PEOPLE . PRAGUE. (Supreme Court of Michigan. October 26, 1888.) HOMICIDE-ASSAULT WITH INTENT TO KILL-CONVICTION OF LESSER OFFENSE. Upon an information charging the statutory offense of assault with intent to commit murder, a conviction may be had for assault with intent to do great bodily harm less than murder. Appeal from circuit court, Chippewa county. Indictment against Peter Prague for assault with intent to commit murder. From a conviction of an assault with intent to commit great bodily harm less than murder defendant appeals. The Attorney General, for the People. J. W. McMahon, for defendant. CHAMPLIN, J. The information charged defendant with an assault with intent to murder. He was tried and convicted of the statutory offense of committing an assault with intent to do great bodily harm, less than the crime of murder. Defendant is an Italian, unable to understand or speak the English language, and on the 8th of July, 1887, in company with another Italian, whom he called his "partner," while on board the steamer China, bound up the lakes, a row occurred between defendant or his partner and the first cook of the vessel, and in the melee one of the Italians, claimed to be the defendant, cut a man named Gleason,-who was third cook, and was endeavoring to separate the combatants,-once on the outside of the left shoulder, and once on the body behind the shoulder, with a knife. The wounds were not serious, merely cutting through the skin and into the muscles slightly. After charging the jury what it would be necessary for them to find in order to convict defendant of the crime charged in the information, the court proceeded to instruct the jury as follows: "If the jury find that the defendant committed an assault upon Edward Gleason, and do not find that the assault was committed with the intent to commit the crime of murder, but do find beyond a reasonable doubt that the defendant, at the time and place alleged, committed an assault upon the said Edward Gleason, with intent to do great bodily harm less than the crime of murder, then the defendant may be convicted of an assault upon Edward Gleason with intent to do great bodily harm less than the crime of murder. And should you not find the defendant is shown to have committed an assault with either an intent to murder or to do a great bodily harm less than murder, but should find it shown beyond a reasonable doubt that on the occasion in question he assaulted and struck Gleason unlawfully, you may find him guilty of assault and battery." Under this charge the jury found defendant guilty, as before stated. The attorney for defendant assigns this as error, and insists that it is not an offense named in the information, and upon which he has had no examination. In other words, that defendant was charged in the information with one offense, and was convicted of a substantially different offense. Where the offense embraces different degrees, and the highest degree is charged, it has been held that the person charged may be convicted of any of the lesser degrees. Thus, if charged with murder in the first degree, he may be convicted of murder in the second degree, or of manslaughter, or of assault and battery. The reasons are that the offense springs from the same transaction, and is supported by the same class of testimony. The crime of an assault with intent to commit the crime of murder is one of a higher grade and greater enormity than the crime of assault with intent to do great bodily harin less than the crime of murder. It belongs to the catalogue of offenses against the lives and persons of individuals, and we think the charge was authorized by the opinion of this court in Hanna v. People, 19 Mich. 316. In People v. Sweeney, 55 Mich. 586, 22 N. W. Rep. 50, we held that these two offenses set out in two separate counts might be joined in the same information, and, if this can be done, an information charging the greater offense will support a conviction for the lesser, based upon its commission at the same time, place, and circumstances. The objection made to the introduction of the depositions of defendant, taken before the examining magistrate, is ruled by People v. Arnold, 43 Mich. 303, 5 N. W. Rep. 385, and People v. Eaton, 59 Mich. 559, 26 N. W. Rep. 702. It follows that the judgment must be affirmed. The other justices concurred. PEOPLE v. HICKS. (Supreme Court of Michigan. October 26, 1888.) CRIMINAL LAW-TRIAL-MISCONDUCT OF PROSECUTING ATTORNEY. A conviction for assault before a justice of the peace will be reversed where the jury report, after consultation, that they are unable to agree, and the prosecuting attorney, over the objection of defendant, is permitted to inquire whether their dif ficulty in finding a verdict is one of law or fact, and, upon the foreman stating that it was the former, to tell them what the law is, as the prosecuting attorney has no right to interfere with the jury before