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“The relief prayed for by relator is hereby denied with costs to the respondents."
In our opinion, having in view the purpose and object of this statute, and the mischief to be remedied, its provisions are mandatory. Not only is the imperative word "shall” used throughout the section, but the closing sections of the act make a violation of this statute a misdemeanor. All of these things are aids or "earmarks" to aid us in arriving at a conclusion whether a given statute is mandatory or directory.
In support of the views expressed by the circuit judge we think the following cases in this court are in point: Andrews v. Otsego Probate Judge, 74 Mich. 278; Keith v. Wendt, 144 Mich. 49; Ritze v. Iron County Canvassers, 172 Mich. 423. We have not space to quote from these decisions.
Counsel for plaintiff have called our attention to Alward v. Board of Sup’rs of Oakland Co., 187 Mich. 573, and Baldwin v. Board of Sup'rs of Alger Co., 189 Mich. 372. To show that in those cases this court was dealing with other and different statutes we need only call attention to the language of Justice OSTRANDER on pages 378 and 379 of the last-named case. We also quote the following language from said opinion on page 382:
"As has been stated, it was the law when the statute in question was passed that, unless it appeared that the ballots had been so secured, they could not be recounted; that the recounting boards were not authorized to ascertain whether, in fact, the statute precautions for the preservation of ballots having been omitted, the original ballots had been preserved. What possible purpose could be subserved in empowering boards to subpoena witnesses, administer oaths, and take all necessary proceedings to insure a correct count of the votes, if, as theretofore, the evidences of the lack of statutory sealing of the boxes was conclusive of the right to recount the votes? It is plain, in my opinion, that the legislature intended in this act to abolish the test, 'Have the ballots been preserved as the law directs?' and to substitute therefor the test, one of pure fact, 'Have the ballots been, in fact, preserved notwithstanding the failure to observe the legal requirements for their preservation ?! ”
In a number of cases collected in the Ritze Case, we have held that the seal is a necessary part of the election equipment, and that the failure of the inspectors to properly seal the boxes deprives a defeated candidate of his right to a recount. Of what use is the seal if it is to be held by the same officer who has the key and the box in his possession? The only use of the seal is that it is to be a check on the key and the box, and to render silent but unimpeachable evidence of the sanctity of the box. To assert that the seal may be given to the same officer who holds the key and the box, is equivalent to saying that there is no need of a seal at all, because it would be in the power of the officer possessing all of these articles to break the seal, open the box, change the ballots, relock the box, impress a new seal thereon, and nobody would be the wiser. It is no answer to say that an honest officer would not do this. Such things have occurred; and it was to avoid such and similar evils that the statute was enacted.
The order denying the writ of mandamus is affirmed, with costs against the plaintiff.
BIRD, C. J., and OSTRANDER, MOORE, STEERE, BROOKE, FELLOWS, and KUHN, JJ., concurred.
PEOPLE V. OSBORN.
1. HOMICIDE-EVIDENCE-CIRCUMSTANTIAL EVIDENCE-SUFFICIENCY -QUESTION FOR JURY. In a prosecution for murder, although the evidence was
circumstantial, held, sufficient to take the case to the jury; and whether it established defendant's guilt beyond a
reasonable doubt was for the jury. 2. TRIAL-HOMICIDE CONDUCT OF PROSECUTOR-CURING ERROR.
In a prosecution for murder, where the names of several
witnesses, among them defendant's wife, who could not be a witness against him under 3 Comp. Laws 1915, 8 12555, had been placed on the information at the request of defendant's counsel, and were subpænaed at the expense of the people, and the prosecutor asked one of the people's witnesses whether defendant's wife was in the court room, which the witness did not answer, and on objection by defendant's attorney that she could not be a witness, the prosecutor responded that she could be for Lim, held, that the misconduct of the prosecutor was cured by the court's informing the jury that the incident should have no influence upon their minds whatever.
Error to Jackson; Parkinson, J. Submitted January 16, 1919. (Docket No. 116.) Decided April 3, 1919.
Ezra Osborn was convicted of murder in the first degree, and sentenced to imprisonment for life in the State prison at Jackson. Affirmed.
James J. Noon, for appellant.
Nathan E. Bailey, Prosecuting Attorney, and M. Grove Hatch, Assistant Prosecuting Attorney, for the people.
FELLOWS, J. Defendant here reviews his conviction of the murder of one Roy Bassett. Bassett was a taxicab driver, whose home was Lansing. On the morning of September 25, 1916, his taxicab was found in the highway about three and one-half miles east of the city of Jackson, and on the road to Michigan Center. It was seen standing there about seven o'clock the evening before. On the 26th of September the body of Bassett was found 30 or 40 feet from where the taxicab was found, with two bullet holes in it, one of the bullets having passed through the heart. The body apparently had been dragged to the place where it was found and covered with grass. About 40 or 50 feet away from the body was found a revolver with two empty cartridges, its caliber being of the same size as the bullets found in the body.
Defendant here insists that the conviction should be reversed upon two grounds:
(1) That the evidence did not justify the submission of the case to the jury, and
(2) Prejudicial conduct on the part of the prosecuting attorney.
1. The evidence in the case was circumstantial. We cannot within the compass of this opinion attempt to detail it. It will suffice to say that there was testimony tending to show that about four o'clock Sunday afternoon, September 24th, at his garage in Lansing, Bassett was employed by a man to drive him from Lansing to some place about twelve miles north of Jackson; the testimony tends to show that defendant was such man. There was testimony tending to show Bassett and defendant together in Bassett's taxicab on the way south from Lansing. There was testimony that they were seen about three miles north of Jackson, at which point they were accompanied by another man and a woman. There was testimony that about six o'clock in the evening defendant came in a taxicab to the residence of an acquaintance in the city of Jackson and got a drink of whiskey, the other occupants of the taxicab not getting out but urging defendant to hurry. There was testimony tending to show that a taxicab party bought gasoline at one of the stations in Jackson in the early evening, and while the salesman was unable to identify the members of the party, in a general way they corresponded with the party in Bassett's machine, except that there was but one man and a woman besides the driver. There was testimony tending to show that the revolver found near Bassett's body belonged to defendant. In addition to this testimony there was also testimony given by the officers who were present soon after defendant's arrest tending to show that in explaining his whereabouts on the day in question he made contradictory and false statements.
We are impressed that there was sufficient evidence to take the case to the jury. Whether it established defendant's guilt beyond a reasonable doubt was for the jury. The charge was an exceptionally clear and fair one and is not complained of in any particular by defendant's counsel.
2. It appears from the record that a week or more before the trial of defendant, by consent of the court and the prosecuting attorney, at the request of defendant's attorney, the names of certain witnesses, among them that of defendant's wife, were indorsed on the information and such witnesses were subpænaed at the expense of the people. It is stated that this is the customary way in Jackson county of procuring defendant's witnesses where he is without means as in the instant case. Mrs. Osborn did not sit with her husband during the trial but was among the spectators in the court room. When the people's case was near its close the sheriff was called and gave testimony on the part of the people. Upon his crossexamination defendant's counsel developed the fact that the names of five witnesses had been placed on the information at his request, three of whom were