author: Long, J.

text:
    The Peninsular General Electric Company v. Mark Norris, Executor, and Dorinda N. Shepard, Executrix, of the Last Will and Testament of Charles Shepard, Deceased, et al.

      Mechanic’s lien — Recording laius — Priorities.
    1. The recording laws of this State do not apply, in terms, to-mechanics’ liens.
    2. The fact that an electric company retains the title to an electric lighting plant, which it places in a building, until it is paid for, will not deprive it of its statutory lien, or prevent the enforcement of the same; citing Manufacturing Go. v. Smith, 40 Fed. Rep. 339.
    3 The lessee of certain city lots erected a building thereon, after which be renewed his lease for a term of years, and by the same instrument leased for a like term an adjoining lot, and a building which the lessor agreed to erect thereon. The building was erected, and was so constructed that the two buildings formed one block. An electric company, under a contract with the lessee, placed an electric lighting plant in the block, and retained the title until the plant should he paid for. Upon default in such payment, the company filed a bill under the lien law of 1891 to enforce its lien upon the interest of the lessee in the premises. The bill, after setting forth the foregoing facts, charged upon information and belief that the lessor claimed a prior lien under his lease, which was not recorded until after complainant’s contract had been performed, upon the interest of the lessee in the block and lots, as security for a large indebtedness due him from the lessee. And it is held that, while the actual interest of the lessee in the buildings is subject to the hen asserted by the complainant, such lien, cannot cut off, or have priority over, the lien of the lessor, set forth in the bill.
    Appéal from Kent. (Grove, J.) Argued November 1, 1893. Decided May 23, 1894.
    Bill to enforce a mechanic’s lien. Defendants Norris and Shepard appeal.
    Affirmed, with leave to appellants to answer within 20 days.
    The facts are stated in the opinion.

      More & Wilson, for complainant.

      Mark Norris, for appellants.

       Sections 1, 6, and 9 were amended by Act No. 199, Laws of 1893.

   Long, J.

The bill in this case was filed to enforce a mechanic’s lien.

The bill states that Charles Shepard is the owner of lots 3, 4, 5, and 6 of block or section 9 of the Campan plat of Grand Bapids, except the west 99 feet of lot 4, and has been the owner for more than 10 years last past; that prior to May 1, 1890, Carroll S. Hartman, under an agreement with Shepard, had built a brick block on lots 4, 5, and 6, except the west 99 feet of lot 4, by which agreement Shepard leased to Hartman the ground on which the block stood, and Hartman was the owner of the building; that about May 1, 1890, Shepard and his wife made a new lease to Hartman, for 96 years, of the land above described, and by the same instrument leased to Hartman, for the same term, lot 3, and a six-story building to be erected thereon by Shepard; that before May 1, 1892, the building was erected, and was connected with Hartman’s building, so that the two buildings or blocks constituted one building, and have been used as such ever since; that Hartman has had possession and control of the entire premises from the time the Shepard building was erected on said lot 3 down to the 29 th day of July, 1892.

That Hartman, being in possession and control of the premises under said lease, and being the owner of that part of the building which stands on lots 4, 5, and 6, except the west 99' feet of lot 4, entered into a contract in writing with complainant on May 5, 1892, for the making of certain improvements on said buildings, consisting of an electric lighting plant, with the necessary appliances, wiring, and fixtures; that complainant performed its contract, and furnished labor and materials to the amount of $4,946.67, from which should be deducted a credit of $56.04, leaving a balance due of $4,890.63; that the performance of the labor and the furnishing of the materials were began May 13, 1892, and ended July 22, 1892; that on July 29, 1892, Hartman made a general assignment for the benefit of his ■creditors to John Widdicomb, who accepted the trust; that the materials furnished and labor performed by complainant constitute and have made a valuable improvement to said premises, and have largely increased the value thereof.

That on September 3, 1892, complainant filed its claim of lien on said premises in the office of the register of deeds of the county of Kent, with a detailed statement of its account for said labor and materials; that the prices charged were just and reasonable, and in accordance with the contract; that the labor and materials were furnished and went into both of said buildings, which were considered and treated as one building, and the work done and materials furnished under the contract were considered and treated as one job; that copies - of the claim of lien were served on Hartman and Widdicomb, his assignee, as required by statute, and proof of service filed in the office of the register of deeds; that there is owing and unpaid upon said contract 14,890.63 over and above .all legal set-offs; that complainant has taken the steps required by the statute, and therefore has a lien on the entire interest of Hartman in the premises, which is enforceable in this action.

That complainant is informed and believes that Shepard claims that Hartman is indebted to him in a large amount, and that, under and by virtue of said lease, Shepard has a lien, prior to all other claims, on Hartman’s interest in said lands and buildings, for the entire amount of said indebtedness; that, at the time of making said contract with Hartman, complainant was ignorant of Shepard’s claim, or Hartman’s indebtedness to him, and only learned of it after the assignment to Widdicomb; that, before making the contract, complainant caused an examination of the records in the office of the register of deeds of Kent county to be made, to ascertain if there was any lien or incumbrance on Hartman’s interest in said premises, and none was found, and complainant made the contract relying on the results of such examination, and would not have made the contract otherwise; that Shepard did not have his lease recorded in the office of the register of deeds, or file a copy in tlie office of the city clerk of Grand Kapids, until the 29th day of July, 1892, the day the assignment to Widdicomb was made; that it was then that complainant first learned of Shepard’s claims; that any lien Shepard may have, on Hartman’s interest should be postponed to complainant’s lien.

That complainant has caused an examination to be made of the records in the office of the register of deeds of Kent county, and finds that Peter O. Campbell and John McNabb, copartners under the name of Campbell & Mc-Nabb, have filed a claim of lien, and have commenced a suit to enforce it; that no proceedings at law hare been taken to recover the amount due complainant from Hartman for said labor or materials, or any part thereof.

The prayer of the bill is:

1. That complainant be decreed to hgve a lien upon the entire interest of Hartman in the premises, and the buildings situated thereon.
2. That an account be taken of the amount due complainant, and a decree rendered for the amount found due, with costs.
3. That the rights of Shepard and Hartman under the lease be determined and adjusted; and that complainant’s lien be decreed to be prior to any claim of lien of Shepard on Hartman’s interest in said premises and buildings, by virtue of the lease, for moneys owing from Hartman to Shepard.
4. That, in default of payment of the decree by Hartman, his interest in the premises be sold to satisfy the decree.
5. That complainant have such other and further relief in the premises as shall be agreeable to equity.

To this bill the Shepards interposed a general demurrer, which was heard in the court below, and overruled. After the demurrer was overruled, Charles Shepard died. The defendants Norris and Dorinda N. Shepard were appointed executors, and the cause was revived, and is now brought here for review. This appeal is based upon the claims: '

1. That, under the mechanic’s lien law, the complainant’s lien can attach only to Hartman’s actual interest, no matter what his apparent interest may have been.
2. That complainant had actual notice of Shepard’s lien prior to the time when its lien attached.
3. That complainant can claim no lien under its contract, by the terms of which no title to the materials and machinery is^ to pass until paid for.

The action is brought under the provisions of Act No. 179, Laws of 1891. Section 1 provides:

“Every person who shall, in pursuance of any contract, * * * between himself as contractor and the owner, part ■owner, or lessee of any interest in real estate, build, alter, improve, repair, erect, ornament, or put in, or who shall furnish any labor or materials in or for building, altering, improving, repairing, erecting, ornamenting, or putting in, any house, building, machinery, wharf, or structure, * * * shall have a lien therefor upon such house, building, machinery, wharf, or other structure and its appurtenances, and also upon the entire interest of such owner, part owner, or lessee in and to the lot or piece of land * * * upon which such improvement is made, to the extent of the right, title, and interest of such owner, part owner, or lessee at the time work was commenced or materials were begun to be furnished,”- etc.

Section 9 provides that liens under the law shall take priority as follows:

“First. As between persons claiming liens under this statute, the several liens upon the same property attaching by reason of work, labor, or materials furnished in carrying forward or completing the same building, machinery, structure, or improvement shall be deemed simultaneous mortgages.
“Second. They shall take priority to all garnishments for the contract debt made prior or subsequent to the commencement of the furnishing of the materials or performance of the labor, without regard to the date of filing the claim for lien.”

By subdivision 3, prior liens are not postponed to liens provided for under this statute, and it relates only to liens subsequently acquired.

Subdivision 4 has reference to all prior liens; and under it the laborer or material man has a lien upon the building erected, or betterments made to the property, prior to any mortgage or other lien theretofore existing upon the land. If it is an independent building, such building may be sold separately, under the direction of the court, under the proceedings to enforce the lien under this statute, and the purchaser may remove it. If it is an addition to a building, or a betterment, the court is to take an account of the value of the property before the addition or betterment was made, and of the enhanced value caused by such addition or betterment, and, upon a sale of the premises, distribute the proceeds so as to secure to the prior title, mortgage, or lien priority upon the land and improvements to the amount as they existed prior to the commencement of the improvements, and to the lien priority upon the enhanced value caused by such additions, repairs, or betterments.

Section 14 provides that upon final decree the court may order a sale of the buildings or machinery separately, or of the lands, buildings, machinery, structure, or improvements together, or may order the property into the hands of a receiver, to be leased or rented from time to time until the liens shall be discharged, or. may make such other order or disposition of the premises as justice may require.

