author: Christiancy J.

text:
    Daniel G. Grimm v. The People.

      In criminal cases, co-defendant when competent witness. Two of several defendants in an information, charging tliem jointly, were arraigned and plead not guilty. On the separate trial of one of these two, the other was offered as a witness in liis "behalf, hut the Court ruled out the evidence. Held, that there was no error in the ruling of the Circuit Court; that the act of 1861 did not change the common law as to the incompetency of a co-defendant in a criminal case to he a witness in favor of the defendant. — Pullen v. People, 1 Doug. Mich. 48.

      The case of Mortssey et al. r. The People, 11 Mich. 327, differed from the present one, in that in the former the wife of a co-defendant was offered as a witness, and the Court held that the statute expressly removed the common law disability arising from the martial relation; the object of the statute being, so fill* as it bore upon the question then presented, to place the husband or wife, with respect to competency, on the same footing as any other person not sustaining such relations to any of the parties; subject only to the qualifications in the 4th sec. of the act.

      Statement in criminal cases. The privilege of making a statement in a criminal case is confined to the person on trial.

      Presence of the pi'isoner at the trial. What is necessary to appear on the record. The record showed the prisoner’s presence on the first day, and when the jury was impannelled and sworn; and at its close when the judgment was rendered; and that at the latter period, being asked whether he had anything to say why judgment should not be pronounced against him, he alleged no reason to the contrary. During all the intermediate days of the trial, the record merely shows the entry of continuances in the usual form, -without referring to the presence or absence of the prisoner. Held, that this condition of the record is no ground of error; that the allegation of continuances indicates that it was with the incidents before described, of which the presence of the prisoner was one.

      Heard May 1st and 2d.

      Decided May 5th.

    An information was filed in the Court below, jointly-charging Daniel G. Grimm, (the plaintiff in error), John Clark, Jack Brady, George McManus, and James Johnson, with the offense of burglary; that said Daniel G. Grimm elected to be tried separately, and a separate trial was awarded him; that on the 19th day of January last, this case for the trial of the said Grimm came on to be tried, by a jury; that evidence was introduced on the part of the people, tending to show the guilt of said Grimm; that said Grimm called and offered said John Clark, a co-defendant, as a witness on his part and behalf; that the court refused to allow the said Clark to be so used as a witness; that to said refusal exception was duly taken by said Grimm; that said Grimm then offered said Clark for the purpose of having him, Clark, make a statement on the part of him, Grimm, and with like result, and that the trial resulted in the conviction of said Grimm.

      Lamed & Kebden, S. M. Cheever and O. LP. Wisner, for plaintiffs in error.
    1. At common law a co-defendant, jointly indicted, could not be examined as a witness for the defense until either acquitted or convicted; but we submit that by the statute of 1861 this disability is removed. The language of the act is— “No person shall be excluded from giving evidence in any matter, civil or criminal, by reason of crime, or for any interest of such person in the matter, suit or proceeding, in which such testimony shall be offered, etc.”' — Sess. L. 1861, p. 168; 2 Comp. L. §§ 4339-4340; 11 Mich. 327; 13 Id. 511.
    Under statutes and codes somewhat similar to ours, it has been held that the common law disability was removed, and that a co-defendant was competent as a witness for the defense when tried separately. —10 Grat. 708; 15 Ind. 249; 1 Geo. 610; 10 Iowa, 81; 5 Cal. 183.
    The policy of our statute is to abolish all objection to the admissibility of witnesses, and to refer the question of their credibility to the jury. The only limitation to this in criminal cases, as recognized in People v. Thomas, 9 Mich., seems to be a limitation based upon the inability of the Legislature to make a defendant a witness in his own behalf, on account of the Constitutional prohibition against such a privilege. With this exception, the intention of the Legislature in the act of 1861 seems to have been to abolish all disability.
    2. But this limitation does not apply to the question of the right of a respondent to make a “ statement.” The act expressly gives this right to him in his own behalf. There certainly can be no reason or justice in compelling him to remain silent when a co-defendant asks for such a “ statement.”
    3. It does not appear from the record that the defendant on trial was present from the 17th to the 20th day of January, or when the verdict was rendered, although the trial was proceeding during the whole time. In cases of felony, we submit, a defendant must be present. There can be no doubt on this point, and we cite no authorities. The prisoner must be present when the verdict is received, that he may have the jury polled if he chooses to do so. —11 Ohio, 472.

      A. Williams, Attorney General, for the people.
    1. 'According to the common law practice, a co-defendant in a criminal case cannot be a witness for and on behalf of one jointly indicted with him; and this, though the defendant offered as a witness be not on trial with him at the time.— Roscoe’s Crim. Ev. 153-4-5; 1 Greenl. Ev. §§ 358, 363, 379; 1 Denis C. C. 84; 10 Pick. 57; 10 Johns. 95; 5 Esp. 154.
    2. Act No. 125 of the Laws of J861 of this State, in no wise changes the foregoing rules of evidence. At most, it provides for the testifying of parties in civil suits; and for the party or parties accused in criminal cases, “to make a statement to the Court or jury,” when on trial, in his or their own behalf. — 2 Comp. L. §§ 4339-4342; Act No. 125, p. 168, Laws of 1861; 9 Mich. 314.
    3. Public policy could tolerate no other construction than the foregoing. To hold otherwise would be to incite and reward perjury, and facilitate the escape of the guilty from the just penalties of the law. And courts will not construe a statute against the plain and obvious dictates of reason, (7 Johns. 502); or so as to suffer it to be eluded, (15 Id. 381); or defeat its purposes, (9 Wheat. 81).

      M. M. Grofoot, also for the people.
    1. A co-defendant in a criminal case, named as such in the record, and an accomplice in the crime, before disposition of the case as to him, is an incompetent witness for the defendant on trial.
    If competent at all, it must be by force of the statute of 1861.—Sees. L. p. 168-169; 10 Johns, 95; 19 Wen. 377; 19 Miss. 674; 17 Ark. 327; 10 Pick. 57; 2 Va. 314; 15 Miss. 28; Yerger, (Tenn.) 431; 1 Minn. 207; 4 Id. 438-449; 7 Iowa (Clarke) 347-349-383; 1 Doug. (Mich.) 48.
    The admissibility of Clark’s testimony can only be claimed under the second section of the act of 1861.
    This section has received a construction from this Court, and in permitting parties to be sworn, has been held to apply to civil cases only. — 9 Mich. 314-315.
    The reasons given for the rule which excludes the testimony of accomplices for their co-defendant is the same as that given for the rule excluding other parties to the record, viz: — 1st. Interest in the event. 2d. Public policy. — 1 Phil. Ev. 36; 1 Wencl. 110-124; 1 Green. Ev. § 354; 1 Phil. Ev. 105-106-107 and notes.

    Another consideration should be suggested, which is of great weight: and that is the practice under the statute.
    Our act took effect 11th March, 1861, and ever since then the practice at the Circuits has been uniform in holding such co-defendant an incompetent witness. More than five years of practice has upheld the old rule under this act; and it would be impolitic to overturn it, unless-it clearly appears that the Legislature intended to change the rule.
    2. The second error assigned is, “ that the Court erred in refusing to allow John Clark to make a statement for and on behalf of said Daniel G. Grimm.”
    The bill of exceptions shows that the prisoner, (Grimm,) on trial requested that John Clark make a statement to-the jury for and on his behalf; there was no offer or claim that he should be permitted to make a statement on his own behalf.
    The statement referred to in the section, clearly refers to the statement of the prisoner on trial. The object of it is to give the prisoner on trial the privilege of making a statement in his own behalf in relation to the charge against him. — 9 Mich. 314-316-317; 13 Id. 355-511.

    3. There is no allegation or pretense that the prisoner was not present during all that time: only that it does not appear of record. The respondents, Grimm and Clark, were arraigned at the bar in open court, and plead to the information.
   Christiancy J.

The information was against Grimm, the plaintiff in error, John Clark, and three others, charging all jointly with the crime of burglary. Grimm and Clark were arraigned upon the information, and pleaded not guilty. Grimm was tried separately, and upon his trial called Clark, his co-defendant, who had not yet been tried, (and who therefore remained subject to trial upon the same information,) and offered to have him sworn as a witness in his behalf. This request was refused by the Court, and exception taken; and upon this arises the main question in the cause.

In Pullen v. The People, 1 Doug. (Mich.) 48, it was held that a husband whose wife was jointly indicted with another person, and neither acquitted or convicted, was not a competent witness for the other defendant, though the latter alone was on trial. This decision was based upon the express ground that one of two defendants, jointly charged in the same indictment, cannot, before conviction or acquittal, be a witness for the other, though the latter be separately tried. This case settled the law in this state, (if not previously settled,) in accordance with the overwhelming weight of authority at common law, both in England an(l the United States. And this must still continue to govern us unless the law upon this point has in some way been changed by the act of 1861, (Sess. L. 168-169,) amending certain sections of the Compiled Laws in relation to evidence. But it is insisted by the counsel for the plaintiff in error that this act has the effect to render a defendant, not put upon trial, a competent witness for his co-defendant, when separately tried; and he refers to the recent cases of Morissey et al. v. The People, 11 Mich. 327; and Annis v. People, 13 Id. 511, as tending to sustain this view of the statute. The latter case has no reference to the statute, nor any bearing, that we can discover, upon the point now under discussion. Separate informations were filed against the defendants; they were not jointly charged, nor parties to the same record; and we held in accordance with the uniform rule of the common law, that one, though not yet tried, might be a witness agednst the other. There was no question in that case whether one could be a witness for the other in any case. And it is hardly necessary to remark that in criminal prosecutions, the considerations which render a party a competent witness against a prisoner have very little bearing upon the question of his competency to testify in his favor.

