume from intoxication that there was a want of criminal intent. This request is copied from a charge of Judge Baldwin, in United States v. Roudenbush, 1 Bald., 514,—1 Bishop’s Cr. Law, 299 n. 5. It is substantially like the first request and depends mainly upon the same principle and in refusing it the Court below argued the facts instead of the law.
    III. The third request to charge refused by the Court is taken verbatim from the charge of the Court in Swan v. The State, 4 Humphrey, 136 and is approved by Mr. Bishop.—1 Bishop’s Cr. Law, 299; Kelley v. State, 3 Sm. and M. 518; Reg. v. Cruse, 8 Car. and P. 541; Haile v.

      The State, 11 Humph. 154; Pirtle v. State, 9 Humph. 663; Reg. v. Moore, 3 Car, and A. 319.

    IV. The fourth request is substantially embodied in the others.
    V. This charge was refused on account of the manner of the application of the doctrine to the case, and has already been argued. My application is that drunkenness does not excuse what he does, but does excuse what he don’t do, form the intent to kill.
    VI. The sixth request to charge which was refused by the Court below, raises a distinct question as to whether hereditary insanity aroused by drinking is an excuse for crime, when the gist of the crime consists of a felonious intent.
    VII. The charge which the Court gave to the jury is open to criticism on the points referred to above, and particularly for a discussion of the facts in the case, which it is submitted, is the business of counsel and not of the Court.

      Dwight May, Attorney General, and J. G. Lodge, for defendant in error.
    The requests and exceptions seem to be placed mainly upon the ground, that in a ease of this kind, intoxication or drunkenness is a good defense, unless the intent to murder had been formed, when the accused was not under the influence of intoxicating liquors. This position cannot be maintained for several reasons.
    I. Voluntary intoxication is esteemed by our jurisprudence as malum in se.—1 Bishop C. L., 488, 496, 414, 415. — And where a man intending one wrong, which is malum in se, does another unintentionally, the intention and the act coalesce; and he is punishable for what he does. Nor need the thing intended be indictable, provided the thing done is so. Hence, when a man voluntarily becomes drunk, there is the wrongful intent; and if, while too far gone to have any other intent, he does a wrongful act, the intent to drink coalesces with the act done while drunk; and for this combination of act and intent, he is criminally liable.—1 Bishop C. L., 489, 411, Note (1), 412 and Notes, 415, 3d Ed.; Commonwealth v. Call, 21 Pick., 515; Reg. v. Camplain, 1 Car. & K., 746; State v. Ruhl, 8 Iowa, 447; People v. Enoch, 13 Wend., 159; 1 East, P. C., 255.— It is, therefore, a legal doctrine, that voluntary intoxication furnishes no excuse for crime committed while under its influence.—The People v. Garbutt, 17 Mich. 19; State v. Bullock, 13 Ala. 413; Beverly’s Case, 4 Co., 123 b, 125 a; People v. Pine, 2 Barb. 566, 570; Pleas of the Grown, 1 Hales, 32; Rex v. Thomas, 7 C. & P. 820; 3 Greenleaf Ev., 148; 1 Whart. C. L., § 37; U. S. v. Drew, 5 Mason, 29 and 30; Commonwealth v. Hawkins, 3 Gray, 463; People v. Hammill, 2 Parker 223; Rex v. Meakin, 7 C. & P. 297; Rex v. Meakin, 7 C. & P. 145; Bishop C. L., 498, 3d Ed. and Note (2.)
    II. The qualification of the above doctrine, is where the defendant is made drunk by stratagem — the fraud of another, or the unskillfulness of his physician — then he is not responsible. — Pearson’s Case, 2 Lewin, 7, 8; 1 Russ, on Crimes, 7, 8; 1 Hale P. G. 32; People v. Robinson, 2 Parker, 235; 1 Bishop C. L., 3d Ed., 489. And the exceptions to it arise out of those offenses which, from their peculiar nature, can only be committed when the act is joined to a particular intent. These offenses are Larceny, Passing counterfeit money, Murder in the first degree, and possibly some others. To commit these crimes, there is required a peculiar knowledge, nice discrimination and judgment, deliberation and premeditation.—Nichols v. The State, 8 Ohio State, 435; Rex v. Pitman 2 Car. & P., 423; Commonwealth v. French, Thacher’s Crim. Cases, 163; Pigman v. The State, 14 Ohio, 555; U. S. v. Roudenbush. 1 Bald. 514, 517; 1 Bish. C. L., 3d Ed., 490.

      III. But this is not one of the cases coming within the above exceptions. It has been decided in this State that on an indictment for an assault with intent to commit the crime of murder, it is wholly immaterial whether the murder intended would, if consummated, have been murder of the first or second degree.—People v. Scott, 6 Mich., 287.

    Murder, u^der our statute, is divided into two degrees The first degree requires a premeditation and determination that the second degree of Murder does not; but both degrees are murder. And murder under our statute embraces every offense which would have been murder at the common law, and it embraces no other crimes. Murder at the common law embraces all unlawful killing done with malice aforethought.—People v. Scott. 6 Mich., 292, 296. And the doctrine of the courts is that the intention to drink may fully supply the place of malice aforethought. So that if one voluntarily becomes so drunk as not to know what he is about,- and then with a deadly weapon kills another, the killing will be murder, the same as if he were sober. In other words, the mere fact of drunkenness will not, alone, reduce to manslaughter a homicide which would otherwise be murder; much less extract from it altogether its indictable quality. If so, a drunken man could not commit the crime of assault with
    intent to murder.—1 Bishop Crim. Law, 3d Ed., 491; Beverly’s Case, 4 Co. 123; U. S. v. Cornell, 2 Mason, 91, 111; Haile v. The State, 11 Humph. 154; Purtle v. The State, 9 Humph. 663; Commonwealth v. Hawkins, 3 Grey, 463; People v. Hammill, 2 Parker, 223; People v. Filler, 2 Parker, 16; People v. Robinson, 1 Parker, 649; Pennsylvania v. McFall, Addison, 255, 257; Rex v. Meakin, 7 C. & P. 297; Rex v. Carroll, 7 C. & P. 145; People v. Garbutt, 17 Mich. 19.

    IV. Voluntary drunkenness is no excuse for crime, and a man is held to the same responsibility for his criminal acts while drunk, the same as if he were sober and sane. A sane man is presumed to contemplate the natural and probable consequences of his own acts; and therefore the intent to murder is conclusively inferred from the deliberate use of a deadly weapon. It is not an innocent act to assault another with a dangerous or deadly weapon, whether the assaulter be drunk or sober.—1 Gr. Ev. Sec. 18; 1 Russ, on Crimes, 658; Rex v. Dixon, 3 M. & S., 15; 1 Hale’s P. C. 440, 441; Rex v. Meakin, 7 C. & P. 297; Rex v. Carroll, 7 C. & P. 145; 1 Bishop C. L. 3d Ed. 710, 712, 716; State v. Smith, 2 Strob. 77; Rex v. Thomas, 7 C. & P. 817; State v. Furgerson, 2 Hill (S. C.) 619; U. S. v. Willberqer, 3 Wash. C. C. 515; State v. Sisson, 3 Brev. 58.

    And whenever an assault with intent to murder is committed, and the circumstances are such that if death had ensued, the killing would have constituted murder at the common law, the offense of assault with intent to murder under the statute, is complete.—People v. Scott, 6 Mich., 287.

      Y. The sixth request of the defendant is objectionable.
    (a) Where a person is predisposed to insanity, and by his own voluntary act makes himself temporarily insane, or voluntarily arouses the insanity to which he is predisposed, and while in such condition commits crime, he cannot claim exemption from punishment for the crime so committed, by pleading his own wrong — voluntarily using intoxicating liquors, and making himself drunk — insane.

      (b) Again, the inquest to charge is objectionable, on the ground of impracticability. All drunkenness is temporary insanity; and it manifests itself in as many different ways as there are different individuals who become drunk. And it is impossible for a jury to say of a drunken man whether he was temporarily insane from drunkenness, or from a predisposition to insanity, when, as a matter of fact, he was drunk at the time of the commission of the crime; as the facts in this case, the requests to charge, and the charge of the Court, all show that defendant was under the influence of intoxicating liquors when the assault was committed.—1. Whart. C. L., 5th Ed., Sec. 37 and notes.

