text:
    PEOPLE v. CHRISTMAS.
    1. Evidence — Dying Declarations — Hearsay.
    Before a statement made by a victim of homicide is admissible in evidence as his dying declaration, a preliminary investigation must be made by the court to determine its admissibility; and should be of such nature as to satisfy the court that the declarant was in fact in extremis when he made the declaration and that he made it under a sense of impending death.

    2. Same — Death—Homicide.
    Evidence that the declarant was under the conviction of approaching death should usually be offered as a basis for the admission of the declaration.
    3. Same.
    Where the only evidence that the court had, in a prosecution for homicide, of decedent’s belief that he was going to die, was in the declaration made by him, seven days before his death, and he was not, in fact, in extremis, and his statement included the accusation based on hearsay that respondent fired the fatal shot, it was incompetent.
    Error to the recorder’s court of the city of Detroit; Phelan, J.
    Submitted June 12, 1914.
    (Docket No. 120.)
    Decided July 24, 1914.

      Sabo Christmas was convicted of murder.
    Reversed.

      Watson, Safford & Shepherd, for respondent.

      Grant Fellows, Attorney General, Allan H. Frazer, Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.

       On the general question of the admissibility of dying declarar tions, see note in 56 L. R. A. 353.

   Brooke, J.

Respondent stands convicted of the crime of murder. The record discloses the following facts: On the afternoon and evening of July 13, 1913, a christening party was held at the home of George Peskari in the city of Detroit. About 30 or 40 people were present. The celebration, which included drinking and dancing, lasted from 4 or 5 o’clock in the afternoon until nearly midnight. The respondent and one Julian Cadarean were guests at this entertainment. During the evening one or more disputes arose in the room where the dancing occurred, induced, it would appear, by too liberal an indulgence in intoxicating liquor on the part of the. guests, and perhaps further incited by jealousy. Immediately after the last quarrel, about 11:30 p. m., Cadarean was shot by some one of the guests present. It was apparent that the shot had been fired within 10 inches of the body. Cadarean was taken to the hospital, and for a number of days hope was entertained of his recovery. The wound, however, became' septic, and he died July 22, 1913, nine days after receiving his wound. Respondent was arrested and convicted.

In the course of the trial the following proceedings were had:

“George Donaldson, a witness being sworn on behalf of the people, testified as follows:

“By Mr. Keidan: I am a stenographer in the circuit court of this county. I have been attached to the circuit court about 12 or 14 years.

“Mr. Wilson: We will admit his competency.

“I took a statement of one Julian Cadarean at St. Mary’s Hospital on July 15,-1913, in the presence of Assistant Prosecutor Arthur Kilpatrick, Officer Charles C. Carmody, Dr. W. C. Edmonson, and myself. I took down the statement that was made there; the questions being asked by Mr. Kilpatrick, and the answers being given by Julian Cadarean. I transcribed that statement. That is the statement there.

“Mr. Keidan: I am going to offer this statement as the dying statement.

“Mr. Wilson: I object to its introduction until it is proved to have been.

“The Court: You will have to go on and show first (paper marked Exhibit 3).

“A. This Exhibit 3 is a transcript of that statement.

“Q. Now, will you read the statement, the questions, and answers?

“Mr. Wilson: I object.

“Mr. Keidan: I want to say now that the statement itself will show that it is a dying statement.

“Mr. Wilson: I think that is a law question that should be discussed with the court before given to the jury.

“The Court: No, I will pass it.

“Mr. Wilson: I think the jury should be excused until it is determined whether it should be admitted or not.

“The Court: Let me have it first, Mr. Donaldson. I am not going to excuse the jury. (Paper handed to court.)

“The Court: It is admissible. Proceed. (Exception for defendant.)

“Q. Will you please read it?

“A. Julius Cadarean. (Statement taken at St. Mary’s Hospital on Tuesday evening, July 15th, 1913, at about 9 o’clock. Present, Assistant Prosecutor Arthur Kilpatrick, Officer Charles Carmody, Dr. W. C. Edmonson, and stenographer George Donaldson.)

“Examined by Mr. Kilpatrick:

“Q. Do you know that you are in pretty bad shape? The doctor doesn’t think you are going to get better.

“A. He don’t?

“Q. The doctor doesn’t think you are going to get better. Do you know you are in pretty bad shape; that you are liable to die? Do you know you are in pretty bad shape? The doctor says you are not likely to get better. In fact you are going to die. Do you know that?

“A. (The witness nods his head, ‘Yes.’)

“Q. I want you to tell us before you do die — we hope you will get better, but it looks as if you would not — we want you to tell us who did the shooting. Who was it, Julius, fired that shot?

“A. That Saba.

“Q. Saba?

“A. Yes.

“Q. Saba Christmas?

“A. Yes.

“Q. Did you have some trouble with Saba before this?

“A. Yes.

“Q. The same night?

“A. Same night.

“Q. How long before he fired the shot?

“A. Half an hour.

“Q. What was the'trouble about?

“A. There was trouble with a girl.

“Q. With the girl?

“A. Yes.

“Q. What girl was that?

“A. She is out. She was arrested. She came out.

“Q. That is Juliana Berch?

“A. Yes.

“Q. Is that her name?

“A. Yes.

“Q. You had trouble with him over her?

“A. Yes.

“Q. Did you strike him?

“A. No. He asked her if she wants to dance with him, and she says, ‘No.’ He says, ‘Why?’ She says, T don’t want to.’ Then he came to me and says, ‘I’ll show you if she is going to dance with you.’

“Q. Was Saba there all the evening?

“A. Yes, all the evening.

“Q. He came there about what time, do you remember?

“A. About 3 o’clock.

“Q. About 3 or 4 o’clock?

“A. Yes.

“Q. Are you sure he was there that early?

“A. Yes.

“Q. Did you have any trouble with Nick Paduro?

“A. Yes, I had with him, too.

“Q. That was along about 6 o’clock, wasn’t it?

“A. Yes. He was drunk.

“Q. That was over the girl, too, wasn’t it?

“A. Yes.

“Q. Did Nick go home after that, do you know?

“A. Who?

“Q. Did Nick Paduro go home after you had that trouble with him?

“A. No, he was out.

“Q. Was he there?

“A. He was outside. That trouble was inside.

“Q. He was outside at the time Saba shot you?

“A. Yes.

“Q. Did you have any trouble with — what is that man’s name that runs that house? What is his name at 157 Wight?

“A. I don’t know.

“Q. Did you have any trouble with him, with the boss of that house?

“A. I don’t know who is the boss.

“Q. You don’t know who was the boss?

“A. No.

“Q. Did anybody just before the shooting, order you out of the house, tell you to go out?

“A. Yes.

“Q. Who was that?

“A. I think that was the boss.

“Q. You think that was the boss?

A. Yes, big fellows.

“Q. He was a fellow with a black mustache?

“A. Yes.

“Q. Did he have a black mustache?

“A. Yes.

“Q. He told you to go out?

“A. Yes.

“Q. Why did he tell you to go out?

“A. Because I started trouble with Saba.

“Q. With Saba?

“A. Yes.

_ “Q. When you had this trouble — by the way, this girl was not there when he shot you, was she?

“A. No, that girl was not. That girl was dancing with somebody else.

“Q. But Juliana Berch, she was home? She had gone home?

“A. Yes.

“Q. It was another girl that you had the trouble?

“A. Yes, Mary.

“Q. That is Mary Merch?

“A. Yes.

“Q. After this fellow told you to get out of the house, did he strike you with anything or hit you?

“A. Yes, he knock me in the head with a piece of plank; what was it? and Saba—

“Q. Why did Saba have the gun?

“A. -had the gun before and he gave it to him.

“Q. Who had the gun?

“A. —=-(name not understood).

“Q. Little Dan?

“A. Yes.

“Q. Littie Dan had the gun?

“A. Yes.

“Q. Did you see him give it to Saba?

“A. Yes.

“Q. Do you know what Saba did with the gun after he shot you?

“A. I don’t know. He put it in the pocket, may be. May be he throw it outside, I don’t know.

“Q. You did not see?

“A. No.

“Q. Did he run away then?

“A. Then he ran away.

“Q. Did he come back again?

“A. No, did not come back again.

“Q. That is, you did not see him?

“A. No, I didn’t see him because the wagon came, took me off.

“Q. Nick Paduro was outside, was he?

“A. Yes, he was outside. Policeman took him outside.

“Q. But he was there when ' the shooting took place?

“A. Yes.

“Q. Did he go away after you had the trouble about 6 o’clock?

“A. Yes.

“Q. He did, and then he came back?

“A. Yes, he came back.

“Q. He came back?

“A. Yes.

“Q. How long was he away?

“A. About a half hour, hour.

“Q. Was Saba there when you had the trouble with Nick?

“A. Yes, he was there.

“Q. Did he go with Nick?

“A. Yes, who?

“Q. Saba.

“A. No. There was only two in the room.

“Q. I mean after this trouble, about 6 o’clock.

“A. Yes. The two went away.

“Q. Saba went away with Nick?

“A. Yes.

“Q. How long were they gone before they came back? How long before they came back? How long before Saba and Nick came back?

“A. I don’t know. The wagon took me; I don’t know whether they came back or not.

“Q. I mean after this trouble, about 6 o’clock. They went away, didn’t they?

“A. Yes.

“Q. Then they came back?

“A. Yes.

“Q. About how long?

“A. Half an hour.

“Q. About half an hour?

“A. Yes.

“Q. Then they stayed there until the shooting?

“A. Yes.

“Q. This is the truth you are telling us?

“A. Yes.

“Q. You are telling us this realizing that you are not likely to get better?

“A. Yes.

“Q. Aren’t you? You would not, feeling that you are going to die, you would not say that Saba shot you unless he actually did, would you?

“A. I don’t know.

“Q. You would not say that he shot you if he did not?

“A. That girl she told me. Her mother is right here now.

“Q. Didn’t you see Saba shoot you?'

“A. I see the gun.

“Q. You saw—

“A. And he had the gun, nobody else, and that girl says that Saba shoot.