By section 15, it is provided that if any part of the premises can be separated from the residue and sold without damage to the whole, and if the value thereof shall be sufficient to satisfy all the claims proved in the case, the 'court may order a sale of that part, if it shall appear to be most for the interest of all the parties concerned.

This proceeding is in derogation of the common law, and the statute under which it is brought must be strictly construed. Wagar v. Briscoe, 38 Mich. 587; Knapp v. Swaney, 56 Id. 345; Sheridan v. Cameron, 65 Id. 680; Lindsay v. Huth, 74 Id. 712.

In Wagar v. Briscoe, supra, the Court said:

“These acts are innovations upon the common law over the rights of property, by permitting the institution of private charges on property without or against the owner's assent, and without any judicial or other official sanction, and by authorizing an enforcement of' such charges by unusual and summary methods; and the provisions of these enactments cannot be extended in their operation and effect beyond the plain and fair sense of the terms, and parties asserting liens or titles resting upon them must bring themselves and their titles plainly and distinctly within these terms, and affirmatively make out that a lien was originally effected regularly, and thereafter kept up, and that every essential statutory step, either in the creation, continuance, or enforcement of the lien, has been duly taken."

It appeared in that case that Briscoe, being the owner of certain lots in the city of Detroit, contracted in writing to sell them to one Webster, who took possession under his contract, and erected buildings thereon. Webster paid only $20 down on the lots, and subsequently surrendered his contract. Wagar, representing a lumber company which had furnished materials to Webster to erect a building on the premises in question, filed a lien under the statute, and it was of this statute the Court was speaking. It was said further by the Court:

“ The lien is to attach to the contractor's entire interest in the land and its additions made by aid of the contract, but it cannot exceed the interest of the contracting party."

And again the Court said:

“ And the same enactments * * * establish the fact that no lien can be induced on any man's ownership, except on the basis of his own indebtedness, and can then be extended no further than his ownership extends."

And again it was said:

“ Conceding it was competent for the company to institute a lien against Webster, and to enforce it, under the statute, and still it is evident that the proceedings were required to be confined to his equity, and to be subject to Briscoe's rights."

The proceedings were under -the statutes of 1846, as amended by Act No. 127, Laws of 1869 (Comp. Laws 1871, § 6789), which provided that “ no lien created by virtue of this act shall exceed the interest of the contracting party."

By the first section of the act under which the present proceeding is brought, and which is set out here, it will be noticed that the lien is to be had “to the extent of the right, title, and interest of such owner, part owner, or lessee at the time work was commenced or materials were begun to be furnished," etc. Some force must be given to these words. It was the evident intent of the Legislature to provide for the lien only upon the actual interest which the owner, part owner, or lessee had at that time; and the force and eifect of the statute are no greater' than that of section 6789, Comp. Laws 1871. Nowhere in the act can any different intent be found, except under subdivision 2 of section 9, which provides that liens shall take priority to all garnishments for the contract debt made prior or subsequent to the commencement of the furnishing of the materials' or performance of the labor, without regard to the date of filing the claim for lien; and, by subdivision 3, it is provided that they shall be preferred to all other-titles, liens, or incumbrances -which may attach to or upon such building, machinery, structure, or improvement, or to or upon the land upon which they are situated, subse'quent to the commencement of said building, etc. Nowhere in the act is it specified that such liens shall have priority over unrecorded incumbrances or interests in the lands and premises upon which the structures are erected; but, by plain intendment, such liens are upon only the actual' interest of the owner or lessee, — that is, they have priority to the extent of the owner’s interest only. But by subdivision 4 of section 9 the complainant’s. lien would have priority over all other incumbrances, upon the betterments which complainant actually put in. Had there been any provision in the lien law, found in many of the lien laws of other states, to the effect that a mechanic’s lien should be preferred to any mortgage or other incumbrance of which the lien holder had no notice, and which was unrecorded at the time .such lien attached, this difficulty might not arise; but under our statute the lien*is to attach “to the extent of the right, title, and interest of such owner,” etc., “at the time work was commenced or materials were begun to be furnished.” This was held in Miller v. Stoddard, 50 Minn. 272, under a somewhat similar statute to our own. It was further said in that case that the provisions of the statute relative to the recording of mortgages had no application, as by that statute there was no obligation resting upon the mortgagee to record his mortgage, as against mechanics’ liens; that its provisions did not apply or extend to such liens. Our statute (How. Stat. § 5683) provides that—

“Every conveyance of real estate within this State, hereafter made, which shall not be recorded as provided in this chapter, shall be void as against any subsequent purchaser in good faith, and for a valuable consideration, of the same real estate, or any portion thereof, whose conveyance shall be first duly recorded.”

This section applies to mortgages and assignments thereof, as well as to deeds. Burns v. Berry, 42 Mich. 179. So that the recording statutes of this State do not apply, in terms, to mechanics’ liens.

In the present case the bill shows that defendant Hartman was in the possession of a building on lot 3, which belonged to Charles Shepard. This building was erected by Shepard, and leased to Hartman for 96 years. Prior to that time, Hartman had leased from Shepard lots 4, 5, and 6 (except a small parcel on lot 4), and Hartman had put a building on that. Hartman was the owner of this building, and Shepard of the lots; but, by the same instrument, Shepard had given a lease for 96 years on these lots. The bill does not state whether any rent was reserved on these premises to Shepard, but it does state that Shepard claims some lien upon them, and that it is prior to the complainant’s. Presumably, from the statements in the bill, it is this reservation of rents which Shepard claims. It therefore appears that the property owned by Hartman is the brick building on lots 4, 5, and 6, and that he has a lease of the land on which it stands for 96 years. He does not own the building on lot 3, but that and the lot are owned by Shepard. Whatever Hartman’s actual interests are in these buildings, they are subject to the complainant’s claim. The manner of the enforcement of such claim is pointed out by the statute; but the interest of complainant cannot cut off, or have priority over, the interest of Shepard acquired before that time, though such claim of lien or interest may not have been recorded.

2. It is immaterial, therefore, whether the complainant had notice of Shepard’s interest in the property.

3. We think there can be no doubt that complainant could have and enforce its lien upon Hartman’s entire actual interest in the premises, notwithstanding it retained the title to the materials furnished. There can be no objection to a creditor’s having more than one security for the same debt. In the case of Manufacturing Co. v. Smith, decided in the United States court of Tennessee, and reported in 40 Fed. Rep. 339, it was said:

“Instead of being inconsistent, it was merely additional security to that provided by the statute. It certainly does not establish, as matter of law, that, in thus retaining title to the machinery, complainant has waived its statutory lien upon the lot of ground or premises on which the machinery was placed."

The bill states a cause callipg for equitable relief, and the order overruling the demurrer -must be affirmed, with costs. Defendants will have 20 days to answer complainant's bill.

The other Justices concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    William Reed v. The Duluth, South Shore & Atlantic Railway Company.

      Carriers of passengers — -Failure to stop at station — Just and legal excuse — Penalty.
    1. Where in a suit against a railroad company to recover the penalty imposed by How. Stat. § 3324, for failing to,deliver the plaintiff, who was a passenger on one of its west-bound trains, at a regular passenger station, it appears that the snow was badly drifted just west of the station; that notice of this fact had been given to the conductor, coupled with a caution against the same; that a freight train was following close behind the passenger train; that it was night; and that the engineer and conductor, in the exercise of their honest judgment, thought it safer and better to stop where they did, about three-quarters of a mile beyond the station, than in front of the station, and that they would stall the train if they stopped at the station, — a just and legal excuse is shown for the violation of the statute.

      2. The following propositions are summarized from the opinion of Mr. Justice Hooker:
    a — The responsibilities upon those having charge of a railroad train are heavy, and they must of necessity act upon their judgment, which is usually better than that of courts or juries.
    b — It should not be the policy of the law to encourage carelessness upon the part of train men or companies, and, where an honest judgment is exercised in an emergency reasonably justifying it, the convenience of the passenger must yield.
    c — Stopping a passenger train before reaching a station, and upon a bridge or elevated track, on- a dark and stormy night, to permit men who had been drinking to get oil', might be a hazardous experiment, under decisions of this Court, especially when the attention of a part of the train-men might be required to guard against an approaching freight train, which in turn might be compelled to stop in a less favorable place, thereby endangering travel and traffic upon the road.
    Error to Alger. (Steere, J.) Ai'gued April 5, 1894. Decided May 23, 1894.
    Debt. Defendant brings error.
    Reversed, and judgment entered for defendant.
    The facts are stated in the opinion.

      A. B. Eldredge and A. E. Miller, for appellant.

      Henry B. Freeman, for plaintiff.

       See Freeman v. Railroad Co., 65 Mich. 577, holding that where a railroad company sells a passenger a ticket from a regular station to a flag-station and return, and the passenger is carried to the flag-station, and on the return of the train no stop is made at the flag-station, where the passenger is waiting for the return trip, and gives the .proper signal, the company is liable to the statutory penalty if the train-men saw the signal, and willfully ran by the station.

   Hooker, J.

