text:
    PEOPLE v. KENNEDY.
    1. Criminal Law — Statutes—Obscene Exhibitions — Constitutional Law.
    Act No. 103, Pub. Acts 1903, which prohibits indecent or obscene exhibitions in museums or elsewhere, or the exhibition of deformed human beings, diseased or deformed human bodies, or parts or representations thereof, except for purely medical or for scientific purposes, is valid, and the second section of the act, relating to the exhibition of diseased parts of bodies, or representations of the same, which are indecent, is within the title of the act.

      2. Same — Exception to Statute.
    It was proper to deny a motion of respondents’ attorneys to direct a verdict in their favor on the ground that the person who viewed the exhibition was not shown not to be a person who might lawfully view the exhibit within the exception of the statute which permitted exhibitions to medical students or practitioners; the evidence tending to show that the witness was a carpenter, employed in an automobile factory.
    3. Same.
    Defendants, who did not offer any requests to charge the jury as to the meaning of the words used in the act, “exhibition,” “expose,” or “exhibit,” were not prejudiced by failure to charge as to the same, or by instructions to the jury that it was for the jury to say whether the exhibition was indecent, whether the respondents exhibited the objects in evidence for scientific purposes or before members of the medical profession, or of medical classes, and whether they were exposed or exhibited under the terms of the statute.
    4. ¡Same — Statutes.
    The terms were used in the law in their usual or ordinary sense.
    5. Same — Evidence.
    A conversation held with one of the respondents after the witness had seen the display, tending to show his knowledge that the witness saw the exhibition, was not immaterial or prejudicial.
    6. Same.
    Correspondence received by the accused relating to a proposed sale of the exhibit was properly excluded from the evidence as having no tendency to show that it was, in. good faith, displayed for sale only.
    Error to the recorder’s court of the city of Detroit; Connolly, J.
    Submitted April 17, 1913.
    (Docket No. 131.)
    Decided May 29, 1913.
    •James D. Kennedy and Charles J. Kennedy were convicted of making an indecent and unlawful exhibition of representations of parts of the human body.
    Affirmed.

      Hugh Shepherd, Prosecuting Attorney, and Harry Keidan, Assistant Prosecuting Attorney, for the people.

      Bumps & Bishop, for respondents.
   McAlvay, J.

Respondents were prosecuted under Act No. 103 of the Public Acts of 1903, entitled “An act to prohibit, discourage and punish the exhibition of deformed human beings, diseased or deformed human bodies," or parts thereof, or the representations of the same, for any other than purely medical purposes,” which reads as follows:

“The people of the State of Michigan enact:
“Section 1. It shall be unlawful for any physician or other person, to expose or keep on exhibition any deformed human being or human monstrosity, except as used for scientific purposes before members of the medical profession or medical classes.
“Sec. 2. It shall be unlawful for any person or persons to so expose or exhibit in museums or elsewhere diseased or deformed human bodies, or parts thereof, or representations of the same, which would be indecent in the case of a living person, except as used for scientific purposes before members of the medical profession or medical classes.”

Section 3 provides the- punishment for a violation of any of the provisions of this act.'

Respondents were arrested, tried, and convicted in the police court for the city of Detroit upon a complaint charging an offense under section 2 of the foregoing act. They appealed to the recorder’s court of said city, where a trial before said court resulted in a verdict of guilty, upon which a judgment was duly entered. The case is before this court upon a writ of error.

It appears from the record in this case that the respondents are engaged in the practice of medicine in the city of Detroit and occupy the three upper floors of the building located at Lafayette boulevard and Michigan avenue; that at the entrance to their offices is a sign reading, “Doctors K. & K. Museum,” upon which there is a representation of a hand over the word “Museum.” There is no dispute in the case but that on the upper or fourth floor of this building, contained in cases, were representations, in wax or other substance, of portions of human bodies of both sexes described within the prohibition of this act, and that the exhibits seized by the officers and produced in .court were taken from such collection; also that the complaining witness, upon application, went up in company with respondents’ office boy, who under the direction of respondents, occasionally took people up to the fourth floor, opened the door for them, and turned on the light. Those taken up by him were always adults and only one at a time.

Respondents contended that for years this collection had been stored in the attic of another building not accessible to anybody; that, after they occupied their present location, they moved it from the attic, had the different pieces painted and mounted, and placed them on this top floor “so that they could be seen favorably, in case we wanted to sell them;” that they tried at different times to make a sale; that they were not exhibited to the public. One of them testified:

“We do not exhibit this stuff to the public. Once in a while if a person calls, we send them up. Sometimes I have sent them up; sometimes I refuse people; and sometimes my brother would send them up there. They are classified and hung up along the walls in cases, and I guess there was an electric light there anyway, and if it was necessary the boy would turn on that light.”

The complaining witness was a young man 27 years old, and was a carpenter working at this time for the Packard Automobile Company of Detroit, where he had been employed continuously since he came to Detroit.

At the close of the case respondents móved for a directed verdict for several reasons, among others that the evidence did not show the fact that the complaining witness was not a member of the medical profession or a medical class; that it did not show that there was an exhibition within the meaning of the statute; that section 2, under which respondents were prosecuted, was not within the provisions of the title of the act and therefore unconstitutional. This motion was denied by the court, and an exception was taken by respondents.

The errors assigned and relied upon by respondents are:

First, those raised upon the.refusal of the court to direct a verdict of “not guilty.”

(a) That section 2 of this act, under which the respondents were prosecuted, is unconstitutional because not within the scope of the title of such act, and because the offense charged in section 2 is not embodied in the enacting clause. As appears from the entitling of this act, already given, it is a police regulation clearly within the power of the legislature, and was enacted to prohibit, discourage, and punish the exhibitions theréin described. That the prosecution is under the provisions of section 2 is admitted, and also that the representations óf human bodies or the parts thereof which were taken from this collection are within the prohibition of the statute. The objection is without merit for the reason that the' exhibition of the representations of the parts of the human body prohibited by section 2 of the statute charged and described in the complaint is clearly within the terms of the entitling of the act.

(b) That the exhibition proved was not shown to have been made to a person not within the exception of section 2, and was not an exhibition within the meaning of this act. The exhibition prohibited by section 2 is the exposure or exhibition in museums or elsewhere of “diseased or deformed human bodies or parts thereof, or representations of the same which would be indecent in the case of a living person.” The exhibition prohibited by this section of the statute might be either public or private and includes an exposure to a single individual.

In-this case the pleader in complaint and warrant negatived the exception contained in section 2, and there was evidence in the case, on the part of the people, tending to show that these objects were exhibited to a person who was not a member of the medical profession or medical class, and that the exhibit was not used for scientific purposes. It will therefore not be necessary to discuss the proposition that proving the exception contained in section 2 of the act would be a matter of defense. There was no error on the part of the court in denying this motion.

Another error assigned is as follows:

“The court erred in its charge to the jury because it failed to define and explain the words, "exhibition/ ‘expose/ and ‘exhibit/ as-used in the statute under which the complaint and warrant were drawn and the violation thereof alleged.”

The record does not show that the court’s attention was called to this matter, and no request was presented asking the court to so charge. The criticism of the charge is not as to what the court charged, because there is no error assigned upon any portion of it. It is claimed that the attention of the court was called to this in the motion for a directed verdict. We have given an abstract of the reasons relied upon in making this motion, and they are not specific in this regard. The construction of this portion of the statute is one of first intention before this court, and it will be proper to say that respondents’ contention is that the legislative intent in this statute was to prohibit the exhibition in public of the prohibited subjects, with or without charge, and that the words “exhibition,” “expose,” and “exhibit” should be construed in harmony with such intent, and the jury should have been so instructed. We do not think that section 2 of this act should be so construed. The prohibition of this section is:

“It shall be unlawful for any person or persons to so expose or exhibit in museums, or elsewhere, diseased or deformed human bodies, or parts thereof, or representations of the same, which would be indecent in the case of a living person, except as used for scientific purposes before members of the medical profession or medical classes.”

The legislature intended by this section to prohibit the exposure of these subjects in public or in private to any person or persons, “except as used for scientific purposes before members of the medical profession or medical classes.” In our opinion it is a statute enacted in the interest of morality and decency. The terms of the statute are not technical, and the words used should be given their ordinary and usual meaning.

The case was submitted by the trial judge under a charge which briefly, clearly, and correctly states the law in the case from which we quote a portion which covers the criticism of appellants:

' “Now, you have seen the exhibits, gentlemen of the jury, which have been produced in this case, and you are to use your common sense and say whether or not they are representations of the human body which would be indecent to be shown in the case of a living person. And it is for you further to say whether or not the defendants at the bar exposed or exhibited in a museum -or elsewhere these representations and whether or not they did so for scientific purposes before members of the medical profession or medical classes. There are three elements, as I read the statute, which go to constitute the offense: First, the exposure or exhibition of the representations; second, that they were representations which would be indecent in the case of a living person to be exposed in the manner in which they were exposed as claimed by the prosecutor in his proof ; and, thirdly, that they were not so exposed or exhibited or used for scientific purposes before members of the medical profession or medical classes. Now, if those three things have been established, gentlemen of the jury, beyond a reasonable doubt, you will convict the defendants. * * * The defendants are presumed to be innocent until competent evidence establishes their - guilt beyond a reasonable doubt.”

