source: Caselaw Access Project

author: McAlvay, O. J.

license: Public Domain

text:
    PEOPLE v. RYNO.
    1. Rape — Consent—Evidence—Reputation—Oh astity.
    The bad reputation of a prosecuting witness above the age of consent prior to the date of an alleged rape is admissible to show that the intercourse may have been consented to.
    2. Same — Instructions—Lesser Ofeenses.
    On a prosecution for assault with intent to rape, it is error not to instruct on the lesser offenses included in the offense charged.
    Error to recorder’s court of Detroit; Phelan, J.
    Submitted October 18, 1906.
    (Docket No. 163.)
    Decided April 30, 1907.
    William A. Ryno was convicted of an assault with intent to commit the crime of rape, and sentenced to imprisonment for not less than one year in the State prison at Jackson.
    Reversed.

      Thomas J. Mahon and J. Edward Bland, for appellant.

      Ormond E. Hunt, Prosecuting Attorney, and Walter M. Trevor,_ Assistant Prosecuting Attorney, for the people.
   McAlvay, O. J.

Respondent, with two others, was informed against upon a charge of rape before the recorder’s court of the city of Detroit. Upon a separate trial, he was convicted of an assault with intent to commit the crime of rape, and sentenced to be confined not less than one year in the State prison at Jackson.

The facts of the case upon which the prosecution relied were as follows: These three respondents were employed by a certain firm, engaged among other things in moving household goods in the city of Detroit. That for the purpose of moving such goods they came to the house where the mother of the complaining witness lived, with a team and moving van, towards evening of the ?th day of September, 1904, loaded up the van with furniture to take to the house to which the mother was moving, and, when ready to start, the young woman, who was above the age of 16 years, at the request of the mother, because it was raining at the time, rode with them. After arriving at their destination, and after the furniture was put into the house, when the young woman was about to leave to go back to her mother, she claims that these men seized and carried her from the front room into the kichen, threw her upon the floor, and each of them by force and against her utmost resistance had sexual intercourse with her. She made no complaint until the next morning, when she told her mother, because, she claims, she was afraid to do so. She also testified that she contracted a venereal disease from one of these parties. Her family physician testified that, when he examined her, there was no evidence of penetration through the hymen; that the complete act could not have been committed on account of her undeveloped condition; that he treated her during the latter part of September for gonorrhea.

On October 5th two officers entered by the side door the premises of the employer and asked for these men. Respondent was present, but, being unknown to the officers, passed out of the front door. He went to where the other two respondents were with the team, and they soon after left the team standing in the street four or five blocks away from the barn or office, and telephoned to the employer where the team was left. Respondent went away the same day, and was afterwards arrested at Flint. The officers who arrested him testified that he confessed that he had intercourse with the girl. The prosecution on the trial abandoned the charge of rape, and asked for a conviction for an assault with intent to commit the crime of rape.

Upon a writ of error respondent asks this court to reverse the judgment of the court below. Of the numerous errors assigned it is necessary to consider but a few.

On the part of respondent two witnesses were produced, who testified 'they knew the complaining witness well, and to each of them the following question was propounded: “ Q. Do you know her general reputation in the neighborhood in which she lives for chastity ? ” In each instance objection was made by the prosecutor and sustained. To these rulings exceptions were taken and upon these exceptions errors are assigned. The trial court was in error. The bad reputation of a prosecuting witness above the age of consent for chastity prior to the date of the offense charged, to show that the intercourse may have been consented to, is relevant. 3 Greenleaf on Evidence (16th Ed.), § 214; Underhill on Criminal Evidence, § 418; People v. Abbott, 97 Mich. 486; People v. McLean, 71 Mich. 309.

Error is also assigned because the court failed to properly instruct the jury as to the lesser offenses included in the crime of assault with intent to commit the crime of rape, and that they might convict of either of the lesser offenses in case they could not find the highest offense charged. It was error not to do so. Hall v. People, 47 Mich. 636; People v. Abbott, 97 Mich. 484.

The other errors relied upon were not prejudicial. For the errors pointed out, the judgment is reversed, and a new trial ordered.

Carpenter, Blair, Montgomery, and Moore, JJ., concurred.


author: Moore, J. Ostrander, J.

text:
    ADAMS v. FIRST BAPTIST CHURCH OF ST. CHARLES.
    Wills — Construction—Condition Subsequent — Forfeiture.
    Land was devised to a church “ to be used as a parsonage and nothing else, and to be kept for that purpose and used for nothing else.” There was no devise over. The house was not suitable for a residence for the minister, and it was his custom to rent it and live elsewhere. On ejectment by the residuary legatee, held, that there was no breach of condition subsequent which should work a forfeiture.
    Error to Saginaw; Gage (William G.), J.
    Submitted November 15, 1906.
    (Docket No. 168.)
    Decided April 30, 1907.
    Ejectment by Fred L. Adams against the First Baptist Church of St. Charles and others. There was judgment for defendants, and plaintiff brings error.
    Affirmed.

      Walsh & Pardee, for appellant.

      Walter J. Lamson, for appellees.
   Moore, J.

This is an action of ejectment brought by the plaintiff as residuary devisee in the will of Lydia M. Barker, deceased, against the defendants to recover the possession of certain real estate in the village of St. Charles, Mich. July 30, 1887, Mrs. Barker and her husband made a will, the material parts of which read as follows:

“Know all men by these presents that I, Calvin Barker and Lydia M. Barker, residents of St. Charles (but now for a short time) living in the town of Freemont, Saginaw Co., Mich., do will and bequeath to the Baptist Church of St. Charles, all personal, or real estate, or money, after the decease of said Calvin and Lydia M. Barker, when all debts for funeral or other honest claims and an honorable burial, shall have transpired. If any of the estate, above mentioned should remain, then whatever the amount shall go for the benefit of the said Baptist church specified in this will.”

After the death of Mr. Barker, and on the 17th day of March, 1890, Mrs. Barker attached a codicil to said will, the material part of which reads:

“ Now I do by this my writing which I hereby declare to be a codicil to my said will and Calvin Gr. Barker heretofore made and taken as a part thereof will and direct that the house and lots 4 and 5 block H, in the village of St. Charles shall go to the First Baptist Church to be used as a parsonage and nothing else, and to be kept for that purpose and used for nothing else. I also give and bequeath one looking glass, stand on drawers, to Mrs. Emma Willis, also one spool stand to Mrs. John Holliday, also one parlor stove to Frank McNeal. I also give and bequeath all my household goods, cook stove and utensils belonging thereto, also one set of silver knives and forks and also all beds and bedding and clothes to Fred Adams and his wife. I also give and bequeath to Mrs. Emma Willis one marble table castor. I also make this request that there shall be a tombstone similar to that of my husband, Calvin Barker, placed at the head of my grave and that the date of my death and age shall be marked on the monument and I, Lydia M. Barker, also give and bequeath all the residue of my property and claims outstanding after all my funeral expenses and debts are paid by expenses made hereafter to Fred Adams.”

Fred Adams, the plaintiff, is the grandnephew of Mrs. Barker. After her death the will and codicil were probated. In June, 1894, lots 4 and 5 were assigned to the defendant. The personal property was all turned over to the several legatees mentioned in the will. The executor reported the monument mentioned in the will had been placed at the grave of the deceased, “and all of the expenses of administration, including fees, have been paid by the residuary legatee, the First Baptist Church of St. Charles as moiety.” This action was commenced in December, 1904. The case was tried before the circuit judge without a jury. He made certain findings of fact and conclusions of law, and rendered judgment in favor of defendant. The plaintiff has brought the case here by writ of error.

The important question is whether plaintiff, under the facts disclosed by the record and the provisions of the will and codicil, can maintain this action. At the time of Mrs. Barker’s death the plaintiff was living in the house, caring for her. He continued to live in the house until the assignment of the property was made in June, 1894. He then moved out. The house in controversy is just across the street from the church owned by defendant. The defendant did not then have a parsonage, and from then until the trial had none, except the house in controversy. After plaintiff moved out of the house some repairs were made upon it,, and it was rented by the defendant to Mr. Mertz, who was not a pastor of the church. Mr. Mertz moved in and Lved there some time. This fact was known to the plaintiff. The record discloses that the house is a small one, quite cold in winter; that sometimes it was occupied by the pastor of the church; that at other times it was rented by the pastor to other parties, and the rent collected by him as part of his salary. The income from the property when the property was not used by the pastor has always been used as part of the compensation of the pastor of the church. Mr. and Mrs. Corbin were tenants when this action was begun.

The church records show the following: .

“July 23, 1896. It is also agreed by the church that William Allen bough will be granted free use of the parsonage during the term of his pastorate, and also for the month of July, 1896. * * *
“June 22, 1899. It was unanimously voted to extend a call to Rev. A. J. Spouse, of South Saginaw, and the clerk was instructed to write to him at once and offer him a salary of $500 a year and use of the parsonage.”

Like action was taken as to other pastors November 24, 1901, November 13, 1902, November 8, 1903, May 19, 1904, and September 11, 1904; and also the following December 17, 1905:

“Moved and carried that we extend a call to Rev. C. A. Sallier, of Ithaca, Mich. Salary to be $12 a week and the parsonage.”

