that, supposing Fuller was dead, Mr. Williams married her; that he afterwards learned Fuller was alive; he advanced the money, and Mrs. Fuller obtained a divorce from Fuller; that at this time she was keeping house for Mr. Williams as his housekeeper, but not as his wife, and continued to do so for two or three months after the divorce; that, as he did not deem his marriage with her was legal, he never got a divorce from her. He also testified that afterwards he understood she married one William Miller at Saginaw, and still later married respondent. Anna Carpenter was sworn as a witness on the part of the respondent, who testified that before marrying Goodrode she married Miller in Saginaw, in the presence of witnesses, by a man who was represented as a minister, and she and Miller lived together, and were not divorced when she married Goodrode.

For the purpose of rebutting this testimony, the people were allowed, against the objection of the respondent, to introduce in evidence the following paper: "State of Michigan, County of Saginaw-ss.: I, R. Crowfoot, County Clerk and Clerk of the Circuit Court, having a seal, do hereby certify that after diligent search of the records of marriages of said County, under my control, I am unable to find any record of a marriage between Wm. Miller and Anna or Angeline Carpenter, Fuller or Williams. Witness my hand and seal of the Court of Saginaw, this 9th day of April, 1902. [Signed] R. Crowfoot, County Clerk. [Seal of the Circuit Court of Saginaw County, Michigan.]"

As to this part of respondent's defense the court charged the jury, among other things: "It is claimed by the respondent that his marriage to Anna Carpenter was void and illegal for the reason that she was at the time of said marriage the wife of one William Miller. I charge you that this claim is no defense to respondent, unless the evidence in the case shows this claimed marriage to William Miller to have been a legal one. If Anna Carpenter and William Miller merely went through a sham ceremony, then it was no marriage, and would be no defense. Under the laws of this state in the solemnization of marriage no particular form is necessary except that the parties shall solemnly declare in the presence of the magistrate or minister and in the presence of the attending witnesses that they take each other as husband and wife, and in every case there must be at least two witnesses besides the magistrate or minister present at the ceremony. If any ceremony was performed at all between William Miller and Anna Carpenter, it appears from the testimony that but one witness was present, and it further appears that this marriage was performed, if at all, in Saginaw, and it appears from the certificate of the county clerk of Saginaw county that no record of such a marriage is found in that county. You are

at liberty to consider this as testimony to show that the marriage claimed to have been had between William Miller and Anna Carpenter was not a valid marriage, and, if it was not a valid marriage, then it is no defense to respondent. Mr. Anderson: Now, if your honor please, there is one place in there that should be changed, where it says, 'It appears from the testimony that but one witness was present.' I think it would be an error to leave that little statement in, and would like to have that changed. The Court: Well, that statement on the prosecutor's statement is eliminated from this request." Again: "I think I am safe in saying to you, if this Mrs. Carpenter and this man William Miller honestly contracted a marriage, and agreed to take each other as husband and wife, and lived together as such, and were known as such in the community, then that would be in the law a marriage. But that is for you to say, and in considering that point you will consider the evidence of the kind of ceremony. In passing upon that you will consider the fact that the name of the minister-that is, in weighing her testimonyis not repeated here, and the fact that there is no record of the marriage. All these things you may consider as bearing upon the question of good faith of that marriage."

The respondent insists the admission of the certificate of the clerk of Saginaw was not admissible, as the accused was entitled to be confronted with the witnesses against him. The people say the testimony was admissible, citing People v. Jones, 24 Mich. 215. A reference to that case will show it is easily distinguishable from this one. In that case the facts proven were essentially documentary, and of an affirmative character. In the opinion the court used the following language: "We do not think the provision of the Constitution securing to the defendant in a criminal prosecution the right 'to be confronted with the witnesses against him' can apply to the proof of facts in their nature essentially and purely documentary, and which can only be proved by the original, or by a copy officially authenticated in some way, especially when the fact to be proved comes up collaterally, as in the present case." In the case at bar the question to be decided was whether or not Anna Carpenter and William Miller had in fact been married, as she testified. The fact to be proven did not depend upon the existence of documents, but depended, in this case, upon whether or not a marriage ceremony was performed as testified to by Anna Carpenter. This could best be shown by the persons who are said to have been present as the contracting parties, the minister, or any one else who might have been present. In People v. Lambert, 5 Mich. 349, 72 Am. Dec. 49, it was held that a certificate of marriage signed only by the minister or officiating officer, or the record thereof, cannot avail as evidence of the marriage in criminal proceedhave been left with the jury to say what weight should be given it.