We find no error in this charge.

The remaining assignments of error relate to two rulings made by the trial court in ruling upon evidence.

The first relates to a conversation between the complaining witness and one of the respondents after he came down from the fourth floor where he had seen these exhibits and before he left the building. This conversation was admitted over the objection and exception of respondents. This conversation was clearly material to show the knowledge of one of the respondents that the witness had viewed the' collection, and none of it could be considered as seriously prejudicial. The record shows that these exhibits could be reached only by going through the offices of respondents upstairs to the fourth floor, and that this was the only means of ingress and egress. The court was not in error in overruling the objection.

The second relates to the refusal of the court to allow the introduction of a letter to one of the respondents claiming to be correspondence relative to the sale of this museum. This occurred while one of the respondents was being examined as a witness in his own behalf, and after he had been permitted to testify that the collection had formerly been stored for ten years and afterwards removed to the place already described; that the figures were fixed up, painted, and mounted so that they could be seen favorably in case respondents should desire to sell them; and that several times they have tried to make a sale. The letter was incompetent and immaterial and properly excluded. We find no prejudicial error in the case.

The judgment of the recorder’s court is affirmed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    PEOPLE v. AUERBACH.
    1. Criminal Law — Homicide—Evidence.
    While the court, on. a trial for murder, did not err in re- * ceiving proof that the accused had inquired of the sheriff whether the proceedings taken after death of the decedent would answer in place of a death certificate, immediately following a conversation with the wife of deceased, saying he understood there was heavy life insurance, evidence relating to the insurance and terms and amount thereof should have been struck out on respondent’s motion based on the ground that no evidence had been presented showing that respondent knew before the killing of the insurance, which was payable to the wife of de-' cedent.
    2. Homicide — Conspiracy—Trial—Charge.
    Where the prosecution claimed that the respondent and the wife of decedent conspired together to murder deceased for his insurance, and the evidence had no tendency to support the theory or that respondent, who claimed that the killing was accidental, knew of the life insurance, the subject should have been .withdrawn from the jury, failure to do so constituting prejudicial error.

      3. Same — Murder—Preliminary Examination.
    Evidence that respondent and decedent were out hunting, when the latter was killed by a shot from behind, that respondent made some effort to keep matters secret, claiming that he set his gun against a stump and it fell off, was discharged and killed his companion, that the sheriff and others experimented with the same gun in the manner described by the prisoner and the experiments tended to contradict the claim of respondent, and that the parties had previously been very friendly, the wife of decedent and the prisoner especially so, and respondent had conducted himself peculiarly and had displayed a purpose to keep the matter secret after the shooting, warranted the examining magistrate in holding the accused for trial.
    4. Criminal Law — Prosecuting Attorney — Appointment oe Special Prosecutor — Homicide—Trial.
    Under 1 Comp. Laws, § 2563 (1 How. Stat. [2d Ed.] § 1160), the appointment of a special prosecutor by the trial court because he considered the prosecuting attorney disqualified, who acquiesced in the action of the judge and withdrew, was justified and it will be presumed that a sufficient inquiry was made to sustain the order.
    5. Same — Experiments.
    It is within the discretion of the trial court to permit or refuse to permit experiments to be made in the presence of the jury.
    6. Same.
    And in ruling out evidence of experiments made by a witness with a shotgun which was of different construction and size than the rifle of respondent, that discharged the fatal shot, the discretion of the court was properly exercised.
    7. Same — Trial—View—Right to Attend — Waiver.
    A respondent may waive his right to attend a view of the premises in a criminal proceeding if he is at liberty and not prohibited by the court from attending, but the jury should not receive any evidence in his absence.
    8. Appeal and Error — Argument—Conduct oe Prosecutor— Saving Questions for Review.
    In order to review improper argument of the prosecuting attorney it is essential to secure a ruling of the trial court.
    9. Criminal Law — Charge—Trial.
    The court should not have charged the jury as to the course of the bullet into the body of decedent that it passed through horizontally, when the evidence in behalf of the accused tended to show the contrary.
    10. Same.
    And it was error to instruct the jury that the prosecution claimed the motive of the crime was respondent’s infatuation with the wife of deceased, and their mutual understanding to murder him in order to realize on the life insurance, since the evidence supporting that contention should have been withdrawn from the consideration of the jury.
    11. Appeal and Error — Criminal Law.
    The court, on error, will not review the refusal to give requested instructions, the subject of which is covered by the general charge, or objections to the introduction of evidence admitted without exception and properly raised for the first time on motion for a new trial.
    Error to Lake; Withey, J.
    Submitted April 18, 1913.
    (Docket No. 133.)
    Decided May 29, 1913.
    Oscar M. Auerbach was convicted of murder in the first degree.
    Reversed.

      B. N. Savidge, for the people.

      Thomas Smurthwaite (James O. Murfin and Pierce Butler, of counsel), for respondent.
   Stone, J.

The information filed by the prosecuting attorney charges the respondent with having on the 19th day of September, 1912, at the township of Pleasant Plains, in the county of Lake, killed and murdered one Harry W. Fisher. Upon the trial of the case, which occurred in the month of December, 1912, the respondent was convicted of the crime of murder in the first degree, and sentenced for life to the State prison at Jackson. The case is here on writ of error, and exceptions after sentence.

The deceased was living on a somewhat new farm which had been purchased by him some seven miles southwest of Baldwin, which he was improving, and was engaged in clearing, stumping, and ditching the land. He had formerly resided with his family in the city of Chicago and last came to this place in the spring of 1912. In the month of July he had been joined by his wife and two children, a boy nine or ten years old and a girl five, and they continued to live with him on the farm to the time of his death. The respondent was a member of this family and had been with the deceased since the spring of 1912. These parties lived together on this farm on terms of apparent friendship, and there was nothing on the surface to indicate anything except cordial good will between them all. They were all persons of intelligence and good education; the record showing that respondent is a civil engineer, and had been engaged in railroad construction work in Chicago. Respondent while working for deceased had charge of a steam grubber or stump machine used on the place.

The deceased met his death on the morning of September 19th before breakfast, and the only direct evidence of the circumstances attending his death was the testimony of respondent taken upon the coroner’s inquest held at the house on the day aforesaid. On that occasion respondent testified: That he and deceased went hunting partridges that morning with a rifle, which appears to have been a 33-caliber Winchester. That some partridges flew up, and deceased did not want respondent to shoot at them because the gun was á high-power gun, and he did not want respondent to shoot on the wing for fear of hitting some one. That thereupon respondent leaned the gun against a stump carelessly, he did not just know how, and turned around to roll a cigarette, and the gun fell down, went off* and shot deceased. That when respondent turned around deceased had fallen. Respondent ran to him, turned him over, and saw that he was dead. Respondent thinks the gun was co¿ked: when he leaned it against the stump. . That deceased did not speak after he was shot, but moaned once .'or twice. Respondent thinks deceased was facing the'gun,,-and thinks he was about to sit down and light his pipe.'

The sheriff of the county gave testimony as to the further statement of respondent before the coroner’s jury, as follows: '

“After the jury was impaneled, we went into the room where the body was lying. Then he (respondent) told us, and he also showed us after we went to the ground where the gun was setting when he set it down against the stump, as he claimed. He claimed that he and Mr. Fisher went out partridge hunting the day before, and that they flushed a few birds and were unable to get any of them, and this morning they went out to try again, and as they came near the place where Fisher’s body was supposed to be found they flushed a bird or two, and one of them lit in near this place, and they followed it up, and the bird flew up, and he kind of made an effort to shoot or something of that kind, and Fisher warned him that he should not shoot because it was a high-power gun and there were people living off in that direction; that there might be some danger; so he didn’t shoot, and then one of them proposed that they take a smoke before they went in to breakfast. It was getting about breakfast time. So he turns and sets this gun down against this small stump. Well, then he turns facing the north. Fisher was south of him, and he was contemplating something of that sort, rolling a cigarette, when he heard the gun go off and looked around and Fisher was down and so was the gun. He claimed he ran to Fisher; he was lying on his face; and he turned him over on his back, and Fisher gasped a very few times and was dead. This occurred on a side hill. I will say a slope up from the north and also from the east, and where they claim this occurred was a kind of clear space with bushes comparatively clear around it, and Fisher laid to the south end of this little open space, and at the north end there were three stumps, or rather two stumps and a fragment or part of a stump; this set in a sort of a triangle, not a perfect triangle, but a little bordering on that. The fragment of stump was the stump farthest to the south; that is the stump or part of the stump which he claimed he set the gun against. Between the two stumps kind of north of • that there was kind of a small log laid in there, or pole rather, and he claimed he stood between these two stumps facing the north when the gun was discharged. I saw the distance measured from the muzzle of the gun to where Fisher’s feet were, and that was nine feet. Of course, I saw it measured another time when — well, there were other parties that had a little something to say about where the body lay, and I don’t think they were as accurate as to measuring just from the muzzle of the gun or Fisher’s feet, but they made it 12 feet. Mr. Auerbach didn’t describe where the man lay as much as Mr. Sjoden. Mr. Sjoden was the one who claimed that he moved the body and also the gun. The one measurement was taken when Mr. Auerbach was present; that measurement showed a distance of 12 feet. This was made for the coroner’s jury. I should say that the distance was half a mile from the Fisher home.”