In the case of Morissey and others, we held that, under this statute, the wife of a defendant in a criminal case is a competent witness for a co-defendant of her husband, jointly charged and on trial with him; and it is insisted that the same construction of the statute would allow Clark to testify for his co-defendant in the present case. We are unable to see how such a consequence can be drawn from that decision. That case did not raise the question of the competency of parties to testify in any respect. So far as it relates to the question of competency it was confined to the marital relation, and the question, whether the statute had removed the incompeteney springing from that relation. And we held that the provision of the statute declaring that “no person shall be excluded from giving evidence in any matter civil or criminal * * * by reason of marital or other relationship to any party thereto,”' expressly removed the incompeteney growing out of that relation. The object of the statute, so far as it bore upon the question there presented, was to place the husband or wife, with respect to competency, on the same footing as any other person not sustaining such relations to any of the parties, subj ect only to the qualifications mentioned in the 4th section of the act, (4342-as amended.)

But the grounds of excluding a party jointly charged in the same indictment from being a witness before conviction or acquittal for his co-defendant, at common law, are quite different from those excluding the husband or wife of a party. The reasons for the exclusion in the first case are, (among others), 1st, — That if a party jointly charged were allowed to testify for the other, both would be likely to escape conviction by perjury, for which the greatest possible temptation would thus be offered; and 2ndly, —As the party, if thus allowed to testify, could not be compelled to answer any question wbicb might tend to criminate himself, the substantial benefit of a cross-examination would be lost; and the witness being thus allowed to state those facts which might tend to aid the prisoner and screen himself, and to withhold those which would tend to the conviction of either, his testimony would be likely rather to conceal and pervert, than to elicit the truth.

The common law reasons for the incompetency of husband and wife were in part, their legal identity of person and interest, but principally, as a question of social policy to preserve domestic quiet, and the peace and harmony of families. This common law disability growing out of the marital relation has, (subject to certain specified qualifications,) been removed by the statute. But we are unable to discover any indication in the statute of an intention to remove the common law disability of joint defendants, parties to the same record, whether both or only one be on trial; and at common law as we have seen, the question is the same, whether tried together or separately. This statute does not allude to the subject of joint or separate trials, nor attempt to establish different rules in the two cases.

We held in People v. Thomas, 9 Mich. 314, that the intention of this statute of 1861, was to render parties competent as witnesses in civil cases only — that this was obvious by a comparison of this amendatory act with the statutes as they previously existed, and that a party could not, under this act, be sworn as a witness, in his own behalf; but that his right was confined to making a statement without oath. We see no reason for doubting the correctness of that decision.

We are referred to Lazier v. Commonwealth, 10 Grattan, 708 ; State v. Spencer, 15 Ind. 249; State v. Nash. 10 Iowa, 81; and Jones v. State, 1 Geo. 610, as tending to show the competency of the co-defendant in this case. But the first three cases were decided upon statutes essentially different from ours; and the last case so far as it may rest upon the common law, at least, is opposed to the great weight of authority.

We think the statute has left the question now before us as it stood at common law; and in this view the testimony of Clark was clearly inadmissible.

The jDlantiff in error also requested that Clark might be allowed to make a statement in his behalf to the jury, and the refusal of the Court to grant this request is assigned for error. But this point was, as we think, very properly abandoned by his counsel upon the argument. It is quite evident that this privilege is, by the statute, confined to the prisoner on trial.

The only remaining assignment of error is, that it does not appear on the record, that the prisoner was present in Court after the first day of the trial, until its close, (the trial having been continued from day to day for several days).

The record shows his presence on the first day, and when the jury were impannelled and sworn; and at its close when the judgment was rendered; and that at the latter period, being asked whether he had anything to say why judgment should not be pronounced against him, he alleged no reason to the contrary. During all the intermediate days of the trial, the record merely shows the entry of continuances in the usual form, without referring to the presence or absence of the prisoner.

We concur entirely with the New York Court of Appeals in Stephens v. The People, (19 N. Y. 549,) that this condition of the record is no ground of error; that the allegation of continuances indicates that it was with the incidents before described,' of which the presence of the prisoner was one — and this is all which is usually stated in such cases.

But it is quite apparent that there is no ground for suspecting the prisoner’s absence during any part of the trial in this case. A motion was made for a new trial upon four distinct grounds, of which the absence of the prisoner is not mentioned as one — an omission not likely to have occurred had he been absent during any part of the trial.

The record discloses no error in the proceedings or judgment of the Circuit Court. The judgment must therefore be affirmed.

The other Justices concurred.

Note. — The provisions of the Compiled Laws as amended by the Acts of 1861, (Sess. Laws, p. 168,) referred to by the Court in the foregoing opinion, are as follows:

Sec. 4339. — No person shall be excluded from giving evidence in any matter, civil or criminal, by reason of crime, or for any interest of such person in the matter, suit, or proceeding in question, or in the event of such matter, suit, or proceeding, in which such testimony may be offered, or by reason of marital or other relationship to any party thereto; but such interest, relationship, or conviction of crime, may be shown for the purpose of drawing in question the credibility of such witness, except as is hereinafter provided.

Sec. 4340. — On the trial of any issue joined, or any matter, suit or proceeding, in any Court, or on any inquiry arising in any suit or proceeding in any Court, or before any officer or person having, by law, or by consent of parties, authority to hear, receive and examine evidence, the parties to any such suit or proceeding named in the record, and persons for whose benefit such suit or proceeding is prosecuted or defended, may he witnesses therein in their own behalf or otherwise, in the same manner as other witnesses, except as hereinafter otherwise provided; and the deposition of any such party or person may be taken and used in evidence under the rules and statutes governing depositions, and any such party or person may be proceeded against, and compelled to attend and testify, as is provided by law for other witnesses. Nothing in this act shall he construed as giving the right to compel a defendant in criminal cases to testify, but any such defendant shall be at liberty to make a statement to the Court or jury, and may be cross-examined upon any such statement.

Sec. 4342. — A husband shall not be examined as a witness for or against his wife, without her consent, nor a wife for or against her husband, without his consent; nor shall either, during the marriage or afterwards, he, without the consent of both, examined as to any communication made by one to the other during the marriage; but in any action or proceedings instituted by the husband or wife in consequence of adultery, the husband and wife shall not be competent to testify.


source: Caselaw Access Project

author: Cooley J.

license: Public Domain

text:
    Samuel S. Taff v. John Hosmer and another.

      Appeal from probate of will. General issue. The plea of the general issue in the Circuit Court, on appeal from the probate of a will in the Probate Court, puts in issue the sanity of the testator, which is necessarily averred by the proponent of the will, and no special plea is necessary for that purpose. — Beaubienv. Oicott, S Mich. 9.

      Who has the affirmative of the issue ? The proponent of the will -has the affirmative, and must first make out his prima facie case, both as to the fact of the execution of the will and the competency of the testator. A defendant may be entitled to open the case when the pleadings .aje such as, in th£ absence .of proof, wquld establish the right claimed against him; but he can neither be required, nor is he entitled to open it for the purpose of disproving allegations, not yet in any manner supported, but which the plaintiff must prove in order to entitle him to a verdict.

      Order of testimony. What proponent may prove in rebutting. The proponents proved by the subscribing witnesses, the execution of the will, and that the testator was of sound mind. The contestant then put in evidence tending to show a want of testamentary capacity, and rested his case. The proponents were then allowed, against objection, to go fully into the question of sanity, not by way of reply merely, but to put in affirmative evidence as fully as if the ground had not been covered by their evidence at the outset. Held, that this course was properly allowed, and that the proponents were at liberty to rest upon a prima facie case, until evidence was adduced tending to show unsoundness of mind in the testator, and, that then they could go fully into the proofs of soundness.
    Proponent, when may opten and close the argument. The right to open and close the argument belongs to the party who has the right to open the proofs, and that belongs to the proponent whenever there is any portion of his case which ho is required to support by evidence. The proponent’s right in this case was therefore unquestionable.

      Charge of the Court. Error in fact not presumed. The Court below in charging the jury stated that “ the only issue now presented and in dispute is, whether the will in question is the will of C. W. J.; that is, whether at the time it was executed he had a sound and disposing mind and memory.” Objection was made to this and all other parts of the charge, without the attention of the Court being specially called to the error of fact, if it was an error.

      Held, that this expression of the judge related to the issue made by the evidence on the trial, and not that made in law by the pleadings; and that nothing appearing in the record to show that it was not true in fact, it will be presumed to be correct.
    If, in fact, anything besides competency was disputed, and contestants thought this statement likely to lead the jury to overlook their objections on other points, it was their duty, instead of taking this general exception, to call the judge’s attention to any other branch of the case in dispute, that he might have an opportunity to correct the error.

      Heard April 17th.

      Decided May 5th.