It also appears that the defendant paid expenses of administration, etc., amounting to $68.49, and from time to time has caused repairs to be made upon the church, and has discussed plans for rebuilding the house when the society becomes able to do so. It also appears that the village, because of the opening of mines in that vicinity, has 500 or 600 more inhabitants than it had in 1894, while the church membership has increased from 25 in 1894 to 50 at the time of the hearing. There is nothing in the record to show that the church had abandoned the building as a parsonage, unless the inference is to be drawn from the fact that no pastor had actually lived in the building for two years prior to the trial.

It is the claim of the plaintiff that because defendant is not actually occupying the premises as a parsonage, and as plaintiff is residuary legatee, he is entitled to maintain this action.

Defendant insists (1) that by the terms of the will and codicil it became the owner in fee of the property; (2) that, if it did not, as Mrs. Barker had heirs at law, plaintiff, not being one of them, cannot maintain this action; (3) that, if plaintiff as residuary legatee could maintain the action, he has waived his right to claim that defendant has been guilty of a breach of the condition contained in the codicil; (4) that there has been no breach of the condition contained in the codicil.

At the time the will was made the title to the real estate was in Mrs. Barker, and it remained in her until her death. A reading of the will discloses an intention, after the payment of debts, funeral and burial expenses, to give and bequeath to the defendant all of the property of the testators. The codicil made an entirely different disposition of all of the personal property. The codicil is declared to be a codicil of the will, to be taken as a part thereof. While it directs the use to be made of the real estate willed to the defendant, it nowhere suggests that in case of a failure to so use it the bequest shall fail. It has frequently been held that conditions subsequent are not favored in the law when they defeat estates. Calkins v. Smith’s Estate, 41 Mich. 409. See, also, McCarty v. Fish, 87 Mich. 48.

In Barrie v. Smith, 47 Mich. 130, it is held that conditions subsequent, tending as they do to destroy estates, are to be strictly construed. It is also held therein that a condition subsequent may be waived where broken by the party who has the right to avail himself of it, and this may be proven as well by acts and conduct as by an express agreement, and when once waived is gone forever.

In Stanley v. Colt, 5 Wall. (U. S.) 119, there is a very interesting discussion as to whether the provisions of the will were to be regarded as strict common-law conditions, a breach of which would work a forfeiture and let in the. heir, or whether they were regulations for the guidance of the trustees. A quotation was made, apparently with approval, as follows:

“Mr. Sugden, speaking of conditions, observes that what by the old law was deemed a devise upon condition would now perhaps, in almost every case, be construed a devise in fee upon trust, and by this construction, instead of the heir taking advantage of the condition broken, the cestui que trust can compel an observance of the trust by a suit in equity.”

It was also held that whether the devise was a condition subsequent or a regulation for the management of the estate was to be gotten, not from any particular expression in the devise, but from the whole instrument. It was said in that case that the devise was not a condition subsequent, a breach of which forfeited the devise. See Strong v. Doty, 32 Wis. 381.

In Bailey v. Wells, 82 Iowa, 131, a deed of a lot was made with a provision that it should be used “as a parsonage lot or church purpose and no other,” and, if not so used, should revert to the grantor. No parsonage was built. The evidence showed that public worship was maintained in the church except at intervals when it was infrequent. The church was kept up and maintained by farmers who hitched their teams upon the lot in question during the service. It was held there was no reversion.

In Downen v. Rayburn, 214 Ill. 342, it was held that in construing a deed containing restrictions as to the use of property conveyed in fee all doubts should be resolved against the restrictions.

In Higbee v. Rodeman, 129 Ind. 244, in construing a deed which “ conveys and warrants ” a parcel of land for common school purposes, the court used the following language:

“ Conditions subsequent are not favored in law, but are strictly construed. The language used in the deed from Dunn to the township specifies the use to which the property would be put, but does not even tend to create a condition subsequent. Heaston v. Board of Com’rs of Randolph Co., 20 Ind. 398; Schipper v. St. Palais, 37 Ind. 505; Sumner v. Darnell, 128 Ind. 38 (13 L. R. A. 173).”

In Burgson v. Jacobson, 124 Wis. 295, it is held that “conditions subsequent, especially when relied upon to work a forfeiture, must be created by express terms or clear implication, and are strictly construed. 2 Washburn on Real Property (4th Ed.), p. 7.” See, also, 5 Current Law, p. 980, and the many cases cited.

In Greene v. O’Connor, 19 L. R. A. 262 (18 R. I. 56), it was held a condition subsequent is not made in a deed of land for a highway by the words “upon condition that the said strip of land shall be forever kept open and used as a public highway and for no other purpose.” See the notes to this case. Also Woodworth v. Payne, 74 N. Y. 196; Broadway v. State, 8 Blackf. (Ind.) 290; Mills v. Evansville Seminary, 58 Wis. 135.

Prom whatever point of view the record before us is examined, in the light of these authorities, it does not disclose a breach of a condition subsequent, which should work a forfeiture of the property devised.

The conclusion reached upon this branch of the case makes it unnecessary to discuss the other questions presented by counsel.

Judgment is affirmed.

Hooker, J., concurred with Moore, J.

Ostrander, J.

It is the contention of the plaintiff in ejectment,"appellant here, that the words “shall go to the First Baptist Church, to be used as a parsonage and nothing else, and to be kept for that purpose and used for nothing else,” which, in the will, follow the description of the real estate, have the effect to create an estate upon condition; that it is a condition subsequent, has been broken, and the estate forfeited; and that he, being made the residuary legatee in the same will, is entitled to enforce the forfeiture and to take the land. There is no devise over. After the death of the testatrix the will was duly, probated, and the church went into possession of the land, and now holds possession by its tenants, the other defendants. The property is worth not to exceed $800. It is a small house and two lots. The defendant church was incorpo-. rated in 1884. It reincorporated in 1902, under the provisions of Act No. 54, Pub. Acts 1899. The codicil containing the devise in question was made in March, 1890. We are not informed of the date of the death of testatrix, but learn that it was previous to August, 1893. In the law in force at the time the church was incorporated (chapter 175, 1 How. Stat.) there is a provision (section 6) for trustees of such a corporation, with power in such trustees to take and hold in perpetuity so much land, not exceeding 20 acres, as may be needed for church buildings and yards, burial grounds, and pastor’s residence. See, also, section 6, Act No. 54, Pub. Acts 1899. It is the trustees who have possession and custody of the real estate of the church, however acquired and “in whose hands soever the same may be held,” and they may sue and be sued, in their corporate capacity, in all courts. The nature and purposes of church organizations, and-the statute limitations upon their right to acquire and to hold real estate, must be taken into account in considering whether the particular estate was devised upon condition, since the words employed do not of themselves necessarily create a condition. The section referred to provides that lands devised to a church or its trustees to be sold for the purpose of raising a fund for church purposes, including in the enumerated purposes the securing of a parsonage, shall revert to the donor, his or her heirs or assigns, if not disposed of within three years, or if not appropriated and used for one of the stated purposes. Such corporations may also be dissolved, and the corporate life is 30 years. I assume from the testimony and from the interest of the testatrix in the church that she was acquainted with the law of its existence. Plaintiff’s counsel say, and I agree with them, that we are required to find the intention of the testatrix. 2 Jar-man on Wills (6th Ed.), p. 1. I assume, first, that the intention was to make a beneficial gift. If the words are held to create a condition, we must suppose the testatrix intended the legal consequence of a breach thereof, and after any number of years, and whether the society grew beyond so small a property for such a purpose, or became too poor to maintain it in fit condition for the use of the pastor. If. the words of the will are given a literal and technical meaning, they devote this little property forever to use as a parsonage by this society. It could not be forever “ kept for that purpose and used for nothing else.” There are two constructions, either of which is, I think, more reasonable than the one contended for by plaintiff. One, and the one to which I most incline, is that this property was given to the church absolutely, with a direction merely to use it in a specified way, subject, however, to the controlling power of the society as owner. The other is that the gift was for the purpose and purposes of a parsonage for the church, with a declared limitation of the use to which the property or its proceeds should be devoted by the trustees, as the exigencies, growth, or convenience of the society should require. The property has been devoted to the stated use, not indeed by being at all times occupied by the pastor, although, if not so occupied, its use and the rents and profits thereof have been uniformly tendered to him. As we are required to ascertain and declare the intention of the testatrix, decided cases are of little aid. The case should be distinguished from Hayden v. Inhabitants of Stoughton, 5 Pick. (Mass.) 528, and all similar cases. There the apt word to express a condition, viz., the word “provided” was used. Again, the condition required the town, by action of its inhabitants, to do a positive thing, viz., to build a schoolhouse. The donation was accepted by action of the town but for 10 years, and more, no schoolhouse was built. It was held that a .conditional fee was devised, and not an absolute fee, that there was a contingent interest which the devisor might have disposed of, and that he did dispose of it in the residuary clause of his will.

