Washburn v. People

• Decision Date: 17 July 1862
• Citation: 10 Mich. 372
• Court: Michigan Supreme Court
• Parties: George W. Washburn v. The People

10 Mich. 372

George W. Washburn v. The People

Supreme Court of Michigan

July 17, 1862

Heard May 3, 1861 [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material]

Error to Washtenaw Circuit, where plaintiff in error was proceeded against by information for the murder of Lucy A. Washburn, his wife, as follows:

"State of Michigan, Washtenaw County, ss:

"The Circuit Court for the county of Washtenaw.

"Sylvester Abel, prosecuting attorney for the county of Washtenaw aforesaid, for and in behalf of the people of the State of Michigan, comes into said court, in the June term thereof, in the year of our Lord one thousand eight hundred and sixty, and gives it here to understand and be informed, that Geo. W. Washburn, late of the city of Ypsilanti, in the county of Washtenaw, and State of Michigan, heretofore, to wit, on the twenty-first day of May, in the year of our Lord one thousand eight hundred and sixty, with force and arms, at the city of Ypsilanti aforesaid, in and upon one Lucy A. Washburn, in the peace of God and the people of this State then and there being, feloniously, willfully, and of his malice aforethought, did make an assault, and that the said George W. Washburn aforesaid, feloniously, willfully, and of his malice aforethought, her, the said Lucy A. Washburn, did seize by the throat, choke, strangle, and suffocate, by means of which said seizing by the throat, strangling and suffocating, the said Lucy A. Washburn then and there instantly died."

There were several other similar counts, and also counts for manslaughter, and the information was verified as follows:

"State of Michigan, Washtenaw County, ss:

"Sylvester Abel, being duly sworn, deposes and says, that he knows the contents of the within and foregoing information, and that he has good reason to, and does verily believe, the same to be true, as therein set forth. S. A

"Sworn and subscribed before me, at Ann Arbor, this 15th day of June, A. D. 1860.

Robert J. Barry, Clerk."

To this information the following plea was interposed:

"And the said George W. Washburn, in his own proper person, cometh into court here, and having heard the said information read, saith: That the Circuit Court for the county of Washtenaw aforesaid, here ought not to take cognizance of the murder and manslaughter charged in said presentment above specified, because, protesting he is not guilty of the same, nevertheless, the said George W. Washburn saith, that this court has not, or cannot obtain, jurisdiction of said crimes of murder and manslaughter, by presentment of the prosecuting attorney for the county of Washtenaw, and because there is not any thing set forth in said presentment in regard to said offenses of murder and manslaughter which gives jurisdiction to the Circuit Court for the county of Washtenaw, to hear, try and determine the same, and this he, the said George W. Washburn, is ready to verify. Wherefore he prays judgment, if the Circuit Court for the county of Washtenaw, now here, will take further cognizance of the presentment aforesaid, and that by the court, now here, he may be dismissed and discharged."

To which the prosecuting attorney replied as follows:

"And hereupon Sylvester Abel, prosecuting attorney of said county, who prosecutes for the said county in this behalf, says, that notwithstanding any thing by the said George W. Washburn, above in pleading alleged, this court ought not to be precluded from taking cognizance of the presentment aforesaid, because he says that the said presentment is sufficient, and because he says that the said Circuit Court has, and can obtain, jurisdiction of the crimes, murder and manslaughter, by the presentment aforesaid, of the prosecuting attorney aforesaid, and that there is sufficient set forth in the presentment aforesaid to give the said Circuit Court jurisdiction of the said offenses, to hear, try, and determine the same.

"And this he, the said Sylvester Abel, prosecuting attorney as aforesaid, is ready to verify; wherefore he prays judgment, and that the said George W. Washburn may answer to the said presentment."

The Circuit Court overruled this plea to the jurisdiction, and the defendant then pleaded not guilty.

On the trial upon this issue, the prosecution called James Washburn, a child of defendant, seven years of age. The counsel for the defendant objected to his being sworn, on the ground that he was too young, and, from an examination of the witness by the court, that he had been tampered with by his grandfather, James H. Young, but the court overruled the objections, and the child was sworn.

