text:
    PEOPLE v. LIESKA.
    1. Criminal Law — Appeal and Error — Questions Review able.
    Claimed errors on. the trial for assault with intent to murder, which relate to that charge, are not material on error after a conviction for assault with intent to do great bodily harm less than murder.
    2. Same — Trial—Duty of Prosecutor — Improprieties—Conduct of Counsel.
    Insinuations and questions by the prosecuting attorney, having . a tendency to prejudice the jury as to respondent’s witnesses and relating to irrelevant matters, warrant a reversal on the ground that respondent did not have a fair trial.
    Error to recorder’s court of Detroit; Connolly, J.
    Submitted April 22, 1910.
    (Docket No. 140.)
    Decided June 6, 1910.
    Frank Lieska was convicted of an assault with intent to do great bodily harm less than the crime of murder, and was sentenced to imprisonment for not less than five and not more than ten years in the branch of the State prison at Marquette.
    Reversed.

      Edward S. Gfrece, for appellant.

      Philip T. Van Zile, Prosecuting Attorney, for the people.
   Stone, J.

The respondent was charged in the court helow with the crime of assault with intent to kill and murder one Frank Wilkinson, in the city of Detroit, on September 26, 1908. He was convicted of an assault with intent to do great bodily harm less than the crime of murder, and was sentenced to the Marquette prison. Frank Wilkinson was a member of the metropolitan police, and an officer of the detective department. For some time before the said 26th day of September there had been repeated burglaries, especially in the western portion of the city, where this alleged crime, occurred. The said Frank Wilkinson testified that the respondent was well known to him and to the police of the city as a criminal. Respondent had often been arrested, and, some two or three years before this occurrence, had returned to the city of Detroit, after serving a sentence in the State prison for robbery, which facts were well known to said Wilkinson. On this particular day Wilkinson was going home for dinner, and was in a Fourteenth-street car. He testified that when in the vicinity of Magnolia and Linden streets, in the western part of the city, about 11:45 a. m., he saw respondent, in between two houses on the west side of Fourteenth street, and that he appeared to be looking the houses over; that, knowing that the respondent did not live in that part of the city, and thinking his action suspicious, Wilkinson got off the car and went back to investigate. Speaking of respondent, Wilkinson testified:

“He came along toward me and had his head turned as though he was trying to avoid me. He suddenly turned around, and he says, ‘ Hello,’ and extended his hand. I shook hands with him, and I says, * What are you doing around here?’ He said, ‘I am looking for some one.’ He mentioned the name. I cannot remember the name just now. As he spoke something clicked in his pocket somewhere, a sort of metallic sound, I could not say what it was. I looked down at the left-hand pocket of his sack coat, and it was protruding, and I ran my hand in there expecting to get hold of a gun, and instead of that I got hold of some keys, and a pair of nippers, and a wire, probably 15 inches long, and pulled them out of his pocket. I just had a glance at them, and he swung back on his right side — he was facing me. I reached for my cuffs then; I expected there was going to be trouble. I had the things which I had taken from him in my left hand, and I pulled out my cuffs on the right side where I always carried them. As I pulled my cuffs out I saw the flare of the barrel of the gun, and I was shot; the bullet went in right by the side of my moustache, went through my mouth and was cut out back of my ear. I was stunned for awhile. I couldn’t say how long, a second or two at least. I recovered myself and staggered for awhile and fell down. There was a gentleman ran to my assistance. It was Mr. Hartwig. It was the respondent who shot me, I have not the least doubt of it.”

Wilkinson further testified that he was going to arrest the defendant on suspicion of his committing some of the burglaries that had been committed in that part of the city recently. 'He testified that the fact that respondent had been found between the two houses created in the witness’ mind a suspicion that he was about to commit a crime. Further than has been stated, it appears that up to the time Wilkinson was shot nothing had been done toward making an arrest there. He further testified that it was his intention to take the respondent to police headquarters. There were many exceptions to the introduction of evidence, the charge of the court and refusals to charge as requested, and error has been assigned by respondent upon these exceptions.

Many of the questions and much of the argument of defendant’s counsel relate to alleged errors in the rulings and charge, as to the crime of assault with intent to murder, and the rules of law applicable to such charge. As the defendant was convicted of the lesser offense of assault with intent to do great bodily harm less than the crime of murder, these questions and rulings become unimportant.

The respondent claimed upon the trial that he was not the person who shot Wilkinson; that it was a ease of mistaken identity. . Tending to support his own testimony, numerous witnesses in his behalf were examined, whose testimony tended to show an alibi. It was the claim of these witnesses that he was at his mother’s to dinner on the day in question, and was seen in the vicinity of his mother’s house at about the hour of 12 o’clock noon, and that it was impossible for him to have shot Wilkinson. It is the claim of the respondent that this was a bona fide defense, and that he and his witnesses were not fairly treated by the attorney representing the people upon this question of an alibi in the trial of the case, and that the court permitted a line of cross-examination of the respondent and his witnesses upon that branch of the case which was unfair and prejudicial, all of which was duly excepted to by respondent’s counsel; that the prosecuting attorney in the course of such examination made numerous insinuations as to the truthfulness of the testimony of respondent’s witnesses, and that the court permitted the same, over the objection of respondent’s counsel.

Mary Dombrowski gave evidence tending to show that the respondent was seen by her in the vicinity of his mother’s house a little before 12 o’clock, and when the whistles blew for noon. On cross-examination of this witness the following occurred, relating to her brother-in-law, who was not a witness in this case:

“Q. Do you know whether or not your brother-in-law, Peter Dombrowski, was a witness to Frank Lieska’s alibi when he was tried for robbery in the circuit court ? ”

To which question defendant’s counsel objected for the reason that it was incompetent, irrelevant, and immaterial. The court overruled the objection, and counsel for defendant excepted to such ruling.

"A. I am only seven years married, and I can’t know. I don’t know anything about that.
“Q. Do you know that he went into the circuit court before Judge Donovan when Frank Lieska was being tried for robbery and swore then to an alibi, as you are swearing now ? ”

To which question defendant’s counsel objected as incompetent, irrelevant, and immaterial. The court overruled the objection, and counsel for defendant excepted to such ruling.

“A. I know nothing about my brother-in-law or Frans: Lieska.”

Elizabeth Lieska, the mother of respondent, a woman 68 years old, testified in the case that respondent was at her house on the day in question, at about half past 12 o’clock. On cross-examination she was asked the following questions by the public prosecutor:

"Q. Do you recollect the time when your son was sent to prison ?
“A. Yes, sir.
“Q. You were a witness in that case for your son, weren’t you ?
“A. I think I was there, but I was not a witness.
“Q. Don’t you recollect that you were a witness and that the defense was an alibi, and you swore to an alibi in that case, too ?”

To which question counsel objected on the ground of its being incompetent and immaterial. The court overruled the objection, and defendant’s counsel oxcepted to the ruling of the court.

“A. Yes, sir; I think then was the time. I had forgotten it, but I think I was a witness there, too.
“Q. You claimed then that your son could not have been on the scene of the crime when it was claimed that it took place ? ”

Objection by defendant’s counsel. Objection overruled and excepted to.

“A. I don’t know whether I did or not, I cannot know that.
"Q. And in the other trial over in the circuit court you swore that he was at your place at the time the crime was committed, didn’t you ? ”

To which question defendant’s counsel objected on the ground that it was incompetent, irrelevant, and immaterial. Objection overruled and exception taken.

“A. I have forgotten altogether. I cannot remember that any more.”

John Lieska, a brother of respondent, was sworn, and testified that he ate dinner with respondent at their mother’s on the day in question. On cross-examination the witness testified, in answer to a question from the public prosecutor, as follows:

“ I remember when Frank Lieska was being tried for robbery over in the circuit court some years ago. I was a witness in that case.
“Q. You claimed in that case, when you were sworn on the stand, that your brother was not at the place where the crime was alleged to have been committed at the time it was committed, didn’t you ? ”

Objected to by defendant’s counsel on the ground that it was incompetent, irrelevant, and immaterial. The court overruled the objection and exception was taken.

“A. I did not answer that at all.
“Q. You did not answer ?
“A. No; I was not there.
“Q. But you testified your brother was at some other place at that hour.
“A. I did not.
“Q. At that trial of your brother’s ?
“A. No; I did not.
“Q. You were a witness in his behalf at that trial ?
“A. I was.
“Q. You know that his defense in that case was that he was not at the place they claimed he was, don’t you ? ”

Objected to. Objection overruled and exception taken.

“Q. Don’t you know that was his defense in that robbery case ? What was the defense in that case ?
“A. I don’t know.
“Q. You don’t know what you swore to in .that case ?
“A. Yes, I do.
“ Q. Didn’t you swear you had seen Frank on that day it was claimed the crime had been committed, on that other trial?
“A. I did not say that in court.
“Q. You are sure of that ?
“A. Yes, sir.
“Q. If the records show that, they are not true ?
“A. The record cannot show it. If you want me to tell what I swore—
“Q. Just answer my question; we have got the record, you don’t need to worry about that, the same alibi witnesses you got here.
“Mr. Crece: I object to that statement.
The Court: Strike it out.
“ Mr. Crece: I submit these statements are improper, and the prosecuting attorney ought to be reprimanded for making those statements.
The Court: The duty of counsel is to ask questions and not to make remarks.
“Mr. Crece: I take exception to the remark made by the prosecuting attorney.
“Q. Rose Lieska is your wife ?
“A. Yes, sir.
“Q. She was a witness when Frank Lieska was tried before and convicted in the circuit court ?
“A. I guess she was.
“Q. Is there any doubt about it ?
“A. We wasn’t in there for him; we were there for Cicora, the man that lived in the same house with me.
“Q. You were a witness for your brother ?
“A. That was some time ago.
“Q. They were all tried together ?
“A. Yes, sir.
“Q. They were all convicted ?
“A. I don’t know. Two stayed to home and one went to prison.
“Q. You claimed your brother was not there; they were all convicted ?”