In Brigham v. Shattuck, 10 Pick. (Mass.) 306, the devise of lands made to the town of Groton was that the rents thereof might be applied to the support of the gospel minister in the town. The testator directed positively they should never be sold, but should always be rented. The opinion, by Shaw, C. J., contains the significant language following (the case was decided upon another point):

“ Whether the positive order not to sell the estate annexed to the devise to the town constitutes a condition technically, so that upon a noncompliance with the order the devise became forfeited for breach of condition, whether if it be construed a condition, such a condition in perpetual restraint of alienation, after a devise in fee, is repugnant to the gift and void in point of law, * * * are questions * * * upon which the court give no opinion.” r

It was said that, if construed to be a condition, it was no doubt a condition subsequent.

As the words employed in the will are not such as require the construction that the land was devised upon condition, and as we may reasonably reach the conclusion that the testatrix did not intend such a meaning to be given to them, we must hold there is no condition.

The judgment is affirmed.

Carpenter and Montgomery, JJ., concurred with Ostrander, J.


author: Per Curiam.

text:
    CHASE v. VAN BUREN CIRCUIT JUDGE.
    1. Intoxicating Liquors — Druggists — Local Option Law — Violation — Information—Joinder of Offenses.
    •An information against a druggist charging in one count that he sold liquor and did not record the sale in a blankbook and did not report the sale to the prosecuting attorney, the venue being laid in a county in which the local option law is in force, charges two offenses, one under section 5381, 2 Comp. Laws, and one under section 25, Act No. 183, Pub. Acts 1899, and is bad for that reason.
    2. Indictment and Information — Duplicity—Quashing Information — Discretion op Court.
    Where an information is bad as charging two offenses in one count it is discretionary with the circuit court to quash it instead of compelling the prosecuting attorney to elect upon which of the offenses the trial should proceed.
    Mandamus by Russell M. Chase, prosecuting attorney, to compel L. Burgett Des Voignes, circuit judge of Van Burén county, to vacate an order quashing an information.
    Submitted December 4, 1906.
    (Calendar No. 21,981.)
    Writ denied April 30, 1907.

      Bussell M. Chase, in pro. per.

      Thomas J. Cavanaugh and Andrew Donovan, for respondent.
   Per Curiam.

Respondent made an order quashing an information filed by relator in the case of People v. Charles L. Carey upon the ground that that information which contained but one count charged two separate and distinct offenses. Relator by these proceedings seeks a mandamus compelling respondent to vacate said order.

Said information charges that said Carey, a druggist in the county of Van Burén, sold two quarts of beer to one Carl Hardenberg, and that neither he nor any employé of ■his made any record or report “ in any blankbook of the name of the said Carl Hardenberg, nor of the date of said sale, nor of the amount or kind of liquor so sold; ” and also that he did not, on the following Monday, as required by section 25, Act No. 183 of the Public Acts of 1899, make and swear to a report of said sale and deliver or mail the same to the prosecuting attorney of said county. We think respondent decided correctly that here were charged two separate and distinct offenses. The failure to record the sale in a blankbook is made an offense by section 5381 of the Compiled Laws of 1897, and the failure to make and send the report to the prosecuting attorney on the Monday of the following week is made another offense by section 25, Act. No. 183 of the Public Acts of 1899. This act is the so-called “ Local Option Act,” and is in force in Van Burén county. , It follows that respondent should not have been tried upon the information as it stood, because “the jury might agree upon a verdict of guilty while unable to agree upon any one of the charges.” Tiedke v. City of Saginaw, 43 Mich. 64. See, also, People v. Keefer, 97 Mich. 15; People v. Jackman, 96 Mich. 275; People v. Rohrer, 100 Mich. 126.

Relator contends that respondent instead of quashing the information should have compelled relator to elect upon which of these offenses the' trial should proceed. While we do not say that respondent may not properly have taken that course, we do say he was not bound to take it. He had at least the discretionary right to quash said information, and there was no abuse of that discretion.

Mandamus is denied.


author: Hooker, J. Carpenter, J.

text:
    MICHIGAN CENTRAL RAILROAD CO. v. STATE OF MICHIGAN.
    Eminent Domain — Corporations—Michigan Central Railroad —Special Charter — Repeal—Damages Recoverable.
    Upon the repeal of the special charter of the Michigan Central Railroad Company, pursuant to the right reserved by section 39 of the act incorporating the company (Act No. 42, Laws 1846), the company is entitled to recover “all damages sustained by reason of such repeal,” including compensation for the loss of its franchise.
    Certiorari to Wayne; Mandell, J.
    Submitted December 18, 1906.
    (Docket No. 38. )
    Decided April 30, 1907.
    Case by the Michgan Central Railroad Company against the State of Michigan to recover damages for the repeal of plaintiff’s charter. There was an order overruling a demurrer to the declaration, and defendant brings certiorari.
    Affirmed.
    . John E. Bird, Attorney General (Thomas E. Bark-worth and Otto Kirchner, of counsel), for appellant.

      Henry Bussell (O. E. Butterfield, Ashley Pond, John G. Milburn, and John G. Johnson, of counsel), for appellee.
   Hooker, J.

The plaintiff, a railroad company, was incorporated by a special act of the legislature of Michigan, approved March 28, 1846, entitled “ An act to authorize the sale of the Central Railroad (then owned by the State) and to incorporate the Michigan Central Railroad Company.” Act No. 42, Laws 1846. The thirty-sixth section of the act was as follows:

“ The State may, at any time after the first day of January, eighteen hundred and sixty-seven, purchase, and take from said company, said' railroad, and all the property, effects and assets of said company, and said railroad and the appurtenances thereof, and all the estate, property, effects and assets of said company (subject to all existing mortgages or other liens thereon on account of loans, the proceeds of which shall have been invested in the said road and other works of said company) shall fully and forever vest in and become the estate, property and effects of the State, to all intents and purposes, so soon, and whenever after the day aforesaid, the State shall pay, or cause to be paid to said company, the value of the entire stock of, and shares in said company, at the market value of such stock or shares, and ten per cent, in addition to such market value of said stock or shares; * * * and thereupon the corporate powers and franchises of said company shall wholly cease, and the rights and franchises vested, or which may vest in said company under or by virtue of this act, shall not in any manner be prejudiced or affected save as herein provided, or by judicial proceedings, or by a repurchase of said railroad, to be made by the State in manner aforesaid.”

The thirty-ninth section of the act was as follows:

“ The State reserves the right, at any time after thirty years from the passage of this act, by a vote of two-thirds of each branch of the legislature, to alter, amend or repeal the same: Provided, That said company shall be compensated by the State for all damages sustained by reason of such alteration, amendment or repeal.”

At its session held in October, 1900 (Act No. 2, Pub. Acts 1900), the legislature passed an act reading as follows:

Section 1. That act number forty-two of the session laws of eighteen hundred forty-six, entitled ‘ An act to authorize the sale of the Central Railroad, and to incorporate the Michigan Central Railroad Company,’ approved March 28, eighteen hundred and forty-six, and all acts amendatory thereto, be and the same are hereby repealed, said repeal to take effect and be in force from and after the thirty-first day of December, nineteen hundred one: Provided, That the right to institute proceedings against the State for the determination of the damages, if any, which it may sustain by reason of such repeal is hereby reserved to said 'Michigan Central Railroad Company. And further Provided, That the right of said company to receive compensation from the State on account of this repeal shall not be prejudiced by the voluntary surrender of its charter and its reorganization prior to said thirty-first day of December, nineteen hundred one, under the provisions of section six thousand two hundred and twenty-five, Compiled Laws of eighteen hundred and ninety - seven.”

And by an act approved on the same day as the foregoing (Act No. 4, Pub. Acts 1900) the following became the law of the State:

“ Section 1. Whenever the charter of any railroad company organized, created, or existing under and by virtue of the provisions of any special act enacted prior to eighteen fifty, which provides that the State shall make compensation for the damages sustained in case of repeal, shall be withdrawn or revoked by the repeal of such special act, such railroad company may,, within one year from and after the date that such repeal shall go into effect, and not thereafter, institute an action of trespass on the case against the State of Michigan, in the circuit court for the county of Ingham, Kent, or Wayne, for the recovery of any damages which it has sustained, and to which it is entitled by reason of such repeal of such special charier, if any damages be sustained. Process shall be served upon the governor, and the case shall proceed in accordance with, and be governed in all respects by, the law and practice governing similar actions between individuals in this State.
“Sec. 2. Upon final judgment being rendered, the same may, upon application by such railroad company, be certified by the clerk, and under the seal of the court in which the same is entered or to which the same has been appealed or removed, to the auditor general; and he shall thereupon issue his warrant for one-third of said judgment with accrued interest; and during the next following year he shall issue his warrant for another one-third of said judgment with accrued interest; and during the next following year he shall issue his warrant for the balance of said judgment, with accrued interest; unless provision for earlier payments, or an immediate satisfaction of said judgment shall be made by the legislature. Said warrants shall be paid by the State treasurer to the railroad company entitled thereto or to its assigns out of the general fund. The auditor general shall add to and incorporate the amount paid each year on account of said judgment in the next succeeding State tax, and the money collected therefrom' shall be placed to the credit of the general fund to reimburse it for the moneys thus paid.
“ Sec. 3. All acts and parts of acts in any way inconsistent with the provisions of this act are hereby repealed.”

