author: Bird, J. Brooke, J. Fellows, J. Sharpe, J.

text:
    PEOPLE v. SCHULTZ.
    1. Criminal Law — Conspiracy to Defraud — False Pretenses— Evidence — Sufficiency.
    In a prosecution for conspiracy to defraud the city of Detroit by false pretenses, evidence held, sufficient to take the case to the jury. Brooke, J., dissenting.
    2. Same — Argument op Counsel — Instructions—Failure to Call Co-conspirators.
    Argument of the prosecuting attorney commenting on the failure of defendant to call as witnesses two men who were jointly Indicted with defendant, together with instructions by the trial court that the jury could take into consideration the failure of defendant to call them as witnesses, held, reversible error. Steebe and Bird, JJ., dissenting.
    Exceptions before judgment from the recorder’s court of Detroit; Wilkins (Charles T.), J.
    Submitted January 17, 1919.
    (Docket No. 120.)
    Reargued April 20, 1920.
    Decided June 7, 1920.
    Herman Schultz was convicted of conspiracy.
    Reversed.

      James O. Mur fin and Hinton E. Spalding, for appellant.

      Alex. J. Groesbeek, Attorney General, Charles H. Jasnowski, Prosecuting Attorney, Harry B. Keidan, Assistant Prosecuting Attorney, and George E. Nichols, Special Prosecutor, for the people.
   Bird, J.

(dissenting). An indictment was returned by the grand jury of Wayne county against defendant, G. Lewis Carter and Myron D. White, charging them with having, on the 20th day. of June, 1917, and on divers other days and times between that date and September 1, 1917, at the city of Detroit, unlawfully, falsely, deceitfully and fraudulently combining, conspiring, confederating and agreeing together by divers false pretenses and subtle means and devices to obtain and acquire unto themselves of and from the city of Detroit a sum of money, to wit: $88,000, and to cheat and defraud the city of Detroit thereof. Defendant elected to, and did, have a separate trial, at which he was convicted. The proceedings are before us for review on exceptions before sentence.

In order to avoid repetition, a statement of the case will be made in connection with the assignment that the trial court was in error in refusing to direct a verdict for defendant on the ground that the proofs did not make a case for the jury.

The case made by the people was, in substance, that the mayor, in September, 1914, sent a communication to the common council calling its attention to the work of the international joint commission appointed for the purpose of inquiring into the pollution of the waters of the Great Lakes by sewage. This communication led to the employment by the city of Charles W. Hubbell, an experienced engineer, to make an investigation of the sewer conditions in Detroit. Mr. Hubbell entered upon the work and after several months of investigation made a report of his work to the council with certain recommendations, among which was one advising the purchase of sufficient land for a pumping station on the low lands lying along Connors creek.

Up to July 1, 1917, Hubbell, the engineer, had indicated no particular location on Connors creek which he desired purchased. It appears that he had concluded in his own mind the desirable location but had disclosed it to no one. Soon after July 1st he took the defendant, by reason of his position as chairman of the sewer committee, to the particular site which he had selected, showed it to him and advised the purchase of the same. There was a large sign thereon showing it was for sale by Harry W. Leach, a real estate dealer. Several days later Mr. Hubbell saw the defendant and inquired if any action had been taken towards purchasing the tract and the defendant replied that he had it under consideration. Soon after this inquiry, G. Lewis Carter, a lawyer in whose office defendant had desk room, opened negotiations with Leach for the purchase of the premises. These negotiations resulted in Carter’s getting an option thereon for $59,000. Carter represented to Leach that he was negotiating for a client named White who desired it for manufacturing purposes. Leach requested Carter to go out and examine the tract, but Carter refused, saying he was satisfied with the location, what he was interested in was the price. As soon as Carter obtained the option he interviewed Hubbell, and advised him that he had a client who had a tract along Connors creek which he desired to sell, and inquired if it would be suitable for his purpose, at the same time submitting to him a sketch and description of the property and fixing the price at $98,000. Upon examination of the description by Hubbell he discovered it was the particular property he had selected, and the property which he had shown to Schultz, the defendant.

Following this, and on July 24, 1917, George H. Fenkell, commissioner of public works, sent a communication to the council asking permission to purchase certain lands in the Connors creek district, describing them, for $98,000. This communication was acted upon at once. Defendant, who was alderman and chairman of the sewer committee, offered a resolution authorizing the department of public works to purchase the premises for the sum of $98,000. This resolution was referred' to the sewer committee, of which defendant was chairman. On July 31st the committee reported to the council that it had the resolution under consideration, that it believed the price was reasonable and recommended the purchase of the lands at that price. This recommendation, under the rules of the council, was laid on the table for one week. At the meeting of August 7th defendant moved that the report be taken from the table. This motion prevailed and the report was referred back to the sewer committee. On August 28th the committee again reported the resolution and recommended that the purchase be made for the sum of $98,000. The resolution was then adopted.

On September 4th Alderman Lodge moved a reconsideration of the vote authorizing the purchase of the premises, but this was lost. At this same meeting, a communication was received from the mayor vetoing the resolution authorizing the department of public works to purchase the property, expressing the opinion therein that all real property purchased for the city should be obtained by condemnation proceedings. An attempt was then made to override the mayor’s veto, but the attempt failed and the city attorney was authorized to begin condemnation proceedings to obtain the property.

In explanation of some of the matters stated herein it was shown:

(а) That the communication which Fenkell sent to the council asking authority to purchase the premises for $98,000 was prepared either by defendant or at his office and left at Fenkell’s office for him to sign. Up to this time Fenkell was not aware of the particular tract selected.

(б) That defendant was a real estate dealer and had for some time and up to July 6, 1917, occupied a portion of Carter’s office.

(c) That defendant saw Leach’s sign on the property when Hubbell, the engineer, showed him,the premises, and that both defendant and Carter were well acquainted with Leach.

(d) That Leach would have sold the property to Fenkell for the city for $59,000, the same as he did to Carter.

(e) Testimony was offered tending to show that White was a myth.

As is usual in cases of this character the proofs relied upon to establish the conspiracy were circumstantial. The facts and circumstances shown were ample, if believed, to justify an inference that defendant and Carter were working together in pursuance of a common understanding to purchase the site and resell it to the city at an advanced price and retain the difference for themselves. Of course, it is possible that the several acts of defendant and Carter had no relation to each other, but they are also susceptible of a different inference. Just what inference should be drawn therefrom was a question which, was clearly within the province of the jury. They having reached a conclusion thereon adverse to defendant’s. contention, it must close the inquiry upoiV this phase of the case.

It is further argued that defendant should have had a directed verdict, as a matter of law, because it was not shown that defendant made any false representation of a material fact, or made any agreement to make such representation. We are unwilling to concede that there was no evidence of false pretenses upon the part of the defendant. One may practice false pretenses by act as well as by word. It was said in People v. Clark, 10 Mich. 310, that “it is not essential that the pretenses by which a fraud is accomplished be expressed in words. Falsehood when deliberately acted is the same as spoken falsehood.” To the same effect, see 11 R. C. L. p. 838; 19 Cyc. p. 402.

If the theory of the prosecution be true, defendant acted a lie throughout the entire transaction. He pretended to the council to be acting in the line of his official duty and in the interest of the city which honored him with his trust, whereas he was during all the time acting with his co-conspirators to a common end, to defraud the city of Detroit, and he was using his official cloak to obscure his real purpose. It was the belief among his associate councilmen that he was acting for'and in the best interests of the city and discharging his duties as an honest official that secured for him their support in furtherance of his unlawful scheme. As proof of this, had he been perfectly frank with his colleagues and stated to them what his motives were and what he was trying to do, his resolution to purchase the site would have found no sup-port among them.

The trial court was requested to instruct the jury that:

“There is no evidence in this case that the city was, or could have been, defrauded because all the evidence agrees that the property was fairly and reasonably worth the sum proposed to be paid. Therefore, your verdict must be ‘not guilty.’ ”

This request was refused and instead the following " was given:

“Whether or not any gain was-made by the defendant, any loss by the city, or whether any loss could have been sustained by the city if the agreement or sale had been carried out, is immaterial for the actual value of the property is immaterial. The question is, Did Mr. Schultz know, or have reason to believe, that the property could be obtained for the use of the city for a much less sum than $98,000? If he did, then it was his duty to purchase the property at the best possible price. * * * I instruct you that it was the duty of Mr. Schultz, in the capacity of alderman and chairman of the sewer committee, to protect the interests of the city, and if he fraudulently and unlawfully entered into any arrangement with Carter whereby through his knowledge as an officer of the city and through, his power in that capacity, an attempt was made to cheat or defraud the city by paying for the site in question more than was necessary to pay for it, and more than he knew was necessary to pay for it, then he may be found guilty of the conspiracy as charged in this indictment.”

The charge of the court upon the question is a correct exposition of the law as applied to the facts of this case and is at the same time a complete answer to defendant’s contention as embodied in his request.

Because the city charter makes it impossible to enter into a valid contract of this character, without the approval of the board of estimates, and because its approval was never given thereto, counsel argue:

“As it was legally impossible to have made this purchase, how can it be said that a man may be indicted and tried for conspiracy to do that which admittedly could not be done?”

Had defendant been indicted for having defrauded the city out of $39,000, by means of false pretenses, this contention would have some force. When, however, he is indicted for conspiring with others to defraud the city out of $39,000, by means of false pretenses, it is immaterial whether he succeeds in doing so or whether it would have been possible to do so. In order to justify a conviction, it is not necessary to show that the conspiracy was accomplished. People v. Clark, 10 Mich. 310; People v. Gilman, 121 Mich. 187 (46 L. R. A. 218).

