text:
    Valentine Crosswell v. The People.

      Rape, — what constitutes. — 0araal knowledge of the person of a female over ten years of age, unaccompanied with any circumstance of force or fraud, does not constitute the crime of rape, either at common law or under the statutes of this State.
    Where, therefore, a man had criminal connection with a woman of mature years, of good size and strength, but who was shown by the testimony to be in a state of dementia — not idiotic, but .approaching towards it; and it appeared, that no fraud or force was used by him. Held, That such act did not constitute the crime of rape.

      Heard July 7.

      Decided October 10.
    Error to Kalamazoo Circuit.
    The facts will be found sufficiently stated- in the ■opinion.

      PT. A. JBalch for plaintiff in error.
    1. An assault with intent to commit rape always includes the design to use iorce to accomplish the object at all hazards on the part of the person making the assault, and of resistance of the most forcible kind on the part of the person assaulted. — Rex v. Lloyd, 70 Car. and Payne, 589; 2 Swan, 394.
    In this case there is not the slightest evidence that any force was used or intended, or that any resistance was offered or intended. Where, then, is the assault, or where the intent? No force was needed, none intended.
    The intent, in a case like this, constitutes the crime: tbe assault was simply tbe means. Without these two essentials, the crime charged could not have been committed. — 4 Leigh, 645.
    There was no such offence at common law, as I have been able to discover. Our legislators have not created any, and if ever they do, they will then require that the pleader shall allege the character and condition of the female, the same as he is bound to in a case of a child under ten years of age. — Comp, hems, 1506 - lAOi, §20, ¶5'730; Barbour’s Magistrates Criminal Law, 69; 1 Russel on. Crimes, 565; People v. Enoch, 13 Wend., 159.
    2. The Court erred in not charging the jury that if they found actual coition, then the intent merged in the offence actually committed. ' The respondent insists that the information hi this cause is at common law, and not an .information under the statute. The statute provides that if any-person shall assault any female with intent to commit the crime of rape-, and rape is defined to be ravishing and carnally knowing a female of the age of ten years and over, by force, and against her will.

    It will be seen by this statute that carnally knowing and abusing a female child, under the age of ten years, is not a rape. No ravishment is included in the offence. It simply consists in knowledge. Apply the same principle to a case like this, and no ravishment is included; it is simply carnal knowledge. It is not by force, nor against her will.
    3. The charge of the Court under the seventh assignment of errors, the respondent contends, was wrong in this; that it instructs the jury that if the female was suffering under such a diseased state of mind as to have no intelligent will to oppose, then the crime charged was committed — a proposition, we think, wholly untenable. The crime might be fornication, if a single woman; adultery, if married; or it might be rape, if accomplished with force. The law never presumes a man to intend to commit an enormous crime when his acts themselves may just as well be explained in the one of less aggravation. The only legitimate presumption is, that he intended to commit adultery, and this presumption exactly corresponds with the facts. The Court should, therefore, have instructed the jury, if they found the intent was simply to have sexual intercourse with the woman, and not to force, her, then he must be acquitted. It by no means follows that the crime charged was committed, as the Court virtually instructed the jury, when all the facts and circumstances are more applicable to the commission of a different and less aggravated offence. — Rex v. Jackson, Tr. Term R., 1822; Russel v. Ryan, 487; Regina v. Saunders, 8 C. & P., 266; Rex v. Williams, 8 Car, and Paine, 286; Rex v. Stanton, 1 Car and Kerwan, 415; Commonwealth v. Goodhue, 2 Met., 198.
    When the offence, as - charged in this case, was the intent, that criminal intent must be proved, whatever may have been the mental'condition of the female; and the allegation of insanity was no excuse for not proving the intent and force. — Rex. v. Stanton, Car and Ker. Rep., 215.

      A. Williams, Attorney General, for The People.
    1. Mrs. Crittenden, at the time the offence was committed, was insane, and, therefore, incapable of consenting. In that regard, she was like a female child under the age of ten years. In this case, then, resistance by her, or violent aggression by him, in any degree whatsoever, is not necessarily an element of the offence. And this, it cannot be - said, is asking for the creation of a new principle, but only its application, in this State, as it has been elsewhere, to a class of cases worthy of protection. Stephen v. The State, 11 Geo., 225; 24 U. S. D. 510, §1, §3, §4; 1 Bishop Cr. L., §28, §342-3, and cases

      cited; 2 Bishop Cr. L., §939, and cases cited; 1 Whort. Cr. L., §1141-3; The People v. McGee, 1 Denio R., 19; State v. Farmer, 4 Ired., 224; 4 Blackst. Comm., 212; Reg. v. Fletcher, 8 Cox. Cr. Cas., 131; 5 Jur. N. S., 179; Rex v. Regan, 2 Cox Cr. Cas., 115; State v. Cron, 10 West. L. J., 501; McNamaras Case, Oaklay, 521; 2 Bennett & Heard's Mass. Digest, 542, note 1;, 3 Greenleaf's Ev., §211-12; Dean’s Med. Juris, 34-5.
   Cooley J.:

The defendant was informed against in the Circuit. Court for the county of Kalamazoo for rape, alleged to have been committed upon one Mrs. Crittenden. The information was, in all respects, in the usual form.

On the trial, evidence was adduced that four persons, walking in the road together through or past a piece of woods, saw Mrs. Crittenden and the defendant in the ' road together a few rods off: Mrs. Crittenden,' at the time, lying upon her back with her clothes up to her waist, and the defendant on his knees before her; that he did not have hold of her, or seem to be exercising any control, nor she to be making any resistance; that sexual intercouse took place between them, after which, on some slight noise being made, the defendant got up and ran off, while Mrs. Crittenden' came out towards the witnesses smiling, and followed them to a house in the neighborhood where they were going to visit.

The prosecution then offered evidence to show that Mrs. Crittenden at the time was insane. The defendant objected to this as irrevelant, and also because, if insanity was a material fact, it should have been alleged in the information. The Court overruled the objection, and the defendant excepted.

The evidence given to establish insanity showed that Mrs. Crittenden was forty-eight or forty-nine years of age, in apparent good physical health, of good size and seeming strength; that she had teen in the insane asylum at Kalamazoo the preceding year, but was, at this time, residing at home with her husband; that she worked some at home, but appeared to be uneasy, and said she ought to be doing something, but did not know what to do. The most pointed 'testimony was that of E. H. Yan Dazen, the physician, who was in charge of the insane asylum while Mrs. Crittenden was there, who’testified that she was in a state of dementia — not idiotic, but approaching towards it; that she had, vague apprehensions of injury, and a pre-disposition to be with men — a morbid, rather than an active desire, to have sexual intercourse; that that was one way in which her insanity manifested itself; that she was dismissed from the asylum not much improved, but under better control, and with more method in her conduct; that her general health was pretty good, and she was of good size, and apparently a strong woman. The witness did not think she had intelligent understanding at the time the crime was said to have been committed.