The plaintiff recovered a penalty of $100, under section 3324 of Howell's Statutes, against the defendant, a railroad company,. upon a trial before the court without a jury. The following findings of fact and law were filed:

“EINDINGS 03? EACT:
“Plaintiff sues in an action of debt to recover from the defendant the statutory penalty of $100, for carrying him past one of its stations.
“The village of Au Train is a regular station on defendant's line or road, used for receiving and discharging passengers or freight. On February G last [lg9’3], the plaintiff took defendant's west-bound passenger train at the station of Mnnising, located east of the station of Au Train, intending to go to Au Train, which was a regular stopping place for the train which plaintiff took. On the day in question this train was behind time, and was closely followed by a freight train, which it had passed at Munising. The conductor had been notified by telegram that the snow was bad at Munising and Au Train, and was cautioned to look ont for it. There were three passenger's on board for Au Train station, who took the train at Munising. The conductor at first protested against taking them, urging as a reason that the snow was bad, and he might have difficulty in stopping and starting at Au Train, but he appears to have finally concluded that he must do so, and he told the engineer to stop at An Train at some place where he could get a clear rail, and not get stuck. The conductor, on passing through the train after leaving Munising to collect fare, demanded and accepted from the plaintiff, as well as two other1 passengers, the regular fare between Munising and Au Train. The snow was deep at that time, and drifting, and the trains along the line of that road were having some trouble with snow, and were frequently delayed and. behind time. The station at Au Train is exposed to the winds from Lake Superior, and the drifts were particularly deep at that place. To the west of the station house there was a cut in which the snow drifted. The station hands had been shoveling snow there that day, and endeavoring to keep the track clear, but were only partially successful. From midway of the platform at the station, east to the east end of the bridge, there was a comparatively clear track. At the east of the station was a bridge and raised track, where the train could have stopped without any danger of being stalled, with the engine standing at or near the east end of the platform, and near to the building. From the east end of. the bridge to the west end of the station was 504 feet.
“I conclude from their testimony that it was the honest judgment of the conductor and engineer that it was safer and better to stop where they did than to stop in front of the station, and that the drift.immediately to the west of the station would make them trouble, and that they feared and thought that it would probably stall the train if they stopped at the station. As the train ajoproaohed Au Train, the brakeman passed through the cars and called the station, but the engineer ran past it through the cut, out onto the plains to the west, and stopped at a point about three-quarters of a mile beyond the depot. Plaintiff and the other two passengers for An Train were there discharged, and the train immediately passed on. It was after dark on a cold, stormy night, with the snow blowing and drifting. They supposed that they were at or near the station. They walked back. The walking was bacl, and they found it a long, unpleasant trip. They were laborers from the woods, and had been drinking some.
“CONCLUSIONS OR LAW:
“The facts, in the opinion of the court, show a violation of the statute on the part of the defendant, and a consequent liability in this action, unless the condition of the snow at An Train furnished an excuse which would relieve it.
“ Passengers alighting from a train in the dark on a stormy night, with the snow drifting, after their station is regularly called, had a right to suppose they were at or near the depot. Under those circumstances they would not waive any legal rights which they had by assenting to alight, or by not protesting at that time, and insisting on being discharged at the depot.
“ The conductor and the engineer, being familiar with the road, ought to have known that they could stop with safety just east of, close to, and practically at the station house.
“ The defendant, through its agents, had received passengers for Au Train, one of its regular stopping places, had collected fare from them, had whistled for that station, and had called it out. The passengers, under these circumstances, were entitled to be discharged at the regular stopping place. In stopping where they did, it appears to me that the officers of the train consulted their convenience .rather than the necessities, and that the defendant has not shown a legal excuse for violating the statutes applicable to this case."

The only question insisted on is the propriety of entering judgment against defendant upon these findings.

Under the statute mentioned, railroad companies may escape the penalty by showing a “legal or just excuse.” The exculpatory facts under these findings are that the snow was badly drifted just west of the station, of which the conductor had been notified, and against which he had been cautioned; a freight train was following closely; it was night; and the engineer and conductor, exercising their honest judgment, thought it safer and better to stop where they did. than to stop in front of the station, and that they would stall the train if they stopped at the station.

It is urged that these facts do not constitute a “ legal and just excuse,” no matter what the engineer and con-‘ ductor thought about it. The circuit judge does not specifically find that -the train could not prudently have been stopped immediately at the station, but this is plainly, inferable from the findings of fact. He does, however, find that to the east of the depot was a bridge and elevated track, where there was a “comparatively clear track,” and where the train could have stopped without any danger of being stalled, with the engine standing at or near the east end of the platform. As a conclusion of law he finds that—

“The conductor and the engineer, being familiar with the road, ought to have known that they could stop with safety just east of, close to, and practically at the station-house,” and that, “ in stopping where they did, it appears to me they consulted their convenience rather that the necessities, and that the defendant has not shown a legal excuse for violating the statutes,” etc.

'We cannot reach the same conclusion from the facts found. The responsibilities upon those having charge of a railroad train are heavy, and they must of necessity act upon their judgment, which is usually better than that of courts and juries. It should not be the policy of the law-to encourage carelessness upon the part of train men or companies, and, where an honest judgment is' exercised in an emergency reasonably justifying it, the convenience of the passenger must yield. Stopping before reaching a station, and upon a bridge or elevated track, on a dark and stormy night, to permit three men who had been drinking to get off, might be a hazardous experiment, under decisions of this Court, especially when the attention of a part of the crew might be required to guard against the approaching freight train, which in turn might have been compelled to stop in a less favorable place, thereby endangering travel and traffic upon the line.

.. We think the facts found are at variance with both conclusions, and unless we are to say that the last conclusion of law, viz., that the conductor and engineer consulted their convenience instead of the necessities, is to supplant the specific facts found before, we cannot sustain the judgment.

The excuse shown was just and legal, and the judgment of the circuit court must be reversed, and one entered here in favor of the defendant, with costs of both courts.

The other Justices concurred.


author: Grant, J.

text:
    The People v. Phillip Flock.

      Criminal laxo — Pleading—Variance—Embezzlement—Evidence.
    1. A motion to quash the information in an embezzlement case, because of an alleged variance between it and the complaint and warrant, in that the information alleges that the offense-was committed “on” a certain date, while the complaint and warrant allege that it was committed “on or about” said-date, is properly denied.
    2. On the trial of a township treasurer for embezzlement, the-record required by How. Stat. § 739, to be kept by the township clerk, showing the amount charged as received by the respondent from his predecessor, and the other items of his . receipts and expenditures during his term of office, is competent evidence; and if it further appears that said record and said items were before the township board and the respond- ' ent when settlements were made with him, and that he was satisfied with the account, except one item, which was allowed him, the testimony, taken together, is sufficient to establish the receipt of the money charged in the account as having been received by the respondent from his predecessor, and the other items charged against him in the settlement. '
    Exceptions before judgment from Midland. (Hart, J.) Argued April 25, 1894. Decided June 2, 1894.
    Bespondent was convicted of the crime of embezzlement.
    Conviction affirmed; the record to be remanded, with direction to proceed to judgment, if sente-nee has not been imposed.
    The facts are stated in the opinion.

      William D. Gordon, for respondent.

      A. A. Ellis, Attorney General, for the people.
   Grant, J.

The original complaint and warrant charged the respondent, the treasurer of the township of Edenville, with the embezzlement of $562.32 on or about the 2d day of January, 1891. The respondent waived an examination before the justice, and entered into a recognizance for his appearance in the circuit court for trial. An information was filed, which, upon motion in behalf of the respondent, was quashed. By leave of the court, an amended information was filed, and a motion to quash it was overruled. Upon the refusal of the respondent to plead thereto, a plea of not guilty was entered. Upon the trial, the respondent introduced no evidence, and was found guilty of the embezzlement of $425.32.

The first point is that the court erred in not quashing the information because it did not agree with the complaint and warrant, in that they alleged the offense to have been committed “on or about” January 2, while the amended information alleged that it was committed “ on ” January 2. We think there is no force in the position. The offense alleged in the complaint, warrant, and information is identical. The time, by the information, is definitely fixed. The same date was also mentioned in the complaint. The respondent could not have been prejudiced. The point is too technical to require further comment.

Error is alleged in the admission of the record kept by the township clerk, showing the amount charged as received by respondent from his predecessor, and other items of receipts and expenditures by him during his term of office. This record is required to be'kept by the clerk. How. Stat. § 739. It was not conclusive upon the respondent, and was open to explanation. The township board is required to settle with the treasurer, and the clerk is required to keep a record of such settlement. Id. §§ 747-749. It appears, also, that the books themselves and the items were before the town board and the respondent when settlements were made with him. Members of the board testified that he was satisfied with the account, except one item, which, it appears, was allowed him. The testimony, taken together, was sufficient to establish the receipt of the money charged in the account as having been received from his predecessor, and the other items charged against him in the settlement.

The record in this case does not purport to contain all the evidence, and is very unsatisfactory. It is difficult, as is conceded by tire Attorney General, to determine the actual state of the account between the respondent and the township. He kept no accounts himself, and the treasureFs book, which was produced in evidence, showed that, during his term, he made not a single entry thereon of either receipts or disbursements. There is enough, however, from which we can find that, at the time of the settlement, he had in his hands $1,373.17, and that he turned over to Ms successor $947.85, leaving a deficit of $425.32.

Upon the record as it is, we find no error, and the conviction is affirmed. It does not appear whether sentence has been imposed. If it has not, the record will be remanded, and the court below directed to proceed to judgment.

The other Justices concurred.

       How. Stat. § 739, provides that the township clerk “ shall open and keep an account with the treasurer of his township, and shall charge such treasurer with all funds which shall come into his hands by virtue of his office, and shall credit him with all moneys paid out by him on the order of the proper authorities of the township, and shall enter the date and amoimt of all vouchers in a book kept by said clerk in said office.”


