relief, were it not that he has made no application whatever to the court below, or the judge thereof, for relief.

A motion was made by some of the other defendants for a dissolution of the injunction, a relief which they clearly were not entitled to. Had the relator made a proper application for relief to the extent mentioned, we must assume it would have been granted. In so far as relator, or his co-complainants through him, seek to have the judgment of the superior court set aside or declared null and void, or seek to interfere with the due and proper collection thereof by the plaintiff and his attorneys, and ask this court to assist them therein by issuing a writ of prohibition as prayed for, we must decline.

No application having been made by relator to the superior court for relief, the writ must be denied, with costs to relator.

(The other justices concurred.)

Filed November 29, 1879.

In a prosecution for rape it is proper to lay before the jury the natural and actual relations of the accused and prosecutrix, as also such other facts as bear fairly on the accusation. A prosecutrix, in proceeding for rape, may testify as to the fact of her making complaint directly after the alleged offence. Certain testimony held not improperly excluded as immaterial. Denial of certain requests of the defendant in this case, based on a rejection of the theory of the prosecution of operation of fear in aiding in overcoming the resistance of the prosecutrix, held properly refused. Charge given as to the effect to be given to evidence of a complaint made, held proper.-[ED.

Error to Manistee.

Morris & Nelson, for plaintiff in error.

Otto Kirchner, Attorney General, for the people.

GRAVES, J. The jury found the plaintiff guilty of rape upon Ellen Maillet, a girl between 15 and 16 years of age, and he was sentenced by the circuit judge to imprisonment for a term of years.

He complains of rulings on his trial. The girl was allowed to testify that the prisoner was her father; that he was a man of great strength, had been abusive to his family, and had many times beaten her mother; that he was in liquor when he outraged her, and that she was frightened, and in great fear of him. Many particulars were given.

The admission of this evidence requires no discussion. The principles justifying such evidence have been fully explained and illustrated in this court.

It was proper to lay before the jury the natural and actual relations between the accused and prosecutrix, and also such other facts as bore fairly upon the accusation. Without such aids the charge could not be intelligently investigated. They were necessary clues to truth. Strong v. The People, 24 Mich. 1; People v. Lynch, 29 Mich. 274, 288; Turner v. The People, 33 Mich. 363; Rogers v. The People, 34 Mich. 345.

The prosecutrix was asked if she told the priest or any one else about the affair, and if so, who was it she told, and what she said; and this was objected to as irrelevant and immaterial. In overruling the objection the judge remarked that it was competent to show when she first made complaint, and to whom and what she said. An exception having been taken an argument is now made which is not authorized by the record.

It is assumed that on this ruling being made the witness proceeded to repeat before the jury the details embraced in her alleged disclosure to the priest and her mother; but this is not so. And whether a repetition, had it been made in this case, would have justified an exception, (People v. Lynch, supra, 280, top; Brown v. The People, 36 Mich. 203,) a point upon which, as we express no opinion, it is quite enough that her answer, as given, went no further than to convey that she informed the priest, and at a later time, and after an offer to repeat the injuries, her mother also. This evidence was not objected to; neither was it worthy of objection. During her cross-examination the prosecutrix testified that, on her leaving the priest's on the occasion when he told her to make a complaint, she found her mother in front of the lumberman's store, waiting to find out what the priest wished in sending for her. The judge interposed by saying that he thought this was entirely immaterial.

The prisoner's counsel claimed that it bore on the girl's credibility, and, in support of that view, added that he intended to prove that the girl did not make the accusation on account of anything the priest had told her, "but on account of what she and her mother made up before." The circuit judge repeated his opinion, and the defence took an exception.

After an attentive examination of the record we are not

able to construe this ruling as intended to apply to anything beyond the statement which first prompted the judge to interfere; and while we think that that statement might with great propriety have been allowed to pass without comment, we are not able to hold that the opinion expressed by the judge upon it was erroneous.

The defence made no formal offer of evidence, and we infer that the circuit judge did not understand that one was involved in the remark of counsel. The object of attention was the statement of the girl about her mother's waiting to find out what the priest wanted. This it was which called out the interchange of expressions, and the remark of the counsel concerning his purpose to prove a conspiracy was designed to present a reason in favor of the materiality of the girl's statement, which was in question, and was not shaped or apparently meant as a tender of evidence.

Hence, after a careful scrutiny of the record, we cannot say the circuit judge decided, or was understood as deciding, that it would not be competent for the defence to show that the prosecution was the result of a conspiracy between the mother and daughter to make the accusation.