    VI. The charge of the Court in this case was correct, as a reference to the facts will show. It has been held by this Court, where the charge of the Judge, to which exception is taken, was not strictly correct, but the Court can clearly see that the jury could not have been misled by it to the injury of the party excepting, a new trial will not be granted for that error.—People v. Scott, 6 Mich., 287.

   Christiancy J.

The defendant was tried in the Circuit Court for the County of Calhoun, upon an information charging him with assaulting, with intent to murder, one Charles E. Gfreble, by shooting at him with a loaded pistol.

Exceptions were taken to the refusal of several requests to charge, and to the charge given. To take up the several exceptions separately, many of which embrace similar propositions in different forms, would lead to prolixity and be less intelligible, than to consider the several questions really raised by the exceptions. And as the bill of exceptions, including the evidence, will accompany the report, it is unnecessary to repeat them here.

The first question - presented by the record is, whether, under this information, the jury could properly find the defendant guilty of the assault with the intent charged, without finding, as matter of fact, that the defendant entertained that particular intent?

We think the general rule is well settled, to which there are few, if any exceptions, that when a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found by the jury, as matter of fact, before a conviction can be had. But especially, when the offense created by tbe statute, consisting of the act and the intent, constitutes, as in the present case, substantially an attempt to commit some higher offense, than that which the defendant has succeeded in accomplishing by it; we are aware of no well founded exceptions to the rule above stated. And in all such cases the particular intent charged must be proved to the satisfaction of the jury; and no intent in law, or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter.—Rex. v. Thomas, 1 East P. C. 417; 1 Leach, 330; Rex v. Holt, 7 Car. and P. 518; Cruse’s case, 8 Car. and P. 541; Reg. v. Jones, 9 Id. 258; Regina v. Ryan, 2 Mood, and R. 213; Rex v. Duffin, Russ, and Ry. 364; Ogletree v. The State, 28 Ala. 693; Maher v. The People, 10 Mich. 212; People v. Scott, 6 Mich, 296, (per Campbell J.); Roscoe Cr. Ev. 775, 790; 1 Bish. Cr. L. §§ 666, 667.

This case, so far as regards the intention to kill, is not identical with that of murder. To find the defendant guilty of the whole charge, it is true, the jury must find the intent to kill under circumstances which would have made the killing murder — and it is not denied that had death ensued in the present case, it would have been murder. But the converse of the proposition does not necessarily follow; that, because the killing would have been murder, therefore there must have been an intention to kill. Murder may be and often is committed without any specific or actual intention to kill. See instances stated in 1 Bish. Or. Law. sec. 412 and 667. And no such specific intent is therefore necessary to be found. This difference was recognized in Maher v. The People, above cited.

By saying however that the specific intent to murder, or, (which under the circumstances of the case would be the same thing), the intent to kill, must be proved, we do not intend to say it must be proved by direct, positive, or independent evidence; but as very properly remarked by my brother Campbell in People v. Scott, 6 Mich., 266, the jury " may draw the inference, as they draw all other inferences, from any facts in evidence which, to their minds, fairly prove its existence.” And in considering the question they may and should take into consideration the nature of the defendant’s acts constituting the assault; the temper or disposition of mind with which they were apparently performed, whether the instrument and means used were naturally adapted to produce death, his conduct and declarations, prior to, at the time, and after the assault, and all other circumstances calculated to throw light upon the intention with which the assault was made.

The principle we have thus endeavored to explain seems to have been overlooked by the Court. And, taking the whole charge, (given in the record), together, we think the jury were in effect told, that if they should find the defendant made the assault alleged, in the manner and with the instrument charged in the information, the law inferred the intent charged, and they were at liberty to find the defendant guilty, whether they were satisfied of the intent or not, as a matter of fact — unless they should find "that the defendant was laboring under such a defect of reason from disease of the mind, as not to know the nature and quality 'of the act he was doing, or if he did know it, that he did not know what he was doing was wrong.”

The second question raised by the exceptions, is whether the voluntary drunkenness of the defendant, immediately prior to and at the time of the assault, to a degree that would render him incapable of entertaining, in fact, the intent charged, would constitute a valid defense, so far as related to the intent, and leave the defendant liable only for what he actually did — the assault, without the aggravation of the intent.

It was very properly admitted by the defendant’s counsel in his request to charge, that if the defendant had formed the intent, while in possession of his mental faculties and entertained it before and at tbe time be became intoxicated, his subsequent voluntary intoxication to whatever extent, would not shield him from a conviction of the offense charged, including the intent, nor even for murder had death ensued from the assault. And the principle laid down by Mr. Bishop in his work on criminal law, {vol. 1 sec. 1/B9) was also expressly admitted, that' “ when a man voluntarily becomes drunk, there is a wrongful intent; and if, while too far gone to have any further intent, he does a wrongful act, the intent to drink coalesces with the act done while drunk, and for this combination ’ of act and intent, he is criminally liable.” But it was insisted that the application of this rule to this case would be that the drunkenness is no excuse for the assault, but being charged with the particular intent accompanying the assault, this could not exist if he was too drunk to entertain it. That the wrongful ■ intent in drinking does not supply or aid the proof of an intent to kill.

The correctness of the principle laid down by this Court in People v. Garbutt, [17 Mich. 9-19,) is not denied ; that “a man who voluntarily puts himself into a condition to have no control of his actions, must be held to intend the consequences.” But this, it is insisted, includes only the consequences which do actually ensue — the crime actually committed; and not in this case, the intent charged, if the defendant was at the time incapable of entertaining it, and did not in fact entertain it.

We think this reasoning is entirely sound, and it is well supported by authority. See Reg. v. Cruse 8 Car. and P. 541; Reg. v. Moore 3 Car. and K. 319; Pigman v. The State, 14 Ohio 555; United States v. Roudenbush 1 Bald., 514; Pirtle v. The State, 9 Humph. 663; Haile v. The State, 11 Humph. 154; Swan v. The State, 4 Id. 136; Mooney v. The State, 33 Ala. 419; Kelly v. The State, 3 S. & M. 518; People v. Robinson, 2 Park. 235; People v. Hammill, 2 Id. 223; Keenan v. Com., 8 Wright, (Pa.) 55; People v. Bolencia, 21 Cal. 544; and see 1 Bish. Cr. L. secs 490, 492.

In determining the question whether the assault was committed with the intent charged, it was therefore material to inquire whether the defendant’s mental faculties were so far overcome by the effect of intoxication, as to render him incapable of entertaining the intent. And for this purpose, it was the right and . duty of the jury — -as upon the question of intent of which this forms a part — to take into consideration the nature and circumstances of the assault, the actions, conduct and demeanor of the defendant, and his declaration before, at the time, and after the assault; and especially to consider the nature of the intent and what degree of mental capacity was necessary to enable him to entertain the simple intent to kill, under the circumstances of this case — or, which is the same thing, how far the mental faculties must be obscured by intoxication to render him incapable of entertaining that particular intent. This last question involves, as I think, in connection with the evidence, a principle of law which I shall presently notice. Some intents, such as that to defraud, when the result intended is more indirect and remote, or only to be brought about by a series or combination of causes and effects, would naturally involve a greater number of ideas, and require a more complicated mental process, than the simple intent to kill by the discharge of a loaded pistol. The question we are now considering relates solely to the capacity of the defendant to entertain this particular intent. It is a question rather of the exercise of the will than of reasoning powers. And as a matter of law, I think the jury should have been instructed, that if his mental faculties were so far overcome by the intoxication, that he was not conscious of what he was doing, or if he did know what he was doing, but did not know why was doing it, or that his actions and the means he was using were naturally adapted or calculated to endanger life or produce death ; then he had not sufficient capacity to entertain the intent, and in that event they could not infer that intent from his acts. But if he knew what he was doing, why he was doing it, and that his actions with the means he was using were naturally adapted or likely to kill, then the intent to kill should be inferred from his acts in the same manner and to the same extent as if he was sober. But that on the oth§r hand, to be capable of entertaining the intent, it was not necessary that he should so far have the possession of his mental faculties as to be capable of appreciating the moral qualities of his actions, or of any intended result, as being right or wrong. lie must be presumed to have intended the obscuration and perversion of his faculties which followed from his voluntary intoxication. He must be held to have purposely blinded his moral perceptions, and set his will free from the control of reason— to have suppressed the guards and invited the mutiny j and should therefore be held responsible as well for the vicious excesses of the will, thus set free, as for the acts done by its prompting. There is no ground upon which a distinction can safely be made in such cases, between the acts of his hands and those of his will, which have set in motion and directed the hands. He must therefore be held equally responsible for the will or intention, as for the act resulting from it.