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    The People v. John Elder, Impleaded with Robert Nixon.

      Homicide — Accomplice—Joint assault.

    Respondent was informed against for murder, and convicted of manslaughter. He was a bartender, and, in an altercation with the deceased, knocked him down, whereupon a bystander kicked . the deceased, from which kick death resulted. The theory of the prosecution was that'there was preconcert of action on the part of the bystander and the respondent. This the respondent denied, and claimed that he had no reason to expect any assistance from the bystander, or to anticipate his interference, and that he did not induce it. And it is held' that the respondent was entitled to have his theory properly submitted to the jury, and, if they found it to be the correct one, he was entitled to an acquittal.
    Error to Genesee. (Newton, J.) Submitted on briefs April 25, 1894. Decided June 2, 1894.

      Respondent was convicted of the crime of manslaughter, and sentenced to imprisonment in the State House of Correction and Reformatory at Ionia for nine years.
    Judgment reversed.
    The facts are stated in the opinion.

      John M. Bicssell and Charles Id. Johnson, for respondent.

      A. A. Ellis, Attorney General, and George F. Brown, Prosecuting Attorney, for the people.
   Hooker, J.

Respondent appeals from a conviction of manslaughter. He was a bartender, and, in an altercation with the deceased, struck him, and knocked' him down, whereupon .one Nixon, a bystander, kicked him, from which kick death resulted. The theory of the prosecution was that there was preconcert of action on the part of Nixon and the respondent. The respondent denies this; claiming that he had no reason to expect any assistance from Nixon, or to anticipate his interference, and that he did not induce; it.

In his charge to the jury, the trial judge said, “ On the part of the defendant, I give you the instructions which I now read.” This was followed by the reading of several requests, in which the law was stated correctly upon the subject. The fifth was as follows:

“If it shall appear to you, from the evidence, that Elder did not himself inflict the blow or do the injury which resulted in the death of Lowden, and that Nixon, by his own motion, while the encounter between Elder and Lowden was going on, rushed in, uninvited by Elder, and inflicted the injuries which produced Lowden’s death, then you must acquit the prisoner.”

To this the court added as follows:

“Unless you find that his assault upon Lowden contributed and produced the conditions that deprived the deceased of the power of resistance, and enabled Nixon the better to inflict great bodily injury on the deceased, if you find that the cause of death was the wounds or injury he received on that occasion.”

The requests upon the part of the respondent were followed by those of the prosecution, 22 in number, most of which were given, and which seem to have concluded the charge. The first ivas as follows:

“If you find that iho respondent assaulted Lowden, and felled him to the floor, putting the body of the deceased in such a position that he was helpless to protect himself from Nixon, and rendered it possible for Nixon to kick him, such act upon the respondent’s part was unlawful; and if decedent’s death was caused by the defendant’s act, the kicking given by Nixon-, or both combined, then they are equally guilty of the death caused.”

This request, and the addition' to respondent’s fifth request, were in direct contradiction of the earlier requests given upon respondent’s part, wherein the jury were instructed that the respondent could not be convicted if the death was caused by acts of Nixon, for which respondent was not responsible, and which he did not induce oían ticipate. The discussion of this subject, which appears to have been the important point in the case, was left with the requests, and the addition which has been mentioned. '

We fear that the jurors were misled by the first request ■of the prosecution, which, in plain terms, told them they might convict the respondent if he had “ assaulted Low-den, and felled him to the floor, putting his body in such a position that he ivas helpless to protect himself from Nixon, and rendered it possible for Nixon to kick him,” if such kick caused death. Equally faulty was .the impli■eation contained in the addition to respondent’s fifth request, — that if respondent’s assault “deprived the deceased of the power of resistance, and enabled Nixon the better to inflict great bodily injury on the deceased,” a •conviction might follow.

The case of People v. Carter, 96 Mich. 583, which seems to have been relied upon by the prosecution, was quite a different case from this. In that case the respondent felled the deceased by afblow while, he was engaged in a fight with another, whereupon that other immediately kicked him. It was held that if the jury could' find that the resjDondent volunteered to aid another in his fight, for the purpose .of aiding him to whip the deceased, they were joint wrong-doers, responsible for each other’s acts. In this case the respondent’s contention was that he was not a volunteer in another’s cause, but that the other volunteered in his, without his request or expectation. He was entitled to have his theory properly submitted to the jury.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


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    The People v. Joseph B. Gordon.

      Criminal law — Husband and wife — Competency as witnesses— Homicide — Evidence.
    1. 3 How. Stat. § 7546, disqualifies a wife from testifying against her husband, without his consent, on his trial for murder.

      2. A father testified, on ,his trial for the alleged murder of his child, that some hours before the homicide he bought a revolver for the purpose of shooting a boarder, of whom he was jealous, the first time he crossed his path, and that he accidently shot and killed the child while attempting to shoot the boarder. He did not testify that he intended to kill the boarder, and it appeared from the testimony that the shooting was preceded by an altercation between the two men. Respondent’s wife was allowed to testify in behalf of the people without his consent, which was assigned as error on his appeal from a conviction of murder in the first degree. The prosecution contended that the alleged error was non-prejudicial, on the ground that the testimony of the respondent himself conclusively showed his guilt. And it is held that the testimony was not equivalent to a plea of guilty of murder, upon which the court might, from the testimony given, determine the degree, but that the respondent had a right to the verdict of the jury, based upon competent evidence, upon that subject.
    Error to recorder's court of Detroit. (Chambers, J.) Submitted on briefs April 25, 1894. Decided June 2, 1894.
    Respondent was convicted of murder in the first degree,, and sentenced to imprisonment in the State prison for life.
    Judgment reversed, and new trial ordered.
    The facts are stated in the opinion.

      I). Augustus Straker, for respondent.

      A. A. Ellis, Attorney General, Allan H. Frazer, Prosecuting Attorney, and Henry A. Mandell, Assistant Prosecuting Attorney, for the people.'

       For cases bearing upon the question of the competency of husband and wife to testify for or against each other in criminal cases, see:
      1. Morrissey v. People, 11 Mich. 327 (cited with approval in Grimm v. People, 14 Mich. 300, 305), holding that the wife of a respondent is a competent witness for a co-defendant of her husband, jointly charged and on trial with him.
      2. Dixon v. People, 18 Mich. 84, 91, where the respondent objected to the competency of a witness on the ground that she was his wife, and it appeared from her examination upon the voir dire that an actual marriage existed between her and the respondent, prima facie valid and in good faith, upon which the respondent might reasonably and honestly rely as valid, and which upon the trial he did rely upon and claim as valid. And it was held not competent for the prosecution to iutroduce opposing testimony for the purpose of establishing, in this collateral manner, the invalidity of the marriage, so as to make the alleged wife a competent witness against the respondent.
      3. People v. Marble, 38 Mich. 117, where, on the trial of a woman.! for being present and aiding in and abetting the commission of a murder, her former husband, who was an eye-witness to the homicide, and who had since its perpetration secured' a divorce, was sworn as a witness against the respondent, without her consent. And it was held that by the terms of the statute (section 7543) he was rendered generally competent, notwithstanding his former marital relation; and as that relation had ceased when he was called to testify, and the prosecution was not in consequence of adultery, and his testimony did not include any communication between the respondent and himself during their marriage, there was nothing to disqualify his general competency.
      4. People v. Quanstrom, 93 Mich. 254, holding that the first or lawful wife cannot make a complaint against her husband for the crime of bigamy, nor is she a competent witness on his trial for said offense.
      5. People v. Westbrook, 94 Mich. 629, holding that a wife cannot make a complaint against her husband for an indecent assault upon the person of his daughter, nor is she a competent witness against him on his trial for said offense.

   Hooker, J.

The respondent was convicted of murder in the first degree, upon a trial. The victim was his own child, and respondent testified that he accidently shot the child in attempting to shoot one Eobinson, of whom he was jealous, and who at the time ivas a boarder in the house, and whpm respondent supposed to be intimate with his wife. He further stated that he obtained the weapon some hours before, for the purpose of shooting him the first time that he crossed his path. He did not '’state that he intended to kill Eobinson. It further appeared from his testimony that the shooting was preceded b3r an altercation between the two men.

The’ respondent's wife was called on behalf of the prosecution, and testified, against objection, to the circumstances of the shooting. This is alleged as error, and this contention is in accord with the settled rule in this State. The court admitted the testimony on a mistaken construction of section 7543 of Howell's Statutes. This section was passed in 1861, and removed the disabilities of parties to actions, and their connubial partners, to testify, which under previous statutes was not permitted. See Comp. Laws 1857, § 4339. Under the amendatory section (i. e., 7543), there is no doubt that Mrs. Gordon was a competent witness for or against her husband loiih Ms consent, but without it her testimony was as clearly inadmissible, under How. Stat. § 7546. This section has been construed in various cases cited in the notes to the section, and in the later cases of People v. Quanstrom, 93 Mich. 254, and People v. Westbrook, 94 Id. 629, both of which sustain respondent’s contention.