verdict." Error to circuit court, Gratiot county; HENRY HART, Judge. Complaint against John Hicks for assault and battery, before Almon Yerrington, justice of the peace for Gratiot county. Judgment of conviction, which on certiorari was affirmed by the circuit court. Defendant brings error. Moses Taggart, Atty. Gen., for the People. W. A. Bahlke, for plaintiff in error. MORSE, J. Hicks was prosecuted before Almon Yerrington, a justice of the peace of Arcadia, Gratiot county, upon a criminal complaint for assault and battery. Upon the first trial the jury disagreed. At the second trial, after hearing the proofs, the jury retired to deliberate upon their verdict. After being out some time, they returned into court, and reported they were not able to agree. The justice then said to them: "The jury is discharged. Thereupon the prosecuting attorney requested the court not to discharge the jury, as he wished to examine them. The justice returns that he granted this request. "The jury did not rise from their seats, and the prosecutor then asked them the following question: Are you unable to agree for the reason of any law that has been introduced?' which was objected to by defendant's counsel as incompetent, improper, immaterial, and irrelevant, and the objection overruled." The foreman of the jury replied: "The jury is not clear as to whether they can find a verdict as to assault and battery, or assault, either or both." The defendant's counsel then asked a discharge of the jury, which was refused. The prosecuting attorney then stated the law to the jury, and informed them that they might find the defendant guilty of assault and battery, or assault alone, as the facts appeared to them, and that assault and battery included an assault. He also read the law as found on page 572, Tiff. Crim. Law. This was done against the objection of defendant's counsel, who insisted that the jury should be discharged. "Prosecuting attorney asks court to charge the jury that if after they have heard the law whether they think they will be able to agree if they retire. Defendant's attorney objects as incompetent and immaterlal. Court asks the question. Jury responded in the affirmative." The court then directed the jury to retire, which they did. Soon after they returned with a verdict of guilty of assault. The defendant's counsel then objected to the verdict, but was overruled by the court, who rendered judgment that Hicks should pay a fine of $20, and $38.38 costs, within four days, and in default thereof to be imprisoned in the county jail for 30 days. The case was taken to the circuit court by writ of certiorari, and there the judgment was sustained. The justice returns that, although he told the jury they were discharged, he did not "formally discharge" them. It is claimed by the attorney general that either party has a right to poll the jury at any time before the verdict is recorded, and that the action of the prosecuting attorney amounted to no more than this. But the jury had rendered no verdict; and the prosecuting attorney, without the consent of defendant, had no business to interfere with the jury at all until after the verdict. The justice might have read the law to them, and sent them back, had he so desired; but here the prosecuting attorney took the matter into his own hands, and questioned and instructed them before their deliberations were ended, and after they had commenced deliberating upon their verdict. It is also contended that no harm was done in a simple statement of the law to them. It seems, however, that the action of the prosecutor resulted in a verdict against the defendant, which result was not reached until after the interference of the prosecutor. There can be no excuse for the conduct of the prosecutor and court in this case. They went beyond the law, and, although their motives were good, the result reached was an unlawful one. The verdict and judgment must be set aside, and the respondent discharged. The other justices concurred. MCGRAW v. LAPHAM. (Supreme Court of Michigan. October 26, 1888.) BAILMENT-LIABILITY OF BAILEE-GIFTS-WHAT CONSTITUTE. Plaintiff's assignor deposited money of his own with defendant, who agreed to keep it until the assignor's wife should take it to California, where he was then going. Various sums were sent to the assignor by defendant, and after the wife's death defendant paid certain debts, and promised to pay the assignor the balance. Held, that letters of the assignor to his wife, promising to repay her a part of the money which had been sent him, and referring to the money as hers, did not show a gift to the wife, so as to prevent plaintiff's recovery. Appeal from circuit court, Wayne county; GARTNER, Judge. Action by William T. McGraw against Abraham Lapham for balance of a sum of money deposited with Lapham by Fred D. Smith, and assigned by Smith to plaintiff. From a judgment entered on a verdict ordered for defendant, plaintiff