text:
    Thomas Keating, By his Next Friend, v. The Detroit Bay City & Alpena Railroad Company.

      Negligence — Pleciding—Railroad companies — Injury to passenger— Defective loading of logs — Evidence.
    1. In a personal injury case the plaintiff need only prove actionable negligence, although he has in his declaration characterized the negligence complained of as gross and wanton; citing Richter v. Harper, 95 Mich. 221.
    2. Plaintiff sued defendant to recover for injuries received, as he claimed, by reason of the improper loading of logs upon flat cars attached to the passenger car in which the plaintiff was riding at the time of the accident. The testimony tended to show that some of the loads were higher than usual; that the bottom tier of logs was held on the car by means of stakes about 18 inches high, placed on either side of the logs; that the logs were piled in pyramid shape, the bottom tier containing five logs; that the top or cap log on one of the loads lay .upon a log which was crooked at one end, and was held in place by a block placed under it, and a wedge driven into the bottom log; that by reason of the manner of loading, when shaken from its place, one of the logs rolled down, struck the switch timber, and broke it, moving the switch rails just as the .train was halfway over the switch, thus derailing all the cars which had not passed over the switch, including the one occupied by plaintiff, and causing the injury complained of. And it is held that it was for the jury to say whether it was negligent to load the cars in the manner stated.
    3. It was not error to admit testimony as to the speed of the train and the absence of a bell cord, coupled with an instruction that the evidence could only be considered as bearing upon the question of whether it was negligent to load the cars in the manner in which they were loaded, having reference to these conditions.
    4. The defendant could not discharge its liability to plaintiff by showing that its agents inspected the cars before starting out on the trip, if in fact the train was not in proper condition with respect to the safety of the passengers,
    5. Testimony of witnesses as to the rate of speed at which the train was running was competent, even if of little value; citing Guggenheim v. Railway Co., 66 Mich. 155.
    Error to Iosco. (Simpson, J.)
    Argued February 13, 1895.
    Decided March 19, 1895.
    Negligence case. Defendant brings error.
    Affirmed.
    The ■facts are stated in the opinion.

      Athinson & Haigh (W. T. Mitchell and T. M. Morton, •of counsel), for appellant.

      M. J. Connine and Charles A. Jahraus, for plaintiff.
   Montgomery, J.

The plaintiff, on the 24th of September, 1891, became a passenger on an accommodation train ■of defendant. The train was made up by attaching several ■cars loaded with logs to the train, in front of the passenger •car, which was at the rear end. While the train was passing over a switch a few miles from where plaintiff got aboard, the car in which the plaintiff was riding was derailed. 'The end of one of the rails crushed up through the- bottom of the passenger car, striking the plaintiff in the breast, breaking his ribs, injuring his lungs and spine; then passed up through the top of the car. The injuries resulting were very severe, and the plaintiff recovered a verdict of •$10,000. Defendant appeals.

The declaration alleged that the defendant negligently attached, to the train carrying passengers, cars loaded with logs, and loaded too high to be safe, and with logs" not bound or fastened to the car, and ran the train of cars at a dangerous rate of speed, in a jerky, jolting, and irregular manner, and negligently failed to provide any rope or cord from any of the cars to the bell upon the engine. At the conclusion of the testimony, the court withdrew all questions of negligence from the jury, except the one depending upon the manner of loading the logs.

In form, the declaration averred the negligence of defendant to have been gross, wanton, etc. It is insisted that there is no evidence that the negligence was gross or wanton. But as was held in Richter v. Harper, 95 Mich. 221, it is not incumbent on the plaintiff to go further than to prove actionable negligence, although he has used words characterizing it as gross and wanton.

It is also insisted that there was no evidence of improper loading. ' The plaintiff produced as a witness one-James Schram, who testified that—

“The logs were not fastened to the cars except by stakes. The stakes were 18 or 20 inches long. Should say the-stakes projected a foot to a foot and a half above the top of the car.”

Witness Oakes testified:

“I noticed the logs loaded on the ears. They were-fastened by stakes from the bottom tier, and no other fastening. Should say these stakes were 18 or 20 inches above the platform of the car. I should judge the top log on the cars would be 5 or 5£ feet from the bottom of the car. The logs would average 12 or 14 inches in. diameter, and they were 12, 14, and 16 feet in length.”

The witness Henderson testified that he loaded the logs-on the cars.

“They were generally loaded from 4J to 5 or 6 feet high. That day there were three or four pretty big loads on these cars. I should say 7 feet high. I loaded them. The bottom tier of logs was fastened with stakes, and the-rest were not fastened at all. Aside from the stakes that held the bottom tier, there was no other fastening to hold the logs on the car. The stakes projected up 18 inches above the platform of the car. One of the logs was secured by me by a block. I placed the block under the log, and drove a wedge in the bottom log to keep the block from coming out. That log was the top or cap log on one of the cars that was loaded so high. The log I wedged was a hemlock-log, peeled, about 14 inches at the top. It was on the fourth car from the tail end as they backed them from the skidways. There were five cars in •all. That would make it the second car from the front car. The wedge was on the right-hand side of the car, facing the engine. * * * I thought at the time that there was something wrong about the loading, but I did not give the railroad men any notice of it, because they look after that themselves. * * * The reason why I put the block under the log was that it did not lay firm, and I thought it might roll off. One of the logs under it was crooked at the big end. This top log was a little larger at one end than the other. I noticed the height of the logs on the car. When I jumped down, I could just about reach the-top. Standing on the platform, at the end of the car, I could just about reach the top log as they were loaded that day.”

The declaration alleges that the loading was too high to be safe; that the logs were carelessly, crookedly, and unskillfully loaded; that the logs were not bound or fastened upon the cars. It is contended by the defendant that the evidence shows that the logs were loaded in the ordinary manner, and that, in the absence of evidence that the customary way is in itself improper, it will not be inferred that what is customarily done is negligent. But we think in this case that, with all the facts before the jury, it was for them to say whether it was negligent to load the cars in the manner in which they were loaded. It is true, it was held in Grand Rapids & Indiana R. R. Co. v. Judson, 34 Mich. 506, that it is not presumptively negligent to run a train of cars in the usual manner, without proof that such usual manner is in itself improper. But there was evidence from which the jury might have inferred that there was an unusual quantity of logs loaded upon some of the cars, and it was proper, under the circumstances, for the jury to draw an inference as to whether, in view of the risk incurred, it was proper to load these logs in such a manner that they would be jolted by running the train in the manner in which it was run. There was testimony tending to show that the injury occurred by the very fact that these logs were loaded in such manner as that, when shaken from its place, one of the logs rolled down, struck the switch timber, and broke it, driving the switch rails just at the time the train was about halfway over the switch, thus, derailing all of the cars which had not passed over the-switch, and causing the injury which resulted to the plaintiff.

It is complained that the judge admitted testimony as. to the speed of the train and as to the absence of a bell cord. But we think these were conditions which could not well have been eliminated from the case. What might have been proper loading for running the train in one manner might not be proper in case of a higher rate of speed; and the circuit judge, in his charge, limited the application of the testimony, and instructed the jury that, it could only be considered as bearing upon the question of whether it was negligent to load the cars in the manner in which they were loaded, having reference to these conditions. We think no error was committed in this regard.

A special question was submitted to the jury, whether the logs were loaded in the usual way; and the court was asked to instruct the jury to answer this question in the affirmative, which he refused to do, and the jury answered the question in the negative. As before stated, there was testimony from which the jury might have found that some of the logs were not loaded in the usual way. Henderson testified that the logs were generally loaded from 4£' to 5 or 6 feet high; that “there-were three or four pretty big loads on these cars. I should say 7 feet high.” And on cross-examination he testified as follows:

“I thought at the time that there was something wrong about the loading, but I did not give the railroad men any notice of it,'because they look after that themselves.”

Two other special questions were presented:

“1. Did the men, employed make the usual inspection, and determine from such inspection that the cars were properly loaded?
“2. Were the cars drawn in the usual way up to the time of the accident?”

And the court was also asked to instruct the jury to answer these in the affirmative. But neither of these questions could have been held decisive if so answered, in a suit by a passenger for injuries resulting; and the circuit judge had already instructed the jury that recovery could not be based upon the manner of running the train. A railroad company cannot discharge its liability to a passenger by showing that its agents inspected the cars before starting out on the trip, if in fact the train was not in proper condition with respect to the safety of the passenger. Carriers of passengers are held to the highest degree of diligence, and cannot avoid responsibility by showing that they intrusted the duty of providing for the safety of passengers to a subordinate agent, who failed to exercise due care.

It was not error to admit the testimony of witnesses as. to the rate of speed. As was said in Guggenheim v. Railway Co., 66 Mich. 155:

“It is probable that the testimony of these witnesses was of little worth; yet there was no error in receiving it, as it was competent as far as it went.”

See, also, Detroit & Milwaukee R. R. Co. v. Van Steinburg, 17 Mich. 99.

We find no error committed on the trial to the prejudice of the defendant.

The judgment will be affirmed.

Long, Grant, and Hooker, JJ., concurred. McGrath, O. J., did not sit. *


source: Caselaw Access Project

author: Montgomery, J.

license: Public Domain

text:
    George N. Fletcher et al. v. William H. Post, Treasurer of the City of Alpena.