But he is not to be held responsible for the intent, if he was too drunk for a conscious exercise of the will to the particular end, or, in other words, too drunk to entertain the intent, and did not entertain it in fact. If he did entertain it in fact, though but for the intoxication he would not have done so, he is responsible for the intent as well as the acts.

When the question is one rather of guilty knowledge than of a particular intent, (as in U. S. v. Roudenbush and Pigman v. The State, above cited), there may be more reason for holding that a defendant in such cases should be capable of appreciating the moral quality of his. actions to render him responsible; and so, possibly when the act done is innocent in itself, or only becomes at all criminal by reason of the particular intent charged ; upon such cases I express no opinion. But where, as in this case, the act committed is itself criminal without the particular intent, and especially when the manner in which the act was committed and the means and instruments used are naturally and obviously adapted to produce death, and dangerous to others, whether he intended to kill or not; a rule which should hold him incapable of entertaining the intent unless he was at the same time cognizant of the moral quality of his actions, would be just as dangerous, as if the same rule was applied to acts committed under the influence of intoxication and would practically render intoxication a substantial protection to crime.

But the Circuit Court held, in effect, that no extent of intoxication could have the effect to disprove the intent; treating the intent as an inference of law for the Court, rather than a question of fact for the jury. In this we think there was error.

Thus far we have considered the question of intent, as affected by the voluntary intoxication alone. But the question of insanity, as affecting the intent, was also raised. And this upon the eyiden.ee is proper to be considered under three aspects.

There was evidence tending to show that the mother of the defendant, who was living, was insane with lucid intervals, and had been so for the preceding five years. That in her lucid intervals she was a kind and quiet woman, but that paroxysms of insanity were brought on by any excitement, and that she was then very violent towards her family and friends, and that defendant’s maternal grandfather had died insane. There was also evidence tending to show that the disease of insanity was hereditary, and that in families where it was hereditary, it might lie dormant in the individual member of the family for years, and then manifest itself; and that intoxicating drinks and exciting altercations were prominent and usual causes of its development, and that it was more likely to be hereditary on the maternal than paternal side.

But there was no evidence tending to prove, that the deiendant himself had ever previously exhibited^ any indication or symptoms of insanity, except what might or might not be inferred from the effects produced upon him on a single occasion by intoxication, or the drinking of intoxicating liquors, when two ordinary doses or drinks of whisky had been administered to him for neuralgia, by which he was deprived of the use of his mental faculties and became ungovernable, insisting that he must go to the State of New York immediately, where he had formerly lived, although he had not contemplated going there before he took the whisky.

Nor was there any evidence tending to show any form or degree of insanity, distinct from and independent of the effects of intoxication, on the day of, or after, the assault, unless the high degree of excitement and vindictiveness aroused by the verbal altercation with Greble before the intoxication, can be considered as such evidence. But if the manifestations of mental disturbance from drinking the whisky on a former occasion alluded to, can be considered as tending to show anything more than the effects of intoxication upon a sane mind somewhat easily affected, in one, among the almost infinite varieties, of form in which those effects exhibit themselves'in men of different mental and physical organizations, whose minds are otherwise sane, — if it can be considered as tending to show that, above and beyond the effects of intoxication upon a sane mind, a dormant tendency to insanity had been aroused into action, it would still tend, in this case, only to show — not the effect of insanity alone, as independent of or contra-distinguished from intoxication, but the effect of some unknown degree of insanity, combined with and produced by the intoxication and disappearing with it, and which, but for that intoxication would not have occurred.

If, therefore, the intoxication was voluntary on his part— as all the evidence tended to show unless he had become insane before he resorted to drinking, as presently explained— any degree of insanity thus produced would be a part of the consequences of such voluntary intoxication. And if, from his past experience or information, he had, while sane and before drinking, on that day, good reason to believe that, owing to a dormant tendency to insanity, intoxication would be likely to produce an extraordinary degree of mental derangement beyond the effects likely to be produced upon persons clear of any such tendency, he must be held to have intended this extraordinary derangement as well as the intoxication and the other results -produced by it. And the same degree of mental incompetency would be required to render him incapable of entertaining the intent, whether caused by the intoxication combined with the insanity thus produced, or by the intoxication alone. And the same principle already laid down in reference to the question of capacity, as affected by intoxication alone, would apply with equal force to this aspect of the case.

But if he was ignorant that he had any such tendency to insanity, and had no reason from his past experience, or from information derived from others, to believe that such extraordinary effects were likely to result from the intoxication; then he ought not to be held responsible for such extraordinary effects; and so far as the jury should believe that his actions resulted from these, and not from the natural effects of drunkenness, or from previously formed intentions; the same degree of 'competency should be required to render him capable of entertaining, or responsible for, the intent, as when the question is one of insanity alone, which I now proceed to consider.

If it should be found from the evidence that the defendant inherited a peculiar tendency to insanity, which was liable to be aroused by slight causes, and that in consequence of this, and before be resorted to drinking on that day, the verbal altercation he had with Greble in the forenoon had aroused this diseased action of his mental faculties, to such an extent that he did not know what he was doing, or, if conscious of this, he yet was not conscious of any object in doing it; or, if he did not know that what he was doing, or the means he ivas using were adapted, or likely to kill; or, though conscious of all these, yet if the diseased action of his mind had so far overcome or perverted his reason that he did not know that what he was doing was wrong; then he was not responsible either for the intoxication, or its consequences. And if he continued thus incapable up to the time of the assault, either from this cause alone or combined with the supervening intoxication, he was neither morally nor criminally responsible for bis acts or intentions.

A new trial must be awarded.

Tbe other Justices concurred.


source: Caselaw Access Project

author: G-rayes J. Ohristiancy J.

license: Public Domain

text:
    George B. Throop v. The North American Fire Insurance Company.

      Evidence: Cross-Examination. It is proper to ask a witness on his cross examination, who has testified on his direct, to the execution of a policy of insurance, — whether when policies, of the kind testified to by him, were issued by the company, any other papers were executed hy either party in connection with the policy ?

      Evidence : Statement of contract of insurance : Variance. A declaration upon a policy of insurance purporting to set forth the contract acccrdirg to its legal effect, averred that '* it was further provided that if said policy was made and issued upon or referred to an application, survey, plan or description of tho property therein insured, such application, survey, plan or description should be considered a part of said contract, and a warranty by the insured.” It appeared on the cross-examination of a witness called to prove the contract, that an “ application ” was signed by the insured at the time the policy was issued to him; but it was not produced on the trial nor were its contents shown: Held, That no variance appeared between the contract declared on, and the contract proved.

      Pleading : Essential averments in setting forth a contract of insurance.A. clause in a policy of insurance providing that if this policy be made and issued upon, or refer to an application, etc.; such application shall be considered a part of the contract and a warranty by the insured,” — will not make the application a part of the contract, and therefore necessary to be set forth in stating the contract, according to its legal effect; unless its terms are such as to be capable of being impressed with the character of a warranty by force’of the stipulations it contains.

      Evidence: Contract of insurance • Onus of proof. It is not necessary for a plaintiff in an action upon a policy of insurance, which he has set forth in his declaration, according to his view of its legal effect, to introduce in evidence the “ application ” which is hypothetically referred to in the policy, and so averred in the declaration, in order to enable the Court to determine whether the terms of the application invest the contract with a different legal sense than that ascribed to it in the declaration.

      Heard October 21.

      Decided January 5.

