them to find a verdict for the people because the evidence was undisputed. "You should find a verdict against this respondent, of guilty, as charged, without leaving your seats, and the clerk will take the verdict." The court then offered defendant the opportunity to lodge exceptions before sentence in order "to go to the Supreme Court to see whether I am right or not." Held, that while the trial court might inform the jury in a criminal case that they should render a verdict of guilty, he could not compel them to render such verdict, and that the verdict in question was void for coercion. [Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1727-1729.]

Grant, C. J., and Montgomery and Hooker, JJ., dissenting.

Exceptions from Circuit Court, Ingham County; Charles H. Wisner, Judge.

George North was convicted of being engaged in the business of unlawfully selling liquors at retail without having paid the tax required by law, and he brings exceptions. Sustained.

Argued before GRANT, C. J., and BLAIR, MONTGOMERY, OSTRANDER, HOOKER, MOORE, CARPENTER, and MCALVAY, JJ.

John E. Bird, Atty. Gen., and Walter S. Foster, Pros. Atty., for the People. L. B. Gardner and Richard Raudabaugh, for respondent.

HOOKER, J. The defendant was convicted of being engaged in the business of unlawfully selling malt, brewed, vinous, and fermented liquors, at retail, without having paid the tax required by law. The testimony was undisputed. At its conclusion the learned circuit judge said to the jury: "In a case where the facts are undisputed and sufficient of them are undisputed to make a case in favor of the people, then it is the duty of the court to tell the jury so, and to ask them to find a verdict in accordance with that fact. * Now as I understand the law, gentlemen, the sale of that mixture is a violation of it, and the respondent himself having testified that he knew what it was, having testified that he knew that it contained some alcohol, that he must answer to the law for this sale, it appearing there is no testimony that he made more than one sale, furnished three glasses at the request of the officer, three glasses at the request of somebody else, making two sales, and making enough, under the law as I understand it, to constitute him a dealer or a person engaged in the business. * I think it is my duty, and I instruct you that you should find a verdict against this respondent of guilty as charged, without leaving your seats, and the clerk will take the verdict."

Two questions are raised: First, whether the sale of malt liquor containing about two per cent. of alcohol, was within the statute; second, whether it was error to direct the jury to find a verdict of guilty without leaving their seats. Sections 5379 and 5380 of the Compiled Laws justify the conclusion of the circuit judge upon the first question, and

while the question was not discussed in People v. Wilcox, 115 N. W. 973, it was neces sarily involved in that case. The charge of the court was not erroneous, being sustained by former adjudications cited in People v. Gardner, 143 Mich. 104, 106 N. W. 541, and People v. Neal, 143 Mich. 271, 106 N. W. 857. The former case distinguished in the case of People v. Collison, 85 Mich. 105, 48 N. W. 292. See, also, People v. Elmer, 109 Mich. 495, 67 N. W. 550; People v. Schotty, 116 Mich. 1, 74 N. W. 209.

It is suggested that this record shows that the jury was not permitted to render a verdict of not guilty. If that is true, there was error, and the case should be reversed, but that is not to be presumed, it must appear from the record. We have quoted what was said by the learned circuit judge. He did not say to the jury, "You must render a verdict." On the contrary he said by implication in the first paragraph that it was his duty to tell the jury that the undisputed proof made a case for the people and to ask them to find a verdict in accordance with that fact. He explained the situation at length in the second paragraph and in the third he said, "I instruct you that you should find a verdict against the defendant as charged, without leaving your seats." The vice in this instruction if there is vice in it consists of the direction that it was their duty to find a verdict of guilty "without leaving their seats." It is no unusual thing for a jury to render a verdict, even in criminal cases, without leaving their seats, and in the absence of some indicated unwillingness to follow the instructions (which were clearly justified by the proof), there is no reason for thinking any juror was coerced into an unwilling verdict, and to reverse this case upon this ground is to overturn the conviction on a technicality. The cases of People v. Warren, 122 Mich. 504, 81 N. W. 360, and People v. Remus, 135 Mich. 632, 633, 98 N. W. 397, 100 N. W. 403, are relied on as condemning the practice followed in this cause. It must be admitted that as to the former there was a clear case of coercion of the jury into the rendition of a verdict against their convictions.

