24 Mich. 215 | Mich. | 1872
Lead Opinion
The defendant was examined before the justice upon a complaint charging him with setting on fire, with the intent to burn, a store- of one Robert King, in the city of Lapeer. This was an offense defined, and its punishment provided for, by §§ 57J+9, 5750, Compiled Laws.
This is a distinct offense from that charged in the complaint, and upon which defendant was examined, and not included in it. It is provided for by § 575S Comp. Lazos (which provides for the actual burning), and § 59J/.7 (which provides for the attempt).
The defendant having pleaded not guilty to the information, went to trial; and the people, having introduced their evidence in chief and rested, the defendant, by his counsel, moved that the information and the proceedings be quashed, and that defendant be discharged, for the reason that there has been no complaint against the defendant for the crime alleged in the information, and defendant has never been examined upon the charge contained in it..
Had this motion been made before pleading not guilty to the information, it must have prevailed. But, as the statute expressly authorizes a defendant to waive an examination,
An objection, in the nature of a challenge to the array, is taken to the mode in which the jury was obtained.
At a general term of the court on the 31st of March, 1871, a previous trial of the defendant seems to have been concluded by a disagreement of the jury; and at the same general term “ continued and held on the 11th day of April, ” the following order was entered: “It satisfactorily appearing to this court that.a sufficient number of petit jurors have not appeared at the present term of this. court, and it appearing to the court that the appearance of such jurors is necessary, the sheriff of this county of Lapeer is therefore ordered and directed, forthwith to summon eighteen good and lawful men of this county, to be and appear in said court, at the court-house in the city of Lapeer, in said county, on the fourth day of May next, at 10 o’clock in the forenoon of said day.”
The court seems then to have been adjourned, as is to be inferred from the record, to said fourth day of May. The sheriff on the fourth day of May, made a return that he had “summoned the following named persons” (naming eighteen). This return was made upon an order which seems to have been either drawn up by the sheriff, or by the clerk and given to him, and probably intended to be a copy of the order above recited, but reciting as the ground of the order: “no petit jury having been drawn for the present term,” etc.; and the return purports that the jurors had been summoned “in obedience to the order,” as given by the sheriff. Upon a motion being made for a new trial,
We think the mis-recital of the ground of the order in the copy upon which the return was made, is of no consequence whatever; as it had no possible bearing upon the duty, either of the sheriff or the jurors summoned, and no influence upon the selection of the names. The -case must stand, therefore, the same as if the return had been made upon a correct copy. It was the order actually made by the court which gave him all the authority he had to summon the jurors, and this only which imposed upon him the duty to summon them, and upon'them the duty to attend. But defendant’s counsel insists: First, that the court had no authority under the statute to make such an order for the appearance of the jurors upon a future day (the fourth of May), but only for their appearance forthwith; and second, that if the court had such authority, the sheriff did not return the manner in which any of the jurors were summoned or notified, and that it was too late to make the amendment, after a motion for a new trial, based in part upon- this defect.
The statute {Comp. L., §" 487J+) provides that “Whenever, for any cause, grand or petit jurors shall not have been drawn and summoned to attend any circuit court, or a sufficient number of qualified jurors shall fail to appear, such court may, in its discretion, order a sufficient number of grand or petit jurors, or both, to be forthwith drawn and summoned to attend such court; or such court may, by an order to be entered in the minutes of such court, direct the sheriff of the county forthwith to summon so many good and lawful men of his county to serve as such jurors, as the case may require.”
These provisions do not contemplate a jury merely for a particular cause, but for the term, or any remaining portion of a term, and, of course, for any number of causes for which a jury may be needed. And the order in the present case is, in this respect, in accordance with the statute, and not for this or any other particular case. The statute leaves it entirely optional with the court whether to order the names of the jurors to be drawn from the jury box, or whether the sheriff shall be ordered to select them; and the provisions in regard to summoning them, and their duty to attend, are the same in both cases.; if in one case they are to be summoned forthwith and to appear forthwith, so they are equally in the other. The opportunities therefore, for tampering with the jurors, so strongly urged against this order, because the jurors might be selected and summoned before the day at which they were to appear under this order — are no greater than they would have been had their names been drawn from the box, and no greater in either case, than when a jury is regularly drawn prior to the term in the usual way, who are drawn and may be summoned fourteen days before the first day of the term, and must be summoned at least six days before. — (See Comp. Laws, §§ 4358 to 4365 inclusive). Now, as to the power to make the order to summon the
As to the objection that the sheriff’s return did not specify the manner in which the jurors were notified, the object of this provision, as is evident from its nature and the context, wras to enable the court to enforce the attendance and to punish the delinquent jurors for non-attendance. If the jurors actually attended as such, on the day named (and it does not appear that any of them failed to attend), the manner of service became quite immaterial; and no defect in the mode of notifying them could affect the defendant, and no objection on this ground can be made by him.