appeals. Charles Flowers, for appellant. W. L. Carpenter, (A. C. Angell, of counsel,) for appellee. CAMPBELL, J. In this case plaintiff sued defendant for the amount deposited with him by Fred D. Smith, and assigned to plaintiff. The court below ordered a verdict for defendant. Plaintiff showed by Smith that in October, 1887, he had $1,000, the proceeds of a drug business that he had sold out, and which, on Smith's going to California to look up an establishment there, he left behind him in Wayne county, with his wife, and before going he asked defendant to take it and keep it till she should come to California, when she would bring it to him. This the defendant said he would do. Mrs. Smith died during his absence, and he did not hear of it until he returned in December. He then called on defendant to get such balance as would remain after deducting what defendant had paid out, and remuneration for his services. They figured up items for funeral expenses, doctor's bills, and some other things, including two items of $50 and $25 sent Smith while in California, and $15 paid him after his return. After getting at what should be deducted, defendant said he was not just ready to settle then, but would be in shape the next week to pay him the balance of the money, which he admitted he had. There were a few small items, on which Smith also testified. Smith further testified that his wife had no other money beyond a few dollars. On crossexamination Smith identified a letter which he wrote to his wife in November, 1887, which contained this language: "DEAR WINNIE: Many thanks for the $25. I am sorry to have called upon you for it, but I hope to be able to send it back soon. Concluding by your not sending the $200 that you had assumed the management of affairs, I take pleasure in tendering you my best wishes, and if I can be of any assistance, I will be pleased." A part of another letter, the date of which is not given, and which was not allowed to be read in full, was as follows: "Your letter received. I am very sorry you are having so much trouble. But do not worry. They cannot take your money if they knew you had it. I will send a letter to the storage company, and also an order to you, and if you feel like it I would start for California. I guess we can make a living here. I would not worry so much about spending your money. I can easily make as much more here in fly-paper alone next summer. It, of course, is taking some money to get straightened around; but that is nothing more than I expected. You seem to feel as though that would be all we would ever have. I made that where it is hard to make it, and here where they make money easy, it ought not to be hard." The court shut out some letters, the contents of which do not appear in the bill of exceptions. It appeared that Smith telegraphed to his wife for $200, and that she did not send it; but defendant sent such money as was sent, sending the $50 in reply to a telegram to him personally, which turned out to be after Mrs. Smith's death, of which Smith was not then informed. Defendant put in no testimony. We are unable to see any reason why plaintiff should not have recovered what he claimed. The testimony is clear that the money belonged to Smith, and that Lapham knew it, and so treated it. The letters shown have no tendency to show that Smith ever gave it to his wife. The utmost that they tend to show is that Mrs. Smith had some fears about spending money, and assumed some restraint on it, which Smith was good-humored enough not to quarrel about. But they have not the slightest tendency to show that he had parted with his own property. The bailment of Lapham was one in which he acted by agreement with Smith, and never denied or doubted his interest. The bills paid, or intended to be paid, were Smith's bills, on which he, and not his wife, was liable, and which could only be deducted by his consent, which, it appears, he gave. Lapham was bound to pay him the money. It is to be regretted that we are not able to give judgment on the record. The defense is unconscionable, and without any legal foundation. The judgment must be reversed, with costs, and a new trial granted. The other justices concurred. MEIGS et al. v. MCFARLAN. (Supreme Court of Michigan. October 26, 1888.) 1. MORTGAGES-WHAT CONSTITUTES-ASSIGNMENT OF CONTRACT TO PURCHASE. An assignment of a contract for the purchase of realty, conditioned that if the assignee should be obliged to pay any of certain liabilities, and the assignor should fail to repay by a specified time, the assignee should own the contract absolutely, but if repaid, he should surrender all claiin, is a mortgage. 2. SAME-BILLS TO REDEEM-COSTS-ACCOUNTING. Where a mortgagee refuses to inform a grantee of the mortgaged premises, of whose rights he has notice, of the amount due him, and, in the absence of the grantee and his agent, and without demand of payment, takes possession, and removes the grantee's goods, he is not entitled to costs on a bill to redeem, but is liable for rents. 