    Error to Wayne Circuit.
    This was an appeal from the decree of the Probate Court of Wayne County, admitting to probate the last will and testament of Cyrus W. Jackson, deceased. In accordance with an order of the Circuit Court, the proponents filed a declaration, in which they averred the execution of the will, and that the testator was of sound mind.
    To this declaration the contestant pleaded the statutory general issue, and also special pleas, denying the soundness of mind of the testator.
    ITnder the charge of the Court the jury rendered a verdict sustaining the validity of the will; and the contestant brought the case by writ of error to this Court.
    The facts appearing on the trial, and the charge of the Circuit judge, appear in the opinion of the Court.
    The errors assigned and insisted upon-in this Court on the argument, were as follows:
    1. Said Circuit Court erred in refusing to allow the contestant to open the case to the jury, and to open the case in putting in testimony on the question of the mental soundness of the testator.
    2. Said Circuit Court erred in allowing the will to be read in evidence before the proponents had given in their whole evidence as to the soundness of mind of the testator.
    3. Said Circuit Court erred in allowing the proponents, after the contestants had rested their case, to introduce a great quantity of affirmative evidence in regard to the soundness of mind of the testator.
    4. Said Circuit Court erred in refusing to the contestants the right or privilege of opening and closing the argument of the case to the jury, after the entire testimony was introduced, on the question of soundness of mind of the testator.
    5. The Circuit Court erred in making the four charges, and each of them, as requested by the counsel for the proponents, and in refusing to change the same, as requested by the counsel for the contestants.

      Levi Bishop, for plaintiff in error.
    1. TJpon the issue formed by order of the Circuit Court, the contestants had the right to open the case to the jury before the introduction of the evidence. A “ painful conflict of judicial decisions ” on this question is noticed in the case of Beaubien v. Cicotte, 8 Mich. 13. In the present case the proponents averred the soundness of mind of the testator, as this was required to be done in the pleadings, by the opinion of the Court in the case above cited. This rule is thus laid down with reference to the pleadings solely. We insist that when we come to the proofs, the presumption of law, that the testator is of sound mind, prevails; and that the party who contests that fact, being compelled to prove unsoundness affirmatively, has the right to open the case.—Redfield on Wills, 44, note 30.
    On an appeal from the Probate Court, the presumption is in favor of sanity, and it is for those who aver the contrary to prove it. — 7 Gray, 71; Redf. on Wills, 45, § 28; Id. 46, 47, 48.
    2. We also insist that, having the affirmative of the issue on the question of sanity, we had a right to the opening in the introduction of testimony. — See case cited ; Redf. 46-49.
    3. The proponents did in fact introduce, in their opening, evidence of the soundness of mind of the testator; and we claim that, having done this, they were bound to introduce their whole evidence on that point, before they rested. — 8 Mich. 9; Redf. 30-50.
    4. The first point charged by the Court was erroneous. Most clearly, the due and legal execution of the alleged will was a question in issue, especially raised by the pleadings, and was to be passed upon and found, one way or the other, by the jury. The Court in his charge took that question away from the jury. No matter how clearly the will may have been proved, it was for the jury to pass on, and the court ought to have left the question to them. To take, it away from them, or to charge that it was not in issue, or to charge that another issue was the only one in the case, was erroneous.

      D. Bethune Duffield, G. V. N. Lothrop, and C. I. Walker, for defendants in error.
    1. There is no error in the rulings of the court as to the right of the appellants to go forward, or the right of the appellees to put in further proof as to sanity, after the appellant’s evidence was in. At all events this is a matter of discretion on the part of the Circuit Judge, with which this Court will not interfere.
    “ The mode of conducting trials, the order of introducing evidence, and the times when it shall be introduced, are matters properly belonging to the practice of the Circuit Courts, with which this Court ought not to interfere.” — 14 Pet. 448; 1 Black. 227.
    This Court have decided that the propounder of the will must aver the sanity of the testator. Whether that sanity must be proved, or will be presumed, is a question on which authorities differ.—8 Mich. 9; 10 Am. L. Reg. 547.

    This question has been very fully examined in Bedf. on Wills, p. 30-50. The practice seems in accordance with the course pursued in this case. — 7 Pick. 94; 2 Gray, 532; 1 Id. 72.

      2. The ruling upon the question of sanity was laid down with clearness, and is, at least, sufficiently favorable to the appellants. — 12 Mich. 459; Redf. on Wills, p. 103, 124-130, and cases cited.

   Cooley J.

Several questions of practice arise in this case in regard to the order of proceeding in the Circuit Court on the trial of appeals in testamentary cases. Hosmer and Bissell were proponents, in the Probate Court, of the will of Cyrus W. Jackson, for Probate; and it appears by the record that the will was allowed by that Court, and that Taff, who was sole contestant, appealed.

The pleadings on the part of the proponents in the Circuit Court, were in conformity to the ruling of this Court in Beatir bien v. Gicotte, 8 Mich. 9, which required an allegation that at the time of the execution of the will the decedent was of sound mind. The contestant pleaded the statutory general issue, and also denied, specially, the soundness of mind and competency of the decedent. This special plea, we apprehend, was entirely unnecessary, and does not in any way affect the case. Sanity is involved in the due execution of a will; and even if it were not, the general plea would put it in issue where it is necessary for the proponents to aver it. The contestant also denied, specially, the execution of the will by Jackson; and also that the proponents, who are named executors therein, were suitable persons for that trust.

It appears that immediately on a jury being sworn, the contestant claimed the right to open his case to the jury, and introduce his testimony before the case on the part of the proponents should be gone into. The Circuit Judge denied the right, and the contestant excepted.

We are referred to no authority which would sanction the course here proposed, and it cannot be seriously argued that it would be correct practice. The formal execution óf the will was not only not admitted, but it was specially denied by the pleadings; and the offer of the contestant proposed to take the case into his own hands at a stage when there was nothing for Mm to contest, and when, if the case was submitted without evidence from the proponents, he would be entitled to a verdict against them, as of course. To state the position is to demonstrate its fallacy. A defendant may be entitled to open the case when the pleadings are such as, in the absence of proof, would establish the right claimed against him; but he can neither be required, nor is he entitled, to open it for the purpose of disproving allegations not yet in any manner suppor-, ted, but which the plaintiff must prove in order to entitle him to a verdict. If the contestant had the right to open, he would equally, at Ms option, have been entitled to a verdict; for he need only abstain from putting in any evidence, and the proponents, having none to reply to, would be entirely excluded from giving any. The objection thus taken is therefore manifestly unsound.

The real questions, however, which the contestant has presented for decision, arise more properly upon subsequent rulings, and relate to the issue on the point of sanity, and on the right to open and close the argument. It appears that the proponents, being allowed to go forward with their evidence, confined it to an examination of the subscribing witnesses, who testified to the formal execution of the will, and that Jackson at the time was of sound mind. The contestant then put in evidence tending to show a want of testamentary capacity, and rested his case. The proponents were then allowed by the Court, against the objection of the contestant, to go fully into the question of sanity; not by way of reply merely, but to put in affirmative evidence as fully as if the ground had not been covered by their evidence at the outset. And at the conclusion of the proofs, the proponents were allowed also, .against objection, to open and close the argument.

It is inferrible from the record that the Judge did not allow the proponents to put in the affirmative evidence of Jackson’s sanity, after the contestant had rested, as a matter of discretion merely, but on the ground of legal right; and error is, therefore, properly assigned on his ruling.

There can be no doubt that the practice followed by the Circuit Judge, in this case, is that which has always prevailed in this state. The party assuming the burden of establishing a, will, has not supposed himself bound, in his opening, to go further than to give evidence, by the subscribing witnesses, of those facts which would make out, prima facie, a valid testamentary instrument; and has left all further evidence on the subject of mental capacity to be brought in by way of answer to that adduced by the contestant. The evidence at the open ing has usually been of a formal character, and the proponent has confined himself to inquiries of a general nature respecting the signing and attestation, and whether, at the time, the party appeared to understand the business in which he was engaged. He has not been required to put in his whole case on the question of mental competency before resting, and the cases are probably exceptional, where he has gone beyond calling the subscribing witnesses, unless they failed to testify to such facts as would establish a pn'ima facie case.

So far as the order of proof is concerned, we cannot, in the least, doubt that this practice is altogether sensible and correct. To prove that the decedent was not insane, is to prove that an exceptional state of facts did not exist; in other words, it is to prove a negative; and on general principles very slight evidence only, should be demanded of the party called upon to take the burden of proving such a state of facts. — Stephens v. Young, 9 Mich. 500. And this evidence is generally with entire propriety confined to the time when the will was executed ; the subscribing witnesses being allowed to express their opinions upon what they observed at that time, however limited may have been their opportunity for observation, and not being required to go further, except upon cross-examination. The defense then takes the case, and enters upon proof of the alleged ineompetency. But now, although all the proofs are to point to the decedent’s condition at the moment when the will was executed, from the very nature of the case the evidence will almost always immediately diverge widely from that which has been put in by the proponent, and instead of being confined to rebutting the prima facie case by the observation of other witnesses at or near the same period of time, it will bring into the case new facts,'exceedingly diversified in their character, relating to periods of time widely apart, and which could not possibly be anticipated in all their piarticulars by the proponent when he gave his testimony. The contestant’s evidence, instead of assuming the ordinary features of rebutting evidence — which is commonly directed to the same point of time as that which it rebuts —now brings before the Court the whole life of the decedent for a long period of time, and a long array of circumstances not in the least connected with those stated by the witnesses in chief, excejff as inferentially they may tend to show that the decedent’s condition could not have been what was stated by those witnesses, inasmuch as it appeared to be different at other periods. How "wide shall be the range of inquiry by the defense, is a question addressed to the judgment and discretion of counsel, and not at all depending upon the evidence put in by the proponent. It covers facts, observations, and ojfinions; and in cases of difficulty, not even the contestant himself could anticipate before entering upon his case, the precise bounds it would be proper to set to his inquiries, or how far the minute facts and apparently trivial circumstances testified to by one witness might make it important to put others upon the stand. The defense, therefore, are seeking- to disprove the main fact shown by the proponent by proving a vast number of new facts, relating to other times and conditions ; the testimony being affirmative in its. character though directed in its inferences to the establishment of the negative fact of mental incompetency. All rules of evidence are designed to elicit the truth; and it is obvious that to require the proponent to anticipate, at his peril, the case that would be shown by the defense, would, in many cases, be equivalent to a denial of justice. For although there would still be a right to give rebutting evidence, this, in the sense in which rebutting evidence must then be understood, would be of little value, since it must be confined to disproving the facts and circumstances shown by the defense. But the facts in such a case are only important for the inference to be drawn from them; and the inference must generally be rebutted not by disproving those facts, but by showing others from which the contrary inference is drawn. And what other facts, or even what class of facts it shall be important to show, cannot be known until the defense is in, so that if the proponent should be required to go forward with all his proofs, he would often be found to have occupied the time of the Court with evidence made immaterial by the course subsequently taken by contestant’s proofs, and which entirely failed to anticipate the defense.

