author: Brooke, J.

text:
    FORSYTHE v. WASHTENAW CIRCUIT JUDGE.
    1. Judgment — Record—Assumpsit—Amendment.
    The incorrect entry of a judgment in tort as a judgment in assumpsit was open to amendment under 3 Comp. Laws, §10270 (5 How. Stat. [2d Ed.] §12971).
    2. Execution — -Sheriff—Indorsement.
    The court is authorized to permit the sheriff, who has omitted to indorse on a writ of execution the date of its receipt or delivery to him, to make the correction after return nulla dona.

    3. Arrest — Civil Process — Capias ad Satisfaciendum.
    Although an action of tort may have been instituted by summons instead of a capias, the plaintiff does not thereby lose his right to the writ of capias ad satisfaciendum after judgment.
    Mandamus by Allen G. Forsythe against Edward D. Kinne, circuit judge of the county of Washtenaw, to compel respondent to vacate a writ of capias ad satisfaciendum.

    Submitted April 1, 1914.
    (Calendar No. 26,128.)
    Writ denied June 1, 1914.

      Byron J. Corbin and Frank E. Jones, for relator.

      Cavanaugh & Burke, for respondent.
   Brooke, J.

Relator prays for the issuance of a writ of mandamus against respondent requiring him to recall and quash a writ of capias ad satisfaciendum. The antecedent facts are briefly as follows: One Della Anthony brought suit against relator and another in an action of trespass upon the case. The suit was commenced by a summons, and the declaration charged relator with fraud. Under a plea of the general issue, the parties went to trial, and a judgment was rendered against relator on the 27th day of October, 1913. On the 24th day of November, 1913, an execution was issued upon said judgment, made returnable January 15, 1914. Under date of January 10, 1914, the sheriff returned the execution nulla bona. On January 12, 1914, a writ of capias ad satisfaciendum was issued, although the record is silent as to the application therefor. The relator was arrested upon said writ and on January 13, 1914, gave a bond in the penal sum of $7,500 to the jail limits of the county of Washtenaw. On January 19th relator made a motion for an order recalling and quashing said writ of capias ad satisfaciendum, based upon the following grounds:

“First. That the said writ was issued without warrant or authority in law therefor.
“Second. That the plaintiff in the above case had waived the tort, if any, set up and complained of in the declaration in said cause, and had taken and accepted a verdict of the jury therein in assumpsit on contract.
“Third. That, at the time of the issue of the said writ of capias ad satisfaciendum, no judgment had been made and entered in said cause.
“Fourth. That no writ of execution had been issued in said cause and returned unsatisfied previous to the issuance of the said writ of capias ad satisfaciendum.
“Fifth. That there is no order or authority in said cause for the issuance of said writ.
“Sixth. That there is no order in connection with said writ to hold to bail the defendants.
“Seventh. It does not appear from the said writ that any judgment has been entered in said cause and the amount thereof so that the amount of bail under said writ may be determined.”

The action of the trial court in refusing to grant the order is reviewed in this proceeding. Relator discusses several minor questions arising antecedent to the issuance of the ca. sa. These relate to the form in which the verdict was originally entered and its amendment under the authority of the court and to the failure of the sheriff to note upon the fi. fa. the date of its receipt by him. It appears from the return that the verdict was taken in due form.by.the clerk of the court, but that an inexperienced deputy incorrectly entered it as a verdict in assumpsit instead of one in tort. By direction of the court the entry of the verdict was amended to conform to the fact. The amendment was properly made. Reynolds v. Cavanaugh, 139 Mich. 387 (102 N. W. 986). See 3 Comp. Laws, § 10270.

On March 2, 1914, Leo J. Kennedy, deputy sheriff, filed an affidavit in the cause stating that he had received the writ of execution on the 24th day of November, 1913, and asking for leave to indorse such receipt upon the writ; the same having been omitted through an oversight. This, in our opinion, was properly permitted by the court. Shepard v. Schrutt, 163 Mich. 485-490 (128 N. W. 772). The meritorious question raised by this application is the first one, “that the said writ was issued without warrant or authority in the law therefor.”

It is the claim of relator that plaintiff, Della Anthony, having commenced her action by summons instead of by a capitis ad respondendum, as she might have done under section 9996, 3 Comp. Laws, is now precluded from having recourse _ to a writ of capias ad satisfaciendum, although she would have been entitled to the latter writ had she used the more rigorous process as commencement of suit. The precise question seems never to have been raised in this court.

3 Comp. Laws, § 10301, provides:

“Such execution may be either: (1) Against, the goods and chattels, lands and tenements of the party against whom such judgment was recovered; or (2) ■against the body of such party, in the cases authorized by law.”

The statutes are silent as to the cases in which a body execution may issue in this State. It is therefore necessary to determine the question from an examination of the precedents arising under the common law.

In an early case (Fuller v. Bowker, 11 Mich. 204), Justice Christiancy used the following language at page 210:

“We understand the common-law rule to have been that a capias ad satisfaciendum could be issued in those cases, and those [cases] only, in which the suit might have been commenced by capias ad respondendum, or, in other words, when the latter was the immediate process upon the original writ. The only exception to this seems to have been when the defendant was an attorney or officer of the court; in such case he might be taken in execution, though sued by bill. 2 Arch. Pr. 276. Originally the capias ad satisfaciendum lay at common law only in trespass vi et armis. But as statutes were subsequently passed, giving the capias ad respondendum as the mesne process in other cases, the capias ad satisfaciendum was held to follow, as a common-law incident. But in no case was the latter allowed without the former unless directly authorized by statute. 1 Sellon’s Pr. 513; Comyn’s Dig. Execution, c. 9; Tomlin’s Law Diet, title ‘Capias;’ 1 Arch. Pr. 276.”

In 1 Sellon’s Practice, p. 513, cited by Judge Christiancy, it is said:

“A capias ad satisfaciendum, by the common law, lay only in trespass vi et armis, being a direct and wilful wrong, and wherein the capias ad respondendum was the immediate process upon the original writ. But several statutes having given the process of capias ad respondendum, as the mesne process upon the original writ in other personal actions, than those committed vi et armis, the capias ad satisfaciendum has become an executory process in them also, it being held as a rule that, where a capias lies in process before judgment, it will lie in execution upon the judgment itself.”

In 1 Burrill’s Practice, p. 308, we find the following:

“It may be considered a general rule, that a capias ad satisfaciendum will lie in all cases where a (bailable) capias ad respondendum might have been used as the process to bring the. defendant before the court” — citing 1 Arch. Pr. 303.

In 1 Tomlin’s Law Dictionary, at page 287, after describing the writ, the writer says:

“Properly speaking, this writ cannot be sued out against any but such as were liable to be taken upon the capias mentioned in the preceding article” — citing 3 Rep. 12; M. O. 767. See, also, 2 Tidd’s Practice (2d Am. Ed.), p. 1025; Graham’s New York Practice, p. 410.

In 4 Comyn’s Digest, at page 228, we find the following :

“So execution may be by capias ad satisfaciendum against the body of the defendant in all cases where a capias ad respondendum lies in process.”

Our Constitution, art. 2, § 20, provides:

“No person shall be imprisoned for debt arising out of or founded on a contract, express or implied, except in cases of fraud or breach of trust, or of moneys collected by public officers or in any professional employment. No person shall be imprisoned for a military fine in time of peace.”

It is obvious that the plaintiff in the principal case might have proceeded against relator under the Constitution as well as under the statute cited, supra, by causing to issue a writ of capias ad respondendum as commencement of suit. Should she now be deprived of her right to the writ of ca. sa. because of having chosen the less drastic writ for her mesne process? We are of the opinion that she should not.

In the case of Hunt v. Burdick, 42 Vt. 610, it is said:

“There is nothing in our statutes or practice that requires the establishment of a rule that the plaintiff in an action of tort shall be deprived of the right, which the law gives him, of taking an execution against the body of the judgment debtor, because he omits to issue his original writ against the body. What operates so manifestly as matter of ease and favor to the defendant, ought not to be the ground of forfeiture of the rights of the plaintiff.”

The case of Lapham v. Oakland Circuit Judge, 170 Mich. 564 (136 N. W. 594), cited on behalf of respondent as authority, is not controlling for the reason that in that case the question considered was only whether the body execution had been seasonably issued. The basic right of the plaintiff to the writ was not questioned.

The writ is denied.

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


source: Caselaw Access Project

license: Public Domain

text:
    BERSTON v. GILBERT.
    1. Contracts — Illegality—Sunday—Vendor and Purchaser.
    A contract for the sale of land that was executed on Sunday Is void under 2 Comp. Laws, § 5912 (2 How. Stat. [2d Ed.] § 5261), although dated on the preceding Saturday, and cannot be ratified upon a secular day.
    2. Same — Payment—Possession.
    Where a land contract was void because the parties executed it on Sunday, the purchaser could not create a new and distinct agreement by taking possession of the premises and building on them, or by making payments under the contract; because the acts relied upon were done under the provisions of the void instrument.
    3. Amendment — Contracts—Equity.
    The trial court did not commit an abuse of judicial discretion by granting permission to the defendant at the hearing to amend his answer so as to set up the alleged illegality, where a showing was made that satisfied the court.
    Appeal from Genesee; Wisner, J.
    Submitted April 21, 1914.
    (Docket No. 88.)
    Decided June 1, 1914.
    Bill by Neil J. Berston against Julius Gilbert for the forfeiture and cancellation of a land contract. From a decree for defendant, complainant appeals.
    Affirmed.

