Harbaugh v. People ex rel. Cicott

• Decision Date: 11 January 1876
• Citation: 33 Mich. 241
• Court: Michigan Supreme Court
• Parties: David E. Harbaugh v. The People on the relation of Edward V. Cicott

33 Mich. 241

David E. Harbaugh v. The People on the relation of Edward V. Cicott

Supreme Court of Michigan

January 11, 1876

Heard January 5, 1876; January 6, 1876

Error to Wayne Circuit.

Judgment reversed, with costs, and a new trial granted.

George H. Prentis and Alfred Russell, for plaintiff in error.

J. W Romeyn, E. W. Meddaugh and Theodore Romeyn, for defendant in error.

OPINION

Marston, J:

The relator filed an information in the nature of a quo warranto to inquire by what warrant the respondent held or exercised the office of police justice of the city of Detroit.

A number of questions ^[*] were submitted to the jury upon which they were instructed to find specially, and some questions the court would not permit to be submitted to the jury. Error is assigned upon this refusal; also upon the refusal of the court to render judgment for the respondent upon the evidence of his official majority and the failure of the jury to answer how many illegal votes were cast for either party, and also upon the charges and refusals to charge the jury.

The statute under which questions are submitted to the jury has been before this court several times. In Crane v. Reeder, 25 Mich. 303, it was said: "No question should have been put to the jury which was not material to the inquiry upon which they were to enter; and upon every material question one party or the other would have held the affirmative, and unless he made out his case upon it by the evidence, should have had a finding against him upon it. Every fact essential to a party's case or defense which he fails to prove, is considered as not established, and must be negatived in the conclusions of the jury; it will not do to ignore it."

In Sheahan v. Barry, 27 Mich. 217, it was held that a question the answer to which, whether in the affirmative or negative, would not be inconsistent with the general verdict could not, therefore, affect the verdict, and ought not to be submitted. In Dubois v. Campau, 28 Mich. 304, it was said that the questions to be submitted are required to be particular questions of fact which involve legal consequences, and which would have a controlling force in reaching a conclusion; and in Frankenberg v. First National Bank, supra, p. 46, it was held that questions, the answers to which would be inconclusive, should not have been submitted.

Now, while it may be very difficult to lay down a general rule so clear that he who reads need not err, yet we think it is not at all difficult in the light of the above decisions, to determine whether a given question should be submitted to the jury or not, and if submitted, what the effect of the answer, or failure to answer, upon the verdict would be.

Upon the trial of a cause there is always one or more questions at issue and upon which one side or the other holds the affirmative. If the jury finds a verdict in favor of the party holding the affirmative, and in answer to certain questions submitted to them, answer in the negative, or say they are unable to find a fact which the party holding the affirmative must establish in order to entitle him to a verdict, then the answers are inconsistent with their general verdict, and would control it. Or if they should find a verdict in favor of the party not holding the affirmative of the issue, and yet in answer to questions submitted to them should find that the party holding the affirmative had established the issue, here again the special finding would be inconsistent with their general verdict, and would control it.

Thus, by way of illustration, an action is brought upon a promissory note against the maker and endorser. An affidavit is filed denying the execution of the note, and upon the trial it is further claimed that the note, if executed, has been paid. Here the plaintiff, in order to recover, must prove the execution of the note, and the further fact that it was duly protested and notice given the endorser in order to hold him. The jury render a verdict for the plaintiff for the amount of the note, and in answer to questions submitted find that the note was forgery, or they are unable to agree whether the alleged maker ever executed it. Such a finding would be inconsistent with their verdict. Or should they find that it was properly executed, but was not protested, or that no notice of protest was given the endorser, or that they don't know whether notice was given the endorser or not, in either case the answer would be inconsistent with their verdict. Should they, however, render a verdict of no cause of action, and in answer to questions submitted find the note properly executed, duly protested and notice given, and further say that the note had not been paid, or that they did not know whether it had been paid or not, here again the special finding would be inconsistent with the general one. There would in either case be a failure to agree upon and find one or more facts essential to sustain their general verdict, and which properly they should have found before they could render such a verdict as they did. The parties have a right, therefore, to test the correctness of their general verdict in this way. And one or more interrogatories upon particular questions of fact material to the issue, and involving legal consequences which would have a controlling force in reaching a conclusion, may be submitted to the jury, and the court cannot decline, when requested, to submit such questions. The jury cannot be compelled to answer them. A failure to answer or find any affirmative fact essential to sustain the verdict will have the force and effect to nullify the verdict and result in a mistrial.

What then was the issue in this case? Evidently the question was, who received the greater number of legal votes. It was conceded that according to the official returns the respondent had a majority of one. The burthen of overcoming this was upon the relator. He undertook to do this by showing that certain votes cast in favor of the respondent were illegal, and in this way reduce the number of legal votes which he received. The respondent undertook to show that certain illegal votes were cast in favor of the relator, for the purpose of establishing the fact, that notwithstanding the illegal votes, if any, which he received, yet by deducting the illegal votes given the relator, he, the respondent, would still have a majority. The parties therefore, had a right to have certain questions submitted to the jury for the purpose of ascertaining whether certain alleged illegal voters voted at said election, for whom they voted, and whether they were legally entitled to vote.

In the light of what has been said, we will now examine some of the questions raised in this case.

The third, fourth, fifth, sixth, sixteenth, twenty-eighth and twenty ninth questions proposed by the respondent should have been submitted to the jury. The third, fourth, fifth and sixth questions may be considered together. These questions were proposed for the purpose of having the jury say whether certain persons illegally voted for the relator as the evidence given tended to show. It is claimed, however, that as to the third, fourth and fifth questions, there was no evidence tending to show that the persons referred to therein voted for the relator, and therefore the court properly refused to submit these questions. The record in reference to this question was as follows:

"The testimony aforesaid, tending to show that two men voted for the relator in the second precinct of the tenth ward, was substantially as follows:

"One of the inspectors of election in that precinct testified that two men voted for the relator, whose names are not found registered as voters; that he did not know their names, but believed the name of one of the men was Moran, and that he saw the ballots as they were handed by the voters to the other inspector, and was confident they were straight democratic tickets. The poll list for that precinct was produced, and the name of D. Moran appeared as having voted at that election. His name did not appear on the registry. This was all the evidence in respect to these votes."

We are referred to the case of The People v. Cicott , 16 Mich. 283 at 312, in support of the position of relator's counsel. We are satisfied with what was there said, and have no intention or desire of departing from it. But it does not appear in this case that the inspector who testified had no other knowledge of how the parties voted except from the appearance of a folded ticket. He testified he was confident they were straight democratic tickets, and it is conceded relator's name was upon the straight democratic ticket. How the witness acquired his confidence, does not appear. We cannot, nor could a jury, assume it was from the appearance of the ballot only. The evidence in this form was competent and admissible; and if the relator's counsel did not consider it necessary to inquire further concerning the source of this witness' information, they ought not now to complain.-- Bissell v. Starr, 32 Mich. 297.

As to the sixth question, it is said relator's counsel upon the trial admitted the two persons there inquired about illegally voted for the relator, and therefore there was no necessity for submitting the question to the jury. We are not satisfied that this position is correct. The fact having been admitted would have relieved the jury from all difficulty in answering the question, but as it was the duty of the jury to find from the evidence and admissions the entire number of illegal votes cast for the relator, the respondent had the right to have the jury pass upon and answer the question notwithstanding the admission.

It was claimed by the relator that Robert McClatchey voted...