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where he was, it would get him into trouble, and that the officers were after him, and he did not want to spend five years in jail, and to destroy the envelope and letter, but to put down the fictitious name and address, so that he would not forget them, and "for God's sake, don't forget what I said or say a single word to any person, or my life is in danger." If it be conceded that this was admissible testimony, there was a proper case for the jury. People v. Carroll, 54 Mich. 334 (20 N. W. 66).
In People v. Wood, 99 Mich. 621 (58 N. W. 639), we held that:
"The jury were properly instructed that the possession of stolen property found with persons accused of burglary is not prima facie evidence of the burglary, but, if they found that whoever broke and entered the mill stole the flour therefrom, then, in whosesoever possession the flour was found shortly after, it would be evidence of larceny, and they would be justified in finding such parties guilty of burglary, as well as of larceny."
See, also, People v. Hogan, 123 Mich. 233 (81 N. W. 1096).
Errors in Admitting Evidence. (a) Possession of other articles. It was competent to show that at the time defendant was detected in possession of the clothing, he also had a suit case, cap, and other articles similar to those which were in the store at the time of the larceny, although they had not been missed, and notwithstanding the fact that there was no charge that they had been stolen, and the owner could not testify that they had been taken unlawfully on that or any other occasion. The testimony of defendant's wife's mother that he had such articles soon after the breaking was also competent. The value of such testimony would depend upon other facts and circumstances.
(b) Conduct of defendant. The conduct of a defendant is always admissible, e. g., his falsifications regarding the property found in his possession, or his whereabouts at
the time the offense was committed, attempts to abscond, etc., etc.
(c) Declarations. The deputy sheriff was allowed to testify to conversations with defendant, at the time of their first interview, and later. At such times he said to defendant that he "would like to get at the bottom of the thing," and he testified that he might have told him on the first occasion, as he did later, at the store and at the jail, that "the best thing he could do was to tell the truth, so that if he was innocent, we would know it."
We are unable to find in these conversations anything in the nature of confessions that he committed the offense, but defendant did make statements which, though denials, were, by reason of their falsity, some evidence in corroboration. Among them was the statement:
"My God, I must have been crazy; I don't know why I cut them out."
This referred to the labels on the garments at the time of the first conversation, but which were removed later. Looking at all of this evidence, it is very doubtful if the statements were made from any hope of leniency. No such promise was made, or expectation justified, unless inferable from the statement made by the officer, that it would be better for him to tell the truth. It was proper to submit these questions to the jury, which the learned trial judge did. People v. Howes, 81 Mich. 401 ( 45 N. W. 961); People v. Maxfield, 146 Mich. 104 (108 N. W. 1087); People v. Flynn, 96 Mich. 279 (55 N. W. 834); People v. Warner, 104 Mich. 339 (62 N. W. 405); People v. Owen, 154 Mich. 574 (118 N. W. 590, 21 L. R. A. [N. S.] 520), and cases cited.
A letter and envelope proved to be in the handwriting of the defendant were introduced against objection. The letter follows:
"Mr. LEON TRINE,
"ALBION, MICH. October 19, 1909.
"Dear Brother: I suppose you thought I was kidding
but I am going away today, but don't tell anyone. I'm in a hurry so don't think I could see you and maybe it will be some time before I ever will. Bessie wants you to bring another of those aprons so don't forget it, but this thing I want you to keep a secret from everyone if you tell anyone, it will get me into trouble, and I don't like to spend five years in jail. When you go to the post office ask for mail for O. B. Ball, that's my letter, I don't want a person to know where I am, don't forget it now I dare not write to home or some one will know where I am, so just ask for O. B. Ball, general delivery, and it will be all right. Soon you get it then destroy the envelope and give the letter to ma, but be careful and it will be all right. Destroy this letter so no one will not see it but put down the name so you won't forget it anyway; I said when I leave it would be in a hurry, and I never be in Albion again, for years to come. Maybe I can see you some times, but how or when I don't know so I will close for this time, but for God's sake don't forget what I said, or say a word to a single person or my life is in danger, so good bye.