      Black & Roberts, for complainant.

      Clark M. Johnson (William E. Barrett, of counsel), for defendant.
   Brooke, J.

The bill of complaint in this cause is filed for the purpose of canceling a land contract made between complainant and defendant by the terms of which lot No. 14, block No. 5, in Parkland addition No. 2 of the city of Flint, was sold to defendant for the sum of $550, payable $3 cash and $1 per week. Complainant likewise prays for an injunction directed to the defendant, commanding him to refrain from removing or attempting to remove the dwelling house erected upon said lot by said defendant. The record shows that while this contract was dated the 13th day of November, 1909, it was in fact executed upon a Sunday. Various payments were made' thereon until defendant had paid in all $54. All of said payments with a single exception were, likewise made upon Sundays. Defendant was in arrears 69 weeks at the time complainant served notice upon him in accordance with the terms of the contract to terminate the same. The learned chancellor who heard the case entered a decree dismissing complainant’s bill, upon the ground that the contract was illegal, being made upon a Sunday, and that it was not ratified by the fact that a single payment was made thereon upon a secular day, a receipt therefor having been given at the same time by the complainant.

In this court complainant claims that a new contract was created by the acts of the defendant in going into possession of the lot in question and building a house thereon and in making payments to the complainant from time to time. It is, we think, apparent that whatever was done by the defendant or the complainant was done in reliance upon the contract upon which complainant bases his action, and not upon any new contract. It is not disputed that this contract was in fact made upon Sunday, though dated upon the Saturday preceding. Such a contract is void under section 5912, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 5261), and cannot be ratified upon a secular day. Benedict v. Bachelder, 24 Mich. 425 (9 Am. Rep. 130); Pillen v. Erickson, 125 Mich. 68 (83 N. W. 1023); Acme Electrical Illustrating & Advertising Co. v. Van Derbeck, 127 Mich. 341 (86 N. W. 786, 89 Am. St. Rep. 476).

Complainant assigns error upon the action of the circuit judge in permitting an amendment to the answer during the hearing, setting up the defense that the contract was made upon a Sunday, and therefore void. A showing was made which was apparently satisfactory to the circuit judge, and we are not prepared to say that his action evidences any abuse of discretion. His authority to permit amendments is based upon section 10268, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 12969), and Chancery Rule 16, subd. (g). Upon the allowance of the amendment complainant did not apply to the court for further time in which to prepare.

The decree must be affirmed.

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


text:
    PEOPLE v. CONA.
    1. Constitutional Law — Searches and Seizures — Evidence — Witnesses — Homicide—Criminal Law.
    Since it is the right and duty of the police to search any person who is taken into custody and his room or the place in which he may have been arrested, no constitutional right of a respondent was violated in searching his room and taking possession of two revolvers which were found there; nor was it erroneous, in a murder case, to require him to answer a question whether the weapons belonged to him.
    2. Witnesses — Cross-Examination—Murder.
    A respondent that took the witness stand in his own behalf, in a prosecution for the killing of a police officer, might be asked whether he had had trouble with the officers of the city at other times, as a preliminary to an inquiry into the matter of previous convictions.
    3. Criminal Law — Trial—Homicide—Argument.
    Where the respondent had denied that he had been convicted of any former offenses, and subsequently admitted that he had been arrested and convicted, the prosecuting attorney was entitled to comment in his argument upon the veracity of the accused and draw inferences from apparent inconsistent statements.
    4. Same — Conduct oe Court — Murder.
    Nor was it prejudicial to the rights of-the respondent for the court, during the argument of the prosecuting attorney, to warn counsel for the accused not to interrupt but to take his exceptions.
    5. Same — New Trial.

      Held, also, that a new trial was not improperly denied upon affidavits of the defense wholly or partly met or contradicted by affidavits of the prosecution, relating to newly discovered evidence.
    Error to the recorder’s court of the city of Detroit; Phelan, J.
    Submitted April 23, 1914.
    (Docket No. 174.)
    Decided June 1, 1914.

      Francesco Cona was convicted of murder in the first degree.
    Affirmed.

      Grant Fellows, Attorney General, Hugh Shepherd, Prosecuting Attorney, and Arthur W. Kilpatrick, Assistant Prosecuting Attorney, for the people.

      Louis J. Colombo (Cassius Hollenbeck, of counsel), for respondent.
    Respondent was convicted of the crime of murder in the first degree. The crime was committed about 8 o’clock in the evening of July 19, 1913, in the city of Detroit. The victim was Charles W. Schoof, a member of the metropolitan police force of that city. The circumstances surrounding the tragedy are depicted by witness George H. Raedle, as follows:
    “I am an officer of the metropolitan police force. I was on duty the night of the 19th of July last. I met officer Charles W. Schoof that evening around 8 o’clock, a few minutes before 8, at Clinton and Hastings. After meeting him, we went through the alley between Clinton and Mullett and Hastings and Rivard. That alley runs east and west, parallel with Clinton. Officer Schoof and I entered the alley off Hastings street. He stayed in the middle of the alley for some purpose, and I walked down to the end of the alley on Rivard street. I saw these two men on the end of the alley on the other side of Rivard street. They were on Rivard street between Clinton and Mullett, one looking up Rivard street toward Gratiot avenue and the other looking the opposite side toward Clinton street. Cona was one of them. When I saw them I went back in the alley and told Officer Schoof. I told him I would go between the houses onto Mullett street, go down Mullett, and come in between the houses again, and intercept the men from the opposite side of the alley. He was to stay in the alley until he heard my signal, rapping a club. I went through between the houses onto Mullett, went east on Mullett five or six lots, and went in between the houses again into the alley where the men were, the alley between Rivard and Russell streets. Where I came back into the alley I was nearer Rivard than Russell. These two men were sitting on the tongue of a dirt wagon. Defendant was one of these two men. When I was be-' .tween 50 and 60 feet away from them, I flashed my light and rapped my club at the same time and said nothing to them. They both, started to run and ran west toward Rivard street. Officer Schoof came across Rivard street to the corner of the alley and tried to get hold of Cona, the defendant. I did not see the other man any more. As Schoof reached out his hand and tried to get hold of Cona, the shot was fired by defendant. I was then between 20 and 30 feet from Schoof and defendant. I could not say exactly; I did not measure it. After firing the shot defendant rah north on Rivard street to Mullett. Schoof fell there, right in the end of the alley. I ran after the defendant. I did not succeed in catching up to him. When 1 last saw him, he was in the middle of Mullett street between Hastings and Rivard. A crowd of people came there and obstructed my view of him when I got up to Hastings street. Just one shot was fired. After losing sight of the defendant, I went to the patrol box and called up the flying squadron. I then went back to where Schoof was lying and found that they had taken him away. I had never seen Cona before that evening. It was not over two minutes between the time I first saw them in the alley and the time Schoof was shot. I next saw the defendant in his. home in bed, 2 o’clock Sunday morning. This was Saturday night. No words were spoken by me or Schoof during the time I saw these men in the alley. They said nothing to us. Schoof had not laid his hand on the defendant at the time the shot was fired. I assisted the central men, Graus and Roggers, in placing defendant under arrest at his home, 21 Fort street east. I went along with the officers from the central precinct. We found him there in bed. When I flashed my light on the defendant, I got a good look at him. There are two street lights around there. This happened around 8 o’clock. I met Schoof nearly 8 o’clock. This happened about four minutes afterwards. It was just beginning to get dark; it was in July.”
    Witness John J. O’Rourke, likewise a member of the police force, testified that he met defendant on the evening in question at 12 or 13 minutes to 8 at the corner of Orleans and Mullett streets, four blocks from the scene of the tragedy; that on that occasion he spoke to defendant; and that he had known him since July 5th.
    Stephen J. Martin, a policeman, gave evidence to the effect that he found two revolvers in a sewing machine drawer in the house from which defendant was taken. This testimony was all that was offered on behalf of the people at the outset. The defendant was then sworn in his own behalf and on direct examination denied his guilt. On cross-examination he was shown the two revolvers and asked if they were his. Over objection he was permitted to answer that they were. To this ruling defendant excepted. The following then occurred:

      “Q. Now, since you have been in Detroit, have you had any other trouble with officers, police officers?

      “Mr. Colombo: Objected to as incompetent and immaterial.

      “The Court: No, it is competent. (Exception for defendant.)

      “A. No, I never had any trouble.

      “Q. Didn’t you have trouble with Officer O’Rourke, who was just on the stand?

      “A. No, sir.

      “Q. Did you ever see him before? Officer O’Rourke, will you stand up ? I mean this officer here.

      “A. I saw him at the station.

      “Q. When?

      “A. Yes, sir; he arrested me once, because of owing my mother money.

      “Q. That was in the month of July, wasn’t it?

      “A. I don’t remember when.

      “Q. You threatened him and said you would get him, didn’t you, shortly before the 19th of July?

      “A. No, sir; I never threatened him. I always spoke to him nice. I never threatened him.

      “Q. Have you ever been arrested and convicted of any offense?

      “A. No, sir.”
    Redirect examination: By Mr. Colombo: “Q.

    Wait a minute, Frank. Your mother had you arrested, and you went up to the House of Correction, and then she went up and paid your fine?

      “A. Yes, she paid $60.