    Error to Lenawee Circuit.
    This was an action of assumpsit upon a policy of insurance. Tire declaration purports to set out the contract according to its legal effect, and one of its averments is in the words following: “And it was further provided that if said policy was made and issued upon or referred to an application, survey, plan or description of the property therein insured, sucli application, survey, plan or description, should be considered a part of said contract and a warranty by the assured.”
    Upon the trial the plaintiff called Francis M. Bassett, who testified that he was engaged as a clerk in the office of the defendant at Adrian, from the thirteenth day of May, 1867, to the twenty-seventh day of Juno of the same year: That James A. Colyer was the agent of the company at Adrian at that time: That a policy was issued by said company, at said office, to the plaintiff some time in the month of June of that year: That he, the witness, saw the policy. The plaintiff was then sworn as a witness, and testified that the policy mentioned by the last witness, which he received from the defendant, was burned up with his building. Bassett being recalled further testified that he was familiar with the blank policies in use by the said company at Adrian by said Colyer at the time he was engaged in the office as aforesaid; and being shown a policy purporting to be issued by that company to T. & J. Wise, partly printed and partly'written, testified that that was the form of policy in use by said company at that time. On his cross examination he was asked “whether, when policies of this kind were issued by the company, any other papers were executed by either party in connection with the policy.” “ To this question the plaintiff objected, on the ground that it was not competent testimony and not proper cross examination. The objection was overruled and the plaintiff excepted. The witness answered that he had no knowledge of any other, except the application: That an application was signed by Mr. Throop at the time the policy was issued to him. The printed part of the policy testified to by Bassett was read in evidence. It contained the following clause: “ And provided further, that if this policy is made and issued upon, or refers to an application, survey, plan or description of the property herein insured, such application, survey, plan or description shall be considered a part of this contract and a warranty by the assured.”
    The plaintiff having been recalled was asked “whether the said property was destroyed by fire, and offered to show by him that the same was destroyed by fire during the time of insurance covered by the policy. To which question and proof the defendant objected on the ground, that as it appeared by the evidence -that there was a written application upon which the policy issued, which application was by the terms of the policy made a part of the contract and a warranty oil the part of the defendant; it was the duty of the plaintiff to set out the same in his declaration, and to introduce the same as part of his proofs, and to aver and prove a performance of the, warranty on his part, as a condition precedent to Ms right oí recovery; and on the ground that there was a fatal variance in respect to the contract, in that respect, between the declaration and the proof. The objection was sustained by the Court, and the testimony rejected ; to which the plaintiff excepted.
    No further or other testimony being offered, the Circuit Judge charged the jury, that the proofs given were not sufficient in the law to entitle the plaintiff to recover and that the defendant was entitled to a verdict in its favor.
    The jury found for the defendant and the judgment entered thereon is brought into this Court by writ of error.

      A. L. Millard and Q. V. N. Lothrop, for the plaintiff in error.
    The ruling of the Court may be resolved into four distinct propositions, namely: (1). That the declaration was insufficient to sustain the proofs, because it did not set forth the application : (2). That it did not sufficiently aver a performance of the warranty therein contained: (3). That it was the plaintiff’s duty to introduce the application as part of his proofs; and that his failure to do so amounted to a failure to prove the contract actually entered into by the parties: (4). That it was the plaintiff’s duty to prove the truth of all the statements contained in the application.
    If the third of these four rulings is not sustained here, the defendant’s whole case falls; but as the second and fourth admit of some additional suggestions which do not apply to the third, all the rulings will be considered in their order.
    First. It is believed that no serious question will arise upon the ruling that the plaintiff was bound to set forth the application in his declaration as distinguished from the ruling that he was bound to produce and prove it at the trial. A party is never bound to allege more than he is required to prove, either by positive evidence or á resort to the presumptions which the law raises in his favor; and if we succeed in showing that the application was properly a matter of defense, the question of pleading will require no further attention.—1 Ch. Pl., 222, 223, 304, 314, 315; Clarke v. Gray, 6 East, 564; 1 Greenl. Ev., § 66.

    There is nothing in the case to show that there was anything in the application that qualified, or in the slightest degree varied, the legal effect of the policy as set out in the declaration. It is always sufficient to set out a contract according to its substance and legal effect.—1 Ch. Pl., 304, 306.

    As the application is in the possession of the defendants (below), and they did not produce it, every intendment must be against them. Suppose it were (and for aught that appears'it may have been), simply a request to the defendant to insure the property, describing it, and stating that the applicant had an insurable interest in it. This, by the terms of the contract, would be “ a part of the contract and a warranty,” and yet it would not qualify or vary the effect of the policy in the least, and of course, as it is always sufficient to declare on a contract according to its legal effect, there would be no necessity of noticing it in the declaration.
    Secondly. The Court below erred in holding that the declaration was defective in not averring performance of the warranty contained in the application. If, (as we contend) the application was no part of the plaintiff’s case, and not necessary to be set out in the declaration, of course it was not necessary to aver a performance of the warranty contained in it. A plaintiff is never bound to anticipate his adversary’s defense, either in his declaration or in his proofs; but only to aver and prove enough to make out his own prima facie case. Here the plaintiff’s case would be perfect, according to his declaration, without any proof of the application ; and consequently without proof of performance of the warranty contained in it.—Herron v. Peoria Insurance Company, 28 III., 235.

    Thirdly. The Court below erred in ruling that the plaintiff was bouhd to introduce the application asp>art of his proofs. This ruling proceeded solely upon the ground that by the terms of the policy the application was made “a part of the contract." The fact that it was also a warranty is immaterial upon this question.
    I. These words are amply satisfied by construing them to mean that the policy and the application' shall be read together, whereby the defendant may introduce the application in its own behalf, as a foundation for any defense which may exist. The clause was introduced into policies of insurance for that purpose only, the courts haying decided that as all previous negotiations were merged in the policy, the application was inadmissible for any purpose except to show fraud, even though it might have been folded up with the policy, or annexed to it by a wafer—Pawson v. Watson, 2 Cowper, 785, and cases cited in notes (3) and (4) to Bean v. Stupart, 1 Douglas, 11; Higginson v. Dall, 13 Mass., 96; Dow v. Whittier, 8 Wend., 160. So, also, when there was merely a reference to it in the policy. —Farmers’ Insurance Co. v. Snyder, 16 Wend. 481; Wall v. Howard Ins. Co. 14 Barb. 383.

    II. Such, too, has been the general usage and understanding of the profession; there being, we believe, no case where the report shows that the application was introduced by the plaintiff; but a few where it is expressly stated that the defendant proved it, and many where that fact is implied. See with many other cases Ames v. Union Ins. Co., 14 N. Y. 254; Murdock v. Chenango Ins. Co., 2 N. Y. 210; Huntly v. Perry, 38 Barb. 569; Underhill v. Agawam Ins. Co., 6 Cush. 440; Benedict v. Ocean Ins. Co., 31 N. Y. 389; Hardy v. Union Ins. Co., 4 Allen, 217; Faling v. Conway Ins. Co., 7 Allen, 46; Towne v. Fitchburg Ins. Co., Id. 51; Jacobs v. Eagle Ins. Co., Id. 132; Murphy v. Peo

      ple’s Ins. Co., Id. 239; Garcelon v. Hampden Ins. Co., 50 Maine, 580.

    III. The Court below, by requiring the plaintiff to aver and prove the contents of the application, established a rule without a precedent, which, if sustained here, will lead to much needless inconvenience, and even injustice. The rule by which its inspection is intended to be enforced before trial is liable to evasion; and, if the ruling below be correct, in all insurance cases the plaintiff is at common law without means to procure an inspection of a paper without which he cannot even frame his declaration.
    IV. The defendants’ stipulations were all contained in the policy; the application, if it contained any stipulations at all (though we are left entirely in the dark as to what its contents were, the defendant not having introduced the instrument), contained only the stipulations on the part of the plaintiff. Although another paper may be in fact and in law a part of the contract, it is so only for the purpose of letting in any defense existing as against the stipulations which the plaintiff seeks to enforce. Such was substantially the decision in Smalley v Bristol, 1 Mich. 153; So in Wallis v. Littell, 11 Common Bench, new series, 369; Jevens v. Harridge, 1 Saunders, 8; Stephens’ Pleadings, 9th. American Edition (1867), p. 336.

    See also Chitty’s Pleadings, 888 ut sup. So any proviso or condition in the contract which goes merely in defeasance of it need not be stated, for this ought to come from the other side, unless it qualifies the contract.
    It is believed that there is no reported case in which the ruling of the Court below has been sustained, while in at least two cases the law has been ruled the other way.—Blake v. Exchange Ins. Co., 12 Gray, 265; Kentucky, &c. Ins. Co. v. Southard, 8 B. Monroe, 634; See also Herron v. Peoria, &c., Co., 28 Ill. 235.