In charging the jury that it was their duty to render a verdict of guilty and sending them out to deliberate, the trial judge followed a practice which has been repeatedly sustained. But they returned into court manifestly unwilling to comply and what occurred there conclusively shows that the ver dict was the result of subsequent emphatic statements by the judge that they had no legal right to disregard his instructions. The entire court concurred in holding this to be error. We say, in substance, in that case that it is settled in this state that a judge may direct a verdict of guilty, but may not compel it; a proposition the latter part of which has never been questioned in any of the cases decided in Michigan. In People v.

Remus, supra, the trial judge directed a verdict, and, after being out all night, the jury returned into court, and said that they were unable to agree, when the court said "Gentlemen of the jury, it is your duty to return a verdict of guilty in this case. Now you will return to your room, and you will come in under these instructions, and bring in a verdict of guilty." This they then did and the court denied the demand of defendant's counsel that the jury be polled. That this was error is apparent, and we so held, and the language used may be reasonably construed as applicable merely to such a case as was then made, and not necessarily applicable to a case where indications of coercion are wanting.

I assume that in all cases of misdemeanor It is proper to direct a verdict of guilty upon admitted facts or where the offense is conclusively proved by uncontradicted testimony. If this is so, this case differs from the many where directed verdicts of guilty have been sustained, only in the fact that the judge told the jury that it was their duty to render such a verdict "without leaving their seats." We should not assume that this was any more coercive than as though he had omitted the direction as to leaving their seats, and they had at once, and without leaving their seats, conferred together and rendered such a verdict. Neither should we assume that they did not so confer together, before rendering the verdict and agree, nor that the clerk in taking the verdict omitted to take it in the manner required by law and in accordance with the form books, viz., "Gentlemen, have you agreed upon a verdict?" "What is your verdict?" "Listen to your verdict as recorded. You do say upon your oaths," etc. Had there been a deviation from this, it should have been made to appear in the bill of exceptions as it was in People v. Collison, and not so appearing we will not assume any deviation from the forms of law, especially in a substantial particular, and in face of the decision in the Collison Case with which the trial judge was doubtless familiar. See 85 Mich. 107, 48 N. W. 292. Error is not to be presumed even in a criminal case.

will find in opposition to the law from mere whim, caprice, or prejudice, although they may have the right to do so. In this ruling we do not intend to encourage the practice of directing a verdict against the accused in criminal cases. In all such cases the jury should be permitted to retire to the jury room, and there deliberate, and the trial judge should content himself by stating the law as applied to the facts, and with an admonition to the jury of their plain duty in the premises. The conviction in this case is affirmed." It immediately preceded the Collison Case, both cases being submitted and decided on the same days. The Neumann Case does not go the length of saying expressly that a verdict of guilty may or that it may not be directed. The former is clearly implied, however, by the affirmation of the judgment, and it has been expressly so held since, as it had been before. People v. Richmond, 59 Mich. 573, 26 N. W. 770; People v. Hawkins, 106 Mich. 479, 64 N. W. 736; People v. Neal, 143 Mich. 271, 106 N. W. 857; People v. Gardner, 143 Mich. 104, 116, 106 N. W. 541.

We find no error, and the judgment should be affirmed.

GRANT, C. J., and MONTGOMERY, J., concurred with HOOKER, J.