This should dispose of the case were it not for the testimony of the respondent himself, which is said to conclusively show his guilt, and therefore to render the error one without injury. lie admits that he procured a revolver for the purpose of shooting Eobinson, and that he did shoot him, after becoming enraged in a controversy with him. Had he billed-him, and the prosecution been upon the charge of murdering him, the degree of the offense would have been for the jury, who, under the evidence, might have found' him guilty of murder in the second degree or manslaughter, and in such case the cause would have to be reversed for the error mentioned; and, as'it was, the prisoner was entitled to have the degree of the offense, to say the least, determined by the jury, upon competent evidence. It was for the jury to say whether there was an attempt to kill Eobinson. The respondent said he bought the pistol to shoot him under certain circumstances, not to kill him. He did not shoot him on sight, but only after a quarrel. Hence it does not appear, as matter of law, that the child was killed in the attempt to take the life of another under circumstances that would have made such killing murder in the first degree.

Under the rule that “if a person, whilst doing or attempting to do another act, undesignedly kill a man, if the act intended or attempted were a felony, the killing is murder,” such homicide might or might not be murder in the first degree (see How. Stat § 9075); and in the present case that would be a question for the jury, if, indeed, it cannot be said that it could not be murder in-the first degree, because not within the language of that section. We cannot say, then, that the testimony was equivalent to a plea of guilty of murder, upon which the court might, from the testimony given, determine the degree, the respondent having a right to the verdict of the jury upon that subject.

The judgment must be reversed, and a new trial ordered.

The other Justices concurred.


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    The People v. Harry James.

      Liquor traffic — Saloon open after hours.

    Respondent was convicted of keeping open his saloon after the hour of 11 o’clock in the evening, in violation of the statute. On the trial he testified that he closed the saloon at 11 o’clock on the evening in question (Saturday); that his bartender and a third person remained in the saloon with him for the purpose of “cleaning up the place, — scrubbing the floor, cleaning the glasses, and fixing the things up all right for Monday morning;” that when they got through they went out at the back door, and locked it; that no one was admitted to the saloon during the time they remained there; that no liquor was sold there; but that the parties took one drink when they went away. And it is held that under the evidence there was a clear violation of the statute.

    Exceptions before judgment from Marquette. (Stone,' J.) Submitted on briefs April 25, 1894. Decided June 2, 1894.
    Eespondent was convicted of keeping his saloon open after hours.
    Conviction affirmed.
    The facts are stated in the opinion.

      B. J. Mapes, for respondent.

      A. A. Ellis, Attorney General, and II. O. Young, Prosecuting Attorney,, for the people.

       See note at end of opinion.

   Long, J.

Respondent was convicted of keeping open his saloon after the hour of 11 o’clock in the evening.

The people’s testimony showed that the respondent kept a saloon where spirituous and malt liquors were sold. A policeman and the marshal and deputy marshal testified that on the evening charged, between 11 and 12 o’clock, they passed the place, and heard voices in the saloon, from which they judged that four or five persons were in there, and they heard the glasses rattling. The respondent’s case is stated in the record as follows:

The testimony of the defendant, taken at his request on the examination, was introduced in evidence, and is as follows:
“ ‘ Myself, barkeeper, and Dennis Oaples were in my saloon, scrubbing, from 11 o’clock until 12 o’clock, on the night in question. We left at 12 o’clock. Dennis Oaples was not in my employment. He stayed there with us. No one else was in. We had only, one drink at that time. We had a night cap when we left.’
“The defendant, being sworn, testified:
£££ The 22d of April was Saturday. I closed my saloon at 11 o’clock. My bartender’ and Dennis Oaples, I think his name is, stayed in my place with me after that time.
“ ‘ Q. What did you stay there for?
“£ A. Cleaning up the place, — scrubbing the floor, and cleaning the glasses, and fixing the things up all right for Monday morning. When we got through we went out the back door, and locked it up. N o one was admitted to the saloon from the time I closed it, at 11 o’clock, to the time I left. No liquor was sold there. I stopped there for the purpose of cleaning the place up, and not for the purpose of selling liquor.’
££ On cross-examination, the defendant testified:
£££We took one drink when we went away, as I told yon before. Dennis Oaples is a dealer in pop; you bet he is. He helped us scrub out.”’

The court below instructed the jury as follows:

“In disposing of this case, in the opinion of the court, the testimony of the respondent shows that there was a violation of the law here, what may he termed somewhat technical, but it is a clear violation of the law, in my judgment. The law requires these places — saloons—to be closed after 11 o’clock; and it seems to me that where the public, or any part of the public, are permitted to stay in the saloon, if the doors are closed, and drinking takes place especially, that it cannot be said that the saloon is closed within the meaning of the statute.
“It appearing by the undisputed testimony of the respondent that Mr. Capíes was there in the saloon, and took a drink with him and his bartender, and that he and Capíes and the bartender were there for some time after 11 o’clock, then there was a clear violation of the statute. That is my judgment about it, gentlemen.
“You will go to your room, and see whether you find a verdict of guilty or not guilty.”

We think the charge was proper, under the evidence. The case is ruled by Kurtz v. People, 33 Mich. 279; People v. Cummerford, 58 Id. 328; People v. Waldvogel, 49 Id. 337; People v. Blake, 52 Id. 566; People v. Crowley, 90 Id. 366.

The conviction is affirmed.

The other Justices concurred.

■CLOSING OF SALOONS ON SUNDAY,' ON LEGAL HOLIDAYS, AND AFTER A DESIGNATED HOUR ON WEEIC-DAY NIGHTS.

The following note summarizes the legislation and collects the cases bearing upon the subject suggested in the above heading:

Summary of Legislation.

1. Act No. 231, Laws of 1875, taking effect August 3, 1875, provided that all saloons, restaurants, bars, bar-rooms, in taverns or elsewhere, and all places of public resort where intoxicating liquors were sold, either at wholesale or retail, should, unless otherwise determined and directed by the proper municipal authorities, be olosed on Sunday, and on week-day nights from and after the hour cf 11 o’clock until 6 o’clock of the following morning.

3. Act No. 193, Laws of 1877, taking effect May 22, 1877, provided that all saloons, restaurants, bars, in taverns or elsewhere, and all other places where malt, spirituous, or intoxicating liquors were sold, either at wholesale or retail, should be closed on Sunday, and on each week-day night from and after the hour of 10 o’clock until 6 o’clock of the morning of the succeeding day: Provided, that, in all cities and incorporated villages, the places named might remain open until not later than 11 o’clock of such weekday nights, unless ordered sooner closed by the proper municipal authorities.

3. Act No. 367, Laws of 1879, taking effect August 30, 1879, changed the 1877 law by adding, as days when saloons, etc., should be closed, “election days or legal holidays,” and by prohibiting the sale or gift of malt, spirituous, or intoxicating liquors at any time during such days, and by fixing the hour for closing at 9 o’clock at night, with the right to remain open until 10 o’clock, unless ordered sooner closed by the proper city or village authorities.

4. Act No. 359, Laws of 1881, taking effect September 10, 1881, provided that all saloons, etc., and all other places where any of the liquors mentioned in sections 1 and 3 of the act might be sold or kept for sale, either at wholesale or retail, should be closed on Sunday, on all election days, on all legal holidays, and until 7 o’clock of the following morning, and on each week-day night from and after 9 o’clock until 7 o’clock of the following morning; that the word “closed” should be construed to apply to the back door as well as to the front door; that in prosecutions for violations of said provisions it should not be necessary to prove that any liquor was sold; and that in all cities and incorporated villages the common council might, by ordinance, allow saloons and other places where said liquors should be sold to remain open not later than 10 o’clock on any such week-day night.

5. Act No. 313, Laws of 1887, taking effect September 38, 1887, and now in force (3 How. Stat. § 3383c4 et sea.), provides that all saloons, restaurants, bars, in taverns or elsewhere, and all other places, except drug-stores, where any of the liquors mentioned in said act are sold or kept for sale, either at wholesale or retail, shall be closed on Sunday, on all election days, on all- legal holidays, and until 7 o’clock of the following morning, and on each weekday night from and after the hour of 9 o’clock until 7 o’clock of the morning of-the succeeding day; that .the word “closed” shall be construed to apply to the back door or other entrance, as well as to the front door; that in prosecutions under this section it shall not be necessary to prove that any liquor was sold; and that the proper authorities in cities and incorporated villages may, by ordinance, allow the saloons and other places where said liquors shall be sold to open at 6 o’clock in the forenoon, and to remain open not later than 11 o’clock, and no longer, of any week-day night, except on election days and holidays.

6. Act No. 313, Laws of 1889; which attempted to repeal the 1887 law, was held unconstitutional in Rode v. Phelps, 80 Mich. 598, and the 1887 law declared to be in full force.

For cases bearing upon the proper construction of and practice under the provisions above summarized, see:

What Constitutes a Saloon Within the Meaning of the Statute.

1. People v. Higgins, 56 Mich. 159, where a saloon-keeper occupied three rooms on the ground floor of his building for that business, and lived over them. The rooms opened into one another from front to rear, and the rear room had an outer door. The bar was in the front room, which faced the street, and the other rooms were habitually used for card playing, and as places where liquors were served to customers in connection with the front room, between which and the rear rooms, near the bar, there was a hole in the wall. And it was held that the rear room constituted a part of the saloon, and keeping it open on Sunday by the proprietor was a violation of the statute.

2. People v. Scranton, 61 Mich. 244, where the evidence disclosed that the respondents carried on their business in a building containing three rooms on the ground floor, one used for the sale of tobacco and cigars, one for the sale of liquor, and one as a card room; that the cigar and tobacco room was in the front end of the building, facing the street; that over the front door was the word “saloon;” that this room was divided from the one where liquor was sold by a partition, in which were two doors, one near the center, and the other opening into the liquor room from behind the tobacco counter; that the card room was in the rear; and that the only way of entering the liquor room was from the tobacco and cigar room or by the back door of the building. And it was held that it was properly left to the jury to say what rooms constituted respondents’ saloon.

