text:
    KRAUSE v. LEWIS.
    Negligence — Obstruction oe Alley — Personal Injuries — Trespassers.
    An alley is not a highway in the proper sense of the term, and is not intended for general travel like a street, but is for the convenience of the adjacent property, and where an adjoining owner builds a platform along the side of his building in an alley for the storage and handling of bulky articles of merchandise, and its character and use are not such as to constitute an invitation to the general public to use it as a sidewalk, a person so using it and falling into an unguarded area therein cannot recover from the owner of the building for the injuries sustained.
    Error to Gratiot; Stone, J.
    Submitted April 19, 1906.
    (Docket No. 54.)
    Decided July 3, 1906.
    Case by Bernard E. Krause against Henry E. Lewis -and Charles P. Yost for personal injuries. There was judgment for defendants on a verdict directed by the court, and plaintiff brings error.
    Affirmed.

      John W. Myers and William A. Bahlhe, for appellant.

      Searl & Monfort and Lyon & Moinet, for appellees.
   Montgomery, J.

Plaintiff brought this action to recover for injuries received by falling into an open area opening upon a platform in an alleyway adjoining defendants’ premises in the village of Ithaca. The circuit judge directed a verdict for defendant, and plaintiff brings error.

The appended map will be an aid to an understanding of the situation. An alleyway extends from the westerly ■side of defendants’ store building 32 feet west. This .alleyway has been used by the general public at will for many years. About 1892 or 1898 defendants built a platform on the alley. This platform originally extended from the head of or entrance to the basement staircase in the alley to a point just south of the side entrance from the alley to their building, and was later extended north to a point about one foot south of the north end of their building. This platform was built for the storage of salt, which they bought by the car load, and has always been used by them to store salt and pile wood on, as well as for unpacking goods and “ generally for the convenience of the use of our building.” Later the defendants constructed a double plank margin or addition along the west edge of this platform, partly for the purpose of keeping water from running under the platform and into the cellar, and partly to make a substantial edge to back wagons against in loading and unloading goods, salt, etc. The north end of the platform was frequently covered with boxes from which goods had been unpacked, so as •to render the platform impassable for walking purposes for weeks at a time, and the remainder of the platform was also so covered that it was impossible to use it to walk upon for weeks at a time. Later, defendants built a narrow walk, leading from the south end of the platform at the head -of the basement stairs, along the alley side of the cellar stairs, to the front to a point opposite the approach to the stairway leading upstairs, but stopping a foot short of the south end of their store building. This walk was built simply and solely for the accommodation of defendants and their clerks in going from the store to and down the outside cellar stairs, and for their upstairs ten-. ants in going back along the side of the stairs to get their wood which was thrown there. These tenants had their wood thrown from farmers’ wagons under the stairs to the south of the basement stairs, and for weeks at a time this wood so covered the narrow walk as to make it impassable, and requiring defendants to go out in the road part of the alley to get by.

There is a basement under defendants’ building, used by them in connection with their business, and there are three basement windows on the west side of the building for the purpose of admitting light and air into the basement, and for such other purposes as they may be used for. The first of these basement windows toward the south is 42 feet north of the south end of the building, and its south edge is 8 feet 1 inch north of the staircase leading to the basement. Each of these basement windows has an area surrounding it, projecting out from the building about 2 feet 10 inches and is about 4 feet 9 inches long. The south area, into which it is claimed that the plaintiff fell on the night in question, was at that time about five feet deep, was capped with a 2-inch plank, 10 inches wide, resting on the stone wall of which the area wall was constructed, and this plank was about 2 inches above the level of the platform adjacent. The south edge of defendants’ building is 5 feet north of the north street line of Center street, on which it faces. That 5-foot space is covered by a cement walk which connects with the walk proper, and is used for the purpose of exhibiting goods sold by defendants in their business. Immediately west of the south end of their building defendants constructed a cement platform, extending from the south edge of their building north 3 feet 3 inches to the foot of the stairs leading to the second story. This was built simply and solely for the accommodation and convenience of themselves and their tenants occupying the second floor, and, of course, those who might have occasion to transact business with those tenants. As a result of these several structures, the narrow walk along the side of the stairway laps over or extends by this cement approach to the second-story stairs for a distance of 26 inches. There is a gutter running along the westerly edge of the platform and narrow walk in question, which gutter was constructed by the defendants for the purpose of carrying away from their cellar the water which comes from the north and from the back or side of their building. This water goes across the space between the south end of the narrow walk and the walk on Center street leading across the alley, and under the walk and into the gutter on Center street; and at the place last mentioned, being south of the narrow walk and west of the approach to the second-story stairs and the adjacent sidewalk, there is a depression of about a foot. Defendants have used this portion of the alley occupied by them for their own business purposes and convenience, and have never personally invited the public to use it as a sidewalk or a thoroughfare. They have seen people using it for that purpose when it was not so full of their property but that they could get along on the westerly edge of the platform. They have never given permission to any one to use it either as an alley or thoroughfare, and they did not give this plaintiff, or any of those who were with him on the night of the accident, permission to cross or enter upon the platform in question or upon their lot back of their store.

On the night in question, there was at least one tier of salt barrels upon the platform in question, lying endways to the building. On the evening in question plaintiff visited three saloons, and finally went to Knickerbocker’s saloon, conducted in the third building east of the premises of defendants. Plaintiff was in that saloon when it was announced that it was time to close, and had ample opportunity to go out the front door if he had so desired. The only reason which he gives for not going out the front door at that time is that “I was willing to stay awhile longer with my friends.” Plaintiff further testified that when he got ready to go home he did not ask the proprietor to go out the front door; that the reason he didn’t was because Bodet, one of his companions, said he knew the way around the back way, and plaintiff thought he did; that plaintiff did not know anything about the back way himself at all, but went out the back way because Bodet said he knew the way. Thereupon plaintiff and three of his companions left the saloon through the back door, and went north across the rear of the premises of these defendants, and towards the alley in question. The three companions were 15 or 20 feet ahead of plaintiff when they reached the alley, and they went upon the platform. Plaintiff testified that he could see the buildings and could see the alley between the buildings. It is undisputed that at that time the dirt portion of the alley was at least 20 feet wide, and was smooth and dry at the time, and afforded plenty of room for teams and foot passengers to pass to and fro along the west side of the platform. Plaintiff testified that he was headed out towards the middle of the alley, and that his companions called him to get upon the platform; he being 15 or 20 feet behind them. He left the alley, entered upon the platform, and directly ran against a salt barrel or box standing thereon. He felt the obstruction with his cane, saw some salt barrels on the platform, and walked along on the outside of the platform next to the row of salt barrels. He further says that he remembers his cane hitting against the salt barrel several times; that he would touch the barrels with his cane, but was not far enough towards the outer edge of the platform so that it brought his crutch close to the edge of the platform.

Plaintiff further testifies:

Q. Was there anything between where you were and the roadbed to prevent your going out there to walk in the roadbed ?

“A. I did not see anything.

Q. You could have stepped off from the platform and walked on in the middle of the roadbed, and gone out straight that way, could you not ?

A. I could if I so chose.

“ Q. You didn’t choose to do it ?

A. No, sir. They told me to go on the sidewalk.

“Q. After that, after you got on the sidewalk, and had run against the salt barrel or box with your cane, at that time you could have gone out in the middle of the roadbed, if you wanted to ?

“A. Yes, sir.”

Plaintiff further testified that he could see the ground, next to the platform; that it was a foot or so below the platform, that he could tell where the platform stopped, and could see that he had a chance ■ to get off the platform onto the ground. Plaintiff walked with a crutch and a cane on the night in question, and says that he had drunk enough before so as to become intoxicated, but that neither he nor his companions were intoxicated upon this occasion; and it also appeared that, while walking, the distance between plaintiff’s cane and crutch was 2 feet 2 inches.

In determining the rights of the parties it is necessary •to inquire somewhat as to the rights of the defendants to erect the platform in question, to he used in connection with their building. It has been frequently stated in this State that an alley is not a highway in the proper sense of the term. Paul v. City of Detroit, 32 Mich. 108; Bagley v. People, 43 Mich. 355; Horton v. Williams, 99 Mich. 423. Such alleyway is intended for the convenience of adjacent property, and not for general travel or passage like streets. Paul v. City of Detroit, supra.. Accordingly it was held in Bagley v. People, supra, that an obstruction to the right of passage through or to the proper use of an alley by those entitled thereto cannot be considered a public wrong. If this be the true rule, and it be held that the public generally cannot have an interest in preventing an obstruction, it would seem to follow that the plaintiff, as a member of the public, cannot assert any greater rights in the alley as a thoroughfare. In the case last cited it was intimated that the construction of a platform to be used in connection with adjacent property might, in some circumstances, be a proper use of an alley. However this may be, the fact appears that this space was devoted to that use, and so far as appears without objection from those beneficially interested in this alley or from the public at large. This did not, under the facts in this case, enlarge the uses of this alleyway, but, on the contrary, restricted such uses by devoting this platform to use as a freight platform and for storage of bulky articles of merchandise.