CARPENTER, J. The facts in this case are stated in the opinion of Justice HOOKER. I think there should be added however at the conclusion of his quotation from the charge of the court, this: "Now, gentlemen, if you want to lodge exceptions before sentence, I will give you the opportunity to do so that you may go to the Supreme Court to see whether I am right or not." This addition serves to indicate what perhaps might otherwise clearly appear that the charge was not intended to give the jury any responsibility respecting the rendition of the verdict. Nor do I understand that the jury actually did render a verdict. I infer that the clerk took their verdict as a mere matter of form. I find it impossible to reconcile this practice with the rule laid down in People v. Warren, 122 Mich. 504, 81 N. W. 360, followed by People v. Remus, 135 Mich. 629-634, 98 N. W. 397, 100 N. W. 403. I think that from People v. Warren, supra, and the cases there cited it may be said that a trial court may inform a jury in a criminal case that they should render a verdict of guilty, but he cannot compel them to render such a verdict. I think that in this case they were compelled to render such a verdict and that for that reason we must set aside the conviction.

117 N.W.-5

FISHER V. RADFORD et al.* (Supreme Court of Michigan. July 1, 1908.) 1. FRAUD-FALSE REPRESENTATIONS-REPRESENTATION TO ANOTHER TO BE USED IN SOLICITING PLAINTIFF.

Plaintiff invested money with others, including V., to increase the capital of a corporation, on a written representation made by a defendant to V., who was promoting the transaction, that the corporation was earning 12 per cent. V. knew the facts, but the representation was used by him to show to others. Held that, if the representation was made to be shown by V. to those whom he was soliciting, it was a representation to plaintiff.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 23, Fraud, § 9.]

2. SAME-PLEADING-VARIANCE.

Where a complaint alleged that defendants sold plaintiff certain shares of stock for a certain sum under false representations, the fact that plaintiff's money was in fact placed with that of others in securing a transfer of a certain interest in the corporation was immaterial, if the representation made to secure the transfer was false and was relied on by plaintiff, and the stock was to be, and was, in fact, issued, and plaintiff was to, and did. receive his proper number of shares as alleged, hence there was no variance between the allegation and proof in that respect.

3. SAME EFFECT OF KNOWLEDGE OF FACTS BY OTHER MEMBERS OF SYNDICATE.

Where a syndicate purchases an interest in a corporation, and a member thereof promoting the venture knows of the falsity of a written representation made to and used by him to induce members of the syndicate to subscribe, such knowledge is not imputed to the other members who acted on the representation.

4. SAME-ACTIONS-VARIANCE.

While all the misrepresentations alleged in an action for fraud need not be proved, where plaintiff alleged that defendants sold him stock in a corporation located at N. on misrepresentations as to profits, but the proof showed that plaintiff and others were to secure stock in a corporation which was to increase its capital and to move from N. to Y., plaintiff's home, where it was to be subsequently operated, and it was not shown that the plaintiff would have invested but for the removal, there was a fatal variance, precluding recovery. 5. APPEAL AND ERROR TRIAL.

REVERSAL

NEW

Where a reversal is required because of a variance between the pleading and the proof which cannot be obviated except by so amending the complaint as to state a new cause of action, and the statute of limitations has run, no new trial will be granted.

McAlvay, C. J., and Carpenter, J., dissenting.

Error to Circuit Court, Wayne County; Alfred J. Murphy, Judge.

Action by Fred E. Fisher against George W. Radford and others. Judgment for plaintiff, and defendants bring error. Reversed.

Argued before McALVAY, C. J., and CARPENTER, OSTRANDER, HOOKER, and MOORE, JJ.

S. P. Bradley, for appellant Radford. Maybury, Lucking, Emmons & Helfman, for other appellants. Fred A. Baker (Albert B. Hall, of counsel), for appellee.

MCALVAY, C. J. This suit was brought against defendants for false representations *Rehearing denied September 10, 1908.

made on the sale of certain corporate stock. From a judgment for plaintiff, defendants bring error.