We understand defendant’s main contention to be that the reservation of the right to purchase within 30 years implied an intent to divest the State of the right to amend, alter, or repeal this statute for that period;' that otherwise section 39 was unnecessary; further, that this legislation could not have the effect of depriving the State of the right to condemn this property, and all rights in or connected with it, under its power of eminent domain, which right existed as well during the 30-year period as afterward ; further, that inasmuch as the exercise of the power of eminent domain would or might have the effect of depriving the plaintiff of its tangible property, and all rights attaching to or growing out of it, for compensation, and that section 39, in authorizing amendments, alterations, and repeals upon the same terms, was wholly useless, unless we say, as it is contended that we should therefore say, that its object, or at least its effect, was to provide for a condemnation by repeal, upon better terms for the State, than the rules relating to eminent domain would permit under that procedure. ■ Or, in the language of the brief:

“A fair interpretation of the act must proceed upon the theory that the State intended, by its reservation, to reserve to itself a substantial right. If the State must pay for the franchises destroyed in the exercise of its right to repeal, the right intended to be reserved had, we submit, no substantial value. The reservation of the right to repeal was, in that case, wholly useless, because the State could have deprived plaintiff of its franchises by paying for them in the exercise of its eminent domain.”

By the terms of a contract, valid when made, the State conferred upon the Michigan Central Railroad Company, for a valuable consideration duly paid, corporate existence, and power and authority to acquire, own, and use property in a way not given to private persons, and granted to it a railroad theretofore existing, owned by the State. This was a grant in perpetuity, unless such right was modified or restricted in the act'itself. It was so modified and restricted in important particulars. The natural inference to be drawn from sections 36 and 39 is that the State intended to assure to the railroad company immunity from interference with its rights, subject to a reserved right of repurchase by the State upon specified terms, if acted upon within 30 years, and, if not, then to a conditional' right of alteration, amendment, or repeal thereafter; one of the conditions being compensation by the State for “all damages sustained thereby.” We are of the opinion that there is nothing ambiguous in the law, and that, if construed according to the common and approved usage of the language adopted, as required by 1 Comp. Laws, § 50, it can have no other meaning than that hereinbefore suggested.

We are asked to say that, inasmuch as it is a rule of law that a legislature cannot deprive its successors of the right to exercise the power of eminent domain, we must assume that it did not intend to do so, and therefore the provision of section 39 was unnecessary, unless it is to be construed as a limitation upon the measure of damages which the State would be required to pay, had its right to amend, alter, or repeal been left to rest on the power of eminent domain, and that it was for this reason that section 39 was made to specifically provide that after 30 years the State might alter, amend, or repeal the charter. We understand that the interpretation of statutes involves an effort to ascertain the actual intent of the legislature, and whatever limitations there may be upon the method, and however much rules of construction may generally be an aid, if the actual intent clearly appears, the courts will not be justified in saying that a different, and clearly inconsistent, intent must be found. This accords with the rule that the intention of the legislature, when discovered, must prevail, any existing rule of construction to the contrary notwithstanding. Brown v. Barry, 3 Dall. (U. S.) 367, approved in Endlich on Interpretation of Statutes, § 365. See, also, §§ 72, 295, 339.

We are not certain that these sections would not justify the conclusion that the. legislature intended to place the contract made thereby beyond its interference through eminent domain, and to substitute in its stead an equally effective right provided for by the contract, on similar, though not identical, terms as to compensation, and we need not express an opinion on the validity of such action. We think such an inference much more reasonable than that suggested by counsel for the State. But, whether they should be so construed or not, we find abundant reasons for saying that the alternative contended for does not follow.

The plain language of the statute is that, in case of amendment, alteration, or repeal, compensation to the extent of all damages sustained shall be made by the State. That damage for loss of franchises is within this language does not seem to be questioned.

The nature of the transaction indicates that both par-' ties intended such compensation, and, if they did, that settles what the statute means; and, while possibly it did not cut off the State’s already existing power, it did not give it a contract right to accomplish the divestiture of property for a reduced compensation, in the face of the agreement to pay all damages contained in the statute.

If the claim that the legislature cannot divest the State of its right to exercise its power of eminent domain has the support of the authorities, and if any legislation whereby private property or franchises are divested, upon provision being made for compensation, must be assumed to be done in furtherance of the public welfare, and therefore done under the power of eminent domain, still the contract rights reserved in this act may have been considered valuable rights, and therefore consistent with an intent to pay the damage agreed upon. We think that they were so considered, and the terms upon which they were to be exercised are plainly stipulated.

It is significant that during the long period that has elapsed since that contract was made, and in the agitation that the subject has undergone, and throughout the discussions, legislative and otherwise, that have accompanied attempts to have the State avail itself of the reserved contract rights, it seems never to have occurred to any one, or at least to have been suggested by any one, that this legislation was not what it appeared on its face, but was, on the contrary, merely a covert method of securing a right to obtain the property for less than it was really worth, and less than would have to be paid for it if taken under the right of eminent domain — an unnecessary piece of strategy until the Constitution of 1850 put it out of the power of the legislature (if it previously had such power —see 3 Current Law, p. 1190) to arbitrarily and conclusively determine the necessity for taking under the power of eminent domain, unless assent' to the provision was necessary as an inducement to the company to accept the law. We are of the opinion that the legislature at least supposed that it was reserving some valid and tangible right, and that it honestly meant, to attach valid conditions to its exercise. Having satisfied ourselves that the intended meaning of the words “all damages” was all damages, and not a part of the damage only, the construction to be given is obvious.

We understand that the contention is not made that, in the absence of any express reservation, the compensation required for the condemning and taking away all of the rights of a corporation is the value of the tangible property, divested of the right to use or to sell the property as a unit to some one who may use it. Should we be mistaken in our understanding, we should then feel constrained to say that such is not the law. The cases cited by counsel for the State appear to support the contrary rule. In the case of Detroit Citizens’ St. Ry. Co. v. Common Council of Detroit, 125 Mich. 673, the subject of the value of franchises was discussed at length. It has a bearing on this case, so far, at least, as to sustain the suggestion that exceptional privileges may be valuable, and may go far to enhance the value of tangible property.

This discussion naturally leads up to the question of the measure of damages. Of that we need only say that we do not discuss it, for the reason that it is unnecessary to a determination of the question before us; neither has the discussion covered all of its possible features.

As to the other points raised upon the sufficiency of the declaration, we think the case of State v. Wayne Circuit Judges (Mich.), 104 N. W. 637 (official report withheld pending rehearing), should be considered decisive of them, if, indeed, the making of the application then reviewed should not be held to amount to a waiver of them, if not conclusive upon the question of the sufficiency of the declaration — questions which we neither consider nor determine, as counsel have not discussed them.

We conclude that the order of the learned circuit judge was right, and it is therefore affirmed.

Carpenter and Montgomery, JJ., concurred with Hooker, J.

Carpenter, J.

While I concur in the conclusion of Justice Hooker, my views of the case compel me to prepare a separate opinion. In 1900 the legislature of this State repealed the law incorporating plaintiff. It took this action in pursuance of authority reserved in said law, and authorized plaintiff to bring suit to recover the damages thereby sustained. Plaintiff subsequently instituted this suit to recover those damages.

The question presented on this record is this: Is plaintiff entitled to recover for the loss of the franchise granted, to it by the State in its original act of incorporation? The circuit court, on an issue raised by defendant’s demurrer to plaintiff’s declaration, held that it is. Is that decision correct ? This depends upon the proper construction of section 39, Act No. 42 of the Laws of 1846 (the act incorporating plaintiff and giving it perpetual existence, except as therein otherwise provided). Section 39 reads as follows:

“The State reserves the right at any time after thirty years from the passage of this act by a vote of two-thirds of each branch of the legislature to alter, amend, or repeal the same: Provided, That said company shall be compensated by the State for all damages sustained by reason of such alteration, amendment or repeal.”

Plaintiff contends that the foregoing language, properly construed, obligates defendant to compensate plaintiff for its franchise lost by the repeal of its charter. Defendant denies this. The argument of defendant’s counsel in support of their denial, briefly stated, is this: (a) That the legislature intended by section 39 to obtain greater rights after the expiration of the said 30 years than it had theretofore possessed; (6) that it had theretofore possessed the right, by exercising the power of eminent domain, to destroy defendant’s franchise upon making proper compensation; and (c) it therefore follows that the legislature, by section 39, intended to reserve authority to destroy plaintiff’s franchise without making proper compensation. Is this argument (which was presented with great force, ability, and ingenuity by the eminent counsel representing defendant) sound ?

According to section 39, the State may repeal plaintiff’s charter after the lapse of 30 years, provided plaintiff ‘ ‘ shall be compensated for all damages sustained by reason of such * * * repeal.” To deny plaintiff the right of compensation for a franchise extinguished by the repeal is to assert that the legislature, in declaring that plaintiff should have all damages, intended that it should have less than all damages sustained by the repeal.

