text:
    CUNNINGHAM v. O’CONNOR.
    1. Contract of Sale — Delivery—Transfer of Title.
    Where plaintiff, a creditor of J., orally agreed to buy of J. his small field of beans, about to be harvested, and, after his account should be paid, to turn over the surplus, if any, to J., and then made an arrangement with J. and another to harvest the beans and store them in a barn, which was done, the transaction constituted a completed sale.
    '3. Conversion — Value—Question for Jury.
    In an action for the conversion of a quantity of beans, where there was evidence of the quantity, condition, and of actual sales, it was sufficient to submit the question of value to the jury.
    :3. Torts — Justice’s Court — Joint Defendants — Appeal.
    In an action of tort brought in justice’s court against two defendants, a verdict and judgment on appeal in favor of one defendant does not operate to discharge the other. So held of an action of trover.
    Error to Sanilac; Beach, J.
    Submitted February 4, 1904.
    (Docket No. 78.)
    Decided April 5, 1904.
    Trover by Peter Cunningham against John O’Connor, impleaded with the Truman Moss State Bank. From a judgment for plaintiff, defendant brings error.
    Affirmed.
    Plaintiff brought suit in trover in justice’s court against the defendant and the Truman Moss State Bank for the conversion of a quantity of beans, and recovered.- Upon an appeal to the circuit court he obtained a verdict for $49.50, which the court afterwards reduced to $24.75, and entered a judgment therefor. The circuit court directed a verdict in favor of the bank; held that defendant O’Con-nor was liable, and left the question of damages to the jury-
    Plaintiff claims title by a verbal sale. Defendant -claims title by a chattel mortgage executed to the bank. The beans belonged to one Watson, who was indebted to plaintiff. One Jenereaux became security for the debt of Watson. Plaintiff extended afterwards further credit to-both Watson and Jenereaux, until the two accounts amounted to $57.56. Watson had a small field of beans. Watson left the country, and sold and turned the beans over to Jenereaux, to be used in payment of his debt to plaintiff. The beans were ready for harvest, and the harvest had begun, when plaintiff saw Jenereaux and purchased them, as he claims. Plaintiff testified that after some negotiations with Jenereaux as to price, etc., “I said to hirp: ‘ I will buy these beans in this way: That after my account is paid, with costs, I will give it to you.’ He-said, ‘ All right. ’ ” By this it was evidently meant that, if the beans brought more than $57.56 and costs of harvesting and marketing, the surplus was to be paid by Cunningham to Jenereaux. They called a witness to the agreement, who stated: “ They stated the bargain. He [Cunningham] was to have all the-beans that grew on. Watson’s place for a store bill that Watson owed and Jenereaux both.” Seven days after this transaction, Jenereaux executed a chattel mortgage upon this and other-property to secure his debt to the bank. Plaintiff made an arrangement with Jenereaux and one Rowley to harvest and store the beans in a barn. This was done. Defendant O’Connor then seized them as the agent of the-bank under the chattel mortgage, and sold them. The-court directed a verdict tor the plaintiff for the value of the beans, holding that the evidence showed a completed sale.

      C. F. Gates and A. A. Meeker, for appellant.

      JR. J. West, for appellee.
   Grant, J.

(after stating the facts). Defendant claims that the transaction between plaintiff and Jenereaux was not a sale, but only a mortgage, and, not being recorded, is of no force as against the subsequent chattel mortgage. There is no dispute as to the facts. The question, therefore, becomes one of law. We think the direction of'the court is correct, under Colwell v. Keystone Iron Co., 36 Mich. 51; WebSter v. Anderson, 42 Mich. 554 (4 N. W. 288, 36 Am. Rep. 452).

It is urged that, when the plaintiff rested his case, he had introduced no evidence of the valu,e of the property. The beans were seized either the latter part of October or in November, — the exact date is not shown by the record. This suit was tried in the circuit court the 8th of January following. Plaintiff did not see the beans after they were threshed. It was impossible, therefore, for him to give their exact condition and value. A witness who drew them from the farm said he shelled some of them, and they were nice and white. One witness testified that he sold beans that fall, for a dollar a bushel, not as good as the Watson beans. It is true that the court struck out the testimony of this witness as to what he received, but it does not appear that he struck out all his testimony. Witnesses may base their opinions of value on actual sales of which they have knowledge. Thompson v. Moiles, 46 Mich. 42 (8 N. W. 577). Plaintiff testified that, at the time of the trial, he was selling beans for 3 cents a pound. Defendant testified that there were 66 bushels of the beans; that one man offered him 50 cents a hundred pounds, and another 30 cents a bushel. This included the beans belonging to Jenereaux, as well as those which were raised by Watson. The court instructed the jury that the. testimony as to the value was somewhat vague and indefinite, but that from all the testimony as to the value, quantity, condition, etc., they must determine, to the best of their judgment, the value. We think the evidence was sufficient to submit to the jury.

Counsel for the defendant insist that the discharge of the defendant bank also operated to discharge the defendant O’Connor, under Wright v. Reinelt, 118 Mich. 638 (77 N. W. 246). This is an action of tort, and in justice’s court, and in circuit court upon appeal, judgment could pass against either. That case has no application to actions of tort.

Judgment affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J.

license: Public Domain

text:
    MERRYMAN v. HALL.

    Negligence — Boiler Explosion — Defective Condition — Owner’s Diligence — Question for Jury.
    In an action for injuries caused by the explosion of a boiler, evidence examined, and held to justify a finding that the owner of the boiler, though ignorant of its defective condition, was negligent in not using proper care to discover the same.
    Error to St. Clair; Law, J.
    Submitted February 26, 1904.
    (Docket No. 111.)
    Decided April 5, 1904.
    Case by Frederick I. Merryman against Edmund Hall for personal injuries. There was a judgment for plaintiff, after which defendant died, and the cause was revived in the names of his executrices, Mary H. Hall and Frances Chaney Strong, who bring error.
    Affirmed.

      Osear M. Springer {Bowen, Douglas, Whiting & Murfin, of counsel), for appellants.

      Avery Bros. & Walsh {Gyrus A. Hovey, of counsel), for appellee.

       Rehearing denied April 26, 1904.

   Carpenter, J.

Plaintiff, a government inspector, while on board defendant’s barge at Port Huron, was injured by the explosion of a boiler. He brought this suit, claiming that the explosion was caused by defendant’s negligence. The first trial resulted in a verdict for defendant by direction of the court. This judgment was reversed by this court. See 124 Mich. 263 (82 N. W. 881). A second trial resulted in a verdict for plaintiff. This judgment was also reversed. See 131 Mich. 406 (91 N. W. 647). A third trial has been had, which, like the second, resulted in a verdict for plaintiff.

We are bound to conclude, from special findings by the jury, that their verdict rested upon the ground that defendants’ testator, though ignorant of the defective condition of the boiler, was negligent in not using proper care, before the boiler exploded, to discover its defective condition. We are asked to reverse the judgment upon the ground that there wás no evidence to support this verdict. There is abundant evidence to warrant the inference that proper care on the part of the defendants’ testator before the explosion would have discovered the boiler’s defective •condition. It is contended that- the record conclusively proves that this care was exercised. Two of defendants’ witnesses, Messrs. Brauvin and Ortner, testified that the boiler had been used less than two days since it withstood a hydrostatic or cold-water test of 150 pounds to the square inch. If we can treat this fact as established, — that is, if this testimony is true, — we are bound to say that, though •defendants’ testator was ignorant of the boiler’s defective condition, he had done all that due care required to discover it. The whole case turns, then, in our judgment, upon the question of whether the court must say that the jury were bound to credit this testimony. These witnesses testify that at the time the hydrostatic test' was applied, and for several years prior thereto, there was a gauge with a limit of 200 pounds on the boiler; that, according to this gauge, they applied the test of 150 pounds to the square inch; and that, after the explosion, the gauge was taken to one Giles Cole. We think there was evidence which tended to discredit this testimony. Giles Cole testified that the gauge brought to him by Brauvin was 10 pounds fast in 80, and had a limit of 120 pounds. Brauvin produced on the trial the gauge which he claimed was on the boiler, and an expert witness for plaintiff testified that, in his judgment, the gauge was comparatively new, and had not been used more than two or three years. We think this evidence, together with the circumstance that the boiler exploded after less than two days’ user, with a pressure of less than 100 pounds to the'square inch, justified the jury in discrediting the testimony under consideration.

We think that no other complaint in the brief demands discussion.

The judgment must be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    PEOPLE v. WILSON.
    1. Bastardy — Evidence — Reputation op Prosecutrix por Chastity.
    In. bastardy proceedings, testimony tending to show that, at about the time the child was begotten, the reputation of the prosecutrix for chastity was bad, is inadmissible.
    2. Same — Complaint—Variance.
    Where, in a bastardy proceeding, the testimony fixed the time that the child was begotten at an earlier date than that specified in the complaint, and there was no evidence of the commission of the offense at the time charged, defendant was not required to meet the charge, and a conviction was unwarranted.

      Certiorari to Houghton; Streeter, J.
    Submitted February 26, 1904.
    (Docket No. 195.)
    Decided April 5, 1904.
    William Wilson was convicted of bastardy.
    Reversed.

      Edward E. Le Gendre, for appellant.

      Oscar J. Larson, Prosecuting Attorney, for the people.
   Montgomery, J.