The principal and controlling question in the case is whether a verdict should have been directed for defendants on account of a variance between the declaration and the proofs. In the case of Van Cleve v. Radford et al., 149 Mich. 106, 112 N. W. 754, this court had under consideration a declaration in the exact language of the one in this case, as far as the allegations of false representations and fraudulent conduct of these defendants is concerned. And the crucial question in the case was whether there was a fatal variance between the declaration and the proofs. From the similarity of these declarations it is evident that the general features of the transactions are identical. The declaration in this suit contained two counts. The first count alleged the formation of a corporation known as the "Keeley Institute," setting forth its articles of association; that the capital stock of the company was increased by defendants and their associates without warrant, and for the purpose of fraud, from $50,000 to $250,000, and that defendants sold 100 shares for $2,500 to plaintiff, and that, to induce the plaintiff to buy the same, defendants fraudulently represented that their title to the stock was good, the shares legally issued, etc., and that on, to wit, the 15th day of May, and for a long time previous thereto, the net earnings of the corporation were 12 per cent. on $250,000, to wit, the sum of $30,000 per an num; that the increase of the capital stock was illegal and void; that the alleged stock dividend was fictitious, defendants had no right to the shares, and that the net earnings up to and at the time of the sale were not 12 per cent. on $250,000; that there were no profits; that plaintiff relied upon these misrepresentations and bought the stock on the 1st of May, 1892, and he afterwards, upon the discovery of the fraud and on the 12th day of July, 1893, tendered the same back, etc. Inasmuch as plaintiff admits that his recovery in this case was upon the first count, it will not be necessary to give the allegations contained in the second count of his declaration. The gravamen of the charge is that defendants, by fraudulently representing to him that the net earnings of the corporation at the time of the sale and for a long time previous were 12 per cent. on $250,000, induced him to purchase and sold to him 100 shares of stock for the sum of $2,500.

We will briefly consider the sale as alleged and as proved. From a careful examination of the record we find that among other facts the proofs establish that the sale made was a sale of one-fifth interest in this corporation for the sum of $50,000 to certain subscribers in the city of Ypsilanti, who in the record and correspondence are called a syndicate; that plaintiff was one of these subscribers; that if this sale was made the business was to be removed from Northville to Ypsilanti, where

certain property was to be purchased for the occupancy and use of the corporation; that a memorandum in writing of the agreement between the Ypsilanti parties and defendants was made as follows: "D. L. Quirk, Pres. W. L. Pack, Cashier. The First Natl. Bank, Ypsilanti, Mich. 189. Mrs. Swift sells her place to Co. on contract, $25,000 down, balance $15,000 on or before one and two years, 6 per cent. (to be paid first from receipts of this institute). The present stockholders sell to your syndicate one-fifth interest in the Keeley Institute (to be removed to Ypsilanti) for $50,000 cash. Your syndicate loans to Co. $12,500 (one-half of down payment to Mrs. Swift) and takes the Co.'s note at 6 per cent. The present stockholders loan the same amount to Co. on the same terms for same purpose. These notes to be payable pro rata out of first earnings of this institute. Your syndicate and present stockholders to loan in equal portions sufficient to put Swift property in shape for business, that amount for that purpose being estimated not to exceed $5,000.00. The capital of the Co. to be increased to $250,000 or $500,000 as your syndicate may desire" that plaintiff gave his check for $2,500 to Mr. Glover; that he intrusted the money in his hands, and was largely induced to enter the deal because Mr. Glover and other parties he had confidence in were interested; that Mr. Glover was active in bringing about this sale and change of location. The record further shows that the money paid by plaintiff and the other subscribers at Ypsilanti was not paid directly to defendants, but was paid into the hands of the cashier of the bank as trustee who paid the whole amount to defendants in accordance with the proposition contained in the following letter:

The First National Bank, Ypsilanti, Mich. May 14, 1892. Geo. W. Radford, DetroitDear Sir: Yours of the 12th recd. It will be impossible for me to get in to-day. I am on the sick list-in bed yesterday. I inclose you names of our stockholders, the list may be changed (added to) before stock is issued. We will pay the money in to our bank here to Mr. W. L. Pack, Cash., as trustee and take his receipt. Amount to be delivered to you on receipt of stock certificate, which will, I suppose, be satisfactory. Everything progressing nicely. Yours truly, J. W. Van Cleve. Daniel L. Quirk, Helen C. Swift, Henry P. Glover, John W. Van Cleve, Charles E. King, Thomas W. McAndrew, Carlisle P. McKinstry, Frederick E. Fisher, John W. Watling, Clark S. Wortley, F. H. Pease."