The Court below, at the conclusion of the case, charged the jury that if the woman was so suffering from mental disease at the time, as to have no intelligent will to oppose to the act of the prisoner, and he knew of this her condition, then her failure to oppose him, or her seeming acquiescence, could not be urged against a conviction; and that if he made the attempt upon her person with the intent to have carnal intercourse, and she did not resist because she had no intelligent will to oppose, he was guilty of the offence charged. Under these instructions the jury returned a verdict of guilty.

The exceptions present. to us questions which we do not find distincly passed upon in any adjudged case. The main question, and the only, one we deem it necessary to discuss, is, Whether the carnal knowledge of a woman non compos mentis, under the circumstances disclosed in the testimony above stated, can be punished as rape under the statutes of this State.

Rape is defined to be “ the carnal knowledge of a woman by force and against her will.” — 1 East. P. C., 434; 4 Bl. Com., 210. The statute providing’ for its punishment in this State — §5730 of Compiled Laws — is in the following words: “ If any person shall ravish and carnally know any female" of the age of ten years or more, by force and against her will, or shall unlawfully and carnally know and abuse any female child under the age of ten years, he shall be punished,” etc. This statute does, not change the nature of the offence as it stood at the common law, nor does it describe two distinct offences, but the carnal knowledge of the female child under the age of ten years is held to be rape, on the -ground that,' from immaturity and want of understanding, the child must be deemed incapable of .assenting, - and the act presumed to be the result of force.— People v. McDonald, 9 Mich., 150; Commonwealth v. Sugland, 4 Gray, 7. And it is insisted in this case that an insane woman, or one not mentally competent to exercise an intelligent will, is in the same position, as respects this crime, as a child under ten years of age, and that carnal knowledge of her person would constitute the offence notwithstanding her acquiescence.

If the case before us can be regarded as rape, it is apparent that it must fall within the first clause of the section quoted, since the other is confined, by its express terms, to carnal knowledge of female children under the age of ten years, and cannot be extended by analogy, to embrace other cases. But to warrant a conviction under the first clause of the section, -the carnal knowledge must have been by force and against the will of the woman; and as there were facts before the jury, in this case, from which they might fairly infer that the woman, and not the man, was the soliciting party, and the charge of the judge must Tbe construed in the light of the testimony* the real question to be determined is, whether that is by force and against the will, where the woman assented to and. desired its commission, but without possessing, at the time, the mental capacity which would render her responsible for her own conduct ?

The general rule requires, not only that there should be force, but that the utmost reluctance and resistance, on the part of the woman, should appear. — People v. Morrison, 1 Park. C. R., 625; Woodin v. People, Ibid., 464. The essence of the crime is said to be, not the fact of intercourse, but the injury and outrage to the modesty and feelings of the woman, by means of the carnal knowledge effected by force. — Pennsylvania v. Sullivan, Addis 143; 2 Bish. Cr. L., §944; 3 Greenl. Ev., §210. As these circumstances are wanting in the present case, it becomes important to ascertain whether any other circumstances can be regarded as legal equivalents.

There are undoubtedly some cases where the law not only does not require actual fqrce’ to be proved, but where force is presumed, and not suffered to be disproved. The case of carnal intercourse with a female child, under ten years of age, has- already been alluded to, but the rule in that case is not an arbitrary one, but is based upon a well understood fact in nature, that the child, at that tender age, is without desire for such intercourse, and the presumption that it is' against her will is therefore in accordance with the general fact. Nature, indeed, does, not definitely fix the period at which the child might become capable of understanding the character of the act, and assenting to it: and the statute has therefore named the age of ten years as the period when the conclusive presumption of opposing will shall cease. The will, in ■ this ease, we apprehend, depends less upon mental capacity than upon physical considerations, and. the ago named is not the age of consent, either at the common law or by the statute.' It was, indeed, at one time supposed that if the female was over ten years of age, but under twelve, intercourse with her must necessarily be rape, because the capacity to consent was wanting; but the Courts did not so hold, and statutes were passed making the act a misdemeanor where the female was between the age of ten and the age of consent, but where, not being against her will, it did not fall within the definition of rape. — 1 Hale P. C., 631; 4 Bl. Com. 212; 1 Russ. Cr., 693.

In the case of Regina v. Campten, 1 Deer C. C., 89; Same case, 1 C. & K., 746, it appeared that the prisoner gave the woman liquor' for the purpose of exciting her, but which had the effect to make her quite drunk; and while she was in a state of insensibility, he took advantage of it and violated her. The Court held the act to be rape. The prosecutrix showed by her words and conduct, up to the latest moment at which she . had sense or power to express her will, that it was against her will that intercourse should take place. It was no answer to-the charge, therefore, that she had no opposing will at the moment when intercourse actually took place, since the prisoner had actually mastered it by means of the stupefying drug, which was the same, as was well remarked by one of the judges, as if it had been overcome by a blow.

In Rex v. Charles, 13 Shaw’s J. P., 746, cited in 1 Bish. Cr. L., §343, note, and 2 Arch. Cr. Pl. & Pr., 167 (306,) the prisoner had carnal knowledge of the person of a woman laboring under delirium, and who was insensible to the act. The act was held to be rape; but the decision' can hardly be regarded as establishing an exception to the general doctrine as to this crime. If the woman was insensible, some degree of physical force must actually have been employed by the prisoner; and no more resistance is required by tbe law, in any case, than tbe condition of tbe woman will permit her to make.

The facts, in the case last cited, made it open to the objection which appears to have been taken in The State v. Owen, 10 West. Law J, 501; Note to Whart. & St. Med. Juris., §463, where the defendant was charged with the crime of rape committed upon an insane woman. That case is sometimes referred to as holding that all carnal intercourse with an insane woman is rape; but the point involved was a very different one, and the decision sanctions no such doctrine. It is not a little, remarkable that, while it is insisted by the prosecution in this case -that all intercourse with a woman in this condition must be rape, because she has no capacity to, consent, it was there -urged by the defence, that no intercourse with her, even by force, could be rape, be-, cause she had no will to oppose. Rape, it is said, must be against the will; and how can an act be against the will of a person who has no will ? This argument made it necessary for the Court to determine what is meant by the word will, as used by the law in this connection,, and we quote from the decision so much as has a bearing upon this question: “ Is it true,” said the Court, “that an idiot or insane person has no will? What is the definition of these two words? Do they imply a loss of will or a mere unsoundness of mind ? These words are thus defined by Webster: ‘Idiot- — -a natural fool; a fool from birth; a human being in form, but destitute of reason, or the ordinary intellectual power of man. Insane — unsound in mind or intellect; mad; deranged in mind, and one of the words used to define insanely, is foolishly.’’ ‘ Fool ’ is defined to be ‘ one who is destitute of reason or the common power of understanding; an idiot.’ ” In Chitty’s Med. Juris, an icliot is defined to be ‘a, person who has been defective in intellectual powers from the instant of his birth, or at least before the mind had received the impression of any idea.’ Again, Chitty says that ‘idiocy consists in a defect or sterility of tin? intellectual power, while lunacy or madness consists in a perversion of the intellect.’ All. these definitions imply either a weakness or perversion of the mind or its powers, not their destruction. Hence, an idiot cannot be said to have no will, but a will weakened or impaired: a will acting, but not in conformity to those rules and motives and views which control the action of persons of sound mind. Indeed, in an insane person the will is too often fedrfully active, and entirely uncontrollable by reason . or persuasion. There is here no lack of will, but simply a perversion of it. Nor is this the most conclusive answer to the argument. If there is no will, how are voluntary actions continued? Actions, like respiration, are instinctive, and independent of the will; but eating, and numerous other acts which necessarily imply the exercise of the will, are performed by idiots and insane persons, and their exercise demonstrates the existence of a will — -of a will that can assent to or dissent from what are clearly voluntary acts. I have, therefore, no hesitation m holding that both idiots and insane persons are 'possessed of a will, so that it may be legally and metaphysically said, that a carnal knowledge may be had. of their persons forcibly and against their will.”