This is certiorari to review a bastardy proceeding instituted by Mary Matson. A verdict of guilty was entered, and defendant was charged with the support of the child.

Numerous questions are argued in the briefs, but we consider only such as are likely to arise on a new trial.

The defendant offered testimony to show that, at about the time the child was begotten, the reputation of the prosecutrix for chastity was bad. This testimony was said to be offered for its bearing on the paternity of the child, and also for the purpose of impeaching the testimony of the prosecutrix. The authorities are not entirely agreed upon the question of the admissibility of such testimony, but the decided weight of authority supports the ruling below. In People v. Mills, 94 Mich. 630 (54 N. W. 488), we held that testimony of reputation for a want of chastity in a female witness was not, in general, admissible for the purpose of impeachment. It has also been held inadmissible in bastardy proceedings in Com. v. Moore, 3 Pick. 194; Bookhout v. State, 66 Wis. 415 (28 N. W. 179). In the latter case the authorities contra are reviewed. The defendant cites cases from Iowa to sustain his contention, but in that State the code permits the general moral character of a witness to be attacked for the purpose of impeaching his testimony. See State v. Woodworth, 65 Iowa, 141 (21 N. W. 490). But in Rawles v. State, 56 Ind. 433, it was held that even though the code of that State provides that, in all questions affecting the credibility of a witness, his general moral character may be given in evidence, yet in a bastardy case the inquiry must be confined to the time of trial, and, furthermore, that particular inquiry as to the reputation of the prosecutrix for chastity will not be entered upon. See, also, Sidelinger v. Bucklin, 64 Me. 371; Swisher v. Malone, 31 W. Va. 442 (7 S. E. 439); Morse v. Pineo, 4 Vt. 281.

The complaint charged that the child was begotten “from June 24 to July 9, 1902,” at the home of the sister of the prosecutrix, in Hancock township. On the trial the prosecutrix testified that she did not remember the month, but she did have connection with defendant at the band-stand last summer, and became pregnant; that this was in the fore part of the summer. After being excused from the stand, she was again called, and testified as follows:

Q. Can you teli where the intercourse took place when you became pregnant with child ?
“A. It was at Chassell. I was going to Victor Ootila’s house, my brother-in-law. We reached there at 10 in the evening. We went in a wagon. Wilson went into my hrother-in-law’s house with me.
Q. Did you stay there all night ?
“A. I was there, but he was not. He went to Calumet.
‘ ‘ Q. What month was that in ?
“A. It was in June month.
“ Q. Do you know what time in June ?
“A. It was the fore part of the month.
“ Q. How many times prior to that had you connection with Mr. Wilson ?
“A. Three timqs prior to that.”

On cross-examination she again states that she cannot üx the month.

Her sister, Mrs. Cotila, was called, and testified as follows :

“Q. Has Mr. Wilson ever been to your house with your •sister Mary ?
“A. Yes, sir; they came into it. I don’t know the date. They came in a good many times to visit.
“Q. Do you recollect Mr. Wilson and your sister coming there in June, 1902, one evening, late ?
“A. Yes, sir, it was one night when they came.
“Q. When was that?
“A. Well, I can’t tell the month.
“Q. Well, what time of year ? Was it in the summer, spring, fall, or winter ?
“A. It was last summer, late in the summer.
“Q. You can’t state what month it was in ?
“A. No, sir.”

Victor Cotila was called, and testified as follows:

Q. State whether or not Mr. Wilson was with your sister-in-law at your house last May or June ?
“A. Well, I don’t remember; it might be; I don’t know; I don’t know the month, but I saw him in May month.
“Q. What part of May ?
“A. I can’t state the date, but he came in May month, one night.
“Q. Where did they come from ? *
“A. From Chassell. He was going to Calumet.
“Q. Can you tell what part of May it was, — what time it was ? Was it late in May, or the middle of May, or early in May ?
“A. I can’t tell exactly, but it was during that month.”
The prosecutor was allowed to amend the complaint as to the place of the occurrence, but did not ask to amend as to time.

We think the occasion was fixed by the testimony as at a time earlier than the date fixed in the complaint, and that there is no testimony to show that the child was begotten at the time charged. This is of some importance, as the child was born about February 11th, and, allowing the usual period of gestation, must have been begotten in May. Was defendant required to be prepared to meet this charge? We think not. While an amendment, under proper showing, was allowable (People v. Cole, 113 Mich. 83 [71 N. W. 455]), yet such an amendment ought not to have been permitted without fixing the time so that defendant could meet the charge, or without giving him full opportunity to do so. Hull v. People, 41 Mich. 167 (2 N.W.175).

The judgment is reversed, and a new trial ordered.

The other Justices concurred.


author: Hooker, J.

text:
    PEOPLE v. LONGWELL.
    Intoxicating Liquors — Sales by Druggists — Quantity.
    Where respondent, who had duly qualified in a local option county as a druggist, made sales of intoxicating liquors in excess of three gallons, and of twelve quart bottles, for medicinal purposes and in good faith, and was informed against as a wholesaler, and convicted, under 2 Comp. Laws, § 5380, it was held that a druggist, in selling quantities, is not restricted to the limit prescribed for retailers.
    Exceptions before judgment from Van Burén; Carr, J.
    Submitted February 26, 1904.
    (Docket No. 199.)
    Decided April 5, 1904.
    E. B. Longwell was convicted of violating the local option law.
    Reversed.

      Sheridan F. Master and Thomas J. Cavanaugh, for appellant.

      Charles A. Blair, Attorney General, and David Anderson, Prosecuting Attorney, for the people.
   Hooker, J.

The stipulated facts show that the defendant, a druggist who had given the bond required, made sales of intoxicating liquor in excess of three gallons, and of twelve quart bottles, for medicinal purposes, and in good faith. It is admitted that the sales were in every way lawful, unless by reason of the quantity. Having been convicted of violating the law in a local option county, he has brought the case here for review on exceptions before sentence.

The prosecutor claims that, in selling the quantities mentioned, he acted as and became a wholesaler of liquor, under 2 Comp. Laws, § 5380, being section 2 of the general liquor law, which says that persons who sell liquor by the drink, or in quantities of three gallons or less, or one dozen quart bottles or less, at any one time, to any person or persons, shall be deemed retail dealers, while persons selling in quantities of more than three gallons, or twelve quart bottles, at one time, shall be deemed wholesale dealers.

Section 1 of the same act (2 Comp. Laws, § 5379) provides for the payment of a tax by all persons whose business, in whole or in part, consists in selling liquor, and •fixes the amount of such tax. Section 3 of said act provides that:

“The penal provisions of this act shall not apply to druggists who sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with the law. * * * But such druggist shall be allowed to sell said liquors for medicinal, chemical, scientific, mechanical, and sacramental purposes only, without the payment of any tax specified in section one, and subject to the following restrictions and conditions.”

There is nothing in this act which justifies the claim of the prosecution, viz., that the druggist is limited to selling quantities within the limit prescribed by. the statute for retailers.

The conviction is reversed, and a new trial ordered.

The other Justices concurred.


text:
    PEOPLE v. LUNDELL.
    1. Intoxicating Liquors — Open Saloon — Evidence — Sufficiency.
    A person engaged in business in a building in which there was a saloon entered the saloon during prohibited hours to remedy a defect in a water pipe, and prevent water from escaping into the basement. After being in, he, without request, but pursuant to a pre-existing arrangement to ‘ ‘ change off ” work; swept out the saloon, and then remained a few minutes, talking with the barkeeper. Held, that the barkeeper, in permitting him to remain in the saloon after the time required to repair the water pipe, was keeping the saloon open contrary to law.
    2. Same — Act of Barkeeper — Liability of Saloonkeeper.
    A saloonkeeper is bound to see that his saloon is closed during the hours the law requires it to be closed, and is liable for the act of his barkeeper in keeping it open during prohibited hours.
    Exceptions before judgment from Wexford; Chittenden, J.
    Submitted February 26, 1904.
    (Docket No. 201.)
    Decided April 5, 1904.
    Erick Lundell was convicted of keeping his saloon open during prohibited hours.
    Affirmed.

      Sawyer & Bishop, for appellant.

      Fred C. Wetmore, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of keeping his saloon open during prohibited hours. The evidence conclusively showed that, before 6 o’clock on the morning in question, the bartender and one Peter Jacobson were in the saloon, — the barkeeper behind the bar, and Jacobson standing leaning against the bar in conversation with the barkeeper. To meet this case the defendant called Jacobson, who testified that he was employed in the business of keeping a boarding house in a portion of the building in which the saloon was located; that he discovered that the waste pipe from defendant’s ice box had become clogged, and that water was flowing-down into the basement; that he then went into the saloon and cleaned the pipe out; that he went in for no other purpose, but that, after being in, he, without request, swept out, and then remained and talked with the barkeeper a few minutes. This, with testimony tending to show that, under an arrangement to ‘ ‘ change off, ” Jacobson had on other occasions helped to clean out, was all the testimony offered in explanation of Jacobson’s presence at the time.

The circuit judge charged, in effect, that, under these circumstances, the barkeeper, in permitting Jacobson to remain in the saloon after the time required to clean out the water pipe, was, in effect, having or keeping the saloon open contrary to law. This ruling is fully sustained by the previous decisions of this court. People v. Waldvogel, 49 Mich. 337 (13 N. W. 620); People v. Crowley, 90 Mich. 366 (51 N. W. 517). Jacobson, according to the whole testimony, was, after he had remedied the defect in the water pipe, first a volunteer assistant, and later a visitor, and in either character had no such relation to defendant’s business as made it proper to permit him to remain there.