Plaintiff's money was put into this fund by Mr. Glover who testified: "I understand that we were paying or about to pay $50,000 for a one-fifth interest for what they had paid $30,000 for." He also testified that the nsigned memorandum given above was correet, and, further, "I understood that they were to increase the capital stock to $250,000; that was part of the arrangement. No more

money was to be paid in to the company. We paid in $50,000 according to that memorandum for a fifth interest, and Detroit stockholders were to have it." Mr. Van Cleve, a witness for plaintiff, testified: "Mr. Fisher (plaintiff) was one of the parties. He was one of the Ypsilanti parties that subscribed. He was one of the parties that was to buy one-fifth interest for $50,000." Relative to the whole sale he testified: "Q. Was the whole sale conditioned upon your raising $50,000? A. $50,000; yes, sir, that was the proposition. Q. And no separate single sale to any one individual? A. I don't know of any. Q. What is that? A. No. Q. Was it to be all one transaction-all consummated at one time? A. Yes, sir; I suppose so." Mr. Van Cleve was the person most active in bringing about this sale and removal.

at Ypsilanti.

He was a subscriber and resided After the removal to Ypsilanti he became manager of the business. The allegations in the declaration relative to this sale gave no notice to defendants of the transaction proved. In considering the fraudulent representations it will not be necessary to refer to the allegations relative to increasing the capital stock, or the title to stock issued to plaintiff, because both are relied upon as implied warranties.

It appears from the record that the only express fraudulent representation claimed by plaintiff which induced him to enter into this purchase was a certain letter written by defendant Radford to Van Cleve as follows: "Detroit. April 25, 1892. J. W. Van Cleve, Ypsilanti-Dear Sir: In answer to your inquiry, will say that the Keeley Institute at Northville is now paying 12 per cent. net on $250,000. Yours most truly, Geo. W. Radford." Plaintiff saw this writing in the hands of Mr. Glover, and read it. The specific allegation contained in the declaration is, "And they did further fraudulently and corruptly and with intent to cheat and defraud said plaintiff, and induce him to buy and pay for shares of stock, represent to said plaintiff that at the time of said sale, to wit, the 15th day of May, 1892, and for a long time previous thereto the net earnings of said corporation were twelve per cent. on $250,000, to wit, the sum of $30,000." The letter relied on was sent to Van Cleve, who, as appears from the case of Van Cleve v. Radford et al., supra, had full knowledge of all the facts. Van Cleve had no talk with and made no representations to plaintiff concerning this letter, nor did any other person. The allegation of the declaration is that this representation was made directly by defendants to plaintiff. The statement of the letter is that "the Keeley Institute at Northville is now paying 12 per cent. net," etc. No statement in writing to a third person is referred to in the declaration, nor does the statement as made in the letter correspond with the allegation concerning it in the declaration. Collins v. Jackson, 54 Mich. 186, 19 N. W. 947; Hubbard

v. Long, 105 Mich. 442, 63 N. W. 644, and cases cited; Bilsborrow v. Warner, 117 Mich. 506, 76 N. W. 7.

The proofs of fraudulent representations do not support such allegations. The variance was fatal, and could not be cured by amendment. The court was in error in not directing a verdict for the defendants as requested.

The judgment of the circuit court is reversed and set aside, and, as the cause of action which plaintiff's proof tended to establish is barred by the statute of limitations, no new trial will be granted.

CARPENTER, J., concurred.