Tn point of fact, the evidence which the proponent puts in at the outset, only answers to that inference which the law draws in favor of sanity when any other act is in question; and the course which the case assumes is not different from what it would be if the proponent could rest upon a presumption of competency until it was overthrown by the contestant’s proofs. Where a party claims through a deed, which is assailed for incompetency in the grantor, the burden is upon him to establish the deed; but his prima facie case is made out when he has put in the formal proofs of execution, these being supplemented by the legal inference of competency. If the defense then gives evidence tending to show mental unsoundness, the plaintiff cannot be precluded from going fully into the question with his proofs, by the fact that at the outset a case was made on his behalf, which covered that point. And where a tax title is assailed for defect in the proceedings, it can hardly be doubted that the party claiming under it is entitled, by way of reply, to go into affirmative evidence of regularity, notwithstanding he made a prima facie case at the outset by the production of his deed. He has a right to rest upon this prima facie showing, until evidence assailing it has been given; and the case is then fully open to his proofs.

The question, of the right to go forward in the argument is usually settled when we have determined who has the affirmative of the issue. The question is not affected by the fact that on some parts of the case the other party may be required to assume the burden of proof, or that even as to the main branch of the case the party having the negative of the issue may be required to establish an affirmative case. The right to open the argument belongs to the party who has the right to open the proofs; and that belongs to the plaintiff whenever there is any portion of his case which he is required to support by evidence. — Booth v. Millns, 15 M. and W. 669; Price v. Seaward, Car. and M. 23. If his claim is met by the general issue the right is his, in all cases; and it can make no difference that special defenses are interposed, if in fact the general issue covers them. Special pleas interposing such defenses would be demurrable by common law rules. —■ Mr. Baron Alderson in Amos v. Hughes, 1 M. and Rob. 464, gives as the proper test of the right to begin, the question, which party would be successful if no evidence at all were given ? — and in testamentary cases this, under our statute, when testamentary capacity is denied, would always be the contestant, even if the formal execution of the instrument was admitted. The proponent ¡has therefore not only the affirmative of the issue in point of form, but tbe burden of proof as to tbe whole case rests upon him; and if no proofs are put in by the other party, he would still not be entitled to a verdict if he had failed to put in proofs extending to each branch of the case. His right to open and close the argument is therefore unquestionable.

Another error is assigned upon the charge of the Court. It appears that among other things the Judge told the jury that “The only Issue now presented and in dispute, is, whether the will in question is the will of Cyrus W. Jackson; that is, whether at the time it was executed he had a sound and disposing mind and memory.” Objection was taken to this, with all the other parts of the charge, by an exception designed to be distributive in its apjilication, but which did not call the attention of the Judge specially to the error supposed to be embodied in any particular portion. It is possible that this objection, when made, was well based; but the record before us does not disclose any error. The statement of the judge which is excepted to has reference, evidently, not to the formal issue in the case, but to the point actually disputed on the trial; and he is calling the attention of the jury, not to the points which will be covered by their verdict, but to the particular fact which the parties have been contesting before them, and to which the opposing evidence has been directed. He speaks of the point in dispute as being Jackson’s competency; as if the other facts, though covered by the issue, had not been brought into question on the trial.

So far as we can judge from this record, his statement was entirely correct. It is to be inferred from the recitals in the bill of exceptions, that the defense gave evidence on the question of competency, and then rested their case; that they put in testimony to no other point; and as the bill states that the subscribing witnesses gave evidence teuding to show the due execution of the will, there is nothing here to lead us to infer, — if, in fact, we had a right to presume error, — that any point was made except upon mental capaoity. The statement was a statement of fact, and not an instruction upon a point of law; and as it related to what was taking place in their presence, the jury knew whether it was true or not as well as the Judge. If in fact anything besides competency was disputed, and counsel thought this statement likely to lead the jury to overlook their objections on other points, it was their duty, instead of taking this general exception, to call the Judge’s attention to any other branch of the case in dispute, that he might have an opportunity to correct the error. The error, if there was one, must have been one of inadvertence; and if parties come here for the correction of such errors, instead of affording an opportunity in the Court below, all reasonable inferences from the record should be drawn against them. But it is not necessary to apply any such rule here, as the bill of exceptions, in all that it discloses of the proceedings on the trial, supports this statement of the Judge.

We find no error in the record, and the judgment must be affirmed.

The other Justices concurred.


author:
Campbell J.
      Cooley J. Cooley J.

text:
    People ex rel., Dickinson v. Thomas L. Sackett.

      Quo WaA'rardo. When nexo trial granted. When issues in Quo Warranto are sent clown to tlie Circuit to be tried, a refusal to grant a continuance will be no ground for a new trial, unless it is made to appear affirmatively that the party aggrieved has been improperly deprived thereby of material testimony, which he would otherwise have been able to obtain; and the materiality must be shown.
    If a new trial can be granted at all, on a claim that the verdict was against evidence, when the Judge, who tried the cause, certifies that he was satisfied with the result, it can only be, when, from the evidence reported, there can be no doubt of the impropriety of the verdict.
    A. new trial will not be granted upon the ground of newly discovered evidence, unless it is of a very clear and satisfactory character, and such as will probably seriously affect the result, if admitted.

      Witness, when maxj Toe contradicted. When a witness is recalled after the case has been closed on both sides, and asked by the Court upon the application of either party, when a dispute arises, to state what he had sworn on the stand upon a given fact, and his answer agrees with what the Judge certifies it to have been before, it is not error to refuse to permit another witness to be called to contradict him on the fact in question.

      Motion to amend pleadings, when denied. When a party seeks to amend his pleadings upon a given point, and his affidavit shows that the plea would not accord with the facts, his motion must he denied.

      Inspector's of elections, effect of irregularity. When inspectors of elections postponed the canvass of votes against the direction of a statute requiring an immediate canvass, their conduct severely condemned.
    Irregularities on the part of election officers do not of necessity destroy the election, although they may require it to be subjected to a rigid scrutiny.

      Heard May 20th.

      Decided June 1st.
    The motion for a new trial of the issues of fact in this cause, and for leave to amend the pleadings therein, which was heretofore argued, (seep. 243 ante), was now re-argued upon the affidavits filed for and against the motion, and upon the report of the Cii'Cuit Judge of the Sixth Circuit of the proceedings in the Circuit Court, for the county of Macomb, upon the trial of said issues of fact.

      A. B. Maynard, for the motion.

      Wm. P. Wells and G. V. N. Lothrop, contra.
   Campbell J.

This is a case wherein the relator is contesting with the respondent the title to the office of Register of Deeds for Macomb County, by proceedings under an information in the nature of a quo warranto. The pleadings admit that the relator was returned as having the majority of legal votes, but issues are tendered setting up several irregularities and mistakes, which seem to have been confined chiefly to the towns of Clinton and Sterling. Upon the pleadings several issues were framed and sent down to Macomb County for trial, where a jury in January last made separate findings on each, which were returned to this court. A motion was made by the respondent, early during the present term, for a new trial, which was based upon alleged errors in the ruling of the Circuit Judge, and upon newly discovered evidence, and upon a claim that the verdict was against evidence. Upon the hearing of the motion we ordered that the parties should obtain a report from the judge who tried the cause, and that the motion should be suspended until the report was brought in. That report is now on file and the matter has now been re-argued upon the several points raised.

The first ground relied upon is that the Judge improperly refused a continuance. An affidavit was presented to Mm on the first day of the term of his court, showing in the usual form the absence of a witness supposed to be material. He expressed .an opinion that he could not, under the order of this Court remitting the issues for trial, continue the cause over the term, but gave an adjournment of a week. On the adjourned day he was asked whether he adhered to his opinion, as the respondent proposed, if he did not, to make a further showing of the absence of witnesses, in order to renew the motion for a continuance. The Judge adhered to his former opinion, and did not inquire into the merits of the first affidavit, and no further affidavits were offered.

