author: Carpenter, J.

text:
    PEOPLE v. ALBERS.
    1- PeRjuey — Former Acquittal — Bar.
    Til® acquittal of one accused of crime is not a bar to his subsequent prosecution for perjury as a witness at the trial, where, though his testimony was material, its falsity was not, legally speaking, inconsistent with his innocence.
    2. Jurors — Disqualification — Prejudice — Issues in Prior. Case.
    On the trial of accused for perjury in giving false testimony on his own trial for bribery, jurors who have sat in a trial at which another than accused was convicted of bribery in connection with the same matter are not disqualified, respondent having been acquitted of the bribery, and that adjudication being conclusive as to respondent’s connection with the corrupt plan, if any existed.

      3. Same — Voir Dire — Question as to Previous Verdict.
    A juror who has sat in the trial of another person for a crime arising out of the same matter cannot be asked whether he formed any opinion in the previous case as to the truth or falsity of the testimony of a witness who téstified therein and who is also a proposed witness in the prosecution on trial, as such a question violates the statute (3 Comp. Laws, § 10239) prohibiting a juror being questioned regarding his verdict.
    4. Same — Harmless Error.
    Refusal, in a criminal prosecution, to permit a juror, who has sat in the trial of another person for a crime arising out of the same matter, to answer the question whether his,sitting'on that trial and having heard the testimony would affect his judgment in the case at bar, is harmless, where the testimony of the only witness who testified in the previous case was improperly admitted in the case at bar.
    5. Same — Review—Questions Presented.
    Section 10247, 1 Comp. Laws, authorizing the review without exceptions of errors in charging or refusing to charge the jury, does not authorize the review of a challenge to a juror, to the overruling of which no exception was taken.
    6. Perjury — Evidence—Hearsay.
    Where perjury is assigned on accused’s denial that V. sent him to bribe R., the testimony of S. that he, S., requested V. to have accused see R. in relation to the matter, is inadmissible as hearsay, though it corroborates V.’s testimony that he did send accused to R. as alleged.
    7. Same — Statement of Co-Conspirator.
    Where accused is acquitted of an attempt to bribe in connection with a corrupt conspiracy and is subsequently prosecuted for perjury committed at the trial, evidence, otherwise inadmissible, cannot be admitted on the assumption that he made himself a party to the conspiracy and thereby opened the door to such testimony, as the former acquittal conclusively negatives such assumption.
    8. Criminal Law — Evidence—Character.
    The opinion of witnesses as to accused’s character for honesty and integrity, based on personal knowledge and not on reputation, is inadmissible.
    9. Perjury — Reputation—Truth and Veracity.
    One accused of perjury is entitled to show that his reputation for truth and veracity is good.

      10. Same — Saving Question.
    Where evidence of accused’s reputation for truth and veracity is rejected, in a trial for perjury, the question is sufficiently saved without an express statement by counsel that the purpose of its offer is to prove a trait of character, accused not having offered himself as a witness.
    11. Same — Cure of Error.
    Where, in a prosecution for perjury, the court erroneously excluded evidence that defendant’s reputation for truth and veracity was good, the error was not cured by permitting evidence that defendant had a good reputation for honesty and integrity.
    12. Criminal Law — Evidence—Sufficiency—Instructions.
    A charge that whatever would convince the jury beyond a reasonable doubt, in the judgment which they use in their ordinary affairs of life, was all that was necessary to convince them sitting as jurors in any criminal case, is misleading.
    13. Perjury — Materiality of Testimony.
    Where, in a prosecution of accused for offering a bribe to R., R. testified that accused offered him a bribe for his vote, and told him that V. had sent him there, accused’s evidence in rebuttal, in which he denied that V. had in fact sent him to R., was material, and, being false, was sufficient to sustain an indictment for perjury.
    Exceptions before j udgment f rom superior court of Grand Rapids; Newnham, J.
    Submitted June 17, 1904.
    (Docket No. 195.)
    Decided October 4, 1904.
    Gerrit H. Albers was convicted of perjury.
    Reversed.

      Frank A. Rodgers and Myron H. Walker, for appellant.

      William B. Brown, Prosecuting Attorney, and Charles E. Ward, Assistant Prosecuting Attorney, for the people.
   Carpenter, J.

In May, 1903, respondent was acquitted of the charge of corruptly offering to one Joseph Renihan, an alderman of the city of Grand Rapids, $3,000, with the intent to induce said Renihan to vote, as a member of the common council of the city of Grand Rapids, in favor of entering into a contract for the purchase of water, to he conveyed from Lake Michigan to said city, for municipal and other purposes. On that trial respondent was a witness in his own behalf. He corroborated the testimony of Renihan that he offered him $3,000 for his vote, and that he told him that one Dr. De Vries had sent him there; but he denied that De Vries had in fact sent him, and he testified that he made this offer with no corrupt motives, but in order to ascertain whether or not Renihan was an honest man. In the present case, respondent is charged with perjury in testifying that De Vries did not in fact send him to Renihan. He was convicted of that charge, and asks that conviction to be set aside upon many grounds.

First. Respondent claims that his acquittal by the jury cf the charge of attempting to bribe Renihan is a bar to the prosecution of this suit. He sets forth that:

“ The question of fact as to whether this respondent was sent by the said De Vries or some one else, or went of his ■own accord, to see Renihan, was in issue upon said trial, and evidence was adduced upon the side of the people and cf this respondent thereto, and the determination of the same was material to and necessarily involved in the determination of the guilt or innocence of this respondent upon said charge, and was necessarily passed upon and determined by the jury in arriving at their verdict. ”

In support of the contention that his acquittal of the •charge of bribery is res adjudicata, defendant cites U. S. v. Butler, 38 Fed. 498; Cooper v. Commonwealth, 106 Ky. 909 (51 S. W. 789, 59 S. W. 524, 45 L. R. A. 216, 90 Am. St. Rep. 275); Petit v. Commonwealth, (Ky.) 57 S. W. 14.

In U. S. v. Butler, supra, respondent was first acquitted •on the charge of selling liquor without payment of the tax. He was subsequently put on trial for perjury in swearing on his preliminary examination that he did not so sell liquor. It was held that the acquittal of respondent on the first charge was a bar to his prosecution on the second.

In Cooper v. Commonwealth, supra, the respondent was first prosecuted for adultery and acquitted. It was held that this acquittal prevented his conviction in a prosecution, subsequently commenced, charging him with having committed perjury in the first suit in denying that he committed the adultery there charged.

In Petit v. Commonwealth, supra, respondent was first tried and acquitted on a charge of carrying a concealed weapon, viz., a pistol. It was held that this acquittal prevented his conviction on a prosecution, subsequently commenced, on the charge of committing perjury in testifying in the first suit that he was not guilty of the-charge made against him.

These cases are authority for the proposition that an acquittal of a certain charge is a complete defense to a subsequent prosecution for perjury which is based upon the assumption that respondent was guilty of that charge. If this proposition be sound, and it has been denied (see State v. Caywood, 96 Iowa, 367 [65 N. W. 385]; Hutcherson v. State, 33 Tex. Cr. Rep. 67 [24 S. W. 908]; People v. Sculley, 3 N. Y. Cr. R. 244), it has no application to this-case. It is true that the perjured testimony under consideration was material, because it strengthened respondent’s claim that he was not acting corruptly. But its. falsity is not, legally speaking, inconsistent with respondent’s innocence of the crime of bribery. Because respondent was innocent of that crime, it does not follow that all testimony tending to prove his innocence was true, and that all testimony tending to prove his guilt was false. It is not even certain that the jury who acquitted respondent of the charge of bribery found that De Vries did not send him to Renihan. From the nature of the case this is a fact extremely difficult, if not impossible, to be proved. . But if we assume that they did so find, as alleged in respondent’s plea, it by no means follows that such finding is res adjudicata in this suit. The foregoing authorities certainly do not so hold. Because the people may not prosecute one for perjury upon the basis that he was guilty of the crime for which he has been acquitted, it by no means follows that they cannot prosecute him for perjury simply because the jury credited his perjured testimony, and particularly when the prosecution for the crime of perjury does not proceed upon grounds inconsistent with his innocence of the first charge.

The verdict of the jury in the first case adjudged respondent innocent of the crime of bribery. By what reasoning-can it be contended that it also adjuged him innocent of the crime of perjury in giving his testimony therein? He was not then tried for that charge, and he could not have been there convicted of it. If a prosecution on that charge had been at once instituted, the pendency of the first prosecution could not have been pleaded in abatement of the second; and it has been held that the judgment'in the suit in which perjury is alleged to have been committed, is inadmissible evidence on the question of guilt or innocence in the prosecution for perjury. See U. S. v. Burkhardt, 31 Fed. 141; Estill v. State, 38 Tex. Cr. Rep. 255 (42 S. W. 305); State v. Caywood, 96 Iowa, 367 (65 N. W. 385); State v. Williams, 60 Kan. 837 (58 Pac. 476); People v. Sculley, 3 N. Y. Cr. R. 244; Hutherson v. State, 33 Tex. Cr. Rep. 67 (24 S. W. 908).

The general proposition that one can escape punishment for perjury, because he succeeded in inducing a jury to credit his false testimony, is supported neither by authority nor by reason. If he could, then it is true, as stated by counsel for the people, that the law encourages parties, particularly respondents in criminal cases, to perjure themselves. We must declare that the law is guilty of no such folly.

Is the rule changed by the fact that the suit in which credit was given to the perjured testimony was another suit between the same parties ? We think' not.

“The former verdict is conclusive only as to facts directly and distinctly put in issue, and the finding of which is necessary to uphold the judgment. The doctrine of estoppel [that is, the conclusiveness of a former judgment] is restricted to facts directly in issue, and does not extend to facts which may be in controversy, but which rest in evidence, and are merely collateral. ‘A fact or matter in issue is that upon which the plaintiff proceeds by his action, and which the defendant controverts in his pleadings, while collateral facts are such as are offered in evidence to establish the matters or facts in issue. ’ Garwood v. Garwood, 29 Cal. 521.” 1 Freeman on Judgments, § 257.

