LONG, J. Respondent was convicted for the violation of the law regulating the sale of intoxicating liquors, being act No. 313, public acts 1887. The complaint states that: "On the 6th day of January, 1894, at the township of Wayland, in the county aforesaid [ Allegan ], Ellis Aldrich, late of the township of Wayland, in said county, was then and there a person whose business consisted of the sale of intoxicating liquors at retail, and was then and there engaged in, and did then and there unlawfully engage in, the business of selling and offering for sale intoxicating liquors at retail as a beverage, and did then and there sell, to wit, two drinks of liquor, to wit, whisky, to Lynn E. White and Roy B. Summers and divers other persons, the, same not being proprietary patent medicines, and without having first paid in full the tax required by act No. 313 of the public acts of 1887, and without having the receipt and notice for such tax posted up in the place where such liquors were kept, as required by said act; be, the said Ellis Aldrich, not being then and there a druggist, and said liquor not being then and there sold for chemical, scientific, mechanical, medicinal, or sacramental purposes, contrary to the form of the statute," etc. The warrant follows the same form. On the examination a motion was made to quash the complaint and warrant and to discharge the respondent for the following reasons: (1) That the complaint and warrant contain three distinct offenses in one and the same count, to wit: One for not having paid the tax as therein described, as required by section 1 of the act; one for not having posted the notice required by section 6; and one for not having posted the receipt as required by the same section; and that, therefore, the count is bad for duplicity. (2) That the complaint and warrant should describe the building where said liquors were sold. (3) That they do not state that the receipt and notice were not posted in the place or room where the liquor was sold. (5) That the complaint and warrant do not negative the fact that said liquors were sold by respondent as a druggist "in strict compliance with the law. (6) That they do not state whether respondent was engaged in the business requiring the payment of the $300 tax or the $500 tax, under section 1 of said act there being two distinct retail businesses under that section; and they do not state which of those taxes he failed to pay. (8) That the allegation that the notice and receipt were not posted as required by law is insufficient, as the complaint and warrant should set up the facts. This motion was denied, and the respondent held for trial in the circuit. The information follows the form of the complaint and warrant. The respondent refused to plead to the information, and a motion was made to quash the information, and discharge the respondent, on the ground that the justice acquired no jurisdiction over him for the reasons set forth. This was denied, and the cause proceeded to trial, and the respondent was convicted. The errors assigned relate to the questions raised on the motion to quash.

Act No. 313, public acts 1887, provides by section 1 that a tax of $500 shall be paid upon the business of selling at retail spirituous and malt liquors; upon the business of selling only brewed or malt liquors, $300. Section 4 provides for the payment of the tax to the county treasurer before commencing such business. Section 6 provides for the giving of a receipt by the county treasurer for the money so paid, specifying its form. It also provides the giving by the county treasurer of a printed notice containing a statement that the tax has been paid, and also that such notice and receipt shall be posted in a conspicuous place in the room

or place where the business is carried on. It is provided by section 7 that: "If any person or persons shall engage or be engaged in any business requirng the payment of a tax under section one of this act without having paid in full the tax required by this act, or without having made, executed and delivered the bond required by this act, or shall in any manner violate any of the provisions of this act, such person or persons shall be deemed guilty of a misdemeanor, and upon conviction thereof, if there is no specific penalty provided therefor by this act, shall be punished by a fine," etc. The complaint, warrant and information are not bad for duplicity: Only one offense is alleged, and that is for unlawfully engaging in the business of selling and offering for sale at retail intoxicating liquors as a beverage, without having first paid the tax, and without having the receipt and notice posted up as required by Act No. 313, public acts 1887. This question is settled in Luton v. Circuit Judge, 69 Mich., 610, 37 N. W., 701. It could not be understood by the jury that they were called upon to try the question of sales to the persons mentioned in the pleadings, as there is no allegation that the sales to such persons were unlawful, except as made so by not having paid the tax, posted the notice, etc. The complaint could not be sustained for a specific unlawful sale upon any other theory than that the tax was not paid, and there is no allegation that the sales to such persons were unlawful, except that the tax had not been paid. In People v. Keefer, 97 Mich., 15, 56 N. W., 105, the information charged in the same count a sale of liquor to a specified person and keeping a saloon where intoxicating liquors were sold and furnished as a beverage in violation of the provisions of the local option law. That count charged: "Did then and there run a saloon and bar, and at said saloon and bar did then and there sell and furnish Frank S. Fellhauer and divers other persons spirituous and inoxicating liquors, * * and did then and there knowingly keep a saloon * intoxicating liquors * * were sold and furnished as a beverage. It was held bad for duplicity. It was said: "While it is true that, as a general rule, where several cognate acts are forbidden in one section of a statute disjunctively, the indictment may ordinarily charge them conjunctively in one count if the reference is to one transaction for which a single penalty is incurred, it is also true that, where each forbidden act may be set up as a distinct offense, but several are united, the count is good in such case for one combined act;" citing State v. Schweiter, 27 Kan., 499. Here the unlawful act charged was engaging in the business and selling liquors to these persons without having paid the tax, etc. What is alleged as to specific sales to them would be treated as surplusage. It is the general doctrine that, if an indictment contains necessary averments, these are to be treated as mere waste material, to pass unnoticed, having no legal effect whatever. Bish. Cr. Law, § 229. If the indictment is founded on a statute, and it contains allegations covering all the terms of the statute and making a complete offense, then it adds something by way of making the offense appear more enormous. This latter matter may be disregarded as mere surplusage. It will have no effect to vitiate the indictment, and it need not be proved. State v. Staples, 45 Me., 320; Hodgman v. People, 4 Denio, 235. It was not necessary to describe the building in the pleadings. People v. Ringsted, 90 Mich., 371, 51, N. W., 519. The pleadings do state that the receipt and notice were not posted where the liquors were kept for sale. The contention that the complaint and warrant do not negative the fact that