3. People v. Cox, 70 Mich. 247, holding that if a saloon-keeper sees fit to connect his saloon proper or bar-room by inward doors and halls with his sitting or living rooms, and permits others than members of his family to pass from the outside into such living rooms, and from thence to the bar-room to obtain liquors, or to pass from his bar-room out through such living rooms, and to occasionally drink liquor therein, with his approval and consent, he must be considered as making said living rooms a part of his saloon in the eye of the law, and he cannot upon Sunday, if such is his practice on week days, open said Jiving rooms to the public, or allow drunken persons or others seeking liquor to enter therein.

4. People v. Hughes, 90 Mich. 368, holding:

a — That the question whether rooms connected with a bar-room, and in which liquors are served and imbibed when the bar is lawfully open, must not be regarded as parts of the saloon, under the closing act, is no longer an open one under the decisions of this Court.

h — A saloon-keeper occupied two store buildings, in one of which was a bar, and another room in which liquor was served when the bar was open. The other building contained his office and a billiard room, and the buildings, as also the rooms in each, were connected by archways. On Sunday the bar was closed, and separated from the other rooms by damask curtains and barricades, and no liquors were dispensed in the other rooms. The proprietor was a bachelor, and spent his Sundays in the office, and received his friends there, which is held a violation of the Sunday-closing law.

5. People v. Ringsted, 90 Mich. 371, holding that a room connected with a saloon, where sales of liquor can be made on Sundays and after hours, and where liquors are served from the saloon on week days, is a part of the saloon.

What Constitutes Closing a Saloon Within the Meaning of the Statute.

1. People v. Waldvogel, 49 Mich. 337, where, on the trial of the respondent for keeping open his saloon on Sunday, it was conceded that the doors were open, and that several people were in the saloon, but it was claimed that they were in thfere assisting the respondent in washing and cleaning the saloon, and that no liquor was sold, nor was there any intention of selling any. And it was held that the question of intent was wholly immaterial; that the Legislature, in order to guard against the danger of sales being made, has directed that the place where liquors are kept shall be closed, so that no opportunity to violate, by making sales, shall be afforded; that the person who engages in the business of carrying on a saloon must at his peril see that no necessity exists for keeping the same open, by carrying on any other business therein which would require the doors to be open or for persons to enter therein.

2. People v. Roby, 52 Mich. 577, where the respondent, who was keeper of an hotel in which there was a bar for the sale of spirituous and malt liquors, was convicted of not keeping his bar closed on Sunday, upon evidence that on the morning of that day the clerk of the hotel was in the bar-room, and had a servant with him scrubbing it out, when a person who appeared to be known to the clerk came in from the street;' that the clerk told him he did not want him there Sundays; that the man said he wanted some whisky; that the clerk told him he must get his whisky Saturday night; that, after some more words between them, the clerk told him if he was going to get the whisky to get it, and get out as soon as he could; that he got the whisky, handed pay for it to the servant, and went off; that the respondent was not present, but that he was somewhere about the house; and there was no evidence that he assented to the opening of the bar on that day, or expected or desired that it should be opened, neither was there any evidence to the contrary. And it was held that, if intent was necessary to be found, there was enough in the case to warrant its submission to the jury; that the bar-room was opened on Sunday by respondent’s servants, and on his business, while he was about the premises; that the purpose for which it was opened was immaterial; that the offense was committed by opening it for cleaning, as much as it would have been by opening it for the sale of liquors.

3. People v. Cummerford, 58 Mich. 328, where the respondent was convicted of keeping his saloon open after legal hours, and it appeared that the saloon was connected with a restaurant, kept in a separate room, opening onto another street than the saloon, but connected with it by means of a door between the saloon and restaurant, which closed with a self-acting spring, and required only a push to open it. And it was held:

a — That if the saloon was lighted, and the bartender behind the bar, and people were passing in and out through this door, it was a plain violation of the statute, whether any liquors were sold •or not. '

b — That if the saloon was securely locked and fastened, both at the main entrance and also at the door leading into the restaurant, and yet, after the hour for closing it, respondent and his bartender were inside furnishing drinks to others, also inside, he would be amenable to the statute, because either the persons inside must have got in after said hour, or have been left inside when the doors were closed and locked, and in either case the statute was violated.

4. People v. Minter, 59 Mich. 557, holding it error to instruct the jury that, if they found that respondent’s saloon was opened (on a legal holiday) for any purpose whatever, they'should convict, as such a rule would prevent the keeper from entering or leaving the saloon for any purpose.

5. People v. Beller, 73 Mich. 640, holding that it is incumbent on the keeper of a garden used as a pleasure resort, in which he maintains a bar at which intoxicating liquors are sold on week days, to close access to the bar completely on Sunday, either by closing the bar itself or the garden.

6. People v. Crowley, 90 Mich. 366, holding that the testimony of a bartender that he went into the saloon on Sunday, and got a glass of beer, no one else being present, is sufficient to warrant the conviction of the keeper of the saloon for failing to keep his saloon closed on Sunday.

Pleading.

1. People v. Hobson, 48 Mich. 27, where a complaint, in a prosecution for selling intoxicating liquor on a legal holiday, averred that the respondent kept a saloon, that he kept it open on the holiday named, and that he then and there sold spirituous and intoxicating and malt liquors; and it was objected to as insufficient, because it did not show that the respondent kept such a saloon as the statute (act of 1879) required to be closed on holidays, namely, a saloon where malt, spirituous, or intoxicating liquors were sold. And it was held that, if respondent actually sold such liquors that day in his saloon, it was for that occasion, at least, kept for that purpose, and was within the law; that the object of the statute was to prevent the sale of liquors on holidays in any place of resort for refreshments, and it was not open to the construction claimed for it.

2. People v. Husted, 52 Mich. 624, holding that an allegation in a complaint, under the act of 1881, that on a specified day, being a week day, the respondents did not close their saloon at the hour of 9 o’clock, but kept it open until 20 minutes past 11 o’clock in the afternoon of said day, is equivalent to saying that the respondents did not keep their saloon closed on that particular weekday night from and after the hour of 9 o’clock until 7 o’clock of the morning of the succeeding day, and is sufficient.

3. People v. Baumann, 52 Mich. 584, holding a complaint sufficient under the 1881 statute which averred that on the 4th day of July, 1882, being a legal holiday, at a designated village and county, the respondent, being then and there a keeper of a saloon in said village, and the same being a place where spirituous and malt liquors were sold at retail, did not keep the said saloon closed, and did then and there, on the said 4th day of July, a legal holiday, keep the said saloon open for the purpose of selling spirituous and malt liquors at retail therein, the said respondent not being then and there a druggist, nor a person whose business-consisted in whole or in part of the sale of drugs and medicine, contrary to the statute, etc.

4. People v. Richmond, 59 Mich. 570, holding that a complaint under the act of 1881 for not keeping a saloon closed after the-statutory hour need not negative any action by the common council extending the time for closing.

5. People v. Robbins, 70 Mich. 130, and People v. Sullivan, 83 Id. 355, holding that it is not necessary, in a complaint or information for keeping a saloon open contrary to the statute, to state that the respondent is not a druggist, the name in such a case distinguishing the place.

6. People v. Ringsted, 90 Mich. 371, holding that it is sufficient, in an information for failing to keep a saloon closed on- Sunday, to aver that the saloon is situated in a designated city and county in this State.

7. People v. Wheeler, 96 Mich. 1, holding that a complaint alleging that the respondent was on a given day, and at a specified city in the county where the complaint is made, the proprietor of a place where spirituous and intoxicating liquors were by her kept to be sold, said place not being a drug-store, and that she did-on the day named, being the first day of the week, commonly called “Sunday,” keep her said place, where said liquors were by her kept as aforesaid, open, and did not keep her said place of business closed, as required by law, sufficiently charges the respondent with a’violation óf the Sunday-closing statute of 1887.

Evidence.

1. People v. Blake, 52 Mich. 566, holding, in a prosecution for keeping a saloon open on Sunday, that testimony that the respondent kept the saloon in question, and that the witness knew him, tends to identify the respondent as the proprietor of the saloon.

2. People v. Baumann, 52 Mich. 584, holding it competent, for the purpose of identifying the respondent as the proprietor of the saloon, to ask a witness if he saw a license card in the saloon on the day in question, and what it contained.

3. People v. Cox, 70 Mich. 247, holding that it is not necessary, in a prosecution for a violation of section 17 of the 1887 law, requiring saloons to be closed on Sunday, to prove that any liquor was sold.

4. People v. Ringsted, 90 Mich. 371, holding that where, on the trial of a saloon-keeper for failing to keep his saloon closed on Sunday, it appears that an adjoining- room, containing a temporary bar, where liquors were served on week days, was open, it is not necessary to show that such liquors were paid for in said room.

Miscellaneous Cases.

1. Kurtz v. People, 33 Mich. 279, 282, holding that the 1875 statute clearly intended to close up the places named against liquor selling on Sunday, or after 11 o’clock at night: that it was clearly meant that the sales at least should be entirely stopped, and the traffic shut off effectually, so that drinking, and the conveniences for drinking, should be no longer accessible, and that those who frequented them for that purpose should be dispersed.