See, also, King v. Chase, 15 N. H. 16 (41 Am. Dec. 675); Wells on Res Adjudicata, p. 195; Burlen v. Shannon, 99 Mass. 202 (96 Am. Dec. 733); Dickinson v. Hayes, 31 Conn. 423; People v. Johnson, 38 N. Y. 65 (97 Am. Dec. 770).

Second. Immediately before the trial of respondent, several members of the jury had sat as jurors in the case of People v. Jacob P. Ellen, in which Ellen was convicted of accepting a bribe to vote as a member of the common council of the city of Grand Bapids in favor of the city’s entering into the water contract heretofore referred to. It is urged that the fixed opinion thus formed that there was a corrupt plan to induce the city to enter into this water contract disqualified these men to sit as jurors on the trial of respondent.

Was the existence of this corrupt plan a material fact respecting respondent’s guilt or innocence F It certainly was not a fact -necessary to be established, and it was' not •established, on respondent’s trial.

Would testimony tending to prove the existence or nonexistence of such plan have been material ? If respondent willfully and falsely testified that DeVries did not send him to Benihan, he was guilty of perjury. If he did not willfully and falsely so testify, he was not guilty of perjury. It is obvious that the existence or nonexistence of the corrupt plan to induce the city to enter into the water contract had no direct bearing on this issue. It is true that proof of the existence of such plan might have a tendency to increase the probability of respondent’s guilt; but reflection will show that this is true only upon the assumption that respondent was a party to that plan, and this in turn rests upon the assumption that respondent did corruptly attempt to bribe Renihan. In other words, the corrupt plan was material to this issue only upon the assumption that respondent was guilty of the crime of bribery, for which he has been acquitted. Whatever we may think of the authorities (see U. S. v. Butler and Cooper v. Commonwealth, supra) which hold that such acquittal is a conclusive adjudication that respondent was not guilty of perjury in testifying to his innocence, there can be no doubt that it is a conclusive adjudication of such innocence. When a fact has once been judicially determined, that determination is* conclusive in all other controversies between the same parties. This rule applies, though the subject-matter and purposes of the two controversies are not the same. See Coffey v. U. S., 116 U. S. 436 (6 Sup. Ct. 437); Green v. Bogue, 158 U. S. 478 (15 Sup. Ct. 975); Meadows v. Duchess of Kingston, Ambl. 756; Langmead v. Maple, 18 C. B. (N. S.) 255; 1 Freeman on Judgments, § 253. The rule applies, though the fact which is directly determined in the first suit is only tried in a collateral way or is incidentally involved in the second suit. See Meadows v. Duchess of Kingston, supra. See, also, Coffey v. U. S., supra; Rex v. Duchess of Kingston, 20 How. St. Tr. 355-538; Van Fleet, Former Adjudications, pp. 28, 29. This rule is not confined in its application to civil cases. It applies to criminal prosecutions. See Rex v. Duchess of Kingston, supra. Evidence cannot, there- - fore, be introduced in this case which is admissible only upon the assumption of respondent’s guilt of the crime of bribery, for which he has been acquitted. We must hold, therefore, that the existence of such corrupt plan was a fact altogether immaterial in the prosecution of respondent for perjury. It is possible, though, in our judgment, not probable, that the jurors’ fixed belief in the existence of the corrupt plan might unduly incline them to credit De Vries’ testimony, which was in harmony with such belief. The legal disqualifications of a juror must be tested by something more certain than the bare possibility that he may be prejudiced by his belief of an immaterial fact. Otherwise, no person would be qualified.

Indorsed upon the information in this case as witnesses for the people were the names of Lant K. Salsbury, Clark Slocum, and Corey P. Bissell. These three had been sworn as witnesses in the Ellen Case. One of the jurors who sat in the Ellen Case was asked “ whether he had formed any opinion in that case as to the truth or falsity of the testimony of Lant K. Salsbury.” He was asked, further, if the three witnesses above named should testify in this case to the same state of facts as in the Ellen Case, “ would the fact of your sitting on the’ other trial and having heard the testimony affect your judgment in this case ?” These questions were excluded. An answer to the first question, if permissible at common law, would have violated the statute (section 10339, 3 Comp. Laws), which prohibits a juror being questioned respecting his verdict. See Welch v. Publishing Co., 83 Mich. 661 (47 N. W. 562, 11 L. R. A. 233, 21 Am. St. Rep. 629). As neither Slocum nor Bissell testified in this case, and as the testimony of Salsbury, as will hereafter appear, was improperly admitted, respondent was not aggrieved because the court refused to permit the juror to answer the second question.

It appears by the record that one of the jurors who sat in this case was not a taxpayer, as required by law, and that this fact was brought to the attention of the trial court and to both counsel. He was not challenged, and the court ordered him sworn as a member of the jury, to which ruling no exception was taken. While we may review without exception errors in charging or refusing to charge the jury (section 10347, 3 Comp. Laws), it is well settled that we have no authority to review other rulings not excepted to. See Roberts v. Fitzgerald, 33 Mich. 4; Larkin v. Lumber Co., 42 Mich. 296 (3 N. W. 904). We have, therefore, no' authority to review the ruling under consideration, and this court is charged with no higher duty than that of keeping within the prescribed limits of its authority.

It is no answer to this point to assert, relying on Hill v. People, 16 Mich. 351, that respondent could not waive his objection to the juror’s want of qualification, and therefore his failure to except did not prevent his subsequently questioning the juror’s qualification. In that case the propriety of the ruling of the trial court was considered on an exception to the court’s refusal to grant a new trial. If it be true that defendant in a criminal case cannot waive any lack of qualification in a juror, it is none the less true that his failure to except to the court’s ruling does not give fhis court authority to review such ruling in a proceeding where, as in this case, it can review only rulings to which exception was taken. The propriety of the ruling in question must therefore be assailed, if assailed at all, by collateral attack, and whether or not such an assault will succeed is a question foreign to this issue.

Third. The prosecution was permitted to prove both by witnesses De Vries and Lant K. Salsbury that the latter requested the former to see respondent in relation to the water deal. It will be conceded that this conversation between De Vries and Salsbury, standing by itself, was immaterial to the issue of respondent’s guilt. If this testimony was admissible at all, it was so only because it tended to corroborate the testimony of De Vries that he sent respondent to see Renihan. While it may be conceded that it would have such a tendency, and was therefore material, it by no means follows that it was competent. It would have a tendency to convince the jury that De Vries actually did send respondent' only upon the assumption that De Vries complied with Salsbury’s request, and whether he did so comply depends upon the credit the jury gave to De Vries’ testimony that he did. In other words, the value of Salsbury’s testimony rests in part on the veracity of De Vries. This testimony was, therefore, hearsay testimony, which is defined as “that kind of evidence which does not derive its credibility solely from the credit due to the witness himself, but rests also in part on the veracity and competency of some other person.” 1 Phillips on Evidence, p. 169; 1 Greenleaf on Evidence, § 99; 11 Am. & Eng. Enc. Law (2d Ed.), p. 520. This testimony was not a part of the res gestae, and did not comes within any of the excepted classes of hearsay testimony, which are, under the rules of law, admissible. It is no answer to this objection to say that this testimony furnished moral corroboration to the testimony of De Vries. This argument might be urged for the admission of very much of the hearsay testimony which the rules of law exclude. See People v. Abell, 113 Mich. 80 (71 N. W. 509). And we cannot accept it without altogether overthrowing the rule which excludes hearsay testimony, and that every one will concede we cannot do.

It is urged that respondent, by undertaking to bribe Renihan, made himself a party to the conspiracy to procure the water contract, and therefore the acts of other conspirators were competent. This argument rests upon the assumption that respondent did corruptly attempt to> bribe Renihan, and, as we have shown in another part of this opinion, evidence is not admissible upon that assumption.

Fourth. The court refused to permit witnesses introduced by respondent to give their opinion, based on personal knowledge, and not on reputation, of respondent’s character for honesty and integrity. Was this error ?

The purpose of testimony of this nature is to prove that the person charged with crime possesses a character inconsistent with guilt. It may be said that the authorities are substantially agreed that it is not competent to prove such character by specific acts of respondent, and that it is competent to prove such character by reputation; that is, by the estimate of the community in which he lives. It is urged in this case that it is also competent to prove it by the opinion of those who have habitually observed respondent. We do not consider ourselves at liberty to examine the arguments in support of this contention, upon the assumption that this is an unsettled question. While there are authorities holding such testimony to be admissible (see 1 Bishop, New Criminal Procedure, § 1117, and the authorities there cited), we think it authoritatively settled that the rule of the common law, which we are bound to apply, excludes it. See Underhill, Criminal Evidence, § 81; Wharton, Criminal Evidence, §§ 58, 259, 261; 1 Best on Evidence, 486; 1 Phillips on Evidence, 764; Reg. v. Bowton, 10 Cox, Cr. Cas. 25; Rex v. Jones, 31 How. St. Tr. 310; Hirschman v. People, 101 Ill. 568; Berneker v. State, 40 Neb. 810 (59 N. W. 372); Jackson v. State, 78 Ala. 471; State v. King, 78 Mo. 555; Evidence of Character, 70 Law Times, 167, quoted 12 Cent. Law J. 415. The ruling under consideration was therefore correct.

Fifth. The trial court refused to permit respondent to introduce testimony tending to prove that his reputation for truth and veracity was good.

“ The particular trait of character which the indictment impugns, probably by all opinions, may be given in evidence in defendant’s favor.” 1 Bishop, New Criminal Procedure, § 1113; People v. Stewart, 28 Cal. 395. See, also, Coffee v. State, 1 Tex. App. 548.