Objected to. as irrelevant and incompetent, and that the record is the best evidence. Objection overruled, and exception taken.

“A. Two of them stayed at home and one went to prison.
“Q. They were all three found guilty ?
“A. I don’t know. If there were three found guilty there would have been three sent up. * * *
“Q. Don’t you know that the claim of your brother in that case was an alibi; in other words, he was not there when the crime was committed ?”

Objected to. Objection overruled and exception.

“A. I don’t know what an alibi means.”

Upon cross-examination of the respondent the following occurred:

"Q. And every time you have been tried for any cause your defense has been an alibi ?
“A. I tried to prove my innocence, yes, sir, every time.
“Q. But in spite of the manufactured evidence and the eleven witnesses you brought to prove your alibi for the robbery you were convicted, that is true, is it not ?
“A. I was convicted—
“Q. You had eleven witnesses to swear to the alibi in that case ?

Objected to. Objection overruled and exception taken.

“A. I don’t remember, there were three men tried together.”

We are compelled to say that, from these excerpts from the testimony, it appears that the course pursued by the prosecuting attorney, and permitted by the court, was highly improper and prejudicial to the rights of the respondent. The questions asked Mary Dombrowski as to the conduct of her brother-in-law, Peter, after she had answered that she knew nothing about it, indicate an attempt on the part of the prosecuting attorney to prejudice the witness before the jury. Not only was this irrelevant and immaterial and foreign to the case, but it was highly improper. It has been repeatedly held by this court that, especially where it appears that the respondent is unpopular in the community where his trial is had, the prosecuting attorney and trial judge are under especial responsibility to conduct his trial with fairness and impartiality; and that it is reversible error for the prosecuting attorney to make unwarranted attacks upon respondent’s witnesses calculated to arouse in the jury an unjust suspicion of their character and truthfulness. Rickabus v. Gott, 51 Mich. 227 (16 N. W. 384); People v. Bielfus, 59 Mich. 576 (26 N. W. 771); Sullivan v. Deiter, 86 Mich. 404 (49 N. W. 261); People v. Cahoon, 88 Mich. 456 (50 N. W. 384); People v. Lange, 90 Mich. 454 (51 N. W. 534); People v. Gotshall, 123 Mich. 474 (82 N. W. 274); People v. Payne, 131 Mich. 474 (91 N. W. 739); People v. Rice, 136 Mich. 619 (99 N. W. 860). Zeal in the prosecuting attorney is entitled to the highest commendation, but it must be exercised within proper limits. Witnesses are entitled to respectful consideration, and it is the duty of the courts to see that they are protected from the insinuations and attacks of counsel. Juries very properly regard the prosecuting attorney as unprejudiced, impartial, and nonpartisan, and insinuations thrown out by him regarding the credibility of witnesses for the defense are calculated to prejudice the respondent. As was said in People v. Cahoon, supra, these questions and insinuations reflected upon the character of the witnesses. The prosecuting attorney has no right to discredit the witness by innuendo. The questions as to whether the witnesses had been witnesses for the respondent upon the former trial, and whether, notwithstanding the fact that they swore to an alibi there (as in this case), the respondent was convicted, were manifestly improper.

We are constrained to say that the respondent did not have that fair and impartial trial which the Constitution and laws of this State guarantee him.

Conviction reversed, and a new trial ordered. Prisoner remanded to Wayne county, to be committed until bailed.

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


source: Caselaw Access Project

author: Stone, J.

license: Public Domain

text:
    EDWARDS v. AUDITOR GENERAL.
    1. Coroners — Inquests—Justices oe the Peace — Judgment.
    The allowance of an inquest bill, presented to the circuit court by a justice of the peace, is not conclusive on the auditor general, who may refuse to pay a bill that contains illegal charges.
    2. Same.
    Such approval by the circuit court is not a judgment.
    3. Mandamus — Discretionary Character — Illegal Claims.
    Mandamus will not issue to enforce an illegal claim.
    4. Coroners — Justices op the Peace — Statutes.
    The fees allowed to a justice of the peace by 3 Comp. Laws, § 11828, are the fees provided for coroners by 3 Comp. Laws, § 11223.
    6. Same — Compensation.
    Justices of the peace holding inquests are governed by the provisions of 3 Comp. Laws, § 11240, prohibiting the taking of other or greater fees than are allowed by statute.
    6. Same — Pees.
    A charge of nine dollars for one day and four one-half days’ attendance at an inquest is illegal.
    7. Same — University op Michigan — Right to Dead Bodies.
    3 Comp. Laws, § 11828, relating to the disposal of unclaimed dead bodies in the hands of coroners and other officers, does not relate to the body of a stranger killed within the State, not having been in a public almshouse or penitentiary.
    8. Statutory Construction — Repeal.
    Where there are two acts or provisions, one of which is special and particular and certainly includes the matter in question, the other general and if standing alone a statute that would include the same matter and that thus conflicts with the special provision, the special must be taken as intended to constitute an exception to the general act or provision.
    9. Same.
    Repeals by implication are not favored and statutes can be repealed only by an express provision of a subsequent law, or by necessary implication through a positive and irreconcilable repugnancy.

      Mandamus by Timothy Edwards, justice of the peace of Wayne county, to compel Oramel B. Fuller, auditor general, to issue a warrant for the payment of certain fees.
    Submitted May 7, 1910.
    (Calendar No. 23,883.)
    Writ granted June 6, 1910.

      Timothy Edwards, in pro. per.

      John E. Bird, Attorney General (Arthur P. Hicks, of counsel), for respondent.
   Stone, J.

This is a petition for mandamus.. Relator is a justice of the peace of Wayne county, and held an inquest over the body of an unknown man found dead in the Wabash railroad yards at Belleville, Wayne county, on August 8, 1909. The inquest was adjourned from time to time to August 28, 1909. The bill for the inquest, amounting to $130.19, was presented to the circuit court of said county, was examined and allowed against the State October 13, 1909. The respondent has refused to pay the bill as allowed by the circuit court because of three alleged illegal items thereon, viz.: One day and four one-half days, $9; coffin and box, $25; caring for body and interment, $41. Respondent admits that there was a proper finding that the body was that of “a stranger not belonging to this State,” and that the other items of the bill (except those in the so-called supplemental bill indorsed upon the original) are legal charges, but he contends that the bill cannot lawfully be paid until reallowed with the illegal items eliminated.

The first question raised by the answer and discussed by counsel is: May the auditor general refuse to issue his warrant in payment of a bill for inquest allowed by the circuit court, when it appears upon its face to eontain illegal items ? We answer this question in the affirmative, where it appears that illegal or unauthorized charges were allowed. The approval by the circuit court is not a judgment. Locke v. Wayne Circuit Judge, 62 Mich. 408 (28 N. W. 917); Lachance v. Auditor General, 77 Mich. 563 (43 N. W. 1005); Auditor General v. Calhoun Circuit Judge, 101 Mich. 212 (59 N. W. 398); People v. Hoffmann, 142 Mich. 531 (105 N. W. 838).

Especially is it true that this court will not issue its writ of mandamus to enforce an illegal claim. Board of Education of Detroit v. City of Detroit, 80 Mich. 548 (45 N. W. 585). The statute (chapter 329, 3 Comp. Laws) has in nearly all of its provisions been in force since 1846. Section 1 provides that justices of the peace shall, subject to certain provisions, take inquests upon the view of the dead bodies of such persons as shall have come to their death suddenly, or by violence. Section 8 provides that such inquisition to be called a coroner’s inquest may be in substance in the form given. Section 11 (being section 11828, 3 Comp. Laws) is as follows:

" When any justice of the peace shall take an inquest upon the dead body of a stranger, or, being called for that purpose, shall not think it necessary, on view of such body, that an inquest should be taken, he shall cause the body to be decently buried; and if the justice of the peace shall certify that to the best of his knowledge and belief the person found dead was a stranger not belonging to this State, the expenses of the burial, with the justice’s fees, and all the expenses of the inquisition, if any were taken, shall be paid to the justice of the peace from the State treasury, the account of such expenses and fees being first allowed by the circuit court for the county; in all other cases the expenses and fees shall be paid by the county in which the inquisition was taken: Provided, That when an inquest is held on the body of any person who dies in either of the prisons or public reformatories of this State, the expense of such inquest shall be audited and paid by the State, as other charges against the State are audited and paid.”