From the brief note of the Scotch case of McNamara, Ashley, 521, 524, in 2 Bish. Cr. L., §939, note, a similar defense would seem to have been made there. The woman, in that case, was an idiot; and the Court told the jury that if they believed the defendant “had actually penetrated the girl, and that she had shown any physical resistance, to however small an extent, the offence would be complete, in .consequence of her inability to give a mental consents

Both these cases, while not perhaps distinct authorities to that effect, clearly imply that the same circumstances must exist to constitute rape in the case of an idiot or insane woman, as where the woman is of sound mind. The word will, as employed .in defining the crime of rape, is not construed as implying the faculty of mind by which an intelligent choice is made between objects, but rather as synonymous with inclination or desire-, and in that sense it is used with propriety in reference to persons of unsound mind.

We are aware of no adjudged case that will justify us in construing the words “ against her will,” as equivalent in meaning, with “without her intelligent assent,” nor do we think sound reason will sanction it. But, though the definition of the offence implies the existence of a will in the woman, which has opposed the carnal knowledge, no violence is done to the law by holding, in any case where the woman, from absence of mental action, does not willingly acquiesce, that the physical force necessary to effectuate the purpose, however 'slight, is "against her will. As was said by Alder son JB., in Gamplin’s case, above cited, a woman may be supposed to have a general will not to be ravished; and the man is not to be excused because she was prevented, or .was unable, to exercise it in the particular case. If, therefore, a man, knowing a woman to be insane, should take advantage of that fact to have knowledge of her person, when her mental -powers were so impaired that she was unconscious of the nature of the act, or was. not a willing participator, we should have no difficulty in holding the " act to be rape, notwithstanding distinct proof of opposition might be wanting. All such cases stand upon reasons which clearly distinguish them from the case now before us, where the will was active, though perverted, and all idea of force or want of willingness is distinctly disproved.

There are cases in which it has been held that if' the woman’s consent is obtained by fraud, she at the time supposing the man to be her husband, the crime of rape is not committed. — Rex v. Jackson, Russ. & R., 487; Regina v. Saunders, 8 C. & P., 265; Regina v. Williams, Ibid, 286; Regina v. Clarke, 29 E. L. & E., 542; State v. Murphy, 6 Ala., 765; Wyatt v. State, 2 Swan, 394. But there are some cases in this country to the contrary, and they seem to us to stand upon much the better reasons, and to be more in accordance with the general rules of criminal law. — People v. Metcalf, 1 Wharf. C. C., 378, and note 381; State v. Shepard, 7 Conn., 54. And in England, where a medical practitioner had knowledge of the person of a weak-minded patient, on pretence of medical treatment, the offence was held to be rape. — Regina v. Stanton, 1 C. & K., 415; same case, 1 Den. C. C., The outrage upon the woman, and the injury to society, is just as great in these cases as if actual force had been employed; and we have been unable to. satisfy ourselves that the act can be said to be any less against the will of the woman when her consent is obtained by fraud, than when it is extorted by threats or force.

Undoubtedly, fraud would be much more readily inferred in a case of mental derangement than where the woman’s powers of mind were unimpaired; but in the present case, no circumstance of either fraud or force was required by the charge of the Court to the completion of the offence, nor is it suggested that any 'such circumstance existed. The naked fact of intercourse, with knowledge of the mental condition, was held sufficient. As one who has knowledge of the 'facts which prove insanity must be supposed to know that insanity exists, it would follow that, in any case of doubt, a man’s guilt or innocence would depend upon the preponderance of testimony on the question of the Woman’s competency. As marriage with an insane person is void, it might become a serious question whether the ceremony could protect the too partial bridegroom from prosecution for rape, where he had relied upon manifestations which, to him, appeared the evidences of genius, but which experts should convince a jury were only the vagaries of a disordered imagination.

The conclusion at which we have arrived is, that rape, at the common law or under our statute, is not committed upon the person of a woman over ten years of age, where no- circumstance of either force or fraud accompanies the carnal knowledge. The Circuit Court must be advised that, in the opinion of this Court, the conviction was erroneous, and that the verdict should be set aside and a new trial granted.

Campbell and Christiancy JJ. concurred, and Martin Ch. J. concurred in the result.


source: Caselaw Access Project

author: Cooley J.:

license: Public Domain

text:
    The Amboy, Lansing and Traverse Bay Railroad Company v. Adam H. Byerly, Thomas D. Dewey and David Gould.

      -Report of referee —error in its conclusions of law — how advantage can be taken of.— Sec. 6 of the Referee Act, (Laws of 1861, p. 157,) is to be understood as providing simply that the report of the referee, when not excepted to, shall stand as the finding or determination of the Court in term time for the purpose of authorizing the party in whose favor it is made to take judgment upon it as of course.
    And, in such case, where the report is not excepted to, this Court, on error brought, will not set aside the judgment, as in the case of a judgment on special verdict, on the ground that the finding does not contain the facts and circumstances necessary to sustain the conclusions of law, but ^uch question can only be raised by excepting to the referee’s report, in accord* , anee with Sec. 7 of said act.

      Heard July 8.

      Decided October 10.
    Error to Shiawassee Circuit.