      Taxes — Assessment of personalty to -one not the owner — Validity —Replevin—Partnership property — Evidence.
    1. Section 85 of the tax law of 1889, which provided that no tax assessed upon any property, or sale therefor, should he held invalid on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner, or on account of any other irregularity, informality, or omission, or want of any matter of form or substance in any proceeding that should not prejudice the rights of the person whose property was taxed, is applicable to an assessment made in 1891 under the tax law of 18S9, although the taxes were extended under the tax law of 1891, which seems to limit the curative provision, as to assessments of property in the name of any person other than the owner, to assessments of real property.
    2. The effect of the decisions in Lumber Co. v. Collins, 66 Mich. 64; Dairy Co. v. McKinlay, 70 Id. 574; Hill v. Graham, 72 Id. 659; and Bradley v. Bouchard, 85 Id. 18, — which construe the curative provisions of the-tax law of 1882, and subsequent acts, as to assessments of property in the name of any person other than the true owner, — is to establish that the misnomer does not have the effect to mislead the real owner of the property, and to hold him subject to the same liability as though the tax had been regularly levied in the proper name.
    8. In replevin by a firm of firm property seized to satisfy a tax intended to be assessed upon the property of the firm, but which was by mistake assessed in the name of one of the partners, it is not competent for the plaintiffs to attack the validity of the tax by proof of infirmities in the tax proceedings not appearing upon the face of the roll.
    4. Where, in such a case, there is no direct evidence that the property included in the assessment was the property of the firm, it is error for the court to instruct the jury that that fact is not contested by the plaintiffs.
    Error to Alpena. (Kelley, J.)
    Argued February 13, 1895.
    Decided March 19, 1895.

      Eeplevin. Plaintiffs bring error.
    Eeversed.
    The facts are stated in the opinion.

      McDonell & Hall, for appellants.

      J. D. Turnbull (Frank Thnerick, of counsel), for defendant.
   Montgomery, J.

This is an action of replevin for property seized by the defendant while city treasurer of Alpena, to satisfy a tax assessed against George N. Fletcher in the year 1891. Verdict was directed in favor of defendant for the amount of the tax, and the plaintiffs appealed.

It is contended by the plaintiffs that the assessment against George N. Fletcher does not justify the seizure of specific partnership property belonging to the firm of George N Fletcher & Sons. This is generally true. Haynes v. Knowles, 36 Mich. 408; Hutchinson v. Dubois, 45 Id. 143. The circuit judge, however, sustained the defense on the ground that the assessment was intended to be upon the firm property, and that the assessment in the name of George N. Fletcher was not such an irregularity as worked a prejudice to the plaintiffs, and, in so holding, relied upon the decisions of this Court in Petrie Lumber Co. v. Collins, 66 Mich. 64; Michigan Dairy Co. v. McKinlay, 70 Id. 574; Hill v. Graham, 72 Id. 659; Bradley v. Bouchard, 85 Id. 18. Plaintiffs’ counsel contended, however, that the statute was so amended in 1891 as to render these decisions inapplicable. Section 84 of the statute of 1882 provided that—

“No tax assessed upon any property, or sale therefor, shall be held invalid on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, or on account of the property having been assessed without the name of the owner, or in the name of any person other than the owner."

This provision was substantially re-enacted in 1885 and 1889. In 1891 the corresponding section (86) .was amended so as to read:

“No tax assessed upon any property, or sale therefor, shall be held invalid on account of any irregularity in any assessment, or on account of any assessment or tax roll not having been made or proceeding had within the time required by law, or on account of real property having been assessed without the name of the owner, or in the name of any person other than the owner," etc.

If this law were the one under which the assessment in question was made, there would be difficulty in holding that the insertion of the word “real" was not with the purpose of limiting the curative provisions to cases where the error in the name occurred in assessments of real property. But, as this tax was assessed in 1891, tlie assessment roll must have been prepared under the prior law, and all that would remain to be done by the assessing officer after the act of 1891 took effect would be to extend the taxes on the assessment roll as. required by section 27. The property had been previously listed for assessment. 'The repealing clause in the act of 1891 provided that the repeal should in no manner affect any rights which might have accrued or might thereafter accrue under prior acts. We think, therefore, that the curative provisions of the act of 1889 should he held applicable to this case.

Error is assigned upon the refusal of the court to permit the plaintiffs to show that a portion of the tax by which the defendant sought to establish his lien was illegal and void. The proposition was not to show any infirmity appearing upon the face of the tax roll, but that certain taxes were illegally assessed; for instance, that the school tax contained a levy of a certain sum which was unauthorized; that the road and bridge fund was comprised in the county tax; that the agricultural tax, and a certain sum voted for sheriff’s salary, were included in the amount, spread. The circuit judge ruled that this was not admissible. The question is ruled by Hill v. Graham, 72 Mich. 659. Counsel seek to distinguish this case from a case where the tax was assessed in the name of the owner. But that identical question was involved in Hill v. Graham, The effect of the decisions of this Court upon the act of 1882 and subsequent acts is to establish that the misnomer did not have the effect to mislead the real owner of the property, and to hold him subject to the same liability as though the tax had been regularly levied in the proper name.

The judge, in his charge, stated to the jury that it was not contested but that the taxes upon the roll, for which the levy was made, were assessed to George N. Fletcher, and the property assessed was the property of Fletcher & Sons. In this the court, we think, committed an error. The assessing officer was not called to the stand. The assessment appearing upon the roll was an assessment of personal property against George N. Fletcher. There was no specific designation of what property was assessed, except in one instance, — the “pulp-mill property” (personal) was assessed at $20,000. But there were other large assessments, one of $95,000 and one of $3,100, and there was no direct evidence that the property included in the assessment was the property of George N. Fletcher & Sons. This testimony should have been supplied. If it had appeared as a fact that the property so assessed was-the property of Fletcher & Sons, we think the case would fall within the previous decisions of this Court; but for this defect of proof the' judgment must be reversed, and a new trial ordered.

Long, Grant, and Hooker, JJ., concurred. McGrath, C. J-, did not sit.

       Act No. 9.


author: Grant, J.

text:
    John McDonald v. Donald C. McKinnon.
    [See 92 Mich. 254.]

      Practice in Supreme Court — Bes judicata — Corporate stock — Conversion — Damages—Evidence—Instructions to jury.

    1. If counsel desire a reargument of a question disposed of on a former hearing, they should move for a rehearing, as on a second hearing upon the same state of facts the question so decided is res judicata.

    2. In trover for a certificate of stock, the plaintiff’s declaration claimed damages for the failure of the defendant to deliver the certificate on demand. The court instructed the jury that if they should find that said demand was made, and that the defendant wrongfully refused to comply with it, but after-wards delivered the certificate to the plaintiff, the plaintiff was entitled to recover as damages the difference between the value of the stock when demanded and its value when delivered. And it is held that the instruction was correct.
    8. The evidence failed to show that the defendant, in refusing to deliver the certificate when first demanded, did not act in the honest belief that it had been burned with other records and papers belonging to the corporation; but there was testimony in support of plaintiff’s claim that, after the defendant, who was treasurer of the corporation, had found the certificate, he purposely kept it, denied that the plaintiff was entitled to the certificate under his contract with the corporation, which plaintiff claimed to have performed so as to entitle him to said certificate, and refused and neglected to call a meeting of the stockholders to pass upon the question. And it is held that, while the facts last stated, if established, would amount to a conversion, it was error so to instruct the jury as to cause them naturally to infer that the first demand and refusal constituted a conversion, notwithstanding the defendant might then have been acting in entire good faith.
    4. Upon the organization of a, mining company, an agreement was made between the company and one of its stockholders by which 8,000 shares of stock belonging to the stockholder were placed in the hands of the treasurer of the company, to be delivered to the stockholder when certain explorations, which he agreed to make at his own expense, should bring certain designated results. The stockholder sued the treasurer in trover for the stock, and on the trial was permitted to show the amount of money which he claimed to have expended in his exploratory work, and the amount expended after he had, as he claimed, developed a bed of ore which entitled him to his stock, and which latter expense was incurred under an agreement to mine which he claimed was made between him and the defendant, and in which the company acquiesced. Plaintiff’s counsel, at the close of his testimony in chief, withdrew the evidence as to the first item of expenditure from the consideration of the jury as erroneously admitted, but permitted the other item to remain for their consideration. And it is held that whether it cost plaintiff much or little to develop the mine had no legitimate bearing upon any issue involved in the suit; that the expenditure by plaintiff of such large sums of money as he testified to would naturally prejudice the jury; and that it was error to admit the testimony.
    Error to Dickinson. (Stone, J.)
    Argued February 14, 1895.
    Decided March 19, 1895.
    Trover. Defendant brings error.
    Reversed.
    The facts are stated in the opinion, and in 92 Mich. 254.

      B. J. Brown (W. H. Webster, of counsel), for appellant.

      B. B. Osborn, for plaintiff.
   Grant, J.

The principal question in this case was disposed of by the former decision (92 Mich. 254), and will not now be reviewed. A sufficient statement of the case will there be found. We have examined the former record, and find it almost identical with the present one. The principal question is again argued at great length. If, however, counsel desired a reargument of that question, they should have moved for* a rehearing. Parties aree entitled to a final decision of all question's raised upon the first appeal to this Court, so that they may enter upon the second trial with all such questions res judicata.