The contention that the respondent is not responsible for the act of his barkeeper in keeping his saloon open, but that the'barkeeper is the only offender, has been answered too often to leave it necessary to discuss the question at any length. The court has frequently held that this statute imposes upon the keeper of a bar or saloon the affirmative duty to see that it is closed during certain hours and on holidays, and that the neglect of this duty is an offense. People v. Roby, 52 Mich. 577 (18 N. W. 365, 50 Am. Rep. 270); People v. Welch, 71 Mich. 552 (39 N. W. 747, 1 L. R. A. 385).

The conviction is affirmed.

The other Justices concurred.


author: Gbant, J.

text:
    PEOPLE v. DOWELL.
    1. Assault With Intent to Ravish —Age of Consent — InSTRUCTIONS.
    In a prosecution for an assault upon a female child under the age of 16 years, with intent unlawfully and carnally to know, the intent is the gist of the offense, and the jury should be specifically instructed to distinguish as to whether improper liberties taken with the person of the prosecutrix were or were not accompanied by the intent charged.
    3. Same.
    So, too, actual violence, or actual assault, is essential to the commission of the crime, and an instruction that the prosecutrix could not give her consent, and, “if respondent sought to do that with her with that intent, then he would be guilty,” was erroneous, as leading the jury to infer that it would be sufficient if respondent merely solicited the intercourse.
    3. Same — Evidence—Hearsay.
    Where, on such prosecution, there was evidence that respondent, after the alleged assault, gave the prosecutrix a bicycle, and told her to tell her parents that a girl had let her take it, testimony of the mother of the prosecutrix as to what the latter told her about the bicycle was hearsay, and inadmissible.
    4. Same — Cross-Examination of Respondent.
    It was error to permit the prosecution, on the cross-examination of respondent, to ask him a series of questions relating to his conduct with another girl some years before, and whether he had not been sued for such conduct.
    Exceptions before judgment from Lenawee; Chester, J,
    Submitted February 26, 1904.
    (Docket No. 202.)
    Decided April 5, 1904.
    Francis Dowell was convicted of an assault with intent to commit the crime of statutory rape.
    Reversed.
    The respondent was informed against and convicted of an assault upon one Minnie Pieh, a female child under the age of 16 years, with intent to feloniously, unlawfully, and carnally know her. She lacked but one month of being 16 years of age. The respondent ’was a farmer, 54 years of age, and lived, with his family, a neighbor to the prosecutrix’s family. The assault is alleged to have been •committed on June 1, 1901, in broad daylight, in front of defendant’s shed, along the public highway.
    The only testimony tending to show any undue familiarity on the part of respondent is that of the prosecutrix, who says that at one time, before the alleged assault, respondent and his wife were at her father’s house. Respondent asked for a drink of water. The prosecutrix went to the ■pantry to get it for him. He followed her, put his arm around her neck, and kissed her, and said that she should come down there the next day or the next night, and stay all night; that his wife was going to the Farmers’ Club; and that she should tell them that she stayed at her sister’s.
    The prosecutrix’s version of the assault is as follows:
    “Now, the next time I had any conversation or experience with Mr. Dowell was when I went after the duck eggs, on the 1st of June. I came along there, and he was fixing a tongue on a wagon, and he stopped me, and he says— He asked me first where I was going, and then I told him, and then he says, ‘Go through the woods;’ he says, T will go with you;’ he says, T am going back there to dig up some stumps.’ So I told him, ‘No,’ I would go around the road; and then he took hold of my arm, and tried to pull me into the shed, ánd.I wouldn’t go. I told him I was afraid I would get in a family way; and he says, T will get you a French safe.’ Nooneelsewas around there. He said his wife had gone to Deerfield.”
    On cross-examination she testified :
    “ I resisted him. I made all the resistance necessary to protect myself. He took hold of my arm, and tried to pull me into the shed, but he did not disarrange my clothing, or knock off my hat, or displace a button. Not a single thing was done there to my wearing apparel by which it was put out of shape or out of order. There was no scuffle.”

      The witness testified that, subsequently to this transaction, the respondent wrote and gave a letter to her, which she destroyed. She testified that she thought that in that letter respondent said “ I should meet him in the woods;” that she afterwards saw him standing behind a bush in the woods; that she then went into the garden, where her brother was working; that respondent came up to the fence, talked with them, and, when her brother was not looking, motioned her to follow him; that once afterwards he was standing or sitting behind a bush, and called from there to her to come over, but she paid no attention to him; that she went into the house, shut the door, and that respondent came, rapped at the door, and then went away; that he afterwards gave her a bicycle, telling her to tell her parents that another girl had let her take it. On the 21st of June he wrote her a letter, asking her to keep still as to what had happened, both for his sake and her own.
    The respondent denied the transaction. His wife also testified that she was present at the time, and that nothing improper took place.

      John Riley and Watts, Smith & Baldwin, for appellant.

      Theodore M. Joslin, Prosecuting Attorney (J. U. Sampson, of counsel), for the people.
   Gbant, J.

(after stating the facts). This is an anomalous case. I have found no one like it in the books. The only act of familiarity previous to the alleged assault, testified to by the prosecutrix, was that at her own house, when he, in the presence of her mother and his own wife, followed her into the pantry, put his arm around her neck, kissed her, and invited her to his house. She does not testify to any other act of impropriety, or to any request for sexual" intercourse, or to any fondling of her person. So far as the record shows, she only inferred from his conduct what he desired. She shows a not very creditable knowledge of the meaning of sexual intercourse and its consequences. At the time of the alleged assault she does not testify that he made any proposition to her for sexual intercourse. If, as she testified, his wife and son were away, naturally he would have invited her into the house, instead of seeking to take her into an open shed along a public highway to accomplish a heinous crime. If she understood his object to be sexual intercourse when he took hold of her arm, and she said she was afraid of the consequences, and he then promised to get her a French safe, the language of his reply would hardly- justify the •conclusion that he contemplated intercourse at that time, but at some future time.

Under the statute (section 11489, 3 Comp. Laws), under an information charging rape a respondent can be convicted of the lesser offense of assault with intent to commit the crime of rape. People v. Courier, 79 Mich. 366 (44 N. W. 571); Hanes v. State, 155 Ind. 112 (57 N. E. 704); Liebscher v. State (Neb.) 95 N. W. 870. The intent is the gist of the offense, and every laying on of hands upon a female under the age of consent, even though improper, does not necessarily imply an intent to have .sexual intercourse. Indecent liberties may be taken with a child without any such intent. The statute recognizes this in providing a penalty for taking indecent and improper liberties with a female child without intending to commit the crime of rape. Section 11719, 3 Comp. Laws. This court held that where the respondent put his arm around the waist of a child, with no offer or threat or request to be allowed to take any other liberties with her person, he was not guilty under the statute. People v. Sheffield, 105 Mich. 117 (63 N. W. 65). The language used in that case is equally applicable here:

‘ ‘ Such mere familiarity, participated in and consented to by the child, in the absence of indecent and improper liberties, between a man over 50 years of age and a girl under 14, who have been intimate and frequently in each .other’s oompany, does not constitute an assault.”

There is evidence from which it may be inferred that the respondent intended to have sexual intercourse with, the prosecutrix. In- cases of this kind it is the duty of the-court to carefully instruct the jury as to the distinction between improper liberties with the intent to have sexual intercourse and improper liberties without such intent. The court, in his instruction, said to the jury:

“As I said to you, she could not give consent, even though she might have been the one who solicited it. If he sought to do that with her with that intent, then he would be guilty.”

This certainly, standing alone, would be erroneous, because it would leave out the question of assault. Actual violence or actual assault is essential to the commission of this crime, even upon a girl under the age of consent. This language, standing by itself, would leave the jury to infer that it would be sufficient if he solicited the intercourse. It is due to the learned circuit judge to say that that was probably not what he intended, because immediately following he says that, if he did not assault her with that intent, then he would not be guilty. The jury, however, might be misled into considering that, if he approached her with that in view, this would constitute an. assault. For this reason- we think the charge was erroneous.

It was claimed that the respondent gave the prosecutrix a wheel on June 16th, and that he told her to tell her folks that one Lillie Aten let her take the wheel. The prosecutrix’s mother was permitted to testify to what her daughter told her afterwards in regard to this wheel. This was erroneous. It was hearsay testimony, and not-admissible under the rule permitting evidence of complaints made to others after the commission of the offense.

On cross-examination of respondent, under objection and exception, the following questions were asked •

Q. Do you know Gussie Poole?
“A. Yes, sir.
Q. Isn’t it true that about three years ago yon assaulted her in this same way ?
“A. No, sir.
Q. Put your arms around her ?
“A. No, sir.
“ Q. And took indecent liberties with her?
“A. No, sir.
Q. And isn’t it true that you told her you would buy her a dress if she would keep still ?
“A. No, sir.
Q. 'Well, you were sued for that, were you not?
“A. Yes, sir. * * *
“ Q. You were sued for doing that thing, were you ■not ?
“A. Why, I couldn’t say exactly; no.
“ Q. Do you say, Francis Dowell, that you don’t know whether you were sued for .putting your arm around G-ussie Poole and taking indecent liberties with her ?
“A. I think .that was it; yes, sir. * * *
Q. You know Gussie Poole’s mother ?
“A. Yes, sir.
“ Q. And isn’t it true that you offered to buy her a dress if she would let you do as you pleased with her ?
“A. No, sir.”