      Fourthly. The Court below erred in holding that the plaintiff was bound in the first place, to make any affirmative proof of the truth of the statements contained in his application, although the latter may be made a warranty by the terms of the policy, and its truth may be a condition precedent to the right of recovery.—See Phillips on Ins., 2122; Crowninshield v. Crowninshield, 2 Gray, 524; per Thomas J. p. 531;

    Fifthly. The Court erred, too, (as we submit) in overruling the objection to the question put by defendant’s counsel to Francis Bassett, on his cross-examination, whether, when policies were issued by the company, any other papers were executed by either party in connection with the policy.

      Ashley Pond, for the defendant m error.
    1. The question, the admission of which is the alleged error, was objected to, 1. As “ not competent,” 2. As “ not proper on cross-examination.”
    1. That the testimony called for by the question was “ competent ” would seem to be beyond doubt. Its object and tendency was to prove the existence of a writing, not its contents. It has never been supposed that the existence of a written instrument must be proved by its production.
    2. The question was strictly proper cross-examination.—Ghristiancy J. in Campau v. Dewey, 9 Mich. 119.

    The essential or ultimate fact in the plaintiff’s case, which the direct examination of Bassett tended to prove, was the making by the defendant of a contract of insurance with plaintiff, expressed in the terms of the policy issued to him. And the question asked on cross-examination was designed to elicit a fact tending to “ disprove that ultimate fact,” to wit, that the policy thus issued did not contain the entire contract.
    3. If it be conceded that the question was not strictly proper cross-examniation, still its admission cannot be assigned as error.
    II. The ruling of the Court, when it appeared that the policy of insurance, counted upon, issued upon a written application, that there was a fatal variance between the contract counted upon and. the proof, was correct.
    1. Under the terms of the policy, the application upon which it issued was a part of the contract, and any statements and representations or promises made in it by the assured, express warranties to like extent, and with like effect as if written in the body of the policy.
    To this proposition the authorities are clear and uniform.—1 Arnould on Insurance, 578; 2 Phillips on Insurance p. p25 § 756; Routledge v. Burrell et al., 1 H. Blackstone, 254; Worsely v. Wood et al., 6 Term, 110; Duncan v. Ins. Co., 6 Wend, 188; Jennings v. Ins. Co., 2 Denio, 75; Burritt v. Ins. Co., 5 Hill, 188; Egan v. Ins. Co., 5 Denio, 826; Chaffee v. Ins. Co., 18 N. Y. 376; The Glendale Woolen Co. v. Ins. Co., 21 Conn. 19; Battles v. Ins. Co., 41 Me. 208; Kennedy v. Ins. Co., 10 Barb. 485; Murdock v. Ins. Co., 2 N. Y. 210; Wilson v. Ins. Co., 6 N. Y. 53; Tebets v. Ins. Co., 1 Allen, 305; Ripley v. Ætna Ins. Co., 30 N. Y. 136.

    2. The nature of an express warranty :
    “An express warranty is an agreement expressed in the policy, whereby the insured stipulates that certain facts are or shall be true, or certain acts shall be done relative to the risk. It may relate to an existing or past fact, or be promissory and relate to the future.”—1 Phillips on Insurance, p. 425, § 754

    It is not required that the circumstances or acts warranted should be material to the risk. In this respect an express warranty is distinguished from a representation. Lord Mdon says, “It is a first principle in the law of insurance that if there is a warranty it is a part of the contract ; that the matter is such as it is represented to be, the materiality or immateriality signifies nothing.”—1 Phillips on Insurance, § 755.

    In the following cases the principle stated in the last above paragraph was applied to warranties contained in applications.—Duncan v. Fire Ins. Co., 6 Wend. 488; Jennings v. Ins. Co., 2 Denio, 75; Tibbits v. Ins. Co., 1 Allen, 305; Ripley v. Ætna Ins. Co., 30 N. Y., 136. And in the following cases it is held that evidence that the insured truly informed the agent of the insurer who filled up the .application of a fact which is untruly stated in it, is not admissible. —Jennings v. Ins. Co., 2 Denio, 75; Manufacturing Co. v. Ins. Co., 21 Conn. 19; Kennedy v. Ins. Co., 10 Barb. 285; Tebbets v. Ins. Co., 3 Allen, 569; Ripley v. Ins. Co., 30 N. Y. 136.

    3. The exact truth of every warranty of an existing or past fact, and strict compliance with every promissory warranty by the insured, are conditions precedent to his right to recover upon the policy, and the burden is upon the insured to aver and prove the same.—1 Phillips on Insurance, p. 430, § 762; 2 Phillips on Insurance, p. 683, § 2,122; 1 Arnould on Insurance, p. 581, § 214; 2 Arnould on Insurance, p. 1260, § 436; De Hahn v. Hartley, 1 Term 343; Ripley v. Ætna Ins. Co., 30 N. Y. 136; Murgatroyd v. Crawford, 2 Yeates, 420; Craig v. U. S. Ins. Co., 1 Peters C. C. 410; Wilson v. Hampden Fire Ins. Co., 4 R. I. 159; Hutchinson v. Read, 4 Exch. 761; Geach v. Ingall, 14 M. & W. 95.

    4. It follows from these principles that defendants’ contract with plaintiff, upon which- the suit is based, was not an absolute one, as stated in the declaration, to insure the property in question in consideration of the premium paid, but to insure it subject to certain conditions precedent contained in the application.
    5. It is a fundamental rule of pleading, to which there are no exceptions, that in declaring upon a contract, the contract must be stated correctly, according to its legal effect, and a failure thus to state it is fatal to tbe plaintiff’s case. —Chitty’s Pleading, 305.

    Thus: If a contract is alternative or conditional, it is fatal to state it as absolute, and so vice versa.—1 Chitty’s Pleading, 308.

    And thus: if tbe defendants’ promise or engagement embody or contain, as a part of it, an exception or proviso which qualifies his liability, or in certain instances renders him altogether irresponsible, so that he was not in law absolutely bound, the declaration must notice the exception or proviso, or there will be a fatal variance.—1 Chitty’s Pleading, 309. — Illustrative of the application of this rule are the following cases, to wit:—Latham v. Rutley, 2 Barn. & Cres. 20; Lower v. Winters, 7 Cow. 26; Wait v. Morris, 6 Wend. 394; Whitaker v. Smith 4 Pick. 83; Stanwood v. Scovel, 4 Pick. 422; Bridge v. Austin, 4 Mass. 115; Davidson v. Graham, 2 Ohio State, 132; Kimball v. R. R. Co., 26 Vt. 247; Austin v. R. R. Co., 5 E. L. & E. 239; Slum v. R. R. Co., 13 Ad. & E., n. s. 347; Jones v. Cowley, 4 Barn. & Cres. 445; Ferguson v. Cappeau, 6 H. & J. 394; Tempany v. Burnand, 4 Gamp. 20.

    This rule of pleading and these authorities exactly cover, and are fatal to, plaintiff’s case.
    He has counted upon defendants’ promise to insure as absolute, except so far as it appears otherwise upon the face of that part of the agreement delivered to him, while the proof shows it to be conditioned upon compliance by him with his warranties contained in the application.
    6. The fact that defendants’ warranties are not contained in the body of the policy cannot affect the rule of pleading.
    Conditions and warranties are frequently endorsed upon or attached to the policy, and the necessity of noticing them in such cases in the declaration and averring compliance has universally been recognized and acted upon.—
      2 Chitty’s Pl. 179.—Precedent of declaration on Marine Policy, counting upon the policy and memorandum attached. And see note “Y.”—2 Ghitty’s Pl. 209.—Precedent of declaration upon life policy. And see note “ P,” paragraph entitled “ the declaration, ” p. 299. Strong v. Harvey, 3 Bing. 30; Strong v. Rule, 3 Bing. 315.

    And the precedents found in the text books and reported cases, show that the same rule oí pleading obtains when the conditions or warranties are contained in a paper distinct from the policy, as in the case at bar.— 2 Chitty’s Pl. 211; Routledge v. Burrell, 1 H. Blackstone, 254; Wood v. Worsley, 2 H. Blackstone, 574; s. c. 6 Term, 710; Geach v. Ingall, 14 M. & W. 95.

    7. The fact that the application is in the hands of the defendant does not change the rule of pleading and excuse the plaintiff from noticing it in his declaration. This is clearly so upon principle, and hence Courts have assumed and exercised the power to compel a party to produce any paper necessary to enable the opposite party to plead. — In this State, rule of Court upon the subject, Circuit Rule, 40.