In the latter case it was observed:

“It is said that the information charged a conspiracy to defraud one who could not be defrauded, because he knew the representations to be false. The conspiracy is complete when it is formed and the guilt or innocence of the conspirators does not depend upon the success of the enterprise.”

And it was held in Ochs v. People, 124 Ill. 399 (16 N. E. 662), that it is immaterial that the accomplishment of the object of the conspiracy was impossible. 8 Cyc. p. 626. This contention must be overruled as being without merit.

Complaint is made that the prosecutor violated section 12552, 3 Comp. Laws 1915, when he addressed the jury in his closing argument, as follows:

“But it is up to you, as twelve honest, intelligent citizens, in view of these undisputed facts, and in view of this, that no man has raised his voice to explain away these mysteries that could have been explained, if they were honest. My friend says that he would have a fat chance, with White under indictment, with Carter under indictment, of getting anything out of them. I stated to you a minute ago that every man was presumed to be innocent until he was proven guilty; and if that presumption amounts to one living thing in this country, it amounts to this, that no innocent man need be afraid to go before the court and tell the truth. Isn’t that so?
“Mr. Mur fin: An exception.
“Mr. Nichols: No innocent man — I think I am perfectly justified in view of the statement that he would have had a fat chance, and I make no reference to anyone but Carter.
“The Court: Your reference was to Carter and White?
“Mr. Nichols: My reference was to Carter and this so-called White whom my friend said he could not get anything out of because they were under indictment. And I. say, under indictment or not, if Mr. White, in a legitimate way had ascertained or learned of this property, and that the city wanted it, and that he learned of it and actually needed it for manufacturing purposes, no indictment should stand in the way of his coming here and telling the truth.”

The prosecutor insists that the argument did not come within the terms of the statute, and further, that he was simply replying to an argument of defendant’s counsel who preceded him.

The prosecutor’s argument appears on its face to have been prompted by the argument of defendant’s counsel. When counsel for defendant undertook to, and did, explain to the jury why the codefendants were not sworn, and why defendant was deprived of the benefit of their testimony, he thereby opened the door to the prosecutor to make comments on the same subject. Counsel for defendant will not be permitted to lead the prosecutor into forbidden zones of argument and then be heard to complain because he follows. People v. Oblaser, 104 Mich. 579; People v. Smith, 106 Mich. 431; People v. Savant, 112 Mich. 297; People v. Parmalee, 112 Mich. 291; People v. Singer, 174 Mich. 361.

But aside from this we are not impressed that the foregoing statute was violated. As soon as objection was raised the prosecutor stated that his argument had no reference to defendant, but was aimed at Carter and White. This then raises the question whether the statute was violated by the prosecutor, in making reference to the fact that the codefendants did not testify in the case.

The statute involved provides:

“* * * That a defendant in any criminal case or proceedings shall only at his own request be deemed a competent witness, and his neglect to testify shall not create any presumption against him, nor shall the court permit any reference or comment to be made to or upon such neglect.” 3 Comp. Laws 1915, § 12552.

The same or similar statutory provisions are in force in many of the States and the construction placed thereon will be helpful in construing our own with reference to this question.

It is said in 12 Cyc. p. 578, that:

“While many cases hold that it is not error for the prosecuting attorney to comment on the failure of the accused to produce certain witnesses, where such witnesses, if produced, would be competent to testify, no comment should be allowed on the absence of a witness not shown to be competent.”

In support of this the following cases are cited: State v. Griswold, 73 Conn. 95 (46 Atl. 829) ; Frazier v. State, 135 Ind. 38 (34 N. E. 817); State v. Seely, 92 Iowa, 488 (61 N. W. 184); State v. Johnston, 88 N. C. 623; Wilkerson v. State (Tex. Crim. App.), 57 S. W. 956; Bruce v. State (Tex. Crim. App.), 53 S. W. 867; People v. McGrath, 5 Utah, 525 (17 Pac. 116); Halleck v. State, 65 Wis. 147 (26 N. W. 572).

Corpus Juris (Vol. 16, p. 906) has this to say on the question:

“The prosecuting attorney may refer to or comment upon the failure of a codefendant to testify as a witness, although such comment is improper if accused has offered his codefendant as a witness and the latter has availed himself of his privilege and declined to testify,” — citing in support thereof: People v. Ruef, 14 Cal. App. 576 (114 Pac. 48); People v. Ye Foo, 4 Cal. App. 730 (89 Pac. 450) ; State v. Madden, 170 Ia. 230 (148 N. W. 995) ; McElwain v. Commonwealth, 146 Ky. 104 (142 S. W. 234); Davis v. Commonwealth, (Ky), 121 S. W. 429; State v. Mathews, 98 Mo. 125 (10 S. W. 144, 11 S. W. 1135).

In McElwain v. Commonwealth, supra, it is held:

A statutory prohibition against comment on failure of accused to testify applies only to defendant on trial, and does not prevent the attorney for the prosecution from commenting on the failure of a codefendant who had demanded a separate trial and was - not on trial to testify.

In State v. Madden, supra, which was a prosecution for conspiracy, it was said:

“The county attorney, in argument, referred to the fact that James Saling, jointly indicted with defendant on trial, did not become a witness in the case. This was objected to, and the court held that section 5484 of the code applies only to the defendant then oh trial. It seems to have been so decided by this court. State v. Hogan, 115 Iowa, 455, 460 (88 N. W. 1074).”

The question has also received the attention of this court. In People v. McGarry, 136 Mich. 316, McGarry was separately indicted for participating in a fraudulent scheme with others who were also under indictment. In addressing the jury the prosecutor said:

“ ‘Now, gentlemen, there is Mr. Cummings, there is Mr. Taylor. If Cameron and Garmon don’t tell the truth about that interview, why didn’t they bring Cummings and Taylor to testify about it?’
“And again Mr. Ward said:
“ ‘Now, gentlemen of the jury, you can see why it is these men are not called. Even the deposition of Mr. Gates is not here any more.’ ”

This court, in holding the comments were not error, said:

“There are many cases which justify comment upon the failure of a party to produce particular witnesses, and the rule extends to criminal cases. 3 Rice on Evidence, 29; State v. Ward, 61 Vt. 153 (17 Atl. 483). It is not an unqualified right, and depends upon the circumstances of the case. We think it applies to a deposition taken by the party and not used, and to accomplices and other witnesses within their control, or with whom they are, or have been, closely associated, especially where such witnesses are in a position to speak on matters damaging to such party, already in evidence.”

The question was before the court in People v. O’Brien, 68 Mich. 468. In that case the prosecuting attorney commented on the fact that defendant did not produce his father who might have contradicted certain evidence which was admitted. This court held that it was error but put it upon the ground that the testimony to which the prosecutor referred was erroneously admitted.

The question, was referred to in People v. Lay, 193 Mich. 17, 32 (L. R. A. 1917B, 608), where Lay, Jr., Lay, Sr., and one Palmer had been indicted for embezzlement. Lay, Jr., was on trial. The other defendants were called but refused to testify. The argument of the prosecuting attorney commented on this as well as making certain references to the failure of the defendant to testify. This was held error. In holding it as such, Mr. Justice Brooke said:

“In all these cases remarks of the prosecuting attorney with reference to the failure of the accused to take the stand were held to constitute reversible error. In the case at bar the record discloses no remarks on the part of counsel for respondent, which would tend to excuse or justify the criticism of the prosecuting attorney. The statute does not prohibit reference to the fact that witnesses other than the accused have failed to testify, though in our opinion such reference might well have been omitted.”

But it is argued that the prosecution would have had no right to call upon either Carter or White to be sworn, and put them upon their refusal, and the case of People v. Van Alstine, 57 Mich. 69, is cited in support thereof. The real question determined in that case was that “where parties .are jointly indicted or informed against, and one chooses a separate trial, he cannot force a co-respondent to testify without his consent or request.” This deals with his qualification and not with his privilege, which was afterwards commented upon. What was said therein on the question of privilege was afterwards overruled by the McGarry Case, supra, but if there be any doubt as to this the doubts must be dispelled by the more recent case of People v. Maloy, 204 Mich. 524, wherein the precise question was determined adversely to defendant’s contention. In the latter case the prosecutor called a co-defendant who was not upon trial, and put her upon her refusal. It was complained of by defendant in the following language:

“Why did the prosecutor indorse upon the information the name of Jessie Emmons, and call her as a witness on behalf of the people? She was complained against with the respondent, although they were informed against singly. He knew that she would not take the stand and give testimony favorable to the people. * * * It was done so questions might be asked of her before the jury and compel her, or her counsel, to make a claim of privilege. This would, and did, prejudice the jury.”

This court held that the conduct of the prosecuting attorney complained of in this respect was not reversible error. Grimm v. People, 14 Mich. 300, the other case relied upon, has no application because it was written before the amendment to the statute in 1881. Our conclusion is that the comments of the prosecutor complained of 'are not within the statute, and that the statute applies only to the defendant, or defendants, on trial.

The trial court, while instructing the jury, made the following reference to the absence of the eodef endants:

“You are simply to consider the facts and consider the results of these facts as you arrive at them yourselves. You can take into consideration, all the facts, all the evidence, as for instance, the failure of the principals, Carter and White, if you consider that as material, to be here in this case.” .