This method of cross-examination was condemned in People v. Gotshall, 123 Mich. 474 (82 N. W. 274). It appeared that, though the suit referred to had long been pending, it had never been brought to trial.

Conviction reversed, and new trial ordered.

The other Justices concurred.


author: Grant, J.

text:
    BROWN v. STEVENS.
    1. Dangerous Premises — Trapdoor in Store Floor — Injury to Customer — Contributory Negligence.
    Where a' customer was told that he would find what he wanted " in the back part of the store, and, in walking back, was injured by falling into an open trapdoor in the middle of the floor space provided for the use of customers, held, that, unless properly warned, he had a right to rely on the safety of the floor, and was not guilty of contributory negligence, though he might have seen the opening had he looked.
    2. Same — Negligence—Sufficiency of Warning.
    A storekeeper who knew that a customer, a stranger in the store, whom he directed to the rear of the store, had defective eyesight, and concedes that his appearance was not that of one in the possession of the ordinary faculties, did not perform his full duty, though not knowing he was deaf, in merely saying to him, in an ordinary tone of voice, to look out for the trapdoor, which was open, without telling him where it was; it being in the middle of the floor space provided for the use of customers, and where he could see persons standing around.
    Error to Montcalm; Davis, J.
    Submitted March 15, 1904.
    (Docket No. 117.)
    Decided April 5, 1904.
    Case by Christian Brown against George W. Stevens and Egbert G. Stevens, copartners as G. W. Stevens & Son, for personal injuries. From a judgment for plaintiff, defendants bring error.
    Affirmed.
    Plaintiff fell into an elevator opening in the floor of the defendants’ store, and was injured. He recovered a verdict of $700. The negligence alleged was leaving this opening unguarded, and giving no proper notice to the plaintiff of the danger.
    The defendants’ store was 100 feet long by 20 feet wide. The basement was 8 feet deep. The first floor of the building, which consisted of two stories, was the general salesroom, with counters along the north side nearly the entire length. On the south side were tables for crockery and goods of various kinds. About midway between the two ends of the store was a trapdoor extending from 6 to 8 feet north and south, and 4 to 6 feet east and west. It extended nearly across the entire space used for customers in passing to and fro. There was no railing around the opening, and no protection when the trapdoor was open for raising material from the cellar. At the time of the accident, two of the defendants’ employes were hoisting doors from the basement to the salesroom above; one being in the basement, and the other at the opening on the first floor. Some doors had just been raised, and the employe, assisted by a customer named Yogel, who happened to be standing near by, was pulling them away from the opening, when the plaintiff walked along the floor and fell in. Two other persons besides the employe and Mr. Yogel were standing around the opening.
    Plaintiff was 53 years old, of very defective eyesight, and always had been. In walking he stooped over, turning his head to one side, had a “shambling” gait, walked like a man intoxicated, and appeared to be cross-eyed. His hearing also was somewhat impaired. On account of these physical defects he was unable to do much labor, and the damages were limited to pain, suffering, and physical injuries. His intellect was not acute, but the court instructed the jury that- he had sufficient intelligence to be responsible for any notice or warning of danger given to him. Plaintiff lived in the country, had never been in the store “before but once, and knew nothing about the trapdoor or elevator. He went into the store to buy a corn-planter for a neighbor. Defendant Egbert G. Stevens was in the front part of the store, and told him he had some corn-planters in the back end. Plaintiff testified that he said something else that he did not understand. Plaintiff then went towards the back end of the store to see the corn-planter, and fell into the opening. Those standing about the opening saw him, and supposed he saw the opening. There was a window in the back end of the store, the light from which struck the floor a distance beyond the opening. ■ As plaintiff approached the opening no warning was given. He gave evidence tending to show a serious injury. The three persons standing around the opening testified that defendant Egbert came up to the opening after plaintiff fell, and stated that he did' not think about the hole being open at the time he sent plaintiff back to get a corn-planter. There was also testimony that Egbert said, {í I knew he was almost blind.”
    The record states that the defendants gave testimony tending to show that defendants were not aware of plaintiff’s defective eyesight, but that in walking he scooped over, turned his head to one side, had a shambling gait, walked like a man intoxicated, and appeared to be cross-eyed; that plaintiff had some conversation with Egbert G. Stevens about a corn-planter, then went out to the front door; that he subsequently returned into the store, and, while passing the office desk, Mr. Stevens said to him to be careful or look out, that the trapdoor was open.

      N. O. Grisivold (John 8. Tennant, of counsel), for appellants.

      Charles L. Barden and Frank A. Miller (C. B. Bar-den, of counsel), for appellee.
   Grant, J.

(after stating the facts). This case in all its essential features is ruled by McCrum v. Weil & Co., 125 Mich. 297 (84 N. W. 282). See, also, Felton v. Schmidt, 104 Mich. 349 (62 N. W. 552, 53 Am. St. Rep. 462); Neff v. Inhabitants of Wellesley, 148 Mass. 487 (20 N. E. 111, 2 L. R. A. 500); Smith v. Wildes, 143 Mass. 556 (10 N. E. 446); Hendricken v. Meadows, 154 Mass. 601 (28 N. E. 1054).

The plaintiff was not guilty of contributory negligence unless he was warned of the danger. Unless he received such warning, he was justified in believing that the floor was in safe condition for him to walk over, and he could not be held guilty of contributory negligence, even though he might have seen the opening had he looked. When merchants invite their cutomers to walk over their floors in front of their counters for the purpose of examining their goods and making purchases, such customers have a right to rely upon the safety of the floor. (See authorities above cited.) The fact that others were standing around would be no notice of danger. On the other hand, their presence might partly have concealed the opening, and furnished an additional reason for believing that no open-ing was there, even if he had been informed that there was an opening somewhere.

The defendants requested the court to submit the following special question:

“Did the defendant Egbert G. Stevens notify the plaintiff, Christian Brown, when in the defendants’ store before he fell, to look out, for the trapdoor was open, or use-words to that effect to him ?”

The question as submitted read thus:

“ Did the defendant Egbert G. Stevens notify the plaintiff, Christian Brown, when in the defendants’ store before he fell, in a manner that he ought to have heard it, to look out, for the trapdoor was open, or use words.of' that effect to him ?”

It is urged that there was no evidence tending to show that defendant Egbert G. Stevens knew that plaintiff was. deaf, and that therefore defendants had performed their full duty by saying to him in an ordinary tone of voice that the trapdoor was open, and to look out. We do not. think that defendants performed their full duty to plaintiff, if they knew His eyesight was very defective, by simply notifying him to look out for the trapdoor. Plaintiff was in the store upon their invitation. He had been invited to go to the back end. He was a stranger there. They did not inform him where the trapdoor was. Naturally, he would not presume it to be where he, with his defective eyesight, saw people standing. Neither would he presume it to be in the middle of the floor space provided for the use of customers. According to their own testimony, his appearance was like thát of one intoxicated, and not that of one in the possession of ordinary faculties. Under the circumstances, it was their duty to do something more than to tell him in an ordinary tone of voice to look out for the trapdoor. Every one, whether his eyesight is good or bad, has the right to assume that the floor of a store, where he can see persons standing around, is perfectly safe.

We have examined the testimony upon the question of damages, and the allegations of error in connection therewith. We find no error in them, and do not consider them of sufficient importance to the profession to discuss. Judgment affirmed.

The other Justices concurred.


text:
    PEOPLE v. McGARRY.
    1. Courts — Adjournment—Journal Entry — Jurisdiction—Presumption.
    A criminal cause was transferred to the circuit court of another county, and the respondent was ordered to appear for trial on May 1st. The court to which the cause was transferred had adjourned on March 29th previous; the journal entry of that date showing, “Thereupon court adjourned.” On the call of the case on the day fixed for trial, it was objected by respondent that the term had expired, ‘and the court was without jurisdiction. Held, that it did not appear that the court had adjourned without day, and that since, otherwise, the term continued until the next succeeding term, the court had jurisdiction to try the respondent.

