city of Detroit. My brethren, in effect, concede this.

council of the city of Detroit may permit such interference. And as the city of Detroit, through its proper agencies, must keep this bridge in good repair, and in a reasonably safe condition for public travel, and be responsible under the laws of this

neglect of its duty in this respect, it seems to me better policy that the employes upon this bridge should be appointed and discharged by the common council, a body much nearer the people than a board which is not directly responsible to them, or easily reached by the people, if they go wrong.

(80 Mich. 567)

PEOPLE V. PARROW. (Supreme Court of Michigan. May 9, 1890.) FORMER ACQUITTAL-BURGLARY-LARCENY.

Under Const. Mich. art. 6, § 29, which provides that "no person, after acquittal upon the mer its, shall be tried for the same offense," a conviction of burglary upon an information charging that defendant broke and entered "with intent to steal" is no bar to a prosecution for a larceny committed on the same occasion.

Exceptions from circuit court, Alpena county.

B. W. Huston, Atty. Gen., and James McNamara, Pros. Atty., for the People. Turnbull & Dafoe, for defendant.

If the legislative act is to be construed as invalid when it undertakes to confer legislative power upon the commissioners, and such commissioners have only administrative functions to perform as re-state for all damages occurring through a gards this bridge, what is there left of this section 11? What power can the commissioners exercise under the construction put upon it by this court? They become a mere agency of the city, and as such agent can name the employes, and see to it that the rules and regulations enacted by the common council are enforced. The bridge is to be considered a public street, and not a park or boulevard. And the inconsistency of this construction of the statute is seen when we look at section 6 of the act, creating these commissioners, which provides that they shall have no control over ordinary streets or alleys. Local Acts 1889, § 6, p. 609. Their control extends only over parks and boulevards, and, if this bridge is to be treated as a public highway, the commissioners have no business with it. And over parks and boulevards they are given absolute control, and the common council cannot interfere with them if the act is valid, which I doubt. Id. § 2, pp. 607, 608. The legislature, în makIng this bridge a part of Belle Isle park, evidently intended to give the commissioners the same power and control over LONG, J. The respondent was convicted this bridge as they did of the parks and in the circuit court for Alpena county of boulevards. But, under the construction the larceny of $35 in money. The money of this court, the commissioners cannot was taken from a till in the store of Mueleven fix the number of employes on the lerweiss & Co. on May 31, 1889, in the bridge, or the compensation to be paid night-time. At the time respondent was them. Instead of being masters of the arraigned, and before pleading to the inbridge as a park, as enacted and intended formation for larceny, his counsel moved by the legislature, they are made the serv- to quash the information and discharge ants of the common council, with only one the respondent on the ground that the repoor privilege, to-wit, the naming of the spondent had been tried and acquitted at persons who shall wait on the bridge. the former term of that court of the crime This holding is not only inconsistent and of burglary in breaking and entering the at variance with the act of the legislature, store with intent to commit the crime of but against that public policy, which larceny of the same money. The informamakes it desirable always that the em- tion for the burglary was as follows, after ploye shall be selected by the employer. the title of the court and cause: "James The commissioners can now make no suit- McNamara, prosecuting attorney for the able "or needful rules and regulations," county of Alpena aforesaid, for and in benor can they prohibit any person, animal, half of the people of the state of Michigan, or vehicle passing over the bridge, nor can comes into said court, in the May term they provide for the payment of the engi- thereof, A. D. 1889, and gives it here to unneers and bridge-tenders. So much of sec- derstand and be informed that William tion 11 is declared invalid by this court Parrow, late of the city of Alpena and that there is nothing left of it that can state of Michigan, heretofore, to-wit, on stand under any rule. It is not to be sup- the 30th day of May, in the year one thouposed for one moment that the legislature sand eight hundred and eighty-nine, at the would have passed this section 11 if it city of Alpena in said Alpena county, had contained only the provision that the about the hour of 12 o'clock in the nightcommissioners might appoint the engineers time of said day, with force and arms, at and bridge-tenders, yet that is all that is the city aforesaid, the shop of John Muelnow left them, except that they may have lerweiss, Jr., and Andrew W. Comstock, some policemen detailed to see that the members comprising the firm of Muellerrules and regulations of the common coun- weiss & Company, there situate, not adcil are enforced. I fully agree with my joining to or occupied with a dwellingbrethren as to the effect of the federal act house, feloniously did break and enter, of assent to the building of this bridge, with intent the goods and chattels of said and that the legislature, în view of it, can- Muellerweiss & Co., in the said shop then not confer any legislative power over this and there being found, then and there felobridge; but I am further satisfied that niously and burglariously to steal, take, the legislature can neither make it a park and carry away, contrary to the form of nor boulevard, nor give the commission- the statute in such case made and provid. ers any right to interfere in any mannered, and against the peace and dignity of with it, except in so far as the common the people of the state of Michigan. JAS.