Under this instruction the jury were at liberty to draw unfavorable inferences against either the prosecution or the defendant for the absence of Carter and White. The first duty of the jury under the instruction was to determine whether the failure of Carter and White to be in attendance at the trial was material; if they concluded it was material, they were at liberty to draw unfavorable inferences against the prosecution for its failure to produce them, if they were within the jurisdiction of the court. State v. Smallwood, 75 N. C. 104. On the other hand, if the jury believed Carter and White could have explained the suspicious circumstances with which defendant was confronted at the trial, they had a right to consider his failure to produce them, if within reach, in connection with the other testimony in the case, in determining the question of his guilt. This conclusion is supported by many text books and reported cases. People v. Hovey, 92 N. Y. 554; Gordon v. State, 33 N. Y. 501; Commonwealth v. McMahon, 145 Pa. St. 413 (22 Atl. 971); United States v. Schindler, 18 Blatchford, 227;. Taylor v. Commonwealth, 90 Va. 109 (17 S. E. 812); Hawaii v. Anderson, 10 Hawaii, 252; State v. Rosier, 55 Iowa, 517 (8 N. W. 345); State v. Cousins, 58 Iowa, 250 (12 N. W. 281); People v. Dyle, 21 N. Y. 578; State v. McAllister, 24 Me. 139.

This rule was applied in State v. Greve, 17 Kan. 458. The defendant was informed against for grand larceny. The testimony tending to show his guilt was circumstantial. The trial court charged the jury as follows:

“The jury should not find the defendant guilty because he may have no evidence to show his whereabouts at the time the offense charged is alleged to have been committed, nor to show where or from whom he received any of the money spoken of by witnesses. Nor will they presume that his character is bad, simply because he has offered no testimony of his good character. But where evidence which would rebut or explain certain facts and circumstances of a grave and suspicious nature, is peculiarly within the defendant’s knowledge and reach, and he makes no effort to procure that testimony, the jury may very properly take such fact into consideration in determining the prisoner’s guilt or innocence. But no inference of guilt is to be drawn from the omission of the defendant and his wife to testify.”

Mr. Justice Brewer, in speaking for the court, said:

“The special objection of appellant is, of course, to the next to the last sentence. It seems to us that that clause is only a recognition of a well understood principle of human action. The instinct of self-preservation impels one in peril of the penitentiary to produce whatever testimony he may have to deliver him from such peril. Every man will do what he can to shield himself from the disgrace of a conviction of crime, and the burden of punishment. We all know this. We all expect it. Whenever, therefore, a fact is shown which tends to prove crime upon a defendant, and any explanation of such fact is in the nature of the case peculiarly within his knowledge and reach, a failure to offer an explanation must tend to create a belief that none exists. Will not a man, who can, explain that which unexplained will stamp him a criminal and consign him to the felon’s cell? The criminal law furnishes in its rules more than one illustration of this principle. The possession of recently stolen property casts upon the possessor the duty of explaining ■such possession. Why? Because the fact and manner of acquiring that possession are peculiarly within his knowledge and reach, and the instinct of self-preservation will compel him to give an explanation thereof consistent with his innocence, if any such explanation exists.”

The rule was stated in Doty v. State, 7 Blackf. (Ind.) 427. In that case the trial court charged the jury:

“That if the defendant has omitted to avail himself of evidence within his reach, by which he might have repelled that which was offered to his prejudice, his omission to do so supplies a strong presumption that the charge is well founded.”

The appellate court held this was error because it made the presumption one of law rather than one of fact. After doing so, the rule we are considering was very clearly stated by the court:

“It is undoubtedly true, that when circumstances are proved which induce a strong suspicion of the prisoner’s guilt, but which, if untrue, it is manifest he can disprove, or, if reconcilable with his innocence, he can explain, and he fails to disprove or explain them, the jury are authorized to draw from such failure a forceable inference against him. 2 Starkie on Evidence, 937. But this inference is merely a presumption of fact, and does not constitute a presumption of law to be given by the court to the jury as a fixed and binding rule of jurisprudence. The failure is a circumstance which, like any other circumstantial evidence, the jury are to weigh, and of the weight and tendency of which they are the sole judges.”

These cases are illustrative of the rule and show its application. They'are supported by all of the cases cited. It will be noted that the instruction complained of is clearly within this rule. The recorder mentioned neither of the parties but left the jury to determine whether any inferences were to be drawn, and, if so, against whom. In view of the fact that both counsel had argued the question to the jury, each side drawing different inferences, it was fitting that the court should refer to it as he did, and no error was committed in so doing.

We are impressed from the whole record that the defendant had a fair and impartial trial. The charge of the court was fair, able and instructive, and we are of the opinion that no errors are alleged which call for a reversal of the case.

The judgment of conviction should be affirmed.

Steere, J., concurred with Bird, J.

Brooke, J.

I do not agree with the conclusions reached by my Brother Bird in this case. The indictment charges a conspiracy to defraud the city of Detroit of a sum of money by “false pretenses, subtle means and devices.” It is claimed for defendant that there was no evidence that any false pretenses were used or agreed to be used and that, therefore, a verdict should have been directed for the defendant.

The first question, then, for determination, is whether the use of a false pretense is an essential element of the crime, conspiracy to perpetrate which the defendant is charged. The indictment is for a criminal conspiracy. A criminal conspiracy (other than a conspiracy to accomplish a lawful purpose by unlawful means) is a conspiracy to commit any act which either at common law or by statute is a crime. Under our statute, which is declaratory of the common law (3 Comp. Laws 1915, § 15320), it is made a crime to defraud another of his property by use of any of the means which the statute specifies. It will be noted that the distinctive characteristic of all those means is that they involve an actual misrepresentation of fact. It is not a crime to defraud another of his property, if the fraud be accomplished in any way not mentioned in the statute — that is, by any method that does not involve a misrepresentation of fact. Such a misrepresentation is a false pretense. As the use of a false pretense is of the essence of the consummated crime, an agreement to employ some false pretense in order to accomplish that crime is an essential element in a criminal conspiracy to defraud by false pretenses. The use of the words “subtle means and devices” in the indictment cannot enlarge the statute. They are mere surplusage. These principles are clearly enunciated in the following cases: Alderman v. People, 4 Mich. 414; People v. Barkelow, 37 Mich. 455., It is, therefore, necessary not only to charge (in an indictment for defrauding by false pretenses) the use of false pretenses, but to introduce proof of such use; and when the charge is one of conspiracy to defraud by false pretenses, there must be proof of an agreement to defraud by such use of false pretenses.

It is not claimed that there is any direct evidence of an agreement to use false pretenses in the present case, and, unless there is some evidence that some false pretense was actually made, from which an antecedent agreement might fairly be inferred, a verdict should have been directed for defendant. There is no evidence that there was made to any of the officers or agents of the city of Detroit any misrepresentation of the facts calculated to effect or promote the sale to the city of the property which, according to the theory of the people’s case, defendant and his associates had schemed to sell to the city. In his brief upon rehearing, the special prosecutor is at much pains to point out what he conceives to be evidence of conduct on the part of the 'defendant which indicates his use of false pretenses, by act, if not by word; and this view seems to have found expression in the opinion of my Brother Bird. It is, I think, extremely doubtful whether the acts relied upon are such as could fairly be said to support the inference indulged in; but whether this be true' or not, it does not at all meet the point in issue, for the court charged the jury:

“It is not necessary in considering this question of conspiracy charged in the indictment in this case to find that any false pretenses were actually involved. In other words, that the defendant or any alleged co-conspirator made a false representation of a material fact to the city of Detroit or to someone in its behalf, or that the said city of Detroit or someone in its behalf relied upon these so-called false pretenses, to the damage of it, the said city.”

This instruction was, I think, erroneous under the authorities cited and cannot be’ regarded as without prejudice, even if it be conceded that the proofs adduced were such as to warrant a jury in finding that defendant had been guilty of acts indicating use of false pretenses. No agreement to use such pretenses was shown and the jury were instructed that the actual use of such pretenses was unnecessary to support conviction.

The prosecuting attorney, in his argument to the jury, commented on the failure of the defense to call two men who were jointly indicted with the defendant as co-conspirators, and the court instructed the jury that they could take into'Consideration the failure of the defendant to call these men as witnesses. I am of the opinion that this was reversible error under the authority of Grimm v. People, 14 Mich. 300. The holding in this case is rested on sound reason, because the defendant on trial has no right to call as witnesses those who are jointly indicted with him. It is the claim of the prosecution that this holding was modified by the decision in the case of People v. McGarry, 136 Mich. 316, where it was held that the prosecutor might properly comment upon the fact that the defendant failed to call accomplices to testify in his behalf. It is to be noted, however, that in the MeGarry Case, the men whom the defendant had not called as witnesses, and upon whose absence the prosecutor commented, were not indicted with him. It is, therefore, not in point in the case at bar.

The verdict should be set aside and a new trial ordered.

Fellows, J.

I agree with Justice Bird that the trial judge correctly overruled defendant’s motion for a directed verdict. I agree with Justice Brooke that the argument of the prosecutor, taken in connection with the charge of the court on the subject given at the request of the prosecution, constitutes reversible error.

Moore, C. J., and Stone and Clark, JJ., concurred with Fellows, J.

Sharpe, J.

I concur in reversing this case for the error pointed out by Mr. Justice Fellows.