      Held, further, that 1 Comp. Laws, § 303, requiring an ending of the term when the judge fails to attend for five successive days, was not controlling, since it did not appear that the judge had failed to attend, and there was no presumption to that effect.
    2. Criminal Law — Bribery—Indictment—Sufficiency.
    An indictment charging respondent with bribing a city attorney ' to advise the execution of a contract between the city and certain others, the measure being one that might come officially before him, states an offense, although the contract was one which the city had no authority to make.
    3. Same — Corpus Delicti — Evidence—Conspiracy—Res Gesta; —Confessions.
    Where, in a prosecution for bribery, it was claimed that there was no evidence of the corpus delicti, except extrajudicial confessions, held, that all testimony going to show that the person alleged to Gave been bribed actually received a bribe was admissible; and, a conspiracy to bribe having been established, in which respondent took part, what respondent said in planning and carrying out the plan was res gestee, and distinguishable from confessions, although consisting of statements of transactions to his confederates, if they were transactions in the furtherance of the enterprise.
    4. Same — Acts and Statements op Conspirators.
    Where a conspiracy between respondent and others to corruptly obtain municipal action, of which the alleged bribery of the city attorney was an incident, was proved, conversations between the conspirators in respondent’s absence were admissible, as well as their acts, so long as they were shown to have been in furtherance of the project, as contradistinguished from mere narration of past transactions.
    5. Same — Order op Proof — Discretion op'Trial Judge.
    The order of proof is largely, if not wholly, within the discretion of the trial judge; and, there being ample evidence of a conspiracy, and respondent’s connection therewith, it was not reversible error to admit the statements and acts of other' conspirators before the introduction of evidence showing respondent’s complicity.
    6. Same — Letters.
    A letter written by one of the conspirators to another, stating what had been done with relation to the official bribed, was admissible as a part of the transaction; there being direct, positive, and competent proof that respondent became connected with the conspirators at an earlier date.
    7. Same — Trial—Exclusion op Witnesses.
    Where, in a prosecution for bribery in furtherance of a conspiracy, an order was made excluding all witnesses during the trial, and, one of the conspirators having given testimony for the people, another was called, and, before he was interrogated by the prosecution, it was brought out by the defense that he had in his possession, for the purpose of indexing, some of the typewritten stenographer’s notes of the former witness’ testimony, and had talked about it with one of the counsel for the people, the application of respondent to exclude all testimony from the witness was properly denied.
    8. Same — Evidence—Probabilities.
    Testimony of the wife of one of the conspirators that, when her husband left New York for Michigan, he had no considerable amount of money, and on his return, a week or two later, she saw him have §700, was admissible as a fact consistent with the claim that he received $1,000 a short time before.
    9. Same — Failure to Produce Witnesses — Comments of Counsel.
    It was not error, under the circumstances of the case, as shown by the record, to permit counsel for the people to comment on the failure of respondent to produce particular witnesses, as well as a deposition taken; the rule of permission extending to criminal cases, and applying to depositions taken and not used, and to accomplices, and to witnesses within respondent’s reach or control.
    10. Same — Commission of Offense — Particular Day — Instructions.
    Where respondent, charged with bribery in furtherance of a conspiracy, in a conversation with his co-conspirators, as testified to by them, stated that he paid the money to the official bribed on a certain day, and there was no evidence that it was paid on any other day, but respondent introduced testimony tending strongly to show that he was absent on the day charged, it was not error to instruct the jury that respondent’s oonviotion did not necessarily depend on their ability to find that he paid the money on the day specified, but that it would be sufficient if they were convinced, from the circumstances shown, that it was paid on some other day about that time.
    11. Same — Misstatements of Respondent on Former Trial.
    Previous misstatements of respondent in relation to matters material to the issue were admissible, although made as a witness on the trial of the official bribed.
    Exceptions before judgment from Allegan; Wolcott, J., presiding.
    Submitted November 20, 1903.
    (Docket No. 237.)
    Decided April 5, 1904.
    Thomas F. McGarry was convicted of bribery.
    Affirmed.

      Allen B. Morse and William F. McKnigM, for appellant.

      William B. Brown, Prosecuting Attorney, and Charles F. Ward, Assistant Prosecuting Attorney (Wesley W. Hyde, of counsel), for the people.
   Hooker, J.

This cause is closely related to that of People v. Salsbury, 134 Mich. 537 (96 N. W. 936). In this cause the defendant is charged with bribing one Salsbury, who was- convicted of receiving a bribe in that case. It follows that the cases are similar, and, as a perusal of that case will aid in understanding this, we do not state the facts at length in this opinion. Several, and perhaps what may properly be called the more important, questions discussed in the briefs of defendant in this case have been settled by the former opinion, which, it is but just to say, was filed after the briefs had been prepared and filed in this cause. In view of that decision, we find it unnecessary to further refer to such questions, and will endeavor to deal only with such as were not passed upon there.

There are nearly 600 assignments of error, and it will be impracticable to deal with each separately. We will therefore be guided by the brief of counsel for the appellant, which has attempted to group them with relation to specific questions.

Was there jurisdiction to try defendant on May 1st ? This case being pending in the superior court of Grand Rapids, it was found difficult to obtain a jury, and the .judge of that court made an order that it be transferred to the circuit court for the county of Allegan, and that the respondent appear there on May 1st of the then current year. Upon that day the court was opened, Hon. Alfred Wolcott, judge of the Seventeenth circuit, presiding; he being a resident of Grand Rapids, which was within the Seventeenth circuit. Counsel for defendant objected to proceeding with the trial upon the ground that it appeared from the journal that, upon March 29th previous, the circuit court for Allegan county had been adjourned without day, and that there was consequently no authority for calling the jury, or requiring the defendant to go to trial, or proceeding further in the matter. The presiding judge caused the journal to be presented to Judge Padgham, the judge of that circuit, who held court therein upon said March 39th, to be signed, if correct, and, if not, to be corrected and signed. Counsel then offered to show that the journal as originally written was as follows, viz., “Thereupon court adjourned,” and the testimony was held inadmissible. The journal was afterwards produced, and it showed the following, viz., “Thereupon court-adjourned until May 1st, 1903,” over the signature of Judge Padgham. Counsel caused to be inserted in this record, and made a part of the bill of exceptions, a certificate of the clerk to a transcript of the proceedings of March 39th, which includes the statement that the words “until May 1st” were added on April 39th, and that “no written order between March 39th and April 38th has been filed in this court, by the judge thereof, to adjourn said court to a day certain.” Counsel say that it does not appear that it was a correction entry, but “appears to have been made to meet the order of the judge of the superior court of Grand Rapids.”

If the question before us can be raised in the face of the signed journal, which, upon its face, shows an adjournment to May 1, 1903, and which can hardly be said to be susceptible to contradiction, it is not a ground for reversal in this cause. It is doubtless true that a court may adjourn sine die, and, where its record shows that it has done so, it may be doubtful if the judge can lawfully reopen the term. Counsel have cited several such cases. But that is not this case, under the proof offered. The most that is inferable from the uncontradicted journal is that the court did not adjourn to a day certain, not that it adjourned sine die, unless by operation of law. In such a case, as in the case of adjournment to a definite day, the court exists, in “some respects suspended, but not destroyed.” See Eastman v. Concord, 64 N. H. 264 (8 Atl. 833); People v. Bank, 53 Barb. 412. This case may, in one view, be said to be like one where the judge fails to attend at the time to which it has been adjourned. Langhorne v. Waller’s Ex’r, 76 Va. 313, is such a case. It is fair to say, however, that a statute is construed to so provide. See, also, Union Pac. R. Co. v. Hand, 7 Kan. 380.

The case of People v. Sullivan, 115 N. Y. 190 (21 N. E. 1039), is closely analogous to the present case. In that case a court was adjourned to a day certain, and the judge was detained for two days, when he resumed the hearing of a criminal case on trial at the time of the adjournment. It was said that “ every term continues until the call of the next succeeding term, unless previously adjourned sine die.” In that case it adjourned to a day certain in the first instance, but no order was made thereafter for two days. And it has been held that, where adjournment is to a day .certain, the court may meet and proceed with business at an earlier date. Cole County v. Dallmeyer, 101 Mo. 57 (13 S. W. 687); Bowen v. Stewart, 128 Ind. 507 (26 N. E. 168, 28 N. E. 73); Wharton v. Sims, 88 Ga. 617 (15 S. E. 771),—cited in 1 Enc. Pl. & Prac. 245.

It is contended that 1 Comp. Laws, § 303, controls this, but we think not. If this statute must be held mandatory, and to require an ending of the'term at the end of five days, when the judge does not appear at the beginning of term, or even after adjournment (which we do not decide), we cannot assume that the judge was not present each day, although no business was done; and, if so, the clerk and sheriff would be powerless to adjourn without day, as it could not be said that the judge did not attend. There is no presumption in this case that he did not attend. As in the New York case cited, the point is purely technical.

Judge Wolcott was qualified to sit in the cause. It does not appear that the cause was transferred upon the ground that he was not. ■

Did the indictment charge an offense ? We think the question was raised and decided in the Case of Salshury. One feature of it will be noticed, however. ’ It seems to be contended that the indictment is bad for the following reasons: (1) The proposed contract was one which the council had no lawful authority to make; (2) it was not an official duty of the city attorney to advise the making of an unlawful contract. Counsel say that, under such circumstances, his act would not fall within the statute, which 'punishes only bribery to perform acts within the officer’s lawful authority. In other words, the city •attorney might be guilty of bribery in agreeing to advise lawful action, but could not be for advising unlawful action, by the council. The mere statement of such a proposition is sufficient to show its fallacy, as in the claim that one could not be convicted of bigamy because the bigamous relation was with a married woman, and therefore a void marriage. The validity of the act proposed is not the test. The statute punishes the city attorney for officially giving an opinion corruptly. It is upon the theory that his opinion may be expected to influence the council, •alderman, or other officer. It does not depend upon the goodness or badness of the advice, or whether it favors or opposes a given measure, but upon the intent and corruption involved. Again, it is as much an official duty to advise against a measure upon the question of authority on the part of the council as any other. Here the defendant is charged with bribing Salsbury to advise a contract which he now claims was void, but which he then paid for advising to be valid, and his counsel claim immunity upon a ground which intensifies his turpitude. The statute under which the defendant is prosecuted makes no such distinction. We think, as we said in our former opinion, that this measure was one which might come officially before the city attorney, which is all that was necessary.