    8. It may be urged, as it was in the Court below, that the failure to notice the application in the declaration cannot be held a variance, because its contents not being shown, the Court cannot say that it contained anything materially bearing upon the plaintiff’s right to recover. This reasoning is unsound.

      a. The application is by express agreement made a warranty, and hence the authorities we have cited conclusively establish that it can contain nothing which is not material to plaintiff’s case/ l. The parties having made it a part of the contract, plaintiff, even if he deemed that it contained nothing so material as to require notice in his declaration, was bound to produce it on the trial and put it in evidence as a part of his case, that the Court might determine whether or not it contained anything material. No rule is better settled than this, that no matter what is the form, of declaration if it appears that there is a written contract between the parties in relation to the subject matter of the action, the plaintiff must produce and put it in evidence as a part of his case, or he cannot recover. A few cases will show how strictly this rule is applied.—Vincent v. Cole, 1 Mood. & Malk., 257; Jeffrey v. Walton, 1 Stark., 267; Buxton v. Cornish, 12 M. & W, 426; Ladue v. Seymour, 24 Wend. 60; Kerstetter v. Raymond, 10 Ind. 199.

    And if the contract is in two or more writings, the plaintiff must produce all of them. This must be so upon principle, and so are the authorities.—Cunningham v. Shaw, 7 Penn, 401; Ala. & Tenn. R. R. Co., v. Nabors, et al., 37 Ala., 489; Lester v. Sutton, 7 Mich. 329.

    It results, I think clearly, that when the ruling, which is the ground of the alleged error under consideration, was asked, that plaintiff, if he desired to avail himself of a claim that the application contained nothing material to be noticed in his declaration, ought to have stated to the Court that he should produce and put it in evidence before he rested, and that it would then appear that it, in fact, contained nothing material. And not having taken this course, he cannot complain that the Court assumed it to be material.
    It may be urged that a rule, which will require the plaintiff in an action on an insurance policy to treat the application as part of the policy and of his case, will cause great embarrassment and perplexity to plaintiff in such actions.
    Admitted, where seek the remedy? I protest that it is not to be sought in a decision of this Court overturning what is as well settled-law as can be found in the books.
   G-rayes J.

Throop prosecuted the defendants in error to recover for a loss he claimed to have suffered under a policy issued to him. by the company. The declaration was in assumpsit and the plea was the general issue in the common law form.

Upon a trial before a jury, the plaintiff having given evidence with a view to show that the company had issuéd to him a policy as alleged in the declaration, and that it had been destroyed by fire, proceeded to prove by a witness by the name of Bassett the contents of the policy.

This witness having testified that he had been familiar with the blank policies used by the company at their office in Adrian, that he had beefi employed in such office, and that a policy shown to him which purported to have been issued by them to T. & J. Wise, was in form the same as the policies used at its date by defendants; was then asked on cross-examination, whether, when policies of that kind had been used by the company, any other papers were executed by either party in connection therewith?

This was objected to by the plaintiff, but the Court overruled the objection, and the witness answered that he knew of none except applications, and that Mr. Throop signed one ofv these at the time his policy issued.

The plaintiff in error complains that this ruling was erroneous. We think, however, that the Court decided correctly in permitting the question to be answered. The fact called for was closely connected with the matter, which had been already drawn out on the direct examination. It bore upon the precision of the witness’ acquaintance with the insurance contracts of the company, as well as upon the exact nature of the transaction between the parties, and was clearly admissible under the rules of cross-examination. The witness having testified further with respect to the form of policies used by defendants, and his testimony having tended to show that the blank or printed portion of the policy, issued to Throop, was in the same form as that issued to Wise, which had been exhibited to the witness, the printed portion of the latter policy was read in evidence to the jury.

This instrument contained the following clause — “And provided further that if this policy is made and issued upon or refers to an application, survey, plan, or description of the property herein insured, such application, - survey, plan, or description, shall be considered a part of this contract and a warranty by the assured.”

At this stage of the case, the plaintiff proceeded to testify in his own behalf on the merits, when in answer to a question put by the defendants, he stated that he made application for the insurance and that such application was reduced to writing and signed by him.

The plaintiff’s counsel then offered to show by the plaintiff, that the property insured for him by the defendants was destroyed by fire during the life of the policy; but the defendants objected, in substance, that it had appeared by the evidence that a written application for the policy had been made, which the declaration had failed to notice, and that, consequently, a fatal variance existed between the contract as set up and as actually made between the parties.

This objection was sustained by the Court and the evidence excluded. The-plaintiff offering no further testimony, the jury under the direction of the Court returned a verdict for the defendants, and the case is now to be determined according to the view we shall take of the decision of the Court below upon the foregoing objection.

On turning to the record, it is seen that the declaration does not purport to set out the contract in the words and form employed by the parties, but appears to describe it by its substance and according to its legal effect, and therefore, whether anything material was or was not omitted from the declaration, could only be determined after ascertaining the nature of the supposed absent matter.

Though it should be conceded that words and even sentences inserted in the instrument, which evidence the contract, were not repeated in the declaration, it could not be held to follow that the pleading was at fault, or that a variance would be the consequence.

It would still be necessary that the omitted matter should be brought before'the Court in order to ascertain its bearing upon the contract, as the plaintiff had seen fit to state it.

In answer to this view, the defendants’ counsel argues that the application was by express agreement, actually made a warranty, and therefore that it necessarily contained matter which the plaintiff was required to notice in his declaration.

It may be observed, however, that this proposition assumes that the pleading which only purported to state the contract according to its effect in law, did not include the legal bearing and effect of the particular application which the plaintiff made for the policy.

With equal propriety the plaintiff could assume that his declaration did contain the whole contract in its legal sense and meaning, but the question cannot turn upon the assumption of either party. It is for the Court, when all the evidence bearing upon the point is given, to determine, whether, upon a right construction of the evidence produced, the plaintiff has or has not mistaken the legal effect of the stipulations constituting the contract.

So long as the evidence accords with the declaration, a variance is not to be intended, upon a supposition that some matter not repeated in the pleading, and not before the Court, would if submitted, give quite a different character to the contract from that actually counted upon. This branch of the argument for the defendants is open to another consideration.

It is very clear that applications for insurance may be and often are, in such form as to defy all attempt to make them warranties by a simple statement that such shall be their character. If a set of words lack the signification to make the turning of them into evidence of a warranty legally possible, an agreement that they shall constitute a warranty must certainly be ineffectual, Anri until it should appear in some way, of what the “ application” consisted or what it embraced, the Court could not not judge it susceptible of the character of a warranty or determine its legal consequence.

It cannot, therefore, be concluded that because an “application” was made, it must necessarily haye been so framed as to become a warranty by force of the clause in the policy which has been quoted. That stipulation in the policy should haye a reasonable interpretation, and ought not to be pushed to a meaning, which would involve the extraordinary results to which the theory of the defendants points. The proper construction of the clause will make it applicable to those cases only when the “application” is of such a nature, and so drawn as to be capable of being impressed with the character of a warranty by force of the stipulation in question.

As a consequence of this view, it follows that proof or admission that an “application” was made, without anything farther, would not justify the Court in holding, as matter of law, that it contained statements, stipulations or conditions in any manner qualifying or altering the legal sense of the contract as stated in the declaration.

It is still contended, however, on the part of the defendants, that the parties having made the “application” a part of the contract, the plaintiff even if he deemed that it contained nothing so material as to require notice in his declaration, was bound to produce it on the trial and put it in evidence, as a part of his case, in order that the Court might determine ruhether or not it contained anything material.

It will not escape attention that the Court below, in accordance with the view which seems to have been entertained by 'defendants’ counsel at the trial, and with the view necessarily to be implied from the position just adverted to of the counsel in this Court, did not deem it necessary that the “application” should be put in evidence, or even produced, in order to decide that it was a material stipulation and one which invested the contract with a different legal sense from that ascribed to it by the declaration.

That the Circuit Judge did so decide without evidence of the conteuts of the application is shown by the record, and that decision is one which the defendants have endeavored to support here.