      “Q. Your mother had you arrested, and then she thought she did you an injury, and then she. went up and paid your fine?

      “Mr. Kilpatrick: Never mind what she thought.

      “Mr. Colombo: I am asking him; the mother must have told him about it.

      “Mr. Kilpatrick: This is not competent, what his mother thought.”
    Recross-examination: “Q. So you were arrested
    and convicted?

      “A. Yes, my mother had me arrested, and she paid the fine.

      “Q. And you served some time in the House of Correction, didn’t you?

      “A. No, I didn’t serve; paid the fine.

      “Q. How long were you in jail?

      “A. About three days.

      “Q. You were fined about $35, weren’t you — $50?

      “A. I don’t know; my mother paid $50 or $60.

      “Q. Your mother paid $50 or $60. Weren’t you arrested after your mother paid your fine, and did not the judge suspend sentence and tell you to move away from that neighborhood, that you were causing too much trouble?

      “Mr. Colombo (to the interpreter): Give the
    answer.

      “A. Yes, and I did move away.

      “Q. Where were you living at that time?

      “A. I do not remember the number; only lived there a little while.

      “Q. What part of the city was it?

      “A. Near the city hall. That is the nearest he can say.

      “Q. Now, we have gotten you to admit this, that you were arrested and convicted, after you had denied it. Were there any other times that you were arrested and convicted?

      “A. No, sir.

      “Q. Is there as much truth in that answer as the other answer you gave when you denied being — I withdraw that. How long have you had these revolvers ?

      “A. One of them I found, and the other one was given to me by a friend in New York, given me for a present, about three or four years ago.

      “Q. So you have had one three or four years. How long since you found the other one?

      “A. I don’t remember. I found it in the country somewheres.

      “Q. Since you came to Detroit?

      “A. I found it in New York.

      “Q. That is all.”
    Redirect examination: “Q. Frank, these two times you were arrested was because you and your mother had a few words?

      “Mr. Kilpatrick: I object to that, your honor.

      “The Court: I sustain the objection.

      “Mr. Kilpatrick: That will be trying this case over again.

      “Q. What were you arrested for, assault and battery, or what was the nature of the offense?

      “The Court: If you are going to inquire about these former arrests, my brother, the best thing would be to bring up the records of the court below, because you cannot give oral testimony of convictions. Bring up the complaints and the papers from the other courts.

      “Mr. Colombo: I can ask him what the nature of the offense was, can’t I ?

      “The Court: The complaint is the best evidence; that would be only hearsay.

      “Mr. Colombo: He brought it out; I want to show the nature of the offense.

      “Q. Frank, this gun here is no good, is it?

      “A. No, sir.”
    Defendant then introduced the evidence of several witnesses which, if true, tended to establish an alibi. The people then recalled the witness O’Rourke, who gave testimony to the effect that he had arrested the defendant on the 7th day of July, preceding the homicide, and appeared in court against him; that, on that occasion the defendant threatened him:
    “He looked at me and shook his finger a little bit and called me a name, and said he would get me. He called me a son of a bitch, and said he would get me. * * * I have seen him several times since the 5th of July and am positive that I saw him near the corner of Mullett and Orleans on the evening of the 19th of July.”
    The foregoing constitutes practically all the testimony offered in the case.
    During the closing argument of the assistant prosecuting attorney, the following occurred:

      “Mr. Colomobo: I take an exception to the statement of Mr. Kilpatrick that the defendant has shown himself to be a self-confessed liar. I take an exception to that statement.

      “The Court: Just a moment. You may argue, the prosecuting attorney may argue, the statement made by the defendant; .but I won’t permit any statement of that kind to be made. Besides the counsel for defendant went far in his statement to the jury, when he said, if he was the prosecuting attorney, he would take this case from the jury.

      “Mr. Kilpatrick: That is what I am answering now.

      “The Court: He said counsel for the defendant had no right to make any such statement, and I am telling counsel for defendant now that, as a matter of law, the prosecuting attorney would not have any right to do anything of the kind.

      “Mr. Colombo: I said I would recommend the case be taken from the jury.

      “The Court: I don’t see how that is possible — my brother is familiar with the criminal law — how that is possible in view of the statement here of the testimony of one of the police officers, who positively identified this man.

      “Mr. Colombo: Only, your honor, as being so improbable in view of the other testimony.-

      “The Court: I know, but it is the jury that determines those questions, and not the prosecuting attorney or you, or myself. That is what these twelve men are sitting here for. You may proceed, Mr. Prosecutor.

      “Mr. Kilpatrick: I say to you, gentlemen of the jury, that I would be highly derelict in my duty if I had done what my brother says I should have done, in the face of the testimony submitted by the people, when the testimony that rebuts that is the kind it is. Now, what did the defendant testify to? And didn’t he perjure himself when I asked him if he had ever been arrested and convicted, and what did he say? ‘No.’ Finally we dragged out of him an admission that he had been convicted once. Didn’t he perjure himself when he denied that?

      “Mr. Colombo: Give me an exception.

      “Mr. Kilpatrick: Then dragged out of him an admission, after he denied it, of another conviction, and didn’t he perjure himself when he denied that conviction? (Exception for defendant.) So I say to you, gentlemen of the jury, that I am justified when I say that he is a self-confessed perjurer. Now, there is one of those witnesses that has testified to an alibi for the defense, whose testimony you are justified in throwing out, and not believing at all, and they have not shown anything here that would justify us in throwing out the testimony of Officer O’Rourke, or Officer Raedle, and I say it is not very good taste in my brother to stand up here and call Officer O’Rourke a liar, and Officer Raedle a liar, and advance the theory to you that they are simply coming in here and telling this story from fear of their superior officers. I say that is all poppy-cock. I would not have much respect for the police department of the city of Detroit or for the officers in charge of this department, if they will allow their subordinates to put anything over on them like this. (Exception for defendant.) And I challenge the statement of my brother that O’Rourke is a liar, when he comes in here and says positively he identifies this man, and knew it was the same one, four blocks from where the crime was committed. My brother asks me a question, ‘What was the motive of this man?’ I will answer that, first of all, by asking you another question, What was his motive when he tried to kill his whole family, his own flesh and blood? What motive would he have then? (Exception for defendant.) Because he is a depraved character; that is the reason. (Exception for defendant.) Yes, exceptions don’t prove anything.

      “Mr. Colombo: They will in the Supreme Court,' if we go there.

      “Mr. Kilpatrick: Take every exception you want. You know that is the testimony drawn out on your own cross-examination of Officer Roggers, that this man tried to kill his whole family; at least, his family told the officer that. That is the kind of a man he wants you to believe. The other people, we don’t know who they are; we don’t know what they are.

      “Mr. Colombo: No, you don’t want to know.

      “Mr. Kilpatrick: .Are you going to continue to interrupt me: I will appeal to the court.

      “Mr. Colombo: Well, be fair.

      “Mr. Kilpatrick: I did not interrupt you.

      “The Court: Now, listen; no more interruptions. Take your exceptions to his argument, if you have got any to make. He didn’t interrupt you. Let him finish.

      “Mr. Colombo: I take an exception.

      “Mr. Kilpatrick: The motive, the theory that the people have worked on in the case, is this, gentlemen of the jury: We won’t say that the defendant took a violent dislike to Officer O’Rourke alone; he may have done that. The two beats ran together, and he may have taken such a dislike to O’Rourke that in the excitement and suddenness of Schoof coming up there, he thought it was O’Rourke, and he pulled the revolver and shot him dead. That may have been it from what we have learned here today of the character of this man, it is fair to assume that he took a violent dislike to the whole police force, just the same as he did to his whole family, and that he was ready with this revolver that he claims that he carried for four years or so (exception for defendant) to shoot down on the slightest provocation. (Exception for defendant.) Now there are two motives. That is, the dislike to Officer O’Rourke, because he arrested him the other time, because he would not go back with him, especially taking into consideration the fact that he had threatened him. Of course, my brother says O’Rourke is not to be believed, I suppose, on that; but I believe him. I-believe him, and I believe he did threaten him. Now, that is one theory of the prosecution. The other is that because of his being mixed up, as he was, with the police department on different occasions, because of his depraved character, he took a violent dislike to the whole police force. (Exception for defendant.) And therefore, when Schoof suddenly appeared at the entrance of that alley, he pulled his gun and shot him, rather than be taken in, as he had been on two previous occasions. Now, gentlemen of the jury, you have heard the testimony of these officers in front of you. It makes out an absolute case against the defendant, and you have this alibi testimony, and I repeat again, and ask you to do, as I think the court will instruct you, to consider that testimony very, very carefully, because it is easy to prove and hard to disprove; and think, also, gentlemen of the jury, of the interests of these witnesses in this case. They have an interest; they want to see their man free. (Exception for defendant.)