the stone hit any one, and where it appeared that the letter was procured in the course of a severe secret examination by police officers, who told him that the stone bit and killed the deceased, that de: fendant was much agitated at the time, and that the letter was never sent, but was kept for use at

the trial.

3. Three defendants were joined in an information for manslaughter, and took separate trials. It appeared that two of them were in close prox: imity to deceased, a colored boy, threatening and frightening him in drunken rowdyism, and that defendant M., standing at a distance, threw or tossed a stone towards them, which, as claimed, hit and killed deceased. Held, that M. should have the benefit of the evidence of the other two, and to that end the prosecuting attorney should cause them to be first tried, or else should himself offer them as witnesses, that they might be cross-ex

amined.

Appeal from circuit court, Jackson county; ERASTUS PECK, Judge.

Barkworth & Cobb, for appellant. J. A. Parkinson, Pros. Atty., for the People.

| and involved no assault, but arose out of some negligence or fault from which death times not a speedy one, the ordinary forms was a consequential result, and somewere not sufficient, and the information had to be framed upon the peculiar facts, and could convey no adequate information without this. 2 Bish. Crim. Proc. § 538; People v. Olmstead, 30 Mich. 438.

The original information, as filed in this case, charges a felonious killing, and under it the people would have had the right to introduce evidence showing that death resulted from an assault or wound inflicted, and is a good information for manslaughter at the common law. The mere fact that the words above quoted were inserted did not in any manner change the offense. It only made it more specific. Under the theory of the prosecution as to the manner in which the death was caused, the original information was sufficient. It was claimed on the trial that the deceased came to his death by a blow from a stone thrown by the respondent; and whether it was thrown recklessly, with no intent to produce death or great bodily harm, or with intent to hit the deceased, did not change the offense, as death caused by either mode might be charged as manslaughter,-one by recklessness and negligent acts, and the other by more direct violence. Death immediately ensued, and the theory of the prosecution is that it was caused by the respondent in throwing the stone, which struck the deceased and killed him. It was not error to allow the amendinent. The record returned here does not purport to set out all the evidence. It appears, however, that the peo

LONG, J. The respondent Dennis McCullough was informed against jointly with respondents John Wiley and James Murray, and, on a separate trial in the Jackson circuit court, convicted of the crime of manslaughter. After the jury were impaneled, counsel for the defendant request ed the prosecuting attorney to proceed with the trial of defendants Wiley and Murray, he having in his opening stated to the jury that Murray and Wiley were not accused of actual participation nor complicity with the acts of McCullough, which It was claimed produced the death of the deceased. This was refused, and the prosecuting attorney asked leave to amend the information, which was granted. The information filed charged the three defend-ple introduced evidence tending to show ants, McCullough, Wiley, and Murray, that "on the 27th day of April, in the year one thousand eight hundred and eightynine, at the city of Jackson, in said Jack son county, then and there, with force and arms, feloniously did kill and slay one William Cunningham, contrary to the statute in such case," etc. By the amendment permitted there was inserted after the words "with force and arms" the following, “in and upon one William Cunningham there being, did make an assault, and him, the said William Cunningham, did there and then beat, bruise, wound, and ill treat, and then and there, with force and arms aforesaid;" the remaining portion of the information being unchanged. It is urged that this amendment presented a new offense, for which the respondent had not had or waived examination. Manslaughter at the common law very generally consisted of acts of violence of such a nature that indictments for murder and manslaughter were interchangeable by the omission or retention of the allegation of malice, and of the technical names of the offense. In a vast majority of the cases a very simple allegation would be enough for the protection of the prisoner. But there may be manslaughter as well as murder committed where there is no assault, no battery, and no wound in flicted, and the information, in a case of this kind, must be varied to meet the less usual facts. Where the offense of manslaughter was involuntarily homicide, homicide,