We have not overlooked the recent case of State v. Butler, 178 Mo. 272 (77 S. W. 560). That case arose upon an ordinance passed by the St. Louis common council. The defendant was charged with an attempt to bribe a member of the board of health by offering him $2,500 if he would vote as a member of such board to accept a certain bid for the reduction of the garbage of the city. The court found that the Ordinance conferring authority upon the board of health to let such contract was invalid and conferred no power upon the board, and therefore that the acceptance of the bid was a matter that did not by law come before the board, and no offense could be committed by bribing a member to vote on such a proposition. That ■case asserts that, under the terms of the statute,—

“It is an essential element of the offense charged that there must be a valid law in existence at the time of the offer to bribe, authorizing and requiring the officer to act. Without this, his action is not subject to influence, and there can be no bribery, within the terms of the statute.”

In the case of State v. Ellis, 33 N. J. Law, 103 (97 Am. Dec. 707), the following were the facts: Application was made to the common council of Jersey City for the privilege of laying a railroad on a public street, and defendant offered a bribe to one of the councilmen to vote in favor of the application. The defense was made that the council had no power to grant the application; hence there could he no bribery. The court held otherwise. It would seem that the present case is upon all fours with the New Jersey case above mentioned. Furthermore, that case is distinctly approved in the case of State v. Butler, as appears from the following quotation:

“ It was clearly correct as to the case before it, and is in no way in conflict with the conclusions reached in this case.”

The opinion in State v. Butler emphasizes this rule as laid down in the New Jersey case by saying:

“ In the first place, the indictment in that case was for a common-law misdemeanor; but, aside from that, the charge contained all the essential elements of bribery. It was immaterial whether the action of the council could be enforced. It was a matter pending before the council, upon which the members had a right to vote. ' It was not necessary ‘that the vote, if procured, would have produced the desired result.5 The simple question was, "Was the member of the council authorized to vote upon the matter pending ? It is very frequently of greater importanee to the public for a member of the city council to vote upon a question pending where the effort is to secure unauthorized legislation than upon matters fully authorized. Under such conditions the members of the council are not only authorized to vote, but it is their duty to vote, and to vote ‘No,’ and every attempt to influence their action by the offering of a bribe in respect to such vote constitutes the offense of bribery. That the decision in that case is not pertinent to the proposition now being discussed, we think, is too plain for discussion.”

In Glover v. State, 109 Ind. 391 (10 N. E. 282), defendant, a school trustee, was indicted for accepting a bribe to enter into a contract for the purchase of furniture and supplies for his school. His defense was that the contract, as reduced to writing, was not binding. In commenting on this case, the opinion in State v. Butler says:

“ The contention of the appellant was that the contract, as reduced to writing, was not binding upon the school township. The court, upon that proposition, very correctly said:
“ ‘It is not material whether the contract entered into could have been enforced against the township or not. If it was already executed, and the amount paid out of the township funds, of course, it could not be material whether or not the contract was in writing. Nor could it be material in any event. The question is not whether appellant entered into a contract binding upon the township, but whether he accepted the bribe.’ ”

The other questions upon this branch of the case need not be considered, in view of the former opinion.

Was there competent proof of the corpus delicti ? Counsel say that the only evidence that the defendant bribed Salsbury to give an opinion, etc., is to be found in extrajudicial confessions testified to by Cameron and Gar-man, who were particeps criminis. If this is to be considered a case in which we can separate the corpus delicti from the person who committed the offense, as may be done in such offenses as homicide or larceny, all testimony going to show that Salsbury received a bribe, as charged, is admissible, and we think that there is evidence tending to show it aside from McGarry’s confessions. Much of it is circumstantial, but it is none the less admissible, and adequate if sufficient to exclude a reasonable doubt. Counsel seem to argue the question as though defendant’s connection with the bribery were a part of the corpus delicti, and the point really appears to be that only Garman and Cameron connect defendant with it. We are of the opinion that there is other circumstantial evidence bearing upon the question. There is the fact of the conspiracy, :and proof of the various acts to carry it out, in which Gar-man, Cameron, Taylor, Salsbury, and McGarry participated. That McGarry took part in some capacity can hardly be questioned, and it w;as for the jury to determine whether he was an accomplice, or merely a lawyer honestly and legitimately adhering to his professional rights and duties. What McGarry said in the plotting, planning, and carrying out the plan is distinguishable from •confessions. It was res gestee, instead of an admission, and does not fall within the definition of confessions, although it might be statements of transactions to his confederates, if they were transactions in furtherance of the enterprise. It is not necessary to find a witness who overheard the interview between defendant and Salsbury, and saw the money paid over. We have no difficulty in concluding that there was evidence outside of confessions of the defendant upon both propositions, viz., that Salsbury was bribed, and that defendant participated in it, and it is .not for us to review the question of fact.

Rulings upon the subject of conspiracy: Counsel .admit that it was unnecessary to set up a conspiracy in the indictment, and apparently concede that it was competent to show the circumstances which led up to the alleged bribery. If there was a conspiracy, it was part of the res gestee, and admissible. They contend, however, that, while it was competent to show a conspiracy between defendant and others to bribe Salsbury, a conspiracy to do anything else or to bribe others was not admissible. We think that it was competent to show a conspiracy to-corruptly obtain municipal action, of which the alleged bribery of Salsbury was an incident, and upon which it threw light. Such evidence tended to explain the relations of the parties, as well as their acts; and, to this end, it. was competent to show the early transactions, before those originating the plot knew the defendant, and before he-heard of it, as well as the things that were done by them and him as long as he continued to aid it, although after Salsbury had yielded, and received the money promised from the defendant. Hence conversations between the conspirators Garman and Cameron in furtherance of the project were admissible, although defendant was not present. The plans of these parties, like their acts, need not have been made in the presence of all, to be admissible, so long as they are shown to have been in the furtherance of the project, as contradistinguished from mere relation of transactions and acts that were past. Such testimony is not hearsay. Counsel complain of the introduction of such evidence before there was other evidence showing defendant’s complicity; but this goes to the order of proof, which is to some extent, if not wholly, within the judicial discretion, which we think was not improperly exercised in this instance. There was abundant evidence in the case to show the conspiracy, and defendant’s connection with it; and the case should not be reversed on so technical a ground as that the order of proof was not the usual or most approved, if such were the case, which we do not imply.

Counsel call attention specifically to several alleged errors in this connection. They concede that Garman- and Cameron gave testimony tending to show that defendant became connected with them as early as June 5th. This was direct, positive, and competent proof. A letter was introduced, dated at Grand Rapids on June 14th, from Cameron to Garman, and stated what had been done with relation to Salsbury. It is claimed that this was a mere relation of events, and inadmissible. It was clearly admissible as a part of the transaction. There was much other testimony which comes within the same ruling. As counsel say, “This class of errors permeated the case.” We cannot discuss each separately, and they have not. So far as our attention has been called to them, we think they were not errors.

A rqotion was made to exclude all witnesses during the trial, and the witnesses were “put under the rule.” On Garman’s cross-examination, before he was interrogated by the prosecuting attorney, it appeared that he had in his possession, for the purpose of indexing, some of the typewritten stenographer’s notes of Cameron’s testimony, and talked about it with one of the counsel for the people. The court was asked to exclude all testimony from the witness, and this was refused, and he was permitted to testify. The court was clearly right. See 8 Enc. PI. & Prac. 93, 94, and notes.

Error is assigned upon the testimony of Mrs. Gar man, who stated that she knew that, when her husband left New York for Michigan, he had no considerable amount of money, and that on his return, a week or more later, she saw him have $700. The value of this testimony may be small, in view of the possibility of his getting money elsewhere, but it is unlike the statements made regarding money in possession. Such would be hearsay. That cannot he said of this. We think no injury could result from the testimony, and that it was admissible as a fact consistent with the claim that he received $1,000 a short time before.

No error was committed in indorsing the name of witness Wismer on the information, upon the showing made. We do not discover any reason why the judicial discretion should be questioned.

We think it unnecessary to discuss the exclusion of certain journal entries, or the claim that the prosecuting attorney commented on defendant’s omission to testify. We think that no such inference was necessary from the language used.

Error is assigned upon the following remarks of counsel for the people in his argument to the jury:

“‘Now, gentlemen, there is Mr. Cummings, there is Mr. Taylor. If Cameron and Garman don’t tell the truth about that interview, why didn’t they bring Cummings and Taylor to testify about it ? * * *’
“And, again, Mr. Ward said, ‘Ah, gentlemen of the 'jury, you can see why it is these men are not called. Even the deposition of Mr. Gates is not here any more.’”

There are many cases which justify comment upon the failure of a party to produce particular witnesses, and the rule extends to criminal cases. 3 Rice, Ev. 39; State v. Ward, 61 Vt. 153 (17 Atl. 483). It is not an unqualified right, and depends upon the circumstances of the case. We think it applies to a deposition taken by the party and not used, and to accomplices and other witnesses within their control, or with whom they are or have been closely associated, especially where such witnesses are in a position to speak on matters damaging to such party, already in evidence. 1 Starkie, Ev. 34; 3 Id. 487. See 2 Enc. Pl. & Prac. p. 714, and notes, where cases are cited, and our own cases of Gavigan v. Scott, 51 Mich. 373 (16 N. W. 769); Cook v. Insurance Co., 86 Mich. 554 (49 N. W. 474). This record does not justify a reversal upon .this ground.

