author: Moore, J.

text:
    PEOPLE v. WILLIAMS.
    1. Evidence — Collateral Issues — Cross-Examination — Impeachment.
    The prosecution is bound by the respondent’s testimony on cross-examination relating to collateral matters, and cannot impeach him by showing that statements made by him relating to a distinct prosecution of a third person and not connected with the offense with which he was charged, were false.
    2. Criminal Law — Argument op Prosecuting Attorney.
    Pacts of which the prosecuting attorney has personal knowledge should be presented to the jury by him as a witness, and not in his argument.
    Exceptions before judgment from Hillsdale; Chester, J.
    Submitted November 12, 1909.
    (Docket No. 161.)
    Decided February 3, 1910.
    Dennis Williams was convicted of larceny.
    Reversed.

      Frank H. Hall and Grant Fellows, for appellant.

      Paul W. Chase, Prosecuting Attorney, for the people.
   Moore, J.

The respondent was convicted of the charge of larceny. He brings the case to this court on exceptions before judgment. It is claimed the larceny was from the person of Mr. Dillon; that he had on his person $75 in bills in the inside vest pocket. Towards evening he was in Boyd’s saloon and claims he met one Clare Buck, who invited him to take a drink, which he declined; that he then went into a room off the barroom, called in the record a “wineroom;” that Buck came in and swung his arms around his neck and abstracted the roll of bills from his pocket; that he grappled with him and called, “Thief’’and “Robber;” that soon after Buck was searched, and no money was found upon him. It is the claim of the people that the money was passed by Buck to one Yreeland before the search, and that there was a conspiracy between the respondent,' Buck, and Yreeland to obtain the money and divide it between them.

Nearly all the testimony incriminating the respondent was given by Buck, who had pleaded guilty. Respondent contradicted the testimony of Buck and denied all connection with the robbery. Respondent, for the purpose of affecting the credit of Buck, introduced testimony of his neighbors, who testified, in substance, that they were neighbors of Buck, had the means of knowing his general reputation in that neighborhood for truth and veracity, and that it was bad. The people, for the purpose of impeaching respondent, were permitted to ask respondent, on cross-examination, if he did not on one occasion come to the officers and tell them that William Boyd kept prostitutes at his place and rented rooms to any one that wanted them. Upon his testifying that he was intoxicated on that occasion and did not remember what he told the officers, it was permitted of the people to show by one of the officers present that he was not intoxicated on that occasion, and that he did tell the officers that Boyd kept a house of prostitution and rented rooms for that purpose. The people were also permitted to read to the jury a complaint made by respondent charging Mr. Boyd and one Wilson with keeping a house of prostitution, and then to prove what respondent testified to on the examination of Boyd and Wilson on that charge. The admission of this testimony is assigned as error.

An examination of the record shows that the respondent was called as a witness in the examination of Boyd and Wilson. He was then asked the following question:

“Q. And isn’t it a fact that you went back absolutely and under oath in justice court on what you had told the officers at the time you came to see them concerning William Boyd and his house of ill fame ? ”

This was objected to, but the objection was overruled. The respondent answered.

“I don’t remember now what I told them. I was sworn in justice court. I had been drinking on the day I made the complaint. I don’t know what happened that night.”

The witness was then asked the following question:

“Q. Isn’t it a fact, Mr. Williams, at the time you called to see the officers concerning William Boyd’s place, that you told the officers that William Boyd rented these rooms to any one that wanted them ?
"A. I say I don’t remember what I said at that time. I will not swear that I didn’t say so. I did swear on the examination that I never knew him to rent rooms.”

The sheriff, who had been previously sworn, was recalled in rebuttal, and testified that he had heard the testimony above referred to, and was asked the following, question: “Q. What was his condition at the time he made that complaint?” This was objected to for the reason that the respondent had been interrogated about it, that it was a collateral matter, and that the people were bound by the answer. The objection was overruled, and Mr. Eggleston answered:

“He had been drinking, but he wasn’t drunk. He knew everything that he was doing and walked off straight. * * * He said he kept a house of ill fame, and he wanted to make a complaint. He said they kept rooms to rent, and he took the money for it, and named different girls that stayed there for the purpose of prostitution. He named the girls and told that they were staying there pretending to be working, but there wasn’t any of them working there. They came there for that purpose.”

The people were also permitted to read to the jury the complaint made by respondent against Boyd and Wilson and to interrogate him with reference to the testimony given by him on the preliminary hearing in that case. The people were also permitted to interrogate the respondent as to what he swore to on the preliminary examination of Boyd and Wilson, and then to show by the sheriff that in a prior conversation he had made a statement contradictory to this testimony.

It is clear that the conversation with the sheriff in relation to another case could not be treated as an admission in this case, but related to an entirely different matter. In 1 Greenleaf on Evidence (15th Ed.), § 461, the following appears:

“(2) By general evidence affecting his credibility for veracity. But in impeaching the credit of a witness, the examination, must be confined to his general reputation, and not be permitted as to particular facts, for every man is supposed to be capable of supporting the one, but it is not likely that he should be prepared to answer the other without notice; and unless his general character and behavior be in issue he has no notice. This point has been much discussed, but now may be considered at rest.”

In a footnote to the above section, we find the following:

“The mischief of raising collateral issues is also adverted to as one of the reasons for this rule. ‘ Look ye,’ said Holt, Ld. C. J., ‘you may bring witnesses to give an account of the general tenor of the witness’s conversation ; but you do not think, sure, that we will try, at this time, whether he be guilty of robbery.’ Rex v. Rookwood, 13 How. St. Tr. 211.”

See Driscoll v. People, 47 Mich. 413 (11 N. W. 221); McDonald v. McDonald, 67 Mich. 122 (34 N. W. 276); People v. Connelly, 157 Mich. 260 (122 N. W. 80). When the prosecuting attorney asked the respondent what conversation he had with the officer with reference to the collateral matter of a complaint against Boyd and Wilson, the prosecuting attorney was bound by his answer and had no right to assail his credibility by proof of a different statement from him on this collateral matter.

Error is assigned upon the argument of the prosecuting attorney. Some of this assignment was based upon the testimony which we have already stated was inadmissible, A repetition of this portion of the argument is not likely to occur again.

Error is assigned upon the following portions of the prosecuting attorney’s argument:

“And I don’t know, gentlemen of the jury, but what it is pretty near as near a credit to a man to be an inmate of Jackson State prison as it is to be an inmate to Bill Boyd’s saloon. There isn’t much difference. * * * There isn’t much difference. And, understand, I am not asking a conviction here because Dennis Williams tended bar; I am not asking that. He could tend bar and be all right. I am not asking a conviction on that ground. But I say to you that the way Bill Boyd’s place has been pictured out, it is one of the worst hell holes in Hillsdale county, and I say that Jackson State prison couldn’t be a greater blot upon a boy’s character than it does to be found in that resort for thieves and prostitutes. * * * Talk about putting a blot upon a young man’s character, blot Dennis Williams ? He is so covered with blots from his crooked deeds and his morals you couldn’t find a white place on him.”

The rule has been repeatedly stated that, if the prosecutor desires to get facts before the jury of which he has knowledge, they should be presented by him as a witness, and not by way of argument. As the case is to be reversed for the reason already stated, it is not necessary to decide whether the above argument of itself would be ground for reversible error. It will be very easy to avoid a like question in the new trial.

The conviction is reversed, and a new trial ordered.

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


source: Caselaw Access Project

author: McAlvay, J.

license: Public Domain

text:
    PEOPLE v. GIDDINGS.
    1. Criminal Law — Intent — Similar Offenses — Evidence—Intoxicating Liquors.
    Where a respondent was charged with furnishing intoxicating liquors to one of a number of berry pickers, in violation of the local-option law, evidence of similar offenses relating to other berry pickers at about the same time is competent to show intent and to rebut any inference of mistake or accident.
    2. Same — Intoxicating Liquors — Local Option.
    It was error to admit testimony that another witness procured intoxicating liquor of the respondent’s employé, out of a bottle on the person of the latter, the respondent being in no wise connected with the transaction.
    3. Same — Liquor Furnished to Guests.
    Requested instructions to the jury were properly ref used where they submitted the question whether the intoxicants were furnished to a guest, and the theory was unsupported by evidence on either side.
    4. Trial — Argument — Criminal Law — Saving Questions for Review.
    The court will not consider error assigned on the argument of the prosecuting attorney, upon a record which shows no exception or objection made at the time.
    Exceptions before judgment from Barry; Smith, J.
    Submitted November 15, 1909.
    (Docket No. 166.)
    Decided February 3, 1910.
    Homer Giddings was convicted of violating the local-option law.
    Reversed.

      Thomas Sullivan, for appellant.

      William W. Potter, Prosecuting Attorney, for the people.
   McAlvay, J.

Respondent was prosecuted and found guilty of furnishing intoxicating liquor to one James Foster in July, 1908, contrary to the provisions of the local-option law of this State which was at the time in force in the county of Barry, within which the claimed offense was committed. The case is here upon exceptions before sentence.

The errors relied on, and upon which respondent asks for a reversal, are as follows: (a) That the court allowed evidence tending to show other like offenses; (b) that the court erred in certain portions of the charge as given, and in refusing to give certain requests of respondent to charge the jury; (c) and as to certain language of the prosecutor, in an argument in the presence of the jury, upon a motion made in behalf of respondent to dismiss the case, and in not granting such motion.