I am unable to agree with Mr. Justice Brooke as to there being reversible error in the charge of the court relative^ to false pretenses. Immediately following the- language quoted by him, the trial judge said to the jury:

“Most of this is absolutely immaterial, so far as the charge here is concerned. This charge is, not that these things were actually accomplished, but simply that the defendant joined in a conspiracy with the others named to accomplish them, and that one or more of them did an overt act in the attempt to carry out the understanding, in this instance, to have the city purchase the property at a price higher than that at which the defendant at the bar knew that it could be purchased for, and so knowingly used his official position in agreement with the others to attempt illegal gain. It makes no difference that such gain was not made. The conspiracy is complete if the agreement to gain by fraud was made, and one of the parties took some step, some act to carry out that agreement. * * *
“After all, gentlemen, since I have charged you at some length, it seems to me the question for you is really a simple one. The indictment, and also the quotations from legal authorities in technical phraseology may be confusing; but it seems to me that, devoid of all technicalities, the question for determination is simply, Did the defendant at the bar combine with one Carter and any one else, to use his knowledge of the desire of the authorities of Detroit to acquire the site on Connors creek, the influence of his position to forward the sale of the site desired, and did he and Carter agree together to push through that sale, if possible, at a figure more than that at which the defendant Schultz knew that it could be acquired at, and did either party to the conspiracy, if there was such a conspiracy, and if you are satisfied of its existence beyond a reasonable doubt, do anything to forward that scheme, if there was such a scheme?”

In view of these instructions, and of the charge taken as a whole, Í am convinced that the jury were in no way misled by the instruction complained of into believing that it was not necessary to find the defendant had either by act, word or deed used false pretenses in an effort to bring about the sale of such property. «'


source: Caselaw Access Project

author: Sharpe, J.

license: Public Domain

text:
    JAWORSKI v. DETROIT EDISON CO.
    1. Negligence — Anticipating Subsequent Occurrence — Proximate Cause.
    If a person does an act and knows, or by tbe exercise of reasonable foresight should have known, that in the event of a subsequent occurrence which, is not unlikely to happen, injury may result from his act, and such subsequent occurrence does happen and injury does result, the act committed is negligent, and will' be deemed to be the proximate cause of the injury.
    2. Same — Piling Poles in a Way Attractive to Children— Death — Liability—Question for Jury.
    In an action for the death of plaintiff’s decedent, a boy 8 years of age, where defendant’s servants piled heavy poles in the street between the sidewalk and the curb, in a thickly-populated neighborhood, in such a way that the top one was so nearly evenly balanced that it teetered, and, while children were playing thereon, became displaced and rolled upon and injured decedent, who was standing in the street watching them, the question as to whether defendant was negligent and should have anticipated that injury might result, was properly submitted to the jury.
    3. Same — Trial — Evidence of Negligence on Other Grounds Than Submitted.
    Any error in the admission in evidence of a city ordinance prohibiting the deposit of any material in a public street without a permit from the board of public works and a statement by the trial judge of plaintiff’s claim in relation thereto, held, harmless, where the court submitted the case to the jury upon the one ground of negligence, viz., whether the poles were negligently piled and whether defendant should have anticipated that what did happen was likely to happen.
    4. Same.
    In personal injury cases it is not error to admit proof upon several grounds of negligence, if alleged in the declaration, and at the close narrow the issue to one ground only.
    On the doctrine of attractive nuisance generally, see note in 19 L. R. A. (N. S.) 1094.
    On the doctrine of attractive nuisance as applied to telegraph poles, see note in L. R. A. 1915D, 1G8.

      Error to Wayne; Goff (John H.), J.
    Submitted January 27, 1920.
    (Docket No. 87.)
    Decided June 7, 1920.
    Case by Agnes Jaworski, administratrix of the estate of George Jaworski, deceased, against the Detroit Edison Company for the negligent killing of plaintiff’s decedent. Judgment for plaintiff. Defendant brings error.
    Affirmed.

      Oxtoby & Wilkinson, for appellant.

      Dohcmy & Dohany, for appellee.
   Sharpe, J.

Agnes Jaworski, as administratrix of her son’s estate, recovered judgment in the Wayne circuit court against defendant for its negligence in causing the boy’s death. Defendant is a public service corporation engaged in the business of furnishing electric light and power to the people of Detroit and vicinity. It has a franchise from the city of Detroit, which permits it to erect poles and string wires thereon to convey its product. Being desirous of erecting some new poles in the vicinity of Orleans street and Garfield avenue, it deposited three poles side by side on the grass plat between the sidewalk and curb on the west side of Orleans street. Three days later it placed another pole on top of the other three. The top pole was curved slightly near the center and this furnished a bearing which so nearly balanced the pole, as it lay on the others, that it could be, with ease, swung in either direction. Within a few hours after the fourth pole had been so placed several young boys whose ages ranged from 12 years down, and who resided in the neighborhood, began to swing it and use it as a teeter. About this time plaintiff’s intestate, who was a lad of 8 years, was passing this point on his way to do an errand for his mother. Seeing the boys playing with, the poles he halted for a moment in the street to watch them. While standing there the boys lost control of the pole and it rolled into the street and against and on to the deceased, and injured him so seriously that he survived less than an hour thereafter.

While several grounds of negligence were stated in the declaration, the ones principally relied upon by plaintiff on the trial were:

(a) The-piling of the poles in such a negligent manner that they became a nuisance and attractive to children.

(b) The placing of the poles in the street in violation of the city ordinance.

Testimony was admitted covering these and other allegations of negligence, but the court eliminated all the grounds but one when he instructed the jury, and that was whether the poles were piled in such a negligent manner as to be attractive to children. Defendant, at the close of the testimony, requested a directed verdict on the ground that there was no negligence of defendant shown which was the proximate cause of the injuries. The court denied the motion and defendant assigns error thereon.

The record shows that Orleans street, in the vicinity where the poles were deposited, is densely populated, and that many children reside in the neighborhood. It appears to be conceded that the poles were upwards of 40 feet long, and weighed between 600 and 700 pounds. It appears to be further conceded that the poles were placed there by the agents and servants of defendant. The question, therefore, arises under plaintiff’s contention, whether they were so carelessly and negligently piled as to be attractive to children, and whether a reasonably prudent person would have anticipated that children in the vicinity would be likely to play with them and might be injured in so doing.

As illustrating the principle of liability contended for by plaintiff, it was said in Tozer v. Railroad Co., 195 Mich. 666, that:

“If a man does an act and he knows, or by the exercise of reasonable foresight should have' known, that in the event of a subsequent occurrence, which is not unlikely to happen, injury may result from his act, and such subsequent occurrence does happen and injury does result, the act committed is negligent, and will be deemed to be the proximate cause of the injury.”

The case of Jensen v. The Joseph B. Thomas, 81 Fed. 578, is cited with approval in the Tozer Case, and the following statement of the case made:

“The plaintiff was at work in the hold of the vessel. The hatch covers were piled up by the hatchway, under which the plaintiff was at work. A keg was placed upon the covers and this keg was precipitated upon the plaintiff by reason of some person stepping upon the covers. Held, that the defendant was liable.”

In 1 Thompson on Negligence (2d Ed.), § 68, the rule is stated in this wise:

“Where the injury is the combined result of the negligence of defendant, and an accident for which neither plaintiff nor defendant is responsible, the defendant must pay damages, unless the injury would have happened if he had not been negligent.”

The trial court submitted the case to the jury on the principle of these authorities, and in so doing said in part:

“If you find from the evidence that, on the afternoon of April 13, 1916, the defendant’s employees placed said pole which injured the intestate, in such a position, on top of the other poles, that the same was nearly evenly balanced, and that the same could be easily displaced by children at play, and that this was a thickly-populated neighborhood; and further find that, owing to the manner in which said poles were piled, they were very attractive to children, and that, owing to the place and manner in which said poles were piled, said children were attracted to said pile of poles, and were playing on and about the same, thereby causing the pole in question to roll outward to and against plaintiff’s intestate, and eaused injuries which resulted in his death; and further find that the defendant was guilty of negligence in placing the poles as above described; and further find that plaintiff’s intestate was free from contributory negligence ; then the defendant is liable therefor.”

We think this was the proper application of the foregoing rule to the' facts as they appear in the record. It is, we think, common knowledge that almost any contrivance which may be used by young children, as a whirligig or teeter is attractive to them. The record shows that in the condition in which the top pole was left, resting on the others, it could be utilized for either purpose. It is quite evident from the record that defendant itself regarded this as an improper manner in which to pile them, as it had promulgated a rule prohibiting it. Testifying on this subject, Mr. Widman, defendant’s superintendent, said:

“I promulgated rules with regard to how poles should be laid and where they should be laid. * * * And in those rules I specified that if poles should be laid on a highway in a thickly populated district, that they should not be piled one on top-of another so that the uppermost would balance. * * * I did this so that they would be in no danger of being disturbed or pulled out, so that there would be no danger of the topmost pole rolling out into the yard and injuring people. That was the danger I had in mind guarding against when I established that rule.”

We think the trial court was fully justified in refusing to direct a verdict in defendant’s behalf. The testimony clearly raised an issue of fact as to defendant’s negligence.

The principle upon which the case was given to the jury is involved in a class of Michigan cases represented by Powers v. Harlow, 53 Mich. 507 (51 Am. Rep. 154). They have not been cited because in nearly all of them the element of trespass was involved. That element is not present in the instant case. Plaintiff’s intestate was in the street, where he had a right to be, and no claim is made that he was meddling in any manner with the poles. The case more nearly resembles Kruis v. Railway Co., 190 Mich. 105.

Error is assigned because the trial court admitted in evidence an ordinance of the city prohibiting the deposit of any stone, timber, lumber, planks, boards, bricks or other material in the public street except under permission from the board of public works. Counsel objected to its admission and after-wards moved to strike it out, claiming that it was immaterial because it appeared that defendant had a franchise permitting it to erect poles and wires, and that this right would carry with it the further right, to deposit them in the street for a reasonable time before setting them. Counsel raise this question in various ways and devote much of their brief in arguing its inadmissibility.