The cases which were cited on the argument, in reference to the award of a venire in a particular cause, and under
It is further objected that’ the information alleges no criminal offense, because it omits to aver that the “ Putnam Fire Insurance Company of Hartford, Connecticut,” was a, corporation, having a right to do business in this state; and that there was no proper evidence of its incorporation. But w'e think such an allegation unnecessary. It is not necessary that insurers, whether individuals, companies or associations, though located in other states, should be incorporated to authorize them to do business in this state. The business of insurance in England, was formerly transacted mainly, if not entirely, by individuals, partnerships or unincorporated associations, and the same business has been done to some extent in this country, in a similar way. We are aware of no law which prohibits it to be done in this state, by parties unincorporated. On the contrary, our statutes recognize the fact that it may be done by individuals and by associations unincorporated; but, if done here by parties out of the state, they are, like corporations, to comply with certain statute requirements. See act of February 13, 1859 (Sess. L. 1859, p. 104-9-1054, §§ 1 and 6), and act of April 3, 1869 (Sess. L. 1869, p. 246, § 24).
Nor do we think it was necessary in an information of this kind, merely charging the defendant with attempting to burn property insured by the company named, with
Not being alleged in the information that the company was an incorporation, nor necessary to be alleged, it was not necessary to prove its incorporation. It was only necessary to prove that there was such a comj>any doing business as insurers, competent to issue the policy in question. But the prosecution did show that this company was engaged in doing insurance business in this state; and I am strongly inclined to believe that such business should have been presumed legal in this case, until the contrary was shown, and that it was unnecessary to show affirmatively a compliance with the statutes in reference to foreign insurance companies, until some evidence had been given to the contrary. Indeed, we are not prepared to say that if it expressly appeared the company had issued this policy without complying with such statutes, the policy would, on that account, be void in the hands of the assured, or that the company could set up their own violation of the statutes to shield themselves from liability in case of loss, especially if the assured wras ignorant of such violation of the statutes. And if the policy would be valid under such circumstances, their non-compliance with the statutes would not avail the defendant in this case. But it is unnecessary to decide either of these points in the present case.
The prosecution, under objection from the defendant, did prove by certificate from the secretary of state: 1st. The articles of incorporation, a copy of which was filed in his office; 2d. A certified copy of the annual statement of said company, also filed in his office; and 3d. Certain
These were objected to on several grounds, but the only ground relied upon in the argument in this court, and which we think it necessary to notice, is that, by the constitution of the state, the defendant is entitled “to be confronted with the witnesses,” and that there is no law which authorizes documentary evidence between the people of the state and the defendant.
The statute (fíess. L. 1859, p. 1058, § 5) expressly declares that such copies “certified under the hand of the secretary of state to be true and correct copies, shall be received as evidence in all courts and places, in the same manner, and have the same force and effect as the originals would have if produced.”
We do not think the provision of the constitution securing to the defendant in a criminal prosecution the right “to be confronted with the witnesses against him,” can apply to the proof of facts in their nature essentially and purely documentary, and which can only be proved by the original, or by a copy officially authenticated in some way, especially when the fact to be proved comes up collaterally, as in the present case. In such a case, it would, in fact, be impossible to apply it, except by requiring the attendance and testimony of the secretary of state, to the fact of the filing of the papers, etc., to which he has certified. We have been cited to no case, and are not aware of any, which would authorize us to reject the certificates on this ground.
The constitution of the United States (Amendments Art. VI) contains the same provision in the same words; yet, upon an indictment for arresting a person accredited as a foreign minister, contrary to an act of congress, it has been held that the certificate of the secretary of state (of the
We must therefore hold that the evidence was admissible, and as such, that it fully justified the ruling of the court, and his charge upon this point.