There is much detail in the evidence of witnesses who were upon or near the premises who were notified by respondent of the death of Fisher. One witness testified he was just going to his work of ditching from Mr. Sj oden’s house, which was situate south of the Fisher home, when respondent came running to him, apparently out of breath and excited, and informed him that Mr. Fisher had been accidentally shot. They notified other parties, among whom were Mr. Sjoden, and this witness returned with respondent to the place where the body lay. The body was then lying upon the back. The witness described the location of the gun substantially as already stated, and testified that he remained there until Mr. Sjoden and others came with a team to remove the body to the house. The respondent, soon after the body was removed to the house, obtained an automobile and went to Baldwin and called upon an undertaker there, who testified that respondent came to his place and informed him of the death of Mr. Fisher about 10 o’clock a. m.; that respondent came into the store and called the witness to the back part of the store and told him that Mr. Fisher was dead, had been accidentally shot; and that he would like to have the witness go down and prepare the body for shipment; would like to get the body away on the night train. Witness testified that he asked respondent if he had had any doctor, and he said, “No,” and he was then told it would be necessary to have a coroner’s inquest before witness could do anything, and respondent asked witness what would be necessary; and, as there was no coroner in the county, witness told him that the sheriff would be the man to look after that. Whereupon respondent asked witness to see the sheriff, and the witness went and called for the sheriff over the phone, but did not get him, as he was down town. They found the sheriff, and witness asked respondent if he wanted him to go out there with the hearse and get the body that afternoon, and he told him that he would rather not, because he did not want this to be made public at all, wanted it to be kept quiet as possible. A justice was found, and the parties all went to the Fisher home; and it was found necessary for respondent to return again to Baldwin after some men to serve on the jury.

Another witness, who was engaged in the lumber and hardware business at Baldwin, testified that he saw the respondent drive into town that forenoon in an automobile. This witness testified that when he first met respondent they shook hands and there was some general talk about bills which the witness was to send in; that respondent then talked with him and asked for some figures on some stuff witness had ordered that had not yet arrived; that respondent then requested witness to get him some water to put in the automobile, which he did; and the¡ witness testified that he did not observe anything in the appearance or demeanor of the respondent at this time different from what it had been on other occasions. Respondent asked witness if he cared to ride down to the depot with him in the automobile, which the latter did; that they talked on different subjects going down to the depot. The witness then testified:

“When we got down to the depot, as I went to step out of the automobile, he spoke to me and said, ‘George, can you keep a secret?’ And I says to him, T guess I know it,’ or something to that effect; and he says ‘Do you?’ and I says ‘Yes;’ and he says, ‘Who told you?’ and I says, ‘My brother, he is a deputy sheriff, and he told of it.’ He says, ‘Is that so?’ I says, ‘Yes.’ He says, T want to send some telegrams; do you know this agent in here?’ I says, ‘Yes;’ and he says, ‘What kind of a fellow is he?’ and I says, ‘Well, Harry is a good fellow.’ Harry was the fellow’s name. He says, T wish you would go with me and help me send these telegrams and ask the agent to keep it still.’ He says, T don’t want a lot of gossip about it;’ and I says, ‘All right;’ and I asked him then where the accident occurred; and he said it was down in a swale near the Cross cottage; and I says, ‘What, was it accidental?’ and he says, ‘Yes, he only gasped once or twice;’ and I says to him, ‘Was there somebody with him?’ and he says, ‘Yes, I was with him.’ So he went in and sent the telegrams which I wrote.”

Upon the subject of life insurance the sheriff testified as follows:

“Shortly after Mr. Auerbach and I got to the Fisher home, why, he had been in the house, he came out of the house and asked me if our proceedings would answer the same as the death certificate, as he understood that Fisher was heavily insured. I had no particular talk with him at that time, only I told him I thought it would.”

On cross-examination the same witness testified upon the subject as follows:

“I said Mr. Auerbach and Mrs. Fisher were talking together, and that Mr. Auerbach then asked me if the proceedings we were taking would take the place of a death certificate; it was just before Auerbach left the Fisher home to go after the jurors, or just after he got' back.”

This is the only testimony in the , case tending to show that respondent had any information or knowledge upon the subject of insurance upon the life of Mr. Fisher.

Upon the trial of the case, and against the objection and exception of respondent’s counsel, evidence was offered and received showing that deceased carried insurance upon his life in the sum of $100,000 in the Prudential Insurance Company of America, consisting of two policies of $50,000 each, bearing date December, 1908, payable at his death, upon which policies there were two loans aggregating nearly $6,000. Ethel Patterson Fisher, wife of the deceased, was the beneficiary in each of these policies. It was also in evidence that the life of Mr. Fisher was also insured in the Northwestern Mutual Life Insurance Company by one policy of $100,000, on which there had been a loan of $6,600; that the date of that policy was December 5,1908, and Ethel Patterson Fisher, wife of the assured, was the beneficiary; also, that there were two policies issued by the Mutual Benefit Life Insurance Company of Newark, N. J., amounting to $50,000, consisting of $25,000 each, bearing date March 17,1908, upon which there had been a premium loan of $1,600. Mrs. Fisher was the beneficiary here also. All the policies matured and became payable upon the death of Harry W. Fisher, and all were incontestable after one year from their dates, except for nonpayment of premiums.

Counsel for the respondent moved the court to strike out all testimony relating to the insurance on the life of deceased. The court said:

“The first head of the general motion is that the testimony with regard to the insurance be stricken out, for the reason that no knowledge is shown of the insurance on the part of the respondent. Knowledge on the part of the beneficiary will be presumed. Testimony of the relations of the respondent with the beneficiary are on the record. The statement of the respondent immediately after the death, or very soon after the death, showing that he then knew of the insurance, is in the record. I think the testimony in general is sufficient to retain the admission and retention of the testimony in regard to the insurance. * * * The motion is overruled and exception noted.”

The evidence is uncontradieted that the body of the deceased was removed from the Fisher home to the undertaker’s place of business at Baldwin on the evening of September 19th, and remained there until Mrs. Fisher and the children left with it upon the evening train of Friday, September 20th, bound for Chicago, where they arrived on the next morning.

The respondent was arrested before he left the Fisher home on the evening of September 19th, and remained in the custody of the sheriff from that time on until he was bailed out about the 14th of October.

Evidence was offered tending to show, and it is uncontradicted, that Mrs. Fisher remained in Chicago during Saturday, and while there met a friend who was engaged in the insurance business, who suggested and prepared the proofs of loss under the various insurance policies and obtained Mrs. Fisher’s signature thereto, and it appeared that she filled out the answers to some of the questions asked her. These blanks were filled out and signed by her and sworn to before a notary. She then, with some friends, accompanied the remains to Independence, Iowa, the place of burial.

Before pleading to the information, respondent, by his counsel, moved to quash the information, for the reason that there was no jurisdiction on the part of the court because of the insufficiency of the testimony before the justice on the preliminary examination; and that there was no evidence that would warrant holding the respondent to the circuit court. This objection was overruled and an exception noted.

Before the arraignment of the respondent in the circuit court the following occurred:

“The Court (addressing‘Mr. Cutler, prosecuting attorney) : What is the situation in this Auerbach case, do you propose to act or not?
“Mr. Cutler: No, I am going to let Mr. Savidge proceed.
“The Court: In that case, Mr. Clerk, you may enter xip an order appointing Mr. B. N. Savidge special prosecutor.
“Respondent’s Counsel: We take a formal objection to a stranger appearing in the case for the people.
“The Court: Well, the order when drafted will recite the reasons why Mr. Savidge is appointed. It will be on the request of Mr. Cutler that Mr. Savidge be appointed, and because the court considers Mr. Cutler disqualified.
“Respondent’s Counsel: We make the formal objection when the order is filed. * * *
“Respondent’s Counsel:. Has the order that the court made been filed?
“The Court: Yes, it has. The order appointing Mr. Savidge.
“Respondent’s Counsel: As we understand the matter, Mr. Cutler is not interested by relationship to any of the parties, and has no personal interest in the cáse, nor the results thereof; therefore we enter a formal objection to the appointment of Mr. Savidge. We have nothing personal to Mr. Savidge, however, in the objection.
“The Court: Proceed.
“Respondent’s Counsel: Give us an exception.”

Whereupon, the respondent standing mute, a plea of not guilty was entered by order of the court, and the trial proceeded.

There was no post mortem examination. .