We are not impressed with the seriousness of this complaint, by reason of the fact that the trial court excluded this ground of negligence, when he submitted the case to the jury. It is true, as counsel suggest, that in stating the several claims of the plaintiff to the jury,' he told them that plaintiff claimed that “defendant knew, or should have known, that the placing of said poles at the point aforesaid was in violation of the ordinances of the city of Detroit”; but after stating the claim no further reference to it was made , in the charge. Following this the trial court instructed the jury precisely what they must find in order to reach the conclusion that defendant was guilty of negligence. In fact, he submitted' the case upon the one ground of negligence, namely^ whether the poles were negligently piled, and whether defendant, when it so piled them, should have anticipated that what subsequently did occur would be likely to occur. The charge in its entirety made it very clear to the jury that a recovery could be had only upon one ground, and that ground was made plain to them. In view of this we are unable to 'see how the admission of the ordinance was harmful to defendant, even if it be conceded that it was not admissible. It is not uncommon, in personal injury cases, to admit proof upon several grounds of negligence, if alleged in the declaration, and at the close narrow the issue to one ground only, as was done here. See Warren v. Porter, 144 Mich. 699; Lepara v. Railroad Co., 166 Mich. 373 (40 L. R. A. [N. S.] 1105).

There are other errors alleged but we have considered them and are not of the opinion that there is anything in them which should work a reversal of the case.

The judgment of the trial court is affirmed.

Moore, C. J., and Steere, Brooke, Fellows, Stone, and Clark, JJ., concurred. Bird, J., did not sit.


author: Bird, J.

text:
    CLARK v. BECKENSTEIN.
    1. Default — Setting Aside — Condition Imposed — Modification.
    The requirement that appellant file a bond for the payment of any. amount found due to his codefendant as a condition for setting aside his default, where it appears that he refrained from making a defense because he believed it was understood with plaintiffs that no decree would be taken against him, held, too onerous if he is entitled to have his default set aside, and the condition will be modified, on appeal, to filing a bond for the payment of any costs which may finally be adjudged against him.
    2. Appeal and Error — Setting Aside Default — Review Whole Controversy.
    Where appellant’s default has been set aside, in view of the fact that he is to make a defense, the Supreme Court will not review the case until the whole controversy is before it.
    Appeal from Wayne; Hunt (Ormond F.), J.
    Submitted January 21, 1920.
    (Docket No. 26.)
    Decided June 7, 1920.
    Bill by D. Adelbert Clark and another against Joseph B. Beckenstein and Walter H. Clark to enjoin summary proceedings before a commissioner, and for an accounting. From the decree rendered, plaintiff and defendant Clark appeal.
    Reversed, and remanded.

      Frank A. Stivers (John R. Rood, of counsel), for plaintiffs.

      Baubie & Baubie, for defendant Clark.

      William Henry Gallagher, for defendant Beckenstein.
   Bird, J.

In March, 1918, plaintiffs were the owners in fee of what is known as the Avery Park subdivision to the village of Wayne. On March 28, 1918, they made a contract with defendant Clark to construct a sewer and water system therein for a consideration of $8,800; which was evidenced by four promissory notes, the first one of which was for $2,800, payable ■on September 1, 1918. To further secure the payment of said consideration they conveyed, by warranty deed, 90 lots in said subdivision, for an expressed consideration of one dollar, and took back from Clark a land contract in which he agreed to reconvey to plaintiffs the lots upon payment of the notes and interest. The deed was afterward recorded but the contract was not. At that time, or soon thereafter, an additional agreement was executed in which defendant Clark agreed to reconvey said lots if he failed to complete his contract, upon being paid for the work done, and to release lots sold by plaintiffs on the basis of $125 each. It was also agreed therein to permit plaintiffs to mortgage said lots in a sum not to exceed $11,000, for the purpose of raising funds to finance the subdivision work. Soon after the execution of these agreements defendant Clark began the work under his contract and did considerable work thereon, but did not complete it.

In August, 1918, defendant Beckenstein held a mortgage against other property which Clark owned, and for the purpose of releasing it defendant Clark conveyed to Beckenstein, by warranty deed, without the knowledge or consent of plaintiffs, the 90 lots, and in addition made a cash payment of $6,375.12. About a week thereafter Beckenstein notified plaintiffs that he had purchased the lots from Clark. Subsequently, and after the payment of the first note was in default, he served notice of forfeiture on plaintiffs and attempted to get possession of the lots by proceedings before a circuit court commissioner. At this juncture qf affairs plaintiffs filed this bill setting out the history of the transactions and prayed for an injunction to restrain the proceedings before the commissioner, for an accounting and determination of how much, if anything, was owing to defendant Clark on the sewer contract, and for permission to redeem if anything was found due, and for a reconveyance of the lots. Both Clark and Beckenstein were made defendants. Clark made no appearance. Beckenstein appeared and answered, claiming to be a purchaser in good faith of the lots. The issue was joined between plaintiffs and Beckenstein and'the matter went to a hearing. The chancellor found that Beckenstein was a bona, fide purchaser of the ■ lots and ordered a reconveyance thereof to plaintiffs upon condition that they pay Beckenstein what was actually due him, which was the sum of $6,000 and interest since February 28, 1918. In addition to this relief the chancellor gave the plaintiffs relief against Clark for whatever sum they might pay Beckenstein. Beckenstein was given costs against plaintiffs and plaintiffs were given costs against Clark.

After defendant Clark discovered that relief had been granted against him he petitioned the court to open his default and give him an opportunity to defend, at the same time tendering an answer accompanied with affidavits, for the purpose of excusing his default. His claim is, in substance, that he refrained from making a defense, on the promise of plaintiffs that they would ask for no relief against him. After several hearings and much controversy the chancellor made an order setting aside Clark’s default on the condition that he pay, or file a bond to pay, the amount adjudged to be due Beckenstein. The plaintiffs have appealed from the decree and Clark has appealed from the order setting aside the default.

It is not our purpose to enter into a discussion of the questions of veracity between counsel, nor of their respective claims, further than to say that we are convinced from the entire record that Clark refrained from making a defense, believing it was understood between himself and plaintiffs, and their respective counsel, that no decree would be taken against him. We are impressed that if defendant Clark was entitled to have his default set aside, the condition imposed by the court was too onerous. See City of Detroit v. Wayne Circuit Judge, 112 Mich. 317; Beecher v. Wayne Circuit Judges, 70 Mich. 363. We are also impressed that if defendant Clark is to be permitted to make a defense we ought not to review plaintiff’s appeal until the whole controversy is before us. In view of these impressions we have concluded to set aside that part of the order imposing the condition of opening the default on condition that he file with the trial court a bond conditioned to pay any costs which may be finally adjudged against him in the litigation, and to order the record remanded to the trial court for such additional testimony as the parties may desire to offer, subject to the rules and practice of the court. The question of costs of this proceeding will be reserved until the final hearing.

Moore, C. J., and Steere, Brooke, Fellows, Stone, Clark, and Sharpe, JJ., concurred.


author: Fellows, J.

text:
    HARRINGTON v. INTER-STATE BUSINESS MEN’S ACCIDENT ASS’N.
    1. Contracts — Construction—Unambiguous Contract Not Open to Construction.
    Contracts which are clear and unambiguous in their terms ' are not open to construction by the courts, but it is the duty of the latter to enforce them as made.
    2. Insurance — Accident Insurance — Unambiguous Poiicy Not Open to Construction.
    A provision in an accident policy limiting the liability of the insurer to $500 if the loss be caused by “asphyxiation by any hind of gas,” held, to be clear and unequivocal, and not open to the construction that the word “gas" as commonly understood meant illuminating and fuel gas and should be so limited in the construction of the policy.

      On liability of insurance company for death of insured from asphyxiation, see notes in 30 L. R. A. 212, 2 L. R. A. (N. S.) 168 and L. R. A. 1917D, 740.

      3. Same — Evidence—Admissibility.
    Evidence tending to show that insured was asphyxiated by gases arising from the burning of material in a theatre building, in which he lost his life, held, admissible.
    4. Appeal and Error — Entering Judgment on Admissions.
    This court will not enter a judgment for $500 and interest, on the statement of the trial judge that it was admitted that deceased lost his life through suffocation by gas from an accidental fire, where it does not appear whether this admission was made by plaintiff, defendant, or both, but will send the case back for new trial, although if such admission was made on behalf of plaintiff it would be binding on another trial.
    Error to Houghton; O’Brien (Patrick H.), J.
    Submitted April 9, 1920.
    (Docket No. 40.)
    Decided June 7, 1920.
    Assumpsit by Daniel C. Harrington, administrator of the estate of John C. Vogel, deceased, against the Inter-State Business Men’s Accident Association on a policy of insurance. Judgment for plaintiff on a directed verdict. Defendant brings error.
    Reversed.

      Galbraith & McCormack and Robert M. Haines (Dunshee, Haines & Brody, of counsel), for appellant.

      Rees, Robinson & Petermwnn (Leslie C. McClelland, of counsel), for appellee.
   Fellows, J.

July 29, 1916, defendant issued a policy of accident insurance to one John C. Vogel of Calumet. The policy was for $5,000 with certain limitations, among them being:

“The insurance provided for loss by accidental means shall be reduced and the liability of the association shall not exceed: * * * 12) Five Hundred Dollars ($500.00) if the loss be caused by * " * * (b) asphyxiation by any kind of gas;” * * *

Mr. Vogel met his death May 8, 1917. The testimony discloses that he was then operating a theatre, in which he had a sleeping room where he not infrequently took an afternoon nap. On the day in question and while he was sleeping the theatre took fire. An employee sought to arouse Mr. Vogel sufficiently to get him out of the building but did not succeed. The employee who was called as a witness says that there was dense, heavy smoke in the room and when he tried to waken him he noticed the smell of gas. When Mr. Vogel was finally removed from the building life was extinct. This action was brought to recover on the policy and as submitted to this court but one question is involved. Defendant here concedes its liability to the extent of $500 but denies its liability beyond this amount. Upon the trial defendant, after the introduction of some preliminary testimony from an expert witness, made the following offer of proof:

“The defendant offers to prove by the witness now upon the stand and other expert witnesses, that the death of plaintiff’s decedent was produced by asphyxiation caused by the inhalation of carbon dioxide and carbon monoxide, two gases, the product of combustion occurring in the fire in the theatre on May 8, 1917. * * * and other gases, the products of the combustion on account of the fire in the building on May 8, 1917.”