Such an inquest is by the statute called a coroner’s inquest.” We think that the fees allowed to the justice are those provided by the statute for a coroner’s inquest. Section 11223, 3 Comp. Laws. We know of no other provision for fees, and we think that, when the justice performs this service, he takes the fees fixed for the service. Dibell v. Brinkerhoff, 22 Mich. 376. There is nothing in the schedule of fees of a justice, either in civil or criminal cases, that covers a matter like this under consideration. We are of opinion that section 11240, 3 Comp. Laws, which prohibits any justice to whom any fees or compensation shall be allowed by law for any service from taking or receiving any other or greater fee or reward for such service, but such as is or shall be allowed by the laws of the State, applies here. If it is said that the compensation is inadequate, our answer is that that is a matter for the legislature to remedy. We think that the charge of $9 was an unauthorized and illegal charge, and that it should be eliminated, as relator had already charged the fees allowed by law.

Were the other charges illegal ? The statute above quoted provides that “the expenses of the burial” shall be paid by the State. It is the claim of respondent that Act No. 186, Laws 1867, as amended by Act No. 5, Pub. Acts 1901, which was in force at the time of this inquest, repealed by implication that portion of section 11828, 3 Comp. Laws, relating to the payment of the expenses of burial by the State. Section 1 of that act, in part, reads as follows:

“ Any member of either of the following boards, and any of the following named officers or persons, to wit: The board of health of any city, village or township, the common council of any city, board of trustees of any village, any board or officer, having the direction, management, charge or control, in whole or in part, of any prison, house of correction, workhouse, jail or lockup, founded or supported in whole or in part at public expense, having in his or their possession or control, the dead body of any person not claimed by any relative or legal representative; or the county superintendent of the poor, keepers of poorhouses and almshouses, any physician or other person in charge of any poorhouse or almshouse, or charitable institution, sheriff or coroner, having in his or their possession or control the dead body of any person not claimed by any relative, personal friend, or legal representative, as hereinafter provided, and which may be required to be buried at public expense, or the expense of any one of such public institutions, or the dead body of any convict who died in prison under sentence of murder or attempt to murder, shall deliver such dead body or bodies within thirty-six hours after death, or after he or they shall become possessed thereof, to the express or railway company at the nearest railway station, placed in a plain coffin and enclosed in a strong box securely fastened and plainly directed to the ‘ Demonstrator of Anatomy of the University of Michigan, Ann Arbor, Mich.’ * * * for dissection. * * * ”

We do not agree with the respondent, in this contention. In our opinion the statute above quoted from did not repeal said section 11828. They are not, in our judgment, inconsistent provisions, and both can stand. We have traced the history of the ‘ ‘ act to authorize dissection in certain cases ” from its inception in 1867 to the present time, and noted its various amendments. Its object has been to provide the various schools of medicine and surgery in the State with subjects for dissection from certain persons dying in the prisons, houses of correction, workhouses, jails, poorhouses, etc., in the State. It provides that certain officers, including sheriff’s and coroners, who have possession of such bodies, shall forward them as indicated.

Without emphasizing the suggestion that justices of the peace are not within the list of officers named, we do think that a justice or even a coroner, holding an inquest on the body of a stranger, killed as this stranger was, is not within either the spirit or letter of this statute. The justice of the peace holding an inquest has not in his possession or control the dead body of any person contemplated by that act. Until the amendment of 1881 (Act No. 16, Pub. Acts 1881) the act contained a provision that if such deceased person was a stranger, or traveler, the dead body should in all such cases be buried. This provision was dropped out in the amendment of 1881, and then for the first time were inserted the words “ sheriff or coroner.” It is well to note that the words “sheriff or coroner” were introduced together. The general duties of coroners in this State are defined in sections 2608, 2609, 1 Comp. Laws. They relate to executing the office of sheriff in case of the disqualification or death of that officer. As such, they would have charge of the jail or lockup, and might have in their possession or control the dead body of a person to be disposed of by dissection under this statute. This condition would differ materially from that of a justice who was holding an inquest on the dead body of a stranger found dead in a railroad yard. We think that it would surprise the people of this State if it were held that the dead body of a stranger should be a subject for dissection if not promptly claimed by friends or relatives, who might not know of the death. Section 11828, above quoted, was amended in 1885 by- adding the proviso. It is a provision applying specially to “ proceedings for the discovery of crime,” and to the disposition of the dead bodies of strangers, not belonging to this State. Since 1846, notwithstanding the statute relating to dissection, it has been repeatedly enforced and administered by the courts of this State, and recognized by this court in a number of cases above cited. It seems to us that this is a proper case for the application, of the familiar rule for the construction of statutes — that where there are two acts or provisions, one of which is special and particular, and certainly includes the matter in question, and the other general, which, if standing alone, would include the same matter and thus conflict with the special act or provision, the special must be taken as intended to constitute an exception to the general act or provision. Crane v. Reeder, 22 Mich. 322; Regents of University v. Auditor General, 109 Mich. 137 (66 N. W. 956); City of Lansing v. Board of State Auditors, 111 Mich. 335 (69 N. W. 723).

Repeals by implication are not favored. A statute can be repealed only by an express provision of a subsequent law, or by necessary implication through a positive repugnancy between provisions of the latter and former enactment, to such an extent that they cannot stand together, or be consistently reconciled. Connors v. Iron Co., 54 Mich. 168 (19 N. W. 938); People v. Wenzel, 105 Mich. 70 (62 N. W. 1038); Musselman v. Wright, 107 Mich. 639 (65 N. W. 569); Nolan v. Garrison, 151 Mich. 138 (115 N. W. 58). In our opinion there is no such repugnancy here. The items in the so-called supplemental bill indorsed upon the claim, together with the $9 item, must be eliminated.

As this matter should be disposed of without further expense or delay, the respondent should issue a warrant to relator for $121.19. There will probably be no necessity for issuing the writ. No costs will be allowed.

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


author: Blair, J.

text:
    PEOPLE v. ALEXANDER.
    1. Evidence — Dying Declarations — Res Gestae — Homicide.
    Declarations of respondent’s wife during the five days she survived after being shot, that her husband killed her, were competent so far as they related to the act of killing and the res gestee.

    2. Same — Threats—Intent.
    Threats previously made by respondent to kill his wife, shown by declarations of the deceased made to her father, were inadmissible where the threats were general and did not relate to the actual killing or to any purposed act of the deceased.
    3. Same — Husband and Wipe — Previous Assault.
    Dying declarations are not admissible to show matters not intimately connected with the homicide or mere conclusions or opinions not otherwise admissible.

      4. Same.
    Evidence that the wife while dying disclosed previous trouble with or assaults by her husband is not competent as a part of the dying declaration.
    5. Same — Hearsay—Dying Declarations.
    Nor were the statements admissible to explain the wife’s endearing language, claimed to have been addressed to the husband after the shooting and properly received in evidence on cross-examination of witnesses for the prosecution, for the purpose of showing the degree of culpability which she attached to his act.

    Error to Wayne; Mandell, J.
    Submitted April 22, 1910.
    (Docket No. 139.)
    Decided June 6, 1910.
    John Alexander was convicted of manslaughter and sentenced to imprisonment for not less than seven nor more than fifteen years in the Detroit house of correction.
    Reversed.

      Edward H. Kennedy and Thomas J. Mahon, for appellant.

      John E. Bird, Attorney General, Philip T. Van Zile, Prosecuting Attorney, and Fred H. Aldrich, Assistant Prosecuting Attorney, for the people.

       As to admissibility in evidence of dying declarations, see note to Worthington v. State (Md.), 56 L. R. A. 353.

   Blair, J.

Respondent was convicted of manslaughter, upon an information charging him with murdering his wife by shooting her with a revolver. Respondent testified that while he was endeavoring to remove the cartridges from his revolver, when he was intoxicated, it was accidentally discharged. For proof of the charge in the information the people relied largely upon the dying declarations of the wife, made from time to time during the five days that she survived her wound. Portions of these statements were objected to by respondent’s counsel, and the assignments of error covering the rulings of the court upon such objections present the principal questions for our consideration. We have no doubt that a sufficient foundation was laid for receiving the dying declarations so far as they concerned the shooting itself or embraced the res gestee thereof. But it is contended that certain declarations covered by the assignments of error were received which did not relate to the act of killing and were not confined to the circumstances attending the act as part of the res gestee, but related to former and distinct transactions in no legal sense a part of the res gestee, and which were, therefore, erroneously received in evidence.

The statement by Mrs. Alexander of the shooting, as narrated by her father, was as follows:

“Eva said — that is my daughter — ‘John come home drunk and abused me and my baby, and I ask;ed John, where have you been, and he asked me, where have you been?’ Eva told him she had been over to the grocery store, and bought a dozen heads of cabbage and a crock, and telephoned to him for a sauerkraut cutter, and he said he would make one — he could make one better than they could buy, and she said he brought the sauerkraut cutter home, but she didn’t see it, but he still abused her, and says, ‘ Who’s been here ?’ and she says, ‘ No one has been here,’ and he says, ‘Yes, there has been some one here,’ and she said, ‘ If you say so — if you say there has been some one here — it must have been so,’ and she said she was afraid of him; that she dassn’t contradict him; did not want to contradict him, and he said, ‘There was some one here, and I will shoot you,’ and she said, ‘ Don’t shoot me, for my sake or my baby’s sake,’ or ‘ my sake or God’s sake, don’t shoot, John,’ and he said, ‘ I will shoot you,’ and she says, ‘ If you are going to shoot I will have to call in the neighbors; I will have to call for help,’ and he said, ‘ If you call for help, I will shoot you,’ and reached for the revolver that was under the pillow, and said, ‘ Look out, I will shoot,’ and ‘he shot and I got it,’ and she says, she said, ‘ If I had stepped one step further to the left I would have been safe; if I had been one step further to the right baby would have got it.’