2. People v. Blake, 52 Mich. 566, holding that respondent's intent in allowing his saloon to be open is immaterial, even if the opening was the act of his bartender, and without his knowledge or express authority.

3. People v. Richmond, 59 Mich. 570, holding that permission by the common council under the 1881 law to keep a saloon open later than the statutory hour was only grantable by ordinance, applicable to all persons keeping saloons; that they were bound to inform themselves of the conditions on which such permission could be granted, and could not rely upon any individual permission by members of the council, even if given.

4. People v. Robbins, 70 Mich. 130, holding that it is a violation of the statute to keep a saloon open on week days after the prescribed hour, whether any liquor is or is not sold during the time, the saloon is unlawfully kept open.

5. People v. Cox, 70 Mich. 247, holding- that the statute of 1887, requiring saloons to be closed on Sunday, contemplates but a single offense on the same day.

6. People v. Ackerman, 80 Mich. 588, holding:

a — That the term “ all legal holidays,” as used in section 17 of the liquor law of 1887, includes all days set apart by the Governor or President of the United States as days for fasting and prayer, or of thanksgiving.

b — That the courts will take judicial notice of proclamations by the Governor or President of the United States, setting apart days for fasting and prayer or thanksgiving, and, as the same are published in the daily and weekly newspapers, it is not to be presumed that any citizen is ignorant of them; nor will liquor dealers, or other business men, be permitted to plead such ignorance as an excuse for a non-compliance with, or violation of, the statutes relating to legal holidays.

c — That all persons engaged in the sale of liquor in an open saloon on a legal holiday are made principals by section 24 of the liquor law of 1887, and all may be punished for the violation of the statute if proceeded against and convicted.


text:
    The People v. William Ingraham.

      Local option law

       — What are prohibited liquors — Percentage of alcohol — Good-faith of respondent — Instructions to jury.

    Respondent was convicted of a violation of the local option law. The witnesses for the people testified that they obtained and ' drank at respondent’s place of business just such lager beer as they were accustomed to find in other saloons, and that it was intoxicating. It further appeared that respondent had taken out a government license for the sale of malt liquors at said place. The respondent testified that all the drinks he had for sale were ginger ale and pop; that on purchasing the ale he informed the vendors that he wanted a non-alcoholic and non-intoxicating drink, as the local option law was in force in his county; and that he was assured by them that he would have the right to sell the ale, as it was non-alcoholic and nonintoxicating. In explanation of his possession of the government license, he claimed that he procured it on the advice of an ex-revenue collector, because it was cheaper to do so than to be called to respond in the U. S. court. And it is held:
    a — That a request that, if the jury should find that the respondent purchased and sold the drink called “ginger ale” in good faith, believing it to be non-alcoholic and non-intoxicating, they must acquit, was properly refused; and that the jury were correctly instructed that the ignorance of the respondent at the time of the sale that the liquors were intoxicating would not excuse him, unless he took such reasonable means to ascertain whether they were such liquors as were prohibited as an ordinarily careful and prudent man, desirous of obeying the law, would take to ascertain such fact.
    b — That, in answer to a request that the court charge the jury that if they believed the drinks sold contained only 1 per cent, of alcohol, and were not convinced, beyond a-reasonable doubt, that they were intoxicating, they should acquit, an instraction that the statute prohibited the keeping of a place where malt, brewed, fermented, vinous, or intoxicating liquors, •or liquors some part of which was spirituous and intoxicating, were sold; that, if the respondent was .not keeping such a place, he could not be convicted; and that it was for the jury to say, under all the evidence, whether he kept such a place,— was, under the circumstances, as fair a charge as the respondent was entitled to.
    c — That the statute prohibits the keeping of a place where intoxicating liquors, or any mixed liquors, any pare of which is intoxicating, are. sold, its intent being to prevent the spread of intemperance and remove the cause; that evidently the Legislature thought that mixed liquors of which any part is intoxicating might be injurious, and it was left to the people of each county to determine whether any such drinks should be sold; and that . the request of the respondent to charge the jury that if they found that the drinks sold contained some alcohol, yet not of sufficient quantity to cause intoxication, they must acquit, was properly refused.

    Exceptions before judgment from Hillsdale. (Lane, J.) Submitted on briefs April 25, 1894. Decided June 2, 1894.

      Respondent was convicted of a violation of the local option law.
    Conviction affirmed.
    The facts are stated in the opinion.

      Franlchauser Bros., for respondent.

      Á. A. Filis, Attorney General, and Guy M. Chester, Prosecuting Attorney, for the people.

       For cases fixing the status of druggists in local option counties, see;
      1. People v. Murphy, 98 Mich. 41, holding that a druggist in a local option county who fails to comply with the requirements of the general law, by filing his bond with the county treasurer, is subject to prosecution under the local option law.
      3. Bishopp v. Circuit Judge, 94 Mich. 461, holding that a druggist in a local option county who has filed his bond, and who sells liquor in violation of the restrictions and requirements of the general liquor law, should be prosecuted under the local option law.

       On the question of what liquors are within the statutory restrictions as to the sale of “spirituous,” “vinous,” “fermented,” or other intoxicating liquors, see extensive note to the Mississippi case of Lemly v. State, 20 L. R. A. 645.

   Long, J.

Respondent was convicted under an information charging him with having kept a saloon and place where intoxicating liquors were sold, in violation of Act No. 207, Laws of 1889, commonly called the Local Option Law." The errors assigned relate principally to the refusal of the court to give certain requests to charge, and to the charge as given. The defense was that respondent kept a lunch room, and sold only soft drinks.

The people introduced testimony to show that on October 12, 1892, several parties went into the defendant's place, and there called for, obtained, and drank lager beer, and that this was repeated several times that day. ■ These parties who drank the beer testified that it was intoxicating, and just such lager as they were accustomed to find in other saloons. As they describe the place kept by defendant, the front room is for cigars; back of this is a bar-room, with bottles and cases of bottles, a billiard and pool table, and a bar. The people also showed that respondent had taken out a government license for the sale of malt liquors at that place.

The respondent testified that all the drinks he had for sale were Toledo ginger ale and Stone's pop; that when he bought the ginger ale, in Toledo, he told them he wanted a non-alcoholic and non-intoxicating drink, as the local option law was in force in the county where he lived and did business; and that he was assured by the parties that he would have the right to sell the ginger ale, as it was non-alcoholic and non-intoxicating. He further testified that he sold no lager beer. In explanation of how he came tc have a government license to sell malt liquor's, he claimed t ..at a party who had formerly been a revenue collector sent for him to come to Hillsdale, and there advised him to get such a license, and he got it because jt was cheaper than being called to respond in the United States court.

Upon these issues the court was asked by respondent to instruct the jury:

“If you find that the defendant purchased the drink called f ginger ale 3 in good faith, believing it was nonalcoholic and non-intoxicating, and sold it in good faith as such, then you must acquit.33

This was refused, and the court directed the jury as follows:

“It is claimed here, on the part of this defendant, that these liquors were sold here, if they were prohibited by the instructions which I will give you, that it was not intentionally done. This law is passed for the purpose of preventing traffic in such prohibited liquors, and it is the business of the person who engages in selling liquors for a beverage to see that he is not selling prohibited liquors. I do not by this instruction, however, gentlemen, desire you to understand that the sale- of such liquors, under all circumstances, by a person would be a violation of this statute; but he should use such reasonable means to determine whether the liquors which he is selling are such as are prohibited by law as a careful, prudent man, desiring to observe and obey the law, would use to ascertain such fact. If this defendant was keeping such a place for the sale of such liquors as I have said would be a violation of this law, the fact that he did not know, at the time when the sale was made, that these liquors were intoxicating, would not excuse him, unless he took such reasonable means to ascertain whether the liquors were such as were prohibited as an ordinarily careful and prudent man, desirous of obeying the law and keeping within its provisions, would take to ascertain such fact. I think that, if he did not know he was keeping a place where such liquors as were prohibited were sold, he did not know that they were such liquors as the statute prohibits from being sold, and he used such reasonable means to find out whether they were or not, and did not discover it, then he should not be held responsible. The mere fact that this defendant, Mr. William Ingraham, took out this license, does not, in itself, establish the fact that he was'keeping-such a place as is prohibited by the statute. It is one of the circumstances, simply, as the court has permitted to go before you to enable you to determine whether he was keeping such a place or not. It should have that weight which you think, in view of all the circumstances, it ought to have. The defendant gives his explanation of why he had it; and you are instructed to construe this portion of the evidence in the light of all the circumstances which surround it. It bears upon the question of whether he was keeping such a place as was prohibited by the statute."

We think the request to charge was properly refused, and that the charge, as given, was proper under the facts shown. The statute makes it unlawful to engage in this business, and it was the duty of the respondent to exercise that degree of care which the court below specified. It is apparent that, if the respondent had exercised the same care to keep within this statute that he did to shield himself from prosecution under the United States statute, he might have ascertained whether the drinks he was selling were lager beer instead of pop or ginger ale. If he was acting in good faith, and with a desire to keep within the law in force in that county, it is remarkable that he should have found it necessary to take out a United States license. It is evident that the claim made, that he believed it Toledo ginger ale, and purchased it as such, and sold it in good faith, believing it non-intoxicating, was a mere subterfuge; and the court below, in the charge, gave the respondent’s claim all the weight to which it was entitled. This local option law is in force in that county. It has been determined by the vote of the people that intoxicating liquors shall not be sold there, and one who attempts to violate or evade the law must expect to suffer the penalty for such violation. It is not a question of intent. It is unlawful to carry on the business of selling intoxicating liquors, or to sell intoxicating liquors, within that county.