Upon objection being made to this line of proof, after hearing argument, the court made the following ruling:

“The court will sustain an objection to that testimony on the ground that in the court’s opinion the words ‘asphyxiation by any kind of gas’ used in the policy by way of limitation to reduce the recovery to five hundred dollars applies to only such gases as are commonly understood and referred to in common parlance and not to such, gases as arise incidentally from an accidental fire, and the court therefore withdraws said issue from the jury.”

A verdict was directed for $5,440, the full amount claimed, and a motion for a new trial was denied.

The learned trial judge in reaching the conclusion, he did proceeded on the theory- that the contract was open to construction; having been prepared by the insurer,' should be most strongly construed against it; that the word “gas” as commonly understood meant illuminating and fuel gas, and in the construction of this contract should be so limited.

The rules of law applicable to the construction of contracts were well understood by the trial judge. But contracts which are unambiguous, which are clear in their terms, are not open to construction. It is the province of the courts to enforce contracts, not to make them for the parties, and it is fundamental that if contracts are,clear and unambiguous in their terms they must be enforced as written — there is nothing to construe. The language used in this contract is clear and unequivocal; it is in no way limited or modified by the context. The words “asphyxiation by any kind of gas” are unambiguous and the word “any” has a well defined meaning not only to the laity but also to the courts. This court has on at least two occasions considered it. In Hopkins v. Sanders, 172 Mich. 227, where the word “any” was found in an act, this,court, speaking through Justice Steere and having reference, to the act, said:

“In broad language it covers ‘any final decree’ m ‘any suit at law or in chancery’ in ‘any circuit court.’ ‘Any’ means ‘every,’ ‘éaeh one of all,’ ” * * *

And Mr. Justice Stone, speaking for the court in Attorney General v. Renihan, 184 Mich. 272, said:

“The language of section 20 is very plain, and ought to be easily understood. It could not be made plainer that the governor shall fill a vacancy occurring in the office of judge of any court of record. Any court of record means every court of record. The language is unlimited in its scope.”

A multitude of authorities to the same effect might be cited, among them see People v. Casualty Co., 153 Ill. 25 (38 N. E. 752, 26 L. R. A. 295); New York County Medical Ass’n v. City of New York, 65 N. Y. Supp. 531; Rogers v. Brown, 20 N. J. Law, 119; Johnson v. Southern Pacific Co., 196 U. S. 1 (25 Sup. Ct. Rep. 158); 1 Words and .Phrases, p. 412 et seq. We are not here dealing with this word when used in connection with the same kind or species so that the doctrine ejusdem generis has no application.

The defendant sought to show asphyxiation by a kind of gas or by kinds of gases, those arising from the burning of the material which made up the theatre —wood, curtains, tar paper and the like — for the purpose of limiting the amount of the recovery to the sum of $500. This should have been permitted. If deceased was asphyxiated by any kind of gas defendant’s liability was limited to the sum of $500 by the plain, unequivocal and unambiguous terms of the contract. The trial judge was in error in declining to receive this testimony and in withdrawing this question from the jury.

We repeat and emphasize what was said by this court in the case of Drinan v. Casualty Co., 207 Mich. 677:

“It is unfortunately true that many so-called accident policies, filled with such restrictions and limitations as to make it impossible to recover thereon in many cases of accident, are allowed to be sold in this State. The remedy for this, however, lies with the legislature and not with the courts, whose duty it is to enforce the contracts as they are made by the parties thereto if the contracts are such as can be legally entered- into.”

We do not discuss, or consider whether the question of proximate cause argued in plaintiff’s brief is available or applicable. By the ruling of the trial judge the appellant was foreclosed from making its defense. What the testimony will disclose we, of course, do not know. Likewise we must decline the suggestion of defendant’s counsel made at the argument that the judgment be reduced to the sum of $500 and interest, and affirmed at that amount. While the trial judge stated in his opinion:

“It was admitted that the deceased lost his life through suffocation by gas from an accidental fire,”

—he did not state whether this admission was made by the plaintiff, the defendant, or both. Manifestly, if such admission was made on behalf of the plaintiff, it would bind him on another trial: Connor v. Railway Co., 168 Mich. 29; Johnston v. Cornelius, 200 Mich. 209 (L. R. A. 1918D, 880), but upon the record before us we do not feel justified in doing otherwise than entering a judgment reversing the case and sending it back for a new trial.

It is so ordered. Defendant will recover costs of this court.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    BERNARD v. MICHIGAN UNITED TRACTION CO.
    1. Master and Servant — Street Railways — Passenger — Question for Jury.
    Where plaintiff, in an action against an interurban electric railway company for personal injuries received in a collision between two of defendant’s cars, was an employee of defendant, and the testimony on the question as to whether, at the time he was injured, he was in the prosecution of his work was in dispute, the trial judge was in error in holding, as a matter of law, that plaintiff was a passenger.
    2. Same — Fellow-Servant.

      Held, that if plaintiff was not a passenger he was a fellow-servant of the men operating the cars, and could not recover if his injury was caused by their negligence.
    3. Same — Negligence—Evidence—Sufficiency.
    Evidence held, insufficient to show that defendant was negligent either in the manner of giving orders, in making and publishing rules, or in lighting the vestibule of the car. j
    On railroad employees or officers as passengers, see notes in 31 L. R. A. 321, 50 L. R. A. 462, 50 L. R. A. (N. S.) 706.
    Error to Jackson; Parkinson (James A.), J.
    Submitted June 3, 1919.
    (Docket No. 7.)
    Reargued April 28, 1920.
    Decided June 7, 1920.
    Case by Charles N. Bernard against the Michigan United Traction Company for personal injuries. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Sanford W. Ladd (Warren, Cady, Ladd & Hill, of counsel), for appellant.

      Price & Whiting, for appellee.
   Fellows, J.

This case was originally submitted and assigned at the June term, 1919. It was reargued and reassigned at the April term, 1920. A considerable portion of this opinion is takén from an opinion prepared by the late Justice Ostrander after the first hearing.

This case was first before this court upon a plea to the jurisdiction. 188 Mich. 504. It was again here after a trial and was reversed and a new trial granted. 198 Mich. 497. It has been again tried, resulting in a verdict and judgment for the plaintiff, and is again brought heré upon the ground, principally, that the trial court charged the jury that as matter of law plaintiff was a passenger upon the defendant’s car at the time he was injured; it being the contention of defendant, appellant, that this question was either one for the jury or one which the court should have otherwise answered as matter of law. .

It is first pointed out, in the brief for appellant, rhat when the case was last before this -court it was said in the reply brief for appellant that if it was proved as matter of law that at the time of the accident plaintiff was a passenger on defendant’s car the judgment should be affirmed, that it was not affirmed but reversed, and that substantially the same record is presented upon this appeal as was presented on the former appeal. It is argued, therefore, that this court did not find, as matter of law, that the plaintiff was a passenger and that th,e trial judge in deciding and ruling that he was a passenger declined to follow what was in effect the ruling of this court. It is clear, however, from the record, that the learned trial court did not do that but did find that this court had not expressed any opinion upon the subject and that the question was therefore open upon the last trial. We cannot now state the reason why the suggestion of the appellant made in its reply brief was not noticed in the opinion of this court. That it was not is clear, and that the court did not consider the question whether plaintiff was as matter of law a passenger when he was injured is quite as clear. It. is stated in the opinion that:

“Upop a new trial upon the merits, which this court had ordered, defendant was denied the right to intro-, duce any defenses to the action, and the case was submitted to the jury simply for the purpose of computing plaintiff’s damages.”

It was to this point alone' that the opinion was directed, it being held that defendant was entitled to interpose the defenses mentioned in section 1 of the employers’ liability act (2 Comp. Laws 1915, § 5423). The point, therefore, that the plaintiff was as matter of law a passenger when he was injured is now for the first time considered in this court.