The father was further permitted, against objection, to give the following testimony:

“Q. What, if anything, did she state to you about other troubles preceding this ?
“A. She never mentioned her troubles to us whatever, until after the shooting. Of course I spoke to her about the troubles once or twice through her sickness, but on account of her severe pain, etc., I did not bother her a great deal about it; but in her statement to us there, the day before she died, she placed her finger to her lip there, and lifted it up there and said, ‘ There is a mark he left me, and we had to take some stitches in that.’”

Other witnesses testified:

“Q. What, if anything, did she say during that time, after having made these remarks, as to the manner in which she was injured ? (Objected to.)
“The Court: You may answer that.
“A. She said, ‘ My husband deliberately shot me.’
“Mr. Kennedy: I move that that be stricken out as an improper conclusion in any witness, and therefore not proper in this declaration.
“The Court: Is that what you say Mrs. Alexander said ?
“A. Mrs. Alexander said, My husband deliberately shot me.’ * * *
“Q. What further was said with reference to her relations with her husband ?
“A. Shesaid, ‘Manytimeshehaswrongedme/andmany bullets she had dodged. * * * Well, she was suffering great pain, and she said, ‘ Just to think that my husband deliberately shot me.’ * * *
“Q. What further ?
“A. She said she had always been a good, true wife to him. * * *
“Q. Did she say anything about their relations prior to the shooting ? (Objected to as incompetent and immaterial.)
“A. Not at that time.
“Q. Did she subsequent to that time ?
“A. Yes, sir; she said he had abused her.
“Mr. Kennedy: I make the same objection.
“The Court: That was at a different conversation.
“Mr. Aldrich: Yes, but later. * * *
“A. When she was suffering intense pain, she said, ‘And just think, he shot me. It is not the first time; many times he has threatened me, and many bullets I have dodged.’ ”

This court held in People v. Beverly, 108 Mich. 509 (66 N. W. 379), that threats obviously and intimately connected with the homicide were admissible in evidence as dying declarations, as throwing light upon the cause of the shooting. In that case the threats were specific that if his wife should leave him or refuse to cohabit with him he would shoot her, and it appeared that when the precise contingency arose in the event of which he threatened to shoot her he did shoot her. In the present case the anterior threats were general, and, according to her declarations, were accompanied by many attempts to shoot her, which she was fortunate enough to dodge. So far as her declarations go, no intimate and obvious connection existed between the previous threats and the shooting in question here, and the aggravated assault and battery requiring stitches to be taken in her lip was apparently in no wise connected with the homicide. While the narrative may include all of the circumstances attending the criminal act, including threats obviously connected with it, and the declarant may state any of such circumstances which she might have stated if she had survived, the universal rule, as established by the courts, is that such declarations may not include narrative of matters not immediately connected with the fatal occurrence, and may not state mere opinions or conclusions where such opinions or conclusions would not be admissible from the lips of a living witness. 10 Am. & Eng. Enc. Law (3d Ed.), p. 382 et seq.; 21 Cyc. p. 975; People v. Olmstead, 30 Mich. 431; note to Worthington v. State, 56 L. R. A. 353 (92 Md. 222, 48 Atl. 355); note to State v. Meyer, 86 Am. St. Rep. 637 (65 N. J. Law, 237, 47 Atl. 486).

The statements as to previous trouble were not admissible in evidence, and should have been rejected. In view of respondent’s claim that the shooting was entirely accidental, it cannot be said that the errors were without prejudice. Neither, in our opinion, does the record justify the argument that the declarations in question were admissible in opposition to, or in explanation of, the expressions of affection by Mrs. Alexander for her husband called out on cross-examination by respondent’s counsel.

The first witness called by the prosecution was the physician who attended Mrs. Alexander immediately after she was shot. He testified on his direct examination :

“ She told me she was shot. She said my husband shot me, when she was placed on the couch in answer to my question. Nothing further was said in that regard.”

On cross-examination he testified, among other things, as follows:

“ Then Mr. Alexander came in shortly, and I heard her say to him, My dear husband,’ in affectionate terms. During the entire time there she constantly used endearing terms toward her husband. I heard her say: ‘ Oome to me, my dear husband.’ And from the conversation had there the two of them appeared to be affectionate to each other. * * * After I returned I heard him use further endearing terms to her and she to him. He was at that time rendering what assistance he could. * * * She asked God to bless her and take care of baby and her husband. * * * He wanted me to be sure and do right. He was then very affectionate toward her and concerned, and she was the same toward him.”

The next witness called by the prosecution was Mrs. Alexander’s father, who testified as hereinbefore stated. We think the testimony of the physician upon cross-examination was competent, as showing the attitude of the wife towards the husband soon after the shooting and as having some bearing upon the degree of culpability which she attached to his act. Hurd v. People, 25 Mich. 405. Other witnesses for the prosecution testified to the same effect, and, in fact, the testimony was undisputed. So far as the record discloses, her endearing remarks to her husband were not parts of a conversation qualifying them in any way or given in immediate connection with any of the declarations put in evidence. We do not think that the cross-examination in this regard justified the introduction of hearsay testimony as to previous troubles. The public necessity which admits hearsay testimony in cases of homicide covers only the res gestae of the fatal occurrence.

We do not deem it necessary to discuss the other assignments of error, since the alleged errors upon which they are founded will probably not arise upon another trial.

The judgment is reversed, and a new trial ordered.

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


text:
    PEOPLE v. LOOMIS.
    1- Constitutional Law — Statutes—Title.
    Act No. 213, Pub. Acts 1897, amending 3 Comp. Laws, § 11507, is constitutional, as to objections that the act contains offenses not germane to the title and that it amends a statute without pointing out in the enacting clause the sections amended.
    2. Criminal Law — Cruelty to Children — Statutes—Infants.
    The statute covers cases of unreasonable and unlawful corporal punishment, as defined in People v. Oreen, 155 Mich. 524 (119 N. W. 1087, 21 L. R. A. [N. S.] 216).
    3. Indictment and Information — Cruel Punishment.
    An indictment for cruelly and unlawfully punishing a child is sufficiently specific in using the language of the statute de-. fining the offense.
    4. Criminal Law — Continuing Offense.
    Proof of several distinct acts is not proper to show a continuing offense, although the distinct acts of cruelty under Act No. 213, Pub. Acts 1897, may be admissible to show the bad faith of respondent in punishing the child.

      5. Same — Continuing Offense — Surplusage.
    Although it is technically incorrect to charge the offense as a continuing one, the continuando may be rejected as surplus-age and the respondent tried upon such particular charge as the prosecutor may select.
    Exceptions before judgment from Calhoun; North, J.
    Submitted April 22, 1910.
    (Docket No. 145.)
    Decided June 6, 1910.
    John W. Loomis was convicted of cruelly punishing a child in violation of section 11507, 3 Comp. Laws.
    Reversed.

      Jesse M. Hatch and Louis C. Miller, for appellant.

      John JEJ. Bird, Attorney General, and Howard W. Oavanagh, Prosecuting Attorney, for the people.

       As to evidence of other crimes in criminal case, see note to People v. Molineux (N. Y.), 62 L. R. A. 193.

   Blair, J.

Defendant having been convicted of cruelly punishing a child, in violation of the provisions of section 11507, 3 Comp. Laws, seeks a reversal of the conviction upon exceptions before sentence. The information charges that respondent,—

“On the 1st day of September, A. D. 1908, and on divers other days and times between that day and February 19, 1909, at the township of Marengo, in the county of Calhoun aforesaid, having under his control and protection Ernest A. Holnagel, a boy 13 years of age, did then and there cruelly and unlawfully punish him, the said Ernest A. Holnagel, particularly while under his, the said J. W. Loomis’ control and protection on, to wit, the 19th day of February, A. D. 1909, did then and there at the township aforesaid cruelly and unlawfully punish him, the said Ernest A. Holnagel, contrary to the form of the statute,” etc.

As stated in respondent’s brief:

“The errors relied upon are raised upon the record by a motion to direct a verdict, objection to the receipt of evidence, to the refusal of the court to charge as requested, to the charge of the court, and to the argument of the prosecuting attorney.”

At the outset, respondent’s counsel objected to the reception of any evidence under the information, for the reasons that:

(а) The information does not show how the alleged cruel and unlawful punishment was inflicted.

(б) The information did not state the particulars constituting the offense.

(c) The information did not allege any fact or facts constituting cruel or unlawful treatment.

(d) The statute under which the information is filed is unconstitutional and void.

We consider first the objection questioning the constitutionality of the act. The original act appears as Act No. 156 of the Public Acts of 1893. The act is entitled “An act to provide a penalty for cruelty to children.” So far as the definition of the offense and the penalty are concerned, the act reads as follows:

“Section 1. The People of the State of Michigan enact, That any parent or guardian, or person under whose protection any child may be, who tortures, cruelly or unlawfully punishes, or wilfully, unlawfully, or negligently deprives of necessary food, clothing or shelter, or who wilfully abandons a child under sixteen years of age, or who habitually causes or permits the health of such child to be injured or his life endangered by exposure, want or other injury to his person, or causes or permits him to engage in any occupation that will be likely to endanger his health or deprave his morals, or who habitually permits him to frequent public places for the purpose of begging or receiving alms, or to frequent the company of or consort with reputed thieves or prostitutes, or by vicious training depraves the morals of such child, shall be punished by a fine of not less than five dollars nor more than fifty dollars or imprisonment in the common jail of the proper county not less than ten nor more than ninety days, or both, in the discretion of the court.”