It is no less necessary in criminal than in civil cases that error be made out affirmatively, and it cannot be shown by forcing the scope and application of observations at the trial, concerning evidence, where the complaining party is properly responsible for whatever lack of clearness may be discovered.

If it were the purpose of the prisoner's counsel to tender evidence to show conspiracy, it was due to the judge and to the administration of justice to do it in such terms and under such circumstances that with proper attention to the proceedings there could be no reasonable excuse for misapprehension at the trial, or any serious question of construction of the record.

The requests on behalf of the accused were properly denied. They excluded an indispensable consideration. The prosecution maintained that owing to the relations of the accused to the prosecutrix, and his ways of violence, and the fact that he was in liquor, together with the other circumstances put in evidence, her ability to offer much physical resistance was paralyzed by terror, and that she was consequently overcome by the combined operation of the fear he excited and the actual violence he employed. And on this theory the case was strong, and it was the only theory on

which a conviction could be fairly urged. These requests, however, ignored it and desired the case to be submitted on a hypothesis which was foreign to it. The giving the requests would have been tantamount to a direction to disregard the case made by the people and to acquit the prisoner. The ruling in Strong v. The People, supra, directly applies.

In the course of the charge the judge told the jury that the time of making complaint of such an injury was a circumstance considered relevant, "as tending to prove the truth of the charge, for the reason that it is natural for the woman ravished to make complaint as soon as possible." Complaint is made of this passage as misleading. It is objected that the expression used makes the time of complaint a circumstance to corroborate the charge, but never to militate against it. This criticism will hardly bear examination. The concluding part of the proposition refutes the construction.

In saying that an early complaint would be natural in a true case the judge said substantially that delay would be an unfavorable circumstance. It would be an imputatlon on the good sense of the jury to suppose they may have understood the charge as meaning that the time of complaint was of no importance except as evidence in favor of the truth of the accusation. As every person capable of reasoning must see at once the absurdity of such a notion, the case would have to be a strong one to warrant belief that a jury had been led to accept and act upon it.

We find nothing further among the points insisted on worthy of mention. The whole case is really covered by principles laid down in former decisions.

As no error is shown the judgment must be affirmed. (The other justices concurred.)

FOLKERT C. FOLKERTS and others vs. ALBERT L. POWERS.

Filed November 29, 1879.

Under the legislation in regard to school district of the township of Alpena, and organizing the city of Alpena, the tax for schools within the city can be collected only on what is known as the "city roll;" and where a tax for such purpose is assigned to the second roll provided for in such charter, it is inoperative. Case held a proper one for bringing in an additional party at the hearing.-ED.

Appeal from Alpena.

J. B. Tuttle and Turnhill & McDonald, for complainants.
J. D. Holmes, for defendant.

GRAVES, J. The elaborate effort of counsel to vindicate the tax proceedings assailed by this bill has not satisfied the court. The main question, and that which is certainly decisive, depends on the city charter.

In 1867 the legislature enacted that the school inspectors of the township of Alpena were authorized to organize, according to the provisions of the school laws of the state, the entire township, or so much of it as they deemed necessary, "into a school district, to be known as Union school district No. 1 of said township." The inspectors, acting upon this authority, organized the district over the whole territory of the township. Subsequently, and on the twenty-ninth of March, 1871, the legislature incorporated on a small part of the same territory the city of Alpena.

The act of incorporation took immediate effect, and the creation of the city government carried with it a change of local agency in the assessment and collection of taxes within ⚫ the city limits, and consequently over so much of the territory of the school district as the city covered.

The powers possessed there by the township authorities previously at once came to an end, and at the same time the city authorities were vested with such as were thought suitable and necessary.

No other agency remained and no tax could be collected without written law. The charter declared that it should not be deemed in any manner to affect or modify the act of 1867, authorizing the organization of the school district, and it seems to be supposed that this was meant to express the sense of the legislature that the charter should not affect the pre-existing modes and time for collecting taxes for the district. But this is not so. The object was to guard against any inference that the school district corporation was infringed by the charter, and not to exclude alterations in regard to the time and manner of collecting the taxes necessary for it. They were distinct matters, which had never been confided to it. The section containing this declaration and other sections closely associated were enacting a change in the agencies and methods of dealing with district taxes, and it would be unreasonable to say that the legislature was declaring in the same breath that such changes were not intended.

The charter takes notice of the general regulations for the assessment and collection of taxes, and accommodates itself