      JVeioberry & Pond, for plaintiff in error.
    JE Gould, for defendant in error.
    The facts sufficiently appear in the opinion.
   Cooley J.:

This was an action of assumpsit, brought by the defendants in error, who are bankers, to recover the amount of a certain promissory note, and also a sum claimed to be. due on an overdrawn 'bank account. The cause was referred, in the Court below, to H. M. Newcomb, Esq., as referee, who reported as follows:

“The undersig’ned referee, appointed by a rule of this Court made in the above cause, having heard and examined the matters in controversy in said cause, and having examined on oath the several witnesses produced therein, finds the following facts, to wit:
“1st. That from April 1st to September 1st, 1864, plaintiffs were partners in business as bankers at Owosso, Michigan.
“ 2d. Defendants are and were a corporation existing under the laws of the State of Michigan, and during said time — from April 1st to September 1st, 1864 — kept a banking account with said plaintiffs.
“ 3d. That from said 1st day of April to said 1st day of September, said plaintiffs paid checks on them by said defendant to the amount of twenty-four thousand five hundred and three dollars and ninety-one cents.
“4th. Said plaintiffs were, at the time of the commencement of this suit, and still are, the holders of a promissory note, hereunto attached, made by defendants,' dated June 30, 1864, for the sum of three hundred and thirty-eight dollars.
“ 5th. Plaintiffs, .by their bill of particulars, demanded and served, give credit to said defendants to the amount of twenty-one thousand and fifty-nine dollars and forty five cents.
“ 6th. ' I, therefore, find that there is due to the above-named plaintiffs, from the above-named defendants, the sum of three thousand five hundred and fifty-one dollars' and sixty-one cents, which includes interest at the rate of .seven per cent, per annum, from September 3d, 1864, to February 13th, 1865, on the balance due September 3d, 1864, to wit: Three thousand four hundred and forty-four dollars and forty-six cents.”

No exceptions appear to have been taken, on the hearing before the referee, to any rulings made by him, nor were exceptions filed to the report; but judgment having been entered thereon, error is brought, and it is claimed in this Court that the judgment must be reversed, because the referee erroneously treated the paid checks in the hands of the plaintiffs (below) as evidence of indebtedness on the part of the defendants to them.

• The first thing to be determined by us is, whether this question is before us on the record. It is claimed by the plaintiffs in error that, under the statute, (Laws of 1861, p. 159, §6,) the report of a referee, like a finding of facts by a Circuit Judge, is to be regarded as in the nature of a special verdict, and that unless it contain all the facts and circumstances necessary to sustain 'its conclusions of law, any judgment based upon it must be erroneous, and no exceptions to the report are necessary to enable the party aggrieved to take advantage of the error.

The statute under which causes are tried by the .Court. without a jury, requires that the Court, on the request of either party, shall, in giving the decision, specify the facts found, and the conclusions of law thereon. — Comp. Laws, Circuit Court Rul'e 90. provides that “ the finding of facts by the Court shall be treated in all respects as a special verdict, and error may be alleged that the same does not support the judgment, as on a special verdict, but no ruling of law embodied in such finding can be reviewed except on exceptions, or on a case made as provided by statute.” Under this statute and rule, if a party claims to be aggrieved by any ruling of the Court on the trial, which would affect the conclusions of fact, as upon the admission or rejection of evidence, his remedy is by bill of exceptions; but when the only error alleged is that the finding of facts does not support the judgment rendered, no exceptions are necessary, as the finding itself becomes a part of the record, which thus presents -the question as fully as it could bo presented by exceptions. —Trudo v. Anderson,- 10 Mich., 357.

The section of the statute of 1861 referred to, provides that “the referees shall report to the Court in writing, showing the facts found and the conclusions of law separately; and such report may be filed in term time or in vacation, and shall stand as the finding of the Court in term time, unless excepted to, and judgment may be entered thereon in the same manner as if the action had been tried by the Court.” If, under this section, the report by the referee is to be treated in all respects as a finding by the Court, and all the same consequences are to follow, it is clear that the position' of the plaintiffs in ’ error is correct, and that this judgment cannot be supported, unless it appears by the report that all the facts necessary to sustain the referee’s conclusions of law were found by him.

Section seven of the same statute provides that either party, within ten days after receiving notice of the filing of the report, “ may file with the clerk, exceptions to any conclusion of law in such report; and shall servo a copy of such exceptions on the opposite party; and, exceptions being- filed and served, the case may be noticed for argument before the Court, on such exceptions, on any clay in term, on the same notice as shall be requisite for special motions; but it. shall, not be necessary , for the parties to file exceptions to the report in order to obtain a review of any ruling of the referees embodied, in a bill of exceptions settled as provided by the next section.”

Section eig-ht provides that “ either party, on the hearing before the referees, shall be entitled to take exceptions to any ruling of the referees, in the same manner as on trial in open Court; ” and the mode of settling- bills of exceptions, and returning them with the report, is pointed out.

We think it plain, from these provisions, that while the report of the referees is to stand in the place of a finding by the Court, a different mode is pointed out, for correcting errors of law alleged to exist in it, than that prescribed by rule ninety in the case of a finding by the Judge; for the exceptions to the report required by this statute are in addition to any which a party is required to take on a trial in open Court. The office of a bill of exceptions is the same under the statute of 1861, as under Section 3437 of the Compiled Laws and Circuit Court Rule 90; and it roaches all those rulings of law which, in the language of rule ninety, are “ embodied in. the finding, or which affect the finding of facts; while the exceptions to the report reach that class of errors which might be assigned on a Judge’s finding without exceptions.

We are of opinion, also, that section six is to be understood as providing simply, that the report of the referee, when not excepted to, shall stand as the finding or determination by the Court in term time, for the purpose of authorizing the party in whose favor it is made to take judgment upon it as of course. If no exception is taken to it, the Court is warranted in treating its conclusions as accepted by the parties, and the party moving for judgment upon it is only required, to bring to the notice of the Court the fact that a report has been made to the Court in his favor, to which the other party has made no objection. This view is strengthened when we examine this section in connection with section nine, which points out the course to be taken when there are exceptions either to the report or upon the trial.

That section is as follows: “ On the hearing of such bill of exceptions, or upon exceptions to the report, or-both, the Circuit Court may confirm or set aside such report, in whole or in part, and, in its discretion, refer-the case back to the referees, or enter judgment thereon. And in case that judgment shall be entered thereon, error may be brought on such judgment as in other cases, in which case the bill of exceptions, if any, the report and the exceptions to the report, shall be considered as forming a part of the record in the case, and the finding of facts by the referees shall be treated as a special verdict.”

It was evidently the purpose of these several sections to require the party complaining of any ruling by the referee to seek his remedy in the Circuit Court before he should be entitled to bring error based upon such ruling. If the decision complained of was one made in the course of the trial, and which might affect the conclusions of fact, the remedy given is by bill of exceptions j but when the only complaint is that erroneous conclusions of law have been drawn, exceptions to the report must be filed, and the case brought to a hearing upon such exceptions. And on the hearing, it is in the power of the Court to correct the erroneous conclusions in the report, or to set aside the report altogether, and refer the case back, where the nature of the error is such that it cannot otherwise be remedied.