      “Mr. Kilpatrick: They do not care how far they go: (Exception for the defendant.)”
    After conviction respondent made a motion for a new trial based principally upon the claim of newly discovered evidence. Several affidavits were filed in support of the motion; the general tenor of which being that the several affiants had seen a man running away from a policeman with a revolver in his hand immediately after the tragedy, and that the respondent was not that man. In denying the motion for a new trial, the court said:
    “Counsel for defendant has filed the affidavits of Hattie Eisenstark, Mrs. Dora Webber, Arthur N. Webber, Mrs. Benjamin Behrman, Leo Fritz, Mrs. Schremser, Pellero Cemero, and Paul Krueger, which tend to prove that on the night in question they saw a man run along Rivard and other streets in the vicinity; that he had a revolver in his hand, but it was not defendant Cona. These affidavits may or may not be true.
    “Officer Raedle claimed that he positively identified the defendant when he saw him 25 or 30 feet away; that he had good light from Rivard and Clinton streets 100 feet away, and also good light from Mullett street on Rivard. Officer O’Rourke positively identifies the defendant as the person with whom he spoke on the southwest corner of Orleans and Mullett and states the defendant was then walking towards Rivard street.
    “I have given the matter careful consideration, because of the seriousness of the offense and the punishment which it carries, life imprisonment, and I do not find anything in the affidavits filed on behalf of the defendant, asking for a new trial, which would justify me in setting aside the verdict of the jury.
    “The defendant had a fair and impartial trial, and was defended by a learned counselor of the law. The killing Was as brutal as it was cowardly. It is a felony under the law of this State, since 1911, for persons to carry dangerous weapons upon their persons, concealed, without a license, and many officers have been killed when approaching men for the purpose of ascertaining whether they are so armed. I am satisfied from a careful examination of all the evidence in this case that Officer Schoof met his death while attempting to learn whether the defendant at the bar was armed with a dangerous weapon on the night in question.
    “The motion for a new trial is overruled.”
    An exception was taken by defendant to this ruling.
   Brooke, J.

(after stating the facts). There are 18 assignments of error. The first two relate to the ruling of the court in permitting the witness Martin to answer the question, “I will ask you whether or not you found thése revolvers there?” and in compelling the defendant Cona to answer the question, “And they are your guns, aren’t they?” It is urged on behalf of defendant that the seizure of the revolvers in question was in violation of the Federal Constitution, citing Weeks v. United States, 232 U. S. 383 (34 Sup. Ct. 344). A reading of the opinion in that case makes it apparent, that the principles there announced and relied upon by the defendant are not applicable in the case at bar. People v. Adams, 176 N. Y. 851 (68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep, 675); Smith v. Jerome, 47 Misc. Rep. 22, 93 N. Y. Supp. 202. In the latter case it is said:

“The police have the power and it is also their duty to search the person of one lawfully arrested, and also the room or place in which he is arrested, and also any other place to which they can get lawful access, for articles that may be used in evidence to prove the charge on which he is arrested.”

The third assignment is based upon the ruling of the court in requiring the defendant to answer the question, “Now since you have been in Detroit have you had any other trouble with the officers, the police officers?” We are of opinion that the defendant having offered himself as a witness in his own behalf could be interrogated as to his former convictions, and the question objected to was, as shown by the testimony quoted, simply preliminary to that investigation.

Assignments of error 4, 5, 6, 7, 8, and 9 refer to alleged improper argument made by the prosecuting attorney on behalf of the people. That argument has been set out in the statement of facts. Defendant bases these exceptions upon the cases of People v. Quick, 58 Mich. 321 (25 N. W. 302); People v. Treat, 77 Mich. 348 (43 N. W. 983) ; People v. Lieska, 161 Mich. 630 (126 N. W. 636); People v. Huff, 173 Mich. 620 (139 N. W. 1033). There can be no difference of opinion as to the ruling announced in these cases. It is the duty of the prosecutor to protect the innocent as well as to pursue the guilty and to maintain an impartial attitude in the conduct of his case. But this court has never held that it is improper for the prosecutor to comment upon the testimony in the case and to draw warrantable inferences therefrom. People v. Winslow, 39 Mich. 505; Driscoll v. People, 47 Mich. 413 (11 N. W. 221); People v. Welch, 80 Mich. 616 (45 N. W. 482) ; People v. Hess, 85 Mich. 128 (48 N. W. 181) ; People v. Tubbs, 147 Mich. 1 (110 N. W. 182).

In the sixth assignment of error a further complaint is made of the language of the trial judge in admonishing counsel for defendant in these words:

“Now, listen; no more interruptions. Take your exceptions to his argument if you have got any to make. He didn’t interrupt you. Let him finish.”

That portion of the argument of the prosecutor set out in the statement of facts indicates very frequent interruptions on the part of defendant’s counsel and may be held to justify the statement by the court. A similar remark by the court in the case of People v. Ecarius, 124 Mich. 616 (83 N. W. 628), was held to be insufficient upon which to order a new trial.

Assignments of error numbers 10 to 13, inclusive, are based upon alleged erroneous instructions to the jury. No requests to charge were preferred on behalf of the defendant. A careful examination of the charge convinces us that the rights of the defendant were carefully guarded by the court. At the conclusion of the charge the court inquired of counsel for defendant if there was anything further he desired to have him charge, to which counsel responded: “That is all, your honor; thank you.”

Error is assigned upon the refusal of the court to grant a new trial because of newly discovered evidence. We have examined the affidavits filed in support of that motion. They are all dated more than two months after the date of the homicide. Affidavits filed by the prosecution in opposition to the motion cast doubt upon some of the statements contained in the affidavits filed upon the part of the defense. In view of the positive identification of the defendant by Officer Raedle and the fact that he was seen in the vicinity of the scene of the crime within a few minutes of the commission thereof, we cannot say that the trial judge abused his discretion in declining to grant the motion.

The conviction is affirmed.

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


author: McAlvay, C. J.

text:
    PEOPLE v. KREIDLER.
    1. Criminal Law — Negligence — Careless Use oe Firearms — Weapons — Statutes.
    Under 3 Comp. Laws, § 11510 (5 How. Stat.. [2d Ed.] § 14559), providing that “any person who shall discharge without injury to any other person, any firearm, while intentionally, without malice, aimed at or toward any person, shall be guilty of a misdemeanor,” etc., acts carelessly done, without design to do mischief, are punishable.
    2. Same — “Toward”—Construction oe Statute.
    It is sufficient, in a prosecution for violating the statute, to show that the accused was making use of a rifle pointed in the direction of a passenger on a car and discharged the weapon in that direction, without striking any one. The word “toward” means in- a course or line leading in the direction of.
    3. Trial — Argument—Conduct oe Prosecuting Attorney.
    Argument of the prosecuting attorney, in the course of which he stated that there were better men now in State prison than the respondent, was not prejudicial error, in the absence of a showing in what connection the statement was made or what proposition the prosecuting attorney was discussing.
    4. Same — Charge.
    Where the accused claimed that it was his companion who fired off the rifle at the time alleged by the prosecution, and the general charge of the court submitted this issue to the jury, instructing them that the elements of the offense must be proved beyond a reasonable doubt, and unless they were satisfied beyond a reasonable doubt that the respondent did fire the rifle, they must acquit him, the instructions were sufficient.
    Error to Macomb; Tucker, J.
    Submitted April 23, 1914.
    (Docket No. 171.)
    Decided. June 1, 1914.
    Clarence Kreidler was convicted of the improper use of a firearm and brings error.
    Affirmed.

      Grant Fellows, Attorney General, L. W. Carr, Assistant Attorney General, and Charles H. Hummrieh, Prosecuting Attorney, for the people.

      Silas B. Spier (William F. Sawn, of counsel), for respondent.
   McAlvay, C. J.

Respondent was convicted under an information charging him with the careless use of firearms. A motion for a new trial was made in his behalf and denied. The case is before this court upon a writ of error under which numerous errors are assigned, which include errors assigned upon the refusal to grant a new trial.

The facts appear to be that respondent, a young man 19 years old, and a companion aged 22, on August 16, 1913, went from Detroit out to the residence of a Mr. Green on the line of the Rapid Railway Company, near the village of New Baltimore. His companion had a Flobert rifle carrying No. 22 short cartridges for the purpose of shooting sparrows. This electric line of the Rapid Railway Company passes within about 150 feet of Mr. Green’s house. These young men were in a berry patch between the house and the railway track, along which at the time a car full of passengers was passing. The claim of the prosecution is that respondent at this time and place “did discharge, without injury to any other person, a firearm while intentionally without malice, aimed at or toward one John H. Sinclair.” Mr. Sinclair was a passenger in the car. The bullet fired from this rifle imbedded itself one-half inch in the window post in front of the seat where he was sitting, and slivers flew and hit him in the face under his eye.

The defense interposed on the part of respondent was that the shot was not fired by him, but by the young man who was with him, and that there was no evidence in the case which would justify the jury in finding that, if respondent fired the shot, he intentionally aimed the rifle at any person in the car. The offense with which respondent is charged is a statutory offense; the statute being section 11510, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14559), which is section 2 of an act entitled “An act to prevent the careless use of firearms.” It reads:

“SEC. 2. That any person who shall discharge, without injury to any other person, any firearm, while intentionally, without malice, aimed at or toward any person, shall be guilty of a misdemeanor, and shall be liable to a fine of not less than one hundred dollars, or imprisonment in the county jail not to exceed one year, or both, at the discretion of the court.”

The entitling of this act indicates clearly its purpose. It must be held to have been designed to punish acts done carelessly, without design of doing mischief. People v. McCully, 107 Mich. 343 (65 N. W. 234).

It is claimed on the part of the prosecution, and there was evidence in the case tending to show, that respondent was using this rifle, was pointing it in the direction of Sinclair, who was in the passing car, and fired it, with the result already stated. Upon this proposition the claim of the respondent has already been stated. This was a question of fact to be submitted to the jury, and has been determined by it against respondent.