Previous to his being sworn, the judge asked the child his age, which he gave at seven years. He also asked him if he knew it was wrong to tell a lie, to which he answered, yes; that he would be punished if he did, but did not say in what way he would be punished, if he told an untruth. During his examination he stated to the court that he had been told by his grandfather, who brought him here as a witness, that he must say his father murdered his mother.

After this examination, and being sworn, the child said he recollected the day his mother died; he went home from school and looked all through the house, but could not find her, but looked at the foot of the stairs and found her dead.

Considerable evidence was given to show difficulty between Washburn and his wife, resulting in a separation, and a bill filed by her for a divorce. The prosecution then offered in evidence what purported to be a warrant in a criminal case, issued by D. B. Greene, a Justice of the Peace for Ypsilanti, against defendant, upon which it was alleged he had been arrested; to the introduction of which the defendant's counsel objected, because it was irrelevant and immaterial, and because there was no return upon the warrant showing that it had ever been served; but the court overruled the objection. It was then proved that Greene was a Justice of the Peace at the time the warrant bore date, and that he signed the same as justice, but the contents of the warrant were not read to the jury.

The prosecution then called D. A. Wise, a constable, by whom they offered to prove the service of the warrant, which was objected to on the ground it was irrelevant and immaterial, and that they could not prove by parol what was done by virtue of the warrant; which objections the court overruled, and the witness testified as follows:

"I reside in Ypsilanti; am a constable and was in March last; I served the warrant here produced on Washburn in March last, at Mooreville, and arrested him; told him contents of warrant; I don't remember of reading the warrant to him."

On his cross-examination he said: "I was employed by Joslin to go after Washburn; I never made any return on the warrant; I never took Washburn to the office of the justice who issued the warrant; I took him to Joslin's office; I supposed the matter adjusted between Washburn and his wife; I let him go on my own responsibility; supposed the matter was settled; never arrested him again on the warrant."

Other objections were taken to rulings on the admission of evidence in the course of the trial, but as they are not specially noticed in the opinion, it is not deemed important to state them here.

The jury found defendant guilty of manslaughter.

In this court the case was twice argued--first, upon all the questions appearing in the record, and, second, a re-argument was had by direction of the court, upon the objections taken to the information. Only the second argument is here given.

Judgment affirmed.

O. Hawkins, for plaintiff in error:

All penal statutes must be construed strictly: 8 Pick 573; 5 Wheat. 95. Penal statutes are never extended by construction, when the life, liberty or property of the citizen is concerned, nor by implication; and when there is doubt in regard to the construction to be given, it is always given in favor of the defendant: 17 Mass. 362; 5 Pick. 420; 8 Barb. 603, 605; 2 Story 369, 203; 4 Port. 410; 2 Mass. 127; Whart. Cr. Law, 364; 7 Pet. 462; 16 Me. 256.

All penal statutes are to reach no further than their words; and no person can be made subject to them by implication: 6 Vt. 215; 10 Vt. 590; 1 Bald. 101; 19 Conn. 292.

No offense is to be brought by construction within the statute while it falls not within all its words: 2 Haw. P. C., 188, § 16; 2 Gall. 18; 1 Chitty Cr. Law, 283 and note.

Where the statute provides a mode of procedure, only that which the statute prescribes can be followed: 1 Bish. Cr. Laws, page 150 and note 1.

And when there is a condition annexed in the statute, before the court can take jurisdiction, it must affirmatively appear by express averment that the condition has been complied with: 8 Port. 99, 104.

It is not necessary to set up the defense by way of plea. It is a jurisdictional fact, and good in arrest of judgment or on writ of error; and the court is bound to notice it: 3 How. Miss., 34.

2. That there is no oath as required by the statute, is plain. The oath required by the law referred to, is a substitute for the oath administered to the grand jury. The court will look at the object of the law in requiring the oath, taking it in connection with the fact the law requires an examination before a magistrate for the offense charged, so that the person making the oath can be advised of the truth of the allegation.

An oath is defined to be a solemn affirmation, made with an appeal to God for the truth of what is affirmed, etc. And a false oath is called perjury. Tested by this rule, could perjury be assigned upon the affirmation attached to this information? We submit it could not, for...