It is, then, not unfair to state defendant’s argument as follows: The necessity of giving effect to the manifest intent of the legislature that its right should be greater after 30 years than theretofore compels us to declare that, in saying that plaintiff should have “all damages,” the legislature intended that it should have less than all damages sustained by the repeal of its charter. While, perhaps, this argument might properly be answered by saying that the words “all damages ” can, under no rule of construction, be declared to mean less than all damages, I think the better answer is this, viz.: Full effect may be given the intent of the legislature that its rights should be greater after 30 years than theretofore, without declaring that, in using the words “all damages,” it meant to exclude damages for the destruction of a franchise.

The only ground for saying that the rights of the legislature, if the State must pay for a franchise destroyed by the repeal of plaintiff’s charter, were not greater after the lapse of 30 years than theretofore, is that it might at any time, upon making proper compensation, have taken the franchise of plaintiff by exercising the power of eminent domain. The legislature, under the Constitution in force in 1846, had the right to determine the necessity for taking property by eminent domain (Cooley on Constitutional Limitations [7th Ed.], p. 759), and there is authority for saying that it might, by the exercise of that right, upon providing for proper compensation therefor, have taken the franchise of a corporation. See West River Bridge Co. v. Dix, 6 How. (U. S.) 528. See, also, Armington v. Barnet, 15 Vt. 745; West River Bridge Co. v. Dix, 16 Vt. 446; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35.

As bearing upon the intent of the legislature, its possession of this power of eminent domain is utterly unimportant ; for it had agreed with defendant in unequivocal terms not to exercise it. That agreement is found in these words, quoted from the thirty-sixth section of the act incorporating plaintiff:

“And the rights and franchises vested or which may vest in said company under or by virtue of this act, shall not in any manner be prejudiced or affected, save as herein provided, or by judicial proceedings, or by a repurchase of said railroad, to be made by the State in manner aforesaid.”

It is obvious that an attempt by the legislature to take plaintiff’s franchise under the power of eminent domain, itself determining the necessity therefor, would be a clear violation of the foregoing agreement. There is thus manifested in plaintiff’s charter the intent of the legislature —and whether the agreement manifesting that intent is valid or otherwise is utterly unimportant in determining the question of legislative intent under consideration— that it will not, either during the first 30 years of plaintiff’s corporate existence or afterwards, by exercising the power of eminent domain, destroy plaintiff’s franchise. When it enacted section 39, the legislature intended to divest itself of the right to take plaintiff’s franchise by the exercise of the power of eminent domain; and therefore, when it agreed to make full compensation for a franchise lost by the repeal of plaintiff’s charter, the legislature did intend to acquire a right which otherwise it did not have. There is, then, no basis for the argument of defendant that the obligation to pay for said franchise denied effect to the manifest intent of the legislature that its right should be greater after 30 years than theretofore. That argument must, in its last analysis, rest upon the obviously impossible proposition that the legislature intended to exercise a right which it solemnly agreed it would not exercise. I conclude, therefore, that the construction of section 39, in accordance with its obvious signification, which obligates defendant to make full compensation for a franchise lost by the repeal of plaintiff’s charter, is not opposed to the intent of the legislature to thereby acquire a new right.

Defendant’s counsel also contend that the provision for compensation “must be strictly construed.” They say:

“The office of a proviso is to carve exceptions out of a purview. If the State must pay for simply taking away what it had given, then, as already shown, the proviso does not limit, but it destroys, the purview. The only way to give effect to the purview, and to the proviso as well, is to hold that, if the State takes what it had given, plaintiff’s damages are limited to such losses as result from the destruction of rights acquired in the lawful exercise of, or in virtue of, the franchises that had been given.”

The answer to this contention is, in my judgment, correctly stated in plaintiff’s brief. It is as follows:

“The provision relative to compensation is not a proviso in any such refined sense as claimed by the defendant, but is more in the nature of a condition, expressed in terms so clear as to preclude the application of technical rules of construction.”

See Voorhees v. Bank of U. S., 10 Pet. (U. S.) 449; Georgia Railroad & Banking Co. v. Smith, 128 U. S. 181.

The order overruling defendant’s demurrer is therefore affirmed, and the record will be remanded for further proceedings.

Mr.AT.VAV, C. J., and GRANT, MONTGOMERY, Ostrander, and Moore, JJ., concurred with Carpenter, J. Blair, J., did not sit.


author: McAlvay, C. J.

text:
    PRUDEN v. CLARK.
    1. Motions — Notice — Appeal — Dismissal — Order Allowing Claim Against Estate.
    A motion, to dismiss an appeal from the allowance by commissioners of a claim against the estate of a deceased person is a special motion within Circuit Court Rule 19, and requires four days’ notice under the rule.
    2. Executors and Administrators — Allowance op Claims— Appeal — Record.
    On appeal from the allowance of a claim against an estate, a certified copy of the report of the commissioners on claims must be filed, that being the record of the allowance appealed from.
    3. Same — Order Allowing Appeal — Necessity.
    No order allowing an appeal from the allowance of a claim against an estate is necessary, the appeal being matter of right on compliance with the statute.
    Error to Kalkaska; Chittenden, J.
    Submitted January 10, 1907.
    (Docket No. 122.)
    Decided April 30, 1907.
    Russell B. Pruden presented a claim against the estate of Polly Collar, deceased. The claim was allowed by the commissioners, and Irving M. Clark, administrator, appealed to the circuit court. There was an order dismissing the appeal, and contestant brings error.
    Reversed.

      Chauncey O. Jenks, for appellant.

      Ernest G. Smith, for appellee.
   McAlvay, C. J.

This is an appeal from a judgment of the circuit court for Kalkaska county dismissing an appeal from an allowance of the claim of plaintiff by the commissioners on claims against the estate of Polly Collar, deceased, of which estate Irving M. Clark is administrator. When the informal call of the docket was made in the circuit court, both parties appeared by their attorneys and announced themselves ready for trial, and both stated that no jury was desired. When the case was reached in its order, the attorney for plaintiff orally made a motion to dismiss the appeal for the reasons: (1) That no certified copy of the order of the probate court allowing the appeal had been filed in the court. (2) That no certified copy of the order of the allowance of the claim by the commissioners had been filed in the court, as required by section 9390, 3 Comp. Laws. No notice of this motion had been given; nor does the record show that any previous intimation was given that it would be made. The motion was argued on both sides and granted by the court, and the appeal was dismissed. Defendant excepted to the ruling of the court. The usual stay of proceedings was granted to allow a review in this court of the action of the trial court. An application for a writ of mandamus to set aside the order of the court was made to this court and denied, upon the ground that the proper remedy was by writ of error. The case is now before us upon such writ.

Appellant urges that, under the rules and practice of the circuit court (Circuit Court Rule 19), he was entitled to notice of the motion to dismiss the appeal, and that the court erred in hearing and granting such oral motion. Three of his assignments of error are based upon this contention. This was a special motion to dismiss the appeal, and appellant was entitled to the notice provided by Circuit Court Rule 19 before it could be brought on to be heard. He twice called the attention of the court to the fact that no notice had been given, and asked the court to be allowed to have the report of the commissioners on claims to be at once certified, if the court held it to be necessary. The record does not show that he waived the right to the usual notice under the rule. While, upon the argument, brought up suddenly without notice, his attorney appears to have been mistaken as to the necessity of having this report certified to the court, and may. have had such view of the statute in mind when the appeal was taken, the record indicates that before the argument closed he appreciated his error. The reason of the rule is to prevent surprise and to allow reasonable time to prepare for a hearing. Plaintiff had noticed the case for trial, and on the call of the docket had announced himself ready for trial, and when the case was called made this motion to dismiss, which the rule requires should be heard only after four days’ notice. The court was in error in hearing the motion without notice. '

"We hold that it was necessary to file the certified copy of the report of the commissioners on claims; that being the record of the allowance appealed from. In Snyder v. Washtenaw Circuit Judge, 80 Mich. 511, this court said:

“We are disposed to give statutes allowing appeals liberal construction. * * * With this purpose we shall hold that an appeal properly claimed, perfected, and allowed in the probate court ought not to be dismissed for a failure to file the record in the circuit court within the 30 days, provided the same should be filed before the motion to dismiss is actually heard.”

In the case at bar no motion has yet been properly before the court for hearing.

Plaintiff contends that no order was ever made by the probate court allowing the appeal. The order made by the probate court conformed wdth the requirements of the statute. It does not state that the appeal is allowed, but is certified by the probate judge as the order of the probate court allowing the appeal.

“It has come to be known as the order allowing the appeal, and in practice the order usually in terms allows the appeal, although, technically speaking, it cannot be disallowed if the statutory requirements are complied with.” 2 Stevens on Michigan Practice, § 376.

The allowance of an appeal does not depend on the probate judge, but is a right fixed by statute. There is no occasion to obtain an order allowing an appeal. Fox v. Wayne Probate Judge, 48 Mich. 643.

The order in this case was sufficient, and a certified copy thereof had been filed.

The judgment dismissing the appeal is reversed, with costs, and the cause is remanded to the circuit court for further proceedings.