It is not necessary to sustain a prosecution under this section of the statute to show that the firearm used was aimed at any person. It is sufficient if it be pointed “toward any person.” The definition of the word “toward” is, “in a course or line leading to, in the direction of.” There is proof in this case tending to show that respondent held this firearm pointed directly at this car loaded with passengers, of which Sinclair was one, and deliberately fired it. There was evidence, if believed by the jury, to sustain every element of this statutory offense.

Consequently, the errors assigned upon the denial of the motion for a new trial are without merit, so far as the matter of the evidence is concerned, and was properly denied, unless we find that upon the trial of the case, or in the charge to the jury, or in refusals to give respondent’s requests, error was committed by the court. We find, from an'examination of the errors assigned upon the admission and exclusion of evidence, that none of them are meritorious.

The record shows that an exception was taken to a claimed statement of the prosecutor in his argument that “there are better men now in State’s prison than Kreidler.” This is followed by a statement by the court, “He said ‘perhaps there were.’ ”

The record does not show the connection of the statement with the argument made or what proposition the prosecutor was discussing, and such a statement might be made without prejudice, if he were discussing the reckless carelessness with which firearms are used on occasions like the one in the instant case. Such use of firearms all too frequently results in homicide. A very small per cent, of the inmates of our prisons are there for offenses of that character.

Including the 16 grounds for a new trial, there are nearly 50 assignments of error. These, not including those already considered, are upon the refusals to give respondent’s requests to charge, and upon portions of the charge as given. In his main charge the court gave in substance all of the requests of respondent which could be properly given. This charge of the court must be considered as a whole, and, so considering it, we find that it directed the jury that the elements of the offense charged must be proved beyond a reasonable doubt, and, “unless you are satisfied beyond a reasonable doubt that the defendant Kreidler did fire the gun as claimed, it will be your duty to acquit him.” This charge also gave all the necessary protection which the law requires should be given to a man accused of crime, and correctly stated the law in the case to the jury. The verdict was warranted by the evidence in the case.

The conviction is affirmed.

Brooke, Kuhn, Stone, Ostrander, Bird, Moore, and Steere, JJ., concurred.


text:
    BOARD OF SUPERVISORS OF THE COUNTY OF JACKSON v. BOARD OF STATE AUDITORS.
    1. States — Liability to Counties eok Costs oe Criminal Prosecution — Prisons—Inmates.
    The State is not liable to Jackson county for costs of a criminal prosecution of one of the inmates of the State prison at Jackson for burning a warehouse of that institution.
    2. Statutes — Costs—Repeal by Implication.
    The provisions of Act No. 132, Pub. Acts 1887, that costs of a prosecution of any inmate of the State penal institutions should be paid by the State, were repealed by Act No. 118, Pub. Acts 1893 (5 How. Stat. [2d Ed.] § 15268 et seq.), which re-enacted the former statute without including the provision in question and repealed inconsistent acts.
    Mandamus by the board of supervisors of Jackson county against the board of State auditors to require respondents to allow and audit a bill of costs in a criminal case.
    Submitted April 21, 1914.
    (Calendar No. 26,098.)
    Writ denied June 1, 1914.

      Reuben H. Rossman, Prosecuting Attorney, for relator.

      Grant Fellows, Attorney General, for respondent.
   McAlvay, C. J.

Relator asks for a writ of mandamus to compel respondent to audit and allow a certain bill of costs incurred by it upon the trial in the circuit court for Jackson county of a certain criminal prosecution against Joseph Davidson, respondent, who was at that time a convict confined in the Michigan State prison at Jackson in said county, upon a certain information in due form, charging him with setting fire to and burning a certain warehouse within the walls of said prison on October 24, 1912. The itemized claim of relator was duly presented to respondent board for allowance, and such board refused to audit and allow the same. The only question in the case is whether the statute which provided for the payment of costs and expenses incurred in the prosecution and trial of such cases has been repealed.

The statute in question was Act No. 132, of the Public Acts of 1887, entitled:

“An act to provide for the punishment of crimes committed by any person while confined or before the expiration of his sentence in any of the penal institutions of this State.”

Section 1 of this act provided that any convict confined in the penal institutions named therein, who should commit any crime punishable under the laws of this State should be subject to the same punishment “as if the crime had been committed at any other place, or by a person not so confined.” Section 2 gave the circuit court for the county where the crime was committed jurisdiction over the case, and provided that the proceedings thereto pertaining should in all ways conform to the law and rules applying to such cases, except that the examination might be held in the office of the penal institution, and the convict so charged should continue to remain in the custody of the warden. Section 3 provided for the sentence which might be imposed upon conviction. Section 4, which is the section under which the liability of the State is claimed, provided as follows:

“All costs and expenses incurred under the provisions of this act, except pay of circuit judges and prosecuting attorneys, shall be paid by the State of Michigan.”

The legislature later passed an act designed to consolidate in one act the provisions with reference to the management, government, and discipline of the various penal institutions of the State. This is Act No. 118 of the Public Acts of 1893 (5 How. Stat. [2d Ed.] § 15268 et seq.), which is entitled:

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

By this later act sections 1 and 2 of the act of 1887 were substantially re-enacted by sections 64 and 65, and are therefore repealed. Section 3 of the earlier act, which provided for the imposition of the sentence in case of a conviction, was not repealed. Relator contends that section 4, upon which its claim is founded, was not repealed. The repealing section of the later act reads as follows:

“Sec. 66. All acts and parts of acts contravening any of the provisions of this act are hereby repealed; but all proceedings pending, and all rights and liabilities existing, acquired or incurred at the time this act takes effect, are hereby saved, and such proceedings may be consummated under and according to the law in force at the time such proceedings were commenced.”

The later act of 1893 has been twice before this court for construction, first in the case of Attorney General, ex rel. Fuller, v. Parsell, 100 Mich. 170 (58 N. W. 839), which had already been twice construed (see 98 Mich. 96 [57 N. W. 33], and 99 Mich. 381 [58 N. W. 335]), where this court said:

“The very terms ‘revise’ and ‘consolidate’ imply the intention to include in such act entire control over the subject, and to exclude all prior enactments. Cooley, Const. Lim. (6th Ed.) 182, note 4. The act in question contains 66 sections, and its provisions cover the entire management and control of and discipline in the penal institutions named. There is not a single provision of the former laws which is requisite or necessary for the management and control of these institutions.
“But it is argued that the language in the repealing clause, that ‘all acts and parts of acts contravening any of the provisions of this act are hereby repealed,’ indicates an intention to retain those provisions of the old law which may be held not to conflict with the new. We are of the contrary opinion. It would be unreasonable to hold that the legislature, while covering the entire subject, and declaring its intention to be to revise and consolidate all the laws upon the subject, intended to leave in force any provisions of the former laws which the courts might determine did not contravene the provisions of the new act.
“But, however this may be, the repealing section, when read as a whole, shows the understanding of the legislature to be that the revised and consolidated act should supersede all other acts upon the subject. The repealing section closes with these words:
“‘But all proceedings pending, and all rights and liabilities existing, acquired, or incurred, at the time this act takes effect, are hereby saved, and such proceedings may be consummated under and according to the law in force at the time such proceedings were commenced.’ ”

Later, in the case of People v. Huntley, 112 Mich. 569 (71 N. W. 178), the question was considered whether section 8 of the act of 1887 was repealed by the act of 1893. This court said:

“But it is contended by counsel for respondents that this section of the act of 1887 was repealed by Act No. 118, Pub. Acts 1893. The act of 1893 wás a revision and consolidation of the former acts, and to repeal all acts inconsistent therewith. While the general rule is that statutes and parts of statutes omitted from a revision are to be considered annulled, and not to be revived by construction, yet there are many exceptions to this rule. A revisal repealing all acts repugnant to the provisions thereof cannot affect statutes which are omitted, and which are not repugnant to its provisions. State v. Pollard, 6 R. I. 290. The rule of implied repeal is clearly inapplicable also where the revising statute declares what effect it is intended to have upon the former law, as where it declares that it shall operate as a repeal of such provisions_ of earlier acts as are inconsistent with it, which is regarded as a declaration that it shall repeal only such provisions and leave unaffected such as are not inconsistent. End. Interp. Stat. § 203; Patterson v. Tatum, 3 Sawy. 164 [Fed. Cas. No. 10,830] Lewis v. Stout, 22 Wis. 234; Gaston v. Merriam, 33 Minn. 271 [22 N. W. 614], Applying these rules to the present case, it must be held that section 3 of the act of 1887 was not repealed.”

A further reason why section 3 was not repealed is because it is not only not repugnant to the provisions of the repealing statute, but is in harmony with it, and it must be considered that the legislative intent was not to repeal this section and leave the repealing statute without any provision for imposing sentence in case of a conviction. A careful examination of both these cases will show that they are not inconsistent with each other. The question raised in the instant case relative to the status of section 4 of the earlier act was not considered in either of these decisions. It reads:

“All costs and expenses incurred under the provisions of this act, except pay of circuit judges and prosecuting attorneys, shall be paid by the State of Michigan.”
“The provisions of this act” referred to in this section, being sections 1 and 2, were repealed by reenactment in the later act, leaving no provisions in the act under which costs and expenses could be incurred. We also find the legislative intent not to re-enact this section, but to repeal the same, to be clear from the saving clause in the repealing section of the later act, providing for all liabilities already incurred, as follows:
“ * * * But all proceedings pending, and all rights and liabilities existing, acquired or incurred at the time this act takes effect, are hereby saved.