The envelope is addressed," Mr. Leon Trine, Jackson, Michigan. General Delivery." If this letter was obtained with other property by the officer at Grand Rapids, from defendant's effects, at his boarding house, as his counsel claim, our attention is not called to the proof of the fact, but this is immaterial. The testimony was admissible under the rule laid down in the cases of Cluett v. Rosenthal, 100 Mich. 193 (58 N. W. 1009, 43 Am. St. Rep. 446), and People v. Campbell, 160 Mich. 112 (125) N. W. 42).
We are of the opinion that there was testimony justifying a submission of the case to the jury.
The action of the prosecuting officer in calling defendant's wife to the stand as a witness against her husband, without first getting the consent of the defendant, was improper, and may well have prejudiced his case. This was within the criticism of such conduct in the cases of People v. Van Alstine, 57 Mich. 82 (23 N. W. 594), and Laird v. Laird's Estate, 127 Mich. 27 (86 N. W. 436); Thompson v. Railway Co., 91 Mich. 255 (51 N. W. 995);
Johnson v. Railway Co., 135 Mich. 360 (97 N. W. 760), and cases cited; Cavanagh v. Riverside Township, 136 Mich. 660 (99 N. W. 876); Hillman v. Railway, 137 Mich. 184 (100 N. W. 399); Oliver v. Jessup's Estate, 137 Mich. 645 (100 N. W. 900); Spencer v. Simmons, 160 Mich. 292 (125 N. W. 9). Such errors by the prosecuting officer are not easily cured. People v. Treat, 77 Mich. 350 (43 N. W. 983); People v. Nichols, 159 Mich. 355 (124 N. W. 25). The statute prohibits testimony by a wife against a husband without his consent. By calling defendant's wife, he was compelled to assert his nonconsent, which was thereby brought to the attention of the jury, who might naturally draw prejudicial inferences. The conviction is reversed, and the cause remanded for a retrial.
MOORE, J., concurred with HOOKER, J.
BLAIR, J. I concur in reversing the case upon the ground stated, but am of the opinion that evidence of the possession of the suit case and other articles not shown to have been the property of the complainant, or to have been taken from the store, was incompetent.
MCALVAY and BROOKE, JJ., concurred with BLAIR, J.
In re DU BOIS' ESTATE.
1. EVIDENCE-WILLS-OPINION EVIDENCE.
An opinion of a witness, on the trial of the question of mental competency to execute a will, that the testator understood what he was doing at the time of executing his will, was admissible, whether or not he had testified to facts and circumstances sufficient to admit his opinion as to the mental competency of deceased.
A question framed as follows: "State whether or not the stories (narrated by testator) were reasonable, connected stories," was not open to the objection that it was leading, but was properly excluded, since it called for the conclusion of the witness.
8. SAME-MEDICAL AUTHORITIES.
On cross-examination of a medical expert, the trial court rightly refused to permit counsel to read extracts from a medical work, and to ask the opinion of witness concerning it.
4. SAME-COMPETENCY-EXPERT AND OPINION EVIDENCE.
After the court had refused to permit a witness to answer a question concerning testator's mental competency, counsel asked whether or not testator was able to transact ordinary business matters, and witness answered the first question, excluded by the court, testifying that the deceased was sane and competent to make a will. No motion was made to strike out the answer: Held that the question was admissible, the answer being objectionable as not responsive and incompetent, but no error was committed in failing to strike it out, in the absence of a motion.
5. WILLS-UNDUE INFLUENCE.
Undue influence may be proved by other than direct testimony that it has been exerted; and circumstances disclosed by the will itself and the manner of procuring it to be made may raise the presumption that undue influence has been exerted.
But where no such circumstances were disclosed by the evidence, the question was properly withdrawn from the consideration of the jury.