“Q. Had you ever had ány trouble with Saba before this night?

“A. No.

“Q. Is there anything else you want to say to us? Anything else you want to tell us ?

“A. Me?

“Q. Yes.

“A. No.

“Q. (to Mr. Carmody). Do you think of anything else you want to ask him?

“By Mr. Carmody: Q. You took Julia home?

“A. Yes.

“Q. When you took her home did Saba say to you that he will get even with you for that?

“A. Yes.

“Q. He said that, did he?

“A. Yes. I took her home;-1 came back again.

“Q. He said he would get even with you for that?

“A. Yes.

“Q. You had some trouble in the afternoon with Nick Paduro?

“A. Yes.

“Q. What time was it that you had trouble with Nick?

“A. Six o’clock.

“By Mr. Kilpatrick: Q. That was over Julia, wasn’t it?

“A. Yes. Julia was in there when I had the trouble with Paduro.

“Q. Was it because she would not dance with him?

“A. Yes. She told me: T want to go home; I don’t want to have no trouble.’ I says, ‘All right.’ I took her home.

“By Mr. Carmody: Q. Did Nick say at that time that he would get even with you?

“A. Yes.

“Q. Nick Paduro?

“A. Yes.

“Q. In the afternoon about 6 o’clock?

“A. Yes.

“Q. He said he would get even with you?

“A. Yes.

“Q. That is what you told me the other day.

“A. Yes, but he was outside at that time.

“Q. He was out at that time?

“A. Yes. Policeman take him out of that. He didn’t have to go in no more. Tf I find you in I arrest you.’

“Q. Were Giga and Pete there at the time of the shooting, the barbers?

“A. No, I don’t think; I think he was home. Giga was there.

“Q. Giga was there at the time of the shooting?

“A. Yes.

“Q. (to Mr. Kilpatrick). He told me the first day that Giga and Pete knew who shot him. (To the witness.) Isn’t that what you told me; that Giga and Pete knew who shot you?

“A. Pete was home, I guess. Just Giga was there.

“Q. Giga was there?

“A. Yes.

“By Mr. Kilpatrick: Q. You did see the gun?

“A. I see the gun when he gave it to Saba. I didn’t see Saba shoot. Of course the girl told me that she see when he shot.

“Q. But you saw the gun handed to Saba?

“A. Yes.

“Q. You saw Dan hand Saba the gun?

“A. Yes.

“By Mr. Carmody: Q. Did you drop at that time when you were shot or did you walk out into the street? Did you drop when you were shot?

“A. No.

“Q. You went out into the street, did you?

“A. Yes, I went out, I go myself upstairs on the bed,

“Q. On the bed?

“A. Yes, and the policeman came up.

“Mr. Wilson: At this time I move that the entire statement be stricken out as being confessedly based upon hearsay evidence, being testimony that the witness himself could not have given if he had been in court; that it is prejudiced. And we make a motion at this time that this trial be declared a mistrial. The defendant has been irreparably prejudiced by the reading of that statement.

“The Court: I will leave it stand. Any question you wish to ask Mr. Donaldson? He has got to get back to his court? Ask him if you want him, or else excuse him.

“Mr. Wilson: Are you through with him? That is all.

“Mr. Keidan: The statement is offered in evidence.

“The Court: It may be accepted.

“Mr. Wilson: Does the former objection apply to ' that, the objection and exception?”

After the foregoing alleged dying declaration was received in evidence, the prosecuting attorney moved the court as follows:

“Mr. Keidan: That is all, your honor. At this time, if your honor please, I would like to make a motion to strike from the dying statement that was admitted in evidence here the other day, the following answer or part of answer on page 7, the fourth line, the sentence, ‘That girl she told me.’

“The Court: What:

“Mr. Keidan: ‘That girl she told me.’

“The Court: ‘That girl she told me:’ Is that the language of the deceased prior to his death in the hospital?

“Mr. Keidan: Yes, your honor.

“The Court: Very well.

“Mr. Keidan: And also in line 8, ‘and that girl says that Saba shot;’ two words of that are in line 9. That this be stricken out.

“The Court: It may be.

“Mr. Keidan: That is all. We rest.

“Mr. Wilson: At this time I desire to move that the entire dying declaration be stricken out for the reason that it was not made under the fear of impending death; the testimony of Dr. Walker being that this man was not in danger of death until two days prior to his death. This was taken about 10 days before his death. I call your honor’s attention in this behalf to this dialogue which took place between the prosecutor and the deceased: 'Do you know you are in pretty bad shape; the doctor does not think you are going to get better.’ To that, if your honor please, the deceased replied in the form of a question, ‘A. He don’t?’ as Mr. Donaldson has it there. I wish, further to call your honor’s attention to the fact that in a dying declaration it is supposed that a man under fear of impending death, that his mind is swept from all hatred and all prejudice, and that he will tell the truth.

“The Court: It is supposed that he will tell the truth; whether his mind is clear of prejudice or all hatred is another matter.

“Mr. Wilson: And that it is fear of death which takes the place of the sanctity of an oath.

“The Court: Not that it is fear of death altogether, but that he will meet his Creator—

“Mr. Wilson: Yes.

“The Court: That he will not be likely to tell an untruth. But I have read his statement myself very carefully, and I have pointed out some things there that I do not think should stand.

“Mr. Wilson: I have one other thing. The prosecutor asked this question, and your honor, I am reading this for the purpose of showing that if this statement itself shows that he feared impending death, and the fact that he was going to meet his Creator did not put the obligation on him to tell the truth, that is not a proper dying declaration. The question was: ‘Q. You are telling us this, realizing you are not likely to get better? A. Yes. Q. Aren’t you, or you would not, feeling that you were going to die, and you would not say that Saba shot you unless he actually did, would you?’ His answer to that was, ‘A. I don’t know.’ I think, if your honor please, if a witness was on the stand and you asked him whether he knows whether he was going to tell the truth or not, and he said he didn’t know, that your honor would remove him from the stand at once.

“The Court: No, I could not do that; I could not remove him because, if he said he did not know whether he was going to tell the truth or not, then the weight of his statement would be for the jury, and if they were not true, then the prosecuting attorney knows what he should do. Please let me take that a moment.

“Mr. Keidan: There are several matters involved in that question, your honor.

“The Court: Yes, I understand.

“Mr. Wilson: The bottom page 6.

“The Court: I allowed it to go in on this. Here is why I allowed it go in:

‘By Mr. Kilpatrick: Do you know you are in pretty bad shape; the doctor does not think you are going to get better. A. He don’t? Q. The doctor does not think you are going to get better. Do you know you are in pretty bad shape, that you are liable to die, do you know that you are in pretty bad shape, in fact you are going to die, do you know that? A. (The witness nods his head, Yes.)’

“Mr. Wilson: If your honor please there is nothing there showing fear of impending death. We all have to die. Doesn’t show anything as to when he is going to die, and the doctor testified at that particular time there was no danger of his death; he was getting along well until two days before his decease.

“The Court: ‘Q. I want you to tell us before you die. We hope you will get better, but it looks as if you would not. We want you to tell us who did the shooting, who was it, Julius, fired that shot?’

“Mr. Wilson: If your honor please the only person who was afraid that this man was not going to get better was Mr. Kilpatrick.

“The Court: I believe on the whole, from the statement, the deceased was impressed with the fact that he was going to die from these injuries, that is my judgment from reading the statement; that is why I allowed the prosecutor to enter it as evidence.

“Mr. Wilson: There is a, further motion, if your honor please, and that is that the jury be instructed to disregard it, and that it be stricken from the record, each and every part of that statement which alleges that Sabo Christmas shot the deceased; that Sabo Christmas, the defendant, shot the deceased, as being nothing more or less than hearsay; the witness from whom he received the information being here in court, and that he testified.

“The Court: No, I will allow it to stand.

“Mr. Wilson: Give me an exception.”

Of the 79 assignments of error relied upon by respondent for reversal, we find it necessary to consider only those relating to the foregoing matter.

This declaration was taken on Tuesday evening, July 15th, less than 48 hours after Cadarean received his wound, and he lived seven days thereafter. The evidence of the physicians tends to show that hopes were entertained of his recovery up to within two or three days of his death. 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. People v. Knapp, 26 Mich. 112; Hurd v. People, 25 Mich. 405. See, also, Smith v. State, 9 Humph. (Tenn.) 9.

It is apparent from the proceedings quoted above that the only evidence the court had of the fact that the declaration was made by Cadarean under circumstances entitling it to admission was such as was afforded by the declaration itself. A careful analysis of this paper in our opinion falls far short of establishing the fact that at the time of Cadarean’s examination he believed himself to be dying. He was not in fact in ex-tremis at the time, but lived for seven days thereafter.' Aside from this infirmity, it is apparent that he had no personal knowledge as to who fired the shot which ultimately caused his death. His statement that the respondent did so was based entirely upon what some one else- had told him. The error of the court in admitting the statement was not corrected when on motion of .the prosecutor two statements of Cadarean were sticken from the statement, “That girl she told me,” and, “That girl says that Saba shot.” The statement if admissible at all should have been admitted in its entirety. People v. Knapp, supra, and cases cited.

Other assignments of error relative to the admission and exclusion of evidence and to the charge of the court are argued. In our opinion it is not necessary to consider them, as they are unlikely to arise on a new trial.