A practice that should allow a party to make his objection to the report for the first time in a Court of Error, after having apparently abquiesced in it in the Court below, would be so manifestly unjust to both the opposite party and the Court, that- we are not prepared to find in the statute an intention to establish it, unless the language employed clearly requires us so to hold; for the result is that we are asked to reverse the judgment of the Court below on a point which was never brought to its notice, and to inflict upon the opposite party the costs of a suit in error, when an ample remedy is afforded, without expense, in the Circuit Court. And this injustice would be the more glaring in cases where the error consisted in some omission which, in the Court below, might have been supplied by amendment, but which could not be corrected in this Court without reversing the judgment, and remanding the case for a new trial.

We do not think we are required by its terms to give this statute a construction which will warrant such a practice. On the other hand, while section six Authorizes judgment' to be entered upon the report as of course, when no exceptions have been taken, it is only in the case of exceptions, either to the rulings on the trial or to the report, and after those have been brought to a hearing in the Circuit Court, that the statute provides, by section nine, that “ the exceptions, if any, the report and the exceptions to the report, shall be considered as forming a part of the record in the case, and the finding of facts by the referee shall be treated as a special verdict.” And this provision is unnecessary and meaningless if, Avithóut any exception to the report, it still becomes a part of the record, for the purpose of allowing a party to assign errors upon it in the Supreme Court.

A very good reason is, apparent for requiring exceptions to a report of referees,- where none would have been required to a Judge’s finding. The latter is the deliberate conclusion of tbe Court itself, from -which the party aggrieved should be allowed an appeal; but tbe former is only the conclusion of an officer of the Com-t, which, if erroneous, it is to be presumed the Court will correct when the errors are brought to its notice, and an opportunity afforded for the exercise of its judgment upon them.

We are of opinion, for the reasons stated, that the plaintiffs in error are not in position to raise, ttpon this record, the question they have , argued, and that the judgment must be affirmed, with costs.

The other Justices concurred.


author: CiiRTSiiMrcv J.:

text:
    David. C. Wattles and Isaiah Butler v. The People.

      Informations — sufficiency of in matters of substance, when involved, in this Court. — In a caso brought to this Court on exceptions before judgment, in pursuance of Chapter 397 Comp. Laws, (2 Comp. L., p. 1594,) no errors aro required to he assigned, and the sufficiency of the information, in matters of substance, though no objection bo taken either in this Court or the pourt below on that ground, is involved,3 to the extent at least, of determining whether it charges a criminal offence.

      Information for non-performance of official duty. — An information or indictment for the non-performance of an official act, must set forth such 'a state of facts as, under the law, imposed upon the defendant, the duty to perform such act.
    Since the act of 3859 requiring the registration of voters, an information against the inspectors of an election for refusing to administer to a person offering to vote one of the oaths prescribed by §25 of the Act of 1851, (1 Comp L., pp. 107-8,) should contain an allegation that the name of the person offering to vote was duly registered; and in the absence of such allegation, it is not sufficient to sustain a verdict.

      Heard July 6.

      Decided October 10.
    Error to Lapeer Circuit.
    Tbe defendants were tried and convicted on an- information, of wbicb tbe following is a copy:

      Charles M. Walker, Prosecuting Attorney for the county of Lapeer aforesaid, for and in behalf of The People of the State of Michigan, comes into said Court in the December term thereof, * A. D. 1860, and gives it here to understand and be informed that heretofore, to-wit, on the 6th day of November, 1860, at North Branch, in said county, one Abraham Moyer appeared before David C. Wattles, Isaiah Butler and John Skym, who were then and there acting as a Board of Inspectors" of Flection at said, election, and offered his ballot to vote for officers then to be chosen, and that he was then challenged as unqualified by David McConnell, an elector-qualified to vote at that poll, and then and there the-, said Abraham Moyer stated that he was a qualified elect- or, and said challenge not having been withdrawn, he, said Moyer, demanded the right to have administered, to-him the oath contained in clause 1 of section 49?, of the.Compiled Laws of the State of Michigan, which he- then .claimed to contain grounds of his qualifications to, vote,, and that the said David C. Wattles, Isaiah 3Jqtler and John Skym did each, then and there, corruptly- and- will- ■ fully neglect and refese to administer to said M.oyer said, oath in that behalf, contrary to the statute- i-A such case* made and provided, and against the peace- and, dignity, of the State of -Michigan.
    CHARLES'. M. WALKER,

      Prosecuting Attorney fon■ tine. Oawnty, of Lapeer.

      Balditán & Draper for plaintiff in, error,.

      A. Williams, Attorney General^. for- The People.
   CiiRTSiiMrcv J.:

The defendants, who were inspectors of election for the township of North Bran eh, in the county of Lapeer, at the general election for the year 1860, were tried in -the -Circuit Court for that, cormtyj and convicted upon an information charging, or intended to charge them with a breach oí duty in neglecting and refusing to administer to one Abraham Moyer (offering to vote at that election) the citizen’s oath, being the first oath provided for in the twenty-fifth section of the act of 1851. — Sec. 25, Ch. 6, of Comp. L.

Exceptions were taken on the trial to the. admission of evidence, for refusing certain charges, and to the charges as given. The case is brought to this Court upon the exceptions before judgment, in pursuance of chapter 197 Comp. Laws (Ch. 166 Rev. Stat. of 1546.) No objection was taken to the sufficiency of the information either in the Court below or in this Court. But, as in this proceeding, no errors are required to he assigned in this Court, and we are “to hear and determine the questions of law arising on such exceptions, and “ certify ” our “ determination to the Court in which the trial was had, together with, directions for a new trial or such other pn'oceedAngs as right and justice shall require,” (Comp. L. Ch. 197, §6,) we think the sufficiency of the information in matters of substance is necessarily involved, to the extent at least, of determining whether it charges a criminal offence. — People v. McKinney, 10 Mich., 54. Merely formal defects, and probably such as- might be amended under the statutes, should not be noticed. But if it clearly appears to the Court, whether brought to their attention by counsel or not, that the information contains no criminal charge, so that no conviction or judgment could be sustained upon it, whatever the evidence or charge might have been, then all we might say upon such evidence or charge would be outside the case, and extrajudicial; and whatever views the Court might entertain as to the rulings or charge of the Court below, they certainly would not direct a new trial, or any other proceeding, upon such information.

This charge was intended to be for the neglect of, and refusal to perform, an official duty — that of admin.stering an oath to a person offering to vote at the election in question, and whose vote was duly challenged. It was doubtless intended to be based upon section twenty-five of the act of 1851, (Comp. L., pp. 107 and 108,) which was supposed to impose the duty, and section 1 of chapter 188 Compiled Laws, providing the punishment for the neglect or refusal to perform such duty.

To constitute a valid charge for the. neglect or refusal to perform this duty, the indictment of information must (as in other cases for the non-performance of an ofiicial duty,) set forth such a state of facts as, under the law, imposed that duty upon defendants. If facts are not stated which entitled Moyer to take the oath, then it fails to show any duty on the part of the inspectors to administer it. Till the existence of the duty is shown, there can be no criminal offence in its non-performance. Does this information show a state of facts existing at the time of the supposed commission of the offence, which made it the duty of the defendants, or any of them, to administer the oath ?