The court was also requested to charge the jury, substantially, that if they believed the drinks sold contained only 1 per cent, of alcohol, and Avere not convinced, beyond a reasonable doubt, that they were intoxicating, they should acquit. The court charged that the statute prohibited the keeping of a place where malt, brewed, fermented, vinous, or intoxicating liquors, or liquors some part of which was spirituous and intoxicating, Avere sold, and, if the respondent Avas not keeping such a place, he could not. be convicted, and it was for the jury to say, under all the evidence, whether he kept such a place. Under the circumstances, this Aras as fair a charge as the respondent Avas entitled to. Under it, all his fights were protected. It is provided by section 1 of the local option statute (3 How. Stat. § 2283a) that it shall be unlawful to keep a saloon or any other place where any vinous, malt, brewed, fermented, spirituous, or intoxicating liquors, or any mixed liquor or beverage, any part of which is intoxicating, are manufactured, sold, stored for sale, given away, or furnished.

The court Avas further asked to charge the jury that if they found that the drinks sold contained some alcohol, yet not of sufficient quantity to cause intoxication, they must acquit. As we have seen, the statute prohibits the keeping of a place Avhere intoxicating liquors, or any mixed liquors, any part of which is intoxicating, are sold. The intent of the statute is to prevent the spread of intemperance and to remove the cause; and evidently the’ Legislature thought that mixed liquors of which some parts, or any part, are intoxicating, might be injurious, and it was left to the people of each county to determine whether. any such drinks should be sold. It has been determined in Hillsdale county that they shall not be, and that no place shall be kept -for such sales. It was within the province of the Legislature' to confer upon the people of the county the right to suppress the traffic in that kind of beverages, as well as the traffic in liquors which contain more alcohol, or which are malt or fermented liquors. The request was properly refused.

The case has been fairly tried, and the conviction must be affirmed.

The other Justices concurred.


author: Montgomery, J.

text:
    The People v. Angelo Jassino.

      Criminal law — Evidence of good character — Instructions.
    1. Evidence of good character is admissible not only in a case where doubt otherwise exists, but may be offered for the purpose of creating a doubt; citing People v. Garbutt, 17 Mich. 9; Hamilton v. People, 89 Id. 195.
    2. It is error to instruct the jury in a criminal case that a man’s good character is a valuable thing under all circumstances; that it is proper evidence to he considered by the jury in doubtful cases to determine whether or not a man having that good character would commit the offense charged; that it often avails, and should avail, to acquit a man under such circumstances; but that, when there is positive proof of the commission of an offense, good character cannot avail to overthrow that proof.
    Error'to Houghton. (Hubbell, J.) Submitted on briefs April 26, 1894. Decided June 2, 1894.
    Eespondent was convicted of an assault with intent to ■do great bodily harm, less than the crime of murder, and sentenced to imprisonment in the Marquette prison for 5 years.
    Judgment reversed, and new trial ordered.
    The facts are stated in the opinion.
    IF. F. Riggs, for respondent.

      A. A. Filis, Attorney General, and A. T. Streeter, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of an assault with intent to do great bodily harm, less than the crime of murder.

Error is assigned on a portion of the charge relating to the proof of good character, which is as follows:

“Now, the good character of this respondent has been put in question. A man's good character is a valuable thing under all circumstances, and it is proper evidence to be considered by a jury in doubtful eases to determine whether or not a man having that good character would commit such an offense. It often avails, and should avail, to acquit a man under such circumstances; but when there is positive proof of the commission of an offense, then good character cannot avail to overthrow that proof."

The respondent's counsel had requested an instruction as follows:

“ The jury have the right to give the defendant's reputation, proved, such weight as they think it entitled to."

We think the charge as given by the court on its own motion is erroneous. By the instruction above quoted the respondent was denied the benefit of proof of good character if the jury shoiild find positive evidence tending to show the commission of the offense. Evidence of good character is admissible not only in a case where doub’t otherwise exists, but may be offered for the purpose of creating a doubt. See People v. Garbutt, 17 Mich. 9, and Hamilton v. People, 29 Id. 195.

Exception is also taken to the following extract from the charge of the court:

“It is not necessary, when a blow is given, and where anything like a deadly weapon is used, — such a weapon as would inflict great bodily harm, — it is not incumbent upon the people — I meaii it is not necessary for them — to show the specific intent with which the act was done.”

Standing by itself, the language quoted would be subject to just criticism, but an examination of the charge, taken as a whole, satisfies us that it was the purpose of the judge to instruct the jury that the question of intent was a question of fact, and that an inference of intent might be drawn by the jury from the use of a deadly weapon. This inference is one which the jury must draw if convinced that, under all the circumstances of the case, it is justifiable; and such, Ave think, was the fair import of the instruction of the court. Another portion of his charge to the jury reads as follows:

“In arriving at the intent, if you find that the assault and battery Avas made, the question -is whether it was made in such a way or in such a manner that you can find from the testimony — infer—the intent Avith Avhich it Avas made.”

We think there are no other questions presented which are likety°to arise upon a neAv trial of the case.

The judgment Avill be set aside, and a neAv trial ordered.

The other Justices concurred.


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    John C. Scherer v. James B. Judson and Washington G. Wiley.

      Mortgage — Tax deeds — Quieting title — Sufficiency of evidence.

      A debtor conveyed, under an order of the court, aE of his real and personal property to a receiver, after which the land was sold for taxes. The purchaser mortgaged the land, and before the foreclosure of the mortgage secured a quitclaim deed from a party who claimed under a deed from the heirs at law of the debtor, then deceased, and secured the purchase money by a second mortgage. Pending a suit by an assignee to foreclose the first mortgage, the assignee secured a deed of the land from the receiver, after which the usual decree and order of sale were made in the foreclosure suit, but without prejudice to the rights of the second mortgagees. After the sale of the mortgaged premises to the assignee, and the execution and delivery to him of the usual commissioner’s deed, he filed a bill to set aside the second mortgage, in which suit the vaEdity of the tax deeds was not assailed. And it is held that the purchase by the mortgagor of thé outstanding original title could not detract from the rights of the first mortgagee or of his assignee, and that the' latter, therefore, so far as appears from the record, obtained a perfect title to the land.
    Appeal from Wayne. (Reilly, J.) Argued April 26, 1894. Decided June 2, 1894.
    Bill to quiet title. Defendants appeal.
    Decree affirmed.
    The facts are stated in the opinion.

      Walker & Walker, for complainant.

      Parker & Burton, for defendants.
   Hooker, J.

Complainant filed the bill" in this cause to quiet his title to certain lands.

The original title was in one William Hale. The public records show that Hale conveyed all 'of his estate, real and personal, to Frederick E. Driggs, receiver, in pursuanee of a decree of the circuit court of the county of Wayne, in chancery, to be held subject to the further order of the court. This was done June 19, 1862. Driggs did not convey this land until 1889. In 1879, a Mrs. Wolven became the holder of tax deeds upon the property for the taxes of the years 1869, 1870, 1872, 1873, 1874, 1875, and 1876, having previously obtained deeds for the taxes of 1867 and 1868. During that year, i. e., 1879, she took possession of the premises, and cleared them. The same year she mortgaged them to one Rohns, who assigned his interest to the complainant. In 1888, Scherer filed a bill to foreclose his mortgage in the Wayne circuit court, in chancery, making Judson and Wiley, these defendants, parties. We may here notice the connection of Judson and Wiley with this land. The public record shows a deed purporting to be made by Susan M. Hale, widow and executrix and sole devisee of William Hale, deceased, and William Hale, Jr., Frances H. Brewer, Susan L. Hale, and Mary A Hale, children, and with said Susan M. Hale sole heirs of said William Hale, deceased, to James B. Judson.” This deed was dated March 16, 1880, recorded July 8, 1880, and purported to convey the premises in question. On January 11, 1881, James B. Judson quit-claimed the land to Susan M. Wolven upon the representation that he was owner of the original title, and the same day Mrs. Wolven executed a mortgage for $300 — the whole amount of the purchase price — to Judson and Wiley, the defendants herein. Both instruments were duly recorded. While Scherer’s foreclosure was pending, Driggs, as receiver, obtained an order from the Wayne circuit court, in chancery, under which he sold and conveyed the premises to Scherer, which deed was executed November 4, 1889. On December 4, 1889, a decree was taken, upon a hearing, foreclosing the mortgage, and ordering sale, without prejudice to the rights of Judson and Wiley under their mortgage, and on January 18, 1890, a commissioner’s deed issued to Scherer, upon purchase at the foreclosure sale. Scherer now claims that Judson and Wiley have no title to the land. They maintain that their sale to Mrs. Wolven was in good faith, with color of title, and that her mortgage to them was valid.

Whatever may have been Mrs. Wolven’s title at the time she mortgaged to Rohns, it came to Scherer by the subsequent foreclosure and sale. Upon the face of this record, she had a complete and perfect title under her tax deeds, which were prima facie evidence of title, and are not attacked. Her subsequent purchase of an outstanding original title could not detract from the rights of Rohns or Scherer, and the latter, therefore, obtained a perfect title to the premises, so far as appears here.

The decree of the circuit court will be affirmed, with costs.

The other Justices concurred.