It appeared upon the former trial, as well as upon this, that the defendant had sent all the stock of the mining company to the Commercial National Bank of Chicago, to be delivered to one Ettelsohn. Plaintiff’s certificate of stock was sent with the rest, and he went to the bank, and indorsed it, whereupon it was delivered to Ettelsohn. It is contended by the defendant that this was done at plaintiff’s request, for the purpose of securing Mr. Ettlesohn as an indorser upon some promissory notes of plaintiff, and that as a matter of fact this constituted an actual delivery of the stock. Plaintiff gave an entirely different version of this transaction, denying the testimony of both Ettlesohn and defendant. The conflicting testimony raised a question of fact, which was properly left to the' jury to determine. The court instructed the jury that, if they found that the. stock was delivered to plaintiff at Chicago, and that he had, before that time, demanded possession of defendant, and was refused, and that lie had shown himself entitled to it under the terms of his contract, then he was entitled to recover as damages the difference between the value of the stock when demanded and when delivered. The court also instructed them that, if he then obtained control of the stock, it constituted a delivery. We think the charge was correct in view of the special count in the declaration alleging damages for failure to deliver the stock on demand.

It is urged that the court erred in instructing the jury as follows:

If you find a conversion of this stock by McKinnon,— and by 'conversion’ I mean, if you find that the plaintiff was entitled to it, and demanded it, and that the defendant declined and refused to deliver it, that would make it a conversion, — if you find an unlawful conversion of this stock by McKinnon, and that the plaintiff never got possession of it, never received possession of it down to this time, then you should give the plaintiff, as damages, the value of the stock at the time of such conversion, with interest to date at the rate of 6 per cent, per annum.”

The precise claim is that the demand and refusal did not constitute a conversion, but were only evidence of a conversion; and in support of this is cited Daggett v. Davis, 53 Mich. 35. The language of that case must be construed with reference to the facts. The defendant was the president of the corporation. Plaintiff had been its secretary, and when he resigned he left his certificate in the company’s safe. In some manner, but without intention, it got among defendant’s papers, and, after he found it, he refused to surrender it, claiming that there were unadjusted matters between plaintiff and the corporation which should be first adjusted. Defendant had made no use of the certificate for his own purposes, nor had plaintiff been denied his rights as a shareholder in the corporation, nor was there any evidence of fraud or deceit. Two facts alone were proven, the demand and refusal. The certificate was produced upon the trial. It was held that there was no absolute conversion, entitling plaintiff to recover the full value of, the stock, but that there might have been a technical conversion by a partial or temporary deprivation, and that the demand and refusal did not of themselves constitute a conversion, but were evidence thereof to go to the jury. That was a well-considered case, and many authorities were cited, commented upon, and some distinguished. There is nothing in the record of the case now before us, under plaintiff’s own evidence, to show that defendant, when the certificate was first demanded, •did not act in the honest belief that it had been burned in the fire, with other records and papers of the corporation. There is, however, testimony from plaintiff to support the claim that, after defendant discovered the certificate, he purposely kept it, neglected and refused to call a meeting of the stockholders, and finally denied that plaintiff was entitled to it under his contract. If this was proven to the satisfaction of the jury, a case of conversion was established under the former decision, such as entitled plaintiff to recover the full value of the stock at the time the defendant ascertained that he had the certificate. If plaintiff had earned and demanded it, it became the duty of the defendant to deliver it as soon as he found it. The mischief of the instruction lies in the fact that the jury might very naturally have inferred’ that the first demand and refusal constituted a conversion, notwithstanding that the defendant might then have been acting in entire good faith. In that case, demand and refusal were not alone sufficient to establish conversion, but were proper evidence to go to the jury in connection with the other evidence.

Evidence was introduced, under objection and exception, of the amount of money which plaintiff had expended in his exploratory work, and also the amount expended after he claimed that he had developed a bed of ore which entitled him to his stock, and which was expended under the agreement to mine, which he claims was made between him and defendant, and in which he further claims the company acquiesced. Plaintiff's counsel, at the close of his testimony in chief, on his own motion, withdrew the amount expended on the exploratory work from the consideration of the jury, stating that he thought its admission was error. The other expense was permitted to stand for the consideration of the jury. The admission of this testimony was error. Plaintiff agreed to bear all the expense of the work. If he developed no mine, it was his loss; and whether it cost much or little had no legitimate bearing upon any issue involved. It is very natural that the expenditure by plaintiff of such large sums of money as he testified to should prejudice the jury.

Other objections are raised, but we find in them no error, nor do we regard them of sufficient importance to discuss. They are expressly overruled.

'Judgment reversed, and new trial ordered.

The other Justices concurred.


text:
    Mark J. Fisk v. Laura A. Mills.

      Married women — Bills and notes — Consideration.
    1. Where, in a suit against one of the makers of a promissory note, it appears that the defendant is a married woman, the burden is upon the plaintiff to show that the consideration for the note passed to her.
    2. In a suit upon a promissory note signed by husband and wife, it appeared that a portion of the consideration for the note was money paid to the husband by the payee by request, as the payee claimed, of the wife. The testimony failed to show that the wife stated to the payee at the time he advanced the money to her husband that it was for • the benefit of her separate estate, and it cónclusively appeared from the evidence that it was not. And it is held that a judgment against the wife for the amount of the note cannot be sustained.

    Error to Ionia. (Dodds, J., presiding.)
    Submitted on briefs February 15, 1895.
    Decided March 19, 1895.

      Assumpsit. Defendant brings error..
    Eeversed.
    The facts are stated in the opinion.

      R. A. Hawley, for appellant.

      George R. é M. A. Nichols,, for plaintiff.

       As to liability of married women upon their promissory notes, see O’Donnell v. Bray, 99 Mich. 534, and note.

   Montgomery, J.

This is a suit upon a promissory note for $210.90, executed by defendant and ber husband to Dr. David Kelley, and by him assigned to plaintiff. The plaintiff, assignee of Dr. Kelley, recovered judgment for the amount of the note.

The fact appearing that defendant was a married woman, the burden rested upon the plaintiff of showing that the consideration of the note passed to her. Fechheimer v. Peirce, 70 Mich. 440. The consideration of the note consisted, in part, of a debt claimed to be owing from defendant, Mrs. Mills, for merchandise furnished upon her sole credit. There was evidence from which the jury might have found that this merchandise was purchased upon her agreement to pay for it, and that the credit was extended solely to her. The further consideration for the note was money paid to the husband of defendant, Mr. Mills, amounting to $103. The charge of the court left the jury to find whether this money was in fact advanced for the benefit of Mrs. Mills, and at the close of the charge plaintiff’s counsel made a suggestion, as follows:

“If Dr. Kelley understood that the money was for her use and benefit, money that he let her have, and at the time that he let her have the money she so understood it, why, she would be bound.
“Ihe Court: Yes, if she told him that it was for her benefit at the time she got it, and Dr. Kelley so understood it, then it is binding upon her.”

The only testimony offered for the purpose of showing this understanding was that of Dr. Kelley himself. He testified, on direct examination, as follows:

“ Mrs. Mills told me to let Mr.- Mills have the money, and I let him have it on that order, as I have other things. I let him have it on that order from her.
Q. Did she tell you what was going to be done with this money?
“A. It was in payment of making a well, or fixing the well, I understood, at the house where she lived. She :said let him have it to cancel a debt for that well where she lived. I let her have either $15 or $25, I am not able to say which. I gave it to her direct to make up the $210. There was nothing said at the, time between Mrs. Mills and me that this $15 or $25 was for her husband. It wasn't for her husband. I gave it to her individually."

On cross-examination he testified as follows:

“ Q. I understand that $90 of this money you paid to Mills?"
“A. By her order.
“ Q. I didn't ask you about that. You paid it to Mr. Mills?
“A. I handed it to Mr. Mills.
“ Q. You knew at the time you paid it to him, didn’t you, that he was going to pay for a well upon his farm?
“A. I understood that so, but I understood since it wasn't.
“ Q. That was your understanding at that time?
“A. There was some talk that he was. I didn't know lie was, and I don’t know now he was. * * *
Q■ At the time you let him have this money, didn't you let him have $103?
“A. It may be.
“ Q. And wasn't Albert Hopkins present, and didn't Mills tell you that he was coming here to Ionia to pay .for the well?
“ A. To pay John Blanchard.
“ Q. And didn’t you tell him he had better get right -down that day?
“A. I.might have said that. I think I did. * * *
“ Q. This well that you have mentioned is upon Mr. Mills' premises, upon his place?
“ A. I don’t know whether it is Mr. Mills’ place or not; never-saw no deed of it.
“ Q. It is called Mr. Mills’ place, isn’t it?
“A. I think he called it like that.
“ Q. He called it so at the time, didn't he?
“ A. I guess he did. I am not positive.
“ Q. You knew that this $90 or $103, whatever it was, was going to pay for a well on this place?
“A. I didn't know it certain. I don’t recollect whether he said that or not. He told me to let him have that .amount of money that I did let him have, for to go to Ionia to pay Mr. Blanchard. She told me she wanted the money. I told her I conld let her have it, if she would give me a mortgage on the place. There was no talk of any mortgage on his place. She said she did not like to put a mortgage on her place, but she did not say she would not.”

This is substantially all the testimony which bears upon the question. The record is barren of any testimony which shows that Mrs. Mills ever stated to Dr. Kelley that this, money which he advanced to Mr. Mills was for the benefit of her separate estate; and the evidence shows conclusively,, as a matter of fact, that it was not. The case is governed by the previous rulings of this Court in Fechheimer v. Peirce, supra; Schmidt v. Spencer, 87 Mich. 121; Chamberlain v. Murrin, 92 Id. 361.

Judgment should be reversed, and a new trial ordered-

The other Justices concurred.


author: Hooker, J. Grant, J.

text:
    John T. Rich, Governor of the State of Michigan, v. William Chamberlain, Warden of the State Prison at Jackson.