The excluded testimony was, therefore, clearly admissible. It is said by the counsel for the people that this testimony would not have been excluded, had defendant’s counsel indicated that this testimony was directed to prove a trait of character, and that it was excluded because respondent had not been a witness)^and it was understood that the purpose of this testimony was to treat respondent as though he had been. It is true that defendant’s counsel did not state the purpose of this testimony, but the record shows nothing — either inquiry from the court, or opposing counsel, or anything else — that made it his duty to state it. We are at a loss to understand why its purpose was not sufficiently obvious. Nor is respondent’s counsel at fault because the trial court and counsel for the people erroneously assumed that it was his purpose to treat respondent as though he had been a witness. He was not informed of this erroneous understanding, and had, therefore, no opportunity to correct it.

It is urged that in any event the ruling was not prejudicial to respondent, because he was permitted to offer testimony tending to prove that his general reputation and his reputation for honesty and integrity was good. If it is true, as assumed by the people, that a good reputation for honesty and integrity necessarily proves a good reputation for truth and veracity, it does not follow that the exclusion of this testimony was not injurious. We cannot say with certainty that the jury gave credit to the testimony that respondent’s reputation for honesty and integrity was good, and we certainly cannot say that they would have discredited the excluded testimony respecting respondent’s reputation for truth and veracity. Counsel’s argument that the error under consideration was harmless is based on the assumption that the jury did in fact infer, from the testimony that respondent’s general reputation was good, that his reputation for truth and veracity was good. The jury were not encouraged to draw any such inference. They were not told that they might draw it. They knew that this testimony was excluded, not on the ground now urged, that the fact was already proved, but because it was immaterial. It is difficult to believe that the jury thought it their duty to infer the existence of a fact which the court decided to be immaterial.

Sixth. It is urged that the conviction in this case cannot stand because it was secured by the uncorroborated testimony of De Vries. We do not think it can be said that the testimony of De Vries is uncorroborated. The testimony of Renihan and the testimony of respondent himself, given on the former trial, furnished such corroboration.

Seventh. In charging the jury, the trial judge used this language:

“Whatever would convince you beyond a reasonable doubt, in the- judgment which you use in your ordinary affairs of life, is all that is necessary to convince you sitting as jurors in any criminal case.”

I think it may be said that in the ordinary affairs of life most men never require evidence which convinces them beyond a reasonable doubt. The charge under consideration, therefore, tells such men to act on an impossible assumption, and it is likely to lead to the notion — a notion that all will concede to be erroneous — that they may convict a person charged with crime on such evidence as would convince their judgment in the ordinary affairs of life.

Says the supreme court of Wisconsin of a similar charge:

‘ ‘ The absence of doubt of guilt, when the measure and limit of the scrutiny is'that which reasonable men would exercise in the ordinary affairs of life is not sufficient; for it does not necessarily result therefrom that the evidence, properly considered, would leave no such doubt. * * ' * If the circuit judge desired to make use of any such analogy, he should have told the jury that it was their duty to scrutinize the evidence with the utmost caution and care, bringing to that duty the reason and prudence which they would exercise in the most important affairs of life.” Anderson v. State, 41 Wis. 430.

The language employed is not altogether clear, and it is possible that it misled the jury.

Eighth. Respondent suggests, though it can scarcely be said that he contends, that the alleged perjured testimony was immaterial. To avoid any misapprehension, though at the risk of repetition, we think it proper, as well as sufficient, to say that for the reasons heretofore set forth it was in our judgment material.

No other complaint demands discussion.

The conviction is set aside, and ,a new trial granted.

The other Justices concurred.


source: Caselaw Access Project

author: Carpenter, J. Grant, J.

license: Public Domain

text:
    PEOPLE v. MOL.
    1. Jurors — Voir Dire — Question as to Previous Verdict.
    Jurors cannot be asked on their voir dire whether, from the testimony presented in the previous trial of another for bribery arising out of the same conspiracy, they formed an opinion respecting the guilt of accused, since such question would open the door to inquiries which would disclose the precise grounds upon which they reached the conclusion of guilt. 8 Comp. Laws, § 10239.
    2. Same — Disqualification— Prejudice — Issues in Prior Case.
    Where several are charged with bribery arising out of the same conspiracy, and the same evidence is relied on to sustain a conviction against each, jurors who have sat in the trial of certain of the conspirators previously tried are subject to challenge for cause. Grant, J., dissenting.
    3. Criminal Law — Questions Reviewable — Decision as to Favor oe Jurors.
    This court has a right to review a decision as to the favor of a juror when it raises a legal question.
    4. Same — Evidence—Acts and Declarations oe Co-Conspirators.
    In a prosecution for bribery arising out of a conspiracy, evidence of a conversation had between accused and another of the conspirators, after the conspiracy was abandoned, relating to the re-election of the other as city attorney, for the avowed purpose of avoiding an exposure of the crime, which would be more probable if a third person were elected to such office, was admissible.
    5. Same.
    Where a conspiracy is established, the declarations and acts of any of the co-conspirators before the conspiracy is abandoned are admissible against each.
    6. Bribery — Oeeioer—Matter Oefioially Cognizable.
    Where a proposition to let a contract for waterworks was one which might come before a city council for official action, the fact that the council had no authority to make the contract did not prevent the payment of money to councilmen to influence their action on the same from constituting a violation of 3 Comp. Laws, § 11312.

      Exceptions before judgment from superior court of Grand Rapids; Newnham, J.
    Submitted June 17, 1904.
    (Docket No. 193.)
    Decided October 4, 1904.
    James Mol was convicted of accepting a bribe.
    Reversed.

      Smedley & Corwin, for appellant.

      William B. Brown, Prosecuting Attorney, and Charles E. Ward, Assistant Prosecuting Attorney, for the people.
   Carpenter, J.

Respondent was convicted in the superior court of Grand Rapids of the charge of corruptly •accepting $350 to vote as an alderman in favor of the city of Grand Rapids entering into the same water contract which was before this court in People v. Salsbury, 134 Mich. 537 (96 N. W. 936), and People v. McGarry, 136 Mich. 316 (99 N. W. 147).

Six of the men who sat as jurors on respondent’s trial had only a few days before assented to a verdict of guilty in the case of People v. Jacob P. Ellen. Respondent exhausted his peremptory challenges. He challenged these jurors for cause. The trial court overruled his challenge. "Was this ruling error ?

The informations in the Ellen Case and in this case, except in the name of the respondents, were exactly alike. ‘The name of every witness who testified in this case was indorsed upon the information in the Ellen Case. The principal witness in each case was Lant K. Salsbury. He ■gave substantially the same testimony in each case. In this case he testified to bribing Ellen. In the Ellen Case it is to be inferred that he testified to bribing Mol. Most of his testimony and substantially all the corroborating testimony consists of the details of the conspiracy, admissible .alike in each case. In that case it is to be inferred that he testified more particularly about Ellen, and in this case more particularly about Mol. The difference between the two cases, then, consists in the particular application of. substantially the same testimony to different defendants, together with the fact that in the Ellen Case there is opposed to it the denial of Ellen, and in this case there is opposed to it the denial of Mol.

Five of these jurors, in reply to questions on their voir dire, said they had formed no opinion of the guilt or innocence of respondent. One of them said: “If the case is; just alike, I have; if it is not, I have not.” Did the court err in deciding that these jurors were qualified ?

If this decision is to be governed by common-law principles, the decision of the trial judge was correct.

It was resolved by all the judges in the Regicide's Case, 5 How. St. Tr. 978, in the year 1660:

“ That if several persons be indicted together in one indictment for one crime, in case some of them be found guilty by one jury, and afterwards some of the same jury be returned for trial of others in the same indictment, it is no challenge for those prisoners to say that those jurors have already given their verdict and found others guilty who-are indicted in the same indictment for the same offense;, for * * * in the law it is the several indictment against every one of them, and the crime is several, and one may be guilty and not another, and the jury are to-give their verdict upon particular evidence against every several person, and therefore the finding one guilty is no argument or presumption that those jurors will find another guilty.”

. In the trial of Peter Cook at the Old Bailey, before Lord Chief Justice Treby, in 1696 (13 How. St. Tr. 313), counsel for respondent said:

“Here are some persons returned upon this panel that were formerly jurors in a cause that was tried for the same species of treason that this gentleman, the prisoner, is charged with in this indictment; and I think the witnesses at that trial did mention in their evidence my client as being present at those very consults about which they gave their evidence. These gentlemen gave credit to those witnesses and found the verdict against the person then accused. We humbly submit it to your lordship and. the court whether we may not for this cause challenge this person as not indifferent, it being for the same cause and consult that the other was tried for.”

To this the Lord Chief Justice replied:

“ Well, there is nothing in it.”

These decisions, which have been followed by some courts in modern times (see U. S. v. Wilson, Baldw. 84 [Fed. Cas. No. 16,730]; Dew v. McDivitt, 31 Ohio St. 139; State v. Williams, 31 S. C. 238 [9 S. E. 853]; Thomas v. State, 36 Tex. 315; Bowman v. State, 41 Tex. 417), were pronounced before there was any judicial acceptance of our modern conception of a jury as a tribunal which should dispose of a controversy solely on the testimony introduced before them. When they were made, while jurors heard testimony produced by the parties, their verdict was not, as we might infer from the rule in the Regicide’s Case, based solely upon that testimony. They might, as is shown by the following authorities, in accordance with the ancient practice still in part existing, use in the decision of a controversy their private knowledge of facts, or, it seems, their private information concerning them. See 2 Pollock & Maitland, History of Eng. Law, p. 622.