Carpenter, Blair, Montgomery, and Ostrander, JJ., concurred.


text:
    BURTRAM v. MICHIGAN CENTRAL RAILROAD CO.
    Railroads — Personal Injuries — Children on Track — Failure to Fence — Yards.
    A railroad company is not required to fence its yards and is therefore not liable for an injury to a child which strays upon the track within its yard limits by reason of the lack of a fence.
    Error to Wayne; Rohnert, J.
    Submitted January 16, 1907.
    (Docket No. 41.)
    Decided April 30, 1907.
    Case by Anthony Burtram, Jr., by next friend, against the Michigan Central Railroad Company for personal injuries. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Washington I. Robinson, for appellant.
    O. E. Butterfield (Henry Russel, of counsel), for appellee.
   McAlvay, C. J.

Plaintiff, a boy five years old, by his next friend, sues defendant for injuries received upon defendant company’s tracks at Bay City Junction, in Detroit. He went upon defendant’s premises from the highway near the junction of E street and Hubbard avenue. These streets do not cross the railroad right of way, but their junction forms a right angle, the company’s right of way running along and being next adjacent to the west line of Hubbard avenue and the west end of E street, which abuts on said right of way. Formerly along this line of defendant’s right of way there was a post and wire fence. Some of the posts are still there, but the wires are all gone, except some pieces hanging to the posts. On the trial, at the conclusion of plaintiff’s case, a verdict was directed by the court for defendant, on the ground that the accident occurred within the yard limits of the com-pany. Plaintiff appeals from a judgment entered upon the directed verdict.

The only negligence claimed is the failure of defendant to maintain the fence along its premises as provided by statute. From the undisputed facts, it appears that •this was within the yard limits of defendant, where, under our decisions, defendant was not required to maintain a fence. Bird v. Railroad Co., 145 Mich. 706. See, also, the following cases relative to fencing station grounds and railroad yards: Flint, etc., R. Co. v. Lull, 28 Mich. 510; Chicago, etc., R. Co. v. Campbell, 47 Mich. 265; McGrath v. Railroad Co., 57 Mich. 555; Rinear v. Railroad Co., 70 Mich. 620; Stern v. Railroad Co., 76 Mich. 591; Grondin v. Railway Co., 100 Mich. 598; McDonald v. Railway Co., 113 Mich. 484; Rabidon v. Railway Co., 115 Mich. 390 (39 L. R. A. 405); Cornell v. Railroad Co., 117 Mich. 238; Katzinski v. Railway Co., 141 Mich. 75; Hamilton v. Railway Co., 142 Mich. 56.

The judgment of the circuit court is affirmed.

Cabpenteb, Blaib, Hookeb, and Moobe, JJ., concurred.


author: Blair, J.

text:
    PEOPLE v. MESSER.
    1. Embezzlement — Elements—Statutory Provisions — Information— Sufficiency.
    Section 11562, 3 Comp. Laws, creates two species of larceny, one which may be committed by the acts described by the word “embezzle,” and another which may be committed by the acts described by “fraudulently convert to his own use;” and an information which charges that respondent, a bank cashier, “did feloniously embezzle” and “fraudulently convert” certain moneys of the bank to his own use, and did “feloniously steal, take, and carry away,” etc., charges “embezzlement larceny” and is not made uncertain or double by the words “fraudulently convert.”
    2. Same — Bank Cashier — Possession of Funds — Sufficiency of Allegations.
    An information alleging that respondent was cashier of a bank and did embezzle its funds, sufficiently charges that he was in possession of the funds, since the office of cashier of a bank involves possession of its funds.
    3. Statutes — Construction—Adoption from Sister State.
    The presumption that a statute adopted from a sister State brings its construction with it, does not apply to a construction given the statute in that State after its adoption here.
    4. Embezzlement — 1Trial—Evidence—Other Offenses.
    On a prosecution for embezzlement under section 11563, 3 Comp. Laws, it is proper to admit evidence of other acts of embezzlement committed within six months after the time stated in the information, since section 11782, 3 Comp. Laws, permitting such practice, is remedial, and intended to apply to every act of embezzlement reasonably within its terms.
    5. Same — Several Offenses — Election.
    On a prosecution for embezzlement under section 11562, 3 Comp. Laws, respondent is not entitled to confine the people, in asking for a conviction, to the first act to which they direct their proofs.
    6. Same — Argument of Counsel — Prejudice.
    Where a bank cashier is convicted of embezzling an amount of which no entry was ever made on the books, he is not prejudiced by an argument of the prosecuting attorney as to what an absent witness would prove in corroboration of what another witness had shown from the books.
    7. Criminal Law — Trial—Requests to Charge — Accused Declining to Testify.
    Refusal of the court to give a requested charge that no presumption shall be indulged against respondent from failure to testify is not excused by a ruling, during argument, that there was nothing for the jury to consider in relation to that fact.
    8. Embezzlement — Check—Extraneous Evidence — Admissibility.
    On the prosecution of a bank cashier for embezzlement of money obtained from another bank by means of a memorandum check, evidence outside the check is admissible for the purpose of showing that it was a mere memorandum and the circumstances attending its execution.
    9. Same — Locus of Offense.
    Where the cashier of a bank obtained money from another bank under circumstances rendering his bank liable'for it, and converted it to his own use before returning to his bank, such conversion constituted “larceny in such [his] bank,” under section 11562, 8 Comp. Laws.
    Exceptions before judgment from Sanilac; Beach/ J.
    Submitted January 24, 1907.
    (Docket No. 148.)
    Decided April 30, 1907.
    Clarence L. Messer was convicted of embezzlement.
    Reversed.

      Timothy O. Quinn and Walter S. Wixson (Avery & Walsh, of counsel), for appellant.

      Fred A. Farr, Prosecuting Attorney, and Harry A. Burgess, Assistant Prosecuting Attorney, for the people.
   Blair, J.

The respondent was arraigned upon an information containing three counts, based upon' section 11562 of the Compiled Laws. Respondent moved to quash the information, and the first and third counts were quashed. The second count, upon which respondent was tried, is as follows:

“And the said prosecuting attorney, who prosecutes as aforesaid, further gives the said court to understand and be informed that heretofore, to wit, the 2d day of January, A. D. 1904, at the village of Marlette, and in the county aforesaid, one Clarence L. Messer, late of the village of Marlette aforesaid, being then and there an officer of a certain incorporated bank, to wit, cashier of the Marlette State Bank, a corporation before then duly organized and incorporated, and then existing under the laws of the State of Michigan aforesaid, and doing then and there, by virtue thereof, a general banking business, certain moneys to a large amount, to wit, to the amount of $2,635.50, of the value of $2,635.50, the money, property, and effects of, belonging to, and in the possession of the said Marlette State Bank, did, then and there, in the Marlette State Bank aforesaid, with intent then and there to injure and defraud the said Marlette State Bank, the owner of said money, property, and effects, feloniously embezzle and fraudulently convert to his own use; that so, the said Clarence L. Messer, said. cashier of the Marlette State Bank aforesaid, at the time last aforesaid, at the village of Marlette aforesaid, thereby in the manner and form aforesaid, the said money, property, and effects of,, belonging to, and in the possession of the aforesaid Marlette State Bank, to wit, $2,635.50, of the value of $2,635.50, in the said Marlette State Bank, feloniously did steal, take, and carry away; contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

A plea of not guilty was entered by direction of the court, and, respondent demanding a bill of specifications and particulars of the matters upon which the people intended to rely upon the trial of said cause, a bill of particulars was filed, containing many items, among which were the following:

“April 5, 1904. Currency obtained by respondent from the Commercial State Bank of Marlette, on behalf of the Marlette State Bank, in the sum of $1,000. It is claimed that this sum, the money and property of the Marlette State Bank aforesaid, was on, to wit, the said 5th day of April, 1904, appropriated by said respondent and converted to his own-use.
“January 2, 1904, $2,635.50 charged against savings account of J. D. Harris, No. 39, on the savings deposit ledger of the Marlette State Bank, but no corresponding entry appears in his savings pass book of that number.”

The Harris item was the first upon which testimony was given, and was followed by testimony as to many other items, including the item of April 5th. The testimony as to the item of April 5th was given by Mr. Merrill, the second vice president and assistant cashier of the Commercial State Bank of Marlette, and was, in substance, as follows: That it was the custom of respondent, as cashier of the Marlette State Bank, to come to witness’ bank to borrow currency for his bank.