where

said liquors were sold by respondent as a druggist in strict compliance with the law, and therefore must be held not to state a cause of action, cannot be sustained. The statement is broad enough to show that he was not selling lawfully as a druggist. The allegation is as broad as in Luton v. Circuit Judge, supra, a charge identical with the present. That case was reaffirmed in People v. Scott, 90 Mich., 376, 51 N. W., 520. The point that there is no allegation as to which tax was not paid has no force. That question was settled in Luton v. Circuit Judge, supra. The verdict must be sustained, and the court is advised to proceed to judgment on the verdict. The other justices concurred. (62 N. W. Rep., 571.)

PEOPLE v. FOWLER.

(Supreme Court of Michigan. March 19, 1895.)

Adultery-Jury-Qualifications-Trial-Opening statement-Witness-Evidence

Improper argument of counsel.

1. The improper dismissal of a juror on challenge for cause is not ground for reversal where no objection was made to the competency of the jury, and it does not appear that the regular panel was exhausted, or that the complaining party had exhausted his peremptory challenges.

2. A statement in good faith by the prosecuting attorney, in his opening argument, that he expected to prove certain facts, not followed up by proof, is not ground for reversal where he discovered on the trial that he could not substantiate the statement by proofs.

3. On a prosecution for adultery, the husband of the woman with whom it is alleged to have been committed is incompetent to testify to facts tending to establish the offense. 4. Testimony that the witness had seen the daughter of the woman crying, and that she stated that other children had twitted her about defendant's going to her mother's house, and asserted that defendant was the father of her brother, is inadmissible, and error in admitting it is not cured by subsequently striking it

out.

5. It is error to admit evidence tending to show a similar offense, committed three months after that alleged in the indictment. 6. It is reversible error to permit the prosecuting attorney to use language calculated to prejudice defendant's case, without checking him, or instructing the jury to disregard his remarks.

Exceptions from circuit court, Hillsdale county; Victor H. Lane, judge.

Fred E. Fowler was convicted of adultery, and excepts. Reversed.

F. A. Lyon, for appellant. Fred A. Maynard, Attorney General, and Guy M. Chester, prosecuting attorney, for the people.

LONG, J. Respondent was convicted of adultery. While the jury were being impaneled for the trial, Samuel Woodruff was called and testified on his examination that if, upon the trial of the cause, he should find the evidence equally balanced, he would render a verdict in favor of the defendant, because, if there was any doubt in his mind, he should think the defendant would be entitled to the benefit of it. He also stated sub

stantially that he would doubt. He was asked: Answer: "Yes, sir." Answer: "Yes, sir."