3. SAME-DECREE-STRICT FORECLOSURE. The decree on a bill to redeem mortgaged premises should not be for a strict foreclosure, but should direct a sale on failure to pay the redemption money. Appeal from circuit court, Wexford county; F. II. ALDRICH, Judge. Bill by Arthur Meigs and Richard G. Peters against Henry C. McFarlan to redeem property from a mortgage. Decree ordering strict foreclosure if not redeemed within a specified time, with costs against plaintiffs, and refusing to charge defendant with rents and profits while in possession. Plaintiffs appeal. Smith & Stevens, for appellants. Sawyer & Bishop, for appellee. CAMPBELL, J. This case was begun as one to redeem lands from an equitable mortgage. On May 6, 1884, Ward P. Smith, of Manton, in Wexford county, sold by contract to Rachael Hyde, of the same place, the north half of lot 20, on the railroad plat of that village, for $250 and interest, payable in monthly installments of $10 each until paid. The contract provided that the grantee should have possession. There was no provision for paying sooner. All the installments falling due were paid. Mrs. Hyde built on the land. On the 11th of August, 1884, Mrs. Hyde mortgaged this contract to defendant, McFarlan, by assignment in writing, containing a defeasance. The consideration stated was that defendant had become security for the payment of the contract, (which was not done so as to make him personally liable,) and for a credit given her of $300 with Hawkins & Perry, of Grand Rapids, and of $150 with McFarlan & White. The defeasance was that if he was obliged to pay any of said amount of $450, and if she should fail to repay it on or before April 11, 1885, then defendant was to have absolute ownership in the contract, but if she should pay all for which he became liable, then he was to surrender all claim thereto. This is the usual purport of a common-law defeasance, and beyond doubt was a mere mortgage of the land, and no more. It contained no grant of possession, and Mrs. Hyde retained possession. The case does not show that the defendant was ever compelled to pay any of the secured debts, but he testified he actually paid them, and no point is made on this. January 14, 1885, Mrs. Hyde sold the land to the Manton Manufacturing Company, and they were put in possession, and their deed was recorded on March 25, 1885. The Manton Manufacturing Company sold and conveyed the premises to complainants. Defendant knew at the time of the execution of this conveyance, and took the ackowledgment. Complainants at once went into possession. It does not appear that they or their grantors knew of the amount or precise nature of defendant's rights; but they do not claim that the mortgage was void as against them. This ignorance has, however, another bearing. Leaving out of view some facts which do not become very important, reference will now be made to the doings of defendant which rendered this bill necessary. On the 11th day of April, 1885, without any demand on complainants, whose rights he knew in fact, as we are satisfied, and was bound to know from their open and notorious possession, as well as from his participation in the execution of the deed, of the nature of which he was notified at the time, and without any demand on Mrs. Hyde, who was the one personally liable on the debt, defendant went to Mr. Ward P. Smith, in company with Mr. Gilbert, and in Smith's presence demanded payment from Gilbert of what was due him on the mortgage. Gilbert, who had nothing to do with complainants, but had been connected with the Manton Manufacturing Company, told defendant he had nothing to do with it, and declined payment. It may be remarked that when the Manton Manufacturing Company bought of Mrs. Hyde they were unable to learn from her or her husband how much defendant claimed, and Mr. Gilbert, on going to defendant, and asking him the amount, with an explanation why he wanted to know, was refused any information on the subject. When Mr. Gilbert disclaimed any liability in the interview with defendant on April 11th, defendant turned to Mr. Smith, and said: "These parties refuse to make payment on the contract, and I am ready now to pay up the balance that will become due on the contract, and take a deed, if you will give it to me." Smith, who acted very carelessly in the matter, accepted this payment, which was not due, and could not have been lawfully demanded, and on the same day gave defendant a full and absolute warranty deed of the property. As Smith is not a party to this suit, and as defendant McFarlan is the person who brought about the transfer, and is responsible for it, we need not consider Mr. Smith's action further. On April 16, 1885, Mr. Frank L. Roberts, who was in possession of the store for complainants, and selling out their stock of goods, had sold a bill of about $60 to |