It is manifest that the platform in question was not so constructed as to constitute an invitation to the general public. The narrow plank walk on the west side was not extended to the street but was a part of the provision made for the occupants of the building. The rear of the platform terminated abruptly, and was elevated from the ground so that it was only at considerable inconvenience that a pedestrian could clamber on to it at that end. The entire platform was frequently obstructed by boxes, barrels, and packages used in connection with defendant’s business. Indeed, its construction was such as to indicate that it was designed as a convenient place to unload freight. The most casual glance in the daytime would have disclosed this purpose and would, by reason of that fact, have negatived an invitation. Plaintiff cannot be heard to say that, because he was ignorant of these conditions, an invitation was extended to him. If he chose to invade this place in the night-time, without any appearance of an invitation other than the fact that a platform was there which he could, with some effort, ascend to, he cannot assert that he had a right to expect other conditions than in fact existed, for, even in the dark, it was obvious to him that this was not an ordinary sidewalk. Redigan v. Railroad, 155 Mass. 44 (14 L. R. A. 276); Ryan v. Towar, 128 Mich. 463 (55 L. R. A. 310). The instruction was warranted.

The judgment is affirmed.

Carpenter, C. J., and Ostrander, Hooker, and Moore, JJ., concurred.


source: Caselaw Access Project

author: Hooker, J.

license: Public Domain

text:
    NORTH v. GLOBE FENCE CO.
    1. Mechanics’ Liens — Materials Subject ow Lien — Use in Building. .
    A mechanics’ lien cannot be enforced against a building for materials not used in its construction.
    2. Same — Time .to Pile.
    The date of furnishing materials to the contractor in good faith for a building, but not in fact used in the building by him, nor delivered on the land, but sold to a third person, cannot be regarded as the date of the last furnishing from which - the time to file a mechanics’ lien begins to run.
    Appeal from Lenawee; Chester, J.
    Submitted April 19, 1906.
    (Docket No. 98.)
    Decided July 3, 1906.
    Bill by George M. North and Victor EL Bradshaw against the Globe Fence Company, the Collingwood Brick Company, and others, to enforce a mechanic’s lien. Defendant Collingwood Brick Company filed an answer, in the nature of a cross-bill, to enforce a materialman’s lien. From a decree establishing the lien claimed in the cross-bill, defendant Globe Fence Company appeals.
    Reversed, and cross-bill dismissed.

      Fellows & Chandler, for defendant Globe Fence Co.

      Martin 8. Dodd, for defendant Collingwood Brick Co.
   Hooker, J.

Briefly stated, the facts in this case are that Tobin & Co., having contracted with the Globe Fence Company to furnish necessary materials and erect a factory for it near Hudson, Mich., made a contract with the Collingwood Brick Company, of Toledo, Ohio, to furnish them with brick for the job, estimated to require about 275,000. The brick company furnished 275,000 brick, shipping them to Tobin & Co. at Hudson, the last car load being shipped July 1st. Afterward Tobin & Co. wrote to the brick company asking the shipment of another car load to finish the factory, and it was shipped to Tobin & Co. August 6th. The car was left on the track in front of the depot at Hudson for a few days, and then it was pushed onto a siding, where the brick were unloaded by one Keefus, for whom Tobin & Co. ordered them. They were not delivered at the factory, nor was any portion of them used in the construction of the factory. The Globe Fence Company knew nothing of their shipment, nor was it advised of any purchase of brick from Tobin & Co. by Keefus. Both it and Keefus were ignorant of the fact that Tobin & Co. had not paid for all brick bought by them, and neither’ had any design to defraud any person in connection .with the transaction. Tobin & Co. did not pay for the brick, being in arrears some $1,750. The Collingwood Company filed a lien on October 5th, and the question in this case is whether they shall lose their right to look to the building for their pay, or the Globe Fence Company shall pay for the brick a second time. The learned circuit judge held the lien valid as to all brick which was used in the building, but not for the last shipment. The fence company has appealed.

There was no error in excluding compensation for the brick shipped August 6th, inasmuch as they were not used in the building. That point is ruled by the case of Smalley v. Gearing, 121 Mich. 190.

It is contended, however, and the circuit court appears to have held, that the time within which a lien may be filed does not expire until 60 days after the last furnishing by the materialman to the contractor of the material which the former has the right to understand and believe is ordered for the building. We held in Smalley v. Gearing, supra, that the furnishing of stone to a contractor, at his yard, was not the time that the statutory 60 days began to run, but'' that it should run from the time that the contractor furnished it upon the premises, and the lien in that case was saved upon that ground. In that case the ■owner was not held for stone not actually used in the building, and the case begets a query whether it must not follow that the statutory limit should be 60 days after the .material is actually used in the building by the contractor, regardless of the period that has elapsed after delivery by “the lienor. But we need not decide that question. The .important point is that it is not the delivery to the contractor which gives the right to file a hen, but the delivery to the owner, and hence in this case as it appears that the .shipment of August 6th never was delivered to the Globe .Fence Company, there being no right of lien as to those brick, it is difficult to see how it can be said that the statutory period can depend upon the shipment of that car. It is contended that this car load of brick was delivered to the Globe Fence Company inasmuch as it was shipped to .Hudson and left upon the same siding that the other cars were left upon. It is denied that the car was thus left, but even if it can be called the same side track, the record shows that the car was not taken to the premises of the fence company but was unloaded at another point many rods from there, and taken to another building by Mr. Keefus to whom they were sold by Tobin & Co.

It is further contended that the fact that the brick were sold to Mr. Keefus, who was in the employ of the fence company, was notice to that company that these brick were furnished for the factory. If it could be said that notice to the agent was notice to the principal, which we do not say, the evidence fails to show any bad faith on the part of Keefus, or even that he knew of the representation made by Tobin & Co. to the brick company. Having reached the conclusion that the last car load of brick was not delivered to the landowner, nor upon the premises, we must hold that the notice of lien was filed too late.

The decree is reversed, and the bill dismissed, with costs of both courts.

Carpenter, C. J., and Montgomery, Ostrander, and Moore, JJ., concurred.


text:
    BROCKETT v. LEWIS.
    1 Assignments fob Benefit of Ceeditobs — Tbust—Bill to Enforce.
    A bill by a creditor of a partnership association against its assignee for benefit of creditors, and his assignees, praying an answer as to their management of the association’s property, and an accounting, is not a creditor’s bill, but a bill by a cestui que trust to compel a proper application of the trust property, and may be maintained by the complainant creditor though he is not a judgment creditor.
    2. Same — Equity—Jurisdiction—Adequate Remedy at Law.
    The claim that there is an adequate remedy at law in such a case is untenable, as a court of law has no jurisdiction to compel the execution of a trust.
    3. Same — Bill—Allegations—Debtor’s Insolvency.
    That the bill does not allege the debtor’s insolvency is immaterial, since the right to create trusts, and to enforce them, is not limited to cases where the assignor is insolvent, and any one may make a valid trust, and any cestui que trust may ask the enforcement of such a trust.
    4. Same — Parties—Debtor.
    It being the apparent purpose of the bill to bind the debtor as to the amount of its indebtedness to the complainant to be paid out of the trust fund, the debtor is a proper, and perhaps a necessary, party to the suit.
    Appeal from Calhoun; Hopkins, J.
    Submitted April 20, 1906.
    (Docket No. 109.)
    Decided July 3, 1906.
    Bill by Lucius B. Brockett, Frank M. Brockett, and Benjamin D. Brockett, copartners as L. B. Brockett & Sons, the Chas. A. Strelinger Company, and Joseph T. Ryerson & Son against Harry P. Lewis, individually and as trustee, Morgan M. Lewis, and Syra E. Lewis, to enforce a trust and for an accounting. From an order sustaining demurrers to the bill, complainants appeal.
    Reversed.

      Stewart & Sabin, for complainants.

      Bernard J. Onen, for defendants.
   Hooker, J.

The complainant’s bill alleges:

1. That they are creditors of the Michigan Consolidated Boat Company, Limited, a partnership association, organized and doing business at Battle .Creek, under the laws of this State.

2. In 1903 the stockholders or board of managers of the aforesaid company assigned all of its property, and turned over its books of account, to Harry P. Lewis, upon his agreement to conduct its business and from the profits pay its obligations to the complainants and other creditors of the company, and after such payment return to the company the property assigned.

3. That at the time this assignment was made the company was indebted to complainants in several sums, therein stated, and that no portion of the same has been paid.

4. That in carrying out the agreement Lewis called a meeting of the creditors and stockholders on December 4, 1903.

5. That complainants attended said meeting, when the situation was stated by Lewis, who told complainants that he was to conduct the business of making boats, and, after the expense of manufacturing should be taken therefrom, the money received from the sale of boats would be used by him in paying the debts aforesaid, and that he was to act as trustee for the benefit of the creditors, as well as the stockholders.

6. That said Lewis has since refused to pay complainants anything, or to account or make a statement of the affairs of the company.

7. That complainants have no knowledge, nor have they any means of ascertaining, what business has been done, or money received or paid by the trustee, but believe that he has received some profits, to a share of which they are entitled.

8. That Harry P. Lewis is a member of the firm of M. M. Lewis & Sons, a copartnership comprising the defendants ; that they have taken over the business of the Michigan Consolidated Boat Company, and are conducting it as. their own, and not for Harry P. Lewis as trustee.

The bill prays:

(a) An answer as to the conduct of said business by the defendants; (b) an accounting; (c) a decree that defendants account to said creditors; (d) production of the books of M. M. Lewis & Sons and Harry P. Lewis, etc.; (e) a decree for payment of such amounts as shall be found due them; (f) general relief.

Demurrers were filed and sustained, and the bill dismissed, with costs. The complainants have appealed.