      Constitutional law — Pardons—Transfer of prisoners.

    1. Act No. 150, Laws of 1893, which provides for an “Advisory-Board in the Matter of Pardons,” and determines its powers- and duties, is not in conflict with section 11, art. 5, of the Constitution, which vests the pardoning power exclusively in the Governor, “subject to regulations provided by law relative-to the manner of applying for pardons.”
    2. The power conferred upon the Governor by section 28 of Act-No. 118, Laws of 1893, to transfer prisoners from one prison to another, is valid, at least as to convicts sentenced subsequently to the passage of said act, and mandamus will lie to-compel such transfer in accordance with the warrant of the Governor therefor.

      Mandamus.

    Argued February 26, 1895.
    Granted March 19, 1895.
    Eelator applied for mandamus to compel respondent to ■transfer a convict from the State prison to the House of Correction and Eeformatory at Ionia. The facts are stated in the opinions.

      Fred A. Maynard, Attorney General, for relator.

      Wilson é Oobb, for respondent.
   Hooker, J.

Act No. 118, Laws of 1893, is entitled—

“An act to revise and consolidate the laws relative to the State prison, to the State House of Correction and branch of the State prison in the Upper Peninsula, and to the House of Correction and Eeformatory at Ionia, and the government and discipline' thereof, and to repeal all acts inconsistent therewith.”

A board of control was provided for each prison, consisting of three members, to be appointed by the Governor by and with the advice and consent of the Senate, of which board the Governor is ex officio a member. These boards were authorized to make general rules for the government of their respective prisons. Section 28 of this law authorizes the Governor to order the transfer of prisoners from one to another of these prisons, upon the recommendation of the State Board of Pardons. Upon .such recommendation, the Governor issued his order and warrant, as provided in the law under discussion, for the transfer and removal of one William K. Stevenson, a convict, from the State prison to the House of Correction. The warden of the State prison refused compliance, and these proceedings were instituted by the Governor to compel it.

The warden returns that his refusal was in pursuance-of a resolution adopted by the board of control of the-prison directing him not to obey the command of the Governor, for reasons therein set forth. A copy of this resolution, signed by two of the appointed members, is-attached to the answer of the warden.

The authority for transferring prisoners is found in-section 28, Act No. 118, Laws of 1893. It is contended that the transfer is a judicial act, and can only be performed by an officer clothed with judicial powers; that the-determination of the circuit judge as to the prison in which the convict should be confined is a judicial determination; and that the prisoner has a right to remain in such prison for the period of his imprisonment; or, at all events, that he cannot be summarily removed without a, hearing. It is said that the law discriminates between the-prisons; that certain offenders cannot be sentenced to the-State prison; and that the worst criminals cannot be sentenced .to the House of Correction, which is said to be-designed for the less hardened class of criminals.

The Legislature has full authority to provide prisons, and to determine where prisoners may be sent; and the courts have no discretion as to the place to which criminals may be sentenced except as the Legislature gives it., Such discretion is lodged with the circuit judges, and they act judicially in its exercise. But this doctrine is a. qualified one, or rather the order 'of the judge is qualified by the law, and such rules and regulations of the prisons-as may have been lawfully adopted. Every sentence is-subject to these, although it does not mention them. ' The law requires every person convicted of murder in the first, degree to be sentenced to solitary confinement and hard labor for life. Yet, under the law and prison rules, such prisoners are taken from their solitary confinement after a. short time, and are allowed to work with other convicts. Again, all sentences direct that the prisoners be confined in the State prison; bnt, under the law, they may be hired to do work outside of the walls, in factories or mines or upon the highways, different states having different rules. The sentence is always imposed and received under and interpreted by the law to which it is subject. The judge and the prisoner act with the knowledge of this fact, and must be presumed to understand that, while the judge may or may not sentence a prisoner to one or another institution, there is an existing law under which he may be lawfully transferred. The sentence impliedly subjects him to this when, in the discretion of the proper executive officer or board, crowded prisons or any other reasons require or make it advisable. We need not determine-whether this would be applicable to cases of sentence before the law providing for transfer took effect. The judicial act is fully performed by the sentence, which, though in form absolute, involves conditions imposed by law by which the prisoner’s rights are limited and to which they are subject; and while the court may not, in terms, sentence certain classes of offenders to one or the other of' the prisons, the sentence construed by the law is. to the-designated prison, but subject to transfer in accordance to-law.

It was urged at the hearing that section 28 is’defective,. and does not make the necessary provision to protect the-rights of the convict; that there is' no requirement to-transfer his personal effects from one prison to the other;-, and that no method is provided by which it can be determined whether or not he was entitled to what is called good time” at the time of the transfer. Doubtless, these are the subjects of rules made by the boards of control, but, if not, the former is of little importance, while, as to the latter, the prisoner might be amply protected by a presumption of good behavior, unless the contrary should appear.

The action of the Governor, under this statute, must be based upon a recommendation of the advisory board of pardons, and, if such board has no legal existence, its recommendation would be of no validity, and could not be a substantial basis of action by the Governor. This board was established in 1885, and a new act was passed in 1893, under which the present board exists. The board consists of four members, appointed by the Governor by and with the advice and consent of the Senate. The board may appoint a clerk, may hold sessions when and where occasion may require, send for persons and papers, and administer oaths. Its duties are to investigate the oases of convicts, confined in the various prisons, who may petition for pardons or for license to go at large, and to report to the Governor the results of investigations, with such recommendations as, in the judgment of its members, shall seem expedient, either in respect to pardons or commutations, or refusal of pardon or commutation. The act provides, further, that—

“Upon receiving the result of any such examination, together with the recommendations aforesaid, the Governor may, at his discretion, upon such conditions, with such restrictions, and under such limitations as he may deem proper, grant the desired pardon or commutation."

Const. art. 5, § 11, provides that—

“ He [the Governor] may grant reprieves, commutations, and pardons, after convictions, for all offenses except treason and cases of impeachment, upon such conditions, and with such restrictions and limitations, as he may think proper, subject to regulations provided by' law relative to the manner of applying for pardons. * * * He shall communicate to the Legislature at each session information of each case of reprieve, commutation, or pardon granted, and the reasons therefor.”

This section of the Constitution, in express terms, lodges the pardoning power with the Governor, and with it the co-ordinate branches of government have nothing to do, except as the Legislature may by law provide how applications may be made, and is entitled to a report of action taken. People v. Brown, 54 Mich. 28; People v. Moore, 62 Id. 498; People v. Cummings, 88 Id. 251; U. S. v. Wilson, 7 Pet. 150; Ex parte Wells, 18 How. 307; Ex parte Garland, 4 Wall. 333. The power conferred by this section of the Constitution is practically unrestricted, and the exercise of executive clemency is a matter of discretion, subject, perhaps, to the remedy by impeachment in case of flagrant abuse. It cannot, however, be treated as a privilege. It is as much an official duty as any other act. It is lodged in the Governor, not for the benefit of the convict only, but for the welfare of the people, who may properly insist upon the performance of that duty by him, if a pardon is to be granted. As was said by Chief Justice Marshall in U. S. v. Wilson, 7 Pet. 160:

“A. pardon is an act of grace, proceeding from the power intrusted with the execution of the laws, which exempts the individual on whom it is bestowed from the punishment the law inflicts for a crime he has committed. It is the private, though official, act of the executive magistrate, delivered to the individual for whose benefit it is intended.”

Lord Coke defines “pardon” as “a work of mercy, whereby the king, either before or after conviction, forgiveth any offense,” etc. 3 Inst. 233. See, also, 1 Bish. Cr. Law, § 898.

There are many reasons why a power of this kind should be confided to the highest executive officer. It involves a wide discretion. The proceedings upon the trial may be reviewed. New evidence may be taken upon which to rest the pardon, thus, in effect, granting a new trial. It may be ex parte, after the witnesses have disappeared or are dead. It may and often is based upon an alleged reform of an offender. Youth or age may furnish an excuse for its exercise. Petitions which a good-natured public sign without reading, and importunities of interested persons and friends, may be expected wherever there is hope of success. It is therefore of the highest importance to the public that - this power should be carefully exercised, and that the fullest responsibility should rest upon the person to whom it is confided. The office of Governor seems to be generally considered the proper one with which to lodge such responsibility, and the public have the right to insist-upon his performance of the duty. Not only is it beyond the power of the Legislature to impose the duty upon others, but it should not in any way lessen his responsibility to the public, when he sets aside the judgment of court and jury by opening the doors of a prison to a convicted felon. If the act in question does this, it should not be sustained. The effect of it is to establish a sort of tribunal open to convicts, where the question of whether they should be pardoned or be licensed to go at large may be tried. The conclusion reached, — i. e., the result, — accompanied by a recommendation, must be certified to the Governor, who then grants or refuses 'a pardon, as he may think advisable.