For the error pointed out, the judgment is reversed and a new trial ordered;

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


source: Caselaw Access Project

author: Brooke, J.

license: Public Domain

text:
    STENDER v. STENDER.
    1. Wnxs — Intent—Construction.
    The first and most important rule to be observed in construing a will is to ascertain the intention of the testator and to give effect to that intention if it is legally possible; the entire instrument must be considered in ascertaining such intent.
    2. Same.
    Where decedent owned about $200,000 in real property at the time he executed his last will, by which he bequeathed to his brother and former partner all the residue of his personal property, including his cigar manufacturing business and excepting two bequests of small amounts of money, and to his brothers and sisters, in a succeeding clause, one-fifth of the rest, residue and remainder of his property of every nature and description, and where he afterwards sold three-fourths of his real property on contract, the intention to divide the real estate equally at the time of executing the testament being clear, the change in status and condition of the real property should not be held to diminish the interest of the other brothers and sisters in the property sold upon contract. The language of the later clause is also' interpreted as including personal property remaining after the first four clauses had been given effect and it is Jield that there was no evidence that the intention of the testator so changed as to deprive them of their shares.
    3. Same.
    It is a principle of construction that when certain things are enumerated and a more general description is coupled with the enumeration, the description is commonly understood to cover only things of a like kind with those enumerated; the reason for such rule being that the testator is presumed to have had only those things in mind.
    Appeal from Wayne; Mandell, J.
    Submitted June 10, 1914.
    (Docket No. 44.)
    Decided July 24, 1914.

      Bill by Emil Stender and others against Carl Stender and Elmer W. Mulford, executor of the estate of Hugo H. Stender, deceased, et al., for the construction of decedent’s will. From a decree for complainants, defendants appeal.
    Affirmed.

      William E. Henze, for complainants.

      E. W. Mulford, for defendants.
   Brooke, J.

The bill in this case is filed to secure a construction of the will of Hugo Stender, deceased. The will follows:

“1. I will and direct that all my just debts and funeral expenses be paid in full.

“2. I give and bequeath five hundred ($500.00) dollars to the Protestant Orphan Asylum of Detroit, Michigan.

“3. I give and bequeath five hundred ($500.00) dollars to the German Protestant Home for Orphan and Old People of Detroit, Michigan.

“4. I give and bequeath to my brother Carl of Detroit, Michigan, all the rest and remainder of my personal property, including my cigar manufacturing business.

“5. All the rest, residue and remainder of my property of every nature and description and wheresoever located, I give, devise and bequeath to the following:

“One-fifth thereof to my brother Carl of Detroit,

“One-fifth thereof to my brother William, formerly of Chicago,

“One-fifth thereof to my brother Emil, of Herford, in Westphalia, Germany,

“One-fifth thereof to my sister Thusnelda of Her-ford,

“One-fifth thereof to the children of my late half-sister Mathilda Huebner of Herford.

“In the event of the death of any one or more of the children of Mathilda Huebner before my demise, I will and direct that their survivors shall take the interest of such deceased. In the event of the death of any one or more of my brothers, or my sister before me, I will and direct that the interest of such deceased, as in this paragraph set forth, shall pass to the survivors of them.

“6. I hereby appoint my brother Carl, and my attorney, Elmer W. Mulford, of Detroit, Michigan, or their survivor, executors of this my last will and testament, and having confidence in their ability and honesty I request the probate court to require them to file no more than a nominal bond.

“7. I hereby revoke all wills by me heretofore made.

“In witness whereof I have hereunto set my hand and seal this 29th day of June, 1911.

“Hugo H. Stender.”

The contest arises over the construction to be given to sections 4 and 5. It will be noted that the will is dated June 29, 1911. At that time the testator was possessed of a cigar manufacturing business, personal effects and money in the bank to the amount of about $1,100. At the same time he was possessed of real estate of the approximate value of $200,000. He died on November 21, 1912, one year and four months after the date of the execution of his will. Between the date of the will and the date of his death he sold upon land contract about three-fourths in value of his real estate. At the time of his death there was due him upon these contracts about the sum of $130,000. It is the claim of Carl Stender and Elmer W. Mulford, his executors, and of Carl Stender, personally, that Carl Stender takes under section 4 of the will all of the interest of the testator in said land contracts. This contention would result in giving to Carl Stender something like four-fifths of the entire estate of his deceased brother, while the other one-fifth would be divided among three surviving brothers and sisters and the heirs of a deceased half-sister. The contention of the appellees which prevailed in the court below was that a proper construction of section 4 of the will read in the light of section 5 thereof leads to the conclusion that it was the intention of the testator by section 4 to give to his brother Carl only the cigar business named in section 4, the personal effects of said testator, and (possibly) the bank account used in connection with the cigar business. The testator was an unmarried man, and had been engaged in the cigar business in the city of Detroit for a great many years prior to his death. His brother Carl had occupied the position of clerk in his store for some 17 years. All of the devisees in the will, treating the heirs of Mathilda Huebner as representing their mother, were brothers or sisters of the testator, related to him in the same degree, and were natural objects of his bounty in an equal degree.

On the part of the appellants it is contended that land contracts are personal property (Bowen v. Lansing, 129 Mich. 117 [88 N. W. 384, 57 L. R. A. 643, 95 Am. St. Rep. 427]), and must pass as such under the will; that the will takes effect at the time of testator’s death, and not at the time of its making (Union Mutual Ass’n v. Montgomery, 70 Mich. 587, and cases cited [38 N. W. 588, 14 Am. St. Rep. 519]); and that the sale of the real estate after the date of the will operates to revoke the will pro tanto, and the proceeds of such sale must pass to the legatees, residuary or otherwise, as personal property. In re Sprague’s Estate, 125 Mich. 357 (84 N. W. 293).

As to the general soundness of the legal principles contended for by appellant’s counsel there can be no doubt. We think, however, that there are certain rules of construction which are paramount and which should be conclusive against the contention of appellants in the instant case. The first and most important rule to be observed in construing a will is to ascertain the intention of the testator and to give effect to that intention if it be legally possible. Of course, that intention must be gathered from the instrument itself. But in determining what the real intention of the testator was, the entire instrument must be examined and all of its terms and language must be given due consideration. Bearing this in mind, let us examine the language of section 4:

“I give and bequeath to my brother Carl of Detroit, Michigan, all the rest and remainder of my personal property, including my cigar manufacturing business.”

By sections 2 and 8 the testator had provided for legacies amounting in all to $1,000. At. the time the will was made, it is shown that he had a bank account of about $1,100, and was the owner of a cigar manufacturing business, the value of which the record does not disclose. Aside from this he had at that time no personal property, except doubtless such wearing apparel and articles of personal use as are ordinarily possessed by one in his station. He was an unmarried man, and the five brothers and sisters to whom he devised his estate were his nearest relatives. If we agree with the contention of appellants, we are at once met with the query as to what meaning shall be given to the words, “including my cigar manufacturing business,” contained in section 4. If it was the intention of Hugo Stender to give to his brother Carl all the personal property of which he died possessed, except the $1,000 theretofore bequeathed, the words are absolutely meaningless. We cannot suppose that the testator used these words without intending that they should have some bearing upon the business he was about. It is our conclusion that the term “personal property” as contained in clause 4 of the will was used by the testator in its ordinary and popular sense. In its broadest legal significance that term includes every subject of ownership, except land or an interest in land, but popularly it is frequently used in a more restricted sense, and is meant to include goods and chattels, tangible things, the subjects of personal use. It is most commonly applied in a popular way to goods and chattels. That the testator in the instant case used it with this restricted meaning we believe. This belief is strengthened by the fact that after the words, “all the rest and remainder of my personal property,” and as indicating the character of the personal property intended to be disposed of, he said, “including my cigar manufacturing business.”

It is a cardinal principle of construction that where certain things are enumerated and a more general description is coupled with the enumeration, that description is commonly understood to cover only things of a like kind with those enumerated. The reason for this rule is that it is presumed that the testator had only those things in mind. Given v. Hilton, 95 U. S. 591; 1 Redfield on Wills (2d Ed.), p. 445, (1st Ed.), p. 441; 1 Jarman on Wills (6th Ed.), p. 735; Bills v. Putnam, 64 N. H. 554 (15 Atl. 138); Benton v. Benton, 63 N. H. 289 (56 Am. Rep. 512); Dole v. Johnson, 3 Allen (Mass.), 364. Further strength is lent to the foregoing view when we consider the terms of section 5 of the will. It is of course clear, if the contention of appellants is to obtain, that when section 4 had been written, the testator had divested himself of all of his personal estate. He therefore had nothing further upon which his will could operate except real estate. Instead of limiting clause 5 to a devise of real estate, it is so worded as to indicate that the testator believed that, after clauses 2, 3, and 4 had been complied with there would yet remain personal as well as real estate subject to distribution. The language used indicates this belief beyond peradventure:

“All the rest, residue and remainder of my property of every nature and description and wheresoever located, I give, devise and bequeath to the following.”

It is impossible to believe that this language would have been used by the testator had he intended it to operate upon real estate only. Giving the indicated construction to clause 4 permits us to give- a reasonable meaning to all of the language contained in clause 5, which would be impossible if clause 4 is held to have disposed of all of his personal estate. While it is true that the will speaks from the death of the testator and not from its date, it is, we think, equally true,that the intention of the testator may often be determined from facts and circumstances existing at the date of the will. The whole scheme of the will indicates, in our opinion, a determination on the part of the testator to recognize his obligation to his brother Carl through the years when they had worked together in the cigar manufacturing business by a bequest to Carl of that business, and the further intention, when dealing with the corpus of his estate, to treat his five brothers and sisters with exact equality. The record is barren of any evidence tending to indicate a change in the intention so plainly apparent from the will and the condition of his estate at the time the will was made. Had the testator died prior to February, 1912, and he did die in November of that year,: his five brothers and sisters would have received, according to the terms of his will, approximately $40,000 each. No reason is advanced to show that his intention to so dispose of his estate was changed so that one brother should receive approximately $160,000 and the other four brothers and sisters only $10,000 each.

A case very similar to the one at bar in its facts is Bills v. Putnam, supra. It involves the identical question. There the court said:

“The question in this case arises from a change in the condition of the property after the execution of the will. There is no evidence of any change in the relations of the testatrix and the residuary legatees to indicate or account for an intention on her part to change the apportionment of her property between them. The evidence of a change of purpose in its distribution is furnished solely by the fact of a sale of a large portion of her real estate by the testatrix, and allowing her will to remain unchanged. It is not reasonable to believe that the testatrix, without cause, intentionally changed the disposition of her property so materially as to reduce the shares of two of the residuary legatees to one-fourth of the amount provided for by the will, as the property then was, with a corresponding increase to the shares of the other two. The absence of evidence showing a motive for changing the operation of the will upon the property is evidence upon the .question whether any change was intended by the testatrix.