In sustaining the demurrer and unconditionally dismissing the bill, the learned circuit judge rested his decision upon the rule that a creditors’ bill lies only in favor of a judgment creditor. This bill is not a creditors’bill. It is filed by cestui que trust against a trustee and his privies to compel a proper application of trust property, which, according to the allegations of the bill (admitted by the demurrer), has been placed in the hands of the trustee, for the creditor’s benefit. Perry on Trusts, §§ 15, 346, 593, 594, 595. In such cases equity has jurisdiction to enforce the execution of the trust. Id. The case of Miller v. Davidson, 3 Gilman (Ill.), 518, is in point, as is that of Russell v. Clark’s Ex’rs, 7 Cranch (U. S.), 87. The cases of Jenks v. Horton, 114 Mich. 50, and McKee v. Garbage Co., 140 Mich. 497, are not in point. Those are cases where it was sought to subject equitable interests of a debtor to the payment of complainant’s claim by setting ■aside conveyances. Here the conveyance is not attacked, but is relied on as creating an interest in the property conveyed, and the court is asked to compel its application to the purposes for which it was conveyed. The same distinction may be discerned in the New York case of Adee v. Bigler, 81 N. Y. 349, a case which counsel for the appellee says “ seems to be on all fours with the case at bar.”

In the brief, counsel for the appellees says that the decree should be affirmed for three reasons, viz.:

“1. That the complainants have a plain, complete, and adequate remedy at law.

“ 2. That complainants are not entitled to the enforcement of the trust agreement, because of their failure to make the alleged debtor a party to the suit.

“3. That the complainants are not judgment creditors.”

We have disposed of the last, and with it the first must fall, for the reason that it is equally manifest that a court of law has not jurisdiction to compel the execution of this alleged trust. In this connection we may deal with the suggestion that the bill fails to allege the insolvency of the boat company. The right to create trusts, or to enforce them, is not limited to cases where the assignor is insolvent. Any one may make a valid trust, and any cestui que trust may ask the enforcement of such a trust.

Should the bill have made the boat company a party ? Counsel asserts that the demurrer does not admit that the complainants are creditors of the boat company, though he has not stated why the allegations to that effect should not be taken as true so far as the defendants are concerned. We think, however, that the boat company was a proper, perhaps a necessary, party, and that it is advisable that it be joined as a party defendant. It is plain that the defendants are interested in having the boat company bound by any adjudication upon the claims to be paid from the trust fund. They have raised .the question, and we are of the opinion that the bill should be amended and the boat company brought in as a defendant. Had the court disposed of the demurrer upon this ground, it is probable that the bill would not have been dismissed, but an amendment would have been required. Palmer v. Pick, 12 Mich. 414; Turner v. Hart, 71 Mich. 128; Reed v. Wessel, 7 Mich. 139; Holcomb v. Mosher, 50 Mich. 252. It was dismissed for the reason that the complainants were not alleged to be judgment creditors. In this the court erred.

The decree is reversed, and the demurrer is overruled, with the costs of this court; the complainant bóing required to amend the bill by making the boat company a party, and bringing it in by proper process, in such manner and within such time as the circuit court in chancery shall by its order direct, under the rules and practice of the court.

Carpenter, O. J., and Montgomery, Ostrander, and Moore, JJ., concurred.


author: Ostrander, J.

text:
    HOFFMAN v. FLINT LAND CO.
    1. Taxation — Tax Titles — Bill to Set Aside — Judgment—Collateral Attack.
    A bill to set aside certain, tax deeds as constituting a cloud on. complainant’s title, alleging ownership of the lands in controversy, that they were delinquent for the taxes of various years, that the lien of the State was attempted to be foreclosed and decrees entered, and that the decrees so entered were irregular and void for certain.reasons set forth, constitutes a collateral attack upon the decrees of a court of chancery which had jurisdiction of the subject matter and parties, which complainant cannot make, though he acquired title to the lands subsequent to the entry of the decrees.
    2. Same — Decrees—Entry—Vacation—Validity.'
    Where court opened on the first day of the term, February 4th, and the petition of the auditor general to foreclose the State’s lien for taxes on certain lands was presented on that day and taken under advisement, and on February 5th it was ordered that the petition be granted and that a decree be made for the sale of the lands, and court then adjourned until March 3d for filing objections to the petition, on which day, no objections having been filed, and the judge being absent, court was adjourned without day, and the decree recites that it was made March 3d, and it was actually filed March 7th, the decree is not void as being made in vacation, nor because no notice of its entry was given to the defendants.
    Appeal from Oscoda; Connine, J.
    Submitted April 20, 1906.
    (Docket No. 105.)
    Decided July 3, 1906.

      Bill by Frank Hoffman against .the Flint Land Company, Limited, and Perry F. Powers, auditor general, to set aside the sale of land for taxes. From a decree dismissing the bill, complainant appeals.
    Affirmed.

      >Cyrus A. Hovey, for complainant.

      McFctrlan & Wilson, for defendants.
   Ostrander, J.

The opinion of the circuit judge states "briefly and clearly the case presented in the court below, and is here repeated:

“ This is an original bill filed to set aside tax titles held by defendant for the years 1895, 1896, 1897, and 1899 on the S. W. ^ of the S. E. J of section 16, town 26 N. of .range 2 E.

“ Complainant is the owner of the original title. He claims in his bill that each and all of the tax titles, are void, sets up the reasons therefor, and asks that they be .set aside.

“The defendant claims that its tax titles are valid.

“ The sale for taxes of 1897 was made to the State in May, 1900. The sale to the State for taxes of 1895, 1896, and 1899 was made in May, 1902.

“ Taxes of 1897.

“ The first ground of invalidity, relied upon by the complainant as to this sale, is that the report of sale by the county treasurer was not filed and not kept filed.

“The proofs show that when the annual sales by the ■county treasurer were closed, the deputy treasurer made ■out and signed four copies of report of sale in regular form, took them all to the county clerk, and had him indorse the filing on them; filed one with th'e clerk, attached one to the tax record, and forwarded two to the auditor general. At the trial one copy of the report of sale was found attached to the tax record, and-bore the clerk’s indorsement of filing as of May 19, 1900. No report of sale could be found in the files or in the clerk’s office at the time of the trial, and there was no minute in the calendar of one ever having been filed. A minute made by the clerk in a book called the “ Chancery Record ” showed that the report of ■sale was filed with the clerk on May 19, 1900. The present clerk recalled that there was a report of sale once ■on file.

“ I think it must be found from the proofs that a report of sale, regular in form, was seasonably made and filed with the county clerk, and that it has since been mislaid, or lost. On this showing the sale cannot be held void.. Hoffman v. Pack, Woods & Co., 123 Mich. 74.

“ It is next claimed that all the sales for all the years: are void for irregularities in the decrees; that the decrees were made and entered in vacation, and not made and entered in compliance with the statute. 3 Comp. Laws, §§ 10264, 10265.

“The proofs show, as to the tax of 1897, that the day-fixed for the hearing of the tax matter was February 6, 1900; that the court was in session on the 6th and 7th of February, 1900, and on the latter day adjourned sine die. The decree was made February 16, 1900, recites a session, of court February 7, 1900, and was filed February 17, 1900.

“ As to the taxes of 1895, 1896, and 1899, it appears-that the day fixed for the hearing of the tax matter was February 4, 1902, and that court was in session on the 4th and 5th and on March 3, 1902. The clerk’s journal shows the tax case submitted on February 5th and decree ordered; that adjournment was had to March 3d to enable landowners to file objections to taxes; no objections were filed; the decree was made March 7, 1902, and recites court in session March 3d. The court’s records for 1900 were enrolled March 17, 1900, and those for 1902 were enrolled April 15,1902.

“ Does this render the decree void ?

“ The tax law (1 Comp. Laws, § 3890) provides that in these tax proceedings the court proceedings shall, when no-other provision is made, follow the ordinary chancery practice.

“3 Comp. Laws, §§ 10264, 10265, provide that, in civil cases submitted to any circuit court in term time for decision, it shall be competent for the judge to transmit to the clerk or register, in vacation, his judgment, order, or decree in said cause; and that it shall be the duty of the clerk or register to enter in the proper record such judgment, order, or decree as of the last day of the preceding term, which judgment, order, or decree shall have the same force and effect as if rendered in term time. Notice of the entry of such judgment, order, or decree shall be given to the attorneys or parties by the clerk or register, and the time for appeal shall be computed from the time-the judgment, etc., is actually entered. 3 Comp. Laws, §§ 10264-10266.

“It is the practice, under this statute, for judges to sign, in vacation, decrees in cases submitted in term time, taken under advisement, and decided in vacation; and not only that, but to sign decrees in vacation, in cases that have been submitted and decided in open court, and perhaps where there has not been time after the decision to prepare a decree during the term.

“And I think this statute ought to be construed oO authorize the signing of decrees in vacation, both in cases submitted in term and decided in vacation, and in cases decided during the term, but where no decree has been made until vacation. In other words to give the judge authority to sign decrees in vacation generally, and in' all classes of cases.

‘ ‘ If this statute is held limited to cases that are submitted during term and decided in vacation, and held not to apply to the signing of decrees in vacation generally, it will destroy a convenient practice that has grown up under it, and run counter to the construction placed upon it by members of the bar in many important cases.

“ It must not be forgotten that this is not a proceeding in the tax cases themselves, nor one where complainant claims to have lost the right of appeal, by reason of not having notice of the decree. He never appeared in the original tax proceedings, but- his default was regularly taken therein. But this is a proceeding where complainant attacks the decrees collaterally on a technicality.