The facts in the case necessary to state in this opinion were that respondent who lives in Kalamazoo was, during the season of 1908, in control of a certain huckleberry swamp in Barry county, for the purpose of picking and marketing berries, and had in his employ 20 or more persons who were Indians or of Indian descent, as berry pickers, and among their number one James Foster; that respondent occupied a tent on these premises, and the berry pickers, both men and women, occupied other tents in its vicinity. On the morning of the day in question, Foster went to respondent’s tent outside of and near which was a stove set up used by respondent for cooking purposes. Near this stove was a table. Foster testified that he went to this tent to get a match to light his fire; that upon the table he saw a small bottle containing whisky, from which he poured a small quantity of the liquor, and went to the stove, where respondent then was, and respondent poured some hot water into the cup for him, and he drank the mixture. Foster says that he took the liquor of his own accord without any offer or request on the part of respondent. During the introduction of the case for the people evidence was admitted tending to show that, at or about the time of the alleged furnishing of the whisky to Foster, respondent furnished whisky and alcohol to others of these berry pickers. In his defense respondent denied that he ever furnished liquor of any kind to Foster, and never gave him any at the tent; that he brought no whisky to this tent, and did not remember that any whisky was there; that he had no clear alcohol, but did have a mixture of alcohol, ammonia, and glycerine for poisons and bee stings, and also a preparation known as ‘ ‘ King of Pain ” which he thought had alcohol in it, and of which he gave Inman Foster a dose when he was sick and exhausted. He also denied having sold any liquor to Sprague, one of the witnesses who testified to that effect. All of the testimony on the part of the people relative to any other offense was objected to. It is urged on the part of the people, and was claimed on the trial, that this testimony was admissible to rebut any presumption of accident or mistake in furnishing the liquor to James Foster, and as bearing upon the knowledge and intent of respondent in furnishing the liquor to Foster.

In the charge to the jury, the following request of respondent given by the court clearly shows his claim on this branch of the case:

“ It is the claim of the defense that if James Foster got any intoxicating liquor at the Giddings tent, as alleged in the information, that he did so without the knowledge of Mr. Giddings, and I instruct you that Mr. Giddings would not be guilty of the crime charged^ against him in the case, providing you find that James Foster helped himself to the liquor which he claims to have taken at Giddings’ tent, without the knowledge or consent of the respondent, Mr. Giddings. In other words, if James Foster took the liquor from a table by the Giddings tent without the knowledge or consent of Mr. Giddings, then your verdict will be not guilty.”

As bearing upon the intent and knowledge of respondent, and to rebut the presumption of accident or mistake in furnishing this liquor, the testimony as to the furnishing or selling of these liquors by respondent to others was admissible. The court charged the jury relative to this testimony as follows:

“Proof has been offered by the people — and I would like to have very careful attention given to this — proof has been offered by the people and admitted in this case, of the furnishing of liquor by the defendant to other persons than James Foster, and you have a right to consider this proof as bearing upon the kind and character of the liquors furnished to' Foster, he, the defendant, claiming that he had no whisky or alcohol at the tent, and that he furnished none to Foster nor to any other person.
“ The defendant claims that if Foster obtained any liquor of him that he obtained it by his own act, and that the defendant did not co-operate with him, and you have a right to consider the proof of the furnishing of other intoxicating liquors by the defendant to other persons, if' you shall find it was furnished by him, as tending to rebut any presumption which might otherwise obtain under the circumstances in this case that the liquor was procured innocently or accidentally of the defendant and without his knowledge, consent, approval or co-operation, and as tending to show that he knowingly and intentionally permitted Foster to obtain the whisky in question and co-operated with him in procuring it and preparing it for use. You should, however, gentlemen, bear in mind and keep it before you all the time in your consideration of the case, that respondent is being tried for furnishing liquor to James Foster and not to any one else, and the proof offered of other furnishing of liquor is for the purpose of establishing the furnishing to James Foster, and whatever you believe about the furnishing of liquor to any one else, you cannot and should not convict the respondent because of such furnishing, but, if convicted at all, he should be convicted of furnishing to James Foster in the manner and form as alleged in the people’s information.”

The purpose for which this proof was admitted and could be considered was clearly and correctly stated by the court.

This case comes within the exception to the general rule relied upon by respondent that proof of other offenses may not be admitted upon the trial of one accused of crime, being of that class of cases where the circumstances permitted the inference of accident, mistake, or inadvertence to be drawn. People v. Burke, 157 Mich. 113 (121 N. W. 282); People v. Seaman, 107 Mich. 348 (65 N. W. 203, 61 Am. St. Rep. 326), and cases cited. 1 Wigmore on Evidence, §§ 300-372. If this proof was admissible for any purpose, it would not be rendered incompetent because it might tend to show other violations of the local-option law by respondent. Such proof is never admissible as substantive proof of the act charged for which a respondent is being tried. Cases cited supra. People v. Thacker, 108 Mich. 652 (66 N. W. 562).

A witness on the part of the people was allowed, over objection and exception, to testify that he procured some alcohol there from a man named Holmes, employed by respondent in making berry crates. He testified on direct examination:

“ Mr. Giddings did not furnish some alcohol to my wife at the time she was stung. I got that alcohol of Mr. Holmes. Mr. Holmes lived with Mr. Giddings. I do not know where he got this liquor in question. He did not get it out of Mr. Giddings’ tent. He had the liquor in a half pint bottle. I supposed it to be alcohol.”

This testimony does not connect respondent with this, transaction. The fact that Holmes worked for respondent, and lived with him, and had some alcohol in his possession is not a circumstance tending to establish the knowledge and intent of respondent in furnishing liquor to Foster, for which he was being prosecuted. It was error to admit this testimony, and this court cannot say that it was not prejudicial and reversible error.

In view of a new trial which must be had, some other questions must be passed upon. One contention of respondent was that if liquor was furnished Foster by Giddings it was furnished to a guest and not unlawfully. There is nothing in the case which would warrant the court in giving a request to charge embodying that contention. This case is clearly distinguishable from the cases of this court relied upon by respondent. The court was not in error in refusing such request to charge.

The prejudicial language of the prosecutor, upon which error is assigned, was not objected to at the time, nor was it called to the attention of the court at any time. We cannot consider error so assigned. For the error pointed out, the conviction is reversed and a new trial ordered.

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


author: Blair, J.

text:
    PEOPLE v. GLAZIER.
    1. Embezzlement — Indictment—Public Officers — Stating Conclusions.
    An indictment against a State treasurer for embezzlement is sufficient which charges a statutory offense in the language of the statute without stating the evidence, although it alleges generally that the funds were unlawfully converted to the use of a bank of which he was the principal stockholder, where the idea of a lawful appropriation or deposit is negatived in the indictment.
    2. Same — Public Officers — State Treasurer.
    Under 1 Comp. Laws, § 1189 et seq., the State treasurer is liable as a bailee for State funds in depositories selected according to law.
    3. Same.
    It is unlawful for the State treasurer to deposit funds in a bank for any pecuniary inducement. 1 Comp. Laws, § 1201.
    4. Same — Statutory Construction.
    The.intent of a general statute to modify a special act being plain, the rule that a subsequent general statute will not be held to modify a special statute is inapplicable.

      5. Same — Banks and Banking — Stock and Stockholders — Public Officers.
    The fact that the inducement to the State treasurer to deposit money in a bank of which he was a principal stockholder consisted in the gain which he would indirectly receive, does not affect his criminal liability under 1 Comp. Laws, § 1201. Board of Fire & Water Com’rs of Marquette v. Wilkinson, 119 Mich. 655 (78 N. W. 893, 44 L. R. A. 493).
    6. Same — Pleading—Indictment and Information.
    The joinder in an indictment of several counts for the unlawful appropriation of different sums of money by the State treasurer is not objectionable, and may be treated as a specific statement of the successive acts constituting a single offense under 3 Comp. Laws, § 11614.
    7. Same — Public Officers — Intent.
    A public officer who devotes funds in his custody to any other purposes than those which the law authorizes must account for them to his successor or be guilty of a felony under 1 Comp. Laws, § 1201, no matter how good his intentions may have been.
    8. Same — Evidence—Deposits by Checks and Drafts.
    The checks and drafts by means of which money was deposited by the treasurer were admissible in evidence to show the unlawful appropriation of money charged in the indictment.
    9. Same — Evidence—Immateriality.
    No prejudicial error results from the admission, in a prosecution for embezzlement, of testimony to show the respondent’s bad faith which was not a necessary element of the offense.
    Exceptions before judgment from Ingham; Wiest, J.
    Submitted November 16, 1909.
    (Docket No. 83.)
    Decided February 3, 1910.
    Frank P. Glazier was convicted of embezzlement.
    Affirmed.

      A. J. Sawyer & Son (A. B. McArthur, of counsel), for appellant.

      Walter S. Foster, Prosecuting Attorney (Charles W. Nichols, of counsel), for the people.
   Blair, J.

Respondent was indicted upon presentment by a grand jury, charging him in 31 counts with violations of section 11612 of the Compiled Laws. All of the counts of the indictment are in the same form, except that some of them charge respondent, as State treasurer, with knowingly and unlawfully appropriating, at different times, to his own use, different sums belonging to the State, and in his custody as State treasurer. Certain counts charge the appropriations to be to the use of the Chelsea Savings Bank, while other counts allege an appropriation to the use of himself and the Chelsea Savings Bank jointly.