“It is to be assumed that the testatrix understood the terms and conditions of the will and their legal effect when it was executed. Its provisions, applied to the property at that time, show an intention to divide the bulk of it equally between the four residuary legatees named in the will. Her property then consisted of real estate of the value of $2,900; her wearing apparel, household furniture, and like property, which she was then using in her daily life, and a note against a son-in-law for about $40. • The will provides that the wearing apparel, household furniture, and personal property of every name, nature,- and description, be equally divided between the two daughters; that legacies of $200 each be paid to two grandsons, and a nominal legacy to a son; and that the rest of the property, it now being in real estate, be equally divided between the two daughters, the plaintiff and a grandson. By the subsequent sale of a large part of the real estate it was converted into personal estate, and consequently transferred from the operation of the residuary clause to the special bequest to the daughters, unless the words, ‘personal property/ as used in the bequest to the daughters, are understood as used in a special and restricted sense. The determination of the question raised depends upon the construction to be given to the phrase ‘personal property/ If the language is susceptible of more than one construction, in what sense did the testatrix use it?

“The interpretation of a will is the ascertainment of the testator’s intention. That intention is gathered not only from the words of the particular clause under construction, but as well from the language of the whole will, from the relations of the testator to the persons who are the objects of his bounty, and from surrounding circumstances. Kennard v. Kennard, 63 N. H. 303, 310. But little aid is to be derived from a resort to formal rules, or a consideration of judicial determinations in other cases apparently similar. It is a question in each case of the reasonable interpretation of the words of the particular will, with the view of ascertaining through their meaning the testator’s intention. Robinson v. Portland Orphan Asylum, 123 U. S. 702, 707 [8 Sup. Ct. 327]; Bosley v. Bosley’s Executrix, 14 How. [U. S.] 390, 397.”

The learned circuit judge decreed to Carl Stender, under clause 4, $1,100, that being the amount of the commercial bank account in connection with the cigar manufacturing business, the time the will was made. In this, we think, he was in error. But, inasmuch as the other heirs have not appealed from the decree made and do not question its propriety in that regard, that question requires no consideration. Upon the main point in issue in the construction of the two clauses in question, we believe he reached a proper conclusion, and the decree is affirmed, with costs.

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


author: McAlvay, C. J.

text:
    WILLIAMS v. OTTO.
    Evidence — Brokers’ Commissions — Sale oe Real Estate.
    Testimony tending to show that defendant had listed his farm at $4,500 at a time prior to placing the property in plaintiff’s hands for sale, was erroneously received in contradiction of defendant’s claim that he only agreed to pay a stated commission per acre,' plaintiff claiming that he was to receive all the purchase price above $4,500; it was also improper to admit testimony to prove that the value of the property did not exceed $3,500.
    Error to Eaton; Smith, J.
    Submitted June 16, 1914.
    (Docket No. 77.)
    Decided July 24, 1914.
    Assumpsit by Albert L. Williams against William B. Otto for broker’s commissions. Judgment for plaintiff. Defendant brings error.
    Reversed.

      Elmer N. Peters, for appellant.

      Frank A. Dean and Claude J. Marshall, for appellee.
   McAlvay, C. J.

Plaintiff sued in assumpsit, and, by his bill of particulars, disclosed that his claim consisted of an alleged balance of $2,000 due him as commission upon the sale of defendant’s 240-acre farm. Under the plea of the general issue, defendant gave notice that he would show in defense that he had paid to plaintiff for his services the sum of $1,050; that sum being the amount due plaintiff under the terms of the contract. It was the claim of the plaintiff that defendant agreed to pay him as his commission all over $4,500 received upon the sale of the farm, while defendant claimed that he agreed to pay plaintiff the sum of $5 per acre for so much of the land as plaintiff should sell at a price satisfactory to defendant. The land (240 acres) was actually sold at a price of $7,350 under an arrangement between plaintiff, defendant, and the purchaser that the purchaser should pay $35 per acre for 210 acres and the balance, 30 acres, should be thrown in. Defendant thereupon paid to plaintiff the sum of $1,050, being $5 per acre on 210 acres. The parties to the suit alone knew what the true contract was, and each gave his version of it. For the purpose of corroborating plaintiff’s version and showing its reasonableness, testimony was offered and received over defendant’s objection tending to show that defendant had, in the spring of 1912, listed his farm with Kay & McCormack, a firm of real estate dealers, at the price of $4,500. Testimony was likewise received, over objection, that the farm was worth only $3,500. The jury having rendered a verdict against defendant for $1,800, being the balance of the purchase price over $4,500, defendant reviews the case in this court upon writ of error.

The only assignments of error argued relate to the admission of the evidence relative to prior listing at the sum of $4,500 and evidence as to value.

We are.of opinion that the learned circuit judge erred in receiving the evidence in question. It tended neither to impeach defendant nor to prove the contract upon which plaintiff relied. Hoopengarner v. Stipe, 169 Mich. 307 (135 N. W. 244). See, also, Thompson v. Clay, 60 Mich. 627 (27 N. W. 699); McDonald v. Ortman, 98 Mich. 40 (56 N. W. 1055); West v. Demme, 128 Mich. 11 (87 N. W. 95).

The judgment is reversed, and a new trial ordered.

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


text:
    PEOPLE v. PONSFORD.
    1. Criminal Law — Trial—Talesmen—Sheriff.
    In the absence of the sheriff, the undersheriff is the proper officer to act in summoning talesmen: the fact that the officer has been active in his duty in assisting the prosecuting attorney is hot ground for disqualifying him from summoning jurors to try the case, in the absence of any showing of interest or disqualification other than such official acts.
    2. Same — Voluntary Statements — Admissions.
    The evidence showing that respondent, charged with murder, voluntarily made harmful admissions after his arrest, in the presence of the chief of police and a court stenographer, who reduced a part of the statements to writing, it was not erroneous to admit testimony relating to such statements or admissions.
    3. Same — Appeal and Error — Confession.
    The refusal to strike out a part of the alleged statement was not prejudicial to the accused, when the testimony given by him upon the witness stand covered the same ground and was identical with it.
    4. Same — Jury—New' Trial.
    Where affidavits were filed after the conviction of a respondent, in support of the claim that one of the jurors was disqualified and that he had talked with one of the persons who was present at an assault, etc., occurring on the night of the murder and in which the accused and the deceased participated, but there was no evidence that the juror formed any opinion as to the merits of the prosecution and he expressed no opinion in regard to the guilt of the respondent, the trial court did not err in refusing to set aside the verdict.
    5. Same.
    Respondent, who was convicted of manslaughter, was not entitled to have a verdict directed in his favor, upon evidence tending to show that he and his companions started out with the intention of committing an assault or other crime, that he was present at the attack upon decedent, and actively participated in the events that led tip to the assault, including a chase of the decedent prior to his murder.
    6. Same — Trial—Conduct of Prosecuting Attorney.
    While the statement to the jury by a prosecuting attorney that he believes the accused is guilty, has been held to constitute reversible error, it is not ground for reversal that the prosecutor stated on the trial of a prosecution for murder that he believed the testimony showed beyond all reasonable doubt that the respondent was guilty as charged; since it is, as a general rule, permissible to state what evidence convinces him and should convince the jury of respondent’s guilt.
    7. Appeal and Error — Criminal Law — Charge.
    Errors assigned to the general charge of the court without referring to the portions which are claimed to be erroneous or designating the appropriate page or paragraph of the record, will not be considered.
    8. Same — Exceptions Before Sentence — New Trial.
    Where the trial court expressed an opinion that a motion for a new trial did not take the place of exceptions before sentence, as claimed on the argument, by the attorney for respondent, and the proper steps were not taken to raise the points in the way provided by the statute authorizing a review of the case by that method, the trial court did not err in overruling the alleged exceptions as frivolous and passing sentence before proceedings were taken to appeal the cause.
    Error to Genesee; Wisner, J.
    Submitted June 12, 1914.
    (Docket No. 104.)
    Decided July 24, 1914.
    Herbert Ponsford was convicted of manslaughter.
    Affirmed.

      Lee & Parker, for respondent.

      Grant Fellows, Attorney General, Clifford A. Bishop, Prosecuting Attorney, and William W. Blackney, Assistant Prosecuting Attorney, for the people.
   McAlvay, C. J.

Herbert Ponsford, Frank Caster, and Henry Van Koevering were informed against in the circuit court for Genesee county for the crime of murder. After pleas of not guilty were entered they demanded and were granted separate trials. The trial of respondent resulted in a verdict of guilty of manslaughter, upon which a judgment was later pronounced. The case is before us for review upon a writ of error.

The facts surrounding this homicide, necessary to state, are as follows: On the night of December 6, 1913, the three respondents, Ralph Sova, deceased, and his brothers Edward and Emmett, together with 50 or more people, attended a birthday party at the house of Mr. Lauzon, who was a cousin of the Sovas, in the city of Flint, located between Hector and Wallace streets, near Thread lake, and spent the evening until quite late in dancing, card playing, and drinking beer. A man named Rebtoy was also present, and, as far as the record shows, was the only person who became intoxicated.

Between 12 and 1 o’clock in the morning of December 7th, after respondents, except Ponsford, and most of the guests had departed, Rebtoy seriously assaulted Ponsford in the kitchen, striking him several blows in the face, blacking his eyes, and causing his nose to bleed. Ralph Sova, deceased, who was in the front room, hearing the disturbance, went into the kitchen, separated Rebtoy from respondent, and held him, so that no further assault was made. Respondent, being told to leave, then took his hat and went away, going west to Saginaw street and then north on that street about three blocks to the house where Van Koevering lived, which is called the ice company’s office in the record. This was the first of three dwellings on the west side of Saginaw street south of the bridge over Thread creek.