But passing by this circumstance, no reason is perceived for maintaining that the plaintiff was under any duty in this case to put in evidence any matter which in his judgment was immaterial or irrelevant. Iiis duty was to prove his case as stated in his declaration, and he does not appear to have been placed under any necessity to furnish evidence for his adversaries. He was proceeding to prove his case, as it stood upon the record; and in so far as he was permitted to give evidence, it does not appear that any matter was produced before the Circuit Court, which proved or tended to prove that the legal sense imputed to the contract by the declaration was not correct.

The isolated fact that an application was made did indeed appear. But this fact standing alone, without the least showing as to the character or subject matter of the application, could furnish nothing for the judgment of the Court upon the question of variance. When the defendants alleged that a variance existed, they tendered an issue on that subject to the plaintiff, and before invoking the judgment of the Court in their favor, they were bound to show to the Court, either by new evidence or by reference to something already introduced, the particular’ matter upon which they relied to warrant such judgment.

Without such matter, the Court could be possessed of nothing upon the point, but the counter allegations of the parties; and the defendants were not at liberty to insist that there was a variance as they alleged, because the plaintiff did not furnish evidence to prove it.

I think, therefore, that the objection in question was not based on tenable grounds, and that the Court erred in sustaining it.

As this will necessitate another trial of the cause, and the question upon the pleading so elaborately argued before us will probably not arise again, it is not thought expedient to discuss that point.

The judgment of the Court below must be reversed with costs and a new trial ordered.

Campbell Ch. J. and Cooley J. concurred.

Ohristiancy J.

As I am not able to agree with my brethren in all the conclusions at which they have arrived in this case, nor in the general result, it becomes necessary to show to what extent I concur with them, and to specify the points and state the grounds of my dissent.

I fully concur with my brethren that the question put to Bassett, the plaintiff’s witness, on cross-examination,— “ "Whether, when policies of that- kind had been issued by the company, any other papers were executed by either party, connected therewith — was proper and legitimate; and that the facts elicited, — that written applications for insurance were signed by the applicant in such cases, and that one was signed by Throop, the plaintiff, at the time the policy was issued — were facts proper to be brought out on cross-examination. The fact, that such application was reduced to writing and signed by the plaintiff, was also properly elicited from the plaintiff on his cross-examination, without objection.

This fact, under the express provision of the policy, rendered that application a part of the policy, or contract of insurance, for the breach of which the action. was brought, as completely for all purposes connected with the suit, as if the same had been inserted in the policy itself, and its statements therein declared to be a warranty. This I think must be so in principle, and it is well supported by authority.—Glendale Woolen Co., v. Ins., Co., 21 Conn. 19; Duncan v. Ins. Co., 6 Wend. 488; Burritt v. Insurance Company, 5 Hill, 188; Chaffee v. Insurance Co., 18 N. Y. 376; Battles v. Insurance Co., 41 Me. 208; Egan v. Ins. Co., 5 Denio, 326; Jenninqs v. Ins. Co., 2 Denio, 75; Routledge v. Burrell et al., 1 N. Bl. 254; Worsley v. Wood et al., 6 T. R. 710; Geach v. Ingall, 41 M. & W. 95; Strong v. Rule, 8 Bing. 315; Kennedy v. Ins. Co., 10 Barb. 285; Murdock v. Ins. Co. 2 N. Y. 210; Wilson v. Ins. Co., 6 N. Y. 53; Tebbetts v. Ins. Co., 1 Allen, 305; Ripley v. Ins. Co., 30 N. Y. 136; 1 Phil, on Ins. (5th ed.) pp. 413, 414, Sec. 756; 1 Arnould on Ins. 578.

But to enable the Court to determine to what extent this application, if inserted in the policy, would change or modify any of the other terms of the policy, or the legal effect of the contract of insurance on the part of the defendant as set forth in the declaration, I agree with my brethren that the application must be introduced, in evidence, or its contents shown. This was not done in the present case; and the Court was left in entire ignorance of its contents.

In this aspect of the case it becomes important 'to determine, first, — upon whom, under the circumstances of the case, rested the burden of proving the application or its contents; and second, — what are the legal consequences of the omission. It is upon the proper solution of these questions (and'mainly the first of them), that I differ from my brethren.

Upon the question of pleading — while I see no reason to doubt that the declaration should, upon all sound logical principles of common law pleading, have set forth the whole of that portion of the contract, for the breach of which the plaintiff sought to recover, according to its legal effect, as modified by the application expressly made a part of it; yet, however improbable, it may, perhaps, be still legally possible, that the application contained nothing which would in any- manner have modified the contract as shown in its other provisions expressed on the face of the policy. And the contents of the application not being shown, we cannot perhaps say, that this principle of pleading has been violated; nor that there was in this case, what can be strictly termed, a variance.

But I do not propose to discuss the question of pleading or that of a mere variance ; as we have, since the argument in this case, adopted a rule of Court applicable to the mode of declaring upon policies of insurance, which will prevent the recurrence of such questions in future cases.

But the main question, as it seems to me, is, whether the plaintiff, under the circumstances of this case, by merely proving the contents of the policy, independent of the application, had sufficiently proved the contract alleged in his declaration to make it the duty of the Court to submit that proof to the jury, without any proof or offer on the part of the plaintiff, to prove the application or its contents, and without showing any excuse for its non-production, any notice to produce, or effort to obtain it. If he had not; then, as no such offer was at any time made by the plaintiff, and no excuse shown for the omission; it is entirely immaterial on what precise ground the Court refused to allow him to proceed with proof of a loss; since, upon this hypothesis, no evidence he could have possibly given of the loss, could have entitled him to recover; and the error of the Court, if any, could not possibly have operated to his prejudice.

But the record does not show that^ the decision was based upon the narrow ground of a defect in the declaration, or a mere variance. The objection made to the proof of a loss was : “That, as it appeared by the evidence that there was a written application upon which the policy issued, which application was, by the terms of the policy, made a part of the contract and a warranty on the part of the defendant, it was the duty of the plaintiff to set out the same in his declaration, and to introduce the same as a part of his proofs, and to aver and prove the performance of the warranty on his part, as a condition precedent to his right of recovery, and on the ground that there was a fatal variance,” etc.

This objection was sustained, but upon which of the grounds stated in it does not appear. It can hardly be contended that all the grounds of the objection must be good to authorize the Court to sustain it. If good only on the ground, “that it was the duty of the plaintiff to introduce the application as a part of his proofs,” the Court did right in sustaining it. This is the view taken of the objection by the counsel of the plaintiff in error, who, in his brief, resolves the objection into four distinct propositions, and very properly makes the one I have just stated the turning point of the question raised by the objection.

Was it, then, incumbent on the plaintiff, before he could recover for a loss on this contract of insurance, to prove the application or its contents as a part of the contract, or was it properly a part of the defendants’ case, to be proved by them ? To a correct appreciation of this question, it is essential to consider the circumstances under which the question arose.

The plaintiff had sued to recover a loss upon a contract of insurance alleged to have been made with him by the defenant, and had set out what he claimed to be that contract, in his declaration, according to what he claimed to be its legal effect. As the Court could not, without proof, judicially know that there was any contract, nor, if one existed, what was its legal effect, the burden of proving affirmatively that there was such a contract rested upon him. He proved the contents of a policy or contract of insurance, of which the following was one of the provisions: “That if this policy is made and issued upon, or refers to any application, survey, plan, or description of the property herein insured, such application, survey, plan or description shall be considered a part of this contract and a warranty by the assured.”

It appeared from the plaintiff’s own testimony, as well as that of his only witness on a cross-examination, which we all agree was legitimate, that the policy was made and issued upon a written application made and signed by the plaintiff. The testimony in chief of the plaintiff and his witness tended to show a contract of insurance expressed only in a single paper — the policy. The cross-examination in connection with the policy proved on the direct examination, showed clearly and beyond a contradiction, that a part of the same contract of insurance was contained in another paper — the application, — but did not show what were its terms or contents. This testimony given on cross-examination and qualifying that given in chief, must be taken in connection with, and as a part of, the latter; and altogether must be considered as evidence given on the part of plaintiff. The existence of the application, as a part of the contract, was in no just sense a part of the defendants’ case; it related only to, and was a part of that contract, proof of which was essential to the plaintiff’s case, and without which he could not recover; while no contract was necessary to the defense.