At the close of the testimony the prosecution elected to go to the jury upon the 10 counts, alleging, with proper variations of time and amount, as in the ninth count:

“ That on, to wit, the day and year aforesaid, at, to wit, the city of Lansing, in the county of Ingham aforesaid, the said Frank P. Glazier, so holding the office of State treasurer as aforesaid, did knowingly, unlawfully, and feloniously appropriate to the use of the Chelsea Savings Bank, a body corporate under the laws of the State of Michigan, a large sum of money, to wit, the sum of $12,213.15, of the value of $50 and upwards, to wit, of the value of $12,213.15, the property of and belonging to the said State of Michigan, which had been received and was then held by him in his official capacity aforesaid as State treasurer of the State of Michigan, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the State of Michigan.”

During his entire term of office as State treasurer, from January 1, 1905, till January 20, 1908, when he resigned, respondent was president, director, principal stockholder, chairman of the discount committee, and active manager of the Chelsea Savings Bank of Chelsea, a village of some 2,000 inhabitants. The capital stock of the bank was increased from $60,000 to $100,000 on December 28, 1905. For many years prior to 1905 the bank had been a State depository of public funds. Soon after January 1, 1905, and again soon after January 1, 1907, respondent entered into contracts with the bank, signed by himself as State treasurer, on the one hand, and as president of the bank, on the other hand, providing for the deposit of State moneys in said bank. In clause 2 of the contracts the bank agreed to reimburse and pay the respondent, as State treasurer, all such sums as might be deposited by him in said bank, whenever called for,” and to pay interest on daily balances, not to exceed 3 per cent. The interest actually paid was If per cent. The respondent also took from said bank various surety bonds aggregating $200,000, to secure performance of the contracts, such bonds being approved, as required by law, by the State treasurer, auditor general, and secretary of State. The bank was closed by the State banking department on December 2, 1907, at which time the balance of State moneys on deposit was $685,587.79, and the affairs of the bank passed into the hands of a receiver.

The remittances of the deposits were made by check or draft, except in the case of the $23,000 deposit of November 13, 1907, in which case $3,000 of such deposit was in currency. The checks or drafts were of two classes: One class being drawn upon various Detroit banks, and being in each instance signed by the deputy State treasurer, and the other class being miscellaneous checks or drafts drawn to the State treasurer or other State officers for taxes and other demands due the State, which found their way into the State treasury, and which were in turn indorsed over to the Chelsea Savings Bank. The former class were checks drawn by the deputy State treasurer upon other. State depositories, while the latter class were mere private checks or drafts which had been received by the State and made payable to the Chelsea Savings Bank by indorsement. Since the receiver has had charge of the affairs of the Chelsea Savings Bank he has repaid to the State, upon account of the State funds deposited in the bank, two dividends, one on May 6, 1908, of $205,745.34, and another on October 21, 1908, of $70,879.77. There has also been paid to the State by one of the bonding companies, upon the bond of the Chelsea Savings Bank as a State depository, the sum of $50,000. The affairs of the Chelsea Savings Bank were still in the hands of a receiver at the time of the trial.

The respondent was the owner of 668 of the shares of stock, or a little more than two-thirds of the entire capital stock of the bank, and thereby empowered to elect the entire directorate of the bank, and entitled to two-thirds of the profits of the business. He was also the president and principal owner of the Glazier Stove Company, an extensive manufacturing institution, and was interested in other business enterprises which necessitated the borrowing of large sums of money. The evidence demonstrates that he was not using the public moneys with sole reference to the public interests, but largely for the support of his banking business and in aid of the other institutions in which he was interested. Respondent was financially interested in the Ann Arbor News Publishing Company, the Blanchard Wool Company, and the Chelsea Grain & Produce Company. Through Martin J. Walkenhut, as agent, he was engaged in the business of buying wool on his own account. During 1906 and 1907 he practically rebuilt and greatly extended the stove plant, and constructed a large office building in Ann Arbor, costing, complete, about $165,000. He spent about $30,000 on the Blodgett Terrace in Detroit, and built an expensive cottage at Cavanaugh Lake, near Chelsea.

The board of directors of the bank took no action requesting the deposit of State moneys in the bank, and the cashier testified that he did not know how they came to be deposited. The deputy State treasurer testified that the deposits were made by direction of respondent, either verbally or over the telephone. On January 9, 1906, the following persons were elected directors, viz.: F. P. Glazier, William J. Knapp, William P. Schenck, V. D. Hindelang, J. W. Schenck, Fred Wedemeyer, Adam Eppler, H. I. Stimson, Theodore E. Wood. At a meeting of the board of directors, April 9, 1906, the following occurred:

“ Motion made that loans to the extent of 80 per cent, of capital and surplus be extended to the Chelsea Grain & Produce Company, Glazier Stove Company, and such other firms as the president thought best to extend loans. No further business; the meeting adjourned.”

At the annual meeting of January 8, 1907, F. P. Glazier, William J. Knapp, William P. Schenck, Adam Eppler, H. I. Stimson, Theodore E. Wood, J. W. Schenck were elected directors. At the meeting of the board of directors, January 14, 1907, the following occurred :

“ Motion made that loans to the extent of 80 per cent, of the capital and surplus be extended to the Glazier Stove Company, Chelsea Grain & Produce Company, and such other firms as the president thought best to loan to. Carried.”

At the directors’ meeting of April 15, 1907, the following occurred:

“A motion was made by director Knapp, supported by Director Stimson, that Mrs. Henrietta M. Glazier be extended loans to 80 per cent, of the capital and surplus. Carried unanimously. A motion was made by Director Knapp, and supported by Director J. W. Schenck, that Harold P. Glazier be extended loans to 80 per cent, of the capital and surplus. Carried unanimously. A motion was made by Director Stimson, and supported by Director J. W. Schenck, that Vera G. Glazier be extended loans to 80 per cent, of the capital and surplus. Carried unanimously. A motion was made by Director J. W. Knapp, and supported by Director Wood, that Saxe C. Stimson be extended loans to 80 per cent, of the capital and surplus. Carried unanimously. A motion was made by Director Wood, and supported by Director Stimson, that W. P. Schenck be extended loans to 80 per cent, of the capital and surplus. Carried unanimously. A motion was made by Director Knapp and supported by Director W. P. Schenck, that F. P. Glazier be extended loans to 80 per cent, of the capital and surplus. Carried unanimously.”

At the directors’ meeting of September 9, 1907, the following occurred:

“Motion by Director H. I. Stimson, supported by Director W. J. Knapp, that John W. Schenck be extended loans to 20 per cent, of the capital and surplus. Carried unanimously. Motion' made by Director W. J. Knapp, supported by Director J. W. Schenck, that Emily J. Glazier be extended loans to 20 per cent, of the capital and surplus. Carried unanimously. Motion made by Director T. E. Wood, supported by Director H. I. Stimson, that Adelia A. Comstock be extended loans to 20 per cent, of capital stock and surplus. Carried unanimously.”

During 1906 and 1907 the Chelsea Savings Bank loaned to the Glazier Stove Company $215,000. There was unpaid on these loans when the bank was closed a note of $100,000 secured by the stove company’s stock. There was loaned to the Chelsea Grain & Produce Company $58,000, the notes being secured by warehouse receipts for wool, upon which had been collected, at the time of the trial, all but $8,000. There was loaned to Walkenhut, nominally, but really to respondent, $25,448.45. There was paid on these notes about $10,630.

The following is a list of loans made by the Chelsea Savings Bank during 1906 and 1907 on notes payable to said bank, and for which the respondent received the credit upon the books of said bank, and all of which were personally discounted by him:

Date of Discount. Maker. Amount.
1906.
April 5. Ann Arbor News Pub. Co. $18,000
May 18. Frank P. Glazier__________ 10,000
June 7. Frank P. Glazier__________ 5.000
Aug. 18. Frank P. Glazier__________ 20,000
Aug. 29. Frank P. Glazier_________ 5.000
Sept. 20. Frank P. Glazier__________ 5.000
Oct. 16. Frank P. Glazier__________ 5.000
Dec. 15. Frank P. Glazier__________ 5.000
1907.
Feb. 21. Frank P. Glazier__________ 20,000
Date of Discount. Maker. Amount.
1907.
May 21. Frank P. Glazier_____________ 80,000
June 22. Frank P. Glazier_____________ 5,000
Oct. 26. Frank P. Glazier_____________ 100,000
July 18. Frank P. Glazier____________ 5,000
Sept. 5. Frank P. Glazier_____________ 5,000
April 19, Henrietta M. Glazier _____________ 80,000
April 19. Vera G. Glazier___________________ 28,000
April 19. Harold P. Glazier_____________ 28,000
April 19. Saxe G. Stimson_____________ 85,000
May 18. H. I. Stimson______________ 5,000
June 1. W. P. Schenck________ 20,000
Sept. 19. W. P. Schenck_____________ 15,000
Nov. 18. W. P. Schenck__________ 5,000
June 26. John W. Schenck_____________ 15,000
Sept. 16. John W. Schenck_____________ 10,000
Oct. 2. John W. Schenck_____________ 10,000
Nov. 18. John W. Schenck_____________ 5,000
May 2. Anna P. Tichenor_________________ 5,000
Total .........................................$499,000

All of the notes given by respondent were paid during 1906 and 1907, except the two notes of $80,000 and $100,000, respectively. There was paid upon the Henrietta M. Glazier, Vera G. Glazier, and Harold P. Glazier notes the sum of $30,000. None of the other notes were paid, either in full or in part. The only notes secured by mortgage or collateral were the two notes of respondent for $80,000 and $100,000, respectively. The only note which bore the name of an indorser was that of Harold P. Glazier. All of these notes, except the respondent’s, which were paid, and the Ann Arbor News Company, were given for either three or five years. The mortgages securing the loans of respondent above mentioned were not recorded until after the bank had closed its doors. Neither of these mortgages was approved by the board of directors until November 25, 1907. All of these notes were considered by the cashier, Mr. Wood, as they in fact were, the obligations of respondent. The note and mortgage of $100,000 were dated July 15, 1907, but were not entered on the bank’s records until October 26, 1907. The grand total of loans made by respondent and the few institutions in which he was financially interested, during the years 1906 and 1907, was $880,573.42. Of this there remained unpaid when the doors of the bank were closed, including the $20,000 loan of respondent in 1905, the sum of $527,317.49. Henrietta Glazier is respondent’s wife; Harold and Vera Glazier, respectively, his son and daughter.