The order of this Court was not designed to prevent any continuance, where justice might require it to be granted, and under such a ruling as was made, we think a new trial should be granted, if it should appear that the refusal to continue had deprived the respondent of any material testimony; and we do not think the fact that no additional affidavits were presented to the Judge on the adjourned day, should prejudice him, when he was notified they would not be considered. But the affidavits now before us do not show that any material testimony was lost by the denial of a continuance. And as respondent is the only one who is able to inform us what witnesses he had discovered whose testimony he desired to secure by such continuance, it was incumbent upon him on this motion to name them and show wherein their testimony would have aided him. There are but two witnesses named as being material witnesses of whose testimony he might have made use had time been granted him, and those witnesses now appear very plainly not to have been material in his behalf. As we are not shown in any way that the ruling of the Judge was at all prejudicial to the respondent, he is not entitled to a new trial by reason of the erroneous view taken of the order transmitting the cause for trial.

Upon the trial the ballots oast in the town of Clinton were examined and counted before the court and jury, and three votes were found to have been allowed in favor of Dickinson, which should have been allowed to Sackett, whose slips had been overlooked in the canvass. It was further claimed that it would appear from the ballots that the name of Dickinson had been erased from two ballots which had nevertheless been counted in his favor. The judge, .upon objection, refused to allow that inquiry to be pursued, because it was not within any of the issues. The respondent now sets up what he claims to have been the facts in this matter, and moves for leave to amend the pleadings and issues, so as to remedy the deficiency. The point was foreign to the issues framed, but we think it proper to consider how the real facts stand on the respondent’s affidavit, in order to determine the propriety of passing upon the new motion. In his affidavit Sackett shows that there were 510 ballots cast in Clinton; that of these there were 284 purporting to be straight Democratic tickets, on three of which respondent’s name had been pasted over that of the relator. A second package, purporting to consist of fifty split Democratic tickets, were thirty-six for Sackett, and thirteen for Dickinson, and from the remaining one Dickinson’s name had been erased. The package of straight Republican tickets, 144 in number, were all in favor of Sackett. The split Republican tickets, thirty-two in number, were twenty-five for Sackett, and seven for Dickinson. There was but one ticket erased, all the others being sworn by Sackett to have been as above stated. The names of the candidates 'for other offices were printed on the same ballots. It appears from Sackett’s affidavit that of these 510 ballots 301 were correctly given for Dickinson, 208 for Sackett, and one with an erasure which he claims -should vitiate it. But it appears from the official canvass that while there were 510 ballots cast, only 509 were counted for Sackett and Dickinson, and one was thrown out, so far as the vote for Register was concerned. It is evident, therefore, that this erased vote was not counted, and no occasion can arise for making any further issues dependent on it, if they should be deemed admissible otherwise, which we do not now decide.

It appeared from the testimony introduced by the respondent, Sackett, that in the town of Sterling there had been one vote too many found in the ballot box, as shown by the canvassing, and that a ballot was thereupon withdrawn in the usual way. A witness, Brownell, one of the Board, had testified that the ballot withdrawn was found to be a Republican ticket. After the case was closed, a dispute arising whether Brownell had testified it was a “ Republican” or a “ straight Republican” ticket, he was recalled, under objection, and asked by the Court to state what he had testified to, and replied that he had stated it was a “ Republican” ticket, and had not said it was a “ straight Reprablican” ticket. Respondent thereupon offered to call another witness, Sumner, to show that it was, in fact, a straight Republican ticket; but the Court refused to permit it. Had Brownell been called at that stage of the trial to prove any new fact, we should feel disposed to hold that it should have been allowed to be met by counter evidence. But he was only called to repeat what he had said before, and the Judge certifies that his previous testimony was what the witness said it was. There was, therefore, no propriety in undertaking to introduce what would have been new and independent proof, and the Judge was right in excluding it.

It is also claimed that the verdict was against evidence. It appears that the case was fairly presented. There was some conflicting testimony, but the Judge who tried the case was satisfied with the finding, and we discover nothing which convinces us that the jury were not warranted in arriving at their conclusions. If the finding of a jury, which is satisfactory to the Judge who tried the cause, can ever be set aside as against evidence, it must be under very peculiar and convincing circumstances. We do not find such in the present case.

The only remaining ground is, that there is newly discovered evidence. .Two witnesses are named. One, Levi J. Stickney, knows nothing ivhich could have affected the finding. The other, Waters, would have been a competent witness, and his testimony would not be immaterial. But it is not of such a character that we can say we feel convinced that it would be at all decisive. After a full trial, newly discovered evidence, in order to warrant setting aside the verdict, should be of the most satisfactory character. The witness, according to his own showing, has made and sworn to an affidavit which he knew to be incorrect, upon the faith that the Notary would subsequently correct it. From a witness who is so careless, we should require a very clear showing, before we could properly open a verdict to permit him to testify in the cause. But we do not think the case made sufficient in itself, and do not, therefore, govern our action by the fact that he has been heedless in his statements. We think enough is not shown-to warrant us in disturbing the finding.

There is no excuse for the conduct of the Inspectors of Sterling in adjourning the canvass of the ballots, contrary to the plain directions of the statutes, which were expressly designed to guard against fraudulent tampering with votes before counting. This conduct was probably the chief cause of the present litigation, and we think it gave rise to a necessity for subjecting the vote of that town to a very careful scrutiny. But as this matter was very fully covered by the issues, and the jury have passed upon it, and the testimony was such as to authorize their finding, we see no occasion to disturb the verdict.

The motion for a new trial and for leave to amend the pleadings must be denied.

Martin Ch. J. concurred.

Cooley J.

The affidavit of defendant to show errors in the canvass of Clinton, not corrected on the trial, does not, to my apprehension, establish that fact; and we cannot, therefore, grant a new trial based upon that branch of the case. The Circuit Judge clearly misapprehended the order sending down the issues for trial when he decided that he had no power to grant an adjournment; and for this error of law a new trial ought to be granted, if there was any reason to suppose the defense had been prejudiced in consequence. But it is quite clear from the affidavit of Finch, not only that due diligence had not been used to procure his testimony, but also that if procured it could have been of no service; and in the shape in which Koth’s statements appear before us, I do not think we should be warranted in opening the case on any supposition that his' evidence would be of weight in it. These are the only witnesses in respect to whom it can be claimed that a continuance should have been granted. As declining to allow Sumner to be called was clearly matter of discretion, the case must now depend upon the showing of newly discovered evidence as to frauds in Sterling, and upon the objection that the verdict is against the evidence. Upon the latter point I feel bound to say that if the case were one where the Court, upon the evidence as spread out upon paper, was at full liberty to pass upon the facts, in my opinion it would, be our duty to grant a new trial. The facts seem to be that the inspectors of election in Sterling, at the close of the poll, instead of immediately proceeding to a canvass of 'the votes in the presence of the electors, as the law required, adjourned’that duty to a late hour in the forenoon of the next day, when they proceeded to make up their certificate which has probably been accepted as official since. The law does not authorize such an adjournment ; but on the contrary, its mandatory provision is so clear and plain, and based ..upon reasons of so imperative a character, that-any such/excuse, as is offered here, would be idle and frivolous if interposed as a defense to a prosecution of these inspectors for criminal non-feasance. The change from the old law, which allowed adjournments, was based upon a profound conviction in the public mind, that these adjournments afforded the opportunity for frequent and gross frauds upon the elective franchise, which could never be fully brought to light, and very rarely punished. Indeed, while the adjournments afforded full opportunity for the fraud, there was usually no means whatever of doing anything towards correcting it, except by putting the electors themselves upon the stand and compelling them to disclose for whom they voted. But this course is also exceedingly dangerous, as Avell as distinctly opposed to the policy of our election laws, which are designed to throw around every man’s ballot the protection of inviolable secrecy. We know from common experience that a large proportion of those electors who do not vote the straight party ticket, are usually unwilling that fact should be known; and that many who do, have frequently as good reasons for not disclosing the real facts. And any investigation as to the actual votes cast, is almost certain to bring out prevarications, if not perjuries, such as, I trust, are rare in legal investigations on most subjects. Nor is this all; for the temptation to actual fraud and corruption on the part of candidates is never so great as when it is known precisely how many votes will change the result; and the man who will sell his vote before election would quite as readily sell his testimony afterwards, especially as'in most cases there is no possible means of detecting perjury when committed.

But these inspectors not only adjourned the canvass, but they failed to surround the ballots, in the mean time, with any of those precautions which would have been reasonably expected of them. The box had upon it an ordinary lock, which any one would probably have found a key or other implement to open, on very brief search. A paper was wafered over the opening, but this would be, so easily removed and replaced, that it would be the height of presumption to attach impontance to the negative evidence that the next morning there was no appearance of its having been disturbed. Instead of one of the inspectors keeping the box within his own control, where he could have a constant oversight of it, it was deposited by him on a table in a lawyer’s office, where it remained until the next day. It is not suggested that any precaution was taken to guard it there, beyond the fact that one of the inspectors took a key to the office door; but as the occupant of the office also retained a key himself, it is apparent that this, for any purpose of protection, was entirely an idle ceremony. Unless the office was more perfectly protected from violation than the evidence informs us, it is not at all probable that its occupant would have left moneys or other valuables exposed upon the table as this box was left. He was a candidate upon one of the tickets, but was aware that the course which was being taken was improper, and had advised the inspectors that it was their duty to proceed to a count of the 'votes at once.

The adjournment that was had was sufficiently long, so that parties interested might have ascertained the result in the rest of the county, and known precisely the extent of the fraud necessary to change the result. No reason is assigned for adjourning to so late an hour, but there was every reason, commonly influencing men taking an interest in elections, to induce the earliest convenient count of the votes; especially as the election proved, and was probably expected to be a close one.