It was a disputed question whether the bullet entered the body from the front or in the back. Upon the theory that it entered the back, there was testimony tending to show that the bullet entered the body just below the shoulder blade on the right side, at a point nearly central between the back and the side; the point of exit being about three inches below the left aipple. There was testimony that the wound beneath the scapula was smooth, and the wound in the front was ragged, and a trifle larger. In the back one rib was broken, and in the wound in the front two ribs were broken. Other testimony tended to show that the ball may have entered from the front, or at least that it could not be definitely determined in the absence of a post mortem examination. It appeared that the wound in front was substantially opposite the one in the rear, as to the height; both being 50% inches from the bottom of the feet.

Upon the trial evidence was offered and received upon the subject of experiments made by witnesses with the gun used by respondent at the time of the death of the deceased. The testimony tended to show that these experiments were made at the place where Mr. Fisher met his death. Testimony was also offered on behalf of respondent of experiments made by witnesses at the same place with a shotgun differing in length, size, and construction from the Winchester used by respondent on the morning in question.

At the close of the testimony the court announced that a request had been preferred early in the trial that the jury be permitted to view the premises where the tragedy was alleged to have occurred; and the court, after ascertaining that the jury desired to make the view, used the following language:

“Do any of the counsel on either side want to go with the jury?
“Acting Prosecuting Attorney: I do not, your honor.
“Respondent’s Counsel: Well, I won’t go. Mr. Adams says he does not want to go unless the other side is represented.
“The Court: Well, now, if they go there I think that some one who knows ought to take this piece of stump and put it in place there, do you agree that that should be done?
“Acting Prosecuting Attorney: T will.
“Respondent’s Counsel: Well,, we will agree upon some party, Mr. Savidge, and we will discuss about it; for instance, now, Sjoden was there at the place and knows just where it came from. • We will agree that he can place it.
“Acting Prosecuting Attorney: I will agree to that.
“Respondent’s Counsel: He is the one that directed the jury to the locality.
“The Court: Now, the jury will remain in charge of the same officers who are under the same oath, and the oath will continue in full force all the time until the jury is again seated. And I think that no one should be allowed to go with them but you two officers, unless the man Sjoden is here. If he is not here, the sheriff will go and send him to that locality.
“Respondent’s Counsel: Well, that is true, your honor; he is there at the house; he lives in the house now.
“The Court: You go by the house, I suppose?
“Respondent’s Counsel: Yes, that is right, too.
“The Court: Very well, the officers can stop there and get him, and if it happens that he is not there, why go where he is, and if you. are not able to get him probably you can see — some of the officers can see where the piece goes, and put it back. Of course, you will not allow any one to talk with the jurors at all or approach them in any way; and there will be no discussion among the jurors neither on the ground nor anywhere about it. I will say more to you about that if we make this arrangement. And Mr. Sjoden, or whoever places that stick in place, is not to discuss in any manner, or say anything at all; he is simply to go there and put that stick in place ¡and go away. Not stay around there or show anybody anything.
“Acting Prosecuting Attorney:' Who will make known to Mr. Sjoden what is expected of him?
“The Court: One of the officers in charge; either one of the officers. The officers will take the stick with them and tell him that he is to place the stick in proper position as it was.
“Respondent’s Counsel: What view of the premises does your honor permit, the locality from the house and barn?
“The Court: Well, they may do such things as they deem material there while they are on the ground.
“Respondent’s Counsel: All right.”

The court then instructed the jury that they were not to discuss the case at all, even among themselves, nor make up any opinion at all until the case was finally submitted to them; that they were to keep their minds open to conviction either way; and that they were not to hear anybody else talk about the case. No objection or exception was taken to the order of the court in this matter.

During the argument of the case to the jury, the acting prosecuting attorney, in alluding to the conduct of Mrs. Fisher with reference to the insurance, used the following language:

“What does she do? She sends for an insurance broker and puts in her time in Chicago while waiting there. And it would almost seem as though they sent and got the insurance blanks before he died—
“Respondent’s Counsel: I take an exception to that.”

In this connection it does not appear that the court made any ruling. There had been other exceptions taken to the argument of counsel prior to this time, and the ruling of the court had simply been to direct the prosecutor to proceed.

Although the prosecuting attorney in his brief has stated that he does not believe that this case comes within the rules laid down in the cases of conspiracy, yet a reference to his opening statement, as well as a reference to the charge of the court, and its reasons given for deying the motion for a new trial, will show that the case was tried upon the theory of a conspiracy or combination between respondent and Mrs. Fisher. In its charge to the jury the court, among other things, said:

“Considerable testimony has been admitted in the case with regard to the relations of the respondent and the deceased’s wife, Mrs. Fisher. This has been introduced largely for the purpose of showing an opportunity for Mrs. Fisher and the respondent to arrive at an understanding with regard to .the taking-off, or death, of Mr. Fisher. The theory of the people is that that was arranged between Mrs. Fisher and the respondent for the purpose of realizing upon the life insurance carried by Fisher. And in view of that claim, and of that theory, it has become the duty of the court to admit in evidence in this case the acts of the parties both soon before the tragedy in question and the death of Mr. Fisher, and following along until the time of his burial. And the purpose of that testimóny is for you to say — is to enable you to be able to say what the truth of the matter is. * * * It is claimed that the motive and actuating cause of this deed on the part of the respondent was the infatuation with Mrs. Fisher, and agreement and understanding reached between him and her that he should do this deed, and thus that she might realize upon the great life insurance carried upon her husband’s life. * * If you can arrive at a verdict in this case, it must be in the light of the conduct of these people and the relations that they sustained one to the other. If there was no understanding between Mrs. Fisher and the respondent, then there ought to be no conviction in this case. I don’t mean by that, and the people do not mean by that, that you should be able to find Mrs. Fisher guilty of adultery with the respondent; that is not required, but the claim is that their, conduct shows that their relations were unusual, and that ample opportunity existed for them to enter into this arrangement, if they were so disposed. * * * Bear in mind the testimony of the early inquiries by Mrs. Fisher in regard to the life insurance, and the inquiry a little later on the part of the respondent in regard to the life insurance, and what would be necessary to keep it intact.”

In Ms reasons for denying the motion for a new trial the circuit judge, among other things, said:

“While there are other views that may be well taken, the case was tried upon the theory that the respondent and Mrs. Fisher arranged the killing, were both interested and guilty, and that Auerbach fired the shot.”

The court in its charge used the following language:

“If, in your opinion, it makes any difference in the case, take into consideration and carefully analyze the testimony as to whether the shot was fired from the back or from the front; give especial attention and most critical examination to the fact of the course of the bullet through the body; it stands an admitted fact in this case, gentlemen, that the bullet passed through the body horizontally, that is on a direct, true line, say whether that can be true under the circumstances revealed in this case.”

1. We shall first consider the matter of the insurance upon the life of Mr. Fisher, and the rulings of the court relating to the evidence upon that subject, as we deem that the most meritorious question raised by the assignments of error.

We think that the court did not err in receiving evidence of the statement of the respondent, when he made the inquiry of the sheriff above referred to, for everything cannot be proved at once upon the trial of a case. But at the close of the evidence of the fact, and amount, of the life insurance, all of which had been received against the objection and exception of respondent’s counsel, and in view of the fact that all of the evidence of knowledge of such insurance on the part of the respondent was that above set forth, we are of opinion that the court erred in refusing to strike out all of the testimony upon the subject of the life insurance.

There was no evidence that respondent had any knowledge of the existence of the insurance at the time of the death of Mr. Fisher. It is more than probable that he had been informed of this fact by Mrs. Fisher subsequent to the death, as he went direct from having had a conversation with her to the sheriff at the time he made the inquiry as to proofs of loss. The jury should not have been permitted to speculate or guess upon that question. As against the presumption of innocence, they should not have been permitted, in the absence of evidence, to presume that respondent possessed this knowledge at the time of or prior to the death of Mr. Fisher. - The damaging effect of the course pursued is made apparent by an examination of the record and the charge of the court. The proper practice and course to be followed in such a case is well stated in People v. Saunders, 25 Mich. 119, where Justice Cooley said:

“It is complained that the acts and declarations of Winters were allowed to be given in evidence before proof had been made of any conspiracy. As this exception regards the order of proof merely, we think it is not one that can avail in this court. The proper order of proof in cases of conspiracy is, first to give evidence of the unlawful combination, and afterwards to show the acts of the conspirators in pursuance thereof, or in some manner to connect them severally therewith. But it often happens that the existence of the conspiracy is only made out by inference from the acts and declarations of the several parties thereto; and to exclude evidence of these until the conspiracy is established in some other way would, in many cases, give the guilty parties immunity. There is no class of cases in which it is more important that the circuit judge should have a large discretion as to the order in which evidence should be received; and this discretion cannot be reviewed on error except in clear cases of abuse, of which we discover no proof here. The opening of the case by the prosecution and any further explanations that may be called for, will generally enable the judge to exercise his discretion in such manner as, while not shutting out proper evidence, shall at the same time protect the accused from being prejudiced by testimony which, in the end, shall prove irrelevant, or not legally competent to charge the party on trial. And whenever facts are proved which depend upon other facts to give them a bearing upon the guilt of the accused, if such other facts are not put in, he has his remedy by motion to strike out the evidence.
“In this case it was sought to connect the several parties charged by evidence of their separate acts and statements. This was, of course, competent. The danger from this is that the statements of one implicating the others as well as himself, may tend unjustly to prejudice the case of the others»; but this must be guarded against by proper instructions from the judge.”