We understand that the practice of this board is to conduct its investigations with care and thoroughness, to require notice to be given to the authorities, to reduce proof to writing, and to return the same, with a report in detail, to the Governor. This, however, seems to be under rules of its own devising or prescribed by the Governor, for the act requires nothing of the kind. This is unimportant, however, as it might be remedied by legislation. But the vital defect in the act is that it tends to substitnte tbe judgment of the board for that of the Governor. It can be truly said that the opinions of the board need not be controlling. But the tendency is naturally to offer an opportunity, if not an inducement, to an overburdened magistrate, to depend upon the judgment of a board in which he has confidence, and which has made a more-careful investigation than he has made, and to act upon the recommendation of such board, while the public have a right to the fullest exercise of his own understanding- and judgment, which they have signified by their Consti-. tution that they desire. This right should not be thwarted or placed in jeopardy by a law whose natural result may be expected to contravene the spirit of the constitutional provision. A loose exercise of the pardoning power is greatly to be deplored. It is inexcusable. It is a blow at-good order, and is an additional hardship upon society, in 'its conflict with crime and criminals, — a conflict which is-irrepressible, and in which the criminal has many, and. possibly undue, advantages. The erection of a court of pardons is of such doubtful expediency, offering, as it-does, an opportunity to the convict — practically within the doors of every prison — to press his suit for pardon,, that it should never be permitted until the people have-signified a willingness that the safeguards placed in their Constitution be removed. The erection of a court of pardons is to invite unworthy applications. A practice-grows up. It offers a premium to pardon-brokers, and the-pardon, in place of remaining a matter of high executive-discretion, based upon legitimate clemency, degenerates to-a routine award of a committee, to be obtained and justified by compliance with fixed rules, and sought as an. assertion of right rather than clemency.

This section of the Constitution contemplates that the-Legislature may regulate the manner of applying for pardons, but this should not be construed to confer the power to limit the discretion of the Governor. to grant pardons, or to require any other officer to first pass upon the question. All power is taken from the Legislature except that of regulating the manner of applying to the executive. Act 150 does not profess or attempt to do this. Its title is silent upon the .one and only subject in relation to pardons which the Constitution -permits the Legislature to act upon. It nowhere provides how applications for pardons shall be made, or that such applications shall be uniform. It does not regulate applications for pardons. It provides for a board, which must act in cases where petitions are filed, and gives no authority to the board to act in the absence of petitions. It seems to regulate the board which the act creates, instead of regulating the manner of making application to the only officer authorized to grant pardons. Under the claim that it is prescribing a manner of applying for a pardon, it, imposes a duty to investigate and report, and professes to authorize the Governor to act upon such report and recommendation. If this means anything, it is that the Governor may lawfully forego any investigation, and act upon the recommendation of the board, substituting their judgment for his own. The answer to this is that we cannot suppose that the Governor will pay any attention to the recommendation, because the Constitution imposes a duty upon him. The act does not regulate the method of applying for pardons. It does provide for a sort of investigation, which we are told that the Legislature intended should be disregarded. In my opinion, this was not the legislative intent. On the contrary, it was expected that the Governor would do just what the Legislature undertook to provide that he might do, viz., act upon the report and recommendation without personal investigation. If there were no board of pardons, a Governor would not be likely to feel at liberty to grant a pardon upon a mere application, -without investigation. If he did, such a practice would not meet public approval, nor would it be a proper discharge of his duty. Tet the act in question provides that he may do that very thing, and, to sustain the act, the argument must be made that the Legislature did not mean what the language expressly states, but intended that the report and recommendation should be wholly disregarded by the Governor.

Our attention has not been called to a case involving the question that has been discussed. Our own investigation has disclosed that, by most state constitutions, the pardoning power is lodged with the governor, as it is with the President under the Federal Constitution. In several states the power of the governor is restricted, possibly to cut off any danger of an undue exercise of the power. • In most of these, however, the consent of the governor is indispensable. It is, however, a significant fact, and one that bears forcibly upon this case, that we have found no instance where a board has been created by statute, but invaribly by constitutional provisions. In Florida, pardons may be granted by the governor, justices of the supreme court, and’ attorney general, or a major part of them, pro\ided that the governor be one. Const. Fla. art. 6, § 12. In Louisiana, the governor may act by and with the consent of the senate. Const. La. 1868, tit. 3, art. 58. In Maine, after conviction, the governor may pardon, with the advice of a council of seven members chosen by the legislature. Const. Me. art. 5, pt. 1, § 11. In Massachusetts, the governor and a council of eight chosen by the legislature may grant pardons. Const. Mass. chap. 2, § 1, art. 8. In Nevada, the governor, justices of the supreme court, and the attorney general constitute the board. The governor must concur. Const. Nev. 1864, art. 5, § 14. In New Hampshire, the governor acts, with the advice of a council of five elected by the people. Const. N. H. pt. 2, § 52. In New Jersey, the governor, chancellor, and six judges of the court of errors constitute the board. The governor must act. Const. N. J. art. 5, § 10. In Pennsylvania, the governor, lieutenant governor, secretary of state, attorney general, and secretary of internal affairs constitute the board. Any three may act. Const. Penn. 1873, art. 4, § 9. In Vermont, the governor and a council consisting of the lieutenant governor and 12 council, men, to be elected by the people, exercise the pardoning power. Const. Vt. 1793, chap. 2, § 11. Michigan appears to' be the only state that has attempted to regulate the matter of pardons by statute. As we have already said, the subject is expressly removed from legislative interference, and we think that the law of 1893, providing for the-advisory board, is clearly unconstitutional. Being so, said board could not lawfully make the recommendation which is a condition precedent to an order to transfer a prisoner.

We think that the writ should be denied.

McGrath, C. J., concurred with Hooker, J.

Grant, J.

We concur in the opinion of Brother Hooker, except that portion wherein he holds the law providing for the board of pardons to be unconstitutional. We also agree with him in saying that “the pardoning power should be carefully exercised, and that the fullest responsibility should rest upon the person to whom it is ■confided.” That power is vested exclusively in the Governor of the State, and any law which restricted this power would be unconstitutional and void. While, however, the Constitution unqualifiedly vests this power in the Governor, it, at the same time and with equal clearness, vests in the Legislature the power to provide, by law, regulations relative to the manner of applying for pardons. Article 5, § 11. tinder this power, it would clearly be competent for the Legislature to provide as regulations that the petition or application should be under oath; that it should be first submitted to the judge and prosecuting attorney, for them to indorse thereon or attach thereto such statements as they might deem proper to make touching the merits of the application, and designed to furnish the Governor -information upon which to base his action; that the testimony taken upon the trial, if it exists, should accompany the petition; and that ’testimony under oath should be taken at the prison or elsewhere bearing upon the reasons urged in the petition for pardon. Is there any doubt of the right of the Governor under this constitutional provision, without any act of the Legislature, to ask the opinion or advice of any of these officers, or to ask either to examine the facts upon which conviction was based, the conduct of the prisoner, or any other material facts, and report to him, without any abandonment of his constitutional duty? How else can he obtain the necessary facts upon which to base intelligent action? In the .absence of any law providing regulations, the Governor possesses the undoubted right to require, as a condition precedent to the consideration of an application, that it shall be accompanied by these statements. Certainly, a law which imposes no other regulations than those which he himself might impose is not unconstitutional. No Governor ought to pardon without having before him the facts upon which the conviction was based, as well as the ■ conduct of the prisoner after conviction. This law does nothing more than to prescribe the methods and regulations for obtaining this information which is so- necessary for an intelligent and proper exercise of the pardoning power. The section of the act upon which is based the alleged unconstitutionality reads as follows:

“It shall be the duty of said board to investigate the cases of such convicts now or hereafter confined in the State prisons and house or house's of correction as may petition for pardon or for a license to be at large, and to report to the Governor the results of their investigations, with such recommendations as in their judgment shall seem expedient either in respect to pardons or commutations, or refusal' of pardon or commutation. Upon receiving the result of any such examination, together with the recommendations aforesaid, the Governor may at his discretion, upon such conditions, with such restrictions, and under such limitations as he may deem proper, grant the desired pardon or comiputation, which warrant shall be obeyed and executed instead of the sentence originally awarded.” Laws of 1893, Act No. 150, § 6.

It was not the purpose or intention of this act to infringe upon the constitutional prerogatives or power of the Governor. The name given to the board in section 1— viz., “The Advisory Board in the Matter of Pardons”— clearly indicates this. In practice, as shown in Brother Hooker's opinion, the board assumes none of the power of the Governor to pardon, but recognizes its sole duty to be to gather information; and for this purpose it conducts its investigation with care and thoroughness, requiring notice to the authorities, and proofs to be taken and returned to him for his examination. The fact that such board is authorized to make recommendation is no infringement upon executive power. It might as well be held that the report and recommendation of the circuit court commissioner, to whom a case in equity has been referred, are an infringement upon the power of the court, upon which the Constitution and the law have conferred exclusive jurisdiction. It has been a common practice heretofore for the trial judge, the prosecuting attorney, and the jury who tried the prisoner to recommend to the Governor that he be or be not pardoned. It might as well be held that such recommendations were an unconstitutional interference with his power as to hold that the recommendations of this board are unconstitutional. The recommendations in the one case are of no greater significance than in the other. In neither case have they any binding force upon him, and the law neither provides nor intends that they shall have. We hold the law to be constitutional, and the power to transfer convicts from one prison to another valid.

The writ must issue.

Long and Montgomery, JJ., concurred with Grant, J„

         Act No. 150.


author: Long, J.

text:
    The People v. Fred E. Fowler.

      Criminal law — Jury—Qualifications—Adultery—Trial—Conduct of prosecuting attorney — Evidence.
    1. It is not reversible error to sustain improperly a challenge for cause interposed by the people to a juror in a criminal case, where it does not appear that the regular panel of jurors was exhausted, or that the people had exhausted their peremptory challenges, or that any objection was made by the respondent to the competency or impartiality of’ the jury which was obtained; citing Mining Co. v. Johnston, 23 Mich. 39; Luebe v. Thorpe, 94 Id. 268.
    2. In a prosecution for adultery, the prosecuting attorney, in opening the case to the jury, stated that the people would show that, in the winter prior to the commission of-' the alleged offense, the respondent was found, by the husband of the woman with whom the adultery was alleged to have been committed, concealed behind the door of her sleeping room. No evidence was given on the trial in support of said statement. And it is held that if the statement was made in good faith, and on the trial the prosecuting attorney found that his proofs did not substantiate the statement, a conviction should not, for that reason alone, be set aside.
    3. The husband was not a competent witness to testify to the truth of said statement; citing Hanselman v. Dovel, 102 Mich. 505.