. Now there is nothing in all these circumstances which fixes dishonesty upon these inspectors, or which is inconsistent with just intentions on their part. They only show that while distinctly disobeying the law, they took no proper precautions to prevent that disobedience leading to fraud. But it was not necessary to show fraud in order to cast discredit upon their subsequent certificate of the result.' For sixteen or eighteen hours, when they made their canvass, the ballot box and the ballots had been neither actually nor constructively in the possession of the law or of its officers. The box had been left, as I have stated, in a public office. One of the inspectors retained a key to the office, but he could not, by virtue of that fact, be held constructively in possession, when the owner and occupant not only retained a key, but also the general possession. Moreover, any constructive, legal possession which officers have, ceases when they make a disposition of the thing possessed, which the law forbids. At' that point, the legal presumption which supports their possession and sustains their acts, ceases. In the absence of any showing to the contrary, the law presumes that an official has performed his duty, and that all has been rightly and properly done; but there is no room for presumption w;hen the contrary appears. The canvass made by these inspectors the day succeeding the election, was an unofficial act. They get their whole power to canvass and give certificates from the statute, and that only empowers them to canvass and ascertain, and declare the result officially, immediately on the closing of the poll. There is no room for saying that this statute is merely directory; the change from the old law is significant, and was adopted not only to prevent frauds, but also to make the public witnesses to the fairness with which our election laws are administered.

The extreme uncertainty and dangerous character of evidence of electors in regard to their votes, was forcibly stated on the argument, and I assent fully to all that was said. In principle, such evidence is only admissible because absolutely the only — though exceedingly doubtful and unsatisfactory ■— means by which gross frauds upon the ballot box can possibly be detected. But if such evidence is unsatisfactory, how much more so is the ballot box itself, where it has remained so long substantially unprotected, actually inviting outrage, with almost perfect immunity against discovery. The case now before us forcibly illustrates the wisdom of the statute which requires an immediate canvass. A doubt is thrown over the actual result of this election which can never be cleared up. The appearance of the testimony on paper is one way, and the verdict of the jury the other. One party charges the other with tampering with the ballot box, and is in turn charged with tampering with witnesses. Each is or can be charged with perjury or subornation of perjury. All this comes from failing to obey a plain provision of the law, ,yhich would have effectually precluded all suspicion, and left the public mind to rest in confidence that the officially declared result accorded with the expression of the voters by their ballots.

I think the defendant would have been entitled to a charge from the Circuit Judge that the adjournment of the canvass was unauthorized by law, and the canvass, when made, unofficial, and no evidence of the number of votes cast. It was just as much so, in my opinion, as a canvass that should be made by the presiding officer of the United States Senate, of the votes cast for President and Vice President when the two houses of Congress are not present. The legal conditions authorizing the canvass did not then exist. The adjournment being unauthorized by law, the inspectors were no more legally together the next day for the purposes of a canvass, than if they had adjourned without day, without any count, and come together by agreement on some subsequent day for the purpose of making it. The adjournment took the matter beyond their jurisdiction. No state has been more careful than this to surround the ballot box with safeguards, and we should do' violence to the whole spirit and intent of our statutes if we should hold that, in provisions like this, the inspectors might obey the law or not at their option. The time of the canvass, like the time for holding the election, and provisions in regard to registry, is indeed the very substance of the statute.

But this case has been passed upon by a jury, and no exceptions were taken to the charge of the Circuit Judge. The charge is therefore to be presumed in all respects correct. The jury have found no actual fraud, and the Judge certifies his satisfaction with the verdict. Although we have still the power to set aside the verdict, I do not think we are at liberty to do so on the ground solely that the evidence, as exhibited to us here, might lead us to a different conclusion. It is not our province to pass upon the facts, and if it were we should not be at liberty to close our eyes to the fact that the Judge and jury before whom the witnesses appear, are better qualified to judge than we can possibly be. But I am unwilling the case should be disposed of, without expressing my opinion of the illegal, dangerous, and wholly inexcusable character of the act of these inspectors, in thus adjourning the canvass, thereby leaving the case forever open to the painful suspicions and doubts which now surround it.

The only remaining inquiry is, whether a new trial can be granted for the newly discovered evidence of frauds in Sterling. The only material evidence shown is that of Waters. So far as this would tend to establish fraud, it is only cumulative, and therefore not sufficient under the general rule'. So far as it tends affirmatively to show that defendant received another vote in that township, my brethren think it not satisfactory ; and in view of its uncertain character, and the manner in which Waters has given affidavits in the case, I assent to that conclusion.

The foregoing opinions having been delivered, the case came on for final hearing upon the verdict of the jury and upon demurrers to several pleas, which rested the defense upon the irregularities above referred to, as avoiding the election in the towns mentioned.

Martin Ch. J. and Campbell J. were of the opinion that the relator was entitled to judgment.

Cooley J.

concurred, remarking that the irregular and illegal action of the inspectors, though it might deprive their certificate of official force, could not take from the electors their right to have their votes counted and allowed in the general result.

Judgment of Ouster and that the relator was entitled to the office.


text:
    Maria G. Stockton v. John S. Garland and others.

      Appeals in chancery — notice of heaHng. Where an appeal in chancery has been taken, notice of hearing cannot be given until the full time for returning an appeal has elapsed. Bule 19.

      Heard and decided July 6th.

    Motion to strike from the docket.

      C. I. Walker, for the motion.

      G. V. N. Lothrop, contra.
   This was an appeal in chancery from the Genesee Circuit. Notice of hearing was served before the full time for returning the appeal had elapsed.

The Court held that under rule 19 such notice could not be given previous to the expiration of the time for returning the appeal.


text:
    People ex rel. Wm. H. Chapman v. Horatio Pratt.

      Quo Wan'anto — notice of heaHng. The Attorney General having control of the information, notice of hearing on behalf of the prosecution must proceed from him, and not the relator.

      Heard and decided July 6th.

    Motion by respondent to strike from the docket, as not properly noticed for hearing.
   This was an information in the nature of a quo warranto. Notice of hearing was given by the relator.

A. Blair, for relator.

O. M. Barnes, for respondent.

The court held that the Attorney General having control of the information, notice of hearing on behalf of the prosecution must proceed from him, and the cause was therefore stricken off for the term.


text:
    Robert Jones v. Eben Smith and another.

      Reserved cases. Jurisdiction. Tlié Constitution having conferred upon the Supreme Court appellate jurisdiction only, except in certain specified cases of original jurisdiction, the Legislature has no power to authorize the Supreme Court to take cognizance of Reserved Cases.

      Submitted and decided July 7th.

    Case reserved from Kent Circuit for the opinion of this Court.

      Miller & Wilson, for plaintiff.
   The Court held that it possessed no jurisdiction over cases reserved from the Circuit Courts, and not involving the exercise of appellate powers, and therefore dismissed the cause.— Con. Art. VI, § 3.; Sanger v. Truesdail, 8 Mich. 543.


author: By the Court. Campbell J.

text:
    Joseph H. Cleveland v. Emilie Stein.

      Exceptions^ when to be settled. When no order has been granted during the term in which a judgment has been entered, enlarging the time for preparing exceptions, the Circuit Judge has no power to extend the time afterwards.

      Heard and decided July 9th.

    Defendant in error obtained judgment against the plaintiff in. error, in the Lenawee Circuit Court, at the March term, 1865. The cause was'tried without a jury, and no order was made, during said term, enlarging the time for settling exceptions.
    April 14th, 1866, an ex parte order was granted by said court, giving- plaintiff in error until April 80th, 1866, for such purpose. The attorney of record for defendant in error appeared and objected on the grounds, that a copy of the proposed exceptions had been but recently served upon him; that the judgment had been collected; and that he was no longer attorney in the case. Time was then extended to June 11th, 1866, when defendant in error appeared and objected on the ground, that no order having been made during the term in which said judgment was rendered, enlarging the time to prepare a bill, the Circuit Judge had no power to allow the same afterwards.

      D. Johnson, for the motion.
    Cited 2 Comp. L. § 1199, Rules of Court, 85, 86; 3 Cow. 32; 11 Mich. 60.

      A. Millerd, contra.
   By the Court.

The Circuit Judge having granted no order fixing a time for preparing and settling exceptions, during the term in which the judgment was rendered, he could exercise no power over the matter at a subsequent term.

Campbell J.

dissented, being of opinion that it was entirely within the discretion of the Circuit Court to regulate the time for settling exceptions, whether during or after the term.


author: CoOLBT J.

text:
    The People ex rel. Hobert v. Supervisor and Town-Clerk of Blackman.

      Bounties under the act relating to Jackson County. The act to legalize the action of certain townships in the County of Jackson, in paying ■bounties, <fcc., and to refund money to pay the same, (Z. 1865, 477), does not extend to advances made by individuals on their own account, and not on the credit of the townships; and any vote to refund such advances must be held unauthorized and void.— Miller v. Grandy, 13 Mich. 540.

      Township Board. Jurisdiction in allowance of claims. The vote to refund being unauthorized, the township board had no jurisdiction to act. Their authority is special and limited, and when they assume to consider claims beyond their authority, they exceed their powers.
    Neither the statute of 1865, nor the township vote, could refer such a class of claims to their judgment; and where unauthorized claims were allowed, the board was right in refusing to proceed further, when apprised of their error.

