Supreme Court of Michigan.

WILLIAM WEAVER v. THE PEOPLE.

A judge