151 Mich. 577 | Mich. | 1908
Defendant is a saloon keeper in the city of Hillsdale. In the circuit court he was convicted of the offense of not having his saloon closed, as required by law, on Sunday, October 7, 1906. He asks us to. set aside that conviction. His brief in this court does not “ contain a clear and concise statement of the facts of the case, distinct from argument, and of the errors upon which he relies,” as required by Supreme Court Rule 40. Under these circumstances we think we are warranted in relying upon the statement in the brief for the people. It reads as follows:
“ On the 7th day of October, 1906, the defendant was in the occupancy of-a two story brick building on the east side of Hillsdale street and south of the railroad in Hills-dale city. The ground floor of said building consisted of
The testimony introduced by the people tended to prove that on the Sunday in question several persons were in one of these wine rooms, and it is to be inferred from the record that the jury credited this testimony. If so, defendant was guilty. People v. Higgins, 56 Mich. 159; People v. Hughes, 90 Mich. 368; People v. Ringsted, 90 Mich. 371.
After the trial judge had concluded his charge to the jury, defendant’s counsel preferred this request:
“Mr. Boyd had a perfect right to open the front door and to admit people through that door to the reception hall, and that the family had a right to go to the refrigerator and get therefrom family supplies, even though the refrigerator is located in the saloon.”
In response to this the trial court charged the jury:
This charge is complained of, and the complaint is this:
“ If the court is right in his contention, and if wine or beer had ever been served in defendant’s living rooms, he and his family would have had to have gone away from home and stay away after ten o’clock at night and on Sundays.”
Manifestly this is placing upon the language of ,the trial court, above quoted, an entirely erroneous construction. The rooms which the trial court said must not be opened on Sunday are those “ in which it was customary or his practice to serve from the barroom.”
Complaint is made because the prosecuting attorney, in his argument to the jury,. claimed that “we would be entitled to a conviction under the statute if Mr. Boyd let any one into the reception hall that opens right into the saloon byway of another hall into the wine room.” We are not called upon to say whether or not the prosecuting attorney was correct in this legal position. He made the claim in good faith and he had a right to make it. As was said by Justice Montgomery in Knickerbocker v. Worthing, 138 Mich. 239:
The name of the complaining witness was not indorsed on the information and he was not produced as a witness. Respecting this the prosecuting attorney said:
“After this complaint was made and before the examination was held, we were unable to find the complaining witness anywhere, after making diligent search for him. He was a barber here in this town at the time the complaint was made, as I understand it, and very soon after the complaint was made he absconded; that the officers were unable, after making a diligent search, to find him or any trace of him; and for that reason we were unable to produce him on the examination, and I left his name off from the information because I didn’t think it would be possible to produce him here in court.”
He stated, further, in answer to inquiries of defendant’s counsel, that, for the purpose of procuring said witness on the examination, a subpoena was issued and diligent search made, and that before the trial in the circuit court “inquiry was ipade but no trace of him could be found.” Defendant’s counsel insisted that this showing was insufficient, and asked the trial court to dismiss the case for that reason. In what way it was insufficient was not pointed out. If it had been insisted that this showing should have been made under oath, it is to be assumed that such showing would have been so made. The nature of the objection must be treated as a waiver of that formality. Assuming the facts to be as stated by the prosecuting attorney — and we think they should be so assumed— excuse for not calling the complaining witness was sufficient.
Before commencing the trial of this case the trial court denied a motion for a continuance and a motion for a
The conviction is affirmed.