By the 25th section of the act of June 27th, 1851, above cited, it is enacted that “if any person offering to vote shall be challenged as unqualified, by any inspector, or by any elector, etc., the chairman of the board of inspectors shall declare to the person challenged the constitutional qualifications of an elector, and if such person shall state that he is a qualified elector, and the challenge is not withdrawn, one of the inspectors shall tender to him such one of the following oaths as he may claim to contain the grounds of his qualification to vote.” The section then proceeds to set out five several forms of oath, (the first of which is that which Moyer offered to take,) and then enacts that “if such person, so chai-' lenged, will take either of the above oaths, his vote shall be received,” etc.

By the first section of chapter 188 Compiled Laws, it is enacted: “If any officer oh whom any duty is enjoined by law, relative to general, special, township or ward election, or the canvassing or return of votes given at any election, shall be guilty of any corrupt conduct in the execution of the same, he shall, on conviction there-, of, be deemed guilty of a misdemeanor, and shall be punished,” etc.

Under these two statutes, had the law remained un-. changed down to the time of the election in question, wo are inclined to think the information would have been sufficient, as it sets forth all the facts -which seem to be necessary under the act of 1851, to cast the duty in question upon the inspectors. But the act of February 14, 1859, (Laws of 1859, pp. 483 to 499,) requiring thq registration of electors, has, we think, materially modified the act of 1851, in respect to the duties imposed upon the inspectors to administer any of the oaths provided for in .the last named act. By the fifteenth section of the act of 1859, it is expressly provided “-that the vote of no person shall be received whose name is not so registered.” This act was in full force, and applied to, to the election of 1860. No duty, therefore, rested upon the inspectors at that election to administer any of the. oaths mentioned in the act of 1851, to airy person whose, name was not registered according to the requirements, of the act of 1859. This act has not altered the oaths to be taken by the act of 1851, nor the consequences, which are to follow from taking either of them; nor is, any oath authorized to be taken as a substitute for, or. as proof of registration, though it does authorize an oath to be taken by, and questions to be put to, persons ■applying to be registered. The oaths provided by the act of 1851 still remain in force; but that no one of these oaths is to be administered to any person whose name has not previously been registered, is plain, from; the fact that upon taking any one of those oaths, the vote of the person so taking it is to he received, and this- would be in direct violation of the fifteenth section of the act of 1859, which declares that “the vote of na person shall be received whose name is not so registered.” The two statutes must be construed together, and by allowing the oaths provided by the act of 1851 to be administered only to persons whose names are -registered, both statutes are harmonized.

The registry, therefore, is an indispensable preliminary to the right to take the oath in question, and until such registry there can be no duty on the part of the inspect-, ors to administer, it.

The previous registry of Moyer’s name being indis-, pensable to create the duty in question, it should have been alleged in the information. Without such an allegation, no duty on the part of the inspectors is shown,_ and consequently no criminal offence for its violation.

The information contains no such allegation, nor any other which, by any latitute of interpretation, can be held to include it. Nothing, whatever, is said upon the subject of registry. There is an allegation that “ said Moyer then and there stated that he was a qualified elector;” but this does not amount to an allegation of the fact of such qualification, much less of his previous registry. It may have been all that was required upon this point, under the act of 1851, before the act of 1859 took effect; but it does not bear upon the. fact of registry under the latter act.

Had there been a distinct allegation that Moyer was, at the time, a qualified elector, and nothing to show that any improper evidence had been admitted upon the point of registry, it is possihle that, . after verdict, this might have been held as, in some sense, including the fact of registry, and, inasmuch as no verdict could properly have been found against the defendants without proof of' registry, the defective mode of stating the fact might, perhaps, have been aided by the verdict at common law. — See Regina v. Waters, 1 Dan. C. C., 356; 3 Cox C. C., 300; Note to Regina v. Watson, 1 Bennett & Heard Led. Cr. C., 451.

It is possible, also, that such a defective allegation of registry might have been amendable under the statute of 1855. But the present is not the case of a defective allegation: there is an entire omission of a material fact, without which the offence in question could have no legal existence. There is no criminal charge upon any’ possible construction, and, therefore, nothing to amend. It must, therefore, be certified to the Circuit Court that the information is invalid, charging no offence, and that it should be quashed and the verdict set aside.

Martin Ch. J. and Campbell J. concurred.

Cooley J. was not present.


author: Campbell J.:

text:
    David S. Leavitt v. Martha Leavitt.

      Divorce suit — withdrawal of answer. — Whore, in. a divorce suit, an answer is filed and subsequently withdrawn, no divorce should bo granted without some satisfactory evidence showing that the withdrawal was voluntary, and at the same time not collusive.

      Marriage — what frauds will invalidate. — Those frauds which will invalidate a marriage are usually, at least, such as negative any consent to be married, without reference to previous inducement. The common cases are duress, surprise or stratagem in procuring the marriage to be carried out; and the fraud must usually be nearly, if not absolutely, co-incident in time with the marriage, and operate to destroy that intelligent consent which is required for the marriage itself, rather than the preliminary engagement.
    Where a bill was brought by a husband, some twenty years after marriage, to procure a decree of nullity, on the ground of fraud in the marriage contract, and the bill alleged that the defendant was guilty of ante-nuptial inchastity, that her chastity was made the subject of frequent and diligent inquiry by him before marriage, and that the defendant made specific and open assertion to him on tho subject, upon the falsehood of which, and his own inability to ascertain anything on the subject, he based his sole claim to relief; — Held, That the bill failed to make out a case of fraud, and that complainant was not entitled to the relief asked.

      Heard July 6.

      Decided October 16.
    Appeal in Chancery from Kent Circuit.
    The complainant in this case filed his bill to procure a decree annulling his marriage with defendant, upon the ground of fraud in the marriage contract. The bill set forth his marriage with the defendant on the 24th day of May, 1841; that they lived together in that relation until the month of January, 1862, and that there were eight children issue of said marriage, seven of whom were still living. It alleged that, prior to the marriage, complainant made diligent inquiry in reference to the chastity of defendant, and was assured, both by her and her parents, that she was of good moral character, and that the reports derogatory to her character were false, and that complainant, after carcftil “ inquiry, was unable to discover or learn of any act or conduct disreputable to her.” The bill then alleged several specific acts of sexual intercourse between defendant and different men, prior to her marriage with complainant, and that “she was enabled to deceive the complainant, and did deceive him, as to her chastity and virtue;” that the discovery of the facts charged was recent, and that, since their discovery, complainant had not cohabited with defendant.
    ■ Defendant having appeared and answered, her answer was afterwards withdrawn, and the bill taken as confessed.
    The only evidence in the case was that taken on behalf of complainant, the nature of which sufficiently apimars in the opinion.
    By the decree of the Court below the bill was dismissed.