The contention is made that the court erred in directing the jury that defendant’s conviction did not necessarily depend on their ability to find that he paid the money to Salsbury on the 7th of July, and that it would be sufficient if they were convinced that it was paid on some other day about that time. This is upon the claim that there was no evidence to show that it was paid upon any other day than that stated by McGarry in the alleged conversation with Garman and Cameron. The defendant offered considerable testimony tending to show that he was absent on the 7th of July, and the jury were at liberty to find that it was not paid that day, although believing the statements of Garman and Cameron that defendant had so stated, and to find from the circumstances shown that the money was paid about that time, although not upon that day. Under such circumstances, the court should not have said that the people must fail if the jury could not find that it occurred upon that particular day. The charge was laid under a videlicit, and such an inference was permissible .under the proof.

"We think it competent to show the previous misstatements of the defendant, if there were such, in relation to matters material to this case, although made as a witness upon the Salsbury trial, especially if contrary to his theory .of defense in the pending case.

It is unnecessary to comment further upon the alleged ■errors in the charge. The claims are not justified by the record, and no error was committed.

There are many assignments of error based upon refusals of requests to charge. These requests number 153. They are argumentative and full óf repetitions, and many of them might more properly go from counsel direct to the jury. There would, of course, be an added weight if presented through the court, but it is not a commendable practice for a court to allow himself to be thus made the mouthpiece of counsel. Some of the points raised are covered .by what has been said, and others are covered by the charge. Some cannot be sustained as proper directions to be given to the jury. We have examined such of them .as counsel have discussed, and find nothing in them calling for a reversal of the cause.

There are some other points made, but nothing which calls for a reversal of the case.

The conviction is affirmed.

Moore, C. J., Carpenter and Grant, JJ., concurred. Montgomery, J., did not sit.


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    GELLER v. BRISCOE MANUFACTURING CO.
    1. Master and Servant — Unsafe Water Cooler — Contributory Negligence.
    Where an employer furnished water coolers out of which its employés could drink, and poison was placed in one of them for the purpose of cleansing it, without any warning to employés not to drink therefrom, an employé was not guilty of contributory negligence in drinking from it.
    2. Same — Unexpected Accident.
    In such case the resulting injury to the employé could not be-said to be an unexpected accident, but, rather, was an event to be anticipated.
    3. Same — Negligence—Question for Jury.
    A jury is justified in finding that a direction by a foreman in a factory to put potash in a water cooler from which employés drank, unaccompanied by instructions to adopt precautionary measures against injury, was negligence.
    4. Same — Duty of Master — FelPow-Servants.
    An employer is bound to use due care to see that a water» cooler furnished for the use of its employés shall in the first instance be reasonably safe for use, and is chargeable with the negligence of any subordinate to whom it delegates the duty; the latter in such case acting, not as a fellow-servant, but as the representative of the employer. So held where potash was placed in a cooler manufactured by the employer, after it had been in use for two weeks, by direction of a foreman, for the purpose of cleansing it of red lead and grease used in its construction, and an employé drank therefrom, to. his injury.
    Error to Wayne; Rohnert, J.
    Submitted January 5, 1904.
    (Docket No. 5.)
    Decided April 19, 1904.
    Case by Charles Greller against the Briscoe Manufacturing Company for personal injuries. From a judgment for plaintiff, defendant brings error.
    Affirmed.

      Keena & LigMner, for appellant.

      Dohany & Dohcmy, for appellee.
   Carpenter, J.

Plaintiff was an employe, working in the manufactory of defendant. In the room in which, plaintiff worked were three water coolers, called “Hygienic water coolers.” They were manufactured by defendant, and furnished drinking water to plaintiff and his co-employés. On the morning of July 17, 1902, -plaintiff drank of the contents of one of these coolers. What he drank was a mixture of potash and water, an irritant poison, and it seriously injured him. According to his testimony, there was nothing about the cooler to warn him that he-might not drink therefrom. This poison had been placed in the cooler by one Fenrich, by the direction of the defendant’s foreman, for the purpose of cleaning the tank of red lead, which gave an unpleasant taste to the water. At the time plaintiff drank the mixture, Fenrich had not completed the operation of cleaning the tank, but had stepped aside to get more potash. The issue was submitted to the jury, who rendered a verdict for the plaintiff. We are asked to reverse the judgment on the ground that there was no evidence of defendant’s negligence, that the evidence established plaintiff’s contributory negligence, and that the injury to the plaintiff was an unexpected accident.

Respecting the claim that the plaintiff was guilty of contributory negligence, we think it sufficient to say that, if the plaintiff’s testimony was true, — and this was a question for the jury, — he was not guilty of contributory negligence.

We think it equally clear that plaintiff’s injury did not result from an unexpected accident. It seems to us that his injury was just what should have been anticipated from putting this poison in the drinking water.

The serious question in the case is whether the plaintiff’s, injury was the result of defendant’s negligence. It may be inferred from the record that defendant’s foreman, who directed the potash to be put in the water, had full authority to act. It is also clear that, if this direction was not negligence as a matter of law, the jury was warranted in finding that it was negligence (see Bower v. Reate, L. R. 1 Q. B. Div. 321; Robbins v. City of Chicago, 4 Wall., at pages 678, 679), for in giving this direction he did not accompany it with instructions to adopt precautionary measures to prevent injury. It would be difficult to imagine a more negligent act.

In giving the directions to put the poison in the water cooler, did the foreman act as a representative of his employer, or as a fellow-servant ? The cooler had been in place about two weeks. It was manufactured by defendant. It was- necessary to clean it, because red lead and grease, used in its construction, contaminated the water. We think it may be inferred that red lead would tend to make the water unsafe for drinking purposes, as well as unpleasant. In our judgment, these facts warrant the inference that defendant did not furnish a reasonably safe receptacle for drinking water to be used by its employés, and we think it may also be inferred that due care on its part would have made it safe. If defendant had furnished in the first instance a reasonably safe water cooler, its obligation -to use due care to see that it did not become unsafe through user is a question not involved in this suit. We think it clear, however, that defendant was bound to use due care that the water cooler furnished for the use of its employés should in the first instance be reasonably safe for use, and that it was chargeable with the negligence of any subordinate to whom it delegated this duty. See Van Dusen v. Letellier, 78 Mich. 492 (44 N. W. 572); Morton v. Railroad Co., 81 Mich. 423 (46 N. W. 111); Sadowski v. Car Co., 84 Mich. 100 (47 N. W. 598); Roux v. Lumber Co., 94 Mich. 607 (54 N. W. 492); McDonald v. Railroad Co., 132 Mich. 372 (93 N. W. 1041). This duty was never completely performed. Defendant did not undertake its personal performance. It delegated that duty to its foreman, and he was undertaking to perform it when he gave the direction in question. In performing this duty, he was not acting as a fellow-servant, but was acting as the representative of the defendant, and defendant is liable for his negligence.

The judgment will be affirmed.

Moore, C. J., and Montgomery, J., concurred. Hooker, J., did not sit. Grant, J., took no part ih the decision.


text:
    BEAUDIN v. BAY CITY.

    1. Municipal Corporations Ordinances — Boys Playing in Street.
    An ordinance providing that no person shall play any game of tenpins, ball, wicket, or other games in a street does not prohibit boys from merely running thereon.
    2. Same — Personal Injuries — Liability op City.
    A boy who is in fact traveling over a street in a proper manner, though such traveling includes play, is within the pro•tection of the statute making municipalities liable for injuries sustained by reason of neglect to keep their streets in reasonable repair, and in condition reasonably safe and fit for travel. So held where a boy was running along a sidewalk in an attempt to catch another boy.
    3. Same — Contributory Negligence — Instructions.
    An instruction, in an action for injury' to a boy while running on a sidewalk, that “it is a question for you to determine whether plaintiff used such care as boys of his age and discretion usually exercise on like occasions, and such care and discretion as you think he ought to use in going along there,” clearly implies that the intelligence of the boy, well as his age, should be considered in determining whether he used proper care.
    4. Injury to Infant — Damages—Instructions.
    A fair construction of the charge, in an action for injury to a boy, that, “in arriving at the amount of damages, you will take into consideration his earning powers, his ability to earn money, as to what extent, if any, it has been decreased,— that is, what he would be able to earn after he has arrived at the age when it is his duty to take care of himself,” — limits the recovery to damages because of diminished earning capacity.
    5. San® — Evidence.
    In case of injury to a young boy, proof showing his incapacity for certain occupations because of the injury affords a sufficient basis for a recovery for diminished earning capacity.
    fi. Defective- Sidewalks — Personal Injuries —Special Questions for Jury.
    Where, in an action for injury from a defective sidewalk, defendant asked to have submitted to the jury the question, “ Was the sidewalk * * * unsafe or unfit for travel ” at the time of the accident ? it -was error for the court to substitute therefor the question, “Did the city * * * use ordinary care and diligence to keep the sidewalk * * * in reasonable repair for reasonably safe and convenient public travel ? ”
    Error to Bay; Shepard, J.
    Submitted January 14, 1904.
    (Docket No. 36.)
    Decided April 19, 1904.
    Case by Ernest Beaudin, by next friend, against the city of Bay City, for personal injuries caused by a defective sidewalk. From a judgment for plaintiff, defendant brings error.
    Reversed.

      Brakie J. Orr (James Donnelly, of counsel), for appellant.

      Lee E. Joslyn, for appellee.

       Rehearing denied April 26, 1904.

   Montgomery, J.

This is an action to recover damages for an injury resulting to the plaintiff by reason of a defective sidewalk within the city. The plaintiff recovered a judgment of $2,500, and the case is brought before us for review by writ of error.