The next objection is that the judge, in his charge to the jury, laid down an artificial and arbitrary rule, by which the jury were to be guided in estimating the credit due to the statement made by the defendant in his own behalf on the trial, and did not leave it to the jury to estimate that credit according to their actual belief of its truth or falsehood.
The judge, after correctly charging as to the presumption of innocence, and that this presumption must be overcome by evidence which put the defendant’s guilt beyond a reasonable doubt, proceeded to say: “'And to determine the guilt or innocence of the accused, you may, and should, take into consideration all the facts and circumstances as they appear to you from the proofs in the case. And, in connection with all the other proofs in the case, you have a right to take into consideration the statement of the prisoner, and give it such weight and credit as you think it entitled to, under all the facts and circumstances of the case. And you may even give it more weight than the sworn testimony of unimpeached witnesses, if, under all the facts and circumstances of the case, you honestly believe it
This charge was apparently intended to comply, and does substantially comply, with the views expressed by this court, in Durant v. The People, 13 Mich., 355 and 356. It gives no absolute test by which alone the jury are to be guided, but only declares, in substance, that in weighing the credit due to the statement, they ought to. consider it in connection with the facts proved to their satisfaction and with all the testimony and all the circumstances in the case. Such a statement, not being upon oath, and being made under very strong temptation to favor himself, should be subjected, at least, to all the scrutiny to which sworn testimony is subject.
The’ thirteenth and fourteenth requests to charge, relate to matters of fact so exclusively within the province of the jury, that we . think there was no error in refusing to •charge as requested.
A more serious question is sought to be raised upon the ruling of the court admitting the oral testimony of the insurance agent, to show what defendant, when he applied for insurance, said his stock of goods was worth. The agent had just stated that the' application for insurance was in writing; and the objection of the defendant to the parol statement of the witness of what defendant said they were worth, was, as stated in the record, “for the reason that the application was made in writing, which, upon its face, shows the estimate made by defendant, and parol proof is incompetent to vary or contradict the written application.”
If it clearly appeared by this record that the application in writing was offered in evidence, and purported upon its face to show the value of the goods, and that this had been brought to the attention of the court, or, though not present, if the agent had stated that it contained a statement of the value; then, whether the rules of the company required a written application containing such statement or not, I think the parol testimony of what defendant verbally said the goods were worth, should have been excluded; for the fair construction of the whole of the agent’s testimony upon the point is, that it was tMs written application upon which the policy was issued; and he alludes to no other, nor does he intimate that he was at all influenced in deciding upon the insurance, or in issuing the policy, by any other statement; nor does it appear
But does it appear by the record before us that the written application contained any statement of the value of the goods? There is certainly no statement of this kind in any of the evidence set forth in the bill of exceptions, which would seem to have been intended to set forth the whole evidence; there is no statement of the kind by the judge who tried the cause and signed the exceptions; nor is there any thing from which it can be inferred, unless it be from the objection made by defendant’s counsel to the introduction of the parol evidence, giving it as the reason of his objection, that “ the application was made in writing ¡.which, upon its face, shows the estimate made by the defendant.” It does not appear what authority the counsel had for this
Now, though it is usual in fire policies to require an application in writing, and perhaps, to require the value of the goods to be stated in it, it is not the law which requires it, but the regulations of the insurance companies, or the terms and conditions required by the insurer; and these regulations, terms and conditions among companies which require a written application, may, and often do, differ as to what shall be set forth in it. Whether there is a written application, or if so, what it contains, must be matter of evidence in each particular case. In the present case the record does not show what the application contained, or the amount of insurance obtained.
Had there been a judgment in this ease and it had been brought before us upon a writ of'error, we could not have reversed it for any error appearing in the proceedings, as
Concurrence Opinion
I concur in the result arrived at by the chief justice. I concur also in all his reasonings and rulings, except as to the regularity of summoning the jury. Had the objection been seasonably taken that the sheriff did not act upon the order actually entered by the court (which I think was regular), I am not prepared to say the objection would have been groundless. I prefer to reserve my opinion upon that point. But the objection was one which appeared of record and which should have been made the ground of a challenge to the array. This was not done, and by going to trial without such a preliminary objection, it was waived.