In Bushell's Case (this case arose from an imprison-, ment of the jurors who had acquitted William Penn of a criminal charge), decided in 1670 (see 6 How. St. Tr. pp. 1010, 1011), the right of a court to fine and imprison a juror for rendering a verdict in favor of the defendant in a criminal case, against the manifest testimony, was judicially denied on the ground that—

“The judge * * * can never know what evidence the jury have. * * * Being returned of the vicinage whence the cause of action ariseth, the law-supposeth them thence to have sufficient knowledge to try the matter in issue, though no evidence were given on either side in court. * * * They may have evidence from their own personal knowledge by which they may be assured, and sometimes are, that what is deposed in court is absolutely false.”

In the Case of Tutchin, 14 How. St. Tr., at page 1100, decided in 1704, the issue in the case was whether the defendant was the author of a certain libel. A person called as a juror stated that he had read the alleged libelous publication, and publicly disallowed them, and he did not doubt defendant was the author of them. The attorney general answered :

“ If this gentleman knows him to be the author of them, he is proper to be on the jury, for the jury are by law to be of the neighborhood of the place where the fact is alleged to be done, because they are presumed to know what is done there.”

It is to be inferred that this argument was approved by Lord Chief Justice Holt, who presided at the trial.

As the juror at the common law was not compelled to render his verdict on the testimony given in court, it was no ground of challenge, as some courts have held (see People v. Vermilyea, 7 Cow. 108), that he had knowledge that would prevent his rendering such a verdict. At the common law the challenges to jurors for affection or partiality were of two kinds: (1) “For principal cause;” (2) “to the favor.” A challenge is called principal “because, if it be found true, it standeth sufficient of itself, without leaving anything to the conscience or discretion of the triors.” 1 Co. Litt. 156b. Relationship to one of the parties or interest in the subject-matter of the litigation furnish illustrations of grounds for challenges for principal cause. Challenge to the favor (and the challenge under consideration is challenge to the favor, Stephens v. People, 38 Mich. 739) “is when the party •alleges any such exception against one or more of the jurors, which is not forthwith sufficient upon acknowledgment of the truth thereof, but rather arbitrable and considerable by the rest of the jurors.” State v. Sawtelle, 66 N. H. 508 (32 Atl. 831). “It showeth causes of favor which must be left to the conscience and discretion of the triors, upon hearing their evidence, to find him favorable or not favorable.” 1 Co. Litt. 157b.

‘ ‘ In this form of challenge probable circumstances of suspicion, such as great intimacy with one party, or strife and quarrels with the other, any acts or sayings indicating affection for one or malevolence toward the other, in short, anything tending to show a motive on the part of the juror to favor one party or to wrong the other, may be alleged and proved.” State v. Sawtelle, supra.

The question raised by this challenge was not that a juror had knowledge or opinions which would prevent his deciding the case according to the evidence, but it was that because of affection toward one party or of hatred toward the other, or because of some other similar motives, he would not decide the case according to the truth. This is illustrated by the following decisions:

In 1429 (see 7 Hen. VI. 25, pl. 8), in an action of replevin, a juror was challenged “for that he was favorable.” Babington, C. J., submitting the questions to the triors, said:

“Do you know, triors, what is meant by favorable? He is favorable who, whether the matter is true or false, will pass for one or the other. * * * But, if one has said twenty times that he will pass for the one or the other party, you will inquire upon your oath whether the cause is for the affection he has for the party, or for the knowledge he has of the matter in issue; and if it is for the affection he has for the party, then he is favorable, but' otherwise he is not.”

Said Newton, J., in a case decided in 1442, reported in 20 Hen. VI. 40, pl. 9 (see State v. Sawtelle, supra):

“ And if a juror say that he will pass for the plaintiff, his saying is no cause for withdrawing him, unless it is found by the triors or by the court that he said this more for favor than for the truth of the matter.”

In Rex v. Edmonds, 4 B. & Ald. 490, decided in 1821, Abbott, C. J., speaking for the court, said:

“The language of Mr. Sargeant Hawkins upon this ¡subject (4 Hawkins, Cr. Pl., bk. 2, chap. 43, § 28) is ■that, if the juryman ‘hath declared his opinion beforeliand that the party is guilty, or will be hanged, or the like, yet if it shall appear that the juror hath made such declaration from his knowledge of the cause, and not out of any ill will to the party, it is no cause of challenge.” So that, in the opinion of this learned writer, the declaration of a juryman will not be a good cause of challenge, unless it be made in terms or,under circumstances denoting an ill intention towards the party challenging. A knowledge of certain facts, and an opinion that those facts-constitute a crime, are certainly no grounds of challenge; for it is clearly settled that a juryman cannot be challenged by reason of his having pronounced a verdict of guilty against another person charged by the same indictment.”’

The supreme court of New Hampshire was justified in. saying in State v. Sawtelle, supra (this case contains a-careful and painstaking analysis "of nearly all the common-law decisions on the subject, and it has been of great-aid in the preparation of this opinion):

‘ ‘ In ancient times the law esteemed those who, being without motive to favor either party, had immediate and personal knowledge of the facts in dispute, to form the best conceivable tribunal for the determination of the issue. * * * The common law esteems jurors indifferent who have no motive to find for or against either party. All the valid objections to their competency, propter affectum [that is, for affection or partiality], whether for principal cause or for favor, rest on a motive presumed by law, or proved as a fact, to find for one or the other party.”

We are forced to the conclusion, therefore, that our conception of a jury as a tribunal who should dispose of the case solely from the testimony produced before them did not come from the ancient rules of the common law. We are bound to say that the provision in the Constitution of Michigan (article 6, § 28), which, like the provision in other American constitutions (see Constitution of United States), gives the accused a right to trial by “an impartial jury,” gave him a right to trial by jurors qualified to dispose of the case upon the testimony presented to them. A jury is not impartial “whose members are already so impressed with the guilt of the accused that evidence will be required to overcome such impressions.” See Stephens v. People, 38 Mich. 739. See, also, Smith v. Eames, 4 Ill. 76 (36 Am. Dec. 515).

The decisions heretofore referred to, which hold that one who had participated in a trial of another person accused by the same indictment is not disqualified to sit as a juror, which proceed, as they do, upon the ground that a juror need not be qualified to determine a case upon the testimony, have therefore no application to the practice required by our Constitution; and it is our duty, as we have already before declared, to disregard them. See People v. Troy, 96 Mich. 530 (56 N. W. 102).

The question, then, is, not what was the practice at common law, but were those jurors who had agreed to a verdict of guilty in the Ellen Case impartial jurors under the meaning of our Constitution ? Of course, the mere fact that they formed an opinion, if that opinion would not influence their verdict, would not disqualify them. See People v. Quimby, 134 Mich. 625 (96 N. W. 1061).. But in the Ellen Case it was their duty to consider testimony which indicated both the guilt of Ellen and respondent. That testimony convinced them beyond a reasonable doubt that Ellen, who had the opportunity of being heard, was guilty. Are we warranted in assuming that they reached no conclusion respecting the guilt of respondent, against whom the testimony was almost equally strong, and who was not heard? Can these jurors, having already said that substantially the same evidence which is introduced in this case convinced them of the guilt of Ellen, enter upon the trial of respondent presuming him to be innocent ? These questions answer themselves. The jurors who had determined that this evidence proved Ellen’s guilt would stultify themselves if they determined that it did not convince them of respondent’s guilt. The evidence of respondent’s guilt was introduced in the Ellen Case as affording additional evidence of the latter’s guilt. It was the duty of the jury to give due weight to that testimony. It should be presumed that they did their duty. It is not unfair to presume that in doing this duty they determined respondent’s guilt, for that determination is in harmony with their verdict. If they did in fact make such a determination, I think all will concede that they were disqualified to sit as jurors. While, as I have endeavored to show, the qualifications of jurors are not now tested by the rules of the common law, it is not improper to say that according to those rules a juror was disqualified who had “given a verdict upon the same title or matter.” 1 Co. Litt. 157&.

It cannot be denied that it is possible that a juror may be so peculiarly constituted that his rendition of the verdict in the one case would have no influence upon his action in the other. But, in my judgment, this question must be disposed of upon the assumption that all jurors possess the characteristics common to ordinary men. We certainly cannot permit all jurors who had participated in the first trial to sit in the second, upon the assumption that their natures were so extraordinary that they had formed no disqualifying opinion. That assumption would compel the accused to be tried by men who had prejudged his case. Neither is it possible to determine by an investigation whether jurors have formed conclusions in the first case which disqualify them from sitting in the second. From the nature of the question to be investigated, no valuable testimony can be obtained, except from the jurors themselves. You cannot ask the juror whether, from the testimony presented in the first trial, he formed an opinion respecting the guilt or innocence of the accused, without opening the door to inquiries which will disclose the precise grounds upon which he reached the conclusion cf guilt. If the practice at common law permitted any •such investigation, which I doubt (see Rex v. Edmonds, supra), though it was adopted in U. S. v. Wilson, Baldw. 84 [Fed. Cas. No. 16,730], such practice is now prohibited by our statute. Section 10239, 3 Comp. Laws. See Welch v. Publishing Co., 83 Mich. 661 (47 N. W. 562, 11 L. R. A. 233, 21 Am. St. Rep. 629).

I think we are bound to conclude, therefore, that persons who have sat as jurors in a case where they had an opportunity to judicially determine upon substantially the same testimony the question of respondent’s guilt or innocence are not the “impartial” jurors to which he is constitutionally entitled, and that, therefore, the court erred in the ruling under consideration. These views are in harmony with our own decision .in People v. Troy, 96 Mich. 530 (56 N. W. 102), and with the following cases: Smith v. State, 55 Ala. 1; Wickard v. State, 109 Ala. 45 (19 South. 491); Brown v. State, 104 Ga. 736 (30 S. E. 951); Garthwaite v. Tatum, 21 Ark. 336 (76 Am. Dec. 402); Railway Co. v. Smith, 60 Ark. 221 (29 S. W. 752); Swarnes v. Sitton, 58 Ill. 155; Apperson v. Logwood, 59 Tenn. 262.