The appellant’s counsel states the principal question to be whether or not playing upon the sidewalks of a public street by children is making use of such sidewalks for “public travel,” as contemplated by the statute making cities liable for in j uries from defective sidewalks. The evidence on the trial disclosed- that on the afternoon of October 14,1901, plaintiff, after school, returned to his home, and from there went out into the street to play; that, while the boys were playing in the street, a colored boy, named Charlie Cross, went along on the opposite side of the street, and some of the testimony tended to show that ■some of the boys with whom plaintiff was playing called out “catch him,” and that the boys started to run after him. There was other testimony tending to show that the boys were running to see a runaway. While running, the plaintiff, as the testimony conduced to show, caught his foot in a hole of the sidewalk, was thrown, and received the injuries in question. The defendant asked an instruction in effect that, if the plaintiff was injured while playing, he was not in the exercise of the right of travel, and that he could not recover. The court refused this request, but did instruct the jury that if, at the time the plaintiff was injured, he was upon the sidewalk for any purpose not connected with or incidental to lawful travel, he could not recover. He also charged the jury that the plaintiff had a right to be on the streets, that he had a right to run with the boys and play, and that he had a right to run across the sidewalk, if he did'so with reasonable prudence and care.

The question whether the plaintiff was in position to assert that his use of the street was a lawful use is presented in two aspects. It is first said that, in playing, he was violating an ordinance of the city. This ordinance provides that no person shall play any game of nine or ten pins, ball, wicket, or other games in any street, alley, or ■other public space. We think the court rightly construed this ordinance as prohibiting only other games of like kind and character as those specifically mentioned in the ordinance, and that, so construed, the ordinance has no application to this case.

The important question in the case is whether the plaintiff is within the protection of the statute. Our statute provides (section 3441, 1 Comp. Laws) that “any person or persons sustaining bodily injury upon any of the public highways or streets in this State by reason of neglect to keep 'such public highways or streets, and all bridges, sidewalks, cross-walks, and culverts on the same, in reasonable repair, and in condition reasonably safe and fit for-travel,” may recover, etc. It is the contention of defendant that, where a statute imposes a duty and prescribes a remedy, the remedy is to be limited to the violation of such duty as is imposed by the statute. This proposition is well established by authority. It is contended further that the statute in question does not impose the duty of providing a playground for children, and that, therefore, an injury resulting to one using the public streets for a playground is not such an injury as the city is made liable for.

The leading case upon this subject is the case of Blodgett v. City of Boston, 8 Allen, 237. In that case the evidence disclosed that the plaintiff was playing on the sidewalk “old man on the castle,” and received an injury for which he sued. The court held that he could not recover. But the court said

“We by no means intend to say that a child who receives an injury caused by a defect or want of repair in a road or street, while passing over or through it, would be barred of all remedy against a town merely because, at the time of the occurrence of the accident, he was also engaged in some childish sport or amusement. There would exist in such a case the important element that the person injured was actually traveling over the way. But this element is wholly wanting in the case at bar. * * * It is to this precise case that we confine the expression of our opinion.”

It may be open to doubt as to whether the ruling in that case should be followed in construing our own statute, as there is a difference in the two statutes. However this, may be, it is certain that the Massachusetts court has found frequent occasion to note distinctions which are exceedingly narrow. For instance, in Gulline v. City of Lowell, 144 Mass. 491 (11 N. E. 723, 59 Am. Rep. 102), a child seven years of age, who was walking with his father on a plank footway upon a bridge which the city was bound to keep in repair, stepped aside to elasp in sport a post forming part of the bridge, and fell through a hole in the planking into the water and was drowned. It was held that he was a traveler, notwithstanding that at the very moment of the injury he was engaged in sport.

So it was held in Bliss v. Inhabitants of South Hadley, 145 Mass. 91 (13 N. E. 352, 1 Am. St. Rep. 441), that it was competent for the mother to send a child, one year and ten months old, into the street in charge of his brother, eight years old, for air and exercise, and that an injury occurring while they were standing watching other boys play, if occurring through the fault of the city, was actionable ; the court saying that the fact that they stopped for a few moments to watch other boys at play was one of the natural and ordinary incidents of travel, and did not divest them of their rights as travelers.

In McGarry v. Loomis, 63 N. Y. 108 (20 Am. Rep. 510), it was said it is a proposition too plain for comment that it is not unlawful, wrongful, or negligent for children on the sidewalk to play. See, also. McGuire v. Spence, 91 N. Y. 306 (43 Am. Rep. 668).

In Reed v. City of Madison, 83 Wis. 171 (53 N. W. 547, 17 L. R. A. 733), the court, in applying a statute somewhat similar to the Massachusetts statute, said:

“ It would seem to be reasonable that if the person injured, whether an infant or an adult, was, in a proper sense, traveling on the sidewalk, it should not be an objection to his recovery that at the same time he was indulging in play or pastime not inconsistent with his being a traveler also. A person passing from place to place on a sidewalk is a traveler thereon. He is going somewhere. It makes no difference whether it is for business, or for pleasure, or merely to gratify an idle curiosity.”

In City of Chicago v. Keefe, 114 Ill. 222 (2 N. E. 267, 55 Am. Rep. 860), it was said by the court:

'' In crowded cities, the use of the streets for pleasure, and sometimes even for the promotion of health, may be regarded as a public necessity. On like principle, why may they not be used by children in play and amusement, so long as the rights of others being on or passing along the street shall not be prejudiced thereby ? We can perceive no reason. Such use is .certainly the universal cxistom, and the lawfulness of rolling hoops along streets, when not prohibited by ordinance, is impliedly conceded. ”

While we recognize that there may be methods of play which would constitute the street a mere locus for play, and not a place of travel in any sense of the word, as in Jackson v. City of Greenville, 72 Miss. 220 (16 South. 382, 27 L. R. A. 527, 48 Am. St. Rep. 553), yet if one may pursue travel on the street for business or pleasure, and if a child is protected who,/while traveling, turns aside to engage temporarily in play, it would seem to be asolear that a child at play, which involves travel over the way, but which is not in itself unlawful, is equally within the spirit of the law and protected. Cases are abundant that such use of the way is not unlawful. Reed v. City of Madison and City of Chicago v. Keefe, supra. If this is correctly held, as we think it is, it follows that the boy may be a traveler on the highway who is in fact traveling over it in a proper manner, although that traveling includes play or pastime. We think the circuit judge correctly ruled the question.

Numerous other questions are raised. As to the objections relating to the admission of testimony, the first and second questions discussed may well be determined upon the ground that the reason for moving to strike out the testimony was not sufficiently definite. More than this, we think the testimony was competent. The third and fourth relate to questions which were purely within the discretion'of the circuit judge, and not reviewable.

It is urged that the instruction of the circuit judge upon the subject of the care required of the plaintiff was misleading, for the reason that the judge left it to the jury to find that the degree of care required was such as boys of his age usually exercise, on the ground that this excluded from the jury the thought that this boy was a boy of unusual intelligence, and that the standard should have been that of the care which boys of his intelligence would use. We think this criticism is hypercritical. It does not appear that the attention of the circuit judge was called to this claim on the trial. But in one portion of the charge he did say, in defining what care was required of the plaintiff:

“ It is a question for you to determine whether the plaintiff used such care as boys of his age and discretion usually exercise on like occasions, and such care and discretion as you think he ought to use in going along there.”

We think the jury could not have been misled as to the view of the court.

In a single assignment of error, error is assigned upon the charge of the court as to the subj'ect which covered the question of the right to recover and a statement as to the elements of damages. *In the brief, appellant’s counsel singles out a clause of the charge of the court, which is that, “in arriving at the amount of damages, you will take into consideration his earning powers, his ability to earn money, as to what extent, if any, it has been decreased, — that is, what he would be able to earn after he has arrived at the age when it is his duty to take care of himself,” — and, as we read the brief, two points appear to be made: First, that the instruction does not limit the recovery to damages suffered by reason of the diminished capacity to labor and earn money; and, second, that the evidence did not afford a basis upon which to rest the recovery. As to the first, we think a fair construction of the language limits recovery to damages sustained by reason of the diminished capacity to earn money. As to the second objection, we think the proof showing the incapacity for certain occupations because of physical injury occasioned by the wrong of defendant is as full testimony as could well have been expected.

The defendant asked the court to submit to the jury a special question, which was:

“Was the sidewalk in question unsafe of unfit for travel October 14,1901 ?”

The circuit judge did not submit this question, but, in lieu of that, substituted the question:

“Did the city, up to and including October 14, 1901, use ordinary care and diligence to keep the sidewalk in question in reasonable repair for reasonably safé and convenient public ti’avel ?”

The statute authorizes either party to demand the submission of pertinent and controlling questions to the jury. Harrison v. Railroad Co., 79 Mich. 409 (44 N. W. 1034, 7 L. R. A. 623, 19 Am. St. Rep. 180); Sherwood v. Railroad Co., 82 Mich. 379 (46 N. W. 773). The question propounded in this case was one the answer to which, if in the negative, would have controlled the general verdict, and should have been given. The question substituted by the circuit judge was essentially different. We are of opinion that the refusal to submit the question propounded was damaging error.

The judgment is reversed, and a new trial ordered.

Moore, C. J., Carpenter and Hooker, JJ., concurred. Grant, J., took no part in the decision.