of the prosecution, in regard to the offence charged. pliance with this section the accused has a clear right to insist upon, and he just as clearly has the right to waive it, thereby consenting that he be held for trial for the offence charged against him. The statute clearly recognizes this right, and authorizes an information to be filed where such examination has been waived. Section 7944. And where the accused waives his right to such examination no witness need be produced, sworn or examined on the part of the prosecution. The magistrate is not authorized to issue a warrant except upon complaint made that a crime has been committed, and after an examination by him of the complainant on oath, and any witnesses that may be produced by him. If it appears from such examination that a criminal offence has been committed, then the warrant is issued. The showing thus made for the issue of a warrant is sufficient evidence upon which the magistrate may hold the person charged in the complaint and warrant, if when brought before him he waives the right given him by statute to have an examination of the witness in his presence. Such we believe has been the well settled practice, acquiesced in under this statute.

There is nothing in the case of Yaner v. The People indicating even a different practice. In that case there was an examination of witnesses under the statute in presence of the accused. In such a case the magistrate must, from the evidence then introduced, unless after a part is given further examination is waived, determine what offence has been committed, and whether there is probable cause to believe the person accused guilty thereof. Where such examination is waived the magistrate binds the party over for trial for the offence charged in the complaint and warrant, and the pros-ecuting attorney may file an information charging any offence contained in the warrant which, in his opinion, the evidence will sustain. If the accused desires that the examining magistrate shall more specifically designate the offence committed, where the one charged in the warrant includes others of less degree, then he must not waive examination as in this case.

It appeared that the complaint and warrant under which the respondent was arrested and bound over charged him alone with the commission of the offense. Three others had been complained of, examined and held for the same offence. The information filed charged the four jointly. Error is alleged that respondent having been arrested and held for trial

on a separate complaint and warrant, he could not be charged jointly with others in the information.

Where parties have been arrested upon separate complaints and warrants, and held for a joint offence, we are of the opinion that they may be jointly charged in the information, and so tried, unless they claim separate trials under the statute. That the offence was by them committed jointly, need not necessarily appear from the returns of the examining magistrate, in order to give the prosecuting officer the right to file a joint information. The proof upon the trial must show the offence to have been jointly committed, and the burden so proving would be on the people.

Criminal prosecutions for offences not cognizable by a justice may be commenced and carried on before the examining magistrate by private persons, and without the consent or even knowledge of the prosecuting attorney. They cannot, by a severance in the first instance, thus bind the public prosecutor to file separate informations. If parties jointly concerned in the commission of a criminal offence, when tried therefor upon separate informations, could be called as witnesses for the accused, in the particular case on trial, as urged by counsel-a point we need not determine-it would be a very strong reason why the prosecuting officer should have the right to join them in the same information, even where they had been arrested and examined separately.

Many cases must arise where all the parties implicated in the commission of a criminal offence may for the first time appear on the examination of those first charged and undergoing examination. In such case it should not be necessary to discharge those arrested, examined or bound over, and commence again against all, in order that they could be put on trial jointly, so all may be jointly complained of and charged in the warrant, but because not arrested in time, may be examined separately; yet no good reason appears why in such cases the trials should be separate.

No one can be informed against and put upon trial until it has been judicially determined that a crime has been committed, and that there is probable cause to believe him guilty thereof, and whether this has been done upon a joint or separate complaint, the right of the accused is fully protected. He is not put upon trial for another or different offence than the one upon which he was arrested and examined, or waived examination. He is put upon trial for the same offence with others who, in like manner, it has been determined, v3-55 (no. vii)

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jointly participated with him in the commission of the ofence, and if the evidence introduced on the trial shows they acted together, they have been deprived of no legal right, and have, therefore, no justcause of complaint.

Evidence was introduced tending to show that the respondent was not guilty of the offence charged, because absent from the place at the time it was committed. The charge of the court upon this question is as follows:

The

"Now the defence in this case consists in what is termed in law an alibi; that is, it is claimed on the part of the respondent that he was not there at the time of the commission of this offence, and had nothing to do with it, and he introduces what is termed in law evidence tending to show an alibi. prisoner relies upon evidence of an alibi; that is, to show that he was at the time at another place, at the time that this crime was committed. That is the defense, and this defence, when satisfactorily made out, necessarily overturns the strongest circumstantial evidence, and it is sometimes the only available defence to an honest, innocent man; but in every case where a defence of alibi is resorted to it should be closely scrutinized. It is a defence which may be contrived by subornation of perjury, and by perjury. The proof, therefore, to sustain it, should be subjected to rigid scrutiny, because, while attempting to contradict or rebut the evidence of the fact sustaining the charge, it attempts to prove affirmatively another fact wholly inconsistent with it. And this defence is equally available, if satisfactorily established, to avoid the force of positive as of circumstantial evidence.