that on the night of April 27, 1889, John Farrall, John Devine, Mather Eagon, and the respondents named in the information, Wiley, Murray, and McCullough, left the store of Mr. Lawrence Farrall, on East Main street, in the city of Jackson, about 11 o'clock at night, and went westerly until arriving at Perrine street, crossing East Main street at right angles. Murray and Wiley had been drinking to some extent, and were somewhat under the influence of liquor. Defendant McCullough had only drank two glasses of beer during the evening, and was apparently sober and all right. It does not appear by this record that either of the other parties had drank anything. As they proceeded along the street, they walked two and two, McCullough and Eagon in advance, Farrall and Devine next, and Murray and Wiley last. Just before arriving at the corner of East Main and Perrine streets, they met the deceased, a colored boy, who was going eastward on the walk on East Main street, when some one of the six parties-it is not shown who-said, "There's a coon," and after he had got along to Murray and Wiley they stopped him. He moved out into the gutter, and attempted to go by them. They moved along in front of him, going across Perrine street towards the east. When Murray, Wiley, and the deceased were some 35 or 40 feet from the corner where defendant McCullough and the other parties had stopped, McCullough picked up a stone from the ground, and

threw it, or tossed it, as some of the witnesses say, over in the direction of Murray, Wiley, and the colored boy. This stone struck the ground in the middle of Main street; and some distance from the parties. McCullough picked up another stone, and threw or tossed that. Just after this stone was thrown, deceased was seen to fall. At this time Murray and Wiley were near him, and some of the parties, Murray, Wiley, or deceased, had their hands up, but none of the witnesses testify to having seen Murray or Wiley strike the deceased. The record returned here does not state how the deceased came to his death, except as above. There is nothing in the record showing whether any marks or bruises were found on the deceased, or whether any post mortem examination was had. Upon this branch in the case we are left entirely in the dark. It appears, however, that, as soon as deceased fell, Murray and Wiley walked rapidly away, or ran away, from the scene. Some of the neighbors there heard the noise, whether of Murray and Wiley or the deceased is not stated; but it does appear that Murray and Wiley were jumping around the deceased, apparently attempting to frighten him, and were making some noise, but just what was said by them or done is not made apparent. When the neighbors arrived on the scene, Murray and Wiley had gone away, and the defendant McCullough and the other parties had gone on their way home.

man, and I picked up a stone, and threw
it. It struck the man, and killed him. I
want you to get letters from Mayor Mc-
Comb and Judge Ritchie showing my
good character at my home, and do every-
thing you can for me.
thing you can for me. From your son, D.
MCCULLOUGH. " It appears that during
the conversation, and at the time of writ-
ing this letter, the respondent was very
much agitated, and had been told that
the stone thrown by him killed the de-
ceased. He was told by these officers that
he had better tell the truth about it.
They had got another written statement
from him before the letter was written.
It also appears that while the letter was
being written the counsel for defendant
was in an outer office, waiting to see him,
and was not permitted to do so until the
letter and other statement was secured.
It is not shown that this letter was ever
sent to its destination, and apparently it
was not, as it was found in the hands of
the prosecution, and produced by them on
the trial. If the court was correct in ex-
cluding the testimony of these officers as
to what was said and done there on that
day, then it was error to admit this letter
in evidence. The court was in error in
permitting the letter to be put in evidence.
The circumstances under which it was pro-
cured do not justify its use as evidence
against the respondent. If the testimony
of the respondent is true, they took him
into the room, pulled down the curtains,
and commenced a vigorous system of ex-
amination and cross-examination of him,
telling him that it was the stone which he
threw that killed the colored boy. He ac-
cepted this as true, though he says that he
did not know whether it was so or not.
That he did not intend to hit or hurt any
one, and only threw it or tossed it over in
that direction to attract the attention of
Murray and Wiley. The circumstances
are such that the court was not war-
ranted in permitting the jury to take this
letter, and construe it as a confession of
the defendant that the stone he threw
killed the deceased. He did not know, and
no one of the other parties who stood by