In the treasury department accounts with depositories are classified as ‘‘active” where the accounts are constantly fluctuating by deposits and withdrawals, and “nonactive” where the treasurer only checks against them to a limited extent. The Chelsea Savings Bank’s account was classed as active, although the record does not disclose that the treasurer drew a check against it during 1906 and 1907. During 1907, for the greater portion of the time, there was a deficit in the bank’s legal reserve fund, which was taken care of, from time to time, by deposits of State funds. It appears to us to be a necessary conclusion from the evidence in the record that respondent completely dominated and controlled this bank, and that the board of directors, when it acted, merely registered his will.

At the conclusion of the proofs submitted on the part of the people, counsel for respondent moved the court to direct a verdict of not guilty, and also moved the court to discharge the respondent because of the insufficiency of the indictment. These motions were overruled by the trial judge, whereupon the respondent rested his case without offering any proof. The case is brought to this court upon exceptions before sentence.

The errors relied upon by counsel for respondent have been classified by them in their brief, and we consider them in their order.

Insufficiency of the Indictment. The substance of the contention that the indictment was insufficient is, as stated in the brief:

“ That the indictment does not set forth the facts which make the appropriation of the money of the State to the use of the Chelsea Savings Bank unlawful, but that the indictment charges only a conclusion drawn by the pleader from undisclosed facts, and that the indictment is insufficient and in violation of respondent’s constitutional privilege to be informed of the nature of the accusation against him.”

It is generally sufficient to charge a statutory offense in the language of the statute, and to state the crime charged, and not the evidence thereof. The principal, if not the only, exceptions to this rule are where the statutory definition of the offense does not include all of its elements, or “ where the words of the statute may by their generality embrace cases which, while falling within its literal terms, are not within its meaning or spirit.” People v. Taylor, 96 Mich. 576 (56 N. W. 27, 21 L. R. A. 287); People v. Butler, 122 Mich. 35 (80 N. W. 883).

It is conceded by respondent’s counsel, that an information under this statute, alleging an unlawful appropriation to his own use, or to the use of anybody else except an incorporated bank, would be valid, the reason stated for such concession being that such alleged appropriations would appear to be illegal on their face, while an allegation of an unlawful appropriation to a bank would appear upon its face to be an averment of doing a lawful act unlawfully, and, consequently, it must be averred wherein the unlawfulness consists. We do not think that this statute can be split up into fragments; it must be construed as a whole. It being conceded, and we think properly, that it states the elements of the offense of unlawful appropriations generally, and the section not making any exceptions in terms, it must be held to cover any unlawful appropriation for which a conviction may be had under the statute and to justify an information describing the offense in the language of the statute. The language of the statute as used in the information excludes the idea of a lawful appropriation or deposit; and, unless it is to be held that there can be no unlawful appropriation of money under this statute to a State bank under any circumstances, the nature of the unlawful act is a matter of proof which need not be averred in the information.

Sufficiency of the Proofs. In determining whether the proofs support the verdict of the jury, it becomes necessary to determine at the outset an important question of law raised by respondent’s contention that section 1201, 1 Comp. Laws, does not apply to his deposits in the Chelsea Savings Bank. Upon this question the trial judge instructed the jury as follows:

“ The purpose or intent of respondent in what he did may be gathered from what was done by him, provided the inference showing such intent clearly appears, and it is not reasonable to give his acts any'other purpose than a criminal purpose. Unless-one expresses his purpose or intention in doing an act, he leaves the same to be determined from what he does. So in this case you may consider the evidence of what the respondent as State treasurer did with the funds of the State so far as his acts with the same relate to their deposit in and use by the Chelsea Savings Bank. And from all of his acts and doings about the same, so far as disclosed by the evidence, you are to determine whether his purpose was to give the bank the use of the same, and thereby as a stockholder bring to himself a pecuniary advantage. If such was his purpose, it was criminal.
“Whether he received such pecuniary return from their use or not, it was unlawful for him to give to a bank in which he was a stockholder the use of State funds in his hands as State treasurer, and if he sent, or caused such funds to be sent, to such bank through the hope and expectation of the bank profiting out of the use it could make of them, and thereby bring a pecuniary advantage to himself, he did an unlawful thing, and such unlawful purpose and unlawful and knowing appropriation of State funds would make out the offense charged against him. * * *
“Neither is it necessary that you find the bank made any profit out of such funds, if any were so deposited. The law prohibited him from applying the funds of the State, coming to him in his official capacity as State treasurer, to any other purposes than the legal ones for which such funds came to him, and this made it unlawful for him to apply such funds to the use of the Chelsea Savings Bank, if he did so, if he was a stockholder therein; and, if he was a stockholder therein and a director and a president thereof when he made such deposits of State funds therein, and was led to do so that the Chelsea Savings Bank have the use of such funds, and he as a stockholder therein hoped to gain a pecuniary advantage from their use by the bank, or intended as a stockholder, director, and president of such bank to manage such funds to his pecuniary advantage, or to the pecuniary advantage of the bank, then their deposit was not only unlawful, but knowingly made and with felonious intent.
“The unlawful appropriation of public money by the State treasurer to the use of another is not condoned by the fact, if it is a fact, that security was taken for its return, or it was believed it would be paid back upon demand. The unlawful appropriation takes place, if at all, when the State treasurer sets apart or diverts the money to an unlawful use. Even though he believed the money would be returned, yet the offense is complete upon an unlawful appropriation, knowingly made and with a felonious intent.”

The argument of respondent’s counsel, briefly stated, is:

(a) Act No. 105, Laws 1855 (sections 1189, 1190, 1 Comp. Laws), is a special statute, conferring upon the State treasurer, auditor general and secretary of State the power to create a State depository, and placing upon the State treasurer the duty to deposit in such depositories the surplus funds of the State. Act No. 131, Pub. Acts 1875, “to provide for the safe keeping of public moneys” (sections 1197-1204), is a general statute, and “ in such a case the general statute must give way to the special prior statute.” If section 1201 applies to State depositories created in pursuance of the statutory formalities, “then the two statutes are in conflict, or at least cover the same matters; and, under the rule just quoted, the subsequent general statute must be held not to apply to the matters covered by the special statute.”

(6) The Chelsea Savings Bank is to be treated as a distinct legal entity, and respondent could not offend “ either the spirit or letter of the law by making deposits in such a bank, as in legal contemplation the Chelsea Savings Bank was a person entirely foreign to himself. He could have been guilty of receiving an inducement for making such deposits, but this is an entirely different question.”

(c) Penal statutes must be construed strictly, and cannot be extended by implication; and, so construed, section 1201 must be limited to a direct bribe or promise preceding the deposit of public money. The act of receiving the inducement is entirely distinct from the act of making the deposit.

a. Section 78 1 Comp. Laws, requires of the State treasurer a bond conditioned that—

“ The said treasurer shall use all necessary and reasonable diligence and care in the safe keeping and lawful disposal of all sums of money * * * which have or shall come to his hands or to the hands of any person or persons employed by him; and that the said treasurer shall, upon reasonable notice, render a true account in the premises whenever * * * and shall deliver over to his successor in said office, or to any other person authorized by law to receive the same, all moneys, books, bonds, notes, papers and all other things belonging to said office; and that all balances which shall appear against him, shall be forthwith paid into the treasury of the State.”

In Perley v. County of Muskegon, 32 Mich. 138 (20 Am. Rep. 637), Mr. Justice Campbell, reading for the court, said, arguendo:

“The statutes of this State and of the Territory have generally distinguished between the State and county funds, providing specifically for the deposit or preservation of the former, and leaving the latter to be dealt with and accounted for differently. In 1829 the Territorial treasurer was required to keep a bank book showing receipts and moneys drawn, and no money could be checked out except by checks countersigned by the auditor, and all moneys were to be deposited within three days after receipt, and such deposit exonerated the sureties. 2 Terr. Laws, p. 743. The legislation since the State was organized has in like manner recognized bank deposits of State money, and has frequently regulated the subject. See Laws 1835-36, pp. 8, 9, 43, 61, 62, 63, 148; Rev. Stat. 1838, pp. 29, 90, 98; Laws 1839, pp. 58, 120; Laws 1853, pp. 71, 88; Laws 1855, p. 238; Laws 1861, pp. 150, 583; Laws 1863, p. 351. It is contemplated that all State funds shall remain specifically, either in the State treasurer’s office, or as deposits in bank, so that they can be counted monthly. Laws 1861, p. 31. And on the vacancy of the office by resignation, limitation, or death, the moneys, as well as other property in the treasury, are to be taken possession of specifically by the State officers. 1 Comp. Laws 1871, p. 160. There is no State money the title to which passes to the treasurer individually. His whole dealing with it is official and specific. * * *
“We have found no decisions in other States upon the liability of State treasurers, but our own statutes have distinguished them to some extent as suggested, and their duties are usually such as to require constant attention, whereas many of the local officers have very light official duties, and are differently situated as to banks and other instrumentalities of finance.”