Plaintiff was an employee of defendant. As alleged in the declaration, he was a general bonding foreman or third rail superintendent, the testimony showing that he was a third rail inspector — inspector of bonding and third rail on the entire system. His home was in Jackson, Michigan. He slept in Jackson. He .was paid by the month. How he performed his duties is perhaps well enough illustrated by his testimony about the work on the day he was injured. Stating that he worked when the men did, he was asked what were those hours and answered:

“A. Well, there was no stated time exactly, when they went out. They went according to the way the cars went out, as a rule, to make ten hours. Some places the cars started at six or 5:45 or 6:10, starting time, and I generally made it a point to start and get to that point out of Jackson at seven o’clock. It would all depend on which way I was to go. Seven o’clock in the morning was when I commenced.
“Q. Quitting time?
“A. I quit at 4:30. The men were supposed to be in at 4:30.
“Q. On this day in question, tell us what you had been doing, where you went, and what you were about up to the time you got hurt? I don’t care for your details of what you had been doing during the day. That is unimportant, but where had you been, where were you going, at the time you got hurt, etc.?
“A. Well, I left Jackson in the morning at seven o’clock, limited car going west. My point was Kalamazoo and I got into Kalamazoo and I met the gang working at the city of Kalamazoo on one of the main streets — Portage, I think was the name, right near the corner, right in the heart of the city. I gave him a few instructions what to do and how to do this speial work. That morning I was there about an hour, possibly an hour and a half. I got the next car and comes back to Battle Creek for dinner, because I had a gang — I goes to Battle Creek and I got my dinner and go out to see them. They was near the city and I wanted to move them across the city from that branch of the interurban to the branch on the outskirts of the city on the other side, so I takes it up with the city foreman there, the superintendent, the city superintendent, to get a car, an extra car and take these tools and one thing and another across the city, which he did. I went with them. Probably that crossing with them took maybe an hour, or an hour and a half, I don’t remember just how long that took. But anyway when we got to the Country Club — that was a point outside of the city, on the west side — we unloaded the tools, and my intentions was then to go along with the car. A local car came along and I got on. My intentions were to get off of that car and inspect what they had done, and in riding across the city in this local, car, I made up my mind this car would get to Albion in time enough to meet the third rail gang coming in, although I would have to wait 10 or 15 minutes before they got in. They were coming from the other way, coming from the east. So I got off the car at Albion about 4:20. I think that was the correct time.
“Q. 4:20 in the afternoon?
“A. 4:20 in the afternoon, at Albion.
SSQ. Does that mean the Albion shops or Albion?
‘‘A. Albion station. I waited there until the third rail crew came in. They came in on that four — I won’t be positive about the time; I think it was 4:30 or 4:25, anywheres in that neighborhood. When they came in I found out what he had been doing and gave him a few instructions what to do the following day. In the meantime I was hungry and I went and I got my supper. After supper, I proceeded across the street to this hotel where I was personally acquainted with the proprietor and I met him and goes into his office and sits down and we visit over old times and one thing and another. When I got ready to leave it was quite late; I think it was between eight and nine o’clock, and that’s the last I can remember. I don’t remember even getting on the car or how I got on the car, but evidently I got on the car at Albion waiting room.”

The car left Albion for Jackson between 9:05 and 9:10 p. m., and the collision occurred about 9:20 p. m. Plaintiff had a ticket calling for rides, furnished him by defendant, and used this ticket when he rode on defendant’s cars.

In a sense, the plaintiff was in the defendant’s employ when he was injured. There existed between them a contract by which plaintiff was to, render to the defendant services from day to day. It is proven that in going from Jackson in the morning to the place or places where men were engaged in the work he was inspecting plaintiff was traveling in the prosecution of his work during hours of work, since he could not otherwise perform his duties at all. He spent sometimes as much timé in traveling from place to place in performing his duties as he did in actual inspection of work. The point upon which the case must turn is whether, upon the particular occasion, in riding back to Jackson upon the defendant’s car, he was in the prosecution of his work. That depends, in great part at least, upon whether the prosecution of his work ordinarily, and as understood and agreed, required that he ride to Jackson on tfre occasion in question. He did so, habitually, the occasions being few when he did not sleep in Jackson. His immediate superior lived and had an office in Jackson. If his time did not belong to the master, and if his contract of service did not contemplate that he should ride on defendant’s car as a means of furthering his master’s business, he was a passenger.

“One may be both a passenger .and an employee of a railroad company; an employee when passing over the road at a time when actually engaged in performing duties for the company, but a passenger while not so engaged, but riding from one place to another, even though continuing all the while in a popular sense in the employment of the company.” 5 Am. & Eng. Enc. Law (2d Ed.), p. 516.

See, 4 Labatt, Master and Servant (2d Ed.), § 1555, p. 4669; Harris v. Railroad Co., 69 W. Va. 65 (70 S. E. 859, 50 L. R. A. [N. S.] 706, Ann. Cas. 1912D, 59). In the case last cited, it is said:

“The capacity in which he is to be .regarded depends upon whether, or not his duties to his master required him to ride on the train, or whether or not the relation of master and servant existed at the moment of the injury. If his time at the instant of the injury did not belong to the master, and if his contract of service did not contemplate that he should ride on defendant’s cars as a means of furthering his master’s business, then he was not a fellow-servant but a passenger.”.
“There can be no question but that an employee of a carrier, may, under certain circumstances, be considered a passenger, and entitled to all the rights pertaining to such status, if injured while being transported in the vehicle of the carrier; the capacity in which he is to be regarded depending up'on whether or not his duties to his master required him to ride on the vehicle, and whether or not the relation of master and servant existed at the moment of the injury.” 4 R. C. L. p. 1010.

To the same effect are Enos v. Railway Co., 28 R. I. 291 (67 Atl. 5, 12 L. R. A. [N. S.] 244); McNulty v. Railroad Co., 182 Pa. St. 479 (38 Atl. 524, 38 L. R. A. 376, 61 Am. St. Rep. 721) ; Dickinson v. Railway Co., 177 Mass. 365 (59 N. E. 60, 52 L. R. A. 326, 83 Am. St. Rep. 284); Williams v. Signal Co., 37 S. D. 423 (158 N. W. 901); Klinck v. Railway Co., 262 Ill. 280 (104 N. E. 669, 52 L. R. A. [N. S.] 70, Ann. Cas. 1915B, 177). The rule may be stated in another way, which is that railroad employees while being transported over the road as an incident of, or in immediate connection with, their employment or as a part of their contract of service are not to be regarded as passengers but as employees merely. Dayton Coal & Iron Co. v. Dodd, 188 Fed. 597, 110 C. C. A. 395 (37 L. R. A. [N. S.] 456).

It was the claim of the plaintiff that he was not, on the occasion of the accident, in the performance of any service for the master; that he was not required to return to Jackson after the work of the day was done for the purpose of making a report to, or to receive orders from, his superior, that his duties to his master did not require him to return to Jackson for any purpose, that he was returning for his own convenience and after all duties to the master were at an end. But this claim was disputed by the defendant. We do not quote all of plaintiff’s testimony, sufficient only to show what his claim was:

“Q. Now, Mr. Ladd asked you about reporting to Mr. Haak. How often would that occur? What would be the occasion of your reporting to Mr. Haak?
“A. I can’t say I reported to him at any time. I had a line of work to do that didn’t require me reporting to him.
“Q. State whether or not you had any report to make to him that day.
“A. I did not.
“Q. I think, in answer to one of his questions, you stated you reported to him when you came to Jackson. I want to ask, whether or not you reported to Mr. Haak every time you came to Jackson?
“A. Í had nothing to report to Mr. Haak any night.
“The Court: That wasn’t in the question. The question was whether you did report.
“A. No, I didn’t report to Mr. Haak.
“Q. Was there anything about your work that required you to have your room at Jackson or anywhere else?
“A. No, sir.
“Q. State whether or not that was a matter entirely of your own choice.
“A. It was.”
Mr. Haak was called by defendant and testified:
“Q. What was his duty in reference to coming back to Jackson and reporting?
“A. His duty was to come to Jackson once a day and make a report.”

This was further elaborated upon, but these two quotations demonstrate that the testimony was in dispute as to whether at the time of the accident plaintiff was going to Jackson on his master’s business and because the duties of his employment required him to make this trip in order to make his report to his superior, and to get orders from his superior for the next day’s work, or, on the other hand, was making the trip for his own convenience. The learned trial judge apparently was much in doubt on the question, and it was only after much insistence on the part of plaintiff’s counsel that he held as matter of law that plaintiff was a passenger. Under the testimony as found in this record and under the authorities above cited we conclude that whether plaintiff was a passenger when injured presented a question of fact which it was error not to submit to the jury.

It is a contention of plaintiff that if he was not a passenger, but was in the line of his employment when injured, the defendant cannot shield itself behind the fellow-servant rule; that he was not a fellow-servant with the operatives of the car. It is the claim of plaintiff that there is evidence to sustain the proposition that defendant did not make proper and reasonable regulations for the movement and control of its cars or issue orders and directions for running its cars. It is said by the learned trial judge in a colloquy with counsel that if this court deems a reversal necessary it is hoped it will express itself upon the fellow-servant question so “that we may know in another trial what to do with that question.”

Clearly if plaintiff was not a passenger, he was a fellow-servant of the men operating the car in which he rode and those operating the car with which it was in collision. If it was the negligence of any of these fellow-servants which caused the injury, plaintiff cannot recover unless he was a passenger. The injury to plaintiff occurred because the motorman of the car on which he was riding ran his car beyond the point where he was by orders to meet the west-bound car. The motorman testified that he did not see the order for the meeting of cars and that the crew which at Albion turned the car over to him did not read the order to him, as the rules required. The rule is:

“In case conductor and motorman change off before the completion of their trip, they must carefully exchange all orders they may have, and each must know that his orders are perfectly understood by the other. Changes of this kind, however, must never be made , without permission of the train dispatcher.”

When the car was turned over to the new crew at Albion, the running order for the car in which plaintiff rode was in the vestibule. When the new motorman stepped onto the car, he read a part of the order— the line reading, “Train No. 22, Car No. 35 and Train No. 25, Car No. 65 will meet at Albion.” He did not read the remainder, which was, “Train No. 22, Car 35 and Train Ext west, Car No. 207 will meet at No. Concord, instead of Albion.” It appears beyond dispute that had the motorman read the second line and direction of the order, the collision would not have occurred. There was light enough in the vestibule of the car to read the first direction. There was a clearance order, signifying that the car was to proceed without further orders, leaving the order indicated above to stand as the running direction. The motorman says the crew from which he took the car did not read to him the order nor tell him what it contained. This is disputed, there being testimony tending to prove that the motorman who left the car told the new or succeeding one that the order called for meeting of the cars at North Concord. This part of the case is little argued in the brief for appellee. It is perhaps sufficient to say that we find no evidence of negligence of defendant either in the manner of giving orders, in making and publishing rules, or in lighting the vestibule of the car. In short, the evidence appears to be overwhelming to the effect that negligence of a fellow-servant, or of fellow-servants, of plaintiff, if he was not a passenger, caused thé collision and so his injury.