"If there be any conflict of evidence then tending to support, or tending in some degree to overthrow the other, it is for the jury to decide where the truth lies. The prisoner has undertaken to prove that he could not have been where this offence was committed, or the means were used to effect it. Your attention is directed to the time at which the witnesses for the defence testify that they saw the prisoner, and to the particular circumstances in detail, keeping in mind the other evidence in the case showing the hour in the night that the offence was committed.

"Now I call your attention particularly to the instruction that I gave you. When the defence raises the proof of an alibi, it must cover the time that the offence is shown to have been committed, so as to preclude the possibility of the prisoner's presence at the place of the burglary. Although the prisoner makes no admission of guilt by setting up the alibi,

yet clearly the value of the defence consists in his showing that he was absent from the place where the deed was done, and at the very time that the evidence of the people tends to fix its commission upon him. If, however, it be possible that he could have been at both places, the proof of alibi is valueless. With these instructions, gentlemen, the court will now proceed to give you such requests of counsel as the court has thought proper and legal to give."

The instruction that proof of an alibi "must cover the time that the offence is shown to have been committed, so as to preclude the possibility of the prisoner's presence at the place of the burglary, and that "the value of the defence consists in his showing that he was absent from the place when the deed was done, and at the very time that the evidence of the people tend to fix its commission upon him. If, however, it be possible that he could have been at both places, the proof of alibi is valueless," was casting a burden upon the accused much heavier than the law would justify or than it required. No such strict proof is required, and to so hold would render the defence, no matter how honestly made, in most cases valueless. For this error the judgment must be reversed and a new trial ordered. Sullivan v. People, 31 Mich. 1.

Exceptions were taken to that part of the charge wherein the court instructed the jury that if they should "find that the burglary was committed, and there were articles stolen from the store at the time of the commission, and these articles were found upon the person of the respondent or he assumed the control over them, then it raises the presumption that the respondent not only stole the articles but committed the burglary."

This instruction, if standing alone, could not be sustained. Possession alone, unsupported by other facts indicative of guilt, would not, we think, be prima facie evidence that the respondent committed the burglary. When taken and considered with other evidence in the case it might be sufficient to satisfy the jury. It is not quite clear but that, taking the entire charge relating to this question, the error was cured. We need not, however, consider this question at length, as the objectionable portion of the charge above quoted will not likely be given again upon a new trial.

For the error already pointed out the judgment will be reversed, and the respondent remanded to the custody of the sheriff of Kent county for further proceedings.

(The other justices concurred.)

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HENRY KELLOGG and others vs. JACOB SECORD.

Filed November 29, 1879.

Parties purchasing property, subject to a chattel mortgage thereon, cannot afterwards come into court and deny the validity of such mortgage upon the ground that it was not properly filed in the town clerk's office. Where witness has not been sub cenaed, or any effort made to procure his testimony or personal attendance at the trial, the fact that he is temporarily absent from the state will not authorize proof of what he testified to on a formal trial.—[ED.

Error to Jackson.

John D. Conely, for plaintiffs in error.

Austin Blair, for defendant in error.

MARSTON, J. What effect the failure to file the chattel mortgage might have had in this case we need not determine. The officer advertised it for sale subject to the mortgage, and it was so sold. This was a recognition of the fact the mortgage was a valid subsisting lien on the property, and a notice to purchasers that they would stand in no better position than the mortgagor. Parties purchasing under such circumstances could not well come into court and deny the validity of such a mortgage, because not filed in the township clerk's office.

The court properly rejected the evidence offered to prove what Hutchinson had testified to in the justice court case. The witness was but temporarily absent from the state, and it did not appear that he had been subpoenaed, or that any effort had been made to procure his testimony or personal attendance at the trial. The rule laid down in Howard v. Patrick should not be extended to such a case.

The judgment must be affirmed, with costs. (The other justices concurred.)

CLARINDA HISCOCK vs. MORANIA NORTON and others.
Filed November 29, 1879.

Facts in this case considered, and the contract of the parties held to be of such a character as to imply that no lien was intended to be retained by the complainant herein upon the transfer of the property in controversy. -[Ed.

Appeal from Jackson.

W.K. Gibson, for complainant.

Alfred Lucking and John D. Conely, for defendants.

GRAVES, J. For several years before May 23, 1872, the complainant, a married woman, owned the north-east quar