The act contained but one section. In 1897 an act was adopted entitled:

“ An act to amend act number one hundred and fifty-six of the Public Acts of eighteen hundred and ninety-three, entitled ‘An act to provide a penalty for cruelty to children,’ and to repeal all existing acts and parts of acts conflicting with the provisions of this act.” Act No. 313, Pub. Acts 1897.

The language of section 1, defining the offense, except that the feminine pronoun is used in conjunction with the masculine, is identical with that quoted from the act of 1893. As to the penalty, the act of 1897 provides that the offender—

“Shall upon conviction be deemed guilty of a felony and punished by imprisonment in the county jail, or in the State prison or the State house of correction at Ionia at hard labor for not more than five years nor less than three months.”

Section 3 repeals all conflicting acts. Except in the title, there is no reference to the amendatory character of the act; but it is in the form of an original enactment.

It is argued that the offense complained of is not included within the title of the act; that the act contains various offenses and provisions that are not germane to the title; and that, although the act purports by its title to be an amendatory act,—

“The act points out no section to be amended. The enacting clause purports to be an original act, but the title purports to be an amending statute. It violates section 35, article 4, and section 30, article 4, of the Constitution (1850). The amending statute must have an enacting clause pointing out the sections that are to be amended. People v. Pritchard, 31 Mich. 341.”

We think the object of the law is properly expressed in its title, and that the provisions of the act are germane to such object. People v. Kelly, 99 Mich. 82 (57 N. W. 1090); Robison v. Wayne Circuit Judges, 151 Mich. 315 (115 N. W. 682). We are also of the opinion that the act is not in conflict with the constitutional provision that:

“ No law shall be revised, altered or amended by reference to its title only; but the act revised and the section or sections of the act altered or amended shall be re-enacted and published at length.”

The amended act contained only one section, so that the language of the title of the amendatory act, “to amend Act No. 156,” as clearly stated the object as though the single section had been referred to. While it would have been in better form if the amendatory act had contained a statement in the enacting clause that the section in question was amended so as to read as follows, etc., as a matter of fact, the section as amended was re-enacted and published at length, and we perceive no conflict with the constitutional provision.

Was the offense for which respondent was tried and convicted properly charged in the information ? It is apparent that cruelly or unlawfully punishing á child is only one of several phases of the offense of cruelty to children rendering the offender liable to the penalties of the act, and we are of the opinion that the legislature intended by the provision, “cruelly or unlawfully punishes,” to cover cases of unreasonable and unlawful corporal punishment as defined by this court in People v. Green, 155 Mich. 524 (119 N. W. 1087, 21 L. R. A. [N. S.] 216). Construing the cruel or unlawful punishment denounced in the statute as relating to corporal chastisement, we think the information was sufficiently specific in using the language of the statute in defining the offense. The information describes in the language of the statute the particular form of cruelty to children constituting the crime charged, and separating it from the other forms of the offense so as to inform the respondent with reasonable certainty of the accusation against him. 5 Enc. Pl. & Prac. p. 695; People v. Glazier, 159 Mich. 528 (124 N. W. 582).

It is also urged that the court erred in permitting the prosecution to show several distinct whippings. The prosecuting attorney stated the theory upon which proof of the different punishments was competent, as follows:

The Gourt: Well, it is no more than right that the record should show the prosecutor’s attitude, that it is not claimed that this particular whipping might possibly be excessive so as to be a violation of the statute; but it is one of the acts leading up to the act specified by the prosecutor that took place on the 19th of February, 1909.
“Mr. Cavanagh: That is our position, your honor, that the continued acts culminating February 19, 1909, constituted cruel and unlawful punishment.
The Court: The objection will be overruled.
Mr. Miller: Exception.
"Mr. Cavanagh: I will say this, that in view of my position the proof of this one act was made on the theory that it was a continued offense, and if I had been compelled to elect at any time any particular offense I would have chosen the offense of February 19, 1909. My proof of this act was to show a continued offense.”

The particular provision under consideration does not specify an offense continuous in its nature like other provisions of the section, and while repeated punishments at short intervals for unimportant offenses, taken together, might constitute cruel punishment, though no single punishment would, such course of cruel punishment should at least be specified in apt terms in the information. It was not competent for the prosecution, under the information and facts of this case, to prove separate and distinct whippings as together constituting the offense; evidence of such distinct acts was only admissible as bearing upon the good faith of the respondent in administering the punishment particularly relied upon. Upon this issue of respondent’s good faith, previous punishments, not only during the period specified in the information, but prior thereto, were admissible. Ordinarily, prejudicial error will arise from the receipt of testimony upon an erroneous theory, when the testimony was admissible upon another lawful theory; but in this case the erroneous theory was made the basis of the people’s case and of the jury’s deliberation, and the evidence went to them as substantive proof of the offense charged. Although it was not technically allowable to charge the offense as a continuous one, we think that the continuando might properly be rejected as surplusage, and the case tried upon such particular charge as the prosecutor might elect. 22 Cyc. p. 369.

It is also urged that the court erred in refusing to give respondent’s request to charge that—

“There is no evidence in this case showing that the respondent was a person having Ernest Holnagel under-his protection, and therefore your verdict must be not guilty.”

The court did not err 'in refusing this request, since, in our opinion, the evidence tended strongly to show, if, indeed, it was not conclusive, that respondent was such a person in the meaning’ of the statute.

What we have already said disposes of the important questions in the case, and those not discussed will not be likely to arise upon another trial.

The conviction is reversed, and a new trial ordered.

Osteandeb, Hookes, Moose, and Stone, JJ., concurred.


author: Ostrander, J.

text:
    PEOPLE v. RICE.
    1. Criminal Law — Intent—Statutory Construction.
    While intent is ordinarily an element of crime, the legislature may create offenses without reference to the offender’s knowledge of the existence of the facts, but courts are slow to find a legislative intent to condemn a man for not knowing that which he cannot know.
    3. Intoxicating Liquors — Physicians—Prescriptions.
    An information charging a physician with giving a prescription for whisky to an habitual drunkard in a county which has adopted prohibition, and alleging that he gave the prescription in bad faith, and that the liquor was procured for a beverage, charges no crime. Act No. 207, Pub. Acts 1889; 2 Comp. Laws, § 5412; Act No. 107, Pub. Acts 1909.

      3. Same.
    Unless there is open or tacit collusion between the druggist and the physician, so that the actual sale is unlawful, the conduct of the physician is not illegal under Act No. 107, Pub. Acts 1909.
    4. Same — Statutes— Accessory.
    3 Comp. Laws, § 11930, abolishing the distinction between an accessory before the fact and a principal and making all persons aiding or abetting in the commission of the crime principals, has no application to such sale if the act of the druggist in selling the liquor was lawful.
    5. Same — Indictment and Information.
    Guilty knowledge of the druggist and collusion with the physician is immaterial under an information which fails to charge such guilty knowledge or conspiracy or collusion.
    Exceptions before judgment from Genesee; Wisner, J.
    Submitted April 22, 1910.
    (Docket No. 141.)
    Decided June 6, 1910.
    James B. Rice was convicted of violating the local-option law.
    Reversed, and respondent discharged.

      Brown, Farley & Selby, for appellant.

      James S. Parker, Prosecuting Attorney, and Ed. S. Lee, Assistant Prosecuting Attorney, for the people.
   Ostrander, J.

The information is in the following form:

James S. Parker, prosecuting attorney for said county, for and in behalf of the people of the State of Michigan, comes into said court, in the December, A. D. 1909, term thereof, and gives it here to understand and be informed that James B. Rice, late of the city of Flint, in the county of Genesee, and State of Michigan, heretofore, to wit, on or about the 21st day of September, in the year 1909, at the city of Flint, in said Genesee county, being then and there a practicing physician, wrote, signed, and delivered to one James Scheuble, alias James Slolts,’ a prescription in words and figures as follows:
“ ‘Take this to the Buokrell Pharmacy, Bell Phone 562,1100 N. Saginaw St., corner McFarlan, Flint, Michigan, Jas. Slolts, 9/ 21 / 9, Es. 1 hot Shaws Malt Sig. as directed.
“‘ J. B. Eice, M. D.
“ ‘(Canceled September 21, 1909.
[Signed] • “‘J. Buokrell.)’
"Said prescription called for one bottle of Shaw’s Malt on which was procured one quart of whisky and (said prescription was a prescription for one quart or bottle of whisky) by the said James Scheuble as hereinafter set forth, the said prescription being then and there obtained for the purpose of enabling the said James Scheuble to procure said intoxicating liquor. The said James B. Rice, M. D., not making and writing the said prescription upon an examination into the physical condition of said James Scheuble and not making the same in good faith and upon his personal knowledge that the physical condition of the person for whom such liquor was procured required the same for medical purposes, was not made upon and signed by the superintendent of any hospital or other medical institution where such liquors are used only for such medical or scientific purposes, and said James Scheuble then and there being a notorious, habitual, and common drunkard and obtaining the liquor for the purpose of drinking same as a beverage, and not for medicinal purposes, and said James B. Rice, M. D., not being then and there a druggist or registered pharmacist engaged in selling intoxicating liquors in compliance with the requirements and restrictions imposed upon druggists and registered pharmacists by the general laws of the State of Michigan, and contrary to the provisions of a certain resolution adopted by the board of supervisors of the county of Genesee, State of Michigan, on the 12th day of April, A. D. 1909, in pursuance of Act No. 207 of the Public Acts of the State of Michigan for the year A. D. 3 889, as amended, contrary to the form of the statute in such ease made and provided, and against the peace and dignity of the people of the State of Michigan.”