On the trial, the prosecution called the witnesses Farrall, Eagon, and Devine, who were all present at the time of the affray. They also called Mr. and Mrs. Raby and other parties, who resided on the street, who testified to having heard the noise, and to seeing the parties disperse. The respondent McCullough was arrested Sunday by a police officer, and, after some conversation, was released, and rearrested on the Monday or Tuesday following, taken to the police station, and locked up. The chief of police, Mr. Eugene D. Winney, and Capt. Boyle, of the police force, visited McCullough at the station. They were called as witnesses by the pros-him at the time it was thrown pretend to ecution, and asked to state what was said by McCullough at the station after his arrest. The court granted the counsel for the defendant the right to inquire of these officers the circumstances under which these statements were made, before the witnesses were allowed to state the conversation had with respondent. Such Such facts appeared from this cross-examination that the court excluded the testimony. It appeared, however, that during the time these police officers bad the respondent in custody there in the lock-up Capt. Boyle, under McCullough's dictation, wrote a letter to his (McCullough's) father, who resided at Lima, Ohio. This letter was read over to McCullough, and he signed it. The court permitted the prosecution to put this letter in evidence. It reads as follows: "Jackson, Mich., April 30, 1889. John McCullugh, Lima, OhioDear Father: I am in trouble, and want you to assist me all you can. I was out Saturday night with a drunken crowd, and they got into a row with a colored

state, that the stone hit the deceased, except from the inference that the deceased was seen to fall immediately after the stone was thrown. But Murray and Wiley were there with the deceased, and some of them had their hands up. Whether either Murray or Wiley struck him or not is not shown, though they were following him up, and frightening him, and dancing around him in a boisterous manner. The conduct of police and other officers in procuring confessions to be made by prisoners whom they have in charge has often been remarked upon by this court. Where such statements are voluntarily made, and no threats made or inducements held out to obtain such confessions, they may be used in evidence against the accused; but they must be voluntary, and without any influence being exerted by the officer, either of threats, promise, artifice, or duress. This error alone is sufficient to reverse the case; but, inasmuch as the cause must be remanded for retrial, another question raised becomes of great moment.

It is insisted that the defendants Murray and Wiley should not have been joined in the information with respondent McCullough under the claim made by the prosecution in this cause, and under the circumstances as they are made to appear by this record, as it deprives the respondent McCullough of the benefit of their testimony. The parties were jointly indicted. They took separate trials, as was the right of any one of them under the statute. The effect of thus joining all the defendants in one information, charging them jointly with the commission of the offense, is to deprive the respondent of the testimony of the other two. That is, the respondent could not call them as wit nesses in his behalf, and compel them to testify. People v. Van Alstine, 57 Mich. 70, 23 N. W. Rep. 594. The rule is well settled that the prosecution is bound to call all the eye-witnesses to the transaction, unless the number were so great as to make the testimony merely cumulative. People v. Swetland, 43 N. W. Rep. 780. The defendants Murray and Wiley, having taken separate trials, were competent witnesses for the people. It is said in People v. Wright, 38 Mich. 744: "An accomplice is a competent witness in behalf of the prosecution, and it makes no difference whether he has been convicted or not, or whether he be Joined in the same indictment with the prisoners to be tried or not, provided he be not put upon his trial at the same time;" citing Rosc. Crim. Ev. 120; 1Greenl. Ev. §379; Wixson v. People, 5 Park. Crim. R. 126; Taylor v. People, 12 Hun, 213; 1 Bish. Crim. Proc. §§ 1079, 1080.