Neither may it be contended that the question we have considered was not fairly presented to the trial judge. After respondent’s counsel had exhausted his peremptory challenges, he urged in support of his challenge to the jurors who had sat in the Ellen Case that the witnesses who had testified in the Ellen Case would be the witnesses in this case, and that their testimony would be substantially the same. The court overruled this challenge, not upon the ground that counsel was incorrect in his statement, but because the two cases were not “identical * * * in the main point;” that is, as stated by counsel for the people :

“ The issue in that case was whether Mr. Ellen was bribed. The issue in this is whether Mr. Mol was.bribed. One might be guilty, and the other innocent.”

In short, the trial judge had occasion to decide, and did decide, the very question we decide, viz., Does the legal difference between the two issues which* unquestionably exists — the fact that in the one case the issue relates to the bribery of Ellen and in the other to the bribery of Mol — render jurors who sat in the one case competent to to sit in-the other? He held that it did. We are compelled to hold that it did not.

Nor can it be said that, because at common law the decision of the triors whose determination whether jurors were favorable or not was final, the decision under consideration cannot be reviewed by this court. It is settled that we have a right to review those decisions when they raise legal questions. See Stephens v. People and People v. Troy, supra.

Respecting the other questions raised in the case I concur in the opinion of my Brother Grant. I think, for the error pointed out, the conviction should be set aside and a new trial ordered.

Moore, O. J., Montgomery and Hooker, JJ., concurred with Carpenter, J.

Grant, J.

(dissenting). In the year 1900 respondent was an alderman of the city of Grand Rapids. His prosecution arose out of the .notorious water boodle scheme, the design of which was to secure a contract with the city to supply it with water from Lake Michigan. The information charges that respondent—

“Did corruptly accept from, to wit, Lant K. Salsbury, a gift and gratuity, to wit, $300, under an agreement and with the understanding that the vote, .opinion, and judgment of him, the said James Mol, as such alderman, should be given in a particular manner and upon a particular side, to wit, in favor of said City of Grand Rapids entering into a contract with some person, firm, or corporation, under which contract said city of Grand Rapids should receive and pay for water to be conveyed from Lake Michigan for municipal and other uses, the same being a question and proceeding then brought and to be brought before him, the common council of the city of Grand Rapids, and being a question which might by law be brought'before him, the said James Mol, in his official capacity as such alderman of the city of Grand Rapids aforesaid.”

That part of the statute material to the case reads as follows:

“Every executive, legislative, or judicial officer, who shall corruptly accept any gift or gratuity, or any promise to make any gift, or to do any act beneficial to such officer, under an agreement, or with an understanding that his vote, opinion, or judgment shall be given in any particular manner, or upon a particular side of any question, cause, or proceeding, which is or may be by law brought before bim in bis official capacity, * * * shall be punished.” ■3 Comp. Laws, § 11312.

Respondent was convicted. The facts material to the points raised will be stated in connection therewith. For a general statement of the conspiracy see People v. Salsbury, 134 Mich. 537 (96 N. W. 936), and People v. McGarry, 136 Mich. 316 (99 N. W. 147).

The first most important question for determination is the competency of certain jurors. Two trials growing out of the same conspiracy had preceded this one. The first was the case of People v. Ellen, charged with accepting •a bribe. The other was the case of People v. Albers, ante, 678 (100 N. W. 908), charged with perjury in his testimony upon his trial for attempting to bribe another aider-man. In both of those cases, as in this, evidence was introduced to establish the conspiracy, substantially the same in all the cases. In addition to those cases, Salsbury, Me Garry, and Taylor had been convicted, and several aldermen and other city officers had confessed and pleaded guilty. These things were matters of common knowledge to all intelligent inhabitants of the city and the county of Kent.

Of the jurors who were summoned upon the trial of respondent, two had served upon the trial of Albers, five had served upon the trial of Ellen, and one had served upon the trial of both. ' It is strenuously urged in behalf of the respondent that these jurors were disqualified by reason of their service on the other trials.

We may dispose of the alleged disqualification of the jurors in the Albers Case by saying that that case and the case of respondent are not identical, and the mere fact that in the Albers Case the testimony to establish the conspiracy — which we bold in an opinion handed down herewith (see People v. Albers, supra) was material to> the issue in that case — was the same as that in the respondent’s case did not per se disqualify the jurors in this case. That case did not involve the guilt of the respondent in this.

If, as counsel assume, the issue in the Ellen Case was identical with the issue in respondent’s case, their contention should undoubtedly prevail. But it evidently was not. Ellen was convicted of corruptly receiving a certain sum upon a promise to vote for the water deal, while respondent was convicted of receiving another certain sum. upon a separate and distinct promise to vote for the same» deal. It did not appear that respondent had talked with Ellen about it, or that he even knew that Ellen had been bribed or had made any promise. Salsbury testified that he told respondent that he did not want him to talk with any one about it. .

Counsel cite and rely upon People v. Troy, 96 Mich. 530 (56 N. W. 102), and other similar cases. Troy and another united in assaulting an officer. One was charged, with assault, and the other with resisting an officer. The acts alleged to constitute each offense were the same, and identical in time and place, and the two offenders acted in unison. In the light of these facts we said:

“ Where the issue is the same in both cases, it is but fair to the respondent that he have another panel of jurors to try his cause.”

Opinions upon conceded or uncontroverted facts will not disqualify. 17 Am. & Eng. Enc. Law (2d Ed.), p. 1148; State v. Wells, 28 Kan. 321; State v. Sorter, 52 Kan. 531 (34 Pac. 1036); Conatser v. State, 80 Tenn. 436.

The jurors were not asked whether they had formed an opinion as to the existence of a criminal conspiracy. Its. existence was not disputed upon the trial. The only question was the connection of the respondent with it. If an opinion upon this question would have disqualified, a jury of sufficient intelligence could not have been found in the county.

One may believe that a murder has been committed, and not be disqualified. Cargen v. People, 39 Mich. 549.

One may believe that a burglary has been committed, and not be disqualified to serve as a juror, if he have no disqualifying opinion as to whether the respondent committed the crime. Stewart v. People, 23 Mich. 63 (9 Am. Rep. 78).

So the circumstances surrounding the burning of a building may be such as to leave no reasonable doubt that the crime of arson was committed; but the belief that such crime had been committed would not per se disqualify one from acting as a juror, if he had no positive opinion that the respondent was the guilty party. These illustrations might be multiplied.

Though one has served in similar cases, he is not disqualified, unless the opinion he has formed is such as to repel the presumption of innocence. 17 Am. & Eng. Enc. Law (2d Ed.), p. 1140.

All these jurors testified that they entertained no prejudice against respondent, and had formed no such opinions from the testimony given upon the other trial of Ellen, or from what they had heard, as would prevent them from giving him a fair and impartial trial. The situation is well shown by the cross-examination of one of these jurors:

“ From what I heard in that trial, and from what I had learned before that trial commenced, either by reading or conversation, I formed an opinion in regard to some of the other respondents that were arrested. It would not require, evidence on the part of this respondent to remove that impression. It has nothing to do with him. I neither formed nor expressed an opinion in any way, shape, or manner as to the guilt or innocence of Mr. Mol. I did not form any opinion as to all that were charged. Of course, we must admit the guilt of those we tried, and also those that acknowledged it — those that pleaded guilty. We presume the others are innocent until they are tried. As to the rest, I have no fixed opinion of any of them, none but what I could lay aside at the commencement of every one of these trials. I could start in this case as 'though I hadn’t heard a word. All I have heard does not [prejudice me at all in regard to Mr. Mol.”

Yet this juror was challenged for cause. The statute of Michigan makes a juror competent, though he has formed an opinion, if he declare upon his oath that he verily believes that he can render an impartial verdict, and the court shall be,satisfied that he does not entertain such a present opinion as would influence his verdict. 8 Comp. Laws, § 11947.

All the jurors in this case so declared, and the judge passed his judgment upon their qualifications.

“ The opinion entertained by a juror, which disqualifies him, is an opinion of that fixed character which repels the presumption of innocence in a criminal case, and in whose mind the accused stands condemned already.” People v. Barker, 60 Mich. 277 (27 N. W. 539, 1 Am. St. Rep. 501).

No juror in this case had formed any such opinion.

Appellate courts cannot substitute their own judgment of the qualification of jurors for that of the circuit judge, where different conclusions may be drawn from the juror’s examination. The candor, character, and manner of the juror are elements for the consideration of the trial judge in determining his competency. The question is often difficult of determination, and only when the juror’s examination shows conclusively that he has a disqualifying opinion should the appellate court reverse the decision of the trial court.

Upon this subject Chief Justice Waite, in Reynolds v. United States, 98 U. S. 145, said:

“ It is clear, therefore, that upon the trial of the issue of fact raised by a challenge for such cause, the court will practically be called upon to determine whether the nature and strength of the opinion formed are such as in law necessarily to raise the presumption of partiality. The question thus presented is one of mixed law and fact, and to be tried, as far as the facts are concerned, like any other issue of that character, upon the evidence. The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is manifest. No less stringent rules should be applied by the reviewing court in .such a case than those which govern in the consideration •of motions for a new trial because the verdict is against the evidence. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the ‘conscience or discretion’ of the court. * * * In considering such questions in a reviewing court, we ought not to be unmindful of the fact we have so often observed in our experience, that jurors not unfrequently seek to excuse themselves on the ground of having formed an opinion, when, on examination, it turns out that no real disqualification exists. In such cases the manner of the juror while testifying is oftentimes more indicative of the real character of his opinion than his words. That is seen below, but cannot always be spread upon the record. Care should, therefore, be taken in the reviewing court not to reverse the ruling below upon such a question of fact, except in a clear case. The affirmative of the issue is upon the challenger. Unless he shows the actual existence of such an opinion in the mind of the juror as will raise the presumption of partiality, the juror need not necessarily be set aside, and it will not be error in the court to .refuse to do so.”