“ Mr. Messer came into the bank shortly after 9 o’clock on the morning of April 5th, and asked if we had any currency to spare. I told him I didn’t know, but I would look. I looked in our safe, and came out and asked him how much he wanted. He said that a thousand would do, that they expected some in on the 10:20 train from Port Huron, and could replace it. I told him I could let him have that much, and I gave him a thousand, for which he gave me this check. On that date, April 5th, 1904, he did not have a private account in our bank. He left our bank with the thousand dollars in currency. I next saw Mr. Messer not until after he had returned from the western trip. * * * Mr. Messer had no private account in our bank at the date of April 5, 1904. He never had a private account in that bank. * * *
Q. Now, on the 5th day of April, 1904, when this paper was handed to you and you gave him the currency, what was done with the paper ? * * *
“A. I laid it back in the safe from where I had taken the currency. * * *
Q. What do those two letters there mean ?
“A. ‘ Cy ? ’
Q. Yes.
“A. Currency, I should judge.
" Q. That paper is drawn in the usual way for a private check ? * * *
“A. Checks paid over the counter and charged to commercial accounts are always signed with the full name. I never paid a check in that way. *, * * I can’t remember the exact time it was that Mr. Messer got the $1,000 that day. It was somewhere between 9 and 10 o’clock, or it might have been before 9. I didn’t look at the clock. It was that morning before the westbound train that went through at 10:20’.
Q. Before that day what had been the custom in reference to getting currency by the other bank for exigencies ? * * *
“A. The other bank, the Marlette State Bank, handled the stock business, and people getting checks on that bank would go in there and get the money, and perhaps come to our bank and pay some loans, and in that way they would be short of currency, and we would have more than we needed in the fall of the year or at any time when there would be stock shipping, and, to save us the expense of shipping the currency out, and the Marlette Bank shipping it in, why, they would come over and we would let them have the currency, and then oftentimes it would be the other way; it would be an accommodation to us — vice versa.”

The check given by Messer was as follows:

“ Mablette, Michigan, April 5th, 1904.
“Commercial State Bank, pay to Cy or order one thousand dollars, $1,000.
“ C. L. M.”

Respondent, after getting the $1,000, went to the Marlette State Bank — “ he just stepped inside an instant and stepped out again” — transacted no business in the bank; did not go behind the counter; paid no money into the bank; and, upon leaving the bank, immediately took a train and left the State. This item was paid by the Marlette State Bank and charged to respondent’s personal account. At the close of the proofs, the prosecution elected to go to the jury “ upon the thousand dollar item of April 5, 1904, and the Preston item of April 4, 1904, of $275.” The jury rendered a verdict “finding the respondent guilty of embezzling the sum of $1,000 claimed to have been obtained and converted under date of April 5, 1904.”

The case is brought to this court upon exceptions before sentence, and the errors relied upon are (1) the insufficiency of the information; (2) the erroneous admission of testimony; (3) improper opening statement, remarks, and arguments of the prosecuting officers; (4) failure of the court to give respondent’s requests to charge; and (5) errors in the charge of the court as given.

First. Respondent’s counsel argue that the information is bad because the statute upon which it is based, (a) either provides for the punishment of a single offense of which embezzlement is one of the constituent elements, and embezzlement is not properly charged; or (6) the statute covers two distinct offenses, viz., embezzlement in the legal sense and fraudulent conversion not necessarily comprising all of the legal elements of embezzlement, in which event the information is bad for duplicity. The view of this statute held by the trial judge was stated by him as follows:

“ Now, in relation to the second count, while there may be some doubt about it, I think the statement that Mr. Messer was cashier of that bank, that it was an incorporated bank, and that he is charged with the embezzlement and conversion of the funds owned or in possession of the bank, I think that is a clear statement of the fact that he had as cashier the control and custody of the funds in the possession of the bank. I can see no reason otherwise, and I find no case. While all the cases under consideration contain thatallegation, yet I can see no reason for it in the case of a cashier of a bank. Under the law organizing banks and defining the duties of the various officers of the bank, and under the civil cases which have defined the duties and relations of the cashier of a bank to the bank, the statement that he is cashier is a virtual statement that he is in possession and control of the funds of the bank. If that allegation had been in the information, there would have been the opposing statements, first, that he was in possession of these funds; and, second, that the bank was in possession of the funds.
“ It is not an inference or intendment, as we speak of it in the law, but a plain statement of fact, that he was cashier, and that statement involves the other fact that he was in possession of the funds and in control. I think the word ‘ embezzlement,’ as used there in the statute, has a plain and ordinary meaning, coupled with the other phrase ‘embezzle or convert to his own use.’ The two phrases may be taken together, and may be used in the information together, and mean that he has fraudulently converted the money of the bank to his own use simply.”

Under this interpretation of the statute the terms “embezzle” and “fraudulently convert to his own use” are equivalent or synonymous terms. In our opinion, it was the intention of the legislature, in enumerating the different acts in this statute which should be deemed to constitute larceny, to thereby create different species of larceny. The acts necessary to constitute one species of such statutory offense are described by the word “embezzle.” Those necessary to constitute another are described by the words “ fraudulently convert to his own use.” The terms are not synonymous. The act applies, not only to the officers and agents of the bank, but to its servants as well, and cases will readily suggest themselves where a prosecution would lie for fraudulent conversion when an indictment for embezzlement could not be maintained. Similar statutes have been thus construed. State v. Palmer, 32 La. Ann. 565; U. S. v. Harper, 33 Fed. 471; U. S. v. Northway, 120 U. S. 327; 5 Cyc. p. 585, and cases cited. We think the charge in the information is embezzlement larceny, and that the use of the words “and fraudulently convert to his own use ” did not make the count uncertain or double. Although the words used are also found in the statute as describing a different phase of the offense, they are also appropriate to the description of the offense of embezzlement; the usual form of information containing the charge, “ and the said money then and there fraudulently and feloniously did embezzle and convert to his own use.”

The only usual allegation lacking in this information is the one charging that the money came into the possession of the respondent by virtue of his office or employment, and it is contended that the omission of that allegation rendered the information void. The authorities fully bear out this contention, unless, as argued by counsel for the people, there is something to distinguish this case from the usual case of embezzlement. The general statutes relating to embezzlement contain in their enumeration of the facts constituting the offense the following or equivalent words, relative to possession of the property embezzled, viz.:

“ Any money or other property of another, which shall have come to his possession, or shall be under his charge by virtue of such office or employment.” Sections 11565, 11591, 3 Comp. Laws.

The provision as to possession of the property in the statute under consideration is th at it shall be in the ‘ ‘ possession of such bank;” and the only possession which could be stated in the information in compliance with the statute would be a concurrent possession by virtue of respondent’s position. It is argued by the prosecution that concurrent possession is involved in the respondent’s office and the allegation that he was cashier at the time he converted the money to his own use is as much a charge that the money was in his possession and under his custody and control by virtue of his office, as though the charge were inserted in express terms. As to the office of cashier, we are of the opinion that this argument is sound. Century Dictionary, definition of “cashier;” Kimball v. Cleveland, 4 Mich. 606; Peninsular Bank v. Hanmer, 14 Mich. 208; Merchants’ Bank v. State Bank, 10 Wall. (U. S.) 650; Taylor v. Commercial Bank, 174 N. Y. 181 (62 L. R. A. 783); 5 Am. & Eng. Enc. Law (2d Ed.), p. 761.

It is further contended that the court erred in permitting evidence of other acts of embezzlement committed within six months next after the time stated in the indictment under section 11782, 3 Comp. Laws, for the reason, first, because the intent of such section is to confine its terms to charges of embezzlement under the general statute; second, because section 11782 refers solely to embezzlement by a clerk, agent, or servant, which terms do not include the cashier or officer of a bank; third, because section 11562 refers to an embezzlement or conversion occurring in such bank; fourth, because section 11562 'embraces not only embezzlement, but fraudulent conversions, and section 11782 is not broad enough in its terms to include the offense of a fraudulent conversion. Com. v. Wyman, 8 Metc. (Mass.) 247; People v. McKinney, 10 Mich. 89. This precise question was before the court in Com. v. Wyman, under statutes substantially identical with our own, and it was there held, as stated in the syllabus of the case:

“ The officers of banks are not included in the Revised Statutes, chap. 133, § 10, which provide that in the prosecution of the offense of embezzling the money, etc., of any person by his clerk, servant, or agent, it shall be sufficient to allege generally in the indictment an embezzlement of money to a certain amount and to give evidence on the trial of any such embezzlement committed within six months next after the time stated in the indictment.”

In People v. McKinney, Mr. Justice Christianct, delivering the majority opinion of the court, said:

“ If, therefore, it was necessary for the information to identify the particular money embezzled by showing the kind of funds or from whom received, it must be because no conviction could be had under this statute without establishing such identity by the proof. The very able argument of the defendant’s counsel upon the necessity of specifying the kind of funds rests mainly upon the ground that, under statutes in reference to embezzlement by clerks, agents, and servants of private parties, this particularity was held to be necessary until statutes were passed dispensing with it, and that the only provisions of our statutes on this subject are section 5945, 2 Comp. Laws 1857, which is confined to clerks, agents, and servants, and section 6061, 2 Comp. Laws 1857, which applies only to the crimes of robbery and larceny.
“ We do not think this case falls within either of these dispensing provisions; but, on the other hand, we do not think it falls within that class of cases with reference to which they are held to be necessary. In the case of clerks, agents, and servants of private parties, there is always a principal capable of scrutinizing the acts of those in his service and whose private interest prompts him to vigilance, who has at all times power to direct and control the kind of funds to be received and to change this direction at pleasure, and the custody or management which those in his service may have of his money or property is, in general, but momentary or for a short interval, to be handed over to the principal from day to day or other short periods, or whenever he may choose to resume or assume its custody or management. The acts of such servant or clerk are generally performed under the direct supervision or control of the principal, who, therefore, has, or may at any time have, full and accurate knowledge of the character of the particular sums and from whom received, and possesses facilities for tracing out the facts while transpiring or recent.”