The “liabilities existing, acquired or incurred, at the time this act takes effect” would include “all costs and expenses incurred under the provisions of this act,” to be paid by the State of Michigan. It follows that at the time the later act was passed the legislature had in mind the costs and expenses which had accrued in cases already incurred, and refused to continue the liability against the State in subsequent prosecutions under the statute.

This court, therefore, holds that section 4 of Act No. 132, Pub. Acts 1887, was repealed. The writ of mandamus is denied, but without costs to either party.

Brooke, Kuhn, Stone, ■ Ostrander, Bird, Moore, and Steere, JJ., concurred.


author: Bird, J.

text:
    PEOPLE v. DAMSKEY.
    1. Intoxicating Liquors — Saloons—Sunday.
    The statute (2 Comp. Laws, § 5395, 2 How. Stat. [2d Ed.] § 5074), makes it incumbent on one who conducts a saloon for the retailing of intoxicating liquors to kee£> it closed on Sunday, at his peril.

    2. Same — Trespasser—Intent.
    The act of a hotel keeper’s son in entering his barroom, run in connection with the hotel, to obtain a wrench on Sunday, the son being married and living away from home but having freedom of access to saloon'and hotel, and retaining a key of the saloon, rendered the proprietor liable to criminal prosecution under the statute, since the son was not a trespasser.
    3. Same — Constitutional Law — Jury Trial.
    Upon the uncontradicted facts admitted by the respondent, the trial court was justified in charging the jury that he was guilty, permitting the jurors to retire and make up their verdict; no question of intent was involved which raised any issue of fact.
    Exceptions before sentence from the superior court of Grand Rapids; Stuart, J.
    Submitted April 23, 1914.
    (Docket No. 167.)
    Decided June 1, 1914.
    Rehearing denied December 19, 1914.
    Frank S. Damskey was convicted of violating the law relating to the keeping of saloons closed on Sum day.
    Affirmed.

      Grant Fellows, Attorney General, Earl F. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney, for the people.

      Lombard, Hext &. Washburn, for respondent.

       As to opening saloon during prohibited hours for purposes other than sale of liquor, see note in 36 L. R. A. (N. S.) 167.

   Bird, J.

The respondent, who was the proprietor of the Western Hotel in the city of Grand Rapids, was informed against and convicted of the offense of failing to keep his saloon closed on a certain Sunday in August, 1913. To establish the guilt of the respondent, the people showed that respondent’s son was in the saloon on the day in question. This was admitted by the respondent, but he insisted that the act of the son in entering the saloon was without either his knowledge or consent, and that in so doing the son was a trespasser, for whose act he would not be responsible.

It appears that the son was 24 years of age, that he was married, and that he neither lived nor was employed at the hotel. He had previously, while living at home, worked in the saloon, and at one time, while he was at school, the license was taken out in his name, but for two years previous to this happening he had ■had no connection with it, although it appears that he had retained a key to the barroom. He testified that on the Sunday in question he came from his home to the hotel to get his motorcycle; that in making repairs on it he needed a wrench, and, being aware that his father kept one among his tools behind the bar, he unlocked the door and went into the saloon and got it.

It is urged on behalf of respondent that under these circumstances the son was a trespasser, and, if he were, respondent was wrongfully convicted. The statute makes it incumbent upon one conducting a saloon where intoxicating liquors are sold to keep it closed on Sunday (2 Comp. Laws, § 5395, 2 How. Stat. [2d Ed.] §5074). In construing this section, this court has held that he must do so at his peril. People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270) ; People v. Welch, 71 Mich. 548 (39 N. W. 747, 1 L. R. A. 385) ; People v. Lundell, 136 Mich. 303 (99 N. W. 12); People v. Kriesel, 136 Mich. 80 (98 N. W. 850, 4 Am. & Eng. Ann. Cas. 5); People v. Possing, 137 Mich. 303 (100 N. W. 396). Had it been established that the son was a trespasser on the Sunday in question, we should feel bound to give respondent’s argument serious consideration, but we do not think it so appeared. Had the law been violated in like manner two years previous, while the son was living at home, there would have been no room for such a contention. It is quite evident that the relations which existed between him and his parents had changed but very little since his going away. He kept some of his property at the hotel and retained a key to the saloon. His entrée to the hotel appeared to be as free and unobstructed as though it were still his home. The freedom which he exercised in going into the saloon was based upon his relations with his parents. We do not think it can be said, under these circumstances, that the son was a trespasser, and especially in view of the fact that the respondent himself was then at the hotel.

Both sides asked for an instructed verdict. The trial court granted the prosecutor’s request, and in doing so made use of the following language:

“Therefore, I will instruct you, there being no questions of fact in the matter to be decided, the court instructs you to find the respondent guilty. You will retire to your jury room and select a foreman and return with a verdict of guilty.”
“In this case, the main question is, and the only question is, whether Mr. Damskey, the young man, by going in there made the respondent liable. The court holds that he did. You will return to the jury room and bring in a verdict of guilty.”

Error is assigned on these instructions because it is said they deprived the respondent of his constitutional right to have a jury pass upon his guilt. In People v. Neumann, 85 Mich. 98 (48 N. W. 290), where a similar question was raised, the court said:

“Whenever there is no question of intent in a criminal case, and no inferences, about which reasonable men might differ, to be drawn from the facts, and where, upon the admitted facts, the only question to be determined is whether under the law the statute has been violated, the trial judge may, with perfect propriety, state to the jury that the law applied to the facts, which are undisputed, shows the defendant to be guilty of the offense charged, and that it is their duty so to find under the facts and the law.”

It was conceded by both parties that there was no question of fact involved, and under the statute there was no question of intent involved. There was nothing for the trial court to do but to apply the law to the facts, and instruct the jury what their duty was in the premises. The jury were permitted to retire, and they returned with a verdict in accordance with their instructions. We think no error was committed. People v. Gardner, 143 Mich. 104 (106 N. W. 541).

The conviction is affirmed, and, as the case is here on exceptions before sentence, the trial court will proceed to judgment.

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


text:
    LICHTIG v. SAGINAW CIRCUIT JUDGE.
    1. Public Officers — Schools—President of School Board — Election or Appointment.
    Where the president of the Bay City school board vetoed the resolution of the board by which it was attempted to remove him from office and appoint a successor, and it appeared that the president had been duly elected and had exercised the veto power conferred upon him by Act No. 514, Local Acts 1903, the board failing to pass the resolution over the veto, such attempted removal and election to the presidency of the board was ineffective and the first elected president remained entitled to the office.
    2. Same — Education, Board or — Legislative or Administrative Action.
    The provisions of the above mentioned act that “the president or vice president when acting as president may file with the clerk of the board his objections in writing to any by-law, ordinance, resolution, motion or order of the board within five days,” etc., conferred the power upon such presiding officer to veto any action, legislative or administrative, of the board.
    3. Same — Mandamus—President oe School Board.
    While it is contrary to the practice of the Supreme Court to determine the right to hold office in a mandamus proceeding, an exception is made in this instance because of the pressing nature of the business before the board, and the fact that the president was entitled to the office both de facto and de jure.

    Mandamus by Edward Lichtig against William G. Gage, Saginaw circuit judge, to compel the respondent to vacate an order dissolving an injunction in a suit brought by relator to restrain one J. W. Coles from exercising the office of president of the school board of the city of Bay City.
    Submitted April 28, 1914.
    (Calendar No. 26,216.)
    Writ granted June 1, 1914.

      Joslyn & Houghton (Kinnane & Lane and Charles Hitchcock, of counsel), for relator.
    L. G. Beckwith and Stoddard & McMillan, for respondent.
   Bird, J.

The board of education of Bay City consists of nine members, who were all elected in October, 1912, for a term of two years. At their first meeting they elected relator president of the board. At the beginning of the present year, they fell into serious disagreement over a resolution to re-employ their present superintendent, and, at a meeting held on the 13th day of February, the following resolution was offered by Trustee Ribble:

“Whereas, the interests of education, the good government and prosperity of the schools of Bay City, and the welfare of the public concerning the same, require the election of a new president of this board, therefore resolved, that the said office of president be and the same is hereby declared vacant and that trustee J. W. Coles be and he is hereby elected president of this board.”

The resolution was declared out of order by the president, and neither he nor the clerk would put it to a vote. Trustee Ribble then proceeded to call the roll himself, but, before it was concluded, a motion to adjourn was declared carried by the president, whereupon four members left the meeting. The other five remained until the roll call was finished, after which Trustee Coles took the chair and declared the resolution adopted. Thereafter both Lichtig and Coles claimed to be president of the board. On March 14th the relator Lichtig applied to and secured a temporary injunction from the circuit court in chancery, addressed to Coles, inhibiting him from attempting to exercise the duties of president and from interfering with the relator in the discharge of his duties as president. An answer was filed to the bill of complaint, and a motion to dissolve followed, which was granted by the trial court. We are now asked for a writ of mandamus to compel the circuit judge to set aside his order dissolving the injunction. The principal questions raised are:

(1) Had the board the power to remove the president?
(2) If they had such power, were the proceedings taken effective to accomplish that end?

Inasmuch as a solution of the second question will determine the case, we will refrain from discussing the first question.