I hold that there was no error in holding 'the jurors qualified.

Salsbury was permitted to testify, under objection and exception, to a conversation between himself and respondent after the abandonment of the conspiracy, and fixed the time and place. One De Vries testified that he took Mr. Salsbury to respondent’s house at that time. The objection to this testimony is that it comes within the rule that acts and declarations made after the consummation or abandonment of the conspiracy are inadmissible. This conversation related to the re-election of Salsbury as city attorney, for the avowed purpose of avoiding an exposure of the crime, which would be more probable if another should be elected city attorney. This conversation does not come within the rule. It was a conversation between two conspirators, devising means to avoid exposure.

One Ghysels testified that Salsbury paid him $300 for his vote. He, also, was one of the conspirators and an alderman. When the conspiracy is established, the-declarations and acts of the co-conspirators, before the conspiracy is abandoned, are competent. People v. Salsbury and People v. McGarry, supra. Under this same-rule, declarations and conversations between other co-conspirators were competent.

It is nest urged that the matter could not legally be brought before the common council, and that therefore there was no crime. This question is ruled by the cases of People v. Salsbury and People v. McGarry, supra.

The conviction should be affirmed. '


author: Grant, J.

text:
    THICK v. DETROIT, UTICA & ROMEO RAILWAY.
    1. Pleading —Declaration —Objection to Evidence — Demur-
    Where a declaration is sufficient to sustain a judgment, and its only fault is that it should be more specific, defendant may not object to the admission of any evidence under it, but, if' desiring it to be made more specific, must demur to it.
    2. Sales — Refusal to Complete Contract — Necessity of Tender.
    Refusal by the purchaser to carry out a contract for sale of railroad ties justifies the seller in treating the contract as broken and suing for damages, without a delivery or formal offer of delivery.
    3. Same — Action for Breach — Evidence.
    Plaintiff, in an action for refusal of defendant to carry out a, contract for the purchase of railroad ties, may show that,, though he did not have the ties, he was able to procure them.
    4. Same — Evidence.
    Evidence, in an action for refusal of defendant to carry out a contract to purchase railroad ties, that some of the ties defendant afterwards contracted to purchase from another were a part of the lot for which plaintiff had contracted with which to fill defendant’s order, is inadmissible; it not being contended there were not some good ties in the lot.
    ¡5. Same — Inspection of Goods.
    Where plaintiff’s contract to sell and deliver ties made no provision for inspection, it is not changed, as to plaintiff’s duty to deliver them without a prior inspection, by defendant’s compliance with plaintiff’s request, made on account of the demand of the person from whom plaintiff was obtaining the ties, that an inspector be sent; plaintiff haying refused to abide by his inspection, and defendant having refused to send another inspector.
    6. Same — Payment on Delivery — Draft Accompanying Bill of Lading.
    A contract to furnish railroad ties of a certain quality, to be paid for cash on delivery, entitles the buyer to inspect before paying, and an offer to ship, with sight draft attached to bill of lading, unaccompanied by an offer of inspection, is not a tender of performance.
    Error to Wayne; Donovan, J.
    Submitted July 7, 1904.
    (Docket No. 204.)
    Decided October 4, 1904.
    ' Assumpsit by Joseph A. Thick against the Detroit, Utica & Romeo Railway for breach of a contract to purchase certain ties. There was judgment for plaintiff, and ■defendant brings error.
    Reversed.
    The contract, for the breach of which this suit is .'brought, is evidenced by the following writings:
    “Detroit, Mich., March 14, 1900.
    '“J. A. Thick.
    “ Dear Sir: We will take seventeen thousand (17,000) cedar ties, to be delivered on the M. C. R. R. at Center Line, North Detroit, or Belt Line, as we may hereafter • direct. Price for No. 1 standard cedar ties forty-one cents (41). -We will take some No. 2 ties at twenty-five cents. Terms cash on delivery.
    “Yours truly,
    “Detroit, Utica & Romeo Ry.
    “Geo. B. Davis, Pres.
    “I accept the above order.
    “ J. A. Thick.”

      Plaintiff owned no ties, bnt relied upon his ability to buy and furnish the same to the defendant. He furnished none, but claimed that he had contracted for some, had them ready for delivery, but that the defendant refused to receive them. Plaintiff testified that at Posen he contracted for 20,000 ties; that he telegraphed to defendant’s agent to send an inspector. Defendant’s agent, Mr. Davis, telegraphed that he would send one, fixing time. The inspector came. Two carloads were inspected and loaded. The parties from whom plaintiff contracted to purchase were dissatisfied with the inspection, claiming that it was unfair, and refused to load any more cars under that inspector. Plaintiff then went to Detroit to see Mr. Davis. His version of what then occurred, and his reason for considering the contract broken by the defendant, are given, by him as follows:
    “I told him that the tie inspector was an incompetent man. He didn’t know a good tie from a bad one, and the men wouldn’t load any more under his inspection; but-they would get Woods for inspection — he was inspecting ties for the D. & M. and the Central Northwestern — or any other inspector who was a qualified inspector. He said: ‘We can get the Detroit Northwestern inspector, or Mr. Maltby’s inspection.’ Mr. Davis said he didn’t want Mr. Woods to inspect those ties, and said: ‘Do you want this man Duggan?’ I said: ‘Yes.’ And he said: ‘Would you be satisfied with his inspection?’ I said: ‘Yes.’ And he said: ‘All right; I will let him go up in the morning.’ And I said: ‘ Well, tomorrow is Saturday.’ And he said: ‘Well, he can go up Monday morning.’ And I said: ‘ All right.’ On Monday morning I went up to see if Mr. Duggan was going up, and said to Mr. Davis: ‘ I don’t see anything of Mr. Duggan. ’ And he said: ‘ No; I am not going to let him go up this morning. You have two cars loaded, haven’t you?’ I said: ‘Yes.’ And he said: ‘You can ship them down.’ I said: ‘Yes; these cars are coming with a sight draft attached to the bill of lading.’ He said: ‘ That isn’t cash on delivery.’ I said: ‘ That is cash on delivery in my estimation, Mr. Davis. I am not going to ship down 17,000 ties, and put them into the railroad, and then let you go into litigation for three or four years, the same as the French road did.’ He said: ‘You needn’t ship any more ties. I won’t send an inspector.’ I says: ‘ If you don’t want the ties, I can send them from other shipping points.’ And he said: ‘ I don’t want them at all. I won’t let you furnish them with a sight draft attached to the bill of lading.’ I said: ‘ I will not ship them any other way. That is the way my contract reads, and I think that is a sight draft attached. You don’t need to pay for them until inspected and delivered.’ He said: ‘I won’t accept them in that shape.’ I said: ‘ I won’t ship them, then.’ I had no other deal with Mr. Davis.”
    Plaintiff made no further offer to furnish ties. The defendant after some time made a contract with other parties for ties, which were furnished. Plaintiff sued, and recovered verdict and judgment for breach of contract.

      Philip T. Van Zile, for appellant.

      J. Emmet Sullivan, for appellee.
   Grant, J.

(after stating the facts). The declaration alleges a contract to buy of plaintiff, the ties to be delivered by him to defendant at Detroit, and to be paid for on delivery; the promise on the part of the defendant to accept and receive them; plaintiff’s readiness and willingness to carry out the contract; and the refusal by the defendant to accept the ties selected by him in accordance with the agreement, and consequent loss of profits. The plea was the general issue. Upon the trial defendant objected to the admission of any evidence, for the reason that the declaration did not state a cause of action. The precise objection is that the declaration does not allege delivery, or offer to deliver, or ability to deliver, or that he was prevented from delivery by the defendant. The declaration should, perhaps, have been more specific; but, if it is sufficient to sustain a judgment, the only course open to defendant was to demur. Rowland v. Kalamazoo Superintendents of Poor, 49 Mich. 553 (14 N. W. 494), and authorities there cited. The declaration alleges a selection of ties according to the contract and the refusal to accept them. Under plaintiff’s version of the case a delivery or formal offer of delivery was unnecessary. A refusal on the part of defendant to carry out the contract justified plaintiff in treating it as broken, and bringing suit for damages. We think the declaration states a cause of action, and that, if defendant desired a more specific one, it should have demurred.

We do not think it was error to permit plaintiff to show his ability to procure ties by purchase or otherwise to fill his contract.

About two months after the conversation above detailed between plaintiff and Davis, Davis on behalf of the defendant made a contract with other parties to furnish ties. Plaintiff was permitted to show that some of these ties were a part of the lot which plaintiff had contracted for at Posen. This evidence was wholly immaterial. It had no tendency to sustain the plaintiff’s case. It was not contended that there were not good ties in that lot. Some of them passed the inspection of the inspector first sent there under the telegram from plaintiff to defendant. The admission of this evidence might not constitute error of sufficient gravity, to reverse the case if there were no other errors.

The contract provided for no inspection. It was the duty of the plaintiff to deliver the ties at the place named. There was no subsequent agreement for inspection. Evidently plaintiff could not purchase the ties at Posen without an inspection satisfactory to the person from whom he purchased. Plaintiff’s request by telegram to send an inspector, and defendant’s compliance with the request, did not change the contract, or provide for a binding inspection. Plaintiff recognized this, for he repudiated the inspection. If the parties had agreed to an inspector, his inspection, in the absence of fraud or mistake, would have been conclusive. Under plaintiff’s version defendant refused to provide and send another inspector. It was then clearly plaintiff’s duty to deliver the ties at the time and place agreed upon. It was, therefore, error to submit to the jury the question of any change in the contract.