      4. Evidence of conversations had with the wife, in the absence of the respondent, was, as to him, hearsay, and not admissible.
    ■5. Complaints made by a daughter of the wife that her schoolmates twitted her that the respondent was her brother’s father were incompetent, and the error committed in admitting them was not cured by striking out the testimony.
    >6. It was competent for the people to show prior, but not subsequent, acts of intimacy between the parties.
    7. The prosecuting attorney had no right to attempt to prejudice the respondent by referring in his closing argument to the fact that the wife had not been sworn as a witness in the case, and the court should have directed the jury that they could not weigh that fact against the respondent.
    Exceptions before judgment from Hillsdale. (Lane, J.)
    Argued February 28, 1895.
    Decided March 19, 1895.
    Respondent was convicted of the crime of adultery.
    Conviction reversed.
    The facts are stated in the opinion.

      F. A. Lyon, for respondent.

      Fred, A. Maynard, Attorney General, and Guy M. Chester, Prosecuting Attorney, for the people.

       As to competency of husband and wife as witnesses for or against each other in criminal cases, see People v. Gordon, 100 Mich. 518, and note.

   Long, J.

Respondent was convicted of adultery.

While the jury were being impaneled for the trial, Samuel Woodruff was called, and testified on his voir dire that if, upon the trial of the cause, he should find the evidence equally balanced, he would render a verdict in favor of the respondent, because, if there was any doubt in his mind, he should think the respondent would be entitled to the benefit of it. He also stated substantially that he would naturally give the respondent the benefit of the doubt. He was asked:

Would you naturally be inclined to do this?
“A. Yes, sir.
“ Q. Independent of any rule of law?
•“A. Yes, independent.”

The people thereupon challenged, the juror for cause, ¡and he was dismissed from the panel. Respondent insists (1) that no cause was shown which authorized his dismissal from the panel; (2) that respondent’s rights were prejudiced by the action of the court.

If it be conceded that the ground of challenge was not ■sustained, yet it is evident that the respondent was prejudiced in no substantial right, inasmuch as it does not appear that the regular panel of jurors was exhausted, or that the people had exhausted their peremptory challenges, •and no objection was made to the competency or impartiality of the jury which was obtained. Atlas Mining Co. v. Johnston, 23 Mich. 39; Luebe v. Thorpe, 94 Id. 268.

The theory of the prosecution was that on the 17th day of February, 1892, the respondent went to the house of the complainant, Mr. Peck, and there, in the absence of the husband, went into a sleeping room with Mrs. Peck, and they went to bed together, staying in bed from 9 o’clock in the morning until about noon. To prove this, the prosecution called Mr. Emmer K. Eastman, who was stopping at the house of Mr. Peck, who testified substantially that on the date in question he went over to a grocery store, about a mile and a half away, and on returning he found no one in the house below; that he went up ¡stairs, and heard a rustling of bed clothes; that he entered the bedroom, the door of which was open, and he saw two forms in bed, covered up, the pillows in their proper place, •and the bedclothes all nicely tucked in on both sides of the bed; that there were no signs of any one’s being there, ■except the two forms in the bed, all covered up, and, if respondent was there, he was in bed, all covered up, — hat, boots, and all; that he went down stairs, took a newspaper, and sat down a short distance from the stair door, and stayed there until afternoon; that Mrs. Peck camel down stairs, and requested witness to go down cellar and! get some pork; that, when he went down the cellar stairs, he heard two persons coming down the stairs above; that, he hastened back np the cellar stairs, looked out of the cellar door, .and saw Mrs. Peck and respondent coming out of the stairway.

On opening the case to the jury, the prosecuting attorney stated that the people would show that in the-winter prior to the alleged act Mr. Peck had found .the respondent concealed behind the door of his wife's sleeping room. No evidence was given on the trial to support-this statement, and it is claimed that the statement was so prejudicial to the rights of the respondent that a new trial should be granted. If this were the only error in the record, we might hesitate to reverse the case on that ground. ' If this statement was made in good faith by the prosecuting officer, and on the trial he found that the-proofs did not substantiate the statement, we do not think that, for that reason alone, the conviction should be reversed. The prosecuting attorney may not always find that the proofs will meet the case he expects to make when he-makes his opening statement to the jury, and it is not every failure of proof, under such circumstances, that warrants a reversal. In this case the fact was not proved, and the jury must be presumed to have based their verdict upon the evidence, and not upon the statement of counsel. But, as the case must be reversed upon other grounds, we-presume that on another trial there will be no complaint of like character, as the prosecuting officer's duty is to explain to the jury the nature and elements of the-issue that they are to try, and not to make statements-that will not be supported by the evidence. The prosecution claims that when the statement was made it was expected that proofs would be allowed to support the statement, and the husband of Mrs. Peck was called to prove-the fact, but his testimony was excluded by the court-It is contended by the people that the court was in error in excluding this testimony. The testimony was properly excluded. Hanselman v. Dovel, 102 Mich. 505, and cases there cited.

Testimony was admitted of certain conversations with Mrs. Peck in the absence of the respondent. This was error. As to respondent, it was clearly hearsay. People v. Montague, 71 Mich. 457; Dalton v. Dregge, 99 Id. 250; Com. v. Thompson, 99 Mass. 444.

Mattie Doolittle was called as a witness by the prosecution, and testified that she was teaching school only a few rods from .the respondent’s house, and that she had seen respondent go to and from the Peck house several times a ■day during that winter. On cross-examination, respondent’s counsel asked: “How did it happen that your eyes were on Fred Fowler, instead of your school?” to which she replied: “ The scholars a great many times had twitted Julia Peck [the daughter of Mrs. Peck] of Fred Fowler’s going there.” On redirect examination the prosecutor asked: . “ State what the fact was as to how she [Julia Peck] came to you; what her appearance was, and what she said about this.” Under objection, the witness answered: “She was crying, and complained that the scholars were telling her that Fred Fowler was Zerilla’s [a brother of Julia] father, and that Kodney Fowler was her father.” This testimony was subsequently stricken out, but the error was in admitting it. It had a tendency injuriously and seriously to affect the rights of the respondent. It had no place in the case, and it cannot be said, under the circumstances, that the error was cured in striking it out. People v. Pinkerton, 79 Mich. 110.

Testimony was admitted tending to show a similar offense on May 6, 1892. This was some three months after the offense charged in the information. The court was in error in admitting this testimony. Acts of intimacy in this class of cases prior to the offense charged may be shown, but it is wholly incompetent to show subsequent acts for any purpose. People v. Clark, 33 Mich. 112; People v. Etter, 81 Id. 571; People v. Hubbard, 92 Id. 326.

In the closing argument to the jury the prosecuting attorney referred to the fact that Mrs. Peck had not been sworn in the case. This wa,s objected to, and the prosecuting attorney said:

“Well, let Brother Lyon comment upon Mrs. Peck.' When he wants to talk, it is all right for her to be in the-case.”

This language was entirely uncalled for. The prosecutor had no right thus to attempt to prejudice the respondent, and the trial court should not have permitted these remarks, and, if made, should have directed the-jury that they could not weigh that fact against the. respondent. People v. Hendrickson, 53 Mich. 525.

The principal errors complained of have been discussed.. We need not refer to the others, of minor importance, as upon a retrial they will undoubtedly be corrected.

The conviction must be reversed, and a new trial ordered.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.


text:
    The People v. Ellis Aldrich.

      Intoxicating liquors — Illegal sales — Information—Sufficiency.
    1. In a prosecution for a violation of the liquor law, the information charged that, on a certain day and at a specified township, the respondent was unlawfully engaged in the business-of selling and offering for sale intoxicating liquors at retail as-a beverage, and did then and there sell two drinks of whisky to certain persons, naming them, without having first paid in full the tax required by Act No. 313, Laws of 1887, and without having the receipt and notice for such tax posted up in the place where such liquors were kept for sale, as required by said act, the said respondent not being then and there a druggist, and said liquor not being then and there sold for chemical, scientific, mechanical, medicinal, or sacramental purposes.. And it is held:
    a — That the information is not bad for duplicity; that only one offense is alleged, and that is for unlawfully engaging in the business of selling and offering for sale at retail intoxicating liquors as a beverage, without having first paid the tax, and without having the receipt and notice posted, as required, by law.
    5 — That the jury were not called upon to try the question of sales to the persons named in the information, it not being-averred that such sales were unlawful, except as made so by. reason of the non-payment of the tax, and' failure to post the receipt and notice, as required by law; and that the allegation as to specific sales should be treated as surplusage.
    c — That the information sufficiently charges that the receipt and notice were not posted where the liquors were kept for. sale.
    d — That it was not necessary to describe the building int which the business was being carried on.
    e — That the information sufficiently negatives the fact that the liquors were sold by the respondent as a druggist “ in strict compliance with law.”
    / — That there is no force in the contention that the information fails to state whether the respondent was engaged in a business requiring the payment of the $500 or $300 tax provided for in the act, and that it does not state which tax respondent failed to pay.

