Error
to circuit court, Kent county; ALLEN C. ADSIT, Judge.
Albert
Ten Elshof was convicted of having carnal knowledge of a
female child under the age of 14 years, and excepts and
appeals. Affirmed.
MONTGOMERY
J.
The
respondent was convicted of the offense of having carnal
knowledge of a female child under the age of 14 years. The
prosecution called as a witness the girl alleged to have been
outraged, who testified that the offense was committed in
September, 1890, in the barn on her father's place in the
township of Byron, Kent county. The respondent was called as
a witness in his own behalf, and testified on direct
examination as follows: "Question. What can you say as
to whether you ever had connection with her in Goorhuis'
barn? Answer. I don't know as I ever did. Q. What is
that? A. I don't know as I ever had anything with her in
the barn. I guess I didn't in the barn." On cross-examination he testified in answer to questions
as follows: "Q. Now, do you mean to say that you did not
go down to the barn with her? A. Because I didn't. Q. Do
you mean to say that you did not? A. Yes, I mean to say that
I didn't. Q. At no time? A. At no time. Q. Not in the
barn? A. No, sir. Q. Did you around the barn? A. I was around
the barn, yes. Q. Did you have intercourse around or near the
barn? A. No, sir. Q. You did, you say, at the house? A. At
the house. Q. What day was that? A. I don't remember the
date. Q. Can't you state the month it was? A. It was in
October. Q. How do you know? A. Because I know it was in
October." The circuit judge charged the jury as follows
"The respondent has been sworn in this case in his own
behalf, as he has a right to be. He tells you that he did
have sexual intercourse with this girl, but he says that it
was not on the 13th day of September, but that it was in
October,-about a month later. He further tells you that that
was the first time that he had sexual intercourse with her.
Now, in regard to that confession on his part, if you find
that the occurrence which he relates as having been on the
16th of October was the same occurrence described in this
information, and that the girl was at that time under
fourteen years of age, that is a confession of committing the
offense described, if you find that it was the same one
understand; but the date-whether it was the 13th of September
or the 16th of October-makes no difference. All you are to
consider is, was the occurrence which he says was on the 16th
of October,-if you believe him instead of the girl in that respect,-was it the same offense that the people
have described in the information? If so, that is a
confession of his guilt." It is claimed that this was
error, as it permitted a conviction for a different offense
than that charged in the information, and testified to by the
prosecutrix, and counsel cite People v. Jenness, 5
Mich. 305. In that case the prosecution gave evidence of
various acts of intercourse, one of which was fixed as having
occurred at the Howard House, in Detroit, and the
instructions admitted of the respondent's conviction if
the jury found the offense to have been committed elsewhere
in the city. The court say, at page 328: "There was no
dispute whether that particular act of intercourse stated to
have occurred at the Howard House occurred there or at some
other place in the city, nor whether it occurred at a period
materially different from that stated by the witness; and
neither the jury nor this court could possibly derive any
other understanding from this charge than that the jury were
at liberty to select among the numerous...