OSTRANDER, J. It was held in Van Cleve v. Radford, 149 Mich. 106, 112 N. W. 754, that none of the representations alleged to have been made to plaintiff were proved; which involved the finding, not that defendant Radford did not give to plaintiff a writ ten statement-an apparent representationthat the institution at Northville was paying 12 per cent. net on $250,000, but that this statement, requested by Van Cleve, and used by him to show to others, was not, to him, a representation of the fact stated. It does not follow that it was not a representation to the plaintiff in this case upon which he had the right to and did rely, to his injury. It is true the statement is addressed to Van Cleve, who was promoting the increase of capital and the removal of the institution to Ypsilanti. It is equally true that the jury might have found from the testimony that it was made for the purpose of having it shown to those whom Van Cleve should solicit to invest money in the venture and to induce such persons to invest. It was therefore a representation made to the plaintiff by defendant Radford. The declaration sets out the representation. If plaintiff relied upon it, if he parted with his money to the defendants, and if the representation was false, it is immaterial whether his money was placed with the money of others in effecting a transfer of an interest in the institution. Stock was to be, and was in fact, issued, and plaintiff was to have and he received his proper number of shares. I am of opinion that the case is not ruled by Van Cleve v. Radford. The fact that plaintiff was a member of the Ypsilanti syndicate is not decisive of his right to recover. I know of no rule of law which imputes to all of the members of a syndicate formed to purchase property the knowledge of each of the members. Van Cleve was an active promoter of the venture. He may have had knowledge of the business which the others did not possess. I do not understand that because a man induces me to invest money by untruthfully representing conditions, the fact that he also joins in the adventure makes him my agent and charges me with knowledge of a fraud in which he participates, or binds me by his knowledge that representations made to me

by others are untrue. Such a rule would relieve wrongdoers if one of their number, or if a confidant, acted with those defrauded. But I concur with Mr. Justice McALVAY in holding there was a fatal variance between the case set out in the declaration and the case proved. Counsel for appellee are clearly right when they say that all of the representations alleged need not be proved. I do not place my concurrence upon the ground that plaintiff did not prove that the false representation alleged was made and was relied upon, but upon the ground that what he and his associates were to receive for their money was not stock in the Northville concern, but stock in a concern to be removed to and to be operated in Ypsilanti. The action is case for damages for fraud. It is not claimed that plaintiff would have invested in the stock of the corporation except upon the consideration that it should carry on its business at Ypsilanti. I am not able to distinguish the case upon this point from Collins v. Jackson, 54 Mich. 186, 19 N. W. 947.

HOOKER and MOORE, JJ., concurred with OSTRANDER, J.

PETERS, Pros. Atty., v. EATON CIRCUIT JUDGE.

(Supreme Court of Michigan. July 1, 1908.) INTOXICATING LIQUORS-CRIMINAL PROSECU TIONS INFORMATION NEGATIVING DEFENSES LICENSE-NECESSITY-"RETAIL LIQUOR DEALER."

The statute provides that every person who sells intoxicating liquor in quantities of three gallons or less, or one dozen quart bottles or less, at one time, is deemed a retail liquor dealer. Comp. Laws 1897, § 5381, provides that the penal provisions of the act shall not apply to druggists, who sell liquor for medical, etc., purposes, and requires such persons to give a druggist's bond. Section 5386 requires retail liquor dealers, before commencing business, to give a bond in the form stated. An information charged accused with selling liquor on a certain date; he being then a person whose business consisted in part in the sale of drugs and medicine, and the liquors not being sold for medical, chemical, or scientific purposes, contrary to the statute, etc. Held, that accused could not be convicted of the offense of unlawfully selling as a retail liquor dealer; there being no averment that he had not given the retailer's bond prescribed by section 5386, and could not be convicted of making the sale as a druggist, there being no averment that he had given a druggist's bond as prescribed by section 5386, and hence, the information charged no offense under the law, and was properly quashed. [Ed. Note. For other definitions, see Words and Phrases, vol. 7, pp. 6194-6195.]

Grant, C. J., and Montgomery, Blair, and Moore, JJ., dissenting.

Mandamus by Elmer N. Peters, prosecuting attorney of Eaton county, against the Eaton circuit judge, to compel the vacation of an order quashing an information. Writ denied by a divided court.

Relator filed an information in the circuit court for the county of Eaton of which the