The question whether the liability of the State treasurer for the moneys of the State was that of a bailee or of a debtor or insurer was not involved in that case, but the inference to be deduced from the language quoted is that, in his opinion, the liability of the State treasurer was that of a bailee. We agree that the liability of the State treasurer under his bond is not that of an insurer, and that the measure of his obligation is the use of “all necessary and reasonable diligence and care in the safe keeping and lawful disposal of all sums of money,” etc. It does not follow, however, that the treasurer has fully discharged his obligation by the use of such diligence and care in the selection of a depository and the requiring of good and ample security for the safe keeping of the funds of the State. On the contrary, we are of the opinion that the duty to exercise all necessary and reasonable diligence and care to safeguard the funds of the State remains with the State treasurer after the selection of the depository and receiving ample security. This results from the provisions of the statute itself authorizing the creation of State depositories. This statute contains two effective sections; the first two having become ineffective. Section 3 (1 Comp. Laws, § 1189) provides as follows:

“ The State treasurer is hereby further instructed to require of any bank, before he shall have made it a depository of surplus funds belonging to the State, good and ample security, to be approved by the said State treasurer, the auditor general and the secretary of State, for the safe keeping and reimbursement of such surplus funds, whenever called for, and the payment of such rate of interest as the State treasurer, in his discretion, shall deem best for the interest of the State.”

Section 4 (1 Comp. Laws, § 1190) reads:

“ Nothing herein contained shall be held or considered as in any manner changing or affecting the liability of the State treasurer or his bail, or his or their bond to the State.”

It is clear that, under this section 4, the liability of the treasurer upon his bond remains unchanged, and is to be considered as though the statute relative to depositories had never been passed. In the eye of the law the funds in the State depositories are still in the treasury of the State, and subject to the control of the treasurer. People v. McKinney, 10 Mich. 54. The auditor general and secretary of State have no voice in the selection of the depository; their action is limited to determining whether the bond required of the bank by the State treasurer is good and ample security before “ he [the State treasurer] shall have made it a depository,” etc. The length of time the money shall remain in the depository and the rate of interest to be paid are alike subject to the uncontrolled discretion of the treasurer. Under the statute, and by the terms of the contract, the bank is bound to return the State’s money “whenever called for,” and the treasurer may check out the fund at pleasure. If it were the fact that the law conferred upon the State treasurer, auditor general, and secretary of State the power to create a single State depository, and made it the duty of the treasurer to deposit the State’s surplus funds'therein, there might be force in respondent’s argument, but such is not the case. The depositories are selected by the treasurer, and he may select any number of such depositories.

“He may place a portion of the funds in bank in such place as in his opinion the public interest or the convenience of disbursement may require.” People v. McKinney, 10 Mich. 87.

Furthermore, there is no duty resting upon the treasurer to create any depositories at all, or to deposit any funds , in them after creating them. He may keep all of the funds within the treasury proper, if he so desires. If the State treasurer’s deposits in banks from which he had received pecuniary inducements were lawful deposits therein prior to the act of 1875, which we are far from conceding, we have no doubt that it was the purpose of that act to modify and limit his right to make such deposits to banks from which he had received no pecuniary inducements. Section 1 of the act (1 Comp. Laws, § 1197) provides:

The People of the State of Michigan enact, That all moneys which shall come into the hands of any officer of the State, or of any officer of any county, or of any township, school district, highway district, city or village, or of any other municipal or public corporation within this State, pursuant to any provision of law authorizing such officer to receive the same, shall be denominated public moneys within the meaning of this act.”

Section 5 (1 Comp. Laws, § 1201) reads:

“ In no case shall any such officer, directly or indirectly, receive any pecuniary or valuable consideration as an inducement for the deposit of any public moneys with any particular bank, person, firm or corporation.”

The treasurer is the principal “officer of the State” receiving public moneys, and it was clearly the intention of section 5 to prohibit him from depositing such moneys with any particular bank for a pecuniary inducement. The intent of the general statute to modify the special statute being clear, the rule of construction relied upon does not apply. Regents of University of Michigan v. Auditor General, 109 Mich. 134 (66 N. W. 956).

b. The fact that the inducement to respondent consisted of the gain which he would indirectly receive through his interest as a stockholder, and not through the direct action of the legal entity, is not material, since the statute provides for such indirect inducements.

c. The decision of this court in Board of Fire & Water Com'rs of Marquette v. Wilkinson, 119 Mich. 665 (78 N. W. 893, 44 L. R. A. 493), disposes of this point, as we think in principle it disposes of all other questions raised as to the applicability of section 1201 to this case.

Joinder of Counts.

“As relates to the time of the commission of such offenses, the indictment in this case places the respondent on trial for 28 separate and distinct offenses, requiring in each case proof of entirely distinct transactions. The several amounts charged to have been appropriated have no relation to each other, and the several counts were drawn for the express purpose of charging 28 different crimes committed on as many different days, covering a period of nearly two years. The offenses covered by the indictment could have been returned in 28 separate indictments instead of 1.”

We consider this point to be disposed of by the case of People v. McKinney, 10 Mich. 54. If we have correctly interpreted the law, it was unlawful for respondent to deposit any of the State’s money in the Chelsea Savings Bank, and his deposits therein may properly be considered as a continuing series of unlawful acts all ñowing from the one preconceived design to use the State’s money for the benefit of himself, his institutions, and his bank. This construction receives support from the language of section 3 of the act (3 Comp. Laws, § 11614), vizi.:

“A failure or refusal of any public officer to pay over and deliver to his successor all moneys and property which should be in his hands as such officer shall be prima facie evidence of an offense against the provisions of section 1 of this act.”

It will be noted that the failure “ to pay over * * * all moneys and property which should be in his hands ” is made prima facie evidence of the offense. It must therefore be proper to allege and prove the total of the sums deposited and converted. In our opinion the technically proper form of the information in this regard would be as in the case of People v. Seeley, 117 Mich. 263, vide page 264 (75 N. W. 609). But this being so, there can be no legitimate objection to alleging the conversion of the items making up the total in separate counts serving really as a bill of particulars.

In People v. McKinney, supra, the State treasurer, by arrangement, drew at the same time six drafts upon the receiver of a railway company for portions of the specific tax due from the company; the drafts being payable at different dates, and their sum total being the amount of the tax. The drafts were accepted, and were paid as they fell due. After the acceptance of the drafts, they were indorsed by the State treasurer, discounted at a New York bank, and the amount thereof placed to his credit as State treasurer in said bank.. The information counted in separate counts upon the embezzlement of the respective amounts of the several drafts as they were paid. In discussing this information, the court said:

“And therefore, where the several offenses charged, though distinct in point of law, yet spring out of substantially the same transaction, or are so connected in their facts as to make substantially parts of the same transaction or connected series of facts, the defendant cannot be prejudiced in his defense by the joinder, and the court will neither quash nor compel an election.” Vide pp. 94, 95.

See, also, People v. Elmer, 109 Mich. 493 (67 N. W. 550).

Knowledge as an Element of the Offense. In our opinion the adverb “knowingly” used in the statute was intended to exclude from the definition of the offense mistakes of fact, accidents, such as the loss of the money by fire or other casualty, or inadvertent appropriations. McGuire v. State, 7 Humph. (Tenn.) 54. The principal elements of the offense are:

(1) The receipt of public moneys by a public official entitled to receive them.
(2) The appropriation of the moneys, knowing them to be public moneys, to a use which, as a matter of law, is unauthorized.
(3) The failure or refusal to pay over the money, which he ought to have on hand.

The provisions of section 11614, 3 Comp. Laws, plainly imply that a felonious intent is not an element of the crime. In our opinion it was the intention of the legislature to provide that any public officer, who devoted the public funds in his custody and control to any other purposes than those to which the law authorized their appropriation, must account for them to his successor, or be guilty of a felony, no matter how good his intentions may have been. People v. Warren, 122 Mich. 504 (81 N. W. 360, 80 Am. St. Rep. 582). Under this statute the public officer uses the public funds for an unauthorized purpose at his peril. If he is able to account for them at the proper time, he incurs no criminal responsibility under this statute, however bad his motives, but can only be prosecuted for the offense described in section 1201, or under the general embezzlement statute. If he is unable to account, he is criminally responsible, however good his motives.

Admissibility of Checks and Drafts Under Allegations of Indictment Charging Appropriation of Money. The method pursued in making the deposits, as a general rule, was for the deputy State treasurer to draw a check, on some bank where the State had a deposit, payable to the Chelsea Savings Bank, by which bank it was indorsed over to some bank in Detroit where it had an account; the Detroit bank being charged with the amount of the remittance. This account was then checked against by the Chelsea Savings Bank. The checks were merely the means through which the money was appropriated to the bank, and were so treated by the bank. The money was appropriated to the bank as much as though the currency had been sent there, and it was the duty of the bank to account for the money, which it should have had on hand. Moreover the point is within the principle of People v. McKinney, supra.