Seeing a light, he went upstairs to wash and clean himself, and found Van Koevering and Caster in bed. He informed them how he was hurt up at the dance, when one of them said: “Let’s go up and get them.” Both then jumped out of bed, dressed, and the three immediately started downstairs, Ponsford in the lead. Turning north, when near the bridge they met a man (who afterwards proved to be Edward Sova) coming south.

Edward Sova had left the Lauzon house about 15 minutes after Ponsford, and, thinking his brothers had gotten ahead of him, he went up Saginaw street as far as the brewery. Not finding them, he turned back, and had gone south across the bridge when respondents met him. They did not give him any sidewalk, and, one of them assuming a hostile attitude, Sova, taking the middle of the road on the run going south, passed them. The three men at once started in pursuit. He soon stumbled and fell, and, getting up, ran on for some distance, until he fell into a ditch. Respondents were close upon him, and some of them began to throw beer bottles at him while in the ditch, which he warded off with his elbow, one striking him and breaking.

At this time, Ralph Sova, deceased, his brother Emmett, and Rebtoy, who had left the Lauzon house, were coming west on Hector street near Saginaw street, saw these three men chasing one south, and, hearing an outcry, recognized the brother’s voice. They ran to Saginaw street, where they found Edward in the ditch just south of Hector street, being set upon by these men. Emmett testified respondent, who stood to one side, said to them, “Stand back, or I’ll put a hole through you,” placing his hand on his hip. Deceased went to Edward’s assistance and rescued him from the other two respondents, and the two brothers started north with Edward ahead of them, Emmett and deceased walking side by side behind him. The three respondents followed six or eight feet behind, urging them to “get out,” “beat it,” etc., and swore at them.

They proceeded in this way until they came to the place where the path they followed crosses diagonally to the west side of Saginaw street. As they arrived at the west side of the street, Emmett Sova saw one of the respondents strike deceased apparently in the back, -and saw deceased turn around, take a step toward his assailant, and strike at him. This occurred in front of the first and southernmost of the three houses before mentioned. He next saw his brother Ralph down, and the three respondents over him, as he expresses it, “in an awful commotion.” He went to his brother’s assistance, and, as he got to where he lay, one of the men struck him and knocked him down. As he was getting up-another one came for him. He warded off the blow with his elbow, and the fight continued until he landed in the rear of the second house, whereupon respondents disappeared. He went back to where his brother was lying, and, finding his heart still beating, called to Edward to get an officer. Upon the arrival of the officer the man was pronounced dead, and the body was taken in charge.

Respondents went to Van Koevering’s room, which was in the second house north of where the body was found, and went to bed, where they were found and arrested the next morning.

Edward Sova was also an eyewitness of the attack upon deceased. He saw him stagger as though struck, then turn around and throw up his hands to protect himself. At this juncture Edward was knocked down, and remembered nothing until he saw Emmett over the body of deceased and heard him call for help. A post mortem was held, which disclosed severe bruises upon the head and face of deceased, with the brain covered with blood clots, and also a fracture of the skull at the base of the brain.

Respondent was a witness in his own behalf. He admits that he was present and went with his corespondents from Van Koevering’s room, and. was with them from that time until after the tragedy occurred. He denies that he took any part whatever in an assault upon any of the parties or participated in any way in any violence committed.

It is admitted that the only persons present at the time deceased met his death were the respondent, the two men impleaded with him, and the three Sovas. The first error assigned and relied upon by respondent charges a fatal irregularity in drawing the jury.

During the course of the trial, in securing a jury, when it became necessary to summon talesmen, the sheriff not being present, the undersheriff, Mr. Crego, was directed by the court to perform that official duty. It is asserted that this was objected to by respondent on the ground that the undersheriff was not a disinterested person; that he had been engaged in assisting the prosecution, and was a material witness for the people. Our examination of the record does not disclose that any exception was taken at the time to the action of the court. In an affidavit made by respondent on a motion for a new trial appears a statement that such an objection was made and an exception taken to the order of the court, which is given as one of the reasons for granting the motion for a new trial. It also appears that the court considered the matter in giving his reasons for denying a new trial, and in doing so stated what occurred on the trial at the time. In this excerpt from the record the court further said that no objection was made to any jurors summoned by the undersheriff that they were not in all respects qualified to serve. No showing was made as to the disqualification of the under-sheriff, except as above stated, nor upon cross-examination of this officer, who was sworn as a witness on the part of the people, did counsel for respondent make any attempt to show his interest or disqualification.

In the absence of the sheriff, the undersheriff was the proper officer for the court to call upon to summon talesmen. The fact that a sheriff or undersheriff has been active in his duty in assisting the prosecuting officer is not ground for disqualifying him from summoning jurors to try the case, in the absence of any showing of his interest and disqualification other than such official acts. The exact question has been passed upon by this court, and it has been so held in other jurisdictions. People v. Summers, 115 Mich. 537 (73 N. W. 818); People v. Lalonde, 171 Mich. 286 (137 N. W. 74); State v. Tawney, 83 Kan. 603 (112 Pac. 161); State v. Jeffries, 210 Mo. 302 (109 S. W. 614, 14 Am. & Eng. Ann. Cas. 524).

It was a matter in the discretion of the court which does not appear to have been abused.

Error is also assigned because the court permitted Chief of Police McCall to testify to oral statements made by respondent after his arrest on the ground of insufficient foundation laid therefor; and also in permitting part of a written statement taken by the court stenographer later to be admitted in evidence because no foundation was laid for it or showing made that it was voluntary.

It is in evidence that two statements were made by respondent, the one testified to by Mr. McCall being the first, made in his presence and the presence of the sheriff and his officers. We do not think the objection was meritorious. The testimony shows that the statement was voluntary.

The further objection to the first statement was that respondent made a statement directly afterward which was taken down by the court stenographer. This objection was also without merit, for the reason that the record shows it was not the same statement, but was made before the stenographer came. The foundation for the reception of the two statements was sufficient.

During the course of the reading of this statement taken by the court stenographer in evidence the fol-. lowing question appeared:

“Q. Now, Herb, I don’t want you to avoid this thing. I want you to be absolutely straight about it on your own account. That is true. You better do it.”

On account of the nature and language of this question the statement was objected to by counsel for respondent. The objection was sustained, and it was stricken out, together with all of* the statement after it. That portion which preceded and which had been read was allowed to stand. The court, as soon as his attention was called to what he considered an improper question, by objection on the part of respondent, sustained the objection and struck out all the balance of the statement.

The contention is that the entire statement should have been taken from the consideration of the jury. We have read this statement, and, when it is compared with the testimony of respondent voluntarily given upon the trial, we find the statement taken by the stenographer, as far as it was allowed in evidence, identical with his testimony; therefore the refusal to strike it out cannot be considered as prejudicial to respondent.

Closely connected with the exception to the order of the court in directing the undersheriif to summon talesmen for a jury is the claim that a certain juror so summoned was discovered after the trial to be disqualified. The question was raised upon the motion for a new trial, by affidavits which were presented and passed upon by the court, and error is assigned upon the refusal of the court to grant a new trial on that ground. From the extended examination had upon his voir dire it appears that the juror was passed by the people and by respondent. The three affidavits on the part of respondent show that this juror, who was a carpenter, came to the Lauzon, house, and while there talked with Mrs. Lauzon in regard to the assault made by Rebtoy upon respondent on the night of the dance. They do-n'ot show'that he ever had or expressed any opinion in regard to the guilt or innocence of respondent. Opposing affidavits showed that Undersheriff Crego did not know this juror when he summoned him; that the juror was acquainted with Lauzon, and was at the house for the purpose of returning a jackscrew which he had borrowed; that at the time he did not know the charge against respondent ; and that the facts of the case were not discussed. The court found, as a matter of fact, that this juror had not formed or expressed an opinion in. respect to the guilt or innocence of respondent and was not disqualified, and denied the motion for a new trial; in which finding, after an examination of the facts then before the court, we concur.

Two of the assignments of error are as follows, and will be considered together:

“(1). That the court erred-in submitting said cause to the jury; and the verdict is contrary to the undisputed testimony; and there is no-evidence in the case that warranted the jury in "bringing in a verdict of manslaughter.”

“(2) That the court should have instructed the jury to acquit the respondent, as requested by the said respondent, as there was no.eyidefice that he struck any blow or encouraged any one else to do so, or committed any assault.”

Both of these requests are, based upon the contention rrjade for respondent that there was no evidence, direct or circumstantial, to connect him with the homicide or to show that he was in any way responsible for the death of Ralph Sova, and that the testimony shows the contrary; that the fight, in which he took no part, was brought about suddenly; that there was no testimony in the record to show that he struck a blow or encouraged anybody else to do so.

While it is true that there is no testimony showing any specific blow struck by respondent during the time covered by the facts stated, yet from the statement of facts we have given, including respondent’s testimony, it appears that there is evidence tending to show the purpose for which these three left Van Koevering’s room. He admits that he was with them from that time, both while, chasing the man down the street until he fell into the ditch, and on the return to the place' where the homicide was committed. There is evidence in the case tending to show that this purpose was carried out and of respondent’s active participation in all that occurred, up to and including the fatal assault by the three men upon the deceased. The court was therefore not in error in refusing respondent’s request for a directed verdict of not guilty.

Error is also assigned upon a statement made by the assistant prosecutor, who opened the case upon his argument to the jury. All that the record shows in regard to the matter is as follows:

“In his address to the jury, Mr. Blackney, assistant prosecuting attorney, used this language:

“ ‘We believe under tbe testimony in this case, after you weigh it carefully and well, after you think of all the incidents and circumstances in evidence in this case, after you have weighed the testimony and the manner of respondent in this case, which you have seen while you have seen him upon the witness stand, I believe, gentlemen of the jury, the testimony shows beyond all reasonable doubt that the respondent Herbert Ponsford is guilty in manner and form as the people have in their information in this ease charged.’

“Mr. Lee (respondent’s counsel) : To that we take an exception. A very decided exception.”

The record does not show that the court’s attention was directed to this exception, nor does it appear that the court was requested to charge the jury with reference to it, although there was ample opportunity to do so. Error is assigned only upon,the last four lines of the above statement.