Respondent refused to plead thereto. By various objections and exceptions counsel for respondent raised the point that the information charged respondent with no offense.

The theory according to which the court admitted certain testimony and submitted the question of respondent’s guilt to the jury is made manifest by the following excerpts from the charge:

“ Now, the statute under which this information is filed is section 26 of Act No. 107 of the Public Acts of 1909, which provides:
“ ‘ Every druggist keeping a drug store in any county adopting prohibition under this act shall by himself or his clerks be permitted to sell vinous, malt, brewed, fermented, spirituous and intoxicating liquors for medicinal purposes, but only on the written (not printed or typewritten) prescription of a regular practicing physician : Provided, That the physician making such prescription shall state therein the name of the person for whom such liquor is prescribed, the kind and quantity of liquor prescribed, and shall issue the same in good faith and upon personal knowledge that the physical condition of the person for whom such liquor is prescribed requires the same for medicinal purposes. * * * Such prescription shall be plainly written and dated and signed by the full name of the maker thereof.’
“Now, that is the measure of the duty of the physician, and the charge in this case is that he made a prescription to James Scheuble on the 21st day of last September, which did not comply with the requirements of that statute, that he issued that prescription contrary to the injunction laid upon him by that statute I have read to you. * * * There has been admitted into the case certain prescriptions for intoxicating liquors given by the respondent to other persons before and after the time charged in this case. Now, if you first — and I emphasize the word ‘ first ’ and I repeat — now, if you first find that the respondent gave the prescription charged to Scheuble and intended it for him, then you may consider the other prescriptions, their number, and amount of liquor prescribed thereby, solely upon the question of whether the respondent acted in good faith and believed from personal knowledge that the physical condition of Mr. Scheuble required the kind and quantity of liquor prescribed, and you must consider the same for no other purpose whatever. They cannot be used as having any bearing upon the question of whether the respondent gave the prescription to Scheuble, intended it for him, and must not be considered at all unless you first find the respondent did so give it to Scheuble as already stated.
“I read you section 11930, 3 Comp. Laws, upon which 1 base the instructions which I will next give you:
‘“The distinction between an accessory before the fact, and a principal and between principals in the first and second degree in cases of felony is abrogated and all persons concerned in the commission of a felony ’ (and I charge you that the case upon trial is a felony) ‘whether they directly commit the act constituting the offense or aid and abet in its commission though not present, may hereafter be indicted, tried and punished as principals as in the case of a misdemeanor.’
“ Following that I give you this:
“ ‘ If you find that the respondent wrote the prescription in evidence for James Scheuble and delivered it to him, and that respondent did not issue the same in good faith and upon personal knowledge that the physical condition of said Scheuble not only required whisky, but also required the quantity which you find under the evidence was indicated by the prescription, and you further find that, by reason of the furnishing of said prescription to said Scheuble, Scheuble was enabled to procure a quart of whisky, then respondent would become a principal in the furnishing of said liquor, and it would be your duty to convict. If the prescription was written by respondent for Scheuble and intended for him and delivered to him, the fact that some other name was written therein will not excuse the making and delivery to him, and under such circumstances it would be the same as though Scheuble’s name was written in the prescription itself.’ ”

Very early in the course of the trial the court said:

“ Under that law they laid down in section 26 what the duty of the physician should be, that he should only issue a prescription under certain circumstances, and they did that, in my judgment, for the purpose of bringing the physician within the penalty of the law; they amended section 16, which originally provided for the punishment for the violation of section 1 and section 15, and they amended that section 16 so as to make it read that any one offending against any provision in the law should be punished so and so. Now, in my judgment, the legislature intended that physicians should pay some attention to that law, and, if a man goes into a physician’s' office and says to him, ‘ I want a prescription for some whisky,’ and the physician does not make any examination of him, but immediately sits down and writes him a prescription that he may get whisky on, without personal knowledge of whether his physical condition requires it, or without any effort whatsoever to determine whether his physical condition requires it, if that is a fact in such case, in my judgment the physician is amenable to the law. * * * That in my judgment is the object of the law, and I say that, if a physician does not take those precautions and receives money for the sale of his prescriptions, that is just the same as though he delivered the whisky; under the ordinary criminal law he became a principal and has made it possible for a man to get it unlawfully; and it is just the same, in my judgment, as the case I instanced. If I propose to a person to go down on the street and hit Mr. Lee, and he does it, it is my offense just the same as though I was there and hit Mr. Lee myself. I have made it possible for Mr. Lee to get hit; therefore, I am guilty of it myself, although I was hot there at all. Now, for a violation of that section, in my judgment the physician is amenable as a principal in furnishing the liquor.”

The reasonable interpretation of the language employed in the information is that respondent is charged with writing and delivering a prescription for liquor without an examination of the applicant, not upon personal knowledge that the condition of the applicant required liquor for medicine and not in good faith; that the applicant did procure liquor called for in the prescription by means of the prescription. It is also, inferentially, charged that the prescription is not in proper form because the signature to it is not the full name of the physician. It is said in the brief for the people that the information charges a specific violation of the law, and in the very words of the statute, in the allegation “that the said James B. Rice, M. D., not making and writing the said prescription upon an examination into the physical condition of said James Scheuble,” etc., etc., and in negativing the provision of the statute, the doctor issuing such prescription “ shall issue the same in good faith and upon personal knowledge,” etc., etc. Again, it is said:

“Primarily, the specific offense charged in said information is the issuing of the prescription mentioned in the information, and the violations of the statute in other respects were proved for the purpose of showing lack of good faith and an utter disregard of all the provisions of the act in the issuing of this particular prescription under the circumstances alleged in the information.”

The brief, as we understand it, does not attempt to sustain the proposition that under this statute the respondent might be found guilty as a principal, or as an aider and abettor, of unlawfully selling, or unlawfully furnishing, liquor. There is no attempt made to sustain the proposition that the information charges the respondent with making, or with aiding and abetting, an unlawful sale of liquor. The theory of the people was and is that the act of a physician in writing and delivering — or issuing — a prescription in disregard of the provisions found in section 26 of the statute is a violation of the law, subjecting the physician to the penalties prescribed in section 16 of the act. According to this theory, it is immaterial whether liquor was procured upon the prescription. The physician would be equally culpable if the prescription was in proper form, and if the druggist sold liquor in reliance upon it, in perfect good faith. According to the theory of the instructions given to the jury, the prescription must have been filled, must have brought about a sale or furnishing of liquor. In other words, if the prescription in question had not been filled — if the jury had so found— the respondent must have been acquitted.

With respect to the question now being considered, namely, whether the information charges respondent with having committed an offense, it is immaterial that the two theories indicated are inconsistent. Whether the acts of the physician, described in the information, are obnoxious to the law, depends upon the proper construction of the law. The general purpose of the law is to prevent the manufacture of liquors and all traffic in liquors, as beverages, in certain counties. Druggists may traffic in liquors for medicinal or scientific purposes. The purposes for which liquors are desired must be certified to the druggist either by a regular practicing physician or by a superintendent of a hospital, medical, or educational institution. He may not lawfully make sales of liquors except upon such certification. In a particular instance the druggist may know whether the certification is in proper form. If it is a prescription, it must be written, must name the person for whom the liquor is prescribed, the kind and quantity prescribed, must be dated, and signed with the full name of the physician. He cannot know that the prescription is issued in good faith, upon personal knowledge that the physical condition of the person prescribed for requires the liquor for medicinal purposes. He may come, in time, to believe, from the quantity of liquor prescribed and from the frequency with which the prescriptions of a particular physician áre presented, that the prescriptions are not issued in good faith. He may know the reputation and character of the person prescribed for. Rut, manifestly, in case of a first or of a second or other prescription of moderate quantities of liquor for a stranger, he cannot know that the qualities of good faith and necessity exist.