2. The board of education at Bay City was created by Act No. 514 of the Local Acts of 1903. That act provides that at the first meeting after the members are elected in October, they shall elect a president and vice president. Section 256 of the act confers on the president the veto power in the following language:

“The president, or vice president, when acting as president, may file with the clerk of the board his objections in writing, to any by-law, ordinance, resolution, motion or order of the board within five days after the passage or adoption of the same, setting forth reasons for his disapproval thereof, and in such case such by-law, ordinance, resolution, motion or order shall not become operative or take effect unless again passed or adopted by a two-thirds vote of all the members elect.”

Within the five days allowed by this section, the relator, as president, exercised the power therein conferred, and vetoed the resolution. The parties are in direct conflict as to the force of the veto. The respondent insists that the veto power conferred by this act is effective only against legislative acts, and that the appointment to office is not a legislative act, but an administrative one. The question as to whether the veto power extends to administrative as well as legislative acts is one which must, in the last analysis, be decided from the language of the act conferring it. 28 Cyc. p. 356. It will be noted that the language of this act is very broad, and appears to confer the power upon the president to veto any act, legislative or administrative, that does not meet with his approval. Had the legislature intended he should have this power, it is difficult to conceive how it could have been more aptly expressed than by the use of the terms which were employed. There is no official action (at least of any consequence) which the board could transact, which, would not involve, in making it effective, one of the enumerated forms.

In the case of People v. Schroeder, 76 N. Y. 160, this question was before the 'court of appeals upon a legislative act, which provided:

“That every ordinance or resolution of the board of aldermen shall, before it takes effect, be presented and certified to the mayor, and, if he approves of it, he shall sign it and, if not, shall return it with his objections, when it may be passed by a vote of two-thirds of the members.”

The court, in passing upon the question, said in part:

“The resolution of the common council confirming the appointment of the relator, which was transmitted to the mayor, and which he returned without his approval, comes directly within the terms of the provision last cited; and it follows that without such approval, the relator failed to receive a legal appointment as clerk. The object of the provision evidently was to give the mayor the power to' veto all acts of the common council which did not meet his approval, and in this form to restrict improvident action by that body. It is no answer to this construction, I think, to say thht the act of the common council was neither a legislative act, nor an ordinance, nor a resolution, because it was an act confirming an appointment, for its confirmation was not only in the form of a resolution, but that body had no authority to make the appointment valid without the approval of the mayor.”

A similar question arose in Baar v. Kirby, 118 Mich. 392 (76 N. W. 754), over the veto by the mayor of the resolution of the council, transferring certain moneys from one fund to another. The power to veto was that conferred on mayors of fourth-class cities, and provided that:

“No ordinance or resolution passed by the council shall have any force or effect if, on the day of its passage, or on the next day thereafter, the mayor, or other officer or person legally discharging the duties of mayor, shall lodge in the office of the clerk a notice in writing suspending the immediate operation of such ordinance or resolution. * * * ”

The same point was made in that case as is made in this that it was an administrative act, but the court held that the veto power extended to and covered the case. It was therein said:

“The claim that it was not a resolution which, under the statute, the mayor had the power to veto has no force. The statute provides that no ordinance or resolution passed by the council shall have any force or effect if the notice is given, and such ordinance or resolution shall not go into effect when the veto message is interposed within the time prescribed, unless the same is passed over the veto by a two-thirds vote of all the aldermen-elect.”

We are cited to three cases in which a contrary holding is made: Erwin v. Jersey City, 60 N. J. Law, 141 (37 Atl. 732, 64 Am. St. Rep. 584) ; State, ex rel. Haight, v. Love, 39 N. J. Law, 14; State v. Wagner, 170 Ind. 144 (82 N. E. 466, 15 Am. & Eng, Ann. Cas. 1063). It will be found, upon examination of‘these cases, that the language of the several acts conferring the veto power differ materially from the one in question. In the first case cited, the mayor was given authority to veto the acts of any board of the city. In the second case, the mayor was given the power to veto the action of any municipal board. In the last case cited, the mayor was given the power to veto any ordinance, order or resolution of the council. There is no language in the act under consideration which would justify us in restricting its operation to legislative acts. To hold that it covers all acts involving the exercise of any discretion of the board will lead to no absurd results. To so hold would say in effect to the board: If you have the power of removal, it must be exercised by a two-thirds vote, if the resolution adopted by a majority vote is vetoed. This would furnish a reasonable check in such cases on hasty action, and at the same time would not deprive the board from exercising the power. We are therefore of the opinion that the resolution of the board, which removed the president and substituted another in his stead was of no force after the veto was filed.

It is contrary to the practice of this court to determine the right to an office in a mandamus proceeding, but by reason of the pressing nature of the matters now before the board, and the further fact that the record fairly shows that the relator is both president de jure and de facto, we make an exception to the rule. Lawrence v. Hanley, 84 Mich. 399 (47 N. W. 753).

If there appears to be any necessity for the issuance of the writ after claimant Coles is advised of the action of this court, the writ will issue as prayed.

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


text:
    RIFFEL v. UNION TRUCK CO., LIMITED.
    1. Evidence — Expert and Opinion Testimony — Negeigence.
    Having shown all the facts and surrounding circumstances, the plaintiff in a personal injury case was not entitled to have a witness state his opinion as to what caused the wheel of the truck that plaintiff was driving, when his injury occurred, to come off, permitting one side of the vehicle to drop to the pavement.
    2. Master and Servant — Assumption oe Risk — Negeegenoe.
    In an action for personal injuries, the plaintiff, a teamster, who admitted that he was charged with the duty of inspecting the truck which he drove and with oiling the wheel, assumed any risk of the nut or burr on the axle of the front wheel coming ofE, a result which was not shown to have occurred because of the flattening of the front axle by use and wear, as claimed by him, although such condition necessitated more frequent oiling.
    Error to Wayne; Van Zile, J.
    Submitted April 27, 1914.
    (Docket No. 143.)
    Decided June 1, 1914.
    Case by Eugene Riffel against the Union Truck Company, Limited, for personal injuries. Judgment for defendant on a directed verdict. Plaintiff brings error.
    Affirmed.

      William Van Dyke and Andrew F. Burleigh, Jr., (Willis G. Clarke, of counsel), for appellant.

      Brennan, Donnelly & Van De Mark, for appellee.
    Plaintiff sued to recover damages for an injury received through the alleged negligence of defendant. A teamster of some 20 years’ experience, he had worked for defendant as a driver upon one of their trucks upon this occasion for about one year and upon a former occasion for about five years. The record discloses that on a Friday morning plaintiff was instructed to take out truck No. 34, which he had not theretofore driven. He used this truck all day Friday and a part of Saturday in carrying machinery to the Stroh Brewery Company. The last load being delivered at the brewery, the plaintiff was instructed by Mr. Newman, defendant’s foreman, to go to the Lake Shore depot and there get and deliver a load of paper. Plaintiff obeyed his instructions and loaded his wagon with about 9,000 pounds of paper and started to deliver it. At the corner of Bates and Woodbridge streets, as he was turning west from the street car track, the left front wheel of the truck came entirely off, permitting the axle to fall upon the ground. This tilted the platform of the truck to such an angle that plaintiff was thrown forward and some of the paper was thrown upon him. He was cut somewhat about the head and sustained a fracture of several ribs and was otherwise injured. Plaintiff avers in his declaration that defendant—
    “Negligently and carelessly furnished the said plaintiff with an unsafe truck, and one which the said defendant knew to be unsafe, or should have known in the exercise of that degree of care which the said defendant owed to the said plaintiff in the premises, in that the wheels and axles and the parts around and about the said wheels and axles were unsound and in improper condition, and were not properly maintained and cared for, and which particularly were in dangerous condition by reason of the carelessness, negligence, and neglect of the said defendant, either in the not keeping them in proper repair, or in not properly oiling and greasing them, or in not properly inspecting them.”
    The following facts may be said to be established by the record: The truck in question had what is known in the business as a flat axle; that is, through use the under part of the axle, where it goes through the boxing, in the hub, had become somewhat worn. This condition is one in the process of making from the first day the truck is run. There is no evidence in the record that such a condition tends to render it unsafe, but it does require to be more frequently greased than an axle that is new and round. It is further established by the uncontradicted testimony that the nut or burr on the end of the axle came off before the wheel came off. The nut was some two inches larger in diameter than the hole in the hub into which the boxing was set. To have permitted the wheel to come off over the nut, an inch of solid wood all the way around on the inside of the hub would have had to be cut away. It is uncontradicted that, though the boxing remained upon the axle after the wheel left it, immediately after the accident the boxing was taken from the axle, replaced in the hub, which was in good condition, and the wheel replaced upon the axle and the load delivered by another driver. It does not appear that the accident occurred by reason of the axle having run dry and heated, although the fact that the boxing remained on the axle might tend to indicate that condition. The man who made the repairs, however, testified that it was not dry. Plaintiff testified in part as follows:
    “I drive any wagon they give me. It is all right whether I take wagon No. 1 or 20 or 34. It was part of my work to see that my wagon was oiled and was in good condition to go out — any wagon they give me. * * * When I broke down I had on a load of paper in 700-pound wooden boxes, pretty near four feet high. I had on 13 boxes and stood in front of the load on the front box. I had No. 34, which I had driven the day before.

      “The Court: How often had you oiled it?

      “A. I liked to see what it needs, only I didn’t get timo

      “The Court: You didn’t oil it?

      “A. No.

      “The Court: Why didn’t you?

      “A. I didn’t get any time for it.