This court has held in People v. Quick, 58 Mich 321 (25 N. W. 302), that the statement of a prosecutor upon his official oath that he believed the respondent guilty as charged was reversible, error. The same was also held in People v. Dane, 59 Mich. 550 (26 N. W. 781), where the prosecutor made the positive statement to the jury that he knew that the respondent was guilty. As stated in the latter case:

“It is improper for one occupying the position of the prosecuting officer to make a statement to the jury of a fact, as of his own knowledge, which has not been introduced in evidence under the sanction of an oath.”

In the cases cited, 'and other like cases, such statements are held to be prejudicial and erroneous, because they are not in the nature of conclusions based upon the facts in evidence. From the language in the instant case, read as a whole, the prosecuting officer was drawing his conclusions from the evidence in the case, and so stated at great length. In fact, it was an argument addressed to- the jury to come to a verdict only after weighing all of the evidence carefully and well, and argued that from the evidence he believed respondent guilty. This court has repeatedly distinguished between cases where the language used was of the same character as in the instant case and the cases above cited, and in doing so said:

“This court has repeatedly expressed itself as to the impropriety of the prosecuting attorney expressing to the jury his personal opinion as to disputed facts (citing People v. Quick, supra; People v. Dane, supra; and People v. McGuire, 89 Mich. 64 [50 N. W. 786]); but it has never been held that he may not say to the jury that certain testimony in the case impresses him with the belief that the respondent is guilty, and why it so. impresses him (citing People v. Welch, 80 Mich. 616 [45 N. W. 482]; People v. Hess, 85 Mich. 128 [48 N. W. 181], and quoting from the latter case as follows:

“ ‘It is not proper for the prosecuting officer to tell the jury that he believes the defendant guilty, as his belief is not evidence in the case; but he has the right to argue from the testimony that the defendant is guilty, and to state to them what evidence before them convinces him, and should convince them, of such guilt. To deny to a prosecuting officer this privilege would be to deny to him the right to place before the jury the logic of the testimony which leads his mind to the inevitable conclusion of guilt, and which he has the right to presume will lead them to the same conclusion if they view it as he does.’ ”

People v. Ecarius, 124 Mich. 616, 624 (83 N. W. 628).

The practice by prosecuting officers of stating their beliefs as facts has never been favored by this court, and such officers should use great care in avoiding such statements. The statement complained of was not prejudicial.

Errors are assigned upon the refusal of the court to give six certain requests to charge on the part of the respondent. From our examination of these requests and of the charge as given it will be sufficient to make the general statement that those which were not included in the general charge were properly refused.

Several errors are assigned to the general charge of the court without specifying the portions of the charge referred to, or designating the pages of the record or paragraphs of the charge. This court has not favored such practice, and cannot make examination of the whole charge in order to determine which portion will fit any particular assignment of this character. People v. Sanders, 139 Mich. 442, 446 (102 N. W. 959).

Error is assigned on the ground that the court refused to give respondent an opportunity to bring the case to this court upon exceptions before sentence. The record contains no motion or other statement to that effect made on the part of respondent. We find, however, in his reasons for denying the motion for a new trial a statement by the court that on the hearing of that motion counsel for respondent stated that it was his understanding that it took the place of exceptions before sentence under the statute. The court expressed his opinion that such Was not his understanding of the practice, and said, if it were, he held that all such exceptions and reasons 'were frivolous, and constituted no -ground for delaying sentence. There is nothing in the record to show that the statute relied upon was complied with in any respect. The motion for a new trial was made March 2, 1914. It was denied March 7th, and sentence pronounced. The proposed bill of exceptions was filed March 17th and settled April 1st.

We have examined the cha,rge_of the court as given to the jury, and are satisfied that the case was submitted without prejudicial error, and that none of the .many reasons upon which the motion for a new trial was based were meritorious, and that the court properly denied such motion.-

The conviction and judgment of the circuit court are affirmed, and the cause will be remanded to the circuit court for Genesee coupty for the execution of the judgment.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.' •


author: Steere, J.

text:
    CHAMPAIGN v. DETROIT UNITED RAILWAY.
    1. Street Railways — Personal Injuries — Evidence oe Neglect to Give Signals.
    Evidence that plaintiff and her husband, who were driving along the street car track of defendant on a bright, clear day, turned to look for a car before crossing the track, but observed no car approaching; that they heard no bell or other signal, and that their vehicle was struck as they were passing over the track, and was overturned, throwing them out and injuring them; that they did not see or hear the car until it struck the rig, met by testimony of defendant showing that the speed of the car was moderate; that signals were given, and the car only struck the vehicle slightly, doing no injury to it, and was promptly stopped, supported by the statements of substantially all the witnesses who saw the accident that they heard the bell sounded, reviewed, and held, to be insufficient to establish negligence in the failing to give warning signals.
    2. Same — Signals—Bell.
    In the middle of a block, with nothing to indicate the probability of any accident, it is not the duty of the motorman to sound his gong continuously.
    3. Same — Discovered Negligence — Last Clear Chance.
    The rule of discovered or subsequent negligence has no application to a case in which the plaintiff, driving along a car track about 30 feet in advance of a street car, attempted to turn and cross the track; the motorman receiving no intimation that plaintiff intended to cross in front of the car.
    4. Same — Contributory Negligence.
    Where plaintiff or the driver could not have failed to perceive the oncoming car if they had looked with ordinary care, in the absence of evidence that the car was running at a high rate of speed, contributory negligence will preclude her recovery.
    5. Same — Appeal and Error — Striking Out Testimony.
    And where the testimony of a witness, who stated that she saw the car as it passed and testified relative to its rate of speed, was struck out by the court, saying in so ruling, “if she didnft see the car, you can strike that out,” and plaintiff’s counsel did not attempt to éxplain the matter or bring out what the witpess had observed in answer to the suggestion of the court, but merely excepted, reversible error was not made out.
    Error to Wayne; Van Zile, J;
    Submitted June 4, 1914.
    (Docket No. 21.)
    Decided July 24, 1914.
    . Case by Mary Champaign against the Detroit United Railway for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      Ignatius J. Salliotte, for appéllant.

      Corliss, Leete & Joslyn (William ,G. Fitzpatrick, of counsel), for appellee. ^
   Steere, J.

This action was brought by plaintiff to recover damages for personal injuries resulting from a collision between one of defendant’s street cars and a market wagon in which she, riding with her husband, was attempting to cross defendant’s tracks in front of an approaching car. She has removed the case to this court by writ of error for review of a judgment on directed verdict in ' favor of defendant.

It was the opinion of the trial court that plaintiff’s proofs failed to disclose any actionable negligence on the part of defendant, and that the accident was attributable solely to the rig in which plaintiff was riding being unexpectedly, and without previous indication of such purpose, turned upon the street car tracks at a time when a passing car was so close that it was impossible for the motorman to stop it in time to avoid the collision. ,

Plaintiff, a married woman near 60 years of age, resided with her husband on a farm in the township of Ecorse, near the city of Detroit. They were engaged in farming and market gardening. In the forenoon of September 8, 1911, they were going home from the western market of Detroit where they had taken a load of tomatoes, driving with an empty market wagon drawn by a single horse, eight years old and gentle. Their route home led westerly along Jefferson avenue, on which was a double track of defendant where cars were running in each direction at frequent intervals. They were familiar with the street and knew this. The portions of the thoroughfare used as a driveway for vehicles on each side of the street car tracks were about 17% feet wide. In going west towards their home the proper side for them to drive was on the north or right of the tracks. This they did for some distance until near where the track of the Detroit, Toledo & Ironton Railroad crossed the street, when they crossed to the south or left side to avoid an excavation on the north side for water mains. They drove along the south side for quite a distance past the excavation, keeping about halfway between the curb and car track, to a point some distance beyond the steam railroad crossing and about midway between Portland and Polaski streets, which crossed Jefferson avenue, when, after meeting two loaded sand wagons going east, the husband, who was driving, turned the horse sharply to the right, intending to recross the street car tracks and get back on the right side of the street again. Both claimed to have looked and listened, and neither to have seen or heard any approaching car, but a west-bound car came in contact with their wagon before it cleared the track, with sufficient force to tip it over, throwing them out. In her fall plaintiff sustained a fractured clavicle and other injuries, from which she was incapacitated for some time, and at the trial claimed to have not fully recovered. The horse was not injured and the wagon was in condition to continue the journey with it.

The negligence alleged in plaintiff’s declaration is stated to be that the car, “without, giving warning of its approach by sounding its gong and otherwise, and being propelled at a great and-excessive rate of speed, struck the wagon in which plaintiff and her husband were then riding,” etc. The record furnishes no evir dence that the car was being run' at an unusual, unlawful, or excessive speed prior to the time the conveyance turned across the car track. The various witnesses who testify as to the rate of speed place it from 10 to 14 miles per hour. The highest estimate given was by á witness named Aston, called by defendant, a passenger on the car, who stated the speed to be from 12 to 14 miles per hour, which was first slackened by a sudden application of the air brakes,' which “lifted the people right out of their seats in the car.” As bearing upon the rate of speed and promptness of the stop made by the car, he testified that his attention was first attracted by a loud sounding of the gong, accompanied by application of the brakes, and looking up he saw the rig crossing the track about 15 or 20 feet ahead, being then about the middle of the track, and he said:

“The car didn’t hit the wagon very hard. It jarred the wagon slightly, and then shoved it, and the wagon tipped over. It didn’t hit the wagon sufficiently to knock * * * the people .out of the wagon until the wagon went over, and then the people fell out. I should judge the car could not have gone over six or seven feet after it came in contact with the wagon.”