that the parties were acting in concert, but each seems to have acted entirely independent of the other, as between McCullough and the other two. If the deceased came to his death by the stone thrown by McCullough, then, under the circumstances shown upon this record, it is difhcult to perceive how Murray and Wiley can be held responsible for it. If, on the other hand, the deceased came to his death by any means at the hands of Murray and Wiley, and not by the stone thrown by McCullough, it is equally difficult to understand how McCullough's act in throwing the stone could in any manner be said to implicate him in the crime. The testimony of Murray and Wiley might have thrown some light on the matter. Their testimony would not have been merely cumulative, as they were in a position to know more of the facts than any other present as to how the deceased came to his death. Under the circumstances of this case, and the claim and theory of the prosecution, I think it is the duty of the prosecution to either put Murray and Wiley on their trial before McCullough's case is tried, or tender them as witnesses, so that McCullough may have an opportunity for a full crossexamination. It is true that Murray and Wiley could claim their privilege as witnesses, and refuse to testify to any matter which could in any manner tend to criminate them; but this is a matter of personal privilege to them, and not for the prosecution to interpose. Some other questions are raised, and other assignments of error argued, in the brief of counsel, but we do not deem them of sufficient importance to require notice. The charge seems to have been fair to the respondent. The verdict must be set aside, and a new trial ordered. The other justices concurred.

GRACE V. MCARTHUR.

(76 Wis. 641)

LIBEL-PUNITORY DAMAGES-EVIDENCE-NEW

TRIAL MISCONDUCT OF ATTORNEY.

There is, however, no rule requiring the prosecution to call accomplices as witnesses. It is and must be largely a matter resting in the sound discretion of the prosecuting officer. It is his duty to see that the law is vindicated, and the guilty brought to trial and punished, and it is as well his duty to see that the accused have a fair trial. The prosecutor could not be (Supreme Court of Wisconsin. April 29, 1890.) permitted to join all the parties present at an affray in one information, for the purpose of preventing one or any member of them from being called by the one on trial as a witness in his behalf, and then himself refuse to put the parties present on the stand as witnesses for the prosecution. The theory of the prosecution in the present case is that the deceased came to his death from the stone thrown by McCullough. It is a case somewhat peculiar in its circumstances. There does not seem to have been any concert of action between McCullough, Murray, and Wiley. No conspiracy is shown to do an unlawful act. Each party seems to have been acting entirely independent of the other, so far as McCullough is concerned. In the throwing of the stone, Murray and Wiley do not seem to have been concerned, or to have had any knowledge before the deceased was struck; and, on the other hand, there is nothing in the record indi

cating that McCullough had anything to do with Murray and Wiley following the deceased across the street, and doing him any injury, if any injury was done him by them. The case seems to be entirely devold of any fact or circumstance indicating

1. In an action for libel, the court charged that damages, are given by way of punishment or ex"punitory damages, as distinguished from actual ample, when it is found that the acts of the defendant tending to the injury of the plaintiff are willful, wanton, or malicious. If you reach this question, you may give such damages on this account as, in view of the evidence, you think should be given in the exercise of good judgment and discretion." Held, that there was no error, where the court had already, in a charge to which no exception was taken, defined evidence of express malice and personal ill will, and said that these had a direct bearing upon the question of damages.

2. It was proper, for the purpose of showing malice, to admit in evidence other articles than the one complained upon.

dence of a conversation in regard to an article not 3. It was not prejudicial error to admit evigiven in evidence, where such conversation did not disclose the character thereof, and was so remote from the issue as to have no bearing upon it.

4. It was proper to exclude an article written by defendant, and offered in his own behalf; especially where it was not offered until the evidence

was closed.

5. Where the jury might properly have found from the evidence that a libel was published in a newspaper with actual malice, a verdict for $3,000 is not excessive.