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"In case of neglect of any person to make adequate provisions and put on a fair proportion of the men required to break jams of intermixed logs and to clear the same from the banks and shores with reasonable dispatch, etc., it shall be lawful for any other person whose logs are intermixed to put sufficient number of men on to supply the deficiency and clear such intermixed logs from the banks and shores of such water."
Section 8 (1) gives the person supplying such deficiency and causing such intermixed logs to be cleared, a lien upon the logs of the person guilty of such neglect for a fair proportion of the charges and expenses incurred.
It is the claim of defendant that the law of Canada applies to this transaction, and that its taking possession of the logs was not only lawful but was necessary if it would avoid the loss of its own timber, and that it has never sought to deprive plaintiff of its timber. It is the claim of the plaintiff that defendant cannot invoke the law of Canada, unless it invokes all of it. We quote from the brief:
“There certainly is no evidence of a disposition on defendant's part to give plaintiff the notice required by the statute upon which defendant justifies its action. Who can say that notice was given without delay or within a reasonable time?"
It is also his claim that, when the smaller raft broke in the St. Mary's river, and some of the logs went ashore and were recovered by defendant, the provisions of section 5094, 2 Comp. Laws (2 How. Stat. [2d Ed.] $ 4156), at once applied. Stated concisely the situation seems to be as follows: In 1907 plaintiff had a raft which was broken up, and the timber went ashore. Plaintiff took no effective steps to recover this timber. In 1911 defendant had a raft which broke and went ashore, its timber intermingling with the timber of plaintiff, which went ashore four years before, so that, in order to recover its timber, it was necessary for defendants to take possession of it all, which it did, and conveyed it all to Sault Ste. Marie. Shortly after this, and while the timber was still in the possession of the defendant, a claim for damages was made by plaintiff. He was at once informed that the defendant had never claimed to own the timber.
"The timber of yours, if it is yours, we want you to take, and you are notified to get it, and we will assist in sorting it.”
The plaintiff, instead of taking the timber as requested, brought this suit and seeks to recover three times its value, without offering to make any deduction for the expenses incurred by defendant.
There is a full discussion in the briefs of whether the law of Canada applies, and of other legal propositions, which we think it unnecessary to discuss.
It is a familiar principle of law that, in construing a statute, we must consider the occasion of its enactment and the purpose to be accomplished. Washburn v. People, 10 Mich. 372; Ticknor's Estate, 13 Mich. 44; Caldwell v. Ward, 83 Mich. 13 (46 N. W. 1024).
When section 5094, 2 Comp. Laws (2 How. Stat. [2d Ed.] § 4156), is carefully read in connection with the other provisions of the act, it is clear that the purpose of its enactment was to prevent the unlawful taking of timber by one person or corporation belonging to another. To apply its provisions to the instant case would be a travesty upon justice.
Judgment is affirmed.
MCALVAY, C. J., and BROOKE, KUHN, STONE, OSTRANDER, BIRD, and STEERE, JJ., concurred.
PEOPLE V. LEONZO.
1. TRIAL-CONDUCT OF COURT-CRIMINAL LAW.
Where the accused, a colored man, was convicted of rob
bery while armed with dangerous weapons, his attorney being colored, and it appeared that the court, during the opening, treated the attorney in a way which tended to discredit him in the eyes of the jury and prejudice the rights of the respondent, frequently interrupting counsel in his opening statement and examination of the witnesses, and making remarks which had a tendency to belittle the attorney, the court is required to grant a
new trial on the ground of prejudicial error. 2. SAME_CHARGE-WITNESSES.
Also the reference in the charge of the court to testimony
given by the police as entitled to credence and a statement that the respondent who claimed he went to the officer for protection, was, at the time, fleeing, held, to amount to reversible error.
Error to the recorder's court for the city of Detroit; Phelan, J. Submitted April 23, 1914. (Docket No. 168.) Decided June 1, 1914.
Kiyde Leonzo was convicted of robbery, being armed, etc. Reversed.
Grant Fellows, Attorney General, Hugh Shepherd Prosecuting Attorney, and Harry B. Keidan, Assistant Prosecuting Attorney, for the people.
Chawke & Sloan, for respondent.
MOORE, J. On the morning of Sunday, December 8, 1912, about 3 o'clock, respondent was arrested by two police officers in the city of Detroit. He was running. His claim is that he and two companions had been out; that defendant left them and was returning home, which is in the immediate vicinity of the place where he was arrested; that just before then some one threw a rock or brick which hit the side of the building which he was passing; that he stopped and more were thrown; that he then started to run, turned the corner, saw the police officers, and ran to them for protection. The officers stated at the trial that they had been standing in the alley and surprised the defendant as he was running; that one held him, while the other went around the corner to investigate; that they found the complaining witness, one James Leary, holding a handkerchief to a cut in his chin. Leary stated that he had been knocked down and robbed. The officer and Leary then went back to where defendant and the other officer were waiting. Defendant was searched and two pocketbooks and an old razor were found on his person. One of the officers testified that there was blood on the razor at that time, and that it was fresh. His fellow officer testified that the razor was not opened at that time, so far as he knew, and that he was there and saw everything. Defendant claimed that he always carried two pocketbooks, one for large bills and a memorandum, and one for change; that he had been working at the bowling alleys of Alderman Rutter setting up pins, and at the barber shops of a Mr. Murphy and Mr. Trokey as porter, earning $15 to $20 a week; that the razor had been given him by a barber at Mr. Trokey's barber shop about eight months previous to his arrest; that it was no sharper than an ordinary butter knife, and that he had carried it with him "like an old pocketknife."
Mr. Leary testified. There was no positive identification of the pocketbook. He testified it looked exactly like his, but that it had no distinguishing mark on it; neither could he identify the money. The complaining witness and the defendant had been drinking to some extent, according to the testimony of each, but the officers stated that neither one was under the influence of liquor. Respondent was informed against. He was charged with robbery, being armed with a dangerous weapon with intent, if resisted, to kill, and found guilty, whereupon he was sentenced to a term of from 10 to 20 years in Marquette prison, with a recommendation that he serve the maximum term. The case is before this court by writ of error.
The respondent is a colored man. He was defended by Mr. Willis, who is also a colored man. Many errors are assigned, but we shall discuss but two groups of them.
Complaint is made of the language and conduct of the court toward counsel for the respondent in that the language complained of tended to belittle counsel and to prejudice respondent in the estimation of the jury.
At the beginning of the trial the following occurred:
“Mr. Keidan: If your honor please, the name of the complaining witness in this case is James Leary. On the information it gives it as James Teary. I think that it was a mistake in making a “T' out of the ‘L.' I ask your honor's permission to amend the information in that respect.
“The Court: Any objections? "Mr. Willis: No, your honor. “The Court: Very well.
"Mr. Willis: May it please the court and the gentlemen of the jury.
“The Court: Just take the witness stand [to the complaining witness].
"Mr. Willis: I want to open my case now.
“The Court: I don't care what you want. Take the witness stand. Now you ask the court's permission when a case is started. Be seated witness.
“Mr. Willis: I desire now to open my defense.
“The Court: Say so. Make the motion. We don't know what you are going to do. The prosecuting attorney called the witness to the witness stand, and you order him back. You have got no right to do that. Go ahead and tell the jury what you want to.
“Mr. Willis: Gentlemen of the jury, this is a case,