In People v. Bringard, 39 Mich. 22, it was held that a township treasurer was properly convicted of embezzlement under section 309, 1 Comp. Laws 1871, and section 7580, 2 Comp. Laws 1871 (section 11565, 3 Comp. Laws 1897), and that a general allegation of embezzlement was sufficient under section 7811; the court saying:

“It is also objected that the information is defective in not containing specific allegations of the sums embezzled. But the statute (2 Comp. Laws [1871], § 7811) expressly authorizes a general allegation without specifying particulars, and allows evidence thereunder of any embezzlement within six months of the day stated in the information. This objection, therefore, is groundless.”

See, also, People v. Butts, 128 Mich. 208; People v. Hawkins, 106 Mich. 479.

In State v. Kortgaard, 62 Minn. 7, the court also had substantially this same statute under consideration. The court said, in considering the interpretation of the statute:

“ The learned counsel is somewhat in error as to the history of this statute. As a matter of fact, we inherited it, or at least adopted it, from Wisconsin, of which we were formerly a part. Wisconsin presumably adopted it from Michigan, of which it was once a part. Michigan probably adopted it,- either mediately or immediately, from Massachusetts, which, so far as we are advised, was the first State to enact such a statute. An examination of the decision of the court in Com. v. Wyman will show that it was not made upon this section standing alone, or upon the ground that there was anything either in the language or in the purpose of the statute, considered by itself, which required any such construction. In fact, the court impliedly admits that, construed by itself, it would apply to officers of incorporated companies, including banks; but they arrived at the legislative intent from the position which the section occupied in the statutes, and from the existence of other provisions expressly and solely applicable to embezzlement by bank officers.
“Hence, whatever might have been urged in favor of this construction, did we retain the special and express provisions relating to embezzlement by bank officers corresponding to those of Massachusetts relating to the same subject, is deprived of all force, in view of the fact that these special provisions have all been repealed, and that subdivision 2, § 415, of the Penal Code (Gen. Stat. 1894, § 6709, subd. 2), has been enacted, which applies to all cases of embezzlement, and wipes out all distinctions which may have previously existed between embezzlements by officers of banks and by any other officer or agent. By thus doing away with all such distinctions, and enacting a single provision covering all embezzlements, and at the same time retaining in full force Gen. Stat. 1894, § 7262, the conclusion seems to us irresistible that the legislative intent was that this section should apply alike to all cases falling within the provisions of subdivision 2, § 415, of the Penal Code (Gen. Stat. 1894, § 6709, subd. 2). Its language is broad enough to include all such cases, and, when its purpose is considered, embezzlement by bank or other corporate officers is clearly within the mischief intended to be remedied. While all agents are not officers, yet all officers are agents.”

We have not the same reason for declining to adopt the construction placed upon this statute by the courts of the State from which we adopted it; but, on the other hand, the presumption that a statute adopted from a sister State is adopted with the construction placed upon it by the courts of that State does not apply to this statute. The decision in Com. v. Wyman was rendered at the October term, 1844, while the statute under consideration was adopted in this State at least as early as 1888, appearing in its present form in the Revised Statutes of 1838 as pt. 4, tit. 1, chap. 11, section 10, pp. 652, 653, while the statute as to embezzlement by bank officers appears on pages 629, 630, as section 25, in the same words as section 11562 of the present Compiled Laws. Our interpretation of the statute is therefore freed from the presumption arising from the adoption of a statute which had received an authoritative construction.

“An essential element upon which the presumption is based is that the statute has already received a known and definite construction. Decisions in the State or sovereignty in which the statute was originally enacted subsequent to the adoption of the statute by another State will not be controlling in the latter.” 26 Am. & Eng. Enc. Law, p. 702.

As said by the supreme court of Minnesota, ‘c while all agents are not officers, yet all officers are agents. ” As the statute includes bank officers within its terms, we see no good reason why it should not be held to apply to them. In our opinion, it was the intention of the legislature that this remedial statute should apply to every act of embezzlement which was fairly embraced within its terms, and we therefore hold that the circuit judge did not err in admitting evidence of embezzlements within the six months’ period.

There is nothing in the decision of this court in People v. McKinney which is inconsistent with this result. It. was there said that the statute providing for the punishment of embezzlements in the State treasury did not come within the provisions of the section under consideration, which related to private parties. The section under which respondent was prosecuted does relate to private parties, and does come within the provisions of section 11782.

This holding also disposes of the objection that the people should have been confined, in asking for a conviction, to the first act to which they directed their proofs.

Counsel for respondent also took exception and assign error upon the following statement in the argument of the prosecuting attorney:

“ We didn’t have any occasion before this case was here to know what Miss Hough’s knowledge of the books was. We didn’t know what she was going to swear to. How could we tell ? Didn’t she tell all about these transactions, willing to tell all she knew ? That’s the reason Mr. Bradford isn’t here. Mr. Bradford went through the books and furnished the information we desired, and I want to say further that' in every particular it corresponds with Miss Hough.”

Upon objection being made to this statement, the court said:

“A statement of what a witness might swear to who is not put on the stand is not legitimate.”

From the statement of the prosecutor it appears that his contention was that Bradford’s testimony would corroborate Miss Hough’s as to the showing made by the books, which were in court and would speak for themselves. This fact and the fact that the jury found respondent guilty of embezzling the $1,000 obtained from the Commercial Bank, which item was never put upon the books by Messer, and was not proved by the testimony of Miss Hough, but by the testimony of the assistant cashier, Merrill, convince us that respondent could not have been prejudiced by the error.

Respondent’s counsel also contend that the court erred in refusing to give respondent’s twelfth request to charge, which was as follows:

“The respondent has a right to rely upon the insufficiency of the people’s case, and, if he does this and does not take the stand in his own behalf, I charge you that no inference can be drawn against him because thereof.”

It is claimed by the prosecuting attorney:

“ The matter involved in this request was given to the jury by the court, but that it has been omitted from the printed record, and in our main brief, by inadvertence, the same was not referred to. The court instructed the jury upon this proposition during the course of the closing argument by Mr. Farr, prosecuting attorney, the same having occurred and was given in the manner following:
‘“Mr. Farr: Why, then, I ask you, Mr. Messer, was it on the morning of the 5th of April last that with the statement upon leaving the bank that he was going down to the elevator, was the occasion of saying to the bookkeeper that he was going to the elevator ? At that time, when at that time you knew that your intention was to take the 10:20 train out of there ? There is but one person on earth today that knows, and that is Messer. What was the occasion ? What was the reason ? Did that $4,000 bank stock—
‘‘ Mr. Walsh: Take exception for the defendant to that statement in reference to Mr. Messer.
“ ‘ The Court: It is possible the exception is taken on the ground that you are arraigning the defendant for not going on the stand. I will say to the jury that no stress whatever is to be laid upon the fact that the defendant did not go on the stand in this case, and no advantage can be taken of it. There is nothing to be considered in relation to that.
“ ‘ Mr. Walsh: That’s the reason I take the exception.
“‘Mr. Farr: There is no such intention at all to criticise the defendant because he didn’t go on the stand.’”

This request should have been given. People v. Provost, 144 Mich. 17. In that case, we held, after full consideration, that the respondent was entitled, as a matter of law, to have such a request given, and that it was reversible error to refuse it, although the attention of the jury had not been called to the fact that respondent had not taken' the stand. I do not think that the statement of the court, upon objection being made to the prosecutor’s argument, disposes of the question. The statement of the court might cure the error in the prosecuting attorney’s reference to the failure of respondent to take the stand, but I do not think it warranted the court in refusing the request on the ground that it was already covered, if that was the ground. In view of the fact that the attention of the jury had been called to the failure of the respondent to take the stand, he had a right to have an explicit instruction given, to insure that the jury should have a proper understanding of his statutory right.

It is also argued by counsel for respondent that the court erred in receiving evidence outside of the check for the purpose of showing that the check was a mere memorandum. The paper referred to was not a check, as commonly understood, and it was entirely proper to show the circumstances attending its execution. Even if it had been a check, the prosecution would not have been debarred from showing that its accomplished object was to obtain currency for the bank, and not for respondent. This was not a suit between private parties based on the so-called check.

Error is also assigned upon the refusal of the court to give respondent’s second request to charge, which was as follows:

“If you find that the respondent obtained the sum of $1,000 from the Commercial State Bank on the 5th day of April, 1904, in the manner shown by the evidence in behalf of the people, this would not constitute the offense with which the respondent is changed, if he, the respondent, at the time of receiving the money entertained the intent to then and there appropriate the same to his own use. Such conversion having occurred outside of the Marlette State Bank would not be the offense which is charged in this proceeding.”

We think this request was properly refused. If the money obtained from the Commercial Bank was the money of the Marlette Bank, and respondent converted it to his own use, outside of the premises of,the latter bank, such conversion constituted “larceny in such bank,” in the meaning of the law. People v. McKinney, 10 Mich. 54.

For the error above referred to, the judgment is reversed, and a new trial granted.

Montgomery, Ostrander, Hooker, and Moore, JJ., concurred.