      “The Court: Used it the day before?

      “A. Yes, sir.

      “The Court: A truck like that in use ought to be oiled every morning?

      “A. No.

      “The Court: Not before three or four days?

      “A. Three or four days, yes.

      “Q. When you took this out Friday morning, why didn’t you oil it?

      “A. When I took it out Friday morning?

      “Q. Friday morning?

      “A. I asked the foreman, because it was 5 minutes to 7, and the foreman says, ‘You take this 34 and haul those boiler sections.’

      “Q. Yes, sir.

      “A. So I say I had better look at this truck before I take it out.

      “Mr. Donnelly: I renew my objection.

      “Mr. Van Dyke: It has been brought out on cross-examination.

      “The Court: I think that is all right.

      “A. He says, ‘Go ahead.’ He say, ‘Run off some runs and get a run for you.’

      “Q. How long does it take to grease those trucks?

      “A. About ten minutes.

      “Q. To grease each wheel?

      “A. The whole wagon.

      “Q. Did you know when you went back to work Saturday morning that you were going to take 84 out?

      “A. Saturday morning, yes.
    “Q. Saturday?

      “A. Yes.
    “Q. Now, why did you ask for permission to look it over when you got up to Stroh’s brewery before you took the paper?

      “Mr. Donnelly: Same objection to all this testi-
    mony and exception.

      “Q. And, when you asked at Stroh’s brewery for a chance to look the truck over, what did he say?

      “A. ‘That is all right; go ahead. That is all right; go ahead. That is all right.’

      “Q. Then you didn’t look it over?

      “A. I showed him this wheel where the tire come —this tire must be loose. I don’t know anything about the other wheel coming off. I can’t see nothing on the inside.

      “Q. Which wheel was that you showed him?

      “A. Right hind.”
    Leonard Wall, a witness for plaintiff, on direct examination, testified as follows:

      “Q. Did you hear Mr. Riffel inquire Saturday morning for a chance—

      “A. (interrupting) Yes, sir.

      “Q. What was told him?

      “Mr. Donnelly: There was no testimony it was Saturday morning.

      “A. Saturday morning was the day.

      “Mr. Van Dyke: Saturday morning-when you saw it?

      “A. Yes, sir.

      “Q. What was said?

      “A. He asked the foreman of the Union Truck Company if he could have time to look over the wagon. He said: ‘No, go ahead. It is all right/

      “Q. What morning was that?

      “A. Saturday morning.

      “The Court: He had driven the same truck the day before?

      “A. He had driven the same truck the day before; yes, sir.”
    On cross-examination he testified:

      “Mr. Donnelly: Q. Now, it is true, isn’t it, that the teamsters are required to report about 6 o’clock?

      “A. Six o’clock in the morning. They can come earlier if they wish.
    “Q. Can come earlier if they wish?

      “A. Yes, sir.

      “Q. They have to be on the wagon 10 minutest to 7 ?

      “A. Yes, that is the orders of the Union Truck Company.

      “Q. If they don’t get there and get their wagons fixed up before 10 minutes to 7 it is their fault, not the company’s?

      “A. If a wagon isn’t fit to be taken out, takes out a new wagon. It is supposed to be looked into.
    “Q. So if they are not there in time to look over the wagon, that is their fault?

      “A. They do if they are put on a different wagon.
    “Q. This was a different wagon. It is in the testimony that he used the wagon the day before?

      “A. He used the wagon the day before, yes. He had orders to use this wagon; it was the same wagon the day before; it was a better wagon to haul paper on.

      “Q. When did he get the orders?

      “A. In the morning.
    “Q. From the foreman?

      “A. Yes, sir; he had orders to go with that wagon.

      “Q. If this man took the wagon out the day before and was going to take it out on Saturday, it was up to him to get down early enough Saturday morning to get that wagon fixed up before 10 minutes to 7, wasn’t it?

      “A. Why, he couldn’t get at the wagon. How was he going to fit it?

      “Q. Answer my question.

      “A. It was jammed between wagons; he couldn’t get at it.

      “The Court: Is that his duty, to get down in the morning to get the wagon ready to go out?

      “A. Yes, sir; if he has his old wagon.

      “The Court: Does it make any difference what
    wagon if he had the wagon the day before?

      “A. He don’t know.

      “The Court: How do you know?

      “A. No teamster knows what wagon he is to take until the next morning.

      “The Court: No teamster knows what he is to take until the next morning?

      “Q. If he has his own wagon, that is for him to get ready?

      “A. How can he get his wagon ready if he is busy all the. morning moving—

      “Mr. Donnelly: I move, the court please, that that be stricken out.

      “Q. You remember that this wagon was used right steadily after that, was it not?

      “A. It was used steadily after that, yes, sir, for a while. * * *

      “Q. I understand you to say the men do not know for sure what work they are going to do when they go down to the barn in the morning?

      “A. He don’t exactly know what wagon he is going to hook onto exactly.

      “Q. The teamsters do not know for sure?

      “A. No, sir.

      “Q. So when you get there in the morning the foreman says which wagon you are to use ?

      “A. Yes.

      “Q. And it is your duty to see that your wagon is in good condition to go out?

      “A. Yes, if you have time.

      “Q. You say on Saturday morning this man could not get at this wagon?

      “A. No, sir; he couldn’t.

      “Q. No room?

      “A. No, sir.

      “Q. Why not?

      “A. Not until he hooked up and pulled it in the yard past the other trucks could he get at it.

      “Q. Did he have to be told to take it out in the yard to grease it?

      “A. No, sir.

      “Q. Can you take that in the yard, jack it up, and grease it?

      “A. No, sir.
    “Q. Why not?

      “A. Because there was probably some wagons you can’t use for a truck.

      “Q. These wagons are not packed in so close?

      “A. They are packed in so close that you cannot get off and out of the shed that they are in. The company want to get all the rigs in. * * *

      “Q. Did you say, T heard Mr. Herzog tell all drivers to look after the wagons before going out, and heard him so instruct Riffel?’

      “A. Yes, sir; provided I have got time to do it. * * * It is a teamster’s duty, when he goes down
    in the morning, to oil and take care of his wagon. That is what Mr. Herzog told our teamsters.”
    A verdict having been directed in favor of defendant, plaintiff reviews his case in this court by writ of error.
   Brooke, J.

(after stating the facts). There are but three assignments of error:

“(1) The court erred in excluding the following question: ‘What was that accident the result of, in
your opinion?’ propounded to the witness Leonard Wall by Mr. Van Dyke, attorney for plaintiff.
“(2) The court erred in stating in the charge to the jury that ‘there is no proof of negligence.’
“(3) The court erred in directing a verdict for the defendant.”

We are of opinion that the answer to this question was properly excluded. All the facts surrounding the accident had been detailed to the jury. It was for the jury to draw such legitimate inferences from those facts as were warranted. It was not a case in which expert testimony was admissible. Lemon v. Railway Co., 59 Mich. 618 (26 N. W. 791); Jackson v. Railway Co., 161 Mich. 168 (125 N. W. 763).

The next two assignments of error may be treated together. They raise the controlling question in the case. In our opinion the verdict was properly directed for the following reasons: The only defect shown to exist in the truck at the time of the accident was that the axle on its underside was worn somewhat flat. It is uncontradicted that this flatness did not render the truck unsafe but that its existence» necessitated a more frequent oiling than otherwise. The record clearly shows that the duty of oiling rested upon the plaintiff himself. It is not even shown that the accident occurred by reason of there being insufficient oiling. From all the testimony, the conclusion is inevitable that the accident and resulting injury was caused by the coming off of the nut or burr which holds the wheel upon the axle. This is an accident which, in turning and backing of wagons, we should suppose to be of no infrequent occurrence. It was such an accident as a casual inspection by the plaintiff would have averted, and, according to the testimony in the record, the duty of inspection rested upon plaintiff himself. Indeed, he himself says, “Any man with a new tool ought to look the tool over before he takes it out.”

A glance at the alleged defective axle at the depot where plaintiff obtained his last load would undoubtedly have disclosed the condition of the nut. At the time he started from the depot, it must have been very nearly off, as the evidence discloses the fact that in going forward it was so threaded as to become tighter instead of looser through the friction between it and the end of the hub. We think the plaintiff, under the circumstances of this case, must be held to have assumed the risk. Prentiss v. Manufacturing Co., 63 Mich. 478 (30 N. W. 109); Kean v. Rolling Mills, 66 Mich. 277 (33 N. W. 395, 11 Am. St. Rep. 492); Wheeler v. Berry, 95 Mich. 250 (54 N. W. 876); Breig v. Railway Co., 98 Mich. 222 (57 N. W. 118); Gavigan v. Railway Co., 110 Mich. 71 (67 N. W. 1097) ; Welch v. Brainard, 108 Mich. 38 (65 N. W. 667) ; Soderstrom v. Lumber Co., 114 Mich. 83 (72 N. W. 13) ; Hayball v. Railway Co., 114 Mich. 135 (72 N. W. 145) ; Mackey v. Furnace Co., 119 Mich. 552 (78 N. W. 783) ; Goga v. Foundry Co., 142 Mich. 340 (105 N. W. 859).

In this connection it should be noted that the defect to which plaintiff called the attention of defendant’s superintendent at the brewery company was not in any wise connected with the accident or injury; it consisting in a tendency of the tire on the rear right wheel to come off.

The judgment is affirmed.

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