      C. I. Walher for complainant.
    1. Fraud vitiates all contracts, and the defrauded party, who applies without unreasonable laches after the discovery of the fraud, is entitled to have the contract 'annulled. — Carroll v. Rice, Walk. Ch., 373.
    That the contract of marriage is no exception to this general rule, is not only shown by the statute, but the decisions of Courts have fully settled the point. — Comp. Laws, §3223; Barnes v. Wyeth, 28 Vt., 41; Ferris v. Ferris, 8 Conn., 166; Scott v. Shufeldt, 5 Paige, 43; Morris v. Morris, Wright, 630; Ritter v. Ritter, 5 Blackf., 81; Robertson v. Cole, 12 Texas, 356; Burtis v. Burtis, Hopk., 567; Ferlat v. Gojon, Hopk., 478; Hull v. Hull, 5 E. L. E., 589; True v. Ranney, 1 Fost., 52; Keyes v. Keyes, 2 Fost., 553.
    2. Complainant’s remedy against the fraud is not barred by lapse of time.
    He sought his remedy immediately on discovering the fraud; and the Courts fully recognize the principle, Which alone is just in such a case, thaf complainant will lose no rights by neglecting to act while he remained ignorant of the wrong practiced upon him. — Hovenden v. Lord Annesley, 2 Sch. & Lef., 634; Bond v. Hopkins, 1 Sch. & Lef., 413; Magne v. Griswold, 3 Sandf. S. C. R., 482; Phalen v. Clark, 19 Conn., 421; Deloraine v. Brown, 3 Brown C. C., 633; Blair v. Browley, 5 Hare, 542; Hough v. Richardson, 3 Story, 659; Payne v. Hathaway, 3 Vt., 212; Troup v. Smith, 20 Johns., 47.
    3. The fraud in this case was of that gross and scandalous character which should entitle the complainant 'to the favorable consideration of the Court, and obtain him the relief he prays, unless some inflexible rule of law forbids it.
    Not only would the contract not have been entered into with knowledge of the circumstances, but the Courts recognize the discovery of prior want of chastity as fully justifying a breach of the promise of marriage. — Irving v. Greenwood, 1 C. & P., 350; Young v. Murphy, 3 Bing. N. C., 54. See, also, Foster v. Hayne, 1 C. & P., 545; Willard v. Stone, 7 Cow., 22; Johnston v. Calkins, 1 Johns. Cas., 116.
    4. No inflexible rule of law forbids the decree prayed in this case.
    On the contrary, the general rules of equity allow it, as we have already shown by our citations of decisions.
    And there are decisions in divorce cases, the principles of which fully sanction the relief here asked. The cases of Scott v. Shufeldt, 5 Paige, 43; Ritter v. Ritter, 5 Blackf. 81; Montgomery v. Montgomery, 3 Barb. Ch., 132; Morris v. Morris, Wright, 630; Reynolds v. Reynolds, 3 Allen, 605; 13 California, 87, wore all cases where the marriage was annulled for fraud in respect to the Avoman’s chastity.
   Campbell J.:

Complainant filed his bill to procure a decree of nullity upon the ground that his marriage was induced by fraud. The fraud charged is that the defendant was guilty of unchaste .'conduct before marriage, and yet represented herself to be chaste and virtuous; and that she declared that any charges which might he made to the contrary were false. The bill states that complainant made diligent inquiry concerning her character, and could learn nothing to her discredit — a fact which he attributed to her belonging to a church of which he was not a member. He avers that the discovery of the facts charged has been recent, and that since the discovery he has not cohabited with her.

The defendant appeared and answered, but the ansAver appears to have been subsequently withdrawn by her counsel, and the complainant was permitted to take his testimony ex parte. We feel it our duty to say that in a divorce suit this is’ an unusual and peculiar course, which should at least he closely scrutinized; and under such circumstances no decree should he granted without some satisfactory evidence showing that the withdrawal was voluntary, and at the same time not collusive. The Court below having dismissed the bill, the appeal has nevertheless been' heard by us likewise ex parte, no one appearing to represent the defendant. We cannot suspect that she has been guilty of collusion, when the charges against her. are of such a character, as are spread out in the record; but we regret extremely, that in such a case no one has appeared on her behalf.

The first question which presents itself is, whether, admitting the allegations in the bill to be true, the frauds complained of will avoid a legal marriage. The learned counsel for the complainant did not refer us to any case in which mere incontinence has been held to avoid a subsequent marriage. Chastity is not a requisite to the validity of a marriage, and, while marriage is in a very important sense a contract, it is also a relation, governed by rules of public policy, which ajjply to no mere private agreements. Fraudulent representations of wealth, or connections, or health, or temper and disposition, may in many cases be the chief inducements to matrimonial alliances, but no one has ever supposed that a marriage could be avoided for such frauds. It cannot be denied that marriages have often been made knowingly with unchaste women, although such alliances are not to be expected from persons of any very refined sensibilities. It is not denied that the decided cases entirely fail to recognize _ ante-nuptial incontinence as a ground. of nullity, whether concealed by falsehood or simply not referred to at all. And if it can be regarded as a ground of nullity at all, the fact that there are representations made on the subject cannot change or increase the evil very much.

Those frauds which will invalidate a marriage are usually, at least, such as negative any consent, to be married at all, without reference to previous inducements. The commoner eases are duress, surprise, or stratagem, in procuring the marriage itself to be carried out; and the fraud must usually be nearly, if not absolutely, coincident in time with the marriage, and, operate to destroy that intelligent consent which is required for the marriage itself, rather than the preliminary engagement. If there are other cases, they must be peculiar and exceptional. That such must be the general rule must be very clear, from the cases industriously collected by Mr. Bishop, in his chapter on “ consent obtained by fraud, error and duress,” in which the whole subject is fully elaborated. Our statute contemplates that such must be the ordinary doctrine, for it prohibits any decree of nullity for fraud, if the parties at any time have voluntarily cohabited. — 2 C. L., (§3258.) And there is a consideration of much weight deducible from the rules of exclusion of confidential communications between husband and wife. Were a wife never so guilty, yet, if her husband had been informed by herself of her crime, and repentance, and had been willing to marry her notwithstanding her previous behavior, he could not be listened to for a moment in any subsequent complaint for it. But, by the rules of evidence, he can, never be compelled to disclose that he has been so informed, and she could not, therefore, prove it. But, aside from this, it would not tend to establish the security of the domestic relation, if it could be annulled alter parties had lived together, by such proofs of previous misbehavior, whether true or false. It Avopld prevent the reform of many who have been as much sinned against as sinning, and it Avould put the reputation of the virtuous at the risk of being destroyed by testimony very easily fabricated, and extremely difficult to disprove except by the negative testimony of génerál good character. We are not disposed to go beyond what has been already fixed by safe authorities in unsettling the marriage relation.