The judgment must be reversed and a new trial ordered, with costs to appellant.

Moore, C. J., and Steere, Brooke, Stone, Clark, Bird, and Sharpe, JJ., concurred.


text:
    PEOPLE v. FRITCH.
    1. Criminal Law — Manslaughter — Examination of Jurors — ■ Other Changes.
    In a prosecution for manslaughter, based on the charge that defendant committed an abortion upon a woman which resulted in her death, it was not prejudicial error for the prosecution, upon examination of the jurors, to question them as to whether they had heard or read about any other cases or charges pending against defendant.
    2. Same — Trial—Witnesses — Explanation of Piscbepancy in Testimony.
    Where there was a discrepancy in the testimony of a witness between that given before the examining magistrate and that given upon the trial, the trial court was not in error in allowing the witness to explain such discrepancy.
    3. Same — Dying Declarations — Admissibility.
    Where the testimony established the fact that declarant was in extremis when a statement was made by her and was made under a sense and conviction of approaching death, and was such a statement of facts as she could have sworn to as a witness, it was properly received in evidence as a dying declaration.
    4. New Trial — Newly-Discovered Evidence — Abuse of Discre- ■ TION.
    The denial of a motion for a new trial on the ground of newly-discovered evidence based upon an affidavit that defendant was treating affiant at the time the offense was charged to have been committed, which was but cumulative of testimony given in his defense, and which was met by a counter affidavit of affiant’s landlady denying the material facts therein set up, held, not an abuse of his discretion by the trial judge.
    On admissibility of dying declarations made with sense of impending death, see note in 56 L. R. A. 382, 6 B. R. G. 238.
    Error to recorder’s court of Detroit; Wilkins (Charles T.), J.
    Submitted April 16, 1920.
    (Docket No. 114.)
    Decided June 7, 1920.
    George A. Fritch was convicted of manslaughter, and sentenced to imprisonment for not less than 1 nor more than 15 years in the branch of the State prison at Marquette.
    Affirmed.

      Eugene L. MistersJcy and James A. Murtha (John H. Dohrman, of counsel), for appellant.

      Matthew H. Bishop, Prosecuting Attorney, and Allan P. Cox, Assistant Prosecuting Attorney, for the people.
   Fellows, J.

The defendant was convicted of the crime of manslaughter and sentenced to Marquette prison for from 1 to 15 years with a recommendation of 15 years. He reviews such conviction upon this writ of error. The claim of the prosecution supported by the testimony may be briefly stated as follows: Victoria Kolendo was the wife of John Kolendo. They were Polish people and lived at 2334 Russell street, Detroit. They had two children. Mrs. Kolendo was pregnant. She had obtained the location of the defendant’s office from some lady who gave her a slip of paper with the address upon it, and on September 20, 1918, she and her husband went to the office about 10 o’clock in the forenoon for the purpose of having an abortion performed. Her husband had attempted to dissuade her from this step, but she had insisted that she would go alone when he was at work unless he went with her and he consented to accompany her. Mr. Kolendo testifies to being present when the operation was performed and identifies the defendant as the man who performed it. A rubber tube then inserted by the defendant and afterwards preserved was also identified by him. Septicemia developed and Mrs. Kolendo was taken to the Samaritan hospital where she died October 8th. The defendant denies performing the operation, denies that he ever saw Mr. Kolendo until after his arrest, denies having seen either him or Mrs. Kolendo at the time alleged. He insists that he was not in his office any forenoons during the month of September, that he had no office hours in the forenoons, and produces two employees who corroborate his claim in this regard.

Upon the examination of jurors the following question was asked: “Have you heard or read about any other cases or charges pending against Dr. Fritch?” The juror answered “No.” It is insisted that this was prejudicial error in that it conveyed to the jury the impression that defendant had committed other crimes. We cannot agree with counsel that the asking of this question worked the result claimed or constituted prejudicial error. While the general rule is that evidence of the commission of other crimes may not be received, and none was offered or received in this case, and while a less objectionable form of question could have been propounded, it is a matter of general practice to permit the prospective jurors to be interrogated as to what they have read in the newspapers and what they have heard which would tend to disqualify them as jurors and subject them to challenge either for cause or peremptorily. It is important to both the prosecution and the defendant that a fair jury be obtained, one made up of men who had not prejudged the case, who had not made up their minds. To secure this end there must be some latitude permitted in the examination of prospective jurors. We are not impressed that a latitude was indulged in in the instant case which resulted in prejudicial error.

Upon the cross-examination of Mr. Kolendo he was interrogated with reference to his testimony given before the examining magistrate and some discrepancies were developed; Upon re-examination the prosecution was permitted for the purpose of showing his mental state when examined before the magistrate to show by him that shortly before giving that testimony he had lost his children. This is assigned as error. Discrepancies between the testimony given on two occasions having appeared it would be a reproach upon our judicial system if the witness should be precluded from explaining such discrepancies or the reason therefor. ' The witness was an ignorant foreigner and used the English language somewhat indifferently. That the recent death of his two children following that of his wife left him depressed we think goes without saying. It was eminently proper to permit the people to show that when laboring under this mental stress he gave his testimony before the magistrate. Taking the record as a whole,, we are not impressed that the discrepancies were important. Defendant’s counsel, however, so regarded them and seemed to have made much of them. Under these circumstances it was highly proper to, permit this testimony on reexamination. '

Four days before her death Mrs. Kolendo made a statement at the hospital which was offered and received as a dying declaration. The correctness of the ruling admitting this statement presents the principal question in the case. In the case of People v. Olmstead, 30 Mich. 431, this court said:

“Dying declarations, as is well settled, are neither more nor less than statements of material facts concerning the cause and circumstances of homicide, made by the victim under the solemn belief of impending death, the effect of which on the mind is regarded as equivalent to the sanction of an oath. They are substitutes for sworn testimony, and must be such narrative statements as a witness might properly give on the stand if living.”

And in the recent case of People v. Christmas, 181 Mich. 634, Mr. Justice Brooke, speaking for the court, said:

“It is elementary that before a statement made by the deceased shall be received as his dying declaration, a preliminary investigation shall be made by the court to determine its admissibility as such. Through this investigation the court must be satisfied that the declarant was in fact in extremis at the time the declaration was made, and that he made it under a sense of impending death. See 2 Wigmore on Evidence, § 1451, and cases cited; 4 Encyclopedia of Evidence, p. 947, and cases cited. This court has held- that it is proper to allow evidence as to the circumstances under which the dying declaration was taken to show whether it was really taken when the declarant was under the conviction of approaching and inevitable death, and evidence of this should usually be given in advance of proof of the declaration itself.”

Both counsel cite the Christmas Case, recognize the correctness of the rule there laid down and each insists upon application thereof to the instant case.

Preliminary to receiving the statement certain testimony was given. The attending nurse who was present when the statement was made spoke both English and Polish and acted as interpreter. She swears that she correctly translated the questions and answers. She testifies to Mrs. Kolendo’s condition, that she would relapse into a state of coma from which she would revive or “come to,” and that the statement was taken when she revived from one of these relapses. The stenographer who took and transcribed the statement also understood the Polish language. He testifies that Mrs. Kolendo was in a precarious condition when he arrived at the hospital. Before taking her statement she was asked if she thought she was going to get well and answered, “No.” She said if any one bothered her she would die right away, that she was afraid she was going to die, and she had little kids, and she was afraid she was going to die and leave the children. Her statement had to do with the performance of the illegal operation and corroborated her husband’s testimony. It was a statement of facts which she could have -sworn to as a witness.' After making the statement she was asked, “How do you feel now,” and replied, “All right.” She also then stated that she was afraid she was going to die and leave the kids.

We are clearly of the opinion that the prosecution fully met the requirements of the rule laid down by this court in the Christmas Case. The testimony establishes that the declarant was in extremis and that the statement was made under a sense and conviction of approaching and inevitable death. Under such circumstances every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. The court did not err in receiving this statement as a dying declaration. See People v. Knapp, 26 Mich. 112; Hurd v. People, 25 Mich. 405; People v. Lonsdale, 122 Mich. 388; People v. Simpson, 48 Mich. 474; People v. Beverly, 108 Mich. 509; People v. Weaver, 108 Mich. 649; 1 R. C. L. pp. 527-550.

The testimony of the physicians who performed the post mortem establishes that deceased was pregnant at the time the operation was performed and the trial judge did not err in refusing to direct a verdict.

Defendant made a motion for a new trial on the ground of newly-discovered evidence based on the affidavit of a man named Walker to the effect that defendant was engaged in treating him during the entire forenoon of September 20th in reducing a hernia. This affidavit was met by the prosecution with one by the landlady with whom Walker roomed denying the material facts set up in Walker’s affidavit. Walker’s affidavit was cumulative of the testimony given by defendant’s employees that he was not at the office forenoons during that month and on the day in question. It is difficult to comprehend that defendant in preparing for his trial entirely forgot this transaction. The facts set up in the affidavit were denied in the affidavit of the landlady. The trial judge did not abuse his discretion in denying the motion for a new trial. The case was very carefully tried by the prosecution.

The charge of the trial judge was eminently fair to the defendant; practically all of his requests were given. He was defended' by able counsel and had a fair trial. We find no occasion upon this record to disturb his conviction. It is affirmed.

Moore, C. J., and Steere, Brooke,. Stone, and Bird, JJ., concurred. Clark and Sharpe, JJ., did not sit.