Neither plaintiff nor her husband give any direct testimony as to the speed of the car, claiming they did not see it at all until they collided with it. Plaintiff in one portion of her testimony stated that there was a curve in the track which prevented them from seeing the car, and that when they attempted to cross they were about 50 feet below the curve. She also testifies in part as follows:

“I know cars run both ways on Jefferson avenue, and I knew a car might come from the east going west at any time there, and a car might come from the west going east. I knew that long before this accident happened. * * * We could see on Jefferson avenue about 50 or 100 feet from the place where the accident happened. The car that hit the wagon was going in the same direction we were going. The back wheel of the wagon was on the track when it was hit by the front part of the car. I don’t remember where the wagon was standing when I. fell out of it. I know the car struck the rear end of the wagon. We turned around and looked for a car, and we didn’t see no car coming. We just looked once, and then we started our horse over across the track. * * * _ At the time the accident happened it was nice and bright and clear.”

Her husband described the conditions and circumstances of the accident in part as follows:

“Well, when I come — before I crossed — when I came to turn I looked back there. I could see about pretty close to — 200 feet, about that. I was looking if I could see the car coming, so when I seen the car — I didn’t see no car — so I went across. * * * I was going down alongside of the curve there about half and half between the curb and the street car track. We got struck by the car when we were crossing the track. We was pretty near passed. It only struck the hind wheel and spoke. The mark is there yet. I seen the mark. It was no more than that much from the tires right on the side, pretty near. The car just struck the wheel and then he turned the wagon around, swung around there, and then we went upside down. * * *»

Cross-examination:

“I knew I might expect a car going either direction along there any minute. * * * I looked when I come to turn to cross, I looked below the turn. I only looked back once, then I crossed.

“Q. And that is just before you started to cross the track? • '•

“A. I was on the track; yes, sir.

“Q. You were on the track when you looked?

“A. Well, I was just turning there; I was on the track; I was just'turning to cross.

“Q. Didn’t you look for the car until you were on the track? • '

“A. Well, just as I started to turn to cross I looked for a car; I didn’t see any. * * *

“Q. Now, how did you turn across the street car track?

“A. Well, I turned my horse to go across.

“Q. Yes, I know; but I mean how was the turn made? Was it a sharp turn, or did you just go angling across?

“A. No, I turned sharp, a sharp turn, right turned sharp. * * * '

“Q. When you got to this point you turned square across the track?

“A. Of course. * * *

“Q. Now, just before you turned to make that crossing did you stop your horse?

“A. No, sir. .

“Q. Did you look for the car then?

“A. When I go across I look.

“Q. Just as you turned?

“A. Yes, sir.

“Q. All right; how did you look?

“A. Well, you see, I turned back," and looked back about 25 feet or more, and then I didn’t see no car, and I didn’t hear any noise, so I went across. * * *

“Q. When you turned around and looked that time how far could you see along the street car tracks, back towards the Lima bridge?

“A. Well, I am telling you when I started to turn to cross the street it was — I could see 200 or 250 feet, about. * * *

“Q. Just how far did you turn around in your seat?

“A. Well, I just turned that way [indicating]. Of course, the curve where the turn was was below me, so I could see only about 200 or 250 feet. I turned more than halfway around. * :!: I thought it was all right. My horse was gentle, and I was going on a 'walk. Even without drawing the lines at all, if I had simply said, ‘Whoa,’ he would have stopped at once, but I went along. My horse is not afraid of the street cars. He would stop right at the hind end of a street car if necessary. The horse wasn’t hurt. The wagon was pretty well bruised.”

A witness called by plaintiff, named Walter Kempa, who worked in a meat market near the scene of the accident and saw what happened, testifies in part:

Direct examination:

“The car was about 15 feet from me when I noticed it. The motorman rang the gong when he was about 15 feet away. The car did not stop before it struck these ^ people. It went about 10 feet after it struck them before it stopped.' * * *”

Cross-examination:

“When I first saw the wagon it was just crossing, coming up towards the track. The gong was ringing and the wagon kept right on coming, and by the time it got to the street car track the car got there, too, and hit the wagon, and the car went about ten feet after that.”

Redirect:

“The wagon when I saw it first was just turning. I didn’t notice how far the car was then. The first I noticed of the car was when I heard the gong ringing and the car was about 15 feet from the wagon.”

Recross-examination:

“Q. -I understood you to tell me a minute ago that when you first saw the car it was 15 feet away from the wagon, and the wagon was just starting to turn there?

“A. Yes, sir.

“Q. Is that what you mean to say now?

“A. Yes, sir; that is it.

“Q. You saw the car 15 feet away when the wagon started to turn?

“A. Yes, sir.

“Q. It was going up towards the track?

“A. Yes, sir; that is it.

“Q. Kept on coming?

“A. Yes, sir.

“Q. And the car kept coming?.

“A. Yes, sir.

“Q. Kept coming, moving towards the wagon?

“A. Yes, sir.

“Q. The collision occurred and the car went about 10 feet and stopped?

“A. That is it. * * * .

“The Court: Where was Mr. Champaign when you saw the car 15 feet away?

“A. He was. just turning.

“Q. Across?'

“A. Yes, sir.

“Q. On what track, was he?

“A. On the right side.

“Q. On the right side track?

“A. Yes, sir; right side.”

The testimony of all witnesses who saw the car immediately before the accident is in substantial harmony that it was dangerously near and in plain sight when the rig started to turn across the track, variously stating the distance at from 15 to 30 feet.

That the gong was sounded is conclusively shown. Five witnesses who saw the accident, one of whom was called by plaintiff, so testify. The attention of some, who had not previously noticed it, was attracted to the situation by the rapid- ringing of the gong and sudden checking of the car. The evidence is overwhelming upon this point, with'nothing to the contrary except the negative testimony of plaintiff and her husband that they did not hear it. The evidence in the case, with proper inferences therefrom, cannot be held sufficient to sustain a verdict for plaintiff on the ground that proper warning was not given as soon as the short turn of the rig toward the tracks indicated an intention to cross them. Prior to that time there is nothing to indicate any duty to give warning. The car was not running at an excessive or unlawful speed, and was in- the middle of a block between crossings. The motorman was not required to sound his gong continuously at such a place, nor until he saw, or should have seen, that some one of those who might be pursuing their course in safety along the regularly traveled ways on either side of the track indicated a purpose to cross, or approached dangerously near. This is not a case of a car coming to a crossing where it is made the duty of the motorman to give warning of its approach.

The rule of discovered negligence can have no application here. This turn upon the track was made when the car was less than 30 feet away. As soon as an intention to cross was first made apparent, the motorman did everything possible to give warning, stop the car, and avoid the accident.

Under the undisputed evidence, even the rules of contributory negligence as applied to the conduct of those attempting to go over the tracks at regular crossings preclude recovery. Plaintiff’s husband was driving a gentle horse, which he states was not afraid of the cars and would have stopped at once “if I said, ‘Whoa.’ ” It was a clear, bright day. They were in the middle of the block between crossing streets, pursuing their way in safety by the side of the tracks along which they knew cars were constantly passing, and “one might be going either direction along there any minute.” They were sufficiently beyond any curve so that the driver could see at least 200 or 250 feet in the direction this car was coming, and without stopping, at a time when the car was within from 15 to 30 feet of them, they “turned sharp” upon the track in an attempt to cross. In the face of such unquestionable evidence, and particularly in the absence of evidence that the car was running at excessive speed, it cannot in reason be said that plaintiff’s testimony that they looked or listened, and did not see or hear the car, raises an issue for the jury. The car came to that point running along the track. Had they looked to the extent and at the time the law requires, they could and must have seen it. The physical facts which they themselves testify to negative their own testimony to the contrary.

The rules of requisite precaution before entering upon the short danger point to be traversed in crossing a railway have been so thoroughly reviewed in the following decisions and cases there cited that further discussion would be superfluous: Fritz v. Railway Co., 105 Mich. 50 (62 N. W. 1007); Borschall v. Railway, 115 Mich. 473 (73 N. W. 551); Merritt v. Foote, 128 Mich. 367 (87 N. W. 262); Stevenson v. Railway, 167 Mich. 45 (132 N. W. 451); Manos v. Railway, 168 Mich. 155 (130 N. W. 664); Puffer v. Lighting Co., 173 Mich. 193 (139 N. W. 19); Colborne v. Railway, 177 Mich. 139 (143 N. W. 32).

Error is assigned upon a conditional ruling of the court touching certain testimony of a witness named Lulu Strewling, who lived near by, at whose house plaintiff was taken and cared fúr, remaining for a couple of hours after the accident, which witness did not see. Amongst other things she testified:

“I didn’t see the accident that occurred to them in September, 1911, until it was over. I first saw the car before it struck the wagon. I didn’t hear any bell sounded. This car didn’t slow down at all as it passed the curve. I was in the back of the house when this accident occurred. I was in between the two buildings in back of the house. I saw the car as it passed. After the accident Mrs. Champaign was taken to my place.”

Counsel for defendant here said:

“I ask all the witness’ testimony with regard to seeing the car and whether it checked up be stricken out. * * *

“The Court: If she didn’t see the car you can strike that out.”

To which counsel for plaintiff excepted without argument or explanation. Witness’ statement that she did not see the accident and was at the time in between two buildings, in back of the house, evidently left some uncertainty in the recollection of the court whether or not she testified to having actually seen the car; and so it was said that “if she didn’t see” it, her statement that the car was not checked might be stricken out. No claim is made by defendant that the car was checked until the rig turned towards the track just before the accident, and witness’ own testimony negatives her having seen the car at that point. The objection appears to have been somewhat frivolous and the indefinite ruling unimportant. The matter was left open for plaintiff’s counsel to clear up the uncertainty and pursue the subject if desired. As this record presents the question, this uncertain ruling complained of appears immaterial, and is not reversible error.

We conclude that under the undisputed evidence in this case plaintiff has failed to establish prima facie the-two requisites of negligence by defendant and freedom from negligence on. her part.

The judgment is affirmed.