“For all that appears, he still has the statutory right to redeem from these tax sales.

“ The publication of the original tax petitions, list lands, and notice, gave the court jurisdiction, and, jurisdiction having once been acquired, it ought to be held to continue as against a technical objection to the decree, collaterally raised, such as this.'

“ The question being at most a doubtful one, it ought, in accordance with the best practice, to be solved in favor of the regularity and validity of the proceedings. The bill will be dismissed, with costs.”

The appellant presents in this court two main propositions: (1) That the practice pursued by him is proper;

(2) that there is no authority for the entry of a decree, in tax cases, in vacation — that the general chancery practice governs, according to which notice of the entry of the decree, if made in vacation, must be given by the register in chancery to the parties, their attorneys, or solicitors. 3 Comp. Laws, §§ 10264, 10265. It is said that Flint Land Co. v. Fochtman, 140 Mich. 341, is authority for the practice pursued. That was the case of an owner of land (by virtue of tax titles, it is true) who filed a bill to quiet his title against a mortgagee, who refused to disclaim or to discharge the mortgage. On demurrer, the bill was dismissed; the claim of defendants being that upon the face of the bill, which set out the title of the complainant, the defendant’s mortgage was not a cloud upon the title asserted — did not appear to be a hostile claim or assertion of a hostile interest.

In the case at bar, the bill of complaint avers ownership of the lands by complainant, that they were delinquent for the taxes of various years, that the lien of the State was attempted to be foreclosed and decrees were entered, that the decrees so entered were irregular and void for certain reasons set forth. The prayer is that the decrees be set aside, the complainant be permitted to pay the taxes to the county treasurer or auditor general, and the deeds of defendant be held to be a cloud upon the title of complainant- and canceled. This is a very different case from that set put in the opinion cited. It is a collateral attack upon decrees of a court of chancery, which court had jurisdiction of the subject-matter and the parties. It is true the complainant acquired his title to the premises after the decrees were made. This fact does not permit complainant to so attack the decrees in question. The importance of the fact may not require attention, but it is a fact that in the deed of the premises to complainant the covenant of warranty excepts “delinquent taxes and tax titles and claims arising therefrom.”

Were the decrees void ? The fault found with the decree of 1902 is that it was made in vacation, and that no notice of the entry thereof was given to interested parties. It appears that court opened on February 4th (the first day of the term), and that the petition of the auditor general •was presented and taken under advisement. On February 5th it was ordered that said petition be granted, and that decree be made for sale of said lands. Court then adjourned until March 3d for filing of further objections to said tax petition. Court opened March 3d, the circuit judge being absent, and the journal sets out an order to the effect that court having adjourned for the filing of further objections, and none having been filed, courtis adjourned without day. The decree recites that it was, made at the session of March 3d, and it was actually filed March 7th. The decree is not void. Upon its face, and in fact and in law, it is valid. The mere fact that the clerk did not enter it as of March 3d, the last day of the ■preceding term, does not make it a void decree; nor, if it is required in such cases* does the fact that notice of the entry of the decree was not given, or ordered to be given, render it void. If relief should be given to any one bound by the decree because of any irregularities in the entry thereof, or in failing to give notice, such relief must be sought by proceedings in the cause in which the decree was made.

It follows that the decree of the court below dismissing the bill must be affirmed, with costs to appellees.

Carpenter, C. J., and McAlvay, Montgomery, and Moore, JJ., concurred.


author: Blair, J.

text:
    PEOPLE v. FISHER.
    1. Criminal Law — Indeterminate Sentence — Statute—Application.
    Respondent having been convicted on December 13, 1904, of forging a deed on January 13, 1903, a sentence under the indeterminate sentence law of 1903, which took effect September 16, 1903, to imprisonment “not less than eight nor more than ten years,” is valid for the minimum period.
    2. Same — Record — Jurisdictional Facts — Arraignment and Plea.
    A record which states that respondent was arraigned, and, the information having been read to him, he stood mute, whereupon a plea of not guilty was entered by order of the court, sufficiently shows arraignment and plea, though there is no statement that he was requested to plead.
    3. Same — Presence of Respondent at Trial.
    A record affirmatively showing the respondent’s presence on the first day, and when the jury was impaneled and sworn, and when the judgment was rendered, is sufficient to sustain a. judgment of conviction.
    4. Same — Error—Assignments—Support in Record.
    An assignment of error that the court erred in sentencing B.. after his plea of nonidentity without issue having been joined by the prosecuting attorney cannot be considered, where the record on error does not disclose any plea of nonidentity, nor that any person by the name of B. was in any way connected with the proceeding.
    5. Same.
    An assignment of error, finding no support in the record, cannot be considered.
    6. Same — Witnesses—Objections—Record.
    An assignment of error in permitting the names of certain witnesses to be indorsed on the information, and permitting them to be sworn, cannot be considered in the absence of any showing in the record that they gave any testimony, since it cannot be presumed that, after objection, they testified or their testimony was material and unfavorable to respondent.

      Error to Calhoun; Hopkins, J.
    Submitted May 3, 1906.
    (Docket No. 152.)
    Decided July 3, 1906.
    Joseph Fisher was convicted of forgery and sentenced to imprisonment in the branch of the State prison at Marquette for not less than eight nor more than ten years.
    Affirmed as to minimum sentence.

      Jesse M. Hatch and Edward J. Dennison, for appellant.

      John E. Bird, Attorney General, and Joseph H Hooper, Prosecuting Attorney, for the people.
   Blair, J.

The respondent -was convicted, December 13, 1904, of forging a deed on January 13, 1903, and was thereupon sentenced, under the indeterminate sentence law of 1903, ‘ ‘ for a period of not less than eight nor more than ten years.” Respondent has removed the record to this court for review upon writ of error, assigning the following errors, viz.:

First. That said circuit judge erred in sentencing the said Joseph Fisher under'the provisions of Act No. 136 of the Public Acts of the State of Michigan of the year 1903, for a crime alleged to have been committed on January 13, 1903.

Second. The said circuit judge erred in pronouncing any sentence in said cause for the reason that the record fails to show that Joseph Fisher was arraigned and requested to plead to any information filed in said cause, because the record fails to show that Joseph Fisher was present during the trial and at the time the jury rendered the verdict.

‘ ‘ Third. The court erred in pronouncing sentence in said cause, for the reason that on the 6th, 7th, 8th, 9th, 12th, and 13th days of December, 1904, the record fails to show that any person was tried in the circuit court for the county of Calhoun.

“Fourth. The circuit court erred in sentencing John M. Beckman after his plea of nonidentity without issue having been joined by the prosecuting attorney.

Fifth. The court erred in sentencing John M. Beck-man for a crime committed by Joseph Fisher.

“Sixth. The court erred in permitting the indorsement of the names of George Brunner, Rose Brunner, and Belle M. Coleman on the information filed in said cause, against the objection and exception of respondent and his attorneys, and permitting them to be sworn.”

First. This assignment is disposed of by our previous decisions. The sentence was valid for the minimum period thereof. In re Lambrecht, 137 Mich. 450; In re Marion, 140 Mich. 219.

Second and Third. The record shows the following entry on November 21, 1904:

“ The People of the State of Michigan

v.

Joseph Fisher.

“ Joseph Fisher, the respondent in this cause, having been arraigned at the bar in open court, and the information having been read to him by Craig C. Miller, assistant prosecuting attorney, stood mute, whereupon a plea of not guilty was entered by order of the court.

“Joel C. Hopkins,

“ Circuit Judge.”

Also the following on December 5, 1904:

“ The People of the State of Michigan

v.

“Joseph Fisher.

“Joseph Fisher, the respondent in this cause, being present in court and trial ordered. Thereupon a jury was called and examined in part.

“Joel C. Hopkins,

“Circuit Judge.”

And, upon December 6th, the following:

“ The People of the State of Michigan

v.

“Joseph Fisher.

“ In this cause the jury heretofore called were more fully examined, and as accepted were as follows, to wit: Andrew Harrigan, Nelson Palmiter, Dwight Peters, Ciarence Castle, John Finley, Charles Bull, John F. Hartung, Wm. E. Ansterburg, William Henson, Frederick May, Will H. Ives, and Warren Archer, who were duly impaneled, tried and sworn, well and truly to try, and true deliverance made between the people of this State ana the prisoner at the bar whom they should have in charge, according to the evidence and the laws of this State, sat together and heard the proofs and allegations of the parties in part.”

The record shows the acceptance, impaneling, and swearing of the jury upon December 6th in the presence of “the prisoner at the bar” and the progress of the trial from day to day thereafter to the 13th of December, but does not affirmatively allege the presence of the respondent. On the 13th of December, the following entry appears:

“The People of the State of Michigan

v.

“Joseph Fisher.

“Joseph Fisher, thé respondent in this cause, having been, by the verdict of the jury, duly convicted of the crime of forgery, as appears by the record thereof, and having been, upon motion of Joseph L. Hooper, prosecuting attorney, brought to the bar for sentence, and having been.there asked if he had anything to say why judgment should not be pronounced against him, and alleging no good reason to the contrary, therefore, be it ordered and adjudged by the court now here that the said Joseph Fisher be and remain confined in the branch State prison, at Marquette, for a period of not less than eight years nor more than ten years from and including this day.

“Joel C. Hopkins,

“ Circuit Judge.”