' The only cases cited on tfie argument, which have been supposed to favor divorces for ante-nuptial misbehavior, are cases where there was actual pregnancy at the time of the marriage. Without attempting to examine at length into the reasoning of these decisions, it is sufficient to say that such circumstances introduce very different evils from those attending on previous fault alone. They have a direct tendency to confuse inheritances, and create disputes of legitimacy. If such a case should be presented, we should be called upon to decide a question not presented by this record.

We are satisfied that the complainant’s bill makes out no case for relief, even if the suit had -been brought soon after marriage. And, had not the case been presented on a very peculiar state of proofs, we should not deem it necessary to make any further comment on it than to remark the monstrous absurdity which would attend any rule of law, which would permit a person who has lived with the complainant, upon his own showing, as a faithful partner, for more than twenty years, and has borne him many children, .to be now repudiated on such a stale pretenefe. But justice to the defendant requires the true character of this litigation to be presented.

The complainant has alleged in . his bill the somewhat singular facts that the chastity of defendant was made a subject of frequent and diligent inquiry by him, among her friends and relatives, and also of herself in presence, of others, to a degree which was complained of as offensive, and that defendant made specific and open assertions to him on the subject; and he bases his claim for relief entirely on the falsehood of these assertions, and Ms inability, after due diligence, to ascertain any» thing on the subject. The bill was drawn by himself and sworn to, so that he must have fully understood what case he was making. Such a state of things, if true, would of itself go very far to preclude any claim to relief; for it is incredible that any decent man could -enter upon such an elaborate course of investigation without having heard or seen something calculated to arouse strong suspicions. The denials of defendant, as he relates them, refer directly to reports derogatory to her character. If complainant saw fit to marry a person against whom appearances had gone so far as this bill inevitably would lead us to suppose they had, it would be a very strained consideration which would regard him as seriously wounded in feeling or reputation, by a discovery of what had been so stronly suspected before.

But while these averments of his diligence and of her statements are all susceptible of proof, if true, he has not even attempted to prove a single one of them. Had they been proved, they might have had a tendency to corroborate the good faith of such testimony of misconduct as he has introduced. The marriage was not on short acquaintance, and the' parties were neighbors in a small settlement. Instead of attempting to prove what he has charged as actual fraudulent representations and concealments, under questions put to elicit the truth, he has simply contented himself with attempting to( prove misconduct.

The proof itself is open to the most serious animadversion. We find, by reference to the original files, that the complainant’s case was allowed to be reheard twice, and each time on additional evidence, the Court not being satisfied with what was already in. The complainant, therefore, on each of these occasions, undertook to make his case stronger upon the facts already alleged, as no new charges were admissible. In more than one instance this was attempted by a re-examination of the same witnesses who had been examined before ex parte, and who had undertaken to state all they knew, and a good deal that they had heard or surmised. The very parties Who were supposed to be guilty participants in her crime were examined, and in some instances re-examined, with a full understanding that the Court required more con-,vincing proof. Yet, under all these circumstances, 'none of the witnesses swore directly to the actual offence. It is true that the proof of such offenses must usually be¡ to a great extent circumstantial; but, when proof is offered by the party who must know the fact, if it existed, it would be very unsafe to allow any mere inference when there is nothing to prevent direct proof. One of the witnesses, indeed, made a great parade of' his being unwilling to criminate himself, but when it was decided he must answer the question, it was not again propounded to him. The other witnesses professed no scruples, and were not asked at all whether' the offence was committed; but complainant inquired at length into various indecencies, stopping short of the 'direct charge. Taking all of the appearances into the account, it is, impossible to conclude that the complainant has nob. proved all he could prove. The witnesses were not reluctant, and it is very certain they were' not scrupulous, on the point of decency. If we could believe their stories,, they, when in mature years, were guilty of the most, infamotis villainies, in practicing upon a young girl, who> was 'barely more than a. child in years and knowledge, the most. disgusting indecencies, in the presence • of her-parents and near relatives, and under circumstances when it was impossible not to at least arouse their suspicions. The testimony shows that not one of the main witnesses was fit to be tolerated in any decent community; and when - its peculiarities are considered, its omissions and its remarkable statements, and the fact that it turns up for-the first time after more than twenty years, and, in the ease of two witnesses at least, in revenge for wounded vanity, we think no tribunal, with a decent regard to common sense, could allow any one’s character to be.destroyed. Ty such proofs. If such witnesses, under such circumstances, can be relied on as truthful, when they have not even been subjected to cross-examination, and have been allowed to indulge in hearsay and inadmissible statements, it would not be very difficult to satisfy a Court of anything.

¥e are glad to say that no case has yet appeared in our Court like this, either in the wicked absurdity of the cause of action, or in the equally disgraceful character of the testimony which has been galvanized, after this long interval, to maintain it. We trust, for the-honor of humanity, -that it will stand alone. It would not be an edifying spectacle for a Court of justice to allow the witness of twenty years of virtuous fidelity to. be overthrown by such evidence. Nor would it be more defensible to admit even clear proof ■ of misconduct in youth to break up a household where children have been brought up, from infancy to maturity, by a mother whose married life had been blameless. The proceeding has no redeeming feature, and we should feel that we had done less than our duty had we omitted to express our disgust and • abhorrence at it.

The decree below must be affirmed.

Martin and Christiancy J.J. concurred.

Cooley J. did not sit in this case.


text:
    The People, on relation of Michael Sage, v. The Township Board of Springwells.

      Application for laying out a highway. — The Commissioners of Highways have no power to entertain a second application for laying out the .same road within one year from the first, and any proceedings by the Commissioners on a second application, within that period are void.

      Heard October 12.

      Decided October 16.
    Certiorari to tbe township hoard of Springwells.
    The return to the writ showed the following facts:
    On ..the 9th day of September, 1864, application having-been made by seven freeholders of the town of Springwells for a highway in said town, the commissioners of highways proceeded to view the premises described in said application, and ordered and determined' in favor of laying out such highway. From this order Michael Sage, and others, whose property was to be affected by the projected road, appealed to the township board, by whom the order of' the commissioners was reversed.
    Subsequently, on the 81st day of January, 1865, another application by the requisite number of freeholders having been made for the laying out of said highway, the highway commissioners made another order in favor of the same. An appeal ’ was also taken from this order by said Sage, and others, to the township board of Springwells, and the board sustained the order. Certiorari was brought to review this final action of the board.

      JET. M. Gheever, for the relator,
    contended that the highway commissioners had no power to entertain the application, a similar application for the same road having been made within twelve months before. — S. EL., 1861, p. 256, §1.
   Cooley J.:

As tbe record shows that the present proceedings, were commenced within one year from the time when another petition for the same road had been presented and denied, the commissioners -had no power to entertain them, and the proceedings must be reversed. — Laws-of 1861, p. 256, §1.

Martin Cb. J. and Campbell J. concurred.

Christiancy J. did not sit in this case.