SUPREME COURT RULE 45.

The court, on the first day of each term, after motions are disposed of, will commence calling the cases for argument in the order in which they stand on the calendar as re-arranged, and proceed from day to day during the term in the same order, and if the parties, or either of them, shall be ready when the case is called, the same will be heard; and if neither party shall be ready to proceed in the argument, the cause will be regarded as submitted on briefs. No cause after being placed on the call shall be withdrawn therefrom except to continue the same, and a continuance will be allowed only upon a sufficient showing of the death or illness of counsel. Fifteen cases only shall be considered liable to be called on each day during the term, including the one under argument, if the same shall not have been concluded on the preceding day. No cause shall be taken up out of its order, or set down for a particu lar day, except under special and peculiar circumstances to be shown to the court. On motion days, motions will take precedence of calendar causes.

Amended June 6, 1911.

Ordered to take effect July 1, 1911.

(xxx1)

OCTOBER TERM, 1910.*

PEOPLE v. TRINE.

1. BURGLARY-CRIMINAL LAW-CORPUS DELICTI-EVIDENCE. It is sufficient evidence of the corpus delicti, in a prosecution for breaking and entering a store, that the rear door was broken open while the store was closed for the night, and that articles were taken from the stock.1

2. SAME REASONABLE DOUBT.

Although the court may not be able to say that the elements of the crime have been proved beyond a reasonable doubt, the testimony should be submitted to the jury, if it tends to establish the necessary elements.

3. SAME TIME OF COMMITTING.

Whether or not the store was broken into in the nighttime, is a question for the jury, where the breaking occurred after the store was closed at nine o'clock in the evening and was discovered before sunrise, about seven o'clock next morning.

It was error to admit evidence that respondent had in his possession, at the time of his arrest, a suit case and other articles similar to goods kept in the store, where the articles in respondent's possession were not shown to have been the property of the merchant, or identified as taken from the store. HOOKER and MOORE, JJ., dissenting.

5. CRIMINAL LAW-CONDUCT OF ACCUSED EVIDENCE.

Evidence was admissible concerning the conduct of accused, such as false statements concerning articles which he had, and which were alleged to have been stolen, his absconding after the crime, and his presence in the town at the time the offense was committed.

6. SAME-ADMISSIONS-STATEMENTS TO OFFICER.

And no error was committed in receiving in evidence statements made by the respondent to the officer who arrested him, when the statements were not in the nature of confes*Continued from Vol. 163.

'As to proof of corpus delicti in criminal case, see note to Bines v. State (Ga.), 68 L. R. A. 33.

sions and no promise of leniency was made by the officer, who merely advised respondent that the best thing he could do would be to tell the truth.

7. SAME-CORRESPONDENCE-SEARCHES AND SEIZURES.

A letter tending to incriminate respondent, found in his rooms when they were searched, was competent evidence, even though it was secured without a search warrant.

8. SAME-HUSBAND AND WIFE-EVIDENCE OF WIFE.

It was prejudicial error for the prosecuting attorney to call respondent's wife as a witness, without first obtaining the consent of the accused, who was compelled to make the objection that her testimony was incompetent under 3 Comp. Laws, § 10213.

Exceptions before sentence from Calhoun; North, J. Submitted October 21, 1910. (Docket No. 151.) Decided December 22, 1910.

Floyd Trine was convicted of breaking and entering in the nighttime, a store, not adjoining to or occupied with a dwelling house. Reversed.

E. J. Dennison, for appellant.

Franz C. Kuhn, Attorney General, H. W. Cavanagh, Prosecuting Attorney, and Fred Cavanagh, Assistant Prosecuting Attorney, for the people.

HOOKER, J. The testimony offered by the prosecutor in this case tended to prove that the complainant owned a store in the city of Albion, and that upon the night of December 18th, or thereabouts, after 9 p. m. and before 7 a. m. of the following day, a panel was broken in a rear door, and access obtained to the interior of the store; that this was discovered about 7 a. m. of December 19th; also that at that time some money was found to be missing from the cash register or drawer. A few days later it was discovered that some articles of clothing were missing from the store. Some months later defendant was found in possession of some clothing claimed to be the missing articles, and he has been convicted of breaking and entering a store,

"not adjoining to or occupied as a dwelling," in the nighttime, with burglarious intent. The case is before us on exceptions before sentence.

Corpus Delicti. There was testimony in the case fairly tending to show the breaking and entering of such a store, and stealing some of complainant's property in the nighttime. This prima facie established the corpus delicti, and, under the most rigid rule, made proof to connect defendant with the transaction admissible. People v. Mindeman, 157 Mich. 120 (121 N. W. 488). It is true that we cannot say that each of these elements was proved beyond a reasonable doubt. That is usually a question for the jury, and such proof is not a prerequisite to the introduction of testimony identifying a defendant as the lawbreaker.

Whether this occurred in the nighttime was an open question to be decided upon the probabilities. It was after dark and the breaking was discovered soon after daylight, at any rate before sunrise. There was enough in the circumstances to warrant the jury in concluding that it occurred before daylight, and such conclusion is therefore final.

Evidence of Defendant's Guilt. The connection of the defendant with the transaction was sought to be established: First, by his possession of clothing; second, by his conduct; third, by his declarations.

Counsel for defendant contend that his discovery in the possession of the clothing was too remote in point of time to admit of any presumption of guilt therefrom. Standing alone it is probable that such possession would be very slight evidence that he took these articles unlawfully on that, or perhaps any, occasion; but in conjunction with other facts and circumstances, such a conclusion might be a natural and proper one. There is evidence that he made false statements about the clothes, that he was in Albion that night, that he had new clothes immediately afterwards, that he went away trying to conceal his whereabouts, that he wrote to his brother that if he should tell