This record clearly shows the arraignment of the respondent, and that the information was read to him. The recital that he stood mute clearly imports that he was requested to plead and declined to do so, “whereupon a plea of not guilty was entered by the court.” There was no showing of this kind in Grigg v. People, 31 Mich. 471. The record also affirmatively shows the respondent’s presence on the first day, and when the jury was impaneled and sworn, and when the judgment was rendered, and is sufficient to sustain the judgment. Grimm v. People, 14 Mich. 300; People v. Ormsby, 48 Mich. 494.

Fourth. The record does not disclose that any person by the name of John M. Beckman was in any way connected with the proceedings, nor does it show any plea of nonidentity.

Fifth. There is no foundation in the record for this assignment.

Sixth. There is no testimony set forth in the bill of exceptions, and nothing therein or in the record, to show that the witnesses referred to gave any testimony whatever. The bill of exceptions merely shows that their names were indorsed on the information against respondent’s objection, and that:

“Said witnesses, Belle M. Coleman, George and Rosa Brunner, were sworn as witnesses for the people in said cause, and, when sworn, the objection 'above made was renewed.”

We cannot presume that, after the objection, the witnesses testified or that their testimony was material and unfavorable to respondent. In the state of the record, we cannot consider this assignment.

The judgment is affirmed for the minimum term of eight years.

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


text:
    PEOPLE v. HAXER.
    'CJriminal Law — Homicide — Assault with Intent to Kill — Evidence — Intent — Surrounding Circumstances — Other Offenses.
    Where, in a prosecution for assault with intent to kill and murder, the defense is temporary insanity produced by indulgence in intoxicating liquors, testimony showing that when respondent was arrested, an hour after the assault, he resisted, and shot the officers, is admissible to show consciousness of guilt; and such evidence, together with that showing that he bought the revolver, with which the assault was committed and the subsequent shooting done, a half hour before the assault, is admissible as showing the intent charged.
    Error to recorder’s court of Detroit; Phelan, J.
    Submitted May 3, 1906.
    (Docket No. 147.)
    Decided July 3, 1906.
    Louis Haxer was convicted of an assault with intent to kill, and sentenced to imprisonment for life in the State prison at Jackson.
    Affirmed.

      Matthew 8. Gainey, for appellant.

      Ormond F. Hunt, Prosecuting Attorney, and Walter M. Trevor, Assistant Prosecuting Attorney, for the people.
   Ostrander, J.

Respondent, on December 3, 1904, at the city of Detroit, about 6 o’clock in the afternoon, purchased a revolver and some cartridges, went to the place where his wife, from whom he was separated, was employed, reaching that place at about 7 o’clock, and offered to escort her home. His company being refused, he shot at her across the counter. The bullet did not strike her. ¡She ran into an adjoining room, whereupon respondent . shot her sister in tho arm, pursued his wife into the adjoining apartment, and shot a Mrs. Schneider, who he supposed was his wife, in the chin, again in the wrist, and again in the arm. He then left the house. He was arrested some time later at a saloon, distant more than a mile from the place of the shooting. When the arrest was attempted, he shot an officer and a man who assisted in making the arrest, and shot at, but missed, another officer. He was charged with assault with intent to kill and murder his wife, and was convicted. A motion for a new trial was made and overruled.

It is the theory of respondent’s counsel that his client was, upon the occasion set out, temporarily insane as the result of using intoxicating liquors. Defendant was a witness, and testified in substance that he was in such a state of intoxication on the night in question that he did not remember any of the occurrences given in evidence by the prosecution. It is contended for respondent that it was error to permit the introduction of testimony to show the conduct and acts of respondent at the time the arrest was made. The court instructed the jury that in determining the fact of guilt or innocence they had the right “ to take into consideration the conduct of this defendant from the time that he possessed himself of this deadly weapon up to the time that he was disarmed.” In his opening statement, the prosecuting attorney said that he proposed to show the events (and he stated what they were) before and after the particular act of shooting, “to show the murderous disposition of this man at that time, and that he had murder in his heart.” It appears, and the testimony is not disputed, that respondent went from the bakery, where the first shooting was done, directly to Noten’s saloon.' Noten testified that respondent entered his place about 8 o’clock, “ something like that,” was there about 15 minutes, during which time he had, and paid for, a drink, when the officers arrived. He pointed out respondent to the officers, and when they attempted to arrest respondent he resisted in the manner already stated.

It has generally been supposed that the fact that one accused of crime resisted arrest may be shown by the prosecution (Hall v. People, 39 Mich. 717), and be considered by the jury with all other facts and circumstances attending the commission of the alleged crime. Like flight and concealment, such conduct has been admitted as evidence of consciousness of guilt. The fact of resistance was not the less proper evidence because it took one form rather than another.

It is urged, however, that the intent with which the assault was made upon the wife is the gist of the offense charged, and that the testimony of the subsequent shooting had a tendency to prove, and the trial judge permitted it to be used to prove, the offense charged, including, of course, the intent with which the assault upon the wife was committed; that it amounted to proving the offense charged by evidence of other distinct and subsequent offenses. Intent is a mental attitude made known by acts.

“ The willful use of a deadly weapon without excuse or provocation, in such a manner as to imperil life, is almost universally recognized as showing a felonious intent.” Wellar v. People, 30 Mich. 16, 20.

The presumption is not conclusive, and the intent charged must be proven beyond a reasonable doubt. Given the conduct of respondent for a half hour before and an hour after he shot at his wife, we have some reasonable basis for determining his intentan assaulting her. Beginning with the purchase of the revolver, the events to the time when respondent was disarmed are intimately connected and associated, and evidence of the series and the sequence of these events was proper to be considered by the jury in determining the state of mind of the accused. It is not the case of proving the crime charged by evidence that another crime was subseqently committed, but of proving the purpose and intent of respondent by his conduct before, at the time of, and immediately after the alleged offense. We should, perhaps, admit the contention of counsel that during the period from the first to _the last shooting the state of mind of respondent might have changed, that his mental attitude with respect to his wife might be different from that assumed towards the officers who accomplished his arrest, that he might have drunk more liquor, and that he was confronted with a different set of circumstances at the different times. It does not follow that the facts should not, all of them, have been submitted to the jury.

What has been said disposes of a number of the assignments of error. The others which are relied upon have been examined, and require no discussion. They are overruled.

The judgment is affirmed.

McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.


text:
    PEOPLE v. LAMBERT.
    1. Criminal Law — Accused as Witness — Cross-Examination.
    Where a person, on trial for crime is a witness in his own defense, no harm results from asking him on cross-examination ' if this is the first time he has ever been in trouble, where he answers in the negative, and, in response to further questions, gives the circumstances of his former arrests and convictions.
    2. Same — Failure to Object.
    Complaint cannot be urged against questions asked of accused on cross-examination which were within a rule which counsel for accused suggested, and which were not objected to.
    3. Same — Trial—Rape—Argument of Counsel.
    In a trial for rape, reference to the respondent by the prosecuting attorney as “this thing” and “this brute,” while undignified, is not reversible misconduct, where the uncontradicted testimony indicates that, whether the intercourse was or was not consented to, the act itself was accomplished with such force, and the parts were left in such condition, that pain accompanied the coition, and respondent himself gives testimony which, in effect, is a self-characterization, little, if any, more favorable than that given to him by the prosecuting attorney.
    4. Rape — Trial—Charge.
    In a prosecution for rape it is not error to refuse a requested instruction that, in respect to prosecutrix’s resistance, the jury should consider the relative size and strength of the parties, where, though prosecutrix’s weight is shown to be about 125 pounds, there is nothing to show their relative size or strength, and the jury are fully instructed as to the necessity of resistance to the uttermost, and that, irrespective of the force previously employed, if consent was in fact given, though never so reluctantly or tardily, the offense would not be rape.
    5. Same.
    There is no merit in an objection to a phrase of the charge, “ The people should be protected against such outrages if they have been perpetrated,” where the sentence continues, “ Every citizen should be protected against being convicted of such an outrage if he is not guilty of it,” etc.
    Error to Eaton; Smith, J.
    Submitted May 3, 1906.
    (Docket No. 154.)
    Decided July 3, 1906.
    Bert Lambert was convicted of rape and sentenced to imprisonment for life in the State prison at Jackson.
    Affirmed.

      Frank A. Dean, for appellant.

      Elmer N. Peters, Prosecuting Attorney, for the people.
   Ostrander, J.

Respondent was convicted of the crime of rape and sentenced to prison for life. The prosecutrix was 16 years of age on May 5, 1904. The act of intercourse, which took place November 19, 1904, was admitted. The only disputed question was whether' it was accomplished by force and against the will of the prosecutrix. Upon this subject there was testimony which required the case to be submitted to the jury. The assignments of error which are relied upon relate:

(1) To alleged improper cross-examination of respondent ; (2) to alleged intemperate language of the prosecuting attorney; (8) to the refusal of the court to give to the jury a requested instruction; (4) to alleged prejudicial language of the trial judge.

1. On the cross-examination of the respondent, the following occurred:

“ Q. Is this the first time you have ever been in any trouble ?

“A. No.

Mr. Nichols: I object to it as incompetent. I ask that the question be stricken out.

“The Court: I don’t know what you expect to follow it up with. You can introduce the record as you do any record of any witness to test his credibility.

“Mr. Peters: That is the purpose.

“The Court: It is for no other purpose except to test his credibility. The answer may stand.

“Mr. Nichols: Exception.