The circuit judge instructed the jury that a sight •draft accompanying the bill of lading was equivalent to the payment of cash on delivery. This was error. The contract is unambiguous. All prior conversations were merged' in it, and were inadmissible in evidence. It was the duty of the plaintiff to deliver ties of the character ¡specified. It was the right of defendant to examine them before accepting and paying for them. Plaintiff had no ties at the time to deliver. Plaintiff might manufacture them, or might purchase them from others.

The law applicable to this case is stated by the Supreme Court of the United States in Pope v. Allis, 115 U. S. 363, 372 (6 Sup. Ct. 69, 73):

“When a vendor sells goods of a specified quality, but not in existence or ascertained, and undertakes to ship them to a distant buyer when made or ascertained, and delivers them to the carrier for the purchaser, the latter is not bound to accept them without examination. The mere delivery of the goods by the vendor to the carrier does not necessarily bind the vendee to accept them. On their arrival he has the right to inspect them to ascertain whether they conform to the contract, and the right to inspect implies the right to reject them if they are not of the •quality required by the contract.”

Where goods are sold and shipped to the vendee, and the vendor draws a sight draft with bill of lading attached, bhe vendee is not entitled to examine the goods in the hands of the carrier until he pays the draft and procures the bill of lading. In such case the vendee’s only remedy is, having paid for the goods, to rescind the sale and sue for the purchase price, or to retain the goods and bring suit for damages. 2 Dan. on Neg. Inst. § 1734c; Whitney v. McLean, 4 App. Div. 449 (38 N. Y. Supp. 793). The •parties may agree that the vendee and drawee may inspect before acceptance and payment, but, unless they do, no •such right exists; or, if the vendor accompanies his draft with an offer of inspection before acceptance, that is sufficient tender of performance.

Judgment reversed, and new trial ordered.

The other Justices concurred.


author: Montgomery, J.

text:
    MEYER v. KNOTT.
    1. Continuance — Absent Witness — Incompetent Testimony.
    Continuance to procure the attendance of a medical witness, whose testimony is incompetent, except as to facts admitted by defendant, is properly refused.
    8. Fraud — Misrepresentations—Christian Science — Sincerity of Belief.
    In an action for fraud, in falsely representing to plaintiff that defendant was a sincere believer in Christian Science, and thereby inducing him to pay defendant for instruction in the art of healing by that science, evidence that, some two years before, defendant had had superfluous hairs removed from her face by material means, does not tend to show her lack of sincerity.
    Error to Wayne; Brooke, J.
    Submitted September 13, 1904.
    (Docket No. 161.)
    Decided October 4, 1904.
    Case by Martin Meyer against Annie M. Knott for alleged fraud. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      Charles S. Hampton (William D. Fuller, of counsel),, for appellant.
    • Lodge, Trevor & Brown, for appellee.
   Montgomery, J.

This case is novel (notto say unique). The defendant is a teacher of Christian Science, and was in February, 1901, first reader of the First church of Christ, scientist, of the city of Detroit. The declaration alleges that on the 14th of February, 1901, defendant “did falsely and fraudulently represent, claim, and pretend to said plaintiff that she (the defendant) was then, and there a sincere, honest, and conscientious believer in and adherent, follower, and practicer of the principles of Christian Science, and then and there mentally and morally qualified and competent to give class instruction in Christian Science mind healing; ” that plaintiff agreed to pay and did pay defendant $100 for instruction which was given; that by reason of defendant not being a sincere, honest, and faithful believer in and follower and practicer of Christian Science, the plaintiff received no benefit from the instruction given him. In this action he seeks to recover the money paid and compensation for the time spent in the attempt to learn to “cure disease through the power of Christian Science mind healing. ” Upon the testimony which will be referred to later the circuit judge directed a verdict for#the defendant. Plaintiff brings error, and has assigned error on three classes of rulings: First, refusal of the circuit court to grant a continuance; second, the refusal to submit certain special questions to the jury ; and, third, the direction of the verdict.

It is manifest that, if the verdict was properly directed, the refusal to submit special questions was also proper. Our inquiry is, therefore, directed in the first instance to the first and third questions. The plaintiff sought to show that the defendant was not a true and conscientious believer in, and adherent, follower, and practicer of, Christian Science, by proof that at a date two or three years before his contract (as fixed by his testimony) she (the defendant) received treatment of a material nature from one Dr. De Forest, and that this was contrary to the teachings of Christian Science, and that this fact showed that she was not an adherent or follower of Christian Science. Before the trial the plaintiff, upon a showing of diligence, asked for a continuance to secure the attendance of Dr. De Forest to show that defendant received medical treatment, “ and that such treatment was not merely for the purpose of removing facial blemishes. ” This offer indicates a purpose to show by the physician what disease he did discover in defendant and treat. Such testimony would not have been competent as against defendant’s objection. Lammiman v. Railway Co., 112 Mich. 603 (71 N. W. 153). In so far as the physician’s testimony would have been competent, the facts were admitted by the defendant. There was no error in refusing the adjournment.

On the trial it appeared that the defendant had, at a date two or three years prior to the contract with the plaintiff, had superfluous hair removed from her face by Nr. De Forest by means of electrical treatment, and, as plaintiff was able to call medical experts who testify that the superfluous hair is known to pathology by the name of “hypertrichosis,” and is a disease, and as Christian Science is opposed to material treatment for disease, it follows that one who has superfluous hair removed is not a true believer in, and adherent, follower, and practicer of, the principles of Christian Science. Apart from the consideration that this departure from the true faith, if it be such, occurred two years before the contract with plaintiff, thus leaving ample time for defendant to mature her belief, we deem it sufficient answer to the plaintiff’s contention that, if it be conceded that superfluous hair is a disease, it is also regarded by many as a facial blemish. Some conceal it as well as they may by the use of face powder; some have it removed. The defendant, because her little son teased her about the appearance of this superfluous hair, caused hers to be removed. This was not done as a treatment for disease, but as a means of making herself more presentable. We think this does not tend to show that defendant was guilty of fraud in holding herself out as a teacher of Christian Science.

It is to be understood that both plaintiff and defendant proceed upon the theory that Christian Science, as taught by Mrs. Eddy’s book, “Science and Health,” is true. We have therefore determined the case on that assumption.

The judgment is affirmed.

Moore, C. J., Carpenter and Grant, JJ., concurred with Montgomery, J. Hooker, J., concurred in the result.


author: GRANT, J.

text:
    OTT v. BRISSETTE.
    Elections — Ballots—Error in Name.
    Where the name of Christian Ott is erroneously printed O. H. Christian on a township ticket, and several ballots are cast before the mistake is discovered and corrected on the re-' mainder of the official ballots, Ott is not entitled to have votes cast for Christian counted for him, though no person by that name resides in the township, and the copy of the ballot was not filed for two days, as required by 1 Comp. Laws, § 3660.
    Error to Bay; Shepard, J.
    Submitted October 4, 1904.
    (Docket No. 215.)
    Decided October 7, 1904.
    Quo warranto proceedings by Christian Ott against Peter Brissette to try the title to the office of supervisor of Kawkawlin township. There was judgment of ouster, and respondent brings error.
    Reversed.
    This is an action of quo warranto to test the title to the office of supervisor for the township of Kawkawlin. The facts are stipulated. Two tickets were named; one known and headed as the “ Kawkawlin Township Ticket,” and the other known and headed as the “ Citizens’ Ticket.” The respondent was candidate for supervisor on the Township ticket; the relator was a candidate for supervisor upon the Citizens’ ticket. There were no other candidates. Relator’s name as Christian Ott was regularly certified to the board of election commissioners by the chairman and secretary of the caucus which nominated him. The ballots were prepared by the clerk of the board of election commissioners, and sent to the printer with the name of Christian Ott thereon. The printer-read the name of Christian Ott as “ Christian O. H.,” and printed the name on the ballot as “ O. H. Christian.” No copy of said ballots was on file with the township clerk for two days, as required by law. The relator did not call at said office to examine the proof. The ballots were printed, wrapped in paper, and tied securely and sealed, and delivered to respondent, who was then supervisor, and by him delivered to the inspectors of election at the opening of the polls.
    After 22 persons had voted, the name of “ O. H. Christian ” was discovered to be upon the ballots, instead of the name of “ Christian Ott. ” The board seemed to concede that there was a mistake, and erased the name of O. H. Christian on the remaining ballots, and placed thereon “Christian Ott.” The name of O. H. Christian did not appear upon the ballot list or registration list, and no person by that name was known in the township of Eawkawlin. When the votes were counted, Peter Brissette had 174. votes, Christian Ott 167, and O. H. Christian 12 votes. The board declared Christian Ott elected. Respondent demanded a recount, which was had, and on such recount respondent was declared elected. The relator thereupon instituted this suit.

      Lewis P. Qoumans {Pierce & Kinnane, of counsel), for appellant.

      Albert McClatchey {Chester L. Collins and Horace Tupper, of counsel), for appellee.
   GRANT, J.

{after stating the facts). The sole question is whether the 12 votes cast for “0. H. Christian” should be counted for Christian Ott. The name ‘ ‘ Christian Ott” is not idem sonans with “O. H. Christian.” The names are as distinct as two names possibly can be.

It is conceded that under the decisions prior to the adoption of the present quasi Australian ballot system these 12 votes could not be counted for relator. People v. Tisdale, 1 Doug. 59; People v. Higgins, 3 Mich. 233 (61 Am. Dec. 491) ; People v. Cicott, 16 Mich. 283 (97 Am. Dec. 141); People v. McNeal, 63 Mich. 294 (29 N. W. 728); Andrews v. Otsego Probate Judge, 74 Mich. 283 (41 N. W. 923).

