People v. Hillhouse

• Decision Date: 09 May 1890
• Citation: 45 N.W. 484,80 Mich. 580
• Court: Michigan Supreme Court
• Parties: PEOPLE v. HILLHOUSE.

45 N.W. 484

80 Mich. 580

PEOPLE v. HILLHOUSE.

Supreme Court of Michigan

May 9, 1890

Exceptions from circuit court, Jackson county.

James A. Parkinson, Pros. Atty., for the People. Blair, Wilson & Blair, for defendant.

CHAMPLIN C.J.

The defendant was convicted of the larceny of a horse. The horse was owned by Edwin F. Hillhouse, a son of defendant, who brought the horse from Ohio for the purpose of putting him into the races. Soon after reaching Michigan, the horse got badly out of condition, and his owner was obliged to put up the entry fees, and, being impecunious, borrowed money from Mr. John W. Boardman, and gave him a mortgage upon the horse. Defendant is a veterinary surgeon, who was then residing in Ohio, and at his son's solicitation he came to Jackson and treated the horse, with a view of curing him of his ailments, and enable him to enter the races. This was in August, 1887. In June, 1888, and while defendant was still doctoring the horse, Boardman seized the horse under his mortgage, claiming that there was due to him $210. At this time the defendant claimed a lien on the horse for his medical services for an amount of five or six hundred dollars. To pay the amount due to Boardman, Nathan H Staples, the complaining witness, and one Hunn advanced the money,-Staples furnishing $100, and Hunn $110. Staples took the horse into his possession, and defendant continued to treat the horse until some time in October following. In the month of September, 1888, Edwin F. Hillhouse executed to his father, the defendant, a chattel mortgage upon the horse to secure him for his medical services and money paid to and for his son, which mortgage was filed in the clerk's office. In October, 1888, defendant took the horse out of Staples' possession, and Staples replevied it. The replevin suit was tried, and defendant recovered a verdict which was set aside by the court, on the ground that defendant had treated two of the jurors to refreshments. That cause is still pending, and undetermined. It was claimed on the part of Staples in the replevin suit, and he bases his right to the possession of the horse in that suit, that at the time he advanced the $100 defendant asserted a lien of $500 or $600 upon the horse, for medical services in doctoring him, but agreed to waive such lien in favor of himself and Hunn until the advances were repaid, and that he might have the custody and possession of the horse until such advances were repaid, and that the horse was delivered to him under that arrangement. The defendant and his son deny that such was the agreement; that nothing was said about waiving a lien, or of giving to Staples a lien or possession of the horse; the son stating that the arrangement was that Staples and Hunn were to advance the money to get the horse out from under the Boardman mortgage, and to go in with him in putting the horse in the races in the fall of 1888, and share in his earnings, and get back their money in that way. Both father and son testified to the way the horse came into the possession of Staples. They said that in April, 1888, they hired Staples to pasture the horse, and that he was in Staples' pasture until the disagreement, in October of that year, out of which the replevin suit grew. The mortgage to defendant was filed in the latter part of September, 1888, and, just before the expiration of the year, the defendant took possession of the horse, as he claims, under and by virtue of the mortgage. Before doing so, he spoke to the sheriff for assistance in getting a horse under a chattel mortgage, which he claimed. The sheriff asked him if he had a writ of replevin, and he said not. The sheriff told him he did not understand what use an officer could be to him without such writ. It appears that he about that time took the advice of his attorney, who advised him he could take the horse upon his mortgage if he could do it peaceably, and without committing a trespass. He started, in company with one Bryant, in the evening, and drove to Staples' place in the town of Sandstone, and inquired of a neighbor if he had seen the horse in Staples' pasture, and borrowed a lantern to look for him. It appears that Staples lived a short distance from his farm, in the village of Parma, a part of which is in Sandstone, and had the horse in a stable. He was kept in a box-stall, without halter, and in the morning he found the door of the stall partly open, and the horse gone. The defendant claims he found the horse grazing by the side of the road, and took him by virtue of his chattel mortgage. Hesaid he delivered him to Bryant, and claimed not to know where the horse was at the time of the trial. The jury found the defendant guilty of larceny.

This conviction cannot stand. It appears from the record before us, which contains all of the evidence, that the attorney who prosecuted the replevin suit for Staples against defendant is the prosecuting attorney who procured his conviction of larceny, and, although in his brief filed on behalf of the people he claims that he acted very fair towards defendant, yet we cannot consider this claim, when applying the inhibition of the statute to the transaction. The statute is positive and peremptory that the attorney shall not be permitted to prosecute, or aid in prosecuting, any person for an alleged criminal offense, where he is engaged or interested in any civil suit or proceeding depending upon the same state of facts, against such person, directly or indirectly. How. St. Mich. � 557. The title of Staples in the replevin suit, and the state of facts under which he claimed to maintain his property in the horse, were the same as the facts upon which the charge of larceny is predicated, and the prosecuting attorney was disqualified from acting as prosecutor. After the complaining witness was sworn, and gave his testimony, from which it appeared that the prosecuting attorney was his attorney in the replevin suit, and still was his attorney in that...