Q. Have you been arrested before ?

“ Mr. Nichols: I object to it as irrelevant, incompetent, immaterial, and not proper.

The Court: Answer. I will simply say to you, gentlemen [addressing the jury], this is to test the witness’s credibility. He has taken the witness stand. He is like any witness. He can be inquired about those matters. Let the record show this is all taken under objection and exception.

“Mr. Nichols: You cannot show in testing the witness’s credibility the fact of his having been arrested. If he has been convicted of any offense, that is to show that, but to ask if he has been arrested, I will submit that is. not proper.

‘ ‘ The Court: That is true.

“Mr. Nichols: That is the reason of my objection.

Q. Were you ever convicted of any offense?

“A. Yes, sir. Once for riding a bicycle on a walk.

Q. Any other offense ?

“A. Yes; I guess one time at the Baird opera house, when I worked there. Mr. Baird had some copper down cellar. There was some wire there that belonged to the city, and we took this copper he had there for onr pay, and we thought this other city wire went along with it. We went and sold it, and they came after the wire and made a charge against us for larceny. I pleaded guilty to that. That is all I could do. I was convicted of another offense, larceny. Charged with larceny. I pleaded guilty. Was convicted at another time for fighting; pleaded guilty then. Have not been convicted of any ■other crime.

Q. Are you positive that three times is all.

‘ ‘ The Court: He has testified to four times, including the bicycle.

“Mr. Peters: Yes; but I wouldn’t regard the bicycle matter as very serious..

Q. Are you in the habit of having sexual intercourse with women other than your wife ?

“Mr. Nichols: I object to it as incompetent, irrelevant, :and immaterial.

The Court: I think I will sustain that objection.”

It is pointed out in the brief that, while the prosecuting ■attorney claimed the testimony was called for to test the •credibility of the witness, the use made of it is evidenced by the argument made to the jury, in which the following is some of the language used. Commenting first upon the testimony of the prosecutrix, and then upon that given by the respondent, the prosecuting attorney said:

“ If ever I saw a picture of girlhood innocence, an innocent country girl, so to speak, not innocent, perhaps, that is not the right expression to use, but you remember when my brother put any question to her in any other language than she is capable of using, the language that •educated men use, she was ‘ stumped.’ She says, ‘ What •do you mean? ’ He had to address her in plain talk that working people' use. She didn’t understand a word' of more than three syllables hardly, but when a word was put to her in tho language she was acquainted with or a •question, so that she understood it, the answer came right ■straight, fair, and square, examined by a man of 25 years experience, a skilled lawyer and one of the best criminal lawyers in the county of Ingham; and yet he could not twist her or work her out of the true story not one particle. She stood that cross-examination marvelously. I want to say to you there is one class of people in the world that can stand such a cross-examination, and that is the party who is telling the truth. Let them get away from it and such a man as Judge Nichols will trip them every time, unless it be such a man as this man, who has been in the criminal courts, tried and convicted, who has been through the mill, who stands ready if convicted to go to State’s prison. That man lying over here in jail will sit down and he will commit to memory a story the devil himself couldn’t break up as far as that is concerned, and yet what about it ?

Mr. Nichols: Exception.”

It is apparent that no harm was done in accepting the-answer to the first question. As to the others which were answered, they were within a rule which counsel for respondent himself suggested and were not objected to.

%. In his opening argument to the jury, the prosecuting attorney used the following language, to which exceptions were taken:

“We have here a charge made by a young girl just past the age of 16 in which she charges this man here— this thing here—

“Mr. Nichols (interrupting): I take an exception to that remark.

“Mr. Peters (continuing): — with having with force and against her will violated her person on the 19th day of last November. * * * And yet that brute goes on that stand and tries to make you believe he left that woman in that condition and she kissed him while he did it. * * * A man that will do what that man did there is no place on earth that is safe for him except behind the prison bars, and I hope you will strengthen the thoughts in me that within three days that man will be where never again will he be given the least particle of an. opportunity to ravish another innocent girl.”

The uncontradicted testimony of physicians, added to the testimony of the respondent, indicated strongly that, whether the intercourse was or was not consented to, the act itself was accomplished with such force and the parts were left in such a condition that pain accompanied the coition. Respondent gave other testimony which in effect was a self-characterization, little, if any, more favorable than that given to him by the prosecuting attorney. It would have been more dignified and more in keeping with official character if the prosecuting attorney had refrained from using some of the words which he did use. It cannot be said that the testimony, including that of respondent, did not in fact present respondent in the character ascribed to him. I think the case should not be reversed because of improper conduct of the prosecuting attorney.

3. The court was requested to say to the jury:

“ It is not only your province, but your duty, in considering the question as to whether the complaining witness used all resistance possible for her to use to prevent the consummation of the act of intercourse, to take into consideration the relative size and strength of the complaining witness and the respondent.”

The prosecutrix had testified that she thought she weighed 125 pounds without her wraps, but there is no testimony showing the relative size or probable strength of the parties. The court did instruct the jury that:

“To convict respondent, you must be satisfied beyond a reasonable doubt, which I will explain to you later on, that the intercourse was had by force and against the will of Miss Prever, and that she made the utmost resistance on her part to defend herself, and unless so proven you should acquit the respondent. Should you find from the proof in the case that for a time she objected, yet, if at the time the act of intercourse occurred, she consented thereto, then it would not be rape, no matter how reluctantly or tardily consent was given or how much force had been previously employed, if in the act itself she consented, then it would not be rape.

‘ ‘ Miss Prever claims she had been resisting for a long time and when the act was committed she was still resisting to the utmost, and submitted to it because she was overpowered; that she never consented; that she was taken out of the automobile by force and thrown on the ground and choked into submission. To this intercourse the respondent claims she finally consented, got out of the automobile willingly, and submitted to his sexual embraces without resistance.

“ Now gentlemen, it is for you to decide — it is for you to say where the truth is. He claims she consented. If she did, this offense for which he is on trial is not made out and respondent in such case should be acquitted. She claims she resisted to the utmost, and if she did and only ceased when overpowered by force or from not being able from want of strength to resist him any longer, then the offense is made out and he should be convicted.”

In view of this instruction, it was not error to refuse to give the charge preferred.'

4. The court further said to the jury:

“ It is for you as conservators of the peace and the protectors of citizens to say in this case by your verdict where the truth is. The people should be protected against such outrages if they have been perpetrated.”

It is said that this was harmful to respondent. The last phrase above quoted is the first phrase of a sentence which concludes:

“Every citizen should be protected against being convicted of such an outrage if he is not guilty of it; but jurors, as well as courts, should .do their duty under their oaths in a case of this kind, and should take the testimony as it comes to them and comes into court and consider it as seriously and honestly, without fear and without impartiality, weigh where the truth is, no matter where it falls. That is what I want you to do in this case, gentlemen.”

The objection made is without merit.

We have examined the record and briefs with great care, because the charge is a serious one, and the punishment inflicted is the extreme penalty of the law. It is made evident by the brief of counsel for respondent that it is hoped this court, after a survey of the entire record, will reach the conclusion that the guilt 'of respondent is doubtful and afford the relief of a new trial. The story which the prosecutrix told is both strong and weak, as evidence, both probable and improbable. The jury evidently believed her. We cannot say that her story was so improbable that a miscarriage of justice is plainly indicated.

The judgment is affirmed.

McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.


text:
    PEOPLE v. LONG.
    Criminal Law — Evidence—Tampering with Witnesses — Prejudice.
    On a prosecution for rape, it is error to admit testimony that since the case was begun a reward has been offered witness to stop the prosecution, there being no offer to prove that the offer was made with respondent’s approval or acquiescence.
    Error to Oceana; Russell, J.
    Submitted May 3, 1906.
    (Docket No. 156.)
    Decided July 3, 1906.
    Sidney Long was convicted of rape.
    Reversed.

      W. E. Osmun and Nims, Hoyt, Erwin, Sessions & Fanderwerp, for appellant.

      John E. Bird, Attorney General, and Wallace Foote, Prosecuting Attorney, for the people.
   Hooker, J.

The defendant was convicted of rape. The cause being brought here by writ of error, we infer that he was sentenced, though the printed record fails to show it. t

Upon the trial the following occurred:

Q. Since this case has been commenced, has any person come to you for the purpose of trying to get you to stop the case by the offer of a reward to you ?

“A. Yes, sir.

“ Q. Did you say that he came in the interest of Sid Dong ?

“Mr. Sessions: I object to it and move to strike out this other testimony as incompetent.

“The Court: I will sustain the objection as to this, but I will overrule the application to strike it out.

Mr. Sessions: Give me an exception.”

The prosecution should not have made this proof, unless able to offer some testimony tending to show that the defendant procured the offer to be made, or that it was made with his approval or acquiescence. We find nothing to indicate that he had any such evidence, so the matter rested upon the bare statement that a reward had been offered, etc. It was testimony sure to injure the defendant, and we must treat it as ground for reversal.

We think it unnecessary to discuss other questions further than to say that in the absence of a request, and under the testimony in this case, it should not be reversed for the failure to submit the questions relating to lower-grades of the offense charged.

The judgment is reversed, and a new trial ordered.