These cases exhaustively discuss the reasons why neither "boards of election nor the courts can enter into evidence to determine that votes for different names were in fact intended to be for but one person. Does the Australian ballot system change the rule ? The argument in behalf of relator is that, inasmuch as he had nothing whatever to do with the printing of his name, but that the placing of his name is regulated by law, therefore he cannot be ■deprived of votes by the action, either fraudulent or innocent, of those whose duty it is to report the proceedings of the caucus and to print the name upon the ballot. If relator’s contention be correct, it follows that, if his name had not been printed upon the ballots at all, still the ballots should be counted for him; or, if the mistake had not been discovered, and all the ballots had been cast for O. H. Christian, still they must be counted for him. This would assume that every one who voted the Citizens’ ticket would have voted for the relator. It would assume —which is unusual — that every member of relator’s party would have voted for him. We must assume, in order to sustain the relator’s right to the office, that every one of the 12 men who voted for O. H. Christian would have voted for Christian Ott. A voter might know Christian Ott, and be unwilling to vote for him, but an elector might be willing to vote for any other man, and, though not knowing O. H. Christian, might vote for him. Courts cannot assume, under such circumstances, that such votes would have been cast for relator. The law makes ample provision to secure the correct printing of the ballots. Section 3660, 1 Comp. Laws, requires that “the proof copy of the ballot shall be open to the inspection of the •chairman of each committee at the office of the township clerk * * * not less, than two clear secular days before such election.” Had the proper officials filed this proof, and had the chairman of the committee examined it, no such mistake would have been possible. We are glad to state that it is conceded there was no intentional fraud on the part of any one.

We think the repeated decisions of this court in such cases are not supplanted by the Australian ballot system, and that the reason why neither boards nor courts can enter-into a determination of the intention of the voters any further than appears upon the face of the ballot remains undisturbed by the present system of voting.

Judgment reversed, and entered in this court for respondent.

The other Justices concurred.


author: Per Curiam.

text:
    JENNINGS v. BOARD OF ELECTION COM’RS OF DELTA COUNTY.
    Elections — Conventions—Nominations.
    In the absence of fraud, the determination of a political convention as to -who are its nominees is final, and mandamus will not be granted to compel the printing on the official ballot of a name not certified, on the theory that relator received a majority of the votes of the convention, the chairman having ruled otherwise, and no appeal having been taken from his ruling.
    Mandamus by Ira C. Jennings to compel the board of election commissioners of Delta county to place relator’s name upon the official ballot as the republican candidate for judge of probate.
    Submitted October 7, 1904.
    (Calendar No. 20,767.)
    Writ denied October 8, 1904.
    The relator and Thomas B. White were candidates for the office of judge of probate atu, recent convention of the republican party for the county of Delta, held at Escanaba, in said county. There were 46 delegates present. On the first informal ballot Mr. White received 35 votes, and the relator, Mr. Jennings, received 31. A formal ballot was taken immediately thereafter, and Mr. White received 21 votes, and the relator 23. The chairman ruled that, as there were 46 delegates present and no one had received a majority thereof, no nomination had been made. No appeal was taken from this ruling. On a subsequent ballot Mr. White received 24 votes and Mr. Jennings 22. Mr. White was then declared the nominee of the convention. Mr. Jennings, the relator, contends that he was nominated on the first formal ballot, and asks for a writ of mandamus to compel the board of election commissioners to place his name, and his name only, on the official ballot in the republican column.

      F. D. Mead (George Huggett, of counsel), for relator.

      T. B. White, for respondent.
   Per Curiam.

We think the case is controlled by Stephenson v. Election Com’rs, 118 Mich. 396 (76 N. W. 914, 42 L. R. A. 214, 74 Am. St. Rep. 402), and Phillips v. Gallagher, 73 Minn. 528 (76 N. W. 285, 42 L. R. A. 222).

Mandamus will be denied.


author: Hooker, J.

text:
    HAMPEL v. DETROIT, GRAND RAPIDS & WESTERN RAILROAD CO.
    1. Negligence — Imputed Negligence — Infants—Railroads — Accident at Crossing.
    The negligence of the driver of a vehicle is not imputable to an infant riding with him at his invitation so as to preclude recovery for her negligent killing by a railroad company at a crossing.
    2. Railroads—Accident at Grossing—Gross Negligence.
    Evidence in an action against a railroad company for injuries arising from a crossing accident examined, and held that nothing was presented from which the company could be charged with such gross negligence as to make the negligence of the driver of the vehicle immaterial.
    Error to Mecosta; Palmer, J.
    Submitted April 12, 1904.
    (Docket No. 40.)
    Decided October 18, 1904.
    Case by Julius Hampel, administrator of the estate of Amelia Drager, deceased, against the Detroit, Grand Rapids & Western Railroad Company, for the alleged negligent killing of plaintiff’s intestate. There was judgment for defendant on a verdict directed by the court, and plaintiff brings error.
    Reversed.

      Joseph Barton and Walter W. Drew, for appellant.

      Frederick W. Stevens {Charles McPherson, of counsel), for appellee.
   Hooker, J.

August 23, 1899, Amelia Drager, who would have been 14 years old, had she lived until the 3d day of the following October, was killed by one of defendant’s trains at a highway crossing. In December, 1901, this suit was commenced. No witnesses were sworn on the part of the defendant. After all the witnesses were sworn on the part of the plaintiff, the circuit judge directed a 'verdict in favor of defendant. The case is brought here by writ of error.

The accident occurred near Beghold’s mill, which stands about.?5 feet north of the highway, and 40 feet east of the railway track. At this point the railway track runs north and south, and the highway east and west. On the south of the highway, and west of the track, was a large pile of wood, partly on the railroad right of way and partly in the highway. It was 6 to 8 feet high, and obscured the view of the train coming from the south when one was traveling the highway from the west,

• though one could see the smoke from an approaching locomotive. The girl and her sister lived a half mile west of the crossing. Nine months in the year she attended school. To reach the schoolhouse, she crossed the railroad track. The school building was east of the track. Upon the day of the accident she and her sister were going east from home, carrying a bundle. John Fenning, who was driving a single horse before a buggy, overtook them, and invited them to ride. They accepted the invitation. The record discloses that, just before getting to the wood pile, Fenning looked for a train, and, seeing none, continued to travel toward the crossing, paying no further attention to the railroad, or to the trains that might be approaching. This was doubtless because, as he expressed it, he did not know any train was due. When the horse got within a few feet of the track, a train appeared, the horse turned to the left and reared, and the wheel of the buggy struck a log which projected into the highway about four feet. The inmates of the buggy were thrown toward the train, and Miss Drager was killed.

It is claimed no signals were given for the crossing. The testimony of the witnesses for the plaintiff is contradictory upon that point, one of them swearing she heard the whistle; and, were it not for other questions in the case, the testimony as to whether the signals were given should have been submitted to the jury as a question of fact. An important question in the case is whether Mr. Penning was negligent in approaching the crossing as he did.

It would not profit any one to set out the testimony in detail, but the proof is overwhelming that he was so negligent, that, if he was suing for damages, it would have been the duty of the judge to direct a verdict in favor of the defendant.. See Lake Shore, etc., R. Co. v. Miller, 25 Mich. 274, and notes, and the many cases cited there; Freeman v. Railway Co., 74 Mich. 86; Grostick v. Railroad Co., 90 Mich. 594; Gardner v. Railroad Co., 97 Mich. 240, and the cases there cited; Stewart v. Railroad Co., 119 Mich. 91; Britton v. Railroad Co., 122 Mich. 359.

The next question of importance is whether the negligence of the driver is imputable to the plaintiff’s intestate. Plaintiff’s counsel concede that, had she been an adult, it would be, but earnestly and ably contend that, as she was an infant, she should not be charged with the negligence of the driver. It is urged that the doctrine of negligence rests upon the assumption that the relation of principal and agent or master and servant exists between the passenger and driver, and that, as an infant can he neither principal nor master, the doctrine cannot apply to an infant. The deceased was an infant 13 years old, in a carriage by invitation of its driver, through whose negligence, and without her fault, she was killed. Had she been an adult, his negligence would have been imputable to her, upon the fiction that he was her agent, under the doctrine of Thorogood v. Bryan, 8 C. B. 115, which is recognized as authority in this State. See Mullen v. City of Owosso, 100 Mich. 103. But this infant lacked the capacity to make him her agent, while there is not the least substance of a claim that either party supposed that such relation existed as a matter of fact.

It is said that the case is covered by Apsey v. Railroad Co., 83 Mich. 433, 440. The question of imputed negligence is not discussed in that case. It may be inferred that it was not raised. The decision in Mullen v. City of Owosso was carefully limited to cases of adults, by the writer of the opinion, who participated in the decision of the Apsey Case. In some jurisdictions the negligence of parents is imputable to children. Whatever the rule in this State may be as to children of very tender years, having no capacity to care for themselves, that doctrine is not sustained as to infants generally. See Fye v. Chapin, 131 Mich. 679, citing Shippy v. Village of Au Sable, 85 Mich. 280, and Mullen v. Owosso, supra. Here no question of the parents’ negligence is raised, as in the Apsey Casej but, if a child is chargeable with its parents’ negligence, does it follow that he should be held responsible for that of strangers at whose jnvitation he rides ? The doctrine is at variance with the overwhelming weight of authority here and in England. If the case of Apsey v. Railroad Co., supra, must be considered an authority for the proposition that the negligence of a driver is imputable to an infant, it should be overruled.

It is said the defendant was guilty of gross negligence, and the question of contributory negligence becomes immaterial. There is nothing in the record to indicate the case comes within the holdings of this court as to what constituted gross negligence. See Schindler v. Railway Co., 87 Mich. 411; Buckley v. Railroad Co., 119 Mich. 583; Labarge v. Railroad Co., 134 Mich. 139.

Judgment is reversed, and a new trial ordered.

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