Criminal intent is, ordinarily, an element of crime, and this is true although the offense is purely statutory. It is competent, however, for the legislature to make certain acts, coupled with certain facts, offenses, punishable by fine and imprisonment, without regard to the actor’s actual knowledge of the existence of the facts. People v. Worden Grocer Co., 118 Mich. 604 (77 N. W. 315); People v. Snowberger, 113 Mich. 86 (71 N. W. 497, 67 Am. St. Rep. 449); People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270); People v. Curtis, 129 Mich. 1 (87 N. W. 1040, 95 Am. St. Rep. 404). Such legislation is enacted and is sustained, for the most part, on grounds of necessity. Courts are, however, slow to find a legislative intention to condemn a man for not knowing that which he cannot know.-

The reasonable construction of this statute is that it gives a privilege to druggists, which must be honestly exercised. If it is honestly exercised, in filling a prescription which is in the statute form, he is protected. The fact that the prescription is in the statute form is not an absolute protection. Good faith is required, and the want of it may be shown by the number of sales made upon the prescriptions of a particular physician, by the quantity of liquor prescribed and furnished, by the frequency with which a particular person presents prescriptions to be filled, by the character and habits of the person to whom the liquor is furnished, and by any other facts and circumstances which tend to prove that the liquor was in fact procured to be used as a beverage, and that the druggist is fairly chargeable with notice of the fact. The lawfulness of the sale does not necessarily depend upon the good faith of the physician. It does depend upon the good faith of the druggist. The good faith of the physician may not always be a protection to the druggist because the druggist may know of facts and circumstances indicating clearly, to him, that the liquor called for will be used as a beverage. In short, there is no necessary connection, as affecting the good faith of either, between the conduct of the physician in prescribing, and the conduct of the druggist in selling, liquor. We do not find in the statute an intention to punish physicians for issuing prescriptions for liquor in bad faith. We mean by this that apt terms are not found to create a substantive offense, the elements of which are writing and delivering carelessly or dishonestly, prescriptions for liquor. If physicians are amenable to the pains and penalties of the act, it is because they have indirectly, but intentionally, brought about a sale of liquor to be used as a beverage. They do not, in issuing prescriptions in bad faith, occupy the position of merely practicing subterfuge or telling untruths in order to secure liquor. The law intends thatsales may bemadeupon prescriptions. Itintends that no sale shall be made o therwise than upon prescriptions. It has made the prescription, and therefore the physician, potential in securing liquor. In this way a physician becomes a party to every sale made upon his certificate. Nevertheless we are constrained to say that, unless there is open or tacit collusion between the druggist and the physician, so that the actual sale is unlawful because, though made upon a certificate proper in form, it is made in bad faith, the law is not so written as to make the conduct of the physician unlawful. It is not so written that an intention can be found to make a particular sale lawful as to the druggist and unlawful as to the physician. And the doctrine and the statutes which make accessories before the fact and aiders and abettors principals can have no application if the ultimate act of selling is lawful.

In the case at bar the testimony on the part of the people tended to prove guilty knowledge on the part of both physician and druggist — tended to prove an unlawful sale of liquor participated in by both druggist and physician. The information, however, as has been pointed out, is not framed upon any such theory. It does not charge any druggist with guilty knowledge of the conduct of the physician, or that the sale of liquor was unlawful because made with such knowledge. It does not charge conspiracy or collusion. Indeed, it does nob inform the respondent what druggist, if any, furnished the liquor. It is as well supported by proof that the liquor was procured of an individual as by proof that a druggist filled the prescription.

These conclusions require the conviction to be set aside and the respondent discharged.

It is so ordered.

Hooker, Moore, Blair, and Stone, JJ., concurred.


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    BIGELOW v. SHEEHAN.
    Attorney and Client — Compensation — Fraudulent Conveyances.
    The attorneys for a complainant who obtains a decree of specific performance for the conveyance of lands are entitled to a lien for their compensation upon the proceeds thereof, after a subsequent judicial sale on creditor’s bill and bill in aid of execution against their client, and where they were retained by one of the parties in interest for a percentage of the proceeds, and the parties were acting in concert to effect a common purpose, which all understood, their right to the stipulated proportion of the funds is enforceable against the one who, by the decree, was vested with the title to the premises.
    Appeal from Wayne; Mandell, J.
    Submitted April 21, 1910.
    (Docket No. 160.)
    Decided June 6, 1910.
    Creditors’ suit by Albert E. Bigelow and Charles A. Bigelow against Robert C. Sheehan, John L. Murphy, and other's. Petition by Alfred Lucking and Howard B. Bloomer for an allowance of attorneys’ fees under the terms of a decree entered in the Supreme Court. From a decree for petitioners, defendants appeal.
    Affirmed.

      Emmons & Helfman, for petitioners.

      Walker & Spalding, for defendants.
    A reference to the opinions of this court in Sheehan v. Farwell, 135 Mich. 196 (97 N. W. 728), and in Bigelow v. Sheehan, 150 Mich. 507 (114 N. W. 389), will serve here in place of a more extended statement of facts. The petitioners in the ease at bar claimed a lien upon the proceeds of the recovery in the principal suit for professional services, and by the decree of this court in the principal ease were expressly given leave to present their demand for allowance to the circuit court for the county of Wayne, in chancery, and to have the amount allowed to them paid out of the fund in court. They filed their petition, which was answered by defendants Murphy and Sheehan, and upon a hearing, at which testimony was introduced, a decree was entered allowing them the sum of $6,776.20 and interest thereon from June 9, 1907, a total of $7,623.22. Defendants have appealed.
    It is not claimed that petitioners are not entitled to fair pay for the services they rendered. It is claimed that no evidence of the value of those services was produced. The testimony relied upon by petitioners was offered to prove the case made by their petition, which was that on or about July 1, 1901, Calvin A. Cook and Robert C. Sheehan appointed and retained petitioners to begin and conduct to a final conclusion a suit to compel the Farwelis to convey to said Sheehan certain lands in Wayne and Montmorency counties, Mich.; that Cook personally retained petitioners, and Sheehan confirmed and endorsed his action. Petitioners, after being retained, and for the purpose aforesaid, filed a bill of complaint in the circuit court for the county of Wayne, in chancery, and conducted the suit to a conclusion favorable to said Sheehan. The agreement for compensation was that petitioners were to receive 20 per cent, of the result and outcome of the litigation, which was more than $30,000. They assert an equitable lien upon the lands and the proceeds of the sale of them. Their services were reasonably worth 20 per cent, of the recovery. Petitioners prepared their bill in the first instance with Cook as the complainant, but later concluded that Sheehan was the proper complainant, and in the bill which was filed he was so named. Sheehan signed the bill; Cook was made a defendant and employed counsel who answered the bill.
    The court below held the contract relation established. No testimony was introduced upon the subject of the labor expended or the value of the services rendered. There is no testimony tending to prove that defendants had any knowledge of the alleged contract until after the litigation was practically ended. It is said in the brief for appellants that the only theories according to which the contract and the decree can be sustained are:
    (1) That as creditors of Cook the transfer of the lands to Sheehan was a fraud upon petitioners.
    (2) That Cook, in making the contract, was Sheehan’s agent by previous authority or by ratification.
    (3) That the contract created a lien for the amount for which it called upon the fund in court.
    In asserting that neither of these theories is supported by facts, it is said that the effect of the decision in Sheehan v. Farwell was to vest the title to the lands in Sheehan, and the effect of the decision in Bigelow v. Sheehan was that Sheehan held the title subject to the claims of Cook’s creditors, defrauded by the transfer by Cook to Sheehan; that petitioners, who were Sheehan’s solicitors in the first-named case, cannot claim that they were defrauded by a transfer they sustained, have not shown that Cook was agent of Sheehan in making the contract or ever ratified his act; that the contract, unrecorded and unknown to Sheehan, cannot be held to create a lien upon the lands.
   Ostrander, J.

(after stating the facts). We are of opinion that in this ease, as in Bigelow v. Sheehan, it should be said that Mr. Sheehan was not a bona fide purchaser of the lands; that Sheehan, Cook, and Murphy were working together to effect a common purpose; that it is a fair inference that each understood what that purpose was. The finding of this court in that case was that Sheehan, Murphy, and Cook understood that Sheehan was, in fact, acting as trustee for Cook. It was said, also, that the decree in Sheehan v. Farwell is not res adjudicata of the validity of the title of Sheehan as to Cook’s creditors. If Cook made the contract with petitioners which they say was made, and the fact does not appear to be questioned, it is not very important whether Sheehan did or did not know about it. It is by virtue of it and of services performed in its execution, and in furtherance of a common purpose, that Sheehan is possessed of a title to the lands and their proceeds. As to the costs and expenses incurred by Cook to bring about the creation of a fund for Sheehan, Sheehan is still the trustee of Cook. In no sense were Sheehan and Cook adversaries. It would be inequitable to permit Sheehan, or Murphy, or both of them, to take the fund discharged of the cost of its creation, a cost which Cook agreed should be paid.

We affirm the decree, with costs to appellees.

Hooker, Moore, Blair, and Stone, JJ., concurred.


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    CHAMBERLAIN v. O’LEARY.
    1. Payment — Burden of Proof — Mortgages — Estates of Decedents.
    In a proceeding to foreclose a mortgage of a decedent, the burden of proving payment rests on the defendant.
    2. Same — Evidence.
    In a proceeding to foreclose a mortgage, which, with the note, was in decedent’s hands, evidence that some payments made were not indorsed on the paper, and that the last payment was for one hundred dollars, for which deceased gave a receipt in full, although upwards of seven hundred dollars apparently remained due on the note, with testimony of defendant’s son, who was then ten years of age, that defendant said he had come to pay the last hundred dollars on the indebtedness, and deceased stated that he would have to hunt up the papers and would have them discharged, is held not to establish the payment of all the debt, by a preponderance of the evidence.

      Appeal from St. Clair; Tappan, J.
    Submitted April 19, 1910.
    (Docket No. 65.)
    Decided June 6, 1910.
    Bill by Charles W. Chamberlain, administrator of the estate of James and Isaac Thompson, deceased, against Michael O’Leary for the foreclosure of a mortgage. From a decree dismissing the bill, complainant appeals.
    Reversed.

      Henry J. McKay auñ. James Cf. Tucker, for complainant.

      Cady & Crandall, for defendant.
   Ostrander, J.