MoAlvay, Blair, Montgomery, and Ostrander,, JJ., concurred.


author: Montgomery, J.

text:
    PEOPLE v. WRIGHT.
    1. Indictment and Information — Assault, and Battery — Sufficiency.
    An information in the language of the statute charging an assault “with intent then and there to commit the crime of murder” is sufficient and will support a conviction of assault with intent to do great bodily harm less than the crime of murder, though there is no averment of willfulness or malice aforethought.
    2. Homicide — Self-Defense—Right to Act on Appearances.
    In a prosecution for assault with intent to kill, committed with, a pistol, where respondent claims that the person assaulted was advancing on him with a drawn knife, an instruction which makes the question of self-defense turn wholly upon the question whether the person assaulted -had a knife, and ignores the rule that respondent had the right to act upon the circumstances as they reasonably appeared to him, is im- - proper.

      8. Criminal Law — Appeal — Record — Certificate of Judge— Construction!
    Where error is assigned to the ignoring in the charge of respondent’s theory, the certificate of the judge that he heard no such argument, that counsel’s argument was not taken by the stenographer, and that that theory of defense was not presented to him on the trial, by request or otherwise, does not negative the fact that such argument was made, nor show that respondent waived any defense that the evidence left open to him.
    Exceptions before judgment from St. Clair; Law, J.
    Submitted May 3, 1906.
    (Docket No. 153.)
    Decided July 3, 1906.
    James Wright was convicted of an assault with intent to do great bodily harm less than the crime of murder.
    Reversed.

      Cady & Crandall, for appellant.

      Alex. Moore, Prosecuting Attorney, for the people.
   Montgomery, J.

The respondent was convicted of the offense of assault with intent to do great bodily harm less than the crime of murder. The case comes before us on exceptions before judgment.

The information charged an assault on James A. Penny in admittedly sufficient detail, and added, “with intent then and there to commit the crime of murder.” It was contended that under this information the respondent could properly be convicted of no greater offense than assault, for the reason that the information, in so far as it attempts to charge the intent to commit the aggravated offense, fails to aver willfulness or malice aforethought. The obj'ection is without force. The information followed the language of the statute, and this is sufficient. Rice v. People, 15 Mich. 9; People v. Taylor, 96 Mich. 576 (21 L. R. A. 287).

The circumstances of the assault as detailed by the people’s witnesses were as follows: On June 25, 1905, respondent, in company with one Rosetta Tisman, called at the home of James A. Penny, in the city of Port Huron, about the hour of 6 o’clock in the evening. The claimed purpose of the visit of respondent to the home of Penny was to obtain possession of a watch which had been by respondent left with one John Pariso, son-in-law of Penny. Some months prior to the date in question Pariso had delivered possession of the watch to Penny, and at some time between the date Pariso obtained the watch and June 25th the watch had been broken and Penny had paid the bill for having the watch repaired, amounting to $1. At the time respondent let Pariso have this watch he obtained a loan on the same of 25 cents. When respondent made a demand for the watch upon James Penny, he (Penny) at first informed Wright that he had #1.25 against it, but later in the conversation Penny tendered the watch to the respondent without the repayment of any money whatsoever. Before any controversy arose between the respondent and Penny, Rosetta Tisman stated to Penny that the watch in controversy was one which belonged to her husband, and that Penny had no right thereto. To this Penny replied that, if the watch belonged to her husband, respondent had no right to pawn it. Rosetta Tisman then turned to respondent and said, “ Jim, did you hear him swearing at me ?” Penny denied having sworn at Rosetta Tisman, and stated that, if he had done so, he was sorry for it. At this respondent handed his overcoat and umbrella to Rosetta Tisman, and started toward James Penny. Penny then began backing up away from respondent, who followed him up. Rosetta Tisman then said: “Look out! He is drawing a knife.” At this respondent drew a gun out of his pocket and said: “You old son of a bitch, you would cut me, would you ?” When respondent started toward Penny, he was away a distance of from 10 to 12 feet. The revolver was fired off, inflicting a wound to Penny’s scalp.

Respondent testified that he saw Penny take out of his pocket a knife, open it, and attempt to strike him (respondent) with it. Penny testified that he had no knife in his hand at any time.

The circuit judge charged the jury as follows:

“ The respondent does not deny that he fired a revolver shot which struck James A. Penny, but admits that he did so, and claims that he did so in self-defense. He claims that James A. Penny assaulted him with a knife, and that he (the respondent) only took such defensive and aggressive measures towards James A. Penny that at the time and under the circumstances he considered necessary in order to protect himself from injury. If you find that James A. Penny did assault the respondent with a knife, and if you further find that the respondent, under all the circumstances of the case as they appeared to him at the time, honestly believed that he was in danger of his life or of great bodily harm, and honestly believing that it was necessary for him to do what the evidence shows he did do in order to save himself from such apparent or threatened danger, then you should find him not guilty of any of the charges here made against him. However, if James A. Penny did not assault the respondent with a knife, then the defense here made of self-defense fails; for it is not claimed that Mr. Penny did any other act to respondent which justified the use of the revolver as the respondent did use it, except to assault the respondent with a knife. Hence it becomes an important matter for you to determine whether or not James A. Penny assaulted the respondent with a knife on the occasion in question. In determining this question of self-defense, you should take into consideration the question of whether James A. Penny or the respondent was the aggressor, so far as an assault made by either on the other is concerned.

Mr. Cady: I think the court should instruct the jury that it was as it occurred to the defendant there.

The Court: I think I have covered it thoroughly.”

Error is assigned on that portion of the charge which in effect withdraws from the consideration of the jury the defense of self-defense in case the jury should find that Penny had no knife. The record shows that the respondent’s counsel contended to the jury that, even though Mr. Penny did not have a knife, if the circumstances were such that the respondent had reason to believe that he did have a knife, and that respondent was in fear of his life or great bodily harm, he was justified in using such force in self-defense as appeared necessary at the time.

The circuit judge certifies that he heard no such argument, and that counsel’s argument was not taken down-by the stenographer, and that that theory of defense was not presented to the circuit judge on the trial, by request to charge or otherwise. The certificate does not negative the fact that such argument was made to the jury. At the most it cannot be said that respondent waived any defense which the testimony left him open to make. The ■charge was erroneous in making the question of self-defense turn wholly upon the question of whether Penny had a knife. The rule that the respondent had the right to act upon the circumstances as they reasonably appeared to him was recognized in one portion of the charge, but this portion of the charge ignores this rule. See Hurd v. People, 25 Mich. 405; People v. Lilly, 38 Mich. 270.

We think the rulings admitting testimony as to the relations between Rosetta Tisman and respondent, and permitting inquiry into the past life of respondent, were within the discretion of the trial judge.

For the error pointed out, the conviction is set aside, and a new trial ordered.

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


text:
    SIMMONS v. BOARD OF SUPERVISORS OF ALCONA COUNTY.
    .Appeal and Error — Chancery Appeals — Orders Review able— Preliminary Injunction.
    No appeal lies from an order modifying a preliminary injunction, nor from an order refusing a motion to set the order of modification aside.
    Appeal from Alcona; Connine, J.
    Submitted May 2, 1906.
    (Docket No. 141.)
    Decided July 3, 1906.
    Bill by James Simmons and others against the board of supervisors of Alcona county and others to restrain the reconstruction of a county building. From an order modifying a preliminary injunction, and from an order denying a motion to set aside such order, complainants appeal.
    Dismissed.

      L. 6r. Dafoe, for complainants.

      O. H. Smith, Prosecuting Attorney, for defendants.
   Montgomery, J.

The complainants filed a bill of complaint praying an injunction restraining the defendants from reconstructing a jail building. A preliminary injunction was issued in accordance with the prayer of the bill. On a motion for dissolution of the injunction filed by defendants, an order was made modifying the injunction so as to limit its scope to restraining the defendant to expending more than $500 per year in repairing the jail building. Oomplainants moved to set aside the order modifying the injunction. This motion was denied, and an appeal has been taken from both decisions.

An appeal does not lie from either order. Merchants’, etc., Bank v. Kent Circuit Judge, 43 Mich. 292; Boinay v. Coats, 17 Mich. 411; Spencer v. Stearns, 28 Mich. 463; Schuffert v. Grote, 83 Mich. 263. This is of less consequence to the parties, as since the appeal was taken the legal questions involved have been considered in Attorney General, ex rel. Gibson, v. Board of Sup’rs of Montcalm Co., 141 Mich. 590.

The appeal will be dismissed, and the case remanded for further proceedings.

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


text:
    MAGAHAY v. BOARD OF SUPERVISORS OF ALCONA COUNTY.
    Appeal and Error — Chancery Appeals — Order Review able— Preliminary Injunction.
    This case, involving the same facts, is ruled by Simmons v. Board of Sup’rs of Alcona County, ante, 591.
    Appeal from Alcona; Oonnine, J.
    Submitted May 2, 1906.
    (Docket No. 142.)
    Decided July 3, 1906.
    Bill by David O. Magahay and others against the board of supervisors of Alcona county and others to restrain the reconstruction of a county building. From an order modifying a preliminary injunction, and from an order denying a motion to set aside such order, complainants appeal.
    Dismissed.

      L. G. Dafoe, for complainants.
    O. H. Smith, Prosecuting Attorney, for defendants.
   Ostrander, J.

This case is ruled by Simmons v. Board of Sup’rs of Alcona County, ante, 591.

The appeal is dismissed, and the record remanded for further proceedings. No costs are awarded.