      Heard July 11th.

      Decided July 11th.

    Motion for mandamus to the Supervisor and Town-Clerk of Blackman, Jackson County, to issue orders for the joayment of certain audited claims. ,
    The petition of the relator showed that the electors of the township of Blackman in April 1865, at the annual township meeting, voted, by a majority, to refund bounties under the special act for Jackson County. — Sess. L. 1865, 411. And further, that no money had been raised .in the township, previously, which it was generally understood that the town would pay, except the one hundred dollars per man which the law then authorized, and for which bonds were issued. It was not claimed that the township had pledged its credit.
    Certain individuals had advanced moneys by private subscription among themselves to raise bounties; and claims to refund such advances were allowed by the township board previous to the decision of Miller v. Grandy (13 Mich. 540). Upon the decision of that case the authorities refused to proceed further to pay these claims.

      A. Blcdr, for respondent.
    1. The vote of the electors was a nullity, the case never having arisen in which they were authorized by law to pass such a vote.

      It was not for a public purpose. The test is not that the act will benefit the public, but whether it is a thing which the public is seeking to do. — 13 Mich. 540; 8 Allen, 80; 12 Cush. 105 and 106.
    2. The vote of the electors being void, and the claims being of a class which the Town Board had no authority by law to allow, their action was without jurisdiction.
    The Town Board being a special and limited jurisdiction, not proceeding according to the course of the Common Law, its jurisdiction must affirmatively appear upon the record. — 1 Comp. L. 239 and 244; 5 Mich. 416 and cases cited.

    Though the Board acts judicially, it can only do so within the authority conferred upon it by statute. It must confine itself to the class of claims it is authorized to allow, and has no jurisdiction to go beyond that. Neither can it acquire jurisdiction by entering upon the inquiry. — 4 Hill, 88; 3 Seld. 521; 23 N. Y. 285; 3 Denio, 118; 5 Barb. 607.
    3. The Board having allowed a large amount of illegal claims through a mistake of the law ought not to direct orders to pay those claims.
    Claims can be paid only by virtue of the order of the Board. — 1 Comp. L. § 564.

      Livermore <& Wood, for relator.
    1. The Board allowed the claims. They acted judicially, and if erroneous, the remedy must be in this Court. — 2 Sanf. 472; 17 Wend. 120; 15 Conn. 447.
    2. The Board having allowed the claims and entered up judgment therefor, the supervisor and town-clerk cannot refuse to issue the order for payment. Their action is final.— 8 Mich. 378.
   CoOLBT J.

The majority of this Court held in Miller v. Grandy, 13 Mich. 540, that the act in question did not authorize the: townships of Jackson County to refund the advances made by individuals on tbeir own account, and not on the credit of the townships, or in reliance upon their subsequent ratification by township) authority. That question is therefore no longer oj)en; and any vote to refund such individual advances must be held unauthorized and void. The relator has very fully shown by his application that the claims which the township of Blackman voted to allow, were advances of this description.

If the vote to refund was unauthorized, the township board had no jurisdiction to act upon the allowance of claims under it. Their authority is special and limited; and the moment they assumed to act upon a class of claims which they had no authority to allow, they were acting beyond their powers. Neither the statute in qirestion nor the township vote could refer this class of claims to their judgment; and if they have unadvisedly made unauthorized allowances, they are right in refusing to proceed further when apprised of their error.

The mandamus must be denied, with costs, against the relator.

Mandamus denied.

The other Justices concurred.


author: Campbell J.

text:
    Joseph H. Cleveland v. Emilie Stein.

      Written finding of facts, by Circuit Judge, when required: practice discussed. By a long practical construction, tire signing of the judgment is equivalent to a written finding, except when a special finding is required] hut such a practice will not he extended heyond cases when the finding is general, and made in term hy the Judge who heard the cause. — Circuit Cou/rt Mule 85.

      Heard July 9th.

      Decided July 11th.

    Error to Lenawee Circuit.
    This was an action of trespass on the case, commenced by writ of attachment. The cause was tried on the 21st day of February, 1865, of the December term, 1864, by the Court, without a jury, and submitted. Before judgment the Court adjourned sine die.

    March 28, 1865, at the March term, the Court delivered judgment as follows:
    “ This cause having been, brought to trial before the Court without a jury, and the said court after hearing the proofs and allegations of the parties and the arguments of the respective counsel, and having found that the defendant did undertake and promise in manner and form as the said plaintiff hath in her declaration complained against him, and having assessed the damages of the said plaintiff on occasion of the premises at the sum of three hundred and fifty-one dollars and seventy-eight cents, over and above her costs and charges by her about her said suit in this behalf expended, thereupon it is considered that the said plaintiff do recover against the said defendant her said damages assessed in form aforesaid, together with her costs and charges aforesaid to be taxed, and that plaintiff have execution therefor.”
    The only question was, whether the Court below erred in not making a separate finding.

      A. Millerd, for plaintiff in error.

      Johnson & Higby, for defendant in error.’
   Campbell J.

The only question before us is whether the judgment below was erroneous for want of a separate finding by the judge who tried the cause. The judgment recites what was found, and the facts recited are sufficient unless a separate finding was required.

If we construe the statute literally, there is no doubt that a written finding must in all cases be filed. (2 Comp. L. § 3436) But a long course of practical construction has held that where the judgment is entered in term, and signed by the judge who tried the cause, (except in those eases where a special finding is needed), the signing of the judgment is equivalent to-a written finding. To this extent we feel bound to recognize and sustain the practice, as to change it now would be a surprise upon the courts, and would operate injuriously. But nothing short of an uninterrupted practice could sanction such a loose rule, and we cannot consistently extend it beyond cases where the finding is general, and made in term, by the judge who heard the cause. As this is Such a case, we are constrained to hold that there is no error; and the judgment must be affirmed, with costs.

The other Justices concurred.


author: Cooley J. Campbell J.

text:
    Adam Crone v. Charles P. Angell.

      Slander, — actionable words. To say of another, “ he has sworn to a damned lie, andl: will put liim through for it if it costs me all I am worth,” is actionable.
    To charge a person with swearing to a lie is not actionable, unless it is coupled with words calculated to convey to the mind of the hearer the, idea that the falsehood was of the grade which the law punishes as a crime; but the threat to put the party through for it, with a declaration that the threatened action might be attended with expense, is well calculated to convey the idea of his having committed legal perjury. *

      Authority of officer to administer oath. Where the authority of the officer is fully set out, the by-standers must be understood to have been apprised what this authority was, and that it was insufficient in law, if such was the fact.

      Authority of Notanj Public. Common Order in Chancenj, The statute {Comp. L. §4338) empowers any Court of record to appoint special commissioners before whom depositions may be taken, but it is very questionable whether a common order, entered by consent of parties, and without the intervention or knowledge of the court, can be regarded as such an appointment.
    A Notary Public having general authority to administer oaths and to take affidavits, in any cause pending in any Court of the State, {Comp. L. §460,) depositions sworn to before such officer by stipulation of the parties are evidence in the cause, not by virtue of any authority in the notary to act as commissioner, but by force of the ¡stipulation, and his power to administer oaths under the statute.

      Heard July 7th and 9th.

      Decided July 11th.

    Error to Lenawee Circuit.
    This was an action on the case for slander. There were two counts in the declaration, in both of which the words spoken of the jfiaintiff were alleged to have been that he
      “ swore to a damned lie, and I will put Mm through for it, if it costs me all I am worth.” In the first count they were alleged to have been spoken of the plaintiff’s testimony in a certain cause in the Circuit Court in Chancery, taken before a notary public by virtue of a stipulation of the parties, and a common order entered in the order book of said court.
    In the second count there was no such colloquium, but the words were declared upon as actionable in themselves by imputing the crime of perjury. The defendant pleaded to the first count, and demurred to the second. The grounds of demurrer were: — 1st. That said count did not set forth any words spoken by the defendant of and concerning the plaintiff, actionable in themselves, and that nothing was alleged to make them actionable; and, 2d, That said count did not allege that the words charged to have been spoken by the defendant were spoken of and concerning any suit or proceed- . ing known to the law, or of and concerning any testimony or evidence given by the plaintiff, in any suit or proceeding known to the law, or in any court, or before any person or tribunal authorized to administer an oath, or in any suit or proceeding whatever, nor that the plaintiff had been sworn or affirmed.
    The Circuit Court sustained the demurrer; and the cause being tried before a jury on the first count, a verdict was rendered in favor of the defendant, and judgment entered thereupon. The cause was brought into this Court by writ of error and bill of exceptions.
    The errors assigned were as follows:
    1. That the Circuit Court sustained the demurrer of the defendant to the plaintiff’s declaration.
    2. That the Circuit Court rejected the testimony offered on the trial to prove that the plaintiff was sworn, and gave testimony before a notary public, to be used in a cause pending in chancery.
    3. That the Circuit Judge charged the jury that the plaintiff could not recover without showing that he had been legally sworn as a witness in the suit referred to, in the words charged in the declaration.
    4. That the Circuit Judge charged the jury that Alonzo F. Bixly, as notary public and special commissioner, had no legal authority to administer the oath to the plaintiff, and therefore he was not legally sworn.
    The facts appearing on the trial, and the rulings of the court below, so far as the same are necessary for the understanding of the points of law decided, are stated-in the opinion of the Court.