The amount of the original indebtedness, the execution and delivery of the note and mortgage set up in the bill, the character in which complainant sues, are admitted. The sole issue raised by the pleadings is whether the debt evidenced by the note, payment of which is secured by the mortgage sought to be foreclosed, was paid during the lifetime of the mortgagees. The court below determined this issue in favor of defendant, and dismissed the bill. As both of the mortgagees died bsfore the bill was filed, and as the testimony of the mortgagor could not be received to prove payment, the court below derived little, if any, advantage from sesing and hearing the witnesses who were produced. "We have reached the conclusion that payment of the debt is not proved and refer, briefly, to the facts and rules which we think support this conclusion.

The note and mortgage were found by the administrator among other papers of decedent, James Thompson. The note is dated September 18, 1889, is made payable to James Thompson and Isaac Thompson, is due three years after date, is for $1,050, and draws interest at 8 per cent, per annum, payable annually. It contains a clause permitting payments of principal at the end of each year. When it came to the hands of complainant, the following indorsements appeared:

“Received one year’s interest and $96 on the principal September 18, 1890. Received $100, April 25, 1896. Received $50 January 12, 1897. Received November 27, 1897, $80. Received $100 December 8, 1898. Received $100, November 5, 1900. Received $50, November 11, 1900. Received $40, January 30, 1901. Received $70, October 11, 1901. Received $100, May 3, 1902. Received June 19, 1902, $50. Received July 16, 1902, $30. Received January 9, 1903, $50. Received July 18, $100. Received January 13, $100.”

The papers themselves, in the hands of complainant’s intestate, indicated that considerable of the debt was unpaid, as a computation will disclose. The burden of proving payment was upon the defendant. He produced receipts for each of the payments indorsed on the note except for the first two. He also produced a receipt dated October 19, 1892, for $70, and one dated May 15, 1895, for $100, which appear to be genuine, and these sums are not indorsed upon the note. The wife of defendant testified that she had seen a receipt, not produced, date not remembered, for $100, which was signed by both Isaac and James. All receipts which were produced were signed “James Thompson.” The receipt given for the last payment indorsed upon the note was produced. It is the evidence principally relied upon to prove payment of the debt in full. It appears to have been read into the record according to its form and in the printed record is given as follows:

“ Romeo, January 13, 1904.
“ Received of Michael O’Leary, one hundred dollars to apply on his note, secured by mortgage of even date. Payment in full January 13, 1904.
“James Thompson.”

A son of defendant, 10 years old July 17, 1904, testified at the hearing in 1909 that he was with his father when he made the payment in January, 1904 — the last payment. He saw his father give Mr. James Thompson money and saw Mr. Thompson give his father a receipt. He further testified that his father said to Mr. Thompson that he had come to pay him the last hundred dollars on the place. Thompson said it would take him some time to hunt up the papers, and he would have the mortgage and abstract and note sent to Port Huron, the mortgage discharged, and the papers sent on “to us.” This is the significant portion of his testimony. It is not claimed that the mortgagees had agreed to accept less than the debt and interest computed according to the contract and to law.

It is claimed that by producing receipts for money paid "but not indorsed upon the note it has been shown that the record made by the indorsements is not to be relied upon, and that the last receipt given by Thompson is a written admission that the entire debt was then paid, uncontradicted and unexplained except by the undischarged mortgage and the note in the hands of the complainant. Assuming that the receipt requires explanation, we think the testimony strongly shows that a mistake was made. It is just^as likely that the receipt which Mrs. O’Leary claimed to have seen, but did not produce, was a receipt for the second payment indorsed upon the note, as that it was for a payment not indorsed thereon. If it was a receipt for that payment, then defendant has produced receipts for all payments which are indorsed except the first one. Crediting defendant with all moneys indorsed and With $170 not indorsed, and computing the amount due in January, 1904, when the last payment was made, the result is $872.40. The payment made that day left the sum of $772.40 either unpaid or the payments wholly unaccounted for. If this amount was paid in sums such as constituted the other payments, there must have been many payments not indorsed and many receipts not produced. It is incredible that there was due, that day, a balance of just $100. We think the testimony of young O’Leary is entitled to little weight. He may have believed the facts to be as he stated them. But when it is considered how irregularly payments had been made, the length of time required to compute the amount due, the necessity (it is now claimed) for consulting something besides the note and its indorsements in making a computation, the fact, appearing from the testimony of the administrator, that decedent, James Thompson, had no record, book or other, except upon the note, of the payments which had been made, the improbability that a computation had previously been made to the date when defendant would make the next payment, the considerable amount which appears to have been then due, the somewhat equivocal language employed in the receipt, we are not convinced that the defendant paid the debt, in full, on January 13, 1904. The fact that no discharge was executed, and that the note was not surrendered, while not conclusive, must nevertheless be considered.

The decree below is reversed, with costs of both courts. Complainant may have the usual decree in foreclosure proceedings, to be proposed and settled according to the rule; the amount due to be computed as of the date of the decree. Upon the entry of decree the record will be remanded to the court below for enforcement.

Hooker, Moore, McAlvay, and Stone, JJ., concurred.


author: Moore, J.

text:
    PEOPLE v. McCALL.
    Intoxicating Liquors — Local Option — Criminal Law.
    Knowingly permitting a person in another’s private office, in his presence and without objection on his part, to drink from a bottle of whisky purchased by respondent, is a violation of law in a county which has prohibited the liquor traffic. 3 Comp. Laws, § 5413, et seq., Act No. 183, Pub. Acts 1899.
    Exceptions before judgment from Kalkaska; L’amb, J.

      Submitted April 21, 1910.
    (Docket No. 38.)
    Decided June 6, 1910.
    George McCall was convicted of violating the local-option law.
    Affirmed.

      J. L. Boyd, for appellant.

      Ernest C. Smith, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was charged with violating the local-option law in force in Kalkaska county by giving and furnishing to one David Yipond a quantity of spirituous and intoxicating liquors, to wit, whisky, on the 25th day of June, 1909, at the village of Kalkaska, Mich. The court refused to take the case from the jury, as requested by the respondent. The jury returned a verdict of guilty.

The important assignments of error are:

(1) Did the court err in refusing to direct a verdict of not guilty at the close of the proof on the part of the people when the people rested their case, as requested by counsel for respondent ?

(2) Did the court err in instructing the jury:

“ Now, gentlemen, I charge you as a matter of law that if you find from the evidence in the case, beyond a reasonable doubt, that the respondent, George McCall, took a package containing liquor, to wit, whisky, to the office of the livery barn in question, and undid the said package, and knowingly allowed, or permitted, said David Yipond to partake of said liquor, so brought to said barn by said respondent, in the presence of him, the said respondent, such a state of facts would constitute a giving and furnishing of intoxicating liquor within the meaning of, and in violation of, the local-option law now in force in this county.”

Upon the trial the sheriff testified as follows:

“I am the sheriff of Kalkaska county, and was such sheriff on the 25th day of J une last. I know the defendant, George McCall. I saw him on the 35th of June at the barn of William Hainstock, in the village, about the hour of 7 o’clock in the evening, or a little later. It was after the train came from the North. I saw David Vipond at this barn. McCall and Yipond were at the bam together. I saw liquor there. David Yipond was taking a drink out of a bottle [shows witness a bottle]. Yes, sir; I think that is the bottle. I took it away from McCall. When I first saw it [the bottle], Yipond had it taking a drink out of it. He then gave it to McCall, who said it was his. The bottle contained whisky.”

Cross-examination:

“Yipond was in the act of drinking when I came in. I don’t think there is a table in the office part. There is a bed in the back room — the room adjoining the office. I did not see any one in that room. The door was open. I opened the door to the office part and walked in, and saw Vipond with a bottle up to his mouth, taking a drink. Mr. Hainstock was standing right there, and Mr. McCall was there too. The office part is about 10 feet square. After Yipond took the drink out of the bottle, he gave it to McCall, and McCall put it in his pocket. I did not see Hainstock take’the bottle. I then arrested McCall and took the bottle away from him. I think McCall had been drinking. He acted like a drunken man. I did not see him drink. He had no difficulty in walking over to the jail.”

Redirect examination by Mr. Smith:

“Yipond said there that it was McCall’s whisky.”

Mr. Yipond was a witness for the people. His testimony was not very consistent. Among other things he said he just took the whisky, that it was not given to him by respondent. A reading of his testimony creates the impression that he was not willing to tell all of the transaction, and that he desired to shield the respondent. Mr. Hainstock was also a witness, but claimed not to see the drinking. At the close of the testimony for the people a motion was made for a directed verdict. When this was overruled, no testimony was offered by the respondent.

It is the claim of the respondent that the case is within People v. Peterson, 156 Mich. 235 (120 N. W. 570, 21 L. R. A. [N. S.] 134), and People v. Giddings, 159 Mich. 523 (124 N. W. 546). It is the further claim, and we quote from the brief :

“ The respondent and the two witnesses, Hainstock and Yipond, were in the private office of the witness Hainstock, and, if any liquor was drunk, it was in this private office of Mr. Hainstock, and no one present but the three parties. The respondent had come to this office with Mr. Hainstock to settle some account, and, even though we admit, for argument’s sake, that he did give Yipond a drink out of his bottle while in this private office in the presence of Mr. Hainstock and without objection on his part, would it be a violation of the local-option law in force in the county ? We submit that it would not.”

We cannot agree with counsel in this contention. The case is clearly in violation of the law.

The record is remanded to the court below for further proceedings.

Ostrander, Hooker, Blair, and Stone, JJ., concurred.