      Exceptions before judgment from Allegan. (Padgham, J.)
    Argued March 1, 1895.
    Decided March 19, 1895.
    Respondent was convicted of unlawfully engaging in the liquor business.
    Conviction affirmed, and circuit court advised to proceed to judgment.
    The facts are stated in the •opinion.

      .Ed, J. Anderson (II. Id. Pope, of counsel), for respondent.

      Fred A. Maynard, Attorney General, F. E. Fish, Prosecuting Attorney, for the people. o
   Long, J.

Respondent was convicted for the violation of the law regulating the sale of intoxicating liquors, being Act No. 813, Laws of 1887. The complaint states that—

“On the 6th day of January, A..D. 1894, at the township of Wayland, and in the county aforesaid [Allegan], Ellis Aldrich, late of said township of Wayland, in said •county, was then and there a person whose business consisted of the sale of intoxicating liquors at retail, and was then and there engaged in, and did then and there unlawfully engage in, the business of selling and offering for sale intoxicating liquors at retail as a beverage, and did ; then and there sell, to wit, two drinks of liquor, to wit, whisky, to Lynn E. White and Roy B. Summers and divers other persons, the same not being proprietary patent medicines, and without having first paid in full the tax required by Act No. 313 of the Public Acts of 1887, and without having the receipt and notice for such tax posted up in the place where such liquors were kept for sale, as required by said act; he, the said Ellis Aldrich, not being •then and' there a druggist, and said liquor not being then and there sold for chemical, scientific, mechanical, medicinal, or sacramental purposes, contrary to the form of the statute,” etc.

The warrant follows the same form. On the examination a motion was made to quash the complaint and warrant and to discharge the respondent for the following reasons:

1. That the complaint and warrant contain three distinct offenses in one and the same count, to wit: One for not having paid the tax as therein described, as required by section 1 of the act; one for not having posted the notice required by section 6; and one for not having posted the receipt as required by the same section; and that, therefore, the count is bad for duplicity.

2. That the. complaint and warrant should describe the building where said liquors were sold.

3. That they do not state that the receipt and notice were not posted in the place or room where the liquor was sold.

4. That the complaint and warrant do not negative the fact that said liquors were sold by respondent as a druggist “in strict compliance with law.”

5. That they do not state whether respondent was engaged in the business requiring the payment of the $300 tax or the $500 tax, under section 1 of said act, there being two distinct retail businesses under that section; and they do not state which of those taxes he failed to pay.

6. That the allegation that the notice and receipt were not posted “as required by law” is insufficient, as the complaint and warrant should set up the facts.

This motion was denied, and the respondent held for trial in the circuit. The information follows the form of the complaint and warrant. The respondent refused to plead to the information, and a motion was made to quash the information, and discharge the respondent, on the ground that the justice acquired no jurisdiction over him, for the reasons set forth. This was denied, and the cause proceeded to trial, and the respondent was convicted. The errors assigned relate to the questions raised on the motion to quash.

Act No. 313, Laws of 1887, provides by section 1 that a tax of $500 shall be paid upon the business of selling at retail spirituous and malt liquors; upon the business of selling only brewed or malt liquors, $300. Section 4 provides for the payment of the tax to the county treasurer before commencing such business. Section '6 provides for the giving of a receipt by the county treasurer for the money so paid, and specifies its form. It also provides for the giving by the county treasurer of a printed notice containing a statement that the tax has been paid, and that such notice and receipt shall be posted in a conspicuous place in the room or place where the business is carried on. It is provided by section 7 that—

“ If any person or persons shall engage or be engaged in any business requiring the payment of a tax under section 1 of this act without having paid in full the tax required, by this act, and without having the receipt and notice for such tax posted up as required by this act, or without having made, executed, and delivered the bond required by this act, or shall in any manner violate any of the provisions of this act, such person or persons shall he deemed guilty of a misdemeanor, and upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine/’’ etc.

The complaint, warrant, and information are not bad for duplicity. Only one offense is alleged, and that is for unlawfully engaging in the business of selling and offering for sale at retail intoxicating liquors as a beverage, without having first paid the tax, and without having the receipt and notice posted up, as required by Act No. 313, Laws of 1887. This question is settled in Luton v. Circuit Judge, 69 Mich. 610. It could not be understood by the jury that they were called upon to try the question of sales to the persons mentioned in the pleadings, as there is no allegation that the sales to such persons were unlawful, except as made so by not having paid the tax, posted the notice, etc. The complaint could not be sustained for a specific unlawful sale upon any other theory than that the tax was not paid.

In People v. Keefer, 97 Mich. 15, the information charged in the same count a sale of liquor to a specified person, and the keeping of a saloon where intoxicating liquors were sold and furnished as a beverage, in violation of the provisions of the local option lam That count charged that, respondent—

“Did then and there run a saloon and bar, and at said saloon and bar did then and there sell and furnish to Frank S. Fellhauer and divers other persons spirituous and intoxicating liquors, * * * and did then and there knowingly keep a saloon, where * * * intoxicating liquors- * * * were sold and furnished as a beverage.”

It was held bad for duplicity. It was said:

“ While it is true that, as a general rule, where several' cognate acts are forbidden in one section of a statute disjunctively, the indictment may ordinarily charge them conjunctively in one count, if the reference is to one transaction, for which a single penalty is incurred, it is also true that where each forbidden act may be set up as a distinct-offense, but several are united, the count is good in such case as for one combined act;” citing State v. Schweiter, 27 Kan. 499.

Here the unlawful act charged was engaging in the business and selling liquors to these persons without having paid the tax, etc. What is alleged as to specific sales to-them would be treated as surplusage. It is the general doctrine that, if an indictment contains unnecessary averments, these are to be treated as mere waste material, to-pass unnoticed, having no legal effect whatever. 1 Bish. Cr. Proc. § 478. If the indictment is founded on a statute,, and contains allegations covering all the terms of the statute and making a complete offense, and then adds something by way of making the offense appear more enormous, this, latter matter may be disregarded as mere surplusage. It. will have no effect to vitiate the indictment, and it need not be proved. State v. Staples, 45 Me. 320; Hodgman v. People, 4 Denio, 235.

It was not necessary to describe the building in the pleadings. People v. Ringsted, 90 Mich. 371.

The pleadings do state that the receipt and notice were not posted where the liquors were kept for sale.

The contention that the complaint and warrant do not negative the fact that said liquors were” sold by respondent as a druggist “in strict compliance with law,” and therefore must be held not to state an offense, cannot be sustained. The statement is broad enough to show that he was not selling lawfully as a druggist. The allegation is as broad as in Luton v. Circuit Judge, supra, — a charge identical with the present. That case was reaffirmed in People v. Scott, 90 Mich. 376.

The point that there is no allegation as to which tax was not paid has no - force. That question was settled in Luton v. Circuit Judge, supra.

The verdict must be sustained, and the court is advised , to proceed to judgment on the verdict.

The other Justices concurred.


text:
    The People v. Arthur Duncan.

      Rape — Evidence.
    1. Respondent was informed against for rape committed upon a girl under the age of 14 years. The girl was permitted to testify to a conversation, had five months after the commission of the offense, with a woman with whom the girl was .then living, in which she charged the respondent as the guilty party. • And it is held that the case does not fall within the exception recognized in People v. Hicks, 98 Mich. 89, it not appearing that the girl’s silence was' induced by the threats of the respondent, and that the testimony was inadmissible.
    3. A witness for the prosecution, after .testifying that about a year before the commission of the offense, while the girl was at her house, she'noticed respondent taking hold of her arm 4 and pulling her around, added that her husband spoke of it at the time. In his closing argument the prosecuting attorney referred to the testimony as showing that respondent made improper overtures to the girl, and used it as a basis of a claim that the parties were guilty of undue intimacy. And it is held that the motion of the respondent to strike out the testimony should have been granted, and that the testimony was made harmful in the extreme to the respondent by the argument of the prosecuting attorney.
    S. The girl testified that she had never had intercourse with any man before; that it did not hurt her at all; that no blood followed, and that she was not lame or sore the next day. The respondent sought to show by a physician, in contradiction of said testimony, that the natural result of such intercourse would be a flow of blood, and soreness and lameness. And it is held that the court erred in excluding the testimony.
    4. After the court had charged the jury, a juror stated that he understood the court to say, on excluding the testimony of the physician, that whether or not there was blood or soreness made no difference in regard to the case. The court replied that it was a question for the jury, under all of the circumstances; that the court could not enlighten the juror about it; that there was no evidence on the subject, except that of the girl. The juror replied that he thought he heard the court give'his decision in regard to the matter. The court replied that he did not recollect saying anything- in particular about the question; that the evidence was offered, and referred to-something about blood and soreness, but there was no evidence introduced on the subject, except that of the girl. In answer to an inquiry by respondent’s counsel whether the court meant that the jury were obliged to accept a statement that was unreasonable, although sworn to, the court stated that the jury had a right, under all of the circumstances of the-case, to render their verdict; that they must put their own construction upon the whole evidence. And it is held that the juror was left to understand that it was immaterial whether or not the fact sought to be shown could be proved, as it would, if shown to exist, have no weight in the case; that he returned to the jury room with the view that, inasmuch as the girl had sworn to the intercourse, that ended the question; and that the oourt was in error in this treatment of the question.
    5. The girl was permitted to testify that the child born to her as-the fruit of the intercourse had been taken away from her. And it is held that what became of the child, unless the respondent was in some manner connected with taking it away, which was not claimed, was of no importance, and the testimony should have been excluded.