We feel warranted in saying, in the light of this record, that there was no competent or legal evidence —in fact, no evidence — that respondent had any knowledge whatever of the existence of the life insurance before the death of Mr. Fisher. This was essential to the admission of evidence of the fact of insurance, and the motion to strike out all evidence upon the subject of life insurance should have been granted.

A somewhat similar question arose in the case of People v. Morgan, 124 Mich. 527 (83 N. W. 275). There the respondent was upon trial for the murder of one Gillis. In that case Justice Grant said:

“It was error to permit evidence that Mr. Bowen’s life was insured. The prosecuting attorney stated that he would connect this evidence with what the prisoner had stated, — that ‘there was a thousand dollars in it for any one who would do away with Dave Bowen.’ The court admitted it, stating that, if the connection was not made, it would certainly be immaterial. The prosecution did not show that respondent had any knowledge whatever of this insurance; yet it is evident that this was urged as one of the reasons for' his conviction. * * * Knowledge of this insurance on the part of the respondent should have been shown before introducing evidence of the fact of insurance.”

Justice Long concurred with Justice Grant in reversing the case. Montgomery, Chief Justice, said:

“I have some doubt upon the question relating to the life insurance. The record discloses that Mrs. Bowen knew of the insurance. There is no direct testimony to the effect that respondent did, but I think the jury might be permitted to infer such knowledge from the other circumstances of the case. If it is found that he was paramour to Mrs. Bowen, this fact, taken together with his offer of $1,000 to any one who would make away with Bowen, might justify an inference of knowledge.”

Justice Hooker concurred with Montgomery, Chief Justice. Justice Moore said:

“I cannot agree with Justice GRANT that a verdict of acquittal should have been directed, nor can I agree with Justice Montgomery • that the case should be affirmed. The record is barren of any testimony from' which the inference can be fairly drawn that respondent had knowledge that Mr. Bowen had a life insurance policy which was payable to Mrs. Bowen.' It is the testimony of Mr. Bowen that when he left Mrs. Bowen he took this policy with him, and that he could not say that his wife knew whether the policy was in force since then or not. There is no testimony that the respondent ever knew of the existence of this policy. I agree with the opinion of Justice GRANT as to the incompetency of the testimony in relation to the life insurance, and, for this error, think the conviction should be reversed and a new trial granted.”

It is evident from an examination of this record that the subject of life insurance, and the amount thereof, and the fact that it was payable to Mrs. Fisher, were considered strong elements in the case, and these facts were urged by the prosecution as prominent reasons for the conviction of the respondent. We are of opinion that the refusal to strike out this evidence, and to withdraw the same from the consideration of the jury, constituted prejudicial and reversible error.

The only theory of the prosecution, of a conspiracy between respondent and the'wife of deceased, includes the life insurance. That subject being eliminated from the case, there was no other evidence tending to show a conspiracy sufficient to carry that question to tlie jury. The evidence not supporting that theory, the whole subject of a conspiracy should have been withdrawn from the jury, and the court erred in that part of its charge submitting that question in the language herein stated. The submission of these matters was highly prejudicial. The court in denying the motion for a new trial said:

“I have had and yet have some misgiving in regard to the legal sufficiency of the proofs.”

As, in our view of the case, it must be sent back for a new trial, we think it our duty to consider some other questions that have been properly raised by exceptions and assignments of error.

2. It is urged by respondent’s counsel that the court should have dismissed the proceedings and quashed the information before the jury was impaneled, because the preliminary examination, a record of which was before the court, showed that there was no competent evidence introduced before the examining magistrate authorizing him to hold the respondent for trial.

We have examined the record relating to the examination before the magistrate, and are unable to agree with respondent’s counsel that, as matter of law, we should say there was not sufficient evidence to hold the respondent for trial. The evidence, before the magistrate was substantially the same as upon the trial. The circumstances surrounding the case, in the very nature of things, were themselves peculiar and unusual. Circumstances testified to by witnesses as to subsequent conversation and conduct of the respondent, some of which it was claimed showed evidence of a desire to keep the matter of the death of Fisher secret and to avoid publicity, the evidence of the experiments, all of these facts taken together, we think, justified the magistrate in holding the respondent for trial; and we do not think that the court erred in overruling the motion to quash the information.'

3. This brings us to the subject of the order of the court appointing Mr. Savidge as special prosecutor in the case. We might well dismiss this subject for the reason that the record fails to show the order made by the court appointing Mr. Savidge. All we have is the announcement of the court that the order would be made on the request of Mr. Cutler, the prosecuting attorney, that Mr. Savidge be appointed because the court considered Mr. Cutler disqualified. When the court asked the prosecuting attorney if he proposed to act in the case, and he replied, “No, I am going to let Mr. Savidge proceed,” it might well be claimed that he there acquiesced in, if he did not request, the appointment of Mr. Savidge as an assistant in the case.

Section 2563, 1 Comp. Laws, provides that, whenever the prosecuting attorney is unable to attend to his duties, if the court deems it necessary, it may, by an order to be entered in the minutes of such court, appoint some other attorney at law to perform for the time being the duties required by law to be performed by the prosecuting attorney, who shall thereupon be vested with all the powers of such prosecuting attorney for that purpose.

For aught that appears in this record, the court may have made the proper examination to reach the conclusion that it deemed it necessary to make this appointment. Such course should be presumed, in the absence of anything to the contrary. It appears here that the court announced that the order would recite the reasons why Mr. Savidge was appointed; and that it was because the court considered the prosecuting attorney disqualified.

Section 2569,1 Comp. Laws (a more recent statute), provides that the prosecuting attorney may, under the direction of the court, procure such assistance in the trial of any person charged with the crime of felony as he may deem necessary for the trial thereof. There is no claim here that Mr. Savidge was disqualified, or that he was an improper person to act in the case.

This court held, in People v. Trombley, 62 Mich. 278 (28 N. W. 837), that the assistant prosecuting attorney, who by statute is required to discharge all the functions and perform all the duties of the office of prosecuting attorney in case of absence, disability, or sickness of his superior officer, has power to sign, verify, and file an information when the statutory contingency arises.

There seems to be no question that such officer is competent to take charge of the trial of a criminal case.

This court, in the case of People v. Bemis, 51 Mich. 422-424 (16 N. W. 794), said that the prosecuting attorney, and. any one associated with him, must be exclusively a representative of public justice, and stand indifferent as between the accused party and any private interest.

There is nothing in this record to show that Mr. Savidge’s position was assailable upon any of these grounds. This precise question has never been presented to this court before. The following cases refer to the subject generally: Webber v. Barry, 66 Mich. 127 (33 N. W. 289, 11 Am. St. Rep. 466); Sayles v. Genesee Circuit Judge, 82 Mich. 84-89 (46 N. W. 29); People v. Fuhrmann, 103 Mich. 593 (61 N. W. 865); People v. O'Neill, 107 Mich. 556-559 (65 N. W. 540); People v. Thacker, 108 Mich. 652 (66 N. W. 562).

We do not think that the court erred in its action in this matter.

4. The forty-first and forty-second assignments of error are to the effect that the court erred in ruling that the witness Kinney could not give his opinion as to experiments made similar to those made by the people’s witnesses. The people had offered testimony bearing upon the subject of experiments made with the identical gun which was in possession of the respondent on the morning of the 19th of September, at the place where Mr. Fisher was said to have been killed. The experiments made by the witness Kinney were not made with the gun above referred to, but with a double-barrel shotgun, which differed in length and construction from the gun in possession of respondent. The witness was asked to state the result of these experiments, whether or not falling in different ways and striking the prongs the gun could be discharged. This was objected to as incompetent. The court in ruling upon the question said:

“I don’t think that is a matter for expert testimony. The further difficulty with that is that the guns are entirely dissimilar, the trigger guards are dissimilar, the action of a shotgun and rifle is known to be dissimilar. I will sustain the objection.”

To which ruling counsel for respondent excepted.

The weight of authority seems to be that it is within the judicial discretion of the trial court whether to permit experiments relevant to the issue to be made before the jury during the trial, or to refuse to permit them, and an appellate court should decline to interfere with the ruling unless an abuse of its judicial discretion is clearly made to appear. Spires v. State, 50 Fla. 121 (39 South. 181, 7 Am. & Eng. Ann. Cas. 214, and note). In this note will be found a large collection of the cases upon this subject.

We are of opinion that the court did not err in its ruling, especially for the reason that the guns were dissimilar, and such evidence might have had a tendency to confuse rather than to enlighten the jury.