Errors in Admitting and Rejecting Evidence. The errors referred to, for the most part, relate to the rejection of testimony offered as tending to show the good faith of respondent. As we have held that the good faith of respondent was wholly immaterial, there was no error committed in this regard. Under the view we have taken of the law, it is true, as claimed by counsel for respondent, that respondent’s unofficial transactions with the bank were immaterial, but under their construction of the law they were material. All that was necessary for the people to prove was the unlawful deposit of the money and the failure to account for it. These facts were conclusively proved by the undisputed evidence, and the admission of the testimony complained of was without prejudice.

The other errors argued in the briefs which merit consideration are disposed of by what we have already said in this opinion, and do not require separate consideration.

The exceptions are overruled, and the record remanded for further proceedings in accordance with the law.

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


text:
      In re KENNEDY’S ESTATE.
    1. Wills — Evidence—Declarations of Deceased — Parol Evidence Rule.
    A will executed by the testator in due form and properly witnessed, may not be shown to be inoperative by testimony as to declarations of the deceased that he did not intend it to be a final disposition of his estate.
    2. Same — Publication.
    No publication of a will is required to give it effect in Michigan.
    3. Same — Revocation.
    Placing the will out of the possession of the testator does not place it beyond his control to revoke by another instrument.
    4. Same — Subscribing Witnesses — Statutory Requirements.
    The mere failure of a subscribing witness to remember whether or not the will was subscribed by him in the presence of the other witness does not raise a question of fact for the jury, where he states that he has no recollection at all about the transaction, but that the signature is genuine.
    5. Same — Undue Influence — Declaration of Testator.
    Statements made by the testator that he was being hounded to make the will are inadmissible to prove undue influence.
    Error to St. Clair; Law, J.
    Submitted November 18, 1909.
    (Docket No. 25.)
    Decided February 3, 1910.
    Lawrence O’Neil, administrator, presented for probate the last will and testament of Thomas Kennedy, deceased. The will was allowed in the probate court, and James J. Kennedy and others appealed to the circuit court. A judgment for proponent on a verdict directed by the court is reviewed by contestants on writ of error.
    Affirmed.

      David Fitzgibbon and John B. Mcllwain, for appellants.

      Walsh & Walsh, for appellee.
   Blair, J.

Thomas Kennedy died in the spring of 1908. In 1897 he signed a paper in the form of a will. The paper was drawn by John L. Black, and he and his nephew, Clare R. Black, are the witnesses. This paper was allowed in the probate court as the last will and testament of Thomas Kennedy. An appeal was taken to the circuit court by the brothers of deceased. The case rested on the testimony of the two subscribing witnesses, whereupon the circuit judge directed a verdict sustaining the document as the last will and testament of Thomas Kennedy, deceased. The contestants, his brothers, appeal and contest on the ground that the paper was not executed to operate as a will and not executed as required by the statute.

John L. Black testified that he was an attorney at law, and, up to January 1, 1897, had been judge of probate; that he drew the will in question, February 11, 1897; that, at Mr. Kennedy’s request, he locked the door so that they should not be interrupted.

“I remember that will being signed by Thomas Kennedy. I saw him sign it.
"Q. In the presence of yourself and Clare R. Black?
“A. I cannot remember about Clare, but I remember myself; I did not know Clare was a witness to it until I saw it here in probate court. As a matter of memory I could not recall who it was that signed it besides myself. He writes a little different but have no doubt but that is his signature. I recall that Thomas Kennedy signed the will in my presence and that I signed it in his presence, at his request. I was well acquainted with Mr. Kennedy. He was in good bodily and mental condition at the time he signed it; no question about it in my mind.
“Q. Just state to the jury what he said he wanted.
“A. Why, he wanted some paper; he was having trouble out there with the boys, as he put it, and they were making him a good deal of trouble and insisting upon knowing what he was going to do with his personal property, and I think at the same time he told me that he had already disposed of his real estate; that is the way I understood him, and he said they kept at him and kept hounding him all the time and that he wanted me to draw some kind of a paper that would be a peacemaker, that he could take out home. I told him at that time, ‘ Mr. Kennedy, you don’t have to make any kind of a paper, you are too old a man to make any kind of a paper,’ and he said to me, as I remember it, ‘You don’t know the conditions out there as well as I do,’ and we talked it over one way and another. First we talked about a bill of sale, and I told him, if I remember right, some kind of a paper he had in mind that it was going to be a dangerous paper, and then he talked about putting it in the form of a will. I said that would be better because ‘You can destroy it .any time.’ So I drew him up a paper, the paper that is here, and he signed it. * * * He said it was not a will; that at some future time he would draw a will.
“ Q. Did you have any talk at that time with him about keeping it in your safe ?
“A. Yes, I insisted, I said, ‘Mr. Kennedy, leave that with me, don’t take it out there; and if you don’t want it, why, if anything should happen you, I could destroy it for you,’but he said, ‘No; he would have to take it out there as a peacemaker.’ * * * He went over pretty near the history of his life with me because I was at him for being so foolish as to sign a paper that he didn’t want to sign. * * *
“Q. He told you he had made some disposition of his real estate at that time ? * * *
“A. Well, he told me in a general way that he had made a disposition and that he wanted that put in the will that he had made a disposition of his real estate, in. that paper there that he had made a disposition of his real estate during his lifetime.
“Q. And you put that clause in here ?
“A. I put that clause in.”

That the ink of Clare R. Black’s signature was of a lighter hue than that used by Mr. Kennedy and himself; that he did not sign the paper as an instrument intended to become operative as a will, and, so far as he knew, neither did Clare R. Black; that from the time he drew the paper until the time Mr. Kennedy left the building with it he was constantly with him; that Clare R. Black might have signed the will as a witness in the presence of Mr. Kennedy and himself and he might have taken the will into Clare R. Black’s office and he have signed there.

“Q. But you told mea minute ago that the will and yourself — that you were with the will all the time until the old man took it away that day ?
“A. Yes, sir.
“Q. For you do not remember taking it away from the old man in next door ?
“A. No, I do not; and I don’t remember of Clare coming in there either.”

Clare R. Black, a practicing attorney, testified to the genuineness of his signature:

“Q. Now, Mr. Black, you state now that you have no memory of ever being called upon to witness any other will, except that one of Mr. Atkinson’s prior to your becoming a member of the bar ?
“A. No, sir.
“Q. If you had been called into the office of John L. Black and it had been made known to you either by Mr. Black or by Mr. Kennedy that Mr. Kennedy was making his will and he had signed it or was going to sign it and wanted you and Mr. Black to witness it or wanted you to join with Mr. Black to witness it, and you did so join with him in witnessing it; what do you say whether you would have remembered it ?
“A. I believe I would have.
“Q. What do you say now as to whether any such transaction as that occurred in February, 1897, in connection with the execution of the document presented here as a will F
“A. As to whether I went in there and Mr. Kennedy asked me to sign this as his witness and told me what it was?
“Q. That he was making a will and wanted you to sign as a witness, or Mr. Black in his presence and you did sign as a witness to his making his will; what do you say as to whether any such transaction as that occurred ?
“A. Well, from memory I would say, No.’”

The court directed a verdict for the proponents, instructing them that the will had been executed in pursuance of the formal requirements of the staitute and that parol testimony that the testator did not intend that the instrument should operate as a will was not receivable.

“The presumption is that this paper was executed, subscribed and attested or witnessed as it purports to be on its-face, and the mere fact that Mr. Black, one of the witnesses, fails to remember the circumstances under which he subscribed and attested this will, cannot under the law of this State be allowed to defeat it.
“The court instructs you that these statutory formalities of execution have been complied with in this case as shown by the evidence. That is, the paper claimed to be a will is in writing, it is signed by Mr. Thomas Kennedy, it was attested and subscribed in "the presence of the testator by two or more competent witnesses, hence you must assume that the paper here claimed to be a will, was executed in the form and manner as prescribed by law.
“ The contestant also claims as heretofore stated, that Mr. Kennedy at the time he executed this paper did not intend to make a will, but signed the paper merely to satisfy his relatives, the family of John Cavanaugh, Mr. Cavanaugh being the beneficiary under the will, and this being the family with whom Mr. Kennedy was living. Mr. John L. Black testifies that Mr. Kennedy said to him just before the paper was prepared, signed and witnessed, that he, Mr. Kennedy, did not intend the paper for a will, but merely to satisfy the sons of John Cavanaugh who were hounding him about his property. The court says to you that this testimony cannot be received and considered to invalidate the paper and render it of no effect as a will. Parol testimony of this kind when it arises, separate and apart from any question of fraud, undue influence, mental competency or of ambiguity in the paper proposed as a will, cannot be permitted to overcome the presumption that the testator in executing a solemn instrument like a will, intended the paper not for a will but to serve some collateral and extraneous purpose. To admit such testimony to defeat a will in a case like this would to some extent tend to defeat the right which every sane and competent person has under our laws to make a final disposition of his property by will and to have his or her wishes in regard to property carried out after death. The momentous consequence of permitting parol evidence to thus outweigh the sanction of a solemn act is obvious. It would have a tendency to place all wills at the mercy of a parol story that the testator did not mean what he said and what he put in solemn written form. Hence, gentlemen of the jury, it is the duty of the court in this case to direct a verdict in favor of the proponent of the will.”