      A. I. Millerd, for plaintiff in error.
    1. ' The words laid in the declaration impute perjury, and are therefore actionable, per se. A colloquium in such a case is not necessary. — 8 Ala. 510; 3 Caines, 73; 8 Wend. 573; 3 Barb. 625; 12 Id. 215; 3 Hill, 572; 33 Vt. 182.
    The words are not the less actionable because, from the circumstances, the crime could not be committed by the party charged with it, unless this fact was known or disclosed to the hearer. — 16 Pick. 1; 21 Id. 51; 19 Wend. 296; Heard on Slander, § 177.
    Nor, because the words referred to a transaction which, in law, did not amount to perjury, unless they were so explained by defendant at the time. — 4 Blackf. 499; 25 Me. 474; 18 Conn. 464; 1 Hilliard on Torts, 284; Heard on Slander, §§ 177, 178, 179; 6 Humph. 174; 16 Wend. 450.
    2. It was not necessary for the plaintiff to entitle Mm to recover, to show that he was legally sworn as a witness in the suit referred to by the defendant. Whether he was legally sworn, or was sworn at all or not, was immaterial, so far as the rig'ht of action was concerned. That he was not, in fact, sworn would be no defense. Whether he was sworn or not, the defendant charged that he was. If he were not so in fact, the statement of the defendant was wholly false, and it is absurd to say that its very falsity is a defense to an action for making the charge.—3 Hill, 572; 25 Wend. 621; 10 N.H 52; 33 Barb. N. Y. 615; 2 Caines, 91; 12 Penn. St. 200.
    3. The facts set out in the first count show that the plaintiff was legally sworn as a witness in the suit referred to. A notary public has general authority to administer an oath in any cause pending in any court of the State. — 1 Comp. L. § 460. And the statute expressly provides that oaths, affidavits and depositions, in any cause or proceeding in any court of record, may also be taken before any commissioner appointed 'by such court for that purpose. — 2 Comp. L. § 4338.

      C. A. Stacy, for defendant in error.
    1. In order to constitute perjury there must be a lawful oath administered in some judicial proceeding. — 1 Binn. 537-542. Hence, if the words are spoken of, or with reference to a certain trial alleged in the declaration, it is a good defense to show that the plaintiff Avas not sworn on that trial. — 4 Ind. 579. But where it is not made to appear by a colloquium that the words had reference to an oath in a judicial proceeding, a mere charge of false SAvearing, or to say “ he has sworn falsely” or “ he has sworn to a lie” or “ he has taken a false oath,’ is not actionable, nor could an innuendo of perjury make it so.— 6 Tenn. 690; 18 Penn. St. 492; 1 Caines, 347; 11 Wend. 127; 1 Mich. 138. But if there be a colloquium referring the discourse to a trial in court, or before an officer authorized to take testimony, and where peijury may be committed, a charge of false swearing is actionable. — 14 Vt. 462-468; 20 Johns, 344. And the colloquium becomes a substantive part of the action, and must be proved as laid. — 11 Wend. 596; 2 Denio, 208; 3 Barb. 626 ; 3 Hill, 572-574; 16 Wend. 450-454; 21 Pick. 51. As to the office of an averment, a colloquium and an innuendo, in a declaration for slander. — 5 Johns. 211-230.
    2. -The Constitution provides for the election of Circuit Court Commissioners, and defines and limits their duties.—1 Comp. L. 60; 2 Id. 1106-1112. By act of 1853, L. 1853,
      p. 125, Sec. 1, a notary public is authorized to perform his duties, being an attorney of the Supreme Court. Section 2 provides that before such notary public shall perform any of the duties contemplated by . the first section, he shall be satisfied by affidavit or other competent proof that the commissioner is attorney, solicitor or counsel interested, or unable to act or incapable to act; then this section evidently makes the affidavit or proof a condition precedent to any action. This is evident not only from the word “ before,” but also from the fact that the proofs are required, in all cases, to accompany the acts, and form a part of the proceedings of the officer. But it may be said that his general power as notary jAublic “to administer oaths and take affidavits,” 1 Comp. L. 215, § 111, gives him the right to administer this oath.
    To this we say:
    1st. The fact that the Legislature gave the power to a certain class only of notaries to act as Master in Chancery, which includes administering the oath and taking the testimony, precludes this idea. The act of 1853, by limiting this power to a certain class of the notaries, viz: those who are attorneys of the Supreme Court, repeals so much of the law of 1842 as gives the power to other notaries, even if before the law of 1853 they had the power in these cases. It seems evident that a notary could not administer an oath to a witness who was to be examined before a commissioner; and it follows as a matter of course, that he could not administer an oath to one to be examined before, or by, a person having no power to take such examination.
   Cooley J.

We are of opinion that the Circuit Court erred in sustaining the demurrer to the second count of the plaintiff’s declaration. The slander alleged consisted in the defendant saying of the plaintiff, he “ has sworn to a damned lie, and I will put him through for it, if it costs me all I am worth.” The only question is, whether these words fairly, to the common understanding, impute the crime of perjury. To say that a man has sworn to a lie, is not actionable, because the statement has no reference to a judicial proceeding and conveys no other meaning to the hearer than that the party somewhere, on some occasion, has affirmed a falsehood. But whenever these or any similar words are coupled with others calculated to convey to the mind of the hearer the idea that this assertion of falsehood was in the course of judicial proceedings, and while the party was giving evidence, so that the falsehood was of the grade which the law punishes as a crime, it is well settled, and on sound reason, that the words are actionable in themselves. The words in the present case contain a direct charge of falsehood, with a threat to put the plaintiff through for it. The phrase to put one through is expressive and forcible, as commonly used, but without any very definite meaning. In one case it may be understood in a sense implying legal prosecution, and in another, that the party threatening proposes himself to inflict some j>unishment. But to threaten to put one through for false swearing can hardly be understood in any other sense than that the party forsworn has done that for which he is liable to be “ put through” at the law. This is the sense, we think, in which the by-standers must have understood the words; and in this sense, therefore, they must be understood by the Court, unless by some accompanying words or explanation a different sense was conveyed at the time they were used. The additional words contained in the count tend strongly to show that this was the defendant’s meaning. He would put the plaintiff through if it cost him all he was worth. The proceeding was to be or might be attended with expense, but he would still resort to it. We think the whole threat, taken together, was well calculated to convey the idea of intended legal prosecution.

We also think that the Court erred in excluding the evidence offered under the first count. The defendant was charged with having accused the plaintiff of swearing falsely in the giving of testimony in a cause pending in the Circuit Court in Chancery. The reason alleged for the exclusion was, that the facts alleged in the declaration did not show that the officer administering the oath had authority for that purpose. It is argued for the plaintiff in error that it was wholly immaterial whether he had authority or not, and. there is plausibility in this argument. The wrong, when perjury is charged, consists not in the fact that the circumstances were such as to have afforded an opportunity for the crime, but in the wrongful impression conveyed by the words imputing the offense. If the words are designed and calculated to lead the by-standers to believe that the party has been guilty of this heinous offense, the injury is committed, and it does not detract in the least from the injurious consequences, that in point of fact the proceeding which the defendant had in mind was one in which perjury could not have been committed. — Stone v. Ciarle, 21 Píele. 51. Otherwise the most atrocious slanders would go unpunished; and if there was nothing whatever to base the charge upon, the exemption from legal responsibility would only be the more complete and certain.

But in this case the colloquium is averred of evidence given - before an officer acting under an authority which is fully set out; and we must understand the by-standers to have been apprised what this authority was, and that it was insufficient in law, if such was the fact. And we are therefore to see whether the authority set out was sufficient.

It appears by the declaration that the pai'ties to a suit in Chancery had stipulated that the evidence therein might be taken before a notary public named, and had entered a common order based upon this stipulation, that such notary public act as special commissioner for the purpose. The statute (Com. L. § 4338,) empowers any Court of Record to appoint special commissioners before whom depositions may be taken; but it is very questionable whether a common order, entered by consent of parties, and Avithout the intervention or knowledge of the court, can be regarded as such an appointment. The statute (Comp. L. §§ 3995-7,) also provides that a. notary public, being also an attorney of the Supreme Court, may perform the duties of Circuit Court Commissioner when that officer is disqualified, but the declaration does not aver facts bringing the case 'within these provisions. A notary public, however, has general authority to administer oaths, and to take affidavits in any cause pending in any court of the state, (Comp. L. § 460,) and we think this authority extends to all oaths which may properly be taken out of court to be made use of in court. We do not know of anything to which it can be more properly applied than the verification of the statements of witnesses which the parties have stipulated may be sworn to before the notary; for the purpose of being used as evidence. They are evidence in the case, not by virtue of any authority in the notary to act as commissioner, but by force of the stipulation; and the authority to administer the oath in verification is within the words, and we think within the spirit of the general statute prescribing his powers. They stand on the same footing as affidavits which the parties have agreed may be used in evidence, and it can certainly make no difference with the validity of the oath, that the statements of the witness are written down by the officer in the form of question and answer, instead of the more usual form in which affidavits appear. In either case the statement is signed by the witness and its truth affirmed by him; and the whole proceeding, being for a proper and lawful purpose, to be made use of in a pending cause, we think the notary may lawfully take and certify the oath.

The judgment of the Circuit Court should be reversed, with costs, and a new trial ordered.

Christiancy J. and Martin Ch. J. concurred.

Campbell J.

I concur in holding the second count sufficient, because, while I think the language charged capable of two constructions, it was made certain by a proper averment. I concur fully upon the other points.