74 Mich. 37 | Mich. | 1889
On February 6, 1888, a complaint was made before a justice of the peace, charging that Frank Price did at the township of St. Charles, Saginaw county, Mich., feloniously steal, take, and carry away one yoke of cattle, of the value of 8100, of the goods and chattels of one Charles Fisher, then and there in the possession of him, the said Charles Fisher. An examination was had on February 23, 1888, and he was bound over to the circuit court of Saginaw county' for trial. On March 5 following an information was filed against him by the prosecuting attorney, charging that—
“Frank Price, late of the township of St. Charles, in the county aforesaid, heretofore, to wit, on November 1, in the year 1881, at the township of St. Charles, in the-county of Saginaw aforesaid, one yoke of 'oxen, of the value of one hundred dollars, of the goods and chattels of one Charles Fisher, in the possession of him, the said Charles Fisher, there situate, then and there being found, feloniously did steal, take, and carry away, against the-form of the statute in such case made and provided, and against the peace and dignity of the people of the State-of Michigan.”
On being arraigned the respondent refused to plead,, and the court directed that a plea of “not guilty” be-entered. This was on May 8, 1888. On May 17, 1888, the prosecuting attorney, on leave obtained, amended the-information by adding thereto a second count, charging respondent with receiving stolen goods, to wit, one yoke-of oxen, of the value of 8100, the property of one Charles-Fisher, knowing them to have been stolen. Upon being arraigned upon the second count respondent refused to plead, and on motion of his attorney he was granted 10-
On October 4, 1888, the respondent being in court for trial, a jury was impaneled and sworn to try the cause, who sat together and heard the proofs and allegations of the parties in part, and then adjourned to the next day. On October 5, on motion of the prosecuting attorney, it was ordered that, the defendant haying failed to plead to the second count added to the information, a plea of not guilty be entered, by order of the court, nunc pro tunc, and the trial then proceeded. On the same day, on motion of the prosecuting attorney and on- cause shown, it was ordered that he have permission to add to the names indorsed upon the information Dr. Brown, Jerry O. Gallup, Herman Wainwright, and Mahler Bray.
The aboye facts as to the time the jury were impaneled, and the proceedings had on October 4, 5, and 6, 1888, are taken from the journal entries appearing in the record, which also show that on Monday, October 8, the jury returned a verdict of guilty, in manner and form as the people in the information have charged, to wit, the larceny of one red ox of the value of $50. Then follows the bill of exceptions, which states that the issue joined between the parties came on to be tried on October 20, 1888, before a jury duly impaneled and sworn, and from which it appears that upon the opening of the case to the jury by the prosecuting attorney, it appeared that names of witnesses had been indorsed upon the information after it was filed, and of which the respondent’s counsel had had no notice. On the court’s attention being called to the fact, wnich fact was however disputed by the prosecuting attorney, he ordered them stricken off. The prosecuting attorney then made application to> have the names of Dr. Brown, Jerry O. Gallup, Herman Wainwright, and Mahler Bray indorsed upon the infor
We think that it must be held from the record that Dr. Brown’s name was indorsed on the information at the time it was filed. The witnesses Bray and Gallup resided at Meridian, Ingham county, and Wain wright resided at Iosco, in Livingston county. All of these places were a considerable distance from Saginaw, the place of trial. The question here is, after a trial has commenced by the swearing of a jury, can names be added to the list of
The prosecutor, in opening, stated that he should only ask a conviction for stealing the red ox, and proceeded to introduce testimony tending to show a larceny of a red ox by defendant. Such testimony was timely objected to.
At the close of the testimony on behalf of the people, the defendant not introducing any evidence, the counsel for defendant requested the court to direct a verdict for defendant upon the following grounds:
1. The proof shows if any larceny was committed it was more than six years before this prosecution commenced.
2. There is a fatal variance between the offense charged and proven. The charge is stealing a yoke of oxen. There is no proof tending to prove the taking of but one ox.
The court held that the first point was a question of fact for the jury to find whether he was absent from the State a sufficient length of time, coupled with the residence in this State that he was not usually and publicly known. And as to the second point he allowed the prosecuting attorney to amend the information by inserting after the description of the property “one red ox of the
There was testimony introduced which had a tendency to prove that the yoke of oxen was missing; that one of them was white and red and the other was a red ox. A witness, who testified that he was an accomplice in the theft, stated that defendant and himself took the red ox and drove him to Saginaw, and there' sold him to a butcher for 842. The amendment allowed did not create a new issue upon an entirely different crime, but it was a more particular description of the identical property charged to have been stolen. The amendment, when inserted in its proper place in the information, would charge the respondent with the larceny of one yoke of oxen of the value of 8100, — one a red ox of the value of
The offense was charged to have been committed on November 1, A. D. 1881, and the complaint therefor was not made until February 6, 1888, a period of over six years and three months, and counsel for respondent claimed that the prosecution was barred by the statute which requires prosecutions to be brought within six years after the commission of the offense. The statute fixing the limitation to six years also provides that — ■
“Any period during which the party charged was not usually and publicly a resident within this State shall not be reckoned as part, of the six years.” How. Stat. § 9507.
There was testimony which showed that at the time of the larceny respondent was just past 21 years of age; that he had been residing at St. Charles, but left immediately, and was for some time in Canada, and afterwards was in California; and also that he was engaged in work in different places in Michigan, in some of which he passed
The conviction must be reversed, for the refusal to grant a continuance on defendant’s motion, and the jury discharged. Such discharge of the jury on defendant’s motion will not be a bar to trial before another jury, as we have held in People v. White, 68 Mich. 648 (37 N. W. Rep. 34), and other cases. A new trial is granted.