The will gave all of his personal property to his sister’s husband, John Cavanaugh. The important question presented by this record is, whether the court erred in holding, as a matter of law, that evidence was not admissible to show that the alleged will was executed for a collateral purpose and that the testator did not intend it to operate as a will disposing of his property. Stated in another way, the question is: Is an instrument purporting to be a will and executed with all the statutory formalities conclusively presumed to have been executed animo testandi? This question is one of first impression in this court. As stated by the circuit judge, the question is wholly separate and apart from any question of fraud, undue influence, or mental competency in the procurement of the will or of ambiguity in the meaning of its provisions. The evidence conclusively shows that the testator was of sound mind, was laboring under no mistake of fact, knew precisely what he was doing, and intended to do precisely what he did do, viz.: to execute, according to the forms prescribed, a paper on its face disposing of his estate, with knowledge that he could revoke it at any time. Accepting the testimony of the scrivener, it must be presumed that he exhibited the will to his brother-in-law as his genuine will for the purpose of securing peace in the family and securing those attentions which he required.

“Q. You understood from him that he was making his home at the Cavanaughs’ ?
“A. I did; yes. Mrs. John Cavanaugh was his sister.
“Q. What reason did he give for making his home there ?
‘A. If I remember right, that his father and brothers were keeping bachelor’s hall or something of that kind and it was handy for him over there; that he could get his clothes cared for and one thing and another with his sister, and he made his home there and lived with them. I don’t know how long he had been living there, but if I remember ri^ht, he told me that he taught school out in Emmett, too, and had made his home there while he was teaching school. Then he came in here and remained a great many years when he was here as deputy county treasurer. He made his home then at Mr. Walsh’s hotel. He had either left the county treasurer’s office or was about going to leave, I don’t remember just which, and he was going back to make his home with the Cavanaughs or had made it when this trouble arose out there whatever it was, he wouldn’t tell me the details of it.
“Q. So that just before this will had been made he was here to town for eight years?
“A. For eight to twelve, somewhere along there.”

The testimony of the scrivener also discloses that Mr. Kennedy intended at a future time to make a will, but never spoke to him again about the paper in question or the making of another will. For over 11 years Mr. Kennedy retained this will in his possession, so far as this record discloses, and died leaving it unrevoked. There can be no doubt that a presumption of testamentary intention arises from the deliberate execution, by a competent person, of a paper in the express form of a will in strict pursuance of the provisions of our statute regulating the execution of wills. Whether this presumption is a disputable one is the serious question in this case.

Respectable authorities are cited by counsel for contestants, some of which are directly in point, holding that parol evidence is receivable in such cases. The case of Lister v. Smith, 3 S. & T. 282, is such a case. In that case, the question was whether a certain codicil was entitled to probate, i It was regularly executed by the testator, but evidence was given at the trial that the testator never intended it seriously to operate as a testamentary document. It was proved before the jury that the testator wished one of the family to give up a house which she then occupied and that, to force her to do so, he made pretense of revoking by codicil a bequest which he had made by will in favor of this woman’s daughter, and that the paper in question was made with that sole object; that the testator gave his attorney instructions to prepare it with that intention and informed him before it was drawn that he never wished it to operate at all; further, that the attorney pointed out the folly of executing such an instrument and would have nothing to do with its execution. It was, however, executed in the presence of the testator’s brother, to whom it was then given by the testator with express directions that he was not to part with it and that it was in no event to operate or to revoke the bequest made in his will, but to be used only in the manner above described. Similar declarations were made by the testator at the moment of its execution. The court said:

“The momentous consequences of permitting parol evidence thus to outweigh the sanction of a solemn act are obvious. It has a tendency to place all wills at the mercy of a parol story that the testator did not mean what he said. On the other hand, if the fact is plainly and conclusively made out, that the paper which appears to be the record of a testamentary act, was in reality the offspring of a jest, or the result of a contrivance to effect some collateral object, and never seriously intended as a disposition of property, it is not reasonable that the court should turn it into an effective instrument. And such no doubt is the law. There must be the animus testandi,” citing Nichols v. Nichols, 2 Phille. 180; Trevelyan v. Trevelyan, 1 Phille. 149; Swinb. pt. 1, s. 3; Shep. Touch. 404; Pym v. Campbell, 6 El. & Bl. 370.

The court, however, recognizing the serious consequences which might flow from this holding, remarked:

“ But here I must remark that the court ought not, I think, to permit the fact to be taken as established, unless the evidence is very cogent and conclusive. It is a misfortune attending the determination of fact by a jury, that their verdict recognizes and expresses no degree of clearness in proof. They are sworn to find one way or the other, and they do so sometimes on proof amounting almost to demonstration, at others on a mere balance of testimony; sometimes upon written admissions and independent facts proved by disinterested parties, sometimes on conflicting oaths or a nice preponderance of credibility. And it is difficult to impress them with the enormous weight which attaches to the document itself as evidence of the animus with which it was made. This weight it becomes the court to appreciate, and to guard with jealousy the sanction of a solemn act. In the present ease, however, the court finds the evidence so cogent, that it is prepared to act on the finding of the jury that the codicil was executed as a sham and a pretense, never seriously intended as a paper of testamentary operation. But I am far from saying that the court will in all cases repudiate a testamentary paper simply because a jury can be induced to find that it was not intended to operate as such. The character and nature of the evidence must be considered, as well as the result at which a jury have arrived, and the court must be satisfied that it is sufficiently cogent to its end.”

The case of Swett v. Boardman, 1 Mass. 262 (2 Am. Dec. 16), cited by counsel for contestants, is to the effect that some form of publication of a will is necessary, and that it was competent to prove by parol that at the time of executing the instrument proposed as his last will and testament the testator did not know or suppose that he was executing a will. The case of Waite v. Frisbie, 45 Minn. 361 (47 N. W. 1069), also cited by counsel for contestants, merely holds that where a will is not read by nor to the testator and it has been prepared by another person from instructions given by the testator and is then signed upon an assurance that it expresses what he desires, if the language inserted is not the language of the instructions, and if it does not make in legal effect the provisions which the testator apparently desires, it is not his will.

See, also, 30 Am. & Eng. Enc. Law (2d Ed.), p. 581, and cases cited; 1 Underhill on Wills, § 39.

“ The momentous consequences of permitting parol evidence thus to outweigh the sanction of a solemn act,” referred to by the court in the case of Lister v. Smith, supra, are still more momentous under the laws of this State, since, under the rule of evidence prevailing with us, no more cogent evidence is required to establish the fact of lack of testamentary intention in the making of an instrument than to establish any other fact which may be submitted to a jury for its determination, and the court has no greater authority to control the verdict or influence it in such a case than in any other. Recognizing fully the high character of the authorities sustaining the contestants’ position, we are inclined, as this is an open question in this State, in view of the serious consequences of the contrary view, to hold, as was held by the supreme court of Alabama in the case of Barnewall v. Murrell, 108 Ala. 366 (18 South. 831), that:

“It was, doubtless, one of the purposes of the statute, in requiring that testamentary dispositions of personal property should be executed with the same formalities required in devises of land, to remove them from the doubt and uncertainty in this respect which attended them while the rule of the common law prevailed. There is no other mode of giving a valid expression to the animus testandi, than that which the statute prescribes. Whatever forms the expression may assume, whatever solemnity may accompany it, the statute declares it ineffectual, unless the formalities it prescribes are observed. When these formalities are observed, if the writing be testamentary, if it imports a posthumous destination of property, the statute in itself and of itself attaches, and conclusively attaches, the animus testandi. The requisition of extrinsic or additional evidence of its existence is to add to the requirements of the statute; and to receive such evidence to repel the existence of the intent would be to receive evidence against the statute.”

And, again:

“When a sane testator, not subject to coercion or restraint, intentionally executes, with the formalities required by the statute, a writing which in form and substance is testamentary, the writing of itself imports, and conclusively imports, the animus testandi, i. e., the mind to dispose, the firm and advised determination to make a testament, closing all inquiry as to the existence and manifestation of the intent.”

Section 9262, 3 Comp. Laws, provides for the disposition of real property by will. Section 9265, 3 Comp. Laws, provides that every person of full age and sound mind may by his last will and testament in writing bequeath and dispose of all his personal estate. Section 9266, 3 Comp. Laws, provides that no will—

“Shall be effectual to pass any estate, whether real or personal, nor to charge or in any way affect the same, unless it be in writing, and signed by the testator, or by some person in his presence, and by his express direction, and attested and subscribed in the presence of the testator by two or more competent witnesses;" etc.

Section 9270 provides:

“No will nor any part thereof shall be revoked, unless by burning, tearing, canceling, or obliterating the same, with the intention of revoking it, by the testator, or by some person in his presence and by his direction; or by some other will or codicil in writing, executed as prescribed in this chapter; or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will; excepting only that nothing contained in this section shall prevent the revocation implied by law from subsequent changes in the condition or circumstances of the testator.”

No publication of the instrument is required in this State to give it effect, but the execution of an instrument in testamentary form with the statutory formalities completes the testamentary act. Danley v. Jefferson, 150 Mich. 590 (114 N. W. 470).

The execution of a paper in the form of a will under the provisions of our statute does not place the instrument beyond the control of the testator, whether he retains possession of it himself or delivers it over to the persons for whose benefit it has been made or to another person for them. It remains at all times subject to his control. If he retains possession of it, he may revoke it in one of the ways specified in the statute. If he has parted with the possession of the instrument, he may revoke it by making a will. The certificate of attestation is as follows :

“On this 11th day of February in the year one thousand eight hundred and ninety-seven, Thomas Kennedy of the township of Emmet, St. Clair county, Michigan, signed the foregoing instrument and declared the same to be his last will and testament in the presence of us as witnesses and we not being interested therein at the request of said Thomas Kennedy, in his presence and the presence of each other, and where he could see us sign our names, did thereupon on said above mentioned day, subscribe our names thereto as witnesses thereto.
“Clare R. Black,
“Residing at Port Huron, Mich.
“John L. Black,
“Residing at Port Huron, Mich.”