      Exceptions before judgment from Allegan. (Padgham, J.)
    Argued March 1, 1895.
    Decided March 19, 1895.
    Respondent was convicted of the crime of rape.
    Conviction reversed, and new trial granted.
    The facts are •stated in the opinion.

      Charles B. Wilkes and Hannibal Hart, for respondent.

      Fred A. Maynard, Attorney General, and F. H. Fish, Prosecuting Attorney, for the people.
   Long, J.

Respondent was convicted of rape upon one Phoebe W. Caruthers, a female child under the age of 14 years. The evidence of the girl tended to show that in March, 1893, the respondent came after her to go to his father’s to work; that she went there, and worked until some time in November following; that at that time the family consisted of respondent’s father and mother, his wife, and three children, and, part of the time, the hired man, one Burns Coats; that she became acquainted with respondent at the home of Mr. Blossom, a few months before she went to work for Mr. Duncan; that in August, 1893, respondent’s wife took her youngest child, and went away on a visit, and did not return until after the alleged ■offense had been committed; that the family occupied the upper part of the house for sleeping; that the girl’s room was so situated that she was compelled to pass through the room occupied by respondent; and she testifies that about August 20, in the morning, in passing through his room, he threw her upon the' bed, and. there had intercourse with her: that in November she left there, and went to .live with a Mrs. Dan. A child was born to her on June 20, 1894, -at Mrs. Dan’s house. The respondent denies that he ever had intercourse with her. The people introduced evidence tending to show acts of intimacy between the parties prior to that time. The extent of these acts is that respondent “fooled around her,” as some of the witnesses state, and others, that he was seen to take her by the arms. All these acts were apparently innocent in themselves, so that the whole case hinged upon the testimony of the girl alone. She was contradicted by the mother of respondent in many particulars about the time when she arose that morning, and as to the whereabouts •of the respondent at that time.

To sustain the girl’s statement, the people were permitted to show what she stated to Mrs. Dan along in January following the time of the alleged offense, as well as what Mrs. Dan said to her. The girl testified, as to the reason she had not made the communication before, that the respondent said to her at the time of the intercourse:

“It would be worse for me than for him if I did tell, •and I better keep still, and because I was afraid of him.”

This was the sole ground upon which the girl was permitted to state what was said between herself and Mrs. D.an. She stated:

“Mrs. Dan said I had either got a bad cold, or something else was the matter, and she asked if anybody had ■ever been fooling around me, and I told her nobody, only Arthur Duncan; and she said, ‘You must not lay it to him if it is not him;’ and she said, ‘Just tell, who it is; ’ •and I said it .was nobody but him.”

It appears that, at the time the girl was at respondent’s father’s, a son of Mrs. Dan, by the name of Burns Coats, .also worked there, and slept upstairs. Coats had on several occasions gone home with her from Mrs. Dan’s house.

It is contended by counsel for respondent that this testimony as to conversations between the girl and Mrs. Dan was incompetent and prejudicial to respondent, because—

1. There was no evidence showing that complainant had any reason to refrain from telling because of any threats respondent had made.

2. The girl was more than 14 years old at the time she made the statement to Mrs. Dan.

The rule is stated by Prof. Greenleaf as follows:

“Though the prosecutrix may be asked whether she made complaint of the injury, and when and to whom, and the person to whom she complained is usually called to prove -that fact, yet the particular facts which she stated are not admissible in evidence, except when elicited in cross-examination, or by way of confirming her testimony after it has been impeached. On the direct examination, the practice has been merely to ask whether she made complaint that sucli an outrage had been perpetrated upon her, and to receive only a simple yes or no. Indeed, the complaint constitutes no part of the res gestae; it is. only a fact corroborative of the testimony of the complainant, and where she is not a witness in the ease it is wholly .inadmissible.” 3 Greenl. Ev. § 213.

In People v. Gage, 62 Mich. 271, and People v. Glover, 71 Id. 303, testimony of a third party was admitted, not. as a part of the res gestae, but in each ease it was placed upon the ground that the girl was of tender age (10 or 11 years old), and it appeared that from fear each had been prevented from telling sooner. In People v. Hicks, 98 Mich. 89, in speaking of the rule and what had been held, in other cases, it was said:

“But exceptional cases have arisen, when rape was-charged, where third parties have been allowed to detail conversations with the prosecutrix. In People v. Gage, 62. Mich. 271, this was allowed. It was not permitted upon the ground that the complaint of the prosecutrix was apart of the res gestae, but as corroborative of her testimony, and for the reason that the party outraged was of tender years, and that her silence for a length of time was-the direct consequence of fears of chastisement, induced by threats of the perpetrator of the wrong. This case goes to the extreme of the rule, and borders closely upon dangerous ground.”

In the present case it is clear that no such threats were-made, and the girl was nearly 14 years of age when the crime is alleged to have been committed. Mrs. Dan certainly would not have been a competent witness to detailwbat was said between tbe prosecutrix and herself, and tosíate what the prosecutrix said at that time, five or six months afterwards, nor to state that the prosecutrix claimed that the respondent was the one who got her into the trouble. The testimony of the prosecutrix detailing conversations with Mrs. Dan, if admissible at all, was admissible as corroborative of the fact of the intercourse in August preceding. It could not be received for that or any other purpose. Whatever the girl said to others and what third parties said to her would in no sense tend to corroborate her statement of the offense having been committed, and especially as to the person who committed it. Such testimony, admitted by the court, would naturally be received by the jury as corroborative of the main fact in the case.

The prosecution called Mrs. Blossom as a witness. She testified that, while the girl was at her house, the respondent worked there several days; that this was before she went to live at respondent’s father’s; that, while there, she noticed the respondent taking hold of the girl’s arm, and pulling her around, and she added: “I know my husband remarked about it at the time.” Counsel moved to strike this out, and the motion was denied. The prosecuting attorney, in his final argument to the jury, remarked upon this testimony by saying:

While she is at Blossom’s, he makes improper overtures towards her, and takes hold of her so that it attracts the attention of Mr. and Mrs. Blossom, and Mrs. Blossom speaks of the matter to. her husband. There is the commencement, the conception, of the crime which we claim has been committed in this case.”

The answer of Mrs. Blossom should have been stricken out as requested. The acts of the respondent there seem to have been tortured by the prosecution into improper overtures, while, in fact, his conduct bears no such construction, and what the husband of Mrs. Blossom said about it was hearsay, and had no place in the case. But, being in, the prosecution took advantage of it in the argument as the basis of some undue intimacy. It was thus made harmful in the extreme to the respondent.

The girl testified that she had never had intercourse with any man before, and that it did not hurt her at all, and that no blood followed the intercourse, and that she was not lame or sore the next day. The defense sought to show by Dr. Mitchell that the natural result from the intercourse with a young girl of that age would be pain, soreness, and blood following it. This was excluded. When the question was asked, the court said: “What has that got to do with this case?” Counsel replied:' “It directly contradicts the girl as to what the effect was upon herself at this time.” After the charge was given, one of the jurors asked:

“ May I ask a question in regard to this case before we go out?
The Court: Anything you don’t understand?
“Juror: Well, it was something that was argued here yesterday that I heard you talk. I thought maybe I misunderstood' you, when you were talking about no blood and no soreness. I understood you to tell them that would not make any difference in regard to this case.
The Court: Well, of course, that is a question for you, under all the circumstances. I cannot enlighten you about it. There is no evidence in this case, as I understand it, except that of the girl about blood or soreness. I do not understand that there is any only hers. There is no other evidence.
“Juror: I thought I heard you give your decision yesterday.
The Court: What is that?
Juror: T understood you yesterday to give a decision in regard to that.
The Court: Well, I don’t recollect now that I said anything particular about that. That evidence was offered here, and refers to something about that, but there was no •other evidence introduced; that is all.
Counsel: Your honor does not mean .that they are obliged to accept a statement that is unreasonable, although ■■sworn to?
The Court: The jury have a right, under all the circumstances of the case, to render their verdict. They must put their own construction on the evidence, and the whole ■of it; there cannot anybody else for them.”

The defense had the right to contradict the girl upon ■every material point by any competent evidence. She had testified to penetration by the respondent, and, as the result, the birth of a child some 10 months after the act of intercourse. She had testified that no one had ever had intercourse with her before that time, and that no blood followed, and that she was not lame or sore. If it be a fact that the natural result of such first intercourse with a girl of her age would be a flow of blood and soreness and lameness, the respondent had the right to show it; and the testimony was offered for the purpose of showing the fact. It was competent for that purpose. But the juror understood that that fact in the case would make no difference; that it was immaterial whether the fact ■could be proved or not, as it would have no weight if the fact existed; and he appeared to be puzzled as to just what the court meant. The court did not enlighten him, ■and he returned to the jury room apparently with the view that, inasmuch as the girl had sworn to the intercourse, that ended the question. When the court’s attention was called to the situation by counsel’s asking if the jury were obliged to accept a statement that was unreasonable, although sworn to, the court responded: “They have the right, under all the circumstances, to render their verdict.” The court was in error in this treatment of the question.

• The girl was asked on the trial what had become of the ■child, and was permitted to answer that it had been taken away from her. No claim was made that the respondent was instrumental in taking it away. What had become of the child was of no importance, unless the respondent was in some manner connected with it, and the testimony should not have been permitted.

For the errors pointed out, the verdict must be set aside, and a new trial granted.

McGrath, C. J., Montgomery and Hooker, JJ., concurred. Grant, J., did not sit.