naturally give the defendant the benefit of the "Would you naturally be inclined to do this?" Question: "Independent of any rule of law?" The people thereupon challenged the juror for cause, and he was dismissed from the panel. Defendant insists (1) that no cause was shown which authorized his dismissal from the panel; (2) that defendant's rights were prejudiced by the action of the court. If it be conceded that the ground of challenge was not sustained, yet it is evident that the defendant was prejudiced in no substantial right, inasmuch as it does not appear that the regular panel of jurors was exhausted, or that the people had exhausted their peremptory challenges, and no objeciton was made to the competency or impartiality of the jury which was obtained. Mining Co. v. Johnston, 23 Mich.. 39; Luebe v. Thorpe, 94 Mich., 268, 54 N.W., 41. The theory of the prosecution was that on the 17th day of February, 1892, the respondent went to the house of the complainant, Mr. Peck, and there, in the absence of the husband, went into the sleeping room with Mrs. Peck, and they went to bed together, staying in bed from 9 o'clock in the morning until about noon. To prove this the prosecution called Mr. Emmer K. Eastman, who was stopping at the house of Mr. Peck, who testified substantially: That on the date in question he went over to a grocery store, about a mile and a half away, and on returning he found no one in the house below. That he went up stairs, and heard a rustling of bed clothes. He entered the bedroom, the door of which was open, and he saw two forms in bed, covered up; the pillows in their proper place, the bed clothes all nicely tucked in on both sides of the bed. That there were no signs of any one's being there, except the two forms in the bed, all covered up; and, if respondent was there, he was in bed, all covered up, hat, boots, and all. He went down. stairs, took a newspaper, and sat down a short distance from the stair door, and stayed there until afternoon. Mrs. Peck came down stairs, and requested witness to go down cellar and get some pork. When he went down the cellar stairs, he heard two persons coming down the stairs above. He hastened back up the cellar stairs, looked out of the cellar door, and saw Mrs. Peck and respondent coming out of the stairway. On opening the case to the jury, the prosecuting attorney stated that the people would show that in the winter prior to the alleged act Mr. Peck had found the respondent concealed behind the door of his wife's sleeping room. No evidence was given on the trial to support this statement, and it is claimed that the statement was so prejudicial to the rights of the respondent that a new trial should be granted. If this were the only error in the record, we might hesitate to reverse the case on that ground. this statement were made in good faith by the prosecuting officer, and on the trial he found that the proofs did not substantiate the statement, we do not think, for that reason alone, the case should be reversed. The prosecuting attorney may not always find that the proofs will meet the case he expects to make when he makes his opening statement to the jury and it is not every failure of proof, under such circumstances, that warrants a reversal. In this case the fact was not proved, and the jury must be presumed to have based their verdict upon the evidence, and not upon the statement of counsel. But, as the case must be reversed upon other grounds, we presume that on another trial there will be no complaint of like character, as the prosecuting officer's duty is to explain to the jury the nature and elements of the issue that they are to try, and not to make

If

statements that will not be supported by the evidence. The prosecution claims that when the statement was made it was expected that proofs would be allowed to support the statement, and the husband of Mrs. Peck was called to prove the fact, but his testimony was excluded by the court. It is contended by the people that the court was in error in excluding this testimony The testimony was properly excluded. Hanselman v. Dovel (Mich.), 60 N. W., 978, and cases there cited. Testimony was admitted of certain conversations with Mrs. Peck in the absence of the respondent. This was error. As to respondent, it was clearly hearsay. People v. Montague, 71 Mich., 447, 39 N. W., 585; Dalton v. Dregge, 99 Mich., 253, 58 N. W., 57; Com. v. Thompson, 99 Mass., 444. Mattie Doolittle was called as a witness by the prosecution, and testified that she was teaching school, only a few rods from the respondent's house, and that she had seen respondent go to and from the Peck house several times a day during that winter. On cross-examination respondent's counsel asked: "How did it happen that your eyes were on Fred Fowler, instead of your school?" to which she replied: The scholars had a great many times twitted Julia Peck [the daughter of Mrs. Peck ] of Fred Fowler's going there. On redirect examination the prosecutor asked: "State what the fact was as to how she [Julia Peck] came to you; what her appearance was, and what she said about this." Under objection, the witness answered: "She was crying, and complaining that the scholars were telling her that Fred Fowler was Zerilla's [a brother of Julia] father, and that Rodney Fowler was her father." This testimony was subsequently stricken out, but the error was in admitting it. It had a tendency to injuriously and seriously affect the rights of the respondent. It had no place in the case, and it cannot be said, under the circumstances, that the error was cured in striking it out. People v. Pinkerton, 79 Mich., 110, 44 N. W., 180. Testimony was admitted tending to show a similar offense on May 6, 1892. This was some three months after the offense charged in the information. The court was in error in admitting this testimony. Acts of intimacy in this class of cases prior to the offense charged may be shown, but it is wholly incompetent to show subsequent acts for any purpose. People v. Clark, 33 Mich., 112; People v. Etter, 81 Mich., 571, 45 N. W., 1109; People v. Hubbard, 92 Mich., 326, 52 N. W., 729. In the closing argument to the jury the prosecuting attorney referred to the fact that Mrs Peck had not been sworn in the case. was objected to, and the prosecuting attorney said: "Well, let Mr. Lyon comment upon Mrs. Peck. When he wants to talk, it is all right for her to be in the case. This language was entirely uncalled for. The prosecutor had no right to thus attempt to prejudice the respondent, and the trial court should not have permitted these remarks, and, if made, should have directed the jury that they could not weigh that fact against the respondent. People v. Hendrickson, 53 Mich., 525, 19 N. W., 169. principal errors complained of have been discussed. We need not refer to the others of minor importance, as upon a retrial they will undoubtedly be corrected. The judgment below must be reversed, and a new trial ordered.

This

GRANT, J., did not sit. The other justices concurred. (62 N. W. Rep., 572.)