On the back of it, in the handwriting of Mr. Black, was: “Will of Thomas Kennedy, of Emmett, St. Clair county, Michigan.” It is undisputed that John L. Black witnessed the instrument in the presence of the testator. Clare R. Black testified:

“Q. Do you recall the circumstance of signing that?
“A. No, sir.
“Q. You haven’t any present memory of going into that office ? You haven’t any present memory of signing that paper at all ?
“A. No, sir. * * *
“Q. But you have no memory one way or the other on this paper now at this time ?
“A. No, sir.”

It is apparent from his testimony that he had no recollection whatever of the facts connected with his signing the will as a witness. His opinion, based wholly upon conjecture, is not sufficient to raise a question of fact for the jury, and the trial court did not err in so holding. Abbott v. Abbott, 41 Mich. 542 (2 N. W. 810). The declarations of the testator that he was being hounded to make a will are the sole evidence in the' record of undue influence in the procuring of the will, of which fact they are not competent evidence. Zibble v. Zibble, 131 Mich. 655 (92 N. W. 348).

The judgment is affirmed.

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


text:
    De BOER v. ADAMS.
    1. Malicious Prosecution — Questions of Law and Pact — Advice of Prosecuting Attorney — Statement to Attorney — Probable Cause.
    In an action for malicious prosecution the defense that probable cause was shown and that the facts were fully and fairly stated to the. prosecuting, attorney, who directed the commencement of the proceeding, is a question of fact, where it appears that the plaintiff was arrested for the malicious destruction of trees growing along the highway which the evidence tended to show were a nuisance and were cut by the plaintiff under the direction of the overseer of highways, and it further appeared that the defendant stated the facts within his knowledge to the prosecuting attorney who directed the issuance of a warrant, but that the defendant omitted to state to the prosecutor that the growth had been previously cut by the public authorities, or that he was informed that the authorities intended to cut them again.
    2. Highways and Streets — Trees—Rights of Abutting Owner —Statutes.
    Section 4163, 2 Oomp. Laws, requiring notice to be given to the adjoining owner before trees in the highway are cut, in order to give him an opportunity to remove them, only applies to trees growing upon the margin of the highway.
    3. Same — Evidence of Authority to Out Trees in Highway.
    A refusal of the plaintiff to state his authority for cutting the trees and undergrowth in the highway does not operate as an admission that he had no authority to act.
    Error to Kent; Perkins, J.
    Submitted November 19, 1909.
    (Docket No. 81.)
    Decided February 3, 1910.
    Case by Anthony De Boer against William F. Adams for malicious prosecution. A judgment for defendant on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Reversed.

      J. T. Preston, for appellant.

      Dunham & Dunham, for appellee.
   Blair, J.

This is an action on the case to recover damages for the alleged malicious prosecution of the plaintiff under the provisions of 3 Comp. Laws, § 11585, for the wilful, malicious, and wanton destruction of certain trees in a certain highway in the township of Paris, in the county of Kent.

Plaintiff gave evidence tending to show that he had been employed by his father, who at the time was the overseer of highways, to cut down the trees in question, receiving the wood that he could get out of them for his pay. The evidence also tended to show that the highway commissioner had instructed the overseer of highways to cut out the trees. The defendant Adams’ farm abutted upon the highway in question, and the south half of the highway had originally belonged to him, but was condemned by the public authorities and compensation awarded and paid to Adams for his land. The road was laid out on the section line, where originally defendant’s line fence stood, and the trees had grown up along this line fence.' Plaintiff’s testimony also tended to show that at the time the road was opened, about 1888, the trees and brush were mostly cut off, but sprang up again from the stumps and roots, and were again cut off about 10 or 11 years before plaintiff cut them, as hereinafter stated. Plaintiff’s testimony also tended to show that the so-called trees were, for the most part, third growth saplings and brush, that they extended, in the widest part, about 10 feet on each side of the middle line of the highway, and were a nuisance, particularly in the winter time, owing to the drifting of the snow and its banking up against them. It also appeared that under his alleged agreement plaintiff was to cut no wood on the outside, or margin, of the road, but only in the center, and he testified that he did not. It also appeared that Mr. Adams had lived adjoining this highway ever since it was opened.

Plaintiff’s testimony with reference to the arrest, upon which this action is predicated, is as follows:

“Mr. Adams came up and said, ‘ Do you know whose shade trees you are cutting ? ’ I said, ‘ I did not know as I was cutting shade trees.’ He said: ‘You are; you are cutting my shade trees, and I want you to go.’ I said, ‘ I didn’t know that I was cutting shade trees.’ He said, ‘What do you call them?’ I said, ‘I call that brush.’ Then he wanted to know who I was, and I told him I thought ‘ that was for me to know and for him to find out.’ Then he said he would go down and have me arrested for cutting shade trees — his shade trees — and being saucy to him. * * * That was all the talk with Mr. Adams at that time. Later Mr. Adams came back with a neighbor by the name of Smith, and he said that ‘ he had brought his neighbor to see what I was doing.’ I said, ‘ Well, he looks as though he has got good eyes, and he ought to be able to see what I am doing.’ That was all that was said, I guess.”

One Charles Gouzewaard testified that, in the morning of the day of plaintiff’s arrest, and before Mr. Adams saw the prosecuting attorney, he told Mr. Adams that John De Boer, plaintiff’s father and the overseer of highways, had'told his ( Gouzewaard’s) father to cut the grubs, and he did not want to cut them.

Defendant’s version of the transaction leading up to the arrest was as follows:

“ When I first saw De Boer cutting the trees, it was on the 9th of January. I went to him and asked him how he happened to be cutting those trees, and he said, ‘ I want them for wood.’ ‘Well,’ I said, ‘you are trespassing. Those trees are on my land. They are this side of the center of the road. ’ He said, ‘ The trees belong to anybody that is a mind to cut them.’ I asked him his name, and he said, ‘ It was for me to find out.’ I asked him ‘if he had any authority to cut those trees,’ and he said ‘ that was his business.’ I forbid his cutting any more. * * * Then I came to town and went to the prosecuting attorney’s office and said to McDonald, ‘ McDonald, I have a grievance,’ and he asked me what it was, and I defined the situation. I asked him for a warrant. I told him we had a lot of trees cut there. I told him we had a line of trees cut there numbering about 150 that occupied a space in the center of the highway, and I asked for a warrant. That was about all I said to McDonald. That covers the whole ground, and he called up Mr. Lindsey. I told him I found'this man cutting trees. I told him the man was John Doe. He would not tell me his name, and I told McDonald he said, ‘ That was for me to find out.’ I told him I found this man cutting the trees, and I asked him his name and he said, ‘ Find out,’ and then I told McDonald that I asked him if he had any authority from anybody to cut these trees, and he said ‘that was his business.’ I told him where those trees were, the size of some of them. Then Mr. McDonald called Mr. Lindsey and introduced me to him. He said, ‘ Mr. Lindsey, give Mr. Adams a warrant.’ ”

Upon direction of the prosecuting attorney, the proceedings before the magistrate were dismissed without the taking of any testimony. After the proofs had been put in in the circuit court in the present case, the trial judge directed a verdict in favor of the defendant on the ground that the undisputed facts showed that the defendant had probable cause for instituting the criminal prosecution, and that he was protected by the action of the prosecuting attorney in taking charge of the case.

We think the trial judge erred in directing a verdict. In our opinion the question whether he had made a full and fair disclosure of everything within his knowledge which would tend to cause or to exclude belief in plaintiff’s guilt was a question of fact for the jury and not for the court. Lansky v. Prettyman, 140 Mich. 40 (103 N. W. 538).

We.are also of the opinion that the question whether defendant had probable cause for making the complaint was a question of fact for the jury. While the conduct of the plaintiff was not commendable, we do not think it alone justified the defendant, as a matter of law, in causing his arrest without further inquiry. The plaintiff’s statement of what occurred differs in some respects from the defendant’s statement, and if the jury believed his statement and found that those grubs in the middle of the road had twice before been cut down by the public authorities, and that defendant must have known of such cutting, and that Gouzewaard informed him that the overseer of highways had endeavored to induce his father to cut out these same grubs, and that, for the most part, the grubs were third growth from the original stumps and constituted a nuisance in the highway, these facts, with the other circumstances disclosed by the record, would require the submission of the question of probable cause to the jury.

We are further of the opinion that the law requiring notice to be given to the adjoining owner before trees are cut, in order to give him an opportunity to remove them, only applies to trees growing upon the margin of the highway. See 2 Comp. Laws, § 4163. And we are of the opinion that it was not contemplated that a strip of brush, grubs, and trees should be left standing and growing in the middle of a country highway, and that such growth is prima facie evidence of obstruction of the highway. While the grubs after being cut, so far as they were of any value, belonged to the defendant, the highway officers were under no obligation to give him notice to remove them before cutting them down.

It cannot be found, as a matter of law, that plaintiff admitted that he had no authority to cut the grubs, but the inference is at least permissible that he neither affirmed nor negatived his authority, but left it for the defendant to ascertain from further investigation.

The judgment is reversed, and a new trial ordered.

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