5. It is next urged that the court erred in permitting the jury to view the premises where the death occurred. We have stated in detail what the record shows upon this subject. The record fails to disclose upon whose motion the view was permitted. It is apparent that it was by the consent of counsel for both parties. But it is urged by respondent’s counsel that this view was a proceeding in the case which could not have taken place without respondent’s presence, and that he could not waive his right to be present.

It will be borne in mind that it appears that respondent was not confined in jail, but was on bail during his trial. There was no express order of the court that he should be prohibited from attending the view. However, it does appear that the court said, substantially, that nobody but the officers would attend, with the exception of the man Sjoden.

Section 11951, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 15123), provides that no person indicted for a felony shall be tried, unless personally present during the trial.

Where one on trial for a felony, who was out on bail, failed to appear at the hour to which court adjourned pending the jury’s deliberation, a verdict rendered in his absence was held valid, and a waiver on part of respondent. Frey v. Calhoun Circuit Judge, 107 Mich. 130 (64 N. W. 1047).

Section 11952, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 15124), provides that the court may order a view by any jury impaneled to try a criminal case whenever such court shall deem such view necessary. The matter of the view of the place where an alleged crime has been committed seems to be discretionary with the court. The question whether the purpose of the view is to furnish new evidence, or to enable the jurors to comprehend more clearly by the aid of visible objects the evidence already received, is one upon which the courts seem to be divided; the better doctrine being the latter of the above propositions. It certainly would be improper to permit a witness to testify as to the location of objects, or as to any other material point in the presence of the jury while taking the view.' 12 Cyc. p. 537, and cases cited.

The most serious question here is whether permitting the witness Sjoden to place the stump in its original position was evidence in the case. Much authority may be found collected in' the note to the case of Elias v. Territory, 9 Ariz. 1, found reported in 11 Am. & Eng. Ann. Cas. 1153-1159.

The only Michigan case that we have been able to find bearing on this question is that of People v. Hull, 86 Mich. 449 (49 N. W. 288). There the jury viewed the premises and were accompanied by the circuit judge, counsel, officers of the court, and representatives of the daily press. The respondent was confined in jail during this time. The principal complaint in that case was that the court erred in not keeping the jury together under the supervision of the court while the view was being made, and in not taking measures to prevent the jury from partaking of spirituous liquors while the view was being had. Justice Long, in speaking for this court, said:

“The court was not in error in permitting or directing a view of the premises by the jury; but we think it was the duty of the court, in the absence of the respondent, to have kept the jury while on their way to, and on their return from, and in their view of, the premises, under the supervision of an officer, so that no person might communicate with them or express any opinion, or give any directions in their hearing; for anything which took place which was in the nature of testimony certainly could not be given to the jury in the absence of the respondent.”

We think that the weight of authority is to the effect that a respondent who is at liberty may expressly •waive his right to accompany the jury, but that the jury in no case should take anything in the nature of evidence, in his absence. We also think that the respondent had the right to accompany the jury, had he desired to do so in this case. More than this, it is not necessary for us to decide, as the question is not likely to occur upon a new trial in view of what we have said.

6. Error is assigned upon the argument of counsel for the people. This argument consisted of a somewhat extravagant statement as to the conduct of Mrs. Fisher with reference to making proofs of loss while in Chicago. The record is not clear that the attention of the court was called to the matter, or that the court was requested to make a ruling upon the subject. We are not able to say that the court refused to rule in this instance. The language used was doubly objectionable, as it was not only an extravagant statement in view of the evidence, but it goes to show the use which was made upon the argument of the subject of the life insurance. Such error is not likely to occur upon a new trial.

7. The eightieth assignment of error complains of that portion of the charge above quoted as follows:

“Give especial attention and most critical examination to the fact of the course of the bullet through the body. It' stands an admitted fact in this case, gentlemen, that the bullet passed through the body horizontally, that is, on a direct, true line; say whether that can be true under the circumstances revealed in this case.”

One infirmity in this portion of the charge is that it was not an admitted fact in the case that the bullet passed through the body horizontally. There was much evidence in the case, which we have not deemed it necessary here to collect, that the body may have been in a stooping posture at the time the wound was inflicted. A number of witnesses testified to the common habit of deceased in stooping down while talking, or resting, and there was medical testimony to the effect that it was impossible, in the absence of a post mortem examination, to testify to the course of the bullet through the body. It is not probable that this error will be repeated upon a new trial.

8. The eighty-third assignment of error complains of that portion of the charge of the court above copied, using this language:

“It is claimed that the motive and actuating cause of this deed on the part of the respondent was the infatuation with Mrs. Fisher, and agreement and understanding reached between him and her that he should do this deed, and thus that she might realize upon the great life insurance carried upon her husband’s life.”

Because of what we have said upon the subjects of the life insurance and conspiracy, further comment upon this portion of the charge is not necessary. That it was probably very damaging to the respondent is evident, in view of the course which the trial took.

Error is also assigned upon the refusal of the court to charge the jury as requested by respondent’s counsel. We have examined these requests with some care, as well as the charge, and are of opinion that such of the requests as correctly stated the law upon the subject were covered by the court in its general charge. This court has uniformly held that it is not error for the trial judge to refuse to charge as requested, where the charge as given states the law applicable to the case correctly and covers all the points in such of the requests as were proper. Fisher v. People, 20 Mich. 135; McGinnis v. Kempsey, 27 Mich. 363; Joslin v. Le Baron, 44 Mich. 160 (6 N. W. 214); People v. Beverly, 108 Mich. 509-512 (66 N. W. 379); People v. Sauerbier, 173 Mich. 521 (139 N. W. 260).

Many questions are sought to be raised upon the motion for a new trial relative to the introduction of evidence, where no exceptions were taken. The consideration of these has not been had in the decision of the case, but we wish tó call attention to the rule that failure to except to the admission of evidence prevents a review of the question on writ of error, notwithstanding a motion for a new trial on that ground. Conger v. Hall, 158 Mich. 447 (122 N. W. 1073). See, also, McWilliams v. Railway Co., 146 Mich. 216 (109 N. W. 272).

For the reasons stated, the conviction and judgment in the court below are reversed, and a new trial granted. Respondent will be remanded to the sheriff of Lake county to be dealt with according to law.

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


author: Blair, J. Ostrander, J.

text:
    UNION TRUST CO. v. RADFORD.
    1. Usury — Taxes—Payment by Mortgagor — Trust Company.
    Defendant and his wife executed to complainant trust company a mortgage bearing interest at six per cent, and providing in addition thereto that the mortgagors should pay all taxes and assessments levied upon the lands or upon or on account of the mortgage or indebtedness secured. Complainant claimed and introduced testimony tending to prove that it paid no taxes on its mortgages, at the time the conveyance was executed, for the reason that it paid taxes on capital stock which was invested in part in mortgages, that complainant never intended to collect and had never demanded more than the lawful rate of interest. It was conceded that the combined city and county taxes had exceeded 1.8 per cent, for a considerable period of years. Under the act authorizing the incorporation of trust companies, it was provided that such company should deposit with the State treasurer not less than fifty per cent, of Its capital stock in bonds and Michigan mortgages, that such corporation should have power to loan money on real estate and collateral security, that so much of the capital stock as must be placed on deposit might be invested in mortgages or other security upon property worth double the amount secured (2 Comp. Laws, §6157 et seq.). 1 Comp. Laws, §3824, provides that all property, real and personal, not expressly exempt from taxation, shall be subject to taxation, and section 3831 makes all shares of corporations, when the corporate property is not exempt, subject to taxation; section 3834 exempts from taxes the property of corporations that are required to pay specific taxes. Held,, that the mortgage was taxable as a part of the capital of complainant and was therefore usurious. 2 Comp. Laws, § 4857.
    2. Same — Contracts—Construction—Mortgages.
    Although the question of intent is to be taken into account in determining whether a contract is usurious, parties must be deemed to have intended the result expressed by clear and unambiguous language employed in the instrument.

    ON REHEARING.
    Usury — Capital—Investments.
    Construing the statute as to usury in the light of 2 Comp. Laws, § 6168, providing that real estate of a trust company shall be taxed as other real estate where it is situated, and the residue of its capital shall be taxed as personal property, in which the word capital is not meant to include all the property of the corporation, such a purchase money mortgage as the one in question must be held to represent an investment of capital, entering into the residue upon which the trust company is liable to pay taxes, and that, therefore, complainant paid the tax on account of such mortgage so as to render the mortgagor liable to repay the amount thereof. Presumptively the mortgage represented an investment of its capital. Property that represents capital stock is the equivalent of capital stock for purposes of taxation.
    Appeal from Wayne; Mandell, J.
    Submitted June 21, 1911.
    (Docket No. 12.)
    Decided March 12, 1912.

      Rehearing granted June 1, 1912.
    Former opinion affirmed June 2, 1913.
    Bill by the Union Trust Company against George W. Radford and Laura F. Radford for the foreclosure of a mortgage. From a decree for complainant, defendants appeal.
    Reversed.

      Russel, Campbell, Bulkley & Ledyard (Charles H. L'Hommedieu, of counsel), for complainant.

      Thomas A. E. Weadock, for defendants.