McAlvay, Blair, Montgomery, and Hooker, JJ., concurred.


text:
    SHERMAN v. SHERMAN.
    Cancellation of Instruments — Evidence—Sufficiency.
    On a bill to cancel, for failure of consideration, a deed given in consideration of a life support, evidence examined, and held, that a decree appointing a receiver of the property, and awarding certain sums from the income thereof to complainant for his support, was proper, after some modification in the amount awarded.
    Appeal from Ingham; Wiest, J.
    Submitted May 1, 1906.
    (Docket No. 131.)
    Decided July 3, 1906.
    Bill by John Sherman against John Carr Sherman to set aside a deed. From the decree rendered, defendant appeals.
    Modified and affirmed.

      Person & Person, for complainant.

      Arthur J. Tuttle (Q. A. Smith and O. J. Hood, .of counsel), for defendant.
   Montgomery, J.

A father reaching an age when he feels himself unable to keep up the struggle for the protection of his own, and to withstand the buffets received in contact with his fellows, all struggling for material gain, turns to his only son, and bestows upon him every dollar of his earthly possessions in consideration of a promise of support during life. The son, once in possession, discovers and, perhaps, magnifies the father’s faults in respect of his habits of cleanliness and querulous faultfinding. The point of view is changed. The son is now the master, and as the possession of means appeals to his cupidity finds, in facts and circumstances which while not trivial in the ordinary sense are yet trivial when measured as against the obligations of filial duty, an excuse for withholding from the father such support as his great age and increasing infirmities entitle him to. It is the old, old story, the pathos of which is not lessened by its too frequent recurrence. Such is this case.

Complainant was at one time in comfortable circumstances. He lived at Onondaga, a small community, which was supposed to have a prospect for a better future. His investments were almost exclusively in real estate, consisting of a small hotel, a number of small houses and lots, and a small farm. The expectations of the village’s growth were not .realized. Ill luck seems to have been his constant attendant, until we find him in 1896 with real property assessed at $3,350 and debts of $3,016.59. He also owned a small amount of personal property the value of which is stated in the bill of sale at $350.

The proof shows the real property to have been worth much more than its assessed value; but it is beyond question that his affairs were in such shape that careful management was essential to the preservation of his equities. He had not been on the best of terms with defendant; but in this stress he turned to him, made over his entire property in consideration for defendant’s promise to pay off the incumbrances, and to support him for life. Defendant has managed the estate frugally, has paid off a portion of the incumbrances, but in doing so, has provided the complainant with no such support as was contemplated.

The only question about which there can be a doubt in the case relates to the measure of relief to be accorded to the complainant. The circuit judge granted $100 in' gross, $350 for expenses, and $50 a month. It is complained that the court had not power to grant a solicitor’s fee of $350. We do not pause to discuss this question but allow the item at $150, as we think the testimony shows that at least that sum is due complainant for support withheld from him since 1896. So also of the sum of $100, allowance in gross. Considering the meager estate conveyed to defendant, and his own circumstances, as well as the beforetime manner of life of complainant, we are of the opinion that the allowance for support is larger than the facts justify. We fix the amount at f360 per year, payable monthly. There should be deducted from the taxable costs any portion thereof paid by defendant in advance. A reasonable time will be allowed for payment of the sums in gross, to be determined on settlement of the decree. The receivership will be continued. No costs will be awarded in this court.

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


author: Carpenter, C. J.

text:
    THOMPSON v. NEWLAND.
    1. Fraudulent Conveyances — Sales of Goods — Consideration —Trust for Creditors.
    A sale of goods in which the buyer agrees to pay the consideration to the creditors of the seller is not a conveyance in trust for the use of the seller such as is invalidated by section 9514, 3 Comp. Laws.
    .3. Same — Intent—Defrauding Creditors.
    The price agreed upon being reasonable, the debts agreed to be paid being bona fide, and the entire consideration being applied to their payment, the sale is not one made to hinder, delay, or defraud creditors within section 9533, 3 Comp. Laws, though the arrangement does not provide for payment of all . the creditors. .
    '3. Same — Preferences.
    A debtor has a right to pay one creditor in preference to another.
    •4. Same — Evidence—Competency.
    A sale of goods in which the buyer agrees to pay the consideration to certain creditors of the seller, not being in any way connected with the act of incurring a debt not included in the arrangement, evidence that the debt so omitted was fraudulently contracted has no tendency to prove that the sale was. fraudulent.
    5. Same.
    Where, after a debtor has sold certain goods on the agreement that the buyer will pay certain debts of the seller, a creditor, the entire of whose claim was not provided for, attaches the goods, the act of the creditor in directing the buyer not to pay anything to the attaching creditor, but to apply his share on a debt due the buyer, while not to be approved, has no tendency to prove that the sale.was originally fraudulent.
    Error to Wexford; Chittenden, J.
    Submitted May 8, 1906.
    (Docket No. 37.)
    Decided July 3, 1906.
    Replevin by Orlow Thompson against Richard New-land. There was judgment for plaintiff, and defendant brings error.
    Affirmed.
    J. C. Wheeler, for appellant.

      Fred C. Wetmore, for appellee.
   Carpenter, C. J.

Plaintiff brought this action of replevin to recover possession of 60 cords of wood held by the defendant as a constable by virtue of an execution issued out of a justice’s court on a judgment rendered in an attachment suit in favor of one George M. Brooks and against Frank Gilbert. The wood in controversy was a part of a larger quantity cut by Gilbert on the land of plaintiff. Early in December, 1904, Gilbert sold this wood to plaintiff at the agreed consideration of $1 per cord. This consideration was to be paid to creditors of Gilbert. One of these creditors was Brooks, the plaintiff in the attachment suit above mentioned. The amount to be paid him was only a part of the indebtedness due. Part of these claims had been paid before the commencement of the attachment suit.

It was the claim of defendant that the transfer to plaintiff was made in trust for the use of Gilbert, and that the same was therefore void by virtue of section 9514, 3 Comp. Laws. This claim is entirely unfounded. The •transaction was a sale, whereby plaintiff acquired the •complete title. There was no trust, and the section of the statute referred to does not apply.

It was also claimed that the sale was made with the intent to hinder, delay, or defraud creditors, and was therefore made void by section 9533, 3 Comp. Laws. This issue was submitted to a jury who rendered a verdict in favor of plaintiff. Defendant asks us to reverse the judgment entered on said verdict upon various’ grounds. It is unnecessary to state these grounds. It is sufficient to say that they are all answered by showing, as' we will endeavor to do, that there was no evidence of fraud and the trial court might very properly have directed a verdict in plaintiff’s favor. There is no evidence in this case tending to prove that the price that plaintiff agreed to pay for this wood was not afair price. There is no evidence in this case tending to prove that all of the debts of Gilbert which plaintiff promised to pay were not bona fide debts, and it is to be borne in mind that the entire amount for which this wood was sold was to be paid to such creditors. The transaction instead of being one calculated to hinder, delay, or defraud creditors, was one which had for its object the payment of said creditors. It is true that the arrangement did not provide for the payment of all creditors (it omitted •a portion of the indebtedness due Brooks), but this did not make the transaction fraudulent, for a debtor has aright to pay one creditor in preference to another. See Sheldon v. Mann, 85 Mich. 265; Warner v. Littlefield, 89 Mich. 329; National Bank of Oshkosh v. First Nat. Bank of Ironwood, 100 Mich. 485; McMorran v. Moore, 113 Mich. 101.

As evidence of fraud, defendant sought to prove that Gilbert perpetrated a fraud in cohtracting the indebtedness due Brooks, qnd complaint is made because the trial court struck out this evidence. It is to be doubted whether the evidence stricken out even tended to prove that said indebtedness was fraudulently contracted. If

so, it had no tendency whatever to prove that there was fraud in the sale from Gilbert to plaintiff. This case is not like that of Heath v. Koon, 130 Mich. 54. There a creditor who attacked as fraudulent a mortgage given by his debtor to his (the debtor’s) wife was permitted to show that his (the creditor’s) indebtedness was fraudulently contracted. In that case there was an intimate relation, between the act of the creditor in contracting said indebtedness and in giving said mortgage. There was evidence warranting the inference that those two acts were parts, of the same scheme of fraud. In the case at bar the act-of Gilbert in contracting the indebtedness to Brooks and. his act in making the sale to plaintiff had no relation whatever. In such cases the rule is well settled that, upon a charge of fraud, evidence of the commission of another and distinct fraud is inadmissible.

“A charge of fraud in a particular transaction cannot be proved by evidence of other and independent frauds * * * unless it appears that there is such a connection between the transactions as to authorize the inference that the frauds are both parts of a general scheme or purpose to defraud.” 14 Am. & Eng. Enc. Law (2d Ed.), p. 196.

“To render such evidence (evidence of other frauds) admissible * * * it must appear that they were so-connected in point of time and otherwise with the one in issue as to make it apparent that all were carried out in pursuance of a common fraudulent purpose.” 20 Cyc, pp. 769, 770.

See, also, Jordan v. Osgood, 109 Mass. 457; Edwards: v. Warner, 35 Conn. 517.

If there was any other evidence in the case tending to prove fraud it was this: After Brooks attached the property involved in this suit, Gilbert told plaintiff not to pay the indebtedness due Brooks, but to apply the same on an indebtedness due himself (plaintiff). While we might not approve this conduct of Gilbert, it obviously has no-tendency to prove that the original arrangement whereby plaintiff bought the wood was intended to defraud creditors. We conclude, as heretofore stated, that there was. no evidence which had any tendency to prove that the sale to plaintiff was fraudulent, and that a verdict should have been directed in his favor.

Judgment affirmed.

McAlvay, Blair, Hooker, and Moore,- JJ., concurred.