It is not, therefore, necessary to inquire upon whom the burden of proving the coateuts of the application might have rested, if the plaintiff had closed his evidence of the contract of insurance, without disclosing the existence of the other part of the contract — the application. He might then have been entitled to rest upon the case he had made, and to contest the fact of the existence of the contract throughout the trial, if set up by the defendants; and this might, in such a case, throw upon the defendant the necessity of proving, the contents as well as the existence of the other part of the contract.

But here the plaintiff cannot and does not contest the existence of the omitted part of the contract. He shows it clearly by the only witness he introduces, and swears to it himself. He shows that the part of the contract not introduced, as well as that produced, is in writing. He makes no offer to introduce it, nor to show that it was not within his reach, nor any effort to obtain or introduce it. For aught that appears it might have been in court and been had by asking for it. The Court are ignorant of its provisions and cannot therefore judge of its effect, or how far its provisions tend to modify the provisions of that part of the contract introduced. All they know is, that it is a written application for the insurance in question, and that, by the terms of the policy, it is made a part of the contract of insurance, and a warranty on the part of the plaintiff. From the nature of the case and of such kind of papers, usual in other cases, the Court cannot fail to see that there is at least a very high degree of probability, that the contents, if shown, might very materially modify the terms and legal effect of the policy of which it forms a part. The Court cannot presume that it was drawn up and executed and made a part of the contract for no purpose, and did not affect or modify the portion of the contract expressed in the policy, and upon that presumption, allow the plaintiff to recover upon proof of a part of the contract only, nor throAV upon the defendant the burden of proving the part omitted. Being, upon the plaintiff’s own showing, a part of the contract of insurance, that, and the other terms or portion of the contract contained in the policy, must,- I think, without any showing to the contrary, be considered as one entire contract of insurance, one part of which was as necessary to be proved by the plaintiff as the other; and until both were proved, the contract was not proved, and neither Court nor jury could say what the contract was.

The burden of this proof rested upon the plaintiff. He alleged the contract and sought to recover upon it. Was it for the defendant to show that the contract of 'insurance actually made between the parties, was not that set forth in the plaintiff’s declaration, before the plaintiff had introduced evidence fairly tending to show that it was ? Does the plaintiff’s evidence fairly tend to show that the contract of insurance actually made, was, as claimed in his declaration; while it shows, and'he admits, that the contract was contained in two separate papers, of which but one is introduced, and neither offers nor makes any attempt to produce the other and shows no ground for the .omission? Can he, under such circumstances, call upon, the Court to presume in his favor, that the part omitted was executed and made a pa.rt of the contract, without a purpose, or that it, in no respect, modifies the effect of the part he has chosen to produce ? Is it not the duty of the Court to say to the party: “You must first introduce the paper itself, or'prove its contents; and allow us, upon examination, to judge of its effect for ourselves. Until you do this, or show, at least, that you have taken the proper means to obtain and introduce it, the only presumption we are permitted to indulge, is, that being admitted to be a part of the contract, it would be very likely to have some effect upon the part introduced; and that, if you did not believe it would be prejudicial to your case, you would have introduced or made some effort to introduce it, instead of resting satisfied with the proof of a part of the contract?”

Where a party having primary evidence in his power, resorts to secondary evidence in support of his case, Courts do not hesitate to act upon the presumption that he resorts to the latter because the primary evidence, if given, might be less to his advantage; and the secondary evidence, is excluded on this ground. Is not the analagous presumption much stronger in cases like this?

Again, as all parts of a contract are to be construed together, and the meaning and effect of no part can be certainly known and appreciated, until the whole is examined, can the contract be considered as properly in evidence before the whole has been proved ? Such a question suggests its own answer. —See 1 Greenl. Ev. secs 88 and 96.

It is not enough to say, that, until the application is shown, it cannot be known that it would modify the effects of the contract as expressed in the policy. It is sufficient to say in reply, that while'the plaintiff, seeking to recover upon the contract, purposely leaves this question in doubt, without showing any reason for not offering or attempting to obtain or prove it and thereby to remove the doubt, he has offered no proper evidence of what the contract was; and the fact which he did introduce was properly excluded from the consideration of the jury.

This view seems to me to rest upon principles so clearly sound, as to require no support from authority. I have, however, examined all the cases cited by the respective counsel and am entirely satisfied that this view is sustained by the decided preponderance of authority; and that, when properly considered, the cases cited for the opposite conclusions will be found to contain very little in opposition to the conclusion I have arrived at.. I have not the time or space to enter upon a full review of the cases; but shall content myself with a reference to some of those only which appear to me to be best founded in principle and most directly applicable to the circumstances of this case. Cunningham v. Shaw. 7 Penn., 401 was assumpsit on an agreement to' pay bills drawn under letters of credit. Plaintiff having proved his case by writing signed by the defendant, it appeared on cross-examination of one of the plaintiff’s witnesses, that the plaintiff had signed a paper which the witness called a confirmation, the contents of which were not shown, but which defendant insisted should be put in evidence by the plaintiff as a part of his case, which plaintiff refused and was non-suited.

This, on error brought, was held correct; the Court saying — “This paper was offered to the plaintiff as a part of the contract, but he declined to use it or give it in evidence. Now, this was the stipulation or promise of the plaintiff, counterpart to that of the defendant. It was the plaintiff’s part of the contract, and might have been material to the plaintiff’s right to recover.” The Court further say — “The contract consisted of letters between the agents of the parties, the letters of credit, and the engagement on the part of the plaintiff; and, when all taken together, may have shown that the promises were concurrent and dependent; in which case it would have been incumbent on the plaintiff to aver and prove a readiness and willingness to perform his part.” And further, — “Nor is it sufficient to allege that the plaintiff’s part of the contract merely limited the responsibility, and did not destroy the contract. That may be true; but that is the very question which ought to have been made patent before the- Court by the plaintiff.”

So in Alabama & Tennessee R. R. Co. v. Nabors, 37 Ala., 489, assumpsit for money loaned. The evidence of the loan was in a writing, signed by the defendant, in which it was said, “ this loan is made on the conditions and terms stated in the resolutions of the Board of Directors, passed June 13, 1856, and recorded in the minutes.” The plaintiffs were held bound to prove these resolutions as a part of their case.

It was held by this Court in Lester v. Sutton, 7 Mich., 329, that when a party introduces in evidence a letter from the opposite party to prove a contract; if such letter was written in reply to one from himself, he must also introduce the latter in evidence.

An analagous principle is involved in that large class of cases, where an action is brought upon the common counts for work and labor, goods sold and delivered, etc., and other like cases, and it appears in evidence given on the part of the plaintiff, by cross-examination or otherwise, that there was a special written contract which is not introduced by the plaintiff. See among others Ladue v. Seymour, 24 Wend. 60; Kersteter v. Raymond, 10 Ind. 199; Vincent v. Cole, 10 Mood, and Malk. 257; Jeffrey v. Walton, 1 Stark. 267; see also Buxton v. Cornish, 12 M. & W. 426.

And a similar principle may be said to be involved in all those cases, where a party, seeking to recover or defend on the ground of a contract, resorts to verbal evidence, when it appears upon cross examination of his own witnesses, that the contract is in writing, and he fails to introduce it. But in these cases, the principle which excludes the verbal evidence is not, it seems to me, so strong, as that which should, in the present case, exclude the evidence of ope entire contract, written upon two sheets, when the plaintiff introduces but one, and offers no evidence at all of the other.

But it is further urged that the mere fact of the application being in the possession of the defendant, absolves the plaintiff from all obligation to introduce it, or to take any step, or to make any effort to obtain or offer it in evidence; and not only this, but that it throws upon the defendant the burden of proving it as a part of his defense. I do not think that any part of this proposition is sound in principle, or supported by authority.

Mr. .Greenleaf, in his worK on evidence, v.ól. 1, sec. 87, speaking of the rule excluding oral evidence of contracts, etc., when the fact is provable by a written instrument, says: “ The fact, that in such cases, the writing is in the possession of the adverse party, does not change its character; it is still the primary evidence of the contract, and its absence must be accounted for by notice to the other party to produce it, or in some other legal mode, before secondary evidence of its contents can be received.” See cases cited in note, and note 860 of Gowen & Hill’s notes to Phil. Ev. If this must be done before secondary evidence is received, it would certainly seem that as much as this should be required, before the Court should allow the plaintiff to recover upon part of a contract, without any evidence at all of the other part.

I think there is no error in the record and that the judgment should be affirmed.