       As to the right of one to testify as to his intent, see note in 23 L. R. A. (N. S.) 391.

   Blair, J.

This is an appeal by the defendants,

George W. Radford and Laura F. Radford, from a decree for the foreclosure of a mortgage. This mortgage, which was on a “committee form,” filled in entirely in the handwriting of defendant George W. Radford, was executed on August 21, 1901, by both defendants, to secure to the complainant the payment of a note for $1,500 in two years from its date, with interest at six per cent, per annum, and contained a clause whereby—

“The said mortgagors, within forty days after the same became due and payable, will pay all taxes and assessments which shall be levied upon the said lands, or upon, or on account of this mortgage, or the indebtedness secured hereby, or upon the interest or estate in said lands created or represented by this mortgage, or by said indebtedness, whether levied against the said mortgagors-, their legal representatives or assigns, or otherwise; and said mortgagors hereby waive any and all claim or right against said mortgagee, its successors or assigns, to any payment or rebate on, or offset against, the interest or principal of said mortgage debt by reason of the payment of any of the aforesaid taxes, or assessments.”

On July 18, 1906, the note and mortgage were extended as to their time of payment to August 21, 1909; all the other conditions and terms remaining the ■same, which extension was signed by the Union Trust Company and defendants Radford.

On May 6, 1909, this bill of complaint was filed, to which defendants filed an answer presenting the defense that the note and mortgage were usurious in that the interest reserved, plus the taxes on the mortgage, exceeded the legal contract rate of seven per cent.

Was the contract usurious? The circuit court .answered this question in the negative, and the corxectness of his conclusion presents the only question which we find it necessary to consider.

Complainant’s secretary testified:

“The Union Trust Company pays no taxes upon its mortgages for the reason that under the law under which it is organized it pays on its stock. It did not pay taxes on its mortgages at the time this mortgage was made, and it has never, during the period of my relationship with the company (some 16 years), paid such taxes. It was not the intention of the Union Trust Company at the time this mortgage was made to ■collect a usurious rate of interest from Mr. Radford. The Union Trust Company has never made any demand on Mr. Radford to pay any taxes on the mortgage indebtedness because no such taxes were payable. [The last four answers were taken against defendant’s objections on the grounds of immateriality, irrelevancy, incompetency, and calling for conclusions ■of the witness.] * * * The trust company, under the law of its organization, the State law, paid on its capital stock, less its showing in real estate, whatever it may be at the time. * * * It has paid large :sums for taxes on its capital stock and paid taxes for its trusts. [It is conceded by complainant’s counsel "that the city tax rate in thev city of Detroit has exceeded one per cent, since 1890, and that the officers of the Union Trust Company knew what the tax rate was upon Detroit property from year to year. It is .also conceded by complainant’s counsel that the comIbined tax rates for city and county upon Detroit property has at all times since 1890 exceeded 1.8 per cent. It is conceded by counsel for defendant that all the money loaned by the trust company upon this note and mortgage was used in payment for the property covered by said mortgage.] ”

The position of complainant is stated in the brief as follows:

“From McMechan’s testimony, which is uneontradicted by the defendants, who offered no testimony on their own behalf, it appears that, at the time this contract was made, the complainant was not assessed upon its mortgages. Section 6168 of the act under which the complainant is organized (chapter 162, 2. Comp. Laws) is as follows:
“ ‘The shares o£ stock of the corporation established under this-act shall be deemed personal property, and shall be transferable only on the books of such corporations in such manner as their by-laws shall prescribe. All real estate owned by any such company may be taxed as other real estate in the city, village or township where the same may be situated, and the residue of its capital shall be taxed as personal property; but the assessment thereof for taxation shall not be at a greater rate than is-assessed on money capital in the hands of individual citizens in the same city, village or township.’
“Two classes of property are by this section made assessable for taxing purposes: (1) Real estate, and (2) capital stock. By necessary inference all other property, including mortgages, is exempt. Acting under the provisions of this section, the taxing officers have always exempted the mortgages of the trust company. It is clear, then, that the officers of the complainant could not have intended by the inclusion of' this printed clause in the mortgage to compel the mortgagors to pay a larger rate of interest than six per cent., because they knew that their mortgages were exempt from taxation and no charge could ever be made against them, under this clause, which they could properly ask the mortgagors to pay in addition to the reserved interest of six per cent. That this is-true is further evidenced by McMechan’s testimony" that during all the period when the mortgage was in force no taxes were paid upon it and no charge was made against the mortgagors on that account. The fact that the tax rate at all times exceeded one per cent., and that the officers of the Union Trust Company knew, from year to year, what the tax rate was (which was conceded by counsel for complainant), does not show any intent to exact usury, for the reason that, while the officers knew what the general tax rate was, they, at the same time, knew that it had no.application to their own mortgages, which were exempt.”

Section 6157, 2 Comp. Laws, provides in part:

“As soon as possible, and not later than six months, after any such company has commenced business under the provisions of this act, it shall deposit with the State treasurer of this State not less than fifty per cent, of the amount of its capital stock, nor more than two hundred thousand dollars in amount; such deposit to be in bonds and mortgages, or notes and mortgages on unincumbered real estate within the State of Michigan, worth double the amount secured thereby, or public stocks and bonds of the United States, or any State of the United States, that has not defaulted on its principal or interest within ten years, or of any organized county or township, or incorporated city or village, or school district, in this State, or in any other such State, duly authorized to be issued,” etc.

By section 6164:

“Such corporation shall have power to loan money upon real estate and collateral security, and execute and issue its notes and debentures, payable at a future date, and to pledge its mortgages on real estate and other securities as security therefor.”

By section 6165 the corporation may purchase, hold, and convey real estate:

“Second. Such as shall be conveyed to it in satisfaction of debts previously contracted in the course of its business.
“Third. Such as it shall purchase at sales under judgments, decrees or mortgages held by it, but such corporation shall not bid at any such sale a larger amount than is necessary to satisfy its debt and costs. * * * No real estate acquired in the cases contemplated in the second and third subsections above shall be reckoned as an asset for a longer time than five years.”

Section 6166 provides:

“The directors of any such corporation shall invest so much of the capital stock as is herein provided to be deposited in the State treasury, in bonds secured by mortgages, or notes and mortgages on unincumbered real estate within the State of Michigan, worth double the amount secured thereby, or in public stocks and bonds of the United States, or any State of the United States that has not defaulted on its principal or interest within ten years, or of any organized county or township, or incorporated city or village, or school district in this State, or in any other such State, duly authorized to be issued. And such board of directors may invest or loan the balance of its capital stock and other moneys received by such corporation in trust, in bonds secured by mortgages, or notes and mortgages on unincumbered real estate within the State of Michigan, worth double the amount secured thereby, or in public stocks and bonds of the United States, or any State of the United States that has not defaulted on its principal or interest within ten years; or of any organized county or township, or incorporated city or village, or school district in this State, or in any other such State, duly authorized to be issued, or in such real or personal securities as they may deem proper.”

Section 6176 provides:

“Whenever it shall appear from the report of any such corporation, or the commissioner shall have reason to believe that the capital of any company is impaired or reduced below the amount required by law, it shall be the duty of the commissioner and he shall have power to examine said company and ascertain the facts, and in case he finds such impairment or reduction of capital to require such company to make good the deficiency so appearing or found to exist.”

Section 3824, 1 Comp. Laws, provides:

“That all property, real and personal, within the jurisdiction of this State, not expressly exempted, shall be subject to taxation.”

Section 3831, subds. 6, 7, and 13, provides that, for the purposes of taxation, personal property shall in-elude (subdivision 6) “all credits of every kind,” etc.; (subdivision 7) —

“All shares in corporations organized under the laws of this State, when the property of such corporations is not exempt, or is not taxable to itself, or when the personal property is not taxed;” (subdivision 13) “all other personal property not herein enumerated, and not especially exempted by law.”

Section 3834 provides:

“The property of corporations paying specific taxes shall be exempt, as to the property, covered by such taxation, except when otherwise provided by law. All other property of such corporations shall be taxed under this act.”

No statute has been called to our attention, nor have we been able to find any, exempting any part of complainant’s property from taxation, unless, as contended by complainant, section 6168 brings about such result by necessary inference.

While the terms “capital” and “capital stock” are often, and perhaps generally, used interchangeably (by some courts held to designate the nominal capital stock of the corporation, and by others to mean the property which the company owns), we are satisfied that in the section under consideration the word “capital” was used to signify all of the property owned by the corporation, both real and personal, within the meaning of the taxing laws. The terms of the incorporating statute, read in connection with the general tax law, appear to us to compel this conclusion.