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


text:
    McCABE v. TOWNSHIP BOARD OF THE TOWNSHIP OF BURNSIDE, LAPEER COUNTY.
    1. Constitutional Law — Intoxicating Liquors — Prohibition— Local Option.
    Act No. 170, Pub. Acts 1911, amending the provisions of the liquor law, 2 Comp. Laws, £ 5386, so as to authorize a township board or other municipality to reject all liquor bonds, is unconstitutional, because the title of the amended statute is not broad enough to include prohibition of the liquor traffic.
    2. Same — Statutes—License.
    The amendment of the liquor law of 1909, Act No. 291, employing the word “licensing” in the title of the amendment, so as to read “An act to provide for the taxation, licensing and regulation of the sale of liquor,” did not alter the purpose of the original act (Act No. 313, Pub. Acts 1883), so as to permit an amendment which would effect prohibition.
    Certiorari to Lapeer; Smith, J.
    Submitted June 9, 1914.
    (Calendar No. 26,275.)
    Decided July 24, 1914.
    Mandamus by Matthew McCabe against the township board of the township of Burnside in Lapeer county, to require respondent to accept relator’s liquor bond. An order was entered denying the writ. Relator brings certiorari.
    Reversed.

      Walter H. Witt (B. F. Reed, of counsel), for appellant.

      Geer, Williams & Halpin, for appellees.
   McAlvay, C. J.

These are proceedings by writ of certiorari to review a final order of the circuit court for Lapeer county, denying a writ of mandamus to compel respondent township board to approve a retail liquor dealer’s bond.

The relator in the mandamus proceedings, possessing the qualifications required by law of a retail liquor dealer, was engaged in that business during the year ending April 30, 1914, and, proposing to continue in such business, filed his application therefor in due form with the township clerk, and at the same time delivered to said officer the required bond duly executed by him as principal and the Michigan Bonding & Surety Company, a domestic corporation, as surety. This application was considered and approved by the township board, and such approval was certified on the application by the township clerk.

The acceptance of this bond having been protested, as provided by law, by petition signed by a majority of the electors, relator, immediately after the approval of his application, tendered to the township board a new bond in the penal sum of $6,000, the amount fixed by the township hoard, which bond was duly executed by him as principal and by two sufficient sureties, who qualified under oath as required by law, such bond conforming with the statute in form and substance in every respect.

The township board, at a meeting regularly held, refused to approve this bond by a tie vote. Thereupon relator filed his petition in the circuit court for Lapeer county, praying for a mandamus to compel respondent board to convene and approve said bond. An order to show cause was duly issued and served. To this order two separate answers were filed by the members of the board, both admitting all of the facts stated in the petition.

The answer joined in by the two members of the board who favored and voted for approval of the bond also admitted that the prayer of the petition should be granted. The answer made by the two members who opposed the approval of the bond justified their refusal to do so, as follows :

“They admit that the bond signed by relator, as principal, and James F. Martus and John G. Homer, as sureties, was not rejected by said township board because of the form of said bond, or the insufficiency of the sureties.

“They admit that they believe they are justified in rejecting and refusing any and all bonds, regardless of the sufficiency of the sureties, because of the language of Act No. 170 of the Public Acts of Michigan for the. year 1911, quoted in relator’s petition,” etc.

Upon the return day of the order to show cause the matter was heard before the circuit court on the petition and answers, and an order and judgment was made and entered denying the prayer of the petition.

There is no dispute upon the facts in this case. The question involved is the constitutionality and proper construction of the^act referred to and relied upon by two members of the respondent board as their justification for rejecting and refusing to approve relator’s bond. The act referred to is Act No. 170, Pub. Acts 1911, which is amendatory of section 8, Act No. 313, Pub. Acts 1887, being chapter 132, § 5386, 2 Comp. Laws, the material portion of which reads as follows:

“The township board of any township, the board of trustees of any village or the common council of any city may, by a majority vote, reject any or all such bonds presented to them for their approval.”

The contention of relator and appellant is that this portion of the act is unconstitutional, for the reason, as stated in his brief, that:

“It grants power to the local board or council to prohibit the liquor traffic altogether, and is therefore repugnant to the object expressed in the title of the act amended, which is, ‘to provide for the taxation [licensing], and regulation of the business of manufacturing, selling, keeping for sale, furnishing, giving,, or delivering, spirituous and intoxicating liquors, and malt, brewed, or fermented liquors, and vinous liquors, in this State,’ ” etc.

The law regulating the liquor traffic in this State, as is well known to the profession and to laymen, since its first enactment to the present time, has frequently been amended. This court has often been called upon to settle questions which have arisen from year to year in the enforcement of its provisions, and also in construing and determining the constitutionality of many of its provisions.

Act No. 313, Pub. Acts 1887, superseded all former legislation relative to the liquor traffic, and, as amended from time to time, continues to be the statute which controls the business. As its title indicates, it was a statute to provide for the taxation and regulation of the liquor traffic. An amendment to its title was passed by Act No. 291, Pub. Acts 1909, by which it was made to read “An act to provide for the taxation, licensing and regulation of the business,” etc., which is its present entitling.

To give an extended history of this legislation would be of no benefit to the profession by reason of the fact of its familiarity with the amendments to the original act and the decisions of this court upon questions which have been raised under it. It has been repeatedly held by this court that the statute is one which provides for the taxation and regulation of this business, and that provisions for prohibiting the liquor traffic are not germane to, and cannot be legally enacted under, a title expressing the object of the statute to be taxation and regulation of the traffic. People v. Gadway, 61 Mich. 285 (28 N. W. 101, 1 Am. St. Rep. 578); In re Hauck, 70 Mich. 396 (38 N. W. 269). See, also, Timm v. Common Council of Caledonia, 149 Mich. 323 (112 N. W. 942), and cases cited; Brown v. Common Council of Sparta, 167 Mich. 492 (133 N. W. 527), and cases cited.

It is contended on the part of respondent and appellee that the portion of section 8 under consideration and under which the right is claimed to reject and refuse to approve the bond in question extends to any and all bonds which may be presented for approval under the statute, and that the construction given by the circuit court was correct. In support of this contention it is urged that by reason of the amendment to the title of this act whereby the word “licensing” was inserted so that it reads, as already stated “An act to provide for'.the taxation, licensing and regulation of the business,” the scope of the statute is enlarged, and that the-power to license involves the exercise of the power to prohibit.

We agree that the clause under consideration, when read in connection with the balance of section 8, of which it is a part, clearly includes all bonds which may be presented to the township board for approval; but it does not follow that the amendment to the title of the act enlarged its scope to the extent claimed.

We must first consider the effect of the introduction of the word “licensing” into the title of this act. In so doing we must bear in mind the former decisions of this court in sustaining the constitutionality of this law and declaring the object for which it was enacted.

The legislature passed the first act providing for the taxation of the business of manufacturing and selling spirituous and intoxicating liquors in 1875. See Act No. 228, Pub. Acts 1875. The entitling of this act did not include the word “regulation” at the time it was enacted. Section 47 of article 4 of the Constitution of 1850, then in force, prohibited the granting of licenses for the sale of intoxicating liquors. This prohibition was stricken from the Constitution by amendment submitted to vote in 1876. The act of 1875, as later amended, was repealed by Act No. 268, Pub. Acts 1879, which was also entitled an act for the “taxation” of the liquor traffic. Act No. 313, Pub. Acts 1887, included in its title the words “taxation and regulation” of the liquor traffic, and superseded all former legislation on this subject. This last act is the basis of the present law included in chapter 138, 2 Comp. Laws, entitled “The Liquor Traffic.”

The decisions of this court, by reason of what is said jn them concerning licenses, relied upon by respondent to support the contention that by the amendment to sectidn 8, now under consideration, power was given to municipal bodies and boards to prohibit in their jurisdictions carrying on the business of selling intoxicating liquors, were based entirely upon the proposition that the taxation of this traffic was the exercise of the police power of the State (namely, Youngblood v. Sexton, 32 Mich. 406 [20 Am. Rep. 654]); and see, also, Kitson v. Mayor of Ann Arbor, 26 Mich. 325), and arose before the clause prohibiting granting liquor licenses was. stricken from the Constitution, and the question raised was that the legislation construed was contrary to the prohibition in the Constitution. The court held that a tax upon the liquor traffic was not licensing it, and did not come within the condemnation of the Constitution.

This court, in construing the present liquor law and its predecessors, has consistently upheld the constitutionality of such laws upon the theory that their purpose was taxation and regulation. Notwithstanding this fact, and undoubtedly for the reason that this law contained “conditions inconsistent with a purely tax system,” beginning with the decision in the case of Robison v. Miner, 68 Mich. 549 (37 N. W. 21), which is the leading case upon the constitutionality of the law of 1887, this court has repeatedly used the word “licensing” in connection with the word “regulation” as properly expressing some features of the permission granted to enter upon this business after all the statutory conditions precedent had been complied with, but always stating that the effect of this law was not the granting of a license; In Sherlock v. Stewart, 96 Mich. 193-197 (55 N. W. 845, 21 L. R. A. 580), Mr. Justice Grant, speaking for the court, said:

“The system, in this State, is not purely a tax system. The fee to be paid as a condition precedent to entering upon the business is called a ‘tax,’ but there are other conditions precedent which are inconsistent with a purely tax system. These provisions partake of the character of a license” — citing Black on Intoxicating Liquors, § 108.

In People v. Sykes, 96 Mich. 452-454 (56 N. W. 12), the court said:

“The right to carry on the business is in the nature of a license to the party . who complies with the statute.”

From a careful consideration of the terms, conditions, and requirements imposed by the statute which have all been recognized, so far as the decisions of this court are concerned, as an exercise of the police powers of the State, and, as such, upheld as constitutional, we conclude that in adding the word “licensing” to the title of this act and leaving the body of the act as it was, except adding further regulatory requirements, the legislature did not intend to, and, in fact, did not, change the purpose of the act as one of taxation and regulation. •

It follows that the amendment under consideration, added later, is unconstitutional, for the reason that it in terms grants power to a board or council to prohibit the liquor traffic altogether, and is therefore repugnant to the object expressed in the title of the act amended, as appears, from, the authorities herein cited, to have been repeatedly held by this court.

The order and judgment of the circuit court are reversed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.

      For the amended section see . 2 How. Stat. (2d Ed.) § 5062.