The judgment and verdict should be set aside, and a new trial ordered.

son.

There was positive testimony of the marriage ceremony, and that the parties were reputed to be husband and wife. It was sought to discredit this testimony in the manner indicated. We do not think it tends to do so, but the logical inference would be that the person whose duty it was to make the return had failed to make it. A conviction of so serious a crime as bigamy ought not to be predicated upon an inference of so doubtful a character.

There was no occasion for the trial judge to say to the jury, "If Anna Carpenter and William Miller merely went through a sham ceremony, then it was no marriage, and it would be no defense." It was the claim of the people that no marriage in fact was performed between these persons, while Anna Carpenter testified that the marriage ceremony was performed by a minister in the presence of witnesses. Her claim was either true or it was false. There is no testimony in the case that, if a marriage ceremony was performed, it was a sham ceremony, and the charge was calculated to prejudice the jury.

Again, when the judge undertook, at the suggestion of the prosecuting attorney, to correct his charge by saying, "Well, that statement of the prosecutors is eliminated from this request," he did not correct the error in the charge. He had told the jury that, to constitute a valid marriage, there must be at least two witnesses besides the magistrate or minister present at the ceremony. He then instructed them, "It appears from the testimony that but one witness was present," in effect telling them no valid marriage was performed in Saginaw. While the jury may have understood that the court recalled what he had told them about the testimony showing there was but one witness present, it did not correct what he had charged them was necessary to constitute a valid marriage.

The charge of the court was calculated to

HOOKER, C. J., and CARPENTER, J., concurred with MOORE, J. MONTGOMERY, J., concurred in the result. GRANT, J., took no part in the decision.

PEOPLE ▼. GORSLINE. (Supreme Court of Michigan. March 30, 1903.)

INFORMATION

BRIBERY SUFFICIENCY STATE COUNSEL'S OPENING STATEMENTCONSPIRACY-OFFICIAL MISCONDUCT-PURPOSE OF BRIBE-DEFENSE-INSTRUCTIONSOTHER OFFENSES.

1. Comp. Laws, § 11,311, punishes every person who shall corruptly give to any officer any gift, with intent to influence his official action. Sess. Laws 1887, Act No. 29 (Comp. Laws, §§ 5586-5589), authorizes the payment of bounties on English sparrows. An indictment for paying a bribe to a village clerk charged that the purpose was to induce him to issue false "sparrow certificates," as provided by Sess. Laws 1887, Act No. 29. Held, that the failure to insert the word "English" before the word "sparrow" was not a fatal defect.

2. In a prosecution for bribery, counsel for the state in his opening stated that he would show that, previous to the spring of 1899, defendant G. was deputy village clerk, and that he and defendant L. were engaged in transactions by which false sparrow certificates were issued by G. to L. and cashed by the latter; that, knowing that his superior was not to be reelected, G. induced S. to run for clerk, and introduced L. to him as a sparrow hunter, with whom he would do business if elected; and after S.'s election, L. and G. at once began to pay him money and receive fraudulent certificates. Held, that the statement was not objectionable, the theory of the prosecution being that these facts tended to show a conspiracy, characterizing and making clear L.'s motive in making a certain payment on which the prosecution rested.

3. In a prosecution for bribing a village clerk to issue false sparrow certificates, defendant's request that if he, at the request of the county clerk, and for the purpose of ascertaining the village clerk's misconduct, went to the village clerk and procured the certificates, and did not intend to use them to obtain money, he must be acquitted, was refused; but the court charged that defendant could not be convicted unless the money was given the clerk for the purpose of corrupting him and influencing his official action; that defendant claimed the payment was made to detect crime, that if it was made for any purpose except to detect crime, defendant should be convicted, and, if not made with the corrupt intention of doing wrong, he must be acquitted. Held, that the instruction given sufficiently covered the one refused.

4. The court instructed that defendant committed a wrong from the beginning in paying money to the clerk; that it was demoralizing to the officer and to defendant and to everybody that public officers should receive money for the things the law obliges them to do without pay, but, however wrong such conduct may have been, it was introduced merely to show the relation between defendant and a codefendant, and as bearing on the intention with which the

payment on which the prosecution was based was made; that the jury should not forget it would be a great wrong to convict defendant on these earlier payments; and that, however wrong that might have been, this case was not planted on those occurrences. Held, that the instruction was not objectionable as unnecessarily condemning the admitted conduct of the parties.

5. The court instructed that the jury should consider the way the sparrows were brought to the clerk, the memoranda left with the clerk, "if you find that there were memoranda left, and the respondent himself admits some of them. It is stated here, and admitted by the defendant, that he used to leave memoranda with certain figures of the amounts that he placed in there, and asked orders to be drawn for more than the amount of birds delivered; that he intended afterwards to furnish the birds to make up the amount of the orders." The defendant had denied in his testimony that he ever received orders in excess of birds delivered, though there was much evidence to the contrary. Held, that the recital in the instruction of defendant's admission of the memoranda

HOOKER, C. J. The defendant Gorsline was convicted of bribery, under an informa. tion which charged that he and one Gruber paid to one Struble, a village clerk, $25, "to influence and induce and cause him, said Jay Struble, village clerk as aforesaid, to issue to said persons, viz., Louis Gorsline, fraudulent and false sparrow certificates provided by law to be issued by village clerks under and by virtue of Act No. 29 of the Session Laws of Michigan for the year A. D. 1887, and the amendments thereto, upon the lawful compliance with its provisions."

It is contended that this information is fatally defective, because it did not contain the word "English" before the word "sparrows," inasmuch as the statute provided for the payment of bounties on English sparrows only. See Comp. Laws, p. 1758, §§ 5586-5589.

The statute under which defendant was prosecuted is section 11,311, Comp. Laws, and is as follows: "Every person who shall corruptly give, offer or promise to any executive, legislative or judicial officer, after his election or appointment, and either before or after he shall have taken his seat, any gift or gratuity whatever, with intent to influence his act, vote, opinion, decision or judgment on any matter, question, cause or proceeding which may be then pending, or may by law come or be brought before him in his official capacity, shall be punished by imprisonment in the state prison not more than five years, or by fine not exceeding three thousand dollars and imprisonment in the county jail not more than one year."

94 N.W.-2

The information shows upon its face that the sparrow certificates contemplated by the parties were such as could be issued by lawful compliance with the statute heretofore mentioned, and it could refer to nothing but English sparrows. There was no possibility of a misapprehension of its meaning, and we think the learned judge did not err in holding it a good information.

In opening the case to the jury, the prosecutor stated that he would show that, previous to the spring of 1899, defendant Gruber was deputy clerk, and that he and Gorsline were engaged in similar transactions to the one charged. That, knowing that his superior was not to be re-elected, Gruber induced Struble to run for clerk, and introduced Gorsline to him as a sparrow hunter, with whom he would subsequently do business if elected. That, after Struble's election, Gorsline and Gruber at once began to pay him money and receive fraudulent certificates for sparrow bounties which they collected.

These statements were objected to. The theory of the prosecution was that this testimony tended to show a conspiracy which characterized and made clear the motive and purpose of defendant in the payment of the $25 in December upon which this prosecution rests. We are of the opinion that it was within the rule of the case of The People v. Seaman, 107 Mich. 362, 65 N. W. 203, 61 Am. St. Rep. 326. The testimony shows that the money in question was furnished by the county clerk, who had become suspicious of Struble, with a view to the detection of his unlawful practices, and the defendant claimed it was for this purpose only that the defendant paid the money. On the other hand, the prosecutor claimed that the payment was made by the defendant for the purpose of securing evidence which he could use to prevent Struble from divulging his, defendant's nefarious conduct on former occasions.

Counsel for the defendant submitted the following request: "That if they find that the respondent, at the request of Rowlader, and for the purpose of ascertaining that Jay Struble was issuing false sparrow orders, and for the purpose of confronting him with it and thus stopping the crime, went to Struble and procured the four December orders and paid him twenty dollars for same, and did not intend to use them to obtain money upon, they must acquit."

This was not given, but it is claimed to have been fairly and fully covered by the charge, and we think this is true. The court said:

"Now it makes no difference whether Struble issued any orders or not after the payment of it. The crime was completed, if it was a crime at all, at the time the money was offered by the respondent. Now, the respondent admits that he did pay money at that time to Struble, as I said before, and claims that he paid it at Shepherd. It makes "As a general proposition to direct you in this, I will say that the respondent cannot be convicted unless you find beyond a reasonable doubt that, at the time claimed by the people, the money was given to Struble, by or through the agency of the respondent, with the corrupt intention and for the purpose of corrupting him and influencing his official action in issuing fraudulent certificates mentioned in the information. As I said to you before, that must have been the purpose, and whether or not Struble ever issued them would make no difference, if he received the money. If he had then said, 'I won't issue any certificates,' the crime would be just as complete as it would be if he had issued them, if it was paid to him with the corrupt intention of influencing him in his official action.

"It may have occurred to you that this respondent was committing a wrong from the beginning in paying money to Struble. That is true. He had no right in the world to pay the first twenty dollars to him to pay him for counting sparrows, because the law itself obliged Struble to count all sparrows that were brought to him that were caught in the village of Shepherd, under the statute.

"It was entirely wrong from the beginning for him to pay any money. It is demoralizing to the officer, and to the respondent himself, and all the people, that the people shall be placed in position of having its officers receive money from individuals with whom they are doing business for the purpose of paying them for doing things that the statute obliges them to do without pay; but, however wrong that may be, it is introduced here simply for the purpose of showing the relation existing between the respondent, Struble, and Gruber, and as having a bearing upon the intention with which the act of December was done.

"Now, don't forget that it will be a great wrong to the respondent, and a great wrong to the people, if you should say that this man should be convicted by reason of having paid money in May or June to this officer. However wrong that may have been, this case is not planted upon that occurrence, but you should consider it as bearing upon the occurrence in December.

"It is for you to say whether or not the respondent paid the money in December for a corrupt purpose; and if for a corrupt purpose, then he is guilty. If it was not for a corrupt purpose, then he is not guilty, if it was paid to him with no intention of influencing his official action as an officer.

"The respondent claims that, while he paid the money to Struble to get him to issue orders, that the intention was to detect crime

mitting with other persons. The claim of the people is that he did it for the sole purpose of protecting himself and getting Struble in his power.

"Now, if you find that he did it for a corrupt purpose of protecting himself, or for the corrupt purpose of getting the orders for any other purpose except to detect crime of other people, and without reference to himself, then he should be convicted under his own testimony, because he admits that he paid the money; but, if you find that it was not paid with the corrupt intention of doing wrong, then he must be acquitted.

"As bearing upon that, whether he paid that rightfully or with the intention of doing right, and without intention of doing a wrong, you must take into consideration all the testimony in this case. It is for you to determine whether or not the statement he makes of what happened between him and Rowlader is true, or whether the statement of Rowlader is true; that is for you to de termine.

"You are to consider the way these sparrows were brought to Struble, the memoranda that were left with Struble, if you find that there were memoranda left, and the respondent himself admits some of them. It is stated here, and admitted by the defendant, that he used to leave memoranda with certain figures of the amounts that he placed in there, and asked orders to be drawn for more than the amount of birds delivered; that he intended afterwards to furnish the birds to make up the amount of the orders. Now, that was absolutely wrong and demoralizing. No man ought to have thought it was right at any time.

"The law is plain, and it seems to me that no one could make a mistake concerning the fact that the sparrows must be counted, must be there, and must be destroyed before the orders are drawn. But that is not what they complain of in this case. I call your attention to that, so that you won't get mixed when you go to your jury room. may consider that as bearing upon whether or not the transaction of December was corrupt or not."

You

Several points are made against this charge. It is said to be argumentative, that it did not recognize defendant's theory, and that it unnecessarily condemned the admitted conduct of the parties, thereby causing a prejudice against the defendant. The learned circuit judge recognized the possible danger that the testimony regarding other transactions than that of December, 1899, might be misapplied by the jury, and he seems to have attempted to prevent it. It is in that connection that he used much of the language complained of. As a whole, the charge was an eminently fair one. He carefully limited the offense to the December transaction, and left controverted questions of fact to the jury. In this, as in most cases, there were some admitted facts, and the judge was justified in treating them as such in his charge, and referring to them in elucidation of the points involved in the case.

It is alleged that defendant was prejudiced by the last two paragraphs of the charge as quoted above, wherein it is implied that the defendant admitted that he left memoranda for certificates which he expected would be issued, although not accompanied by the requisite number of birds to justify it. This was important evidence on the subject of the conspiracy, if true, and the judge said that it was. Defendant's counsel say that this fact was not admitted, and that the question was an open one for the jury. The defendant stated in his testimony that he never received orders in excess of the birds delivered until the December transaction, and although there was much evidence to the contrary that made it a controverted question. The judge appears to have inadvertently overlooked this, and to have been mistaken in the statement. It was important as bearing upon the question of intent, and, as counsel claim, it was for the jury. We therefore

Suit by Elma Cahill Emery and others against the Kalamazoo & Hastings Construction Company and others. Decree for defendants. Complainants appeal. Reversed.

McDonald & Fowler (Edward Cahill, of counsel), for appellants. Howard & Howard and Carroll, Turner & Kirwin, for appellees.

MONTGOMERY, J. This is a suit in equity brought by Elma L. Cahill (now Elma Cahill Emery), in behalf of herself, as widow, and as guardian of her two children, Lee H. Cahill and Margaret Cahill, minors, heirs at law of Leroy Cahill, formerly of Kalamazoo, now deceased. This action is a stockholders' bill to rescind certain actions on the part of the managers of said construction company, to compel a restoration of the assets of the construction company, and to provide for the proper distribution of such as sets among the members, and for the protection of its stockholders.

The Chicago, Kalamazoo & Saginaw Railway Company was organized January 17, 1883, and articles of association were amend

A new trial is ordered.

capital stock of the company was made $2,000,000. Of the $2,000,000 of authorized capital stock, only 715 shares were subscribed

EMERY et al. v. KALAMAZOO & H.

CONST. CO. et al.

gregate-was ever paid in. No progress was made in building the road until 1886, when the various individual subscriptions to the stock of the railway company were bought up by F. A. Bush and W. L. Eaton, as trustees; at least, so much of the stock as was

LIMITED PARTNERSHIP WINDING UP - EXCHANGING PROPERTY FOR SHARES OF

CORPORATION-ESTOPPEL.

1. Two months before the end of the term of a limited partnership, on notice to members of a meeting for consideration of a final settlement of the partnership affairs and distribution of its assets, a resolution was passed for exchange of its property for the stock of a corporation, and division of the stock among its members. Held, that this was not a termination of its business at the end of its term, but a voluntary winding up of its affairs, which Comp. Laws 1897, § 6087, provides shall be done in another way.

2. A majority of the stockholders of a limited partnership may not wind up its affairs by exchanging its property for stock of a corporation, and compelling nonassenting members to take their pro rata of such stock for their holdings in the partnership.

3. A member of a limited partnership, by receiving from a corporation pay for a note of the partnership which the corporation had assumed, is not estopped to object to the partnership afterwards exchanging its property with the corporation for shares of its stock.

4. Though a limited partnership owns all the stock a corporation has issued, and also holds a note of the corporation, the claim that the note is a thing of no value, being an indebtedness of the partnership to itself, so that a member of the partnership cannot complain of the exchange by it of the note with the corporation for more shares of its stock, is not tenable.

Appeal from Circuit Court, Kalamazoo County, in Chancery; John W. Adams, Judge.

afterwards formed the Kalamazoo & Hastings Construction Company, Limited. Eaton was afterwards succeeded by W. S. Dewing as trustee, and thereafter this stock was held by W. S. Dewing and F. A. Bush, both of whom are defendants in this case. The Kalamazoo & Hastings Construction Company, Limited, was organized September 21, 1886, as a partnership association, limited, under chapter 160, Comp. Laws 1897, which act is specially referred to in the articles of association. The members were partly made up from former subscribers to the railway company stock, and partly from other individuals. The capital stock was fixed at $200,000, which was paid in in cash. The intended business of the construction company was to build a railroad for the Chicago, Kalamazoo & Saginaw Railway Company, and this purpose was expressly stated in the articles. The road contemplated was to extend from Kalamazoo to Hastings, in Barry county. Leroy Cahill was a subscriber to the capital stock of the construction company in the amount of $12.500, which amount he paid in in cash. Mr. Cahill never owned any stock in the railway company. Leroy Cahill died October 8, 1898, and his widow and minor children succeeded to his interest in the construction company, and are the com