The corporation’s securities are treated in the sections quoted as part of the capital stock and as such are deposited with the State treasurer. The real estate purchased or acquired by foreclosure is treated as part of the capital stock to be taxed as other real estate is taxed generally; and the “residue of its capital” (that is, the portion of its capital left after deducting its real estate capital) is to be taxed as personal property is generally taxed, at its “true cash value.” We hold, therefore, that the mortgage was taxable as part of the capital of the complainant. People v. Roberts, 154 N. Y. 1 (47 N. E. 974); Excelsior Water & Mining Co. v. Pierce, 90 Cal. 131 (27 Pac. 44); Security Co. v. Town of Hartford, 61 Conn. 89, 101 (23 Atl. 699); 2 Beach on Private Corporations, § 465; Wells v. Canal Co., 90 Wis. 442 (64 N. W. 69); Citizens' Street Ry. Co. v. Common Council, 125 Mich. 673 (85 N. W. 96, 86 N. W. 809, 84 Am. St. Rep. 589); Stroh v. City of Detroit, 131 Mich. 109 (90 N. W. 1029). But, even assuming that the term “capital” is synonymous with “capital stock” in the most restricted sense, still the complainant’s mortgages represented capital stock and were indirectly taxed as part of the capital stock. Bank Tax Cases, 2 Wall. (U. S.) 200, 210; Tennessee v. Whitworth, 117 U. S. 139 (6 Sup. Ct. 649); Atlantic, etc., R. Co. v. Allen, 15 Fla. 637, 660; Connersville v. Bank, 16 Ind. 105.

The real estate in which the money capital was invested by the company constituted part of its capital subject to taxation; the securities in which the money capital was invested constituted a part of the residue of its capital. It is further to be observed that, in case of a transfer of the note and mortgage, the purchaser thereof would be entitled to enforce payment in accordance with the terms of the contract, except for the statute.

It is true, as contended by counsel for complainant, that the question of intent is to be considered in determining whether or not a contract is usurious; but where, as in this case, the contract is unambiguous and its legal meaning clear, the parties must be deemed to have intended the result expressed by the contract. Rosen v. Rosen, 159 Mich. 72 (123 N. W. 559, 134 Am. St. Rep. 712). We therefore hold that the contract was usurious. Green v. Grant, 134 Mich. 462 (96 N. W. 583); Estey v. Loan Ass'n, 131 Mich. 502 (91 N. W. 753); Stack v. Cedar Co., 151 Mich. 21 (114 N. W. 876, 16 L. R. A. [N. S.] 616, 14 Am. & Eng. Ann. Cas. 112); Rosen v. Rosen, supra.

It follows that at the time the bill was filed the contract had not matured and the bill was therefore prematurely filed.

A decree will be entered dismissing the bill, with costs of both courts to defendants.

ON REHEARING.

Russel, Campbell, Bulkley & Ledyard (Henry M. Campbell and Henry Ledyard, of counsel), for complainant.

Butterfield & Keeney, amici curise, for Michigan Trust Co.

George W. Radford, in pro. per.

Ostrander, J.

Upon the application of complainant, the cause has been reargued and the principal question involved has again been considered. A reference to our former opinion will make any preliminary statement of facts unnecessary. The statute, the application and enforcement of which is demanded by the defendants (appellants) is 2 Comp. Laws, § 4857, which reads:

“No bond, bill, note, contract or assurance, made or given for or upon a consideration or contract, whereby or whereon a greater rate of interest has been, directly or indirectly, reserved, taken or received, than is allowed by law, shall be thereby rendered void; but in any action brought by any person on such usurious contract or assurance, except as is provided in the following section, if it shall appear that a greater rate of interest has been, directly or indirectly, reserved, taken or received, than is allowed by law, the defendant shall not be compelled to pay any interest thereon.”
The contract in suit reserves annual interest at the rate of 6 per cent. The covenant in the mortgage,, recited in the former opinion, obligates the mortgagors. to pay taxes “which shall be levied upon the said lands- or upon, or on account of this mortgage, or the indebtedness secured hereby, * * * whether levied against said mortgagors * * * or otherwise.”

It is the contention of defendants (appellants) (an affirmative defense set up in their answer) that it is made to appear upon this record that an illegal rate' of interest is reserved. The case has an interest compared with which the amount actually at stake is inconsiderable. It involves, as our former opinion shows, an examination of the law under which complainant is organized in connection with general laws-governing the taxation of personal property. We are required to determine whether, under the law, a tax was, or ought to have been, levied upon or on account of the mortgage in suit. While maintaining the position which it originally assumed, complainant, upon the rehearing, has presented other considerations opposed to the conclusion stated in the former opinion, which, it is contended, should control the decision.

The law under which complainant is organized provides that real estate owned by it shall be taxed as-other real estate in the place where it is situated, “and the residue of its capital shall be taxed as personal property. * * * ” 2 Comp. Laws, § 6168.

Appellee contends that upon no proper construction of the law (the law just referred to and the general tax law) can it be held that any particular mortgage-owned by it is taxable as a mortgage; that no tax can be levied upon or on account of a mortgage as such, when the mortgage is held by a trust company or, for that matter, by a bank. The argument is that the capital (and surplus) of such an institution is, at least when the capital is not impaired, the difference between its resources and its liabilities, and, after deducting from this difference the value of real estate, what remains is the residue of its capital which, as such residue, is taxed as personal property. It is admitted that the particular mortgage, and all mortgages owned by it, must be taken into account in determining the amount of its assets, and consequently in fixing the tax to be levied, but that it would be a strained construction of the mortgagor’s covenant to say a tax upon said residue of capital was levied upon -or on account of the mortgage.

It is apparent that a trust company may own (have title to and possession of) property and credits greatly in excess of its capital and surplus, and exclusive of property which it holds in trust for others. The resources of such an institution are not necessarily or usually equal to the capital and surplus. Such companies are required (section 6170) to make reports to the commissioner of the banking department, upon forms prescribed and furnished by him, which shall exhibit in detail the resources, assets, and liabilities; the said reports to be published in a newspaper. If a dividend is declared, it must also be reported, together with any amount carried to surplus fund and the amount of net earnings in excess thereof. From these and other provisions of the statute, as well as from ■common knowledge, it is apparent that the word “capital,” as employed in the statute in section 6168, does not necessarily mean all the. property owned by the corporation. The law under which complainant is organized does not contemplate the listing and taxation of particular items of personal property in which its capital may be invested. Whether capital is impaired may be, and usually is, determined by a comparison ■of resources with liabilities; and capital, within the meaning of 2 Comp. Laws, § 6168, may be treated as meaning the difference between resources and liabilities, and will include increment usually designated as surplus and undivided profits.

But we must go further before the question in issue can be decided. Either the statute contemplates that the capital and surplus, after deducting the value of real estate, shall be taxed as capital, however invested, and whether invested or not, or else it is important to know, for purposes of taxation, how the capital and surplus is invested. Suppose, for example, that in a particular case it is claimed that a part of the capital of a trust company is invested in bonds of the United States, or in other tax-exempt securities. Suppose that such a concern selects from its resources securities which are exempt from taxation and presents them to the assessing officer as representing the residue of capital and surplus. It is obvious that for the purposes of taxation there is a difference between determining by a comparison of resources and liabilities the sum of the capital and surplus and determining the actual investments of capital in securities and other property. An actual case may be presented. In Union Trust Co. v. Detroit Common Council, 170 Mich. 692 (137 N. W. 122), it appeared that the complainant sought to have deducted, from the sum of its apparent residue of capital, surplus, and undivided profits, more than a half million dollars represented by mortgages upon which it had paid to the county treasurer the specific tax under the provisions of Act No. 91, Pub. Acts 1911. It sought to set off against its capital, for purposes of assessment, further sums represented by stocks in other Michigan corporations which it owned. Its contention was allowed. That contention necessarily admitted that the items, the particular securities in which its capital was invested, affected the amount for which its capital should be assessed. • The statute treats real estate owned by complainant as an investment of capital. It requires a particular investment of capital in securities to be deposited with the State treasurer. The residue may be variously invested or, at a particular time, may not be invested at all but be in the form of money. It ought not to be considered at a particular moment as invested in particular securities for one purpose and not so invested for all purposes. And, however invested at a particular time, this residue of capital is equal to the sum of the securities in which it is invested. The amount of the tax upon each item (each dollar) of security is determinable.

Presumptively the mortgage in question represented an investment of complainant’s capital. It was a purchase-money mortgage, given upon the sale by it of its real estate. It entered into the residue of its capital, upon which residue it was taxed at a rate exceeding one per cent. Complainant was therefore liable to pay, and did pay, the tax on account of the mortgage, and the covenant of the mortgagor required him to repay the tax. The expression in the former opinion that in 2 Comp. Laws, § 6168, the word “capital” “was used to signify all of the property owned by the corporation, both real and personal, within the meaning of the taxing laws,” was perhaps misleading. It was intended to mean no more and no less than has just been stated, namely, that whatever property represents capital stock is the equivalent of capital stock for purposes of taxation. We are impressed that the second reason given in the opinion for declaring the contract usurious, namely, that it might be transferred to another, in whose hands it necessarily would be taxable, and who might enforce the repayment of the tax by the mortgagor, is unsound. It could not be known in what jurisdiction the purchaser would reside nor the rate of taxation the mortgage would bear.

But with the conclusion that the contract in question is usurious,* and that the bill must be dismissed we feel compelled to agree.

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