43 Mich. 443 | Mich. | 1880
This is a remarkable case on the law and on the facts.
By “An act for the better protection of the public lands, and to punish the cutting and carrying away of timber therefrom,” approved February 12, 1857 (Comp. L. ch. 256), the cutting down or destroying or causing to be cut down or destroyed any trees standing or growing on any of the lands of the State, or lands held in trust by the State, or the taking and carrying away any trees or parts thereof, or any timber or lumber made therefrom, so cut or destroyed, when the same was willfully and knowingly done, and with intent to convert the same to the use of the party or his employer, was made a felony if the value of the trees etc. exceeded the sum of twenty-five dollars, and a misdemeanor when the value did not exceed that sum. The maximum punishment for the felony was five years’ imprisonment in the State prison. The fifth section of the act provided that “All prosecutions under this act may be either by indictment or information in the county where the offense is committed; or, if it be committed in the Upper Peninsula, in any county in said peninsula; if in the Lower Peninsula, in the county where the offense was committed, or in such other county as the Commissioner of the State Land Office, or the Attorney General, shall, by written instructions to the prosecuting attorney thereof, direct.”
The sixth section provides that “ Such information shall be brought by the Attorney General or by the prosecut
In the summer of 1878 Mr. Swart, the plaintiff in error, was in the employ of the State land department in looking after trespasses on State lands, and was informed by reports of his predecessor, then on file or of record in the Land Office, that a trespass had been committed by Kimball, the defendant in error, in the county of Alpena. He went to Alpena, partly to inquire into this trespass, and while there claims to have obtained evidence of a further trespass by Kimball, committed more recently. He went to see Kimball and endeavored to make him settle for the alleged trespasses, but did not succeed. The accounts given by the two parties as to the interviews between them differ very considerably; that of Swart only showing an endeavor in a proper way to obtain a settlement for the timber cut, while Kimball gave evidence tending to show that he denied having committed any trespass, and that Swart made threats of criminal prosecution against him with the evident purpose to extort money from him whether innocent or guilty. The attempts at a settlement failed, and Swart
“STATE OF MICHIGAN,?
County or Ingham, j
*
Menzo Swart of the village of Flushing in the county of Genesee being duly sworn deposes and says: First, that he has heard read the foregoing information, and that he knows the contents of the same; second, that he knows the contents of the foregoing information, and that he has good reason to believe and does believe the same to be true as therein set forth. Third, and further saith not. Subscribed,” etc.
Upon the information thus verified, and without any further or other evidence that an offense had been committed, or that the accused was probably guilty of any violation of law, a warrant was issued out of the circuit court for the county of Ingham, commanding the arrest of Kimball, and his production in that court to answer the information. Kimball was arrested by virtue of this warrant by an officer, who arrived with him in Mason the third day thereafter, and immediately placed him in jail, where he remained for thirteen days. At the end of that time he obtained legal assistance and applied to the Hon. Geo. M. Huntington, circuit judge, for the writ of habeas corpus to inquire into the legality of his imprisonment, and the writ having been granted to him, he was discharged on a hearing. In the August following he brought suit against Swart for false imprisonment in causing his arrest and incarceration, and obtained judgment, and this judgment is now before us for review on exceptions.
The record in this case does hot show on what ground
The Constitution of the State provides that “ The right of trial by jury shall remain, but shall be deemed to be waived in all civil cases, unless demanded by one of the parties in such manner as shall be prescribed by law.” Article vi. § 27. The right is to remain. What right? Plainly the right as it existed before; the right to a trial by jury as it had become known to the previous jurisprudence of the State. Underwood v. People 32 Mich. 1. The right is not described here; it is not said what shall be its incidents; it is mentioned as something well known and understood, under a particular name; and by implication at least, even a waiver of its advantages is forbidden. If the accused himself cannot waive them, plainly the Legislature cannot take them away. The next section of the Constitution repeats the guaranty of this method of trial “in every criminal prosecution,” and nothing is better settled on the authorities than that the Legislature cannot take away a single one of its substantial and beneficial incidents; Opinions of Judges 41 N. H. 550; Ward v. People 30 Mich. 116; and even the accused cannot waive any one of the essentials. Work v. State 2 Ohio (N. S.) 296; Cancemi v. People 18 N. Y. 128; Hill v. People 16 Mich. 351; Allen v. State 54 Ind. 461.
Now that in jury trial it is implied that the trial shall be by a jury of the vicinage is familiar law. Blackstone says the jurors must be “of the visne or neighborhood;
We have not the slightest hesitation in declaring that the Act of 1857 so far as it undertakes to authorize a trial in some other county than that of the alleged offense, is oppressive, unwarranted by the Constitution, and utterly void. But plain as this is, it is no plainer than that the poor and insufficient provision it makes for the protection of accused parties was not observed in this case.
When this act was passed, the Grand Jury was still retained as a part of the judicial system of the State.' When the act for the trial of criminal accusations upon informations was passed two years later, full provision was made for an examination of a criminal charge before
Tbe Act of 1857 did not provide for any such preliminary examination, and there may be a question whether tbe general law respecting informations in criminal cases applies to these trespasses on public lands. But regardless as tbe Act of 1857 was of private rights, it did not assume to permit a man to be arrested and incarcerated In prison without some evidence of his guilt. There must be, tbe act declared, “an affidavit of some credible person verifying the charges” contained in tbe information. Charges are not verified by an affidavit that somebody is informed and believes they are true. Tbis is mere evasion of tbe law: tbe most improbable stories may be believed of any one, and tbe man most free from any reasonable suspicion of guilt is not safe if be bolds bis freedom at tbe mercy of any man three hundred miles off who will swear that be has been informed and believes in bis guilt. It is easy to tell falsehoods, and those, who are least fitted to judge of their credibility are generally tbe very persons who will believe them because they are told. But to substantiate charges within tbe meaning of tbe law evidence is required, and not merely suspicions or information or beliefs. Bisb. Cr. Pro. §§ 716-719; Commonwealth v. Lottery Tickets 5 Cush. 369; Brown v. Kelley 20 Mich. 27; People v. Judge of Wayne Circuit 36 Mich. 334. It is said that an information thus verified was sustained in Washburn v. People 10 Mich. 372; and so it was; but that was an information filed after tbe evidence of guilt bad been made on preliminary
The justification of Swart having failed utterly, it remains to be seen whether he was injured by any rulings of the circuit judge which could affect the amount of the recovery.
There is no room for -saying that Swart was protected in what he did because he acted under the orders of his superior officer. The Land Commissioner could lawfully give no such orders, and Swart could lawfully obey none.
There was no error in allowing Kimball to prove that the expense of an attorney fee of $50 was incurred in obtaining his discharge. The declaration averred that plaintiff incurred large expense in obtaining his liberation from imprisonment, and this was a sufficient allegation of special damages for this purpose.
It is complained that the judge used the word extortion in connection with the attempts of Swart to bring about a settlement with Kimball. Perhaps it would have been better not to use the word; but whether there was an attempt at extortion would necessarily be judged by the jury upon the evidence given by Swart to show that he believed Kimball guilty. If he did believe it, he should have endeavored to obtain payment for the timber: if he did not, he was attempting extortion. A careful reading of the evidence does not satisfy us that any injustice was done to Swart in this regard.
There was some evidence introduced, however, which it is said was clearly erroneous. It was proved under objection that Swart subsequently endeavored to obtain new papers against Kimball in Ingham county, and that the circuit judge refused to permit the information to be filed. Swart might have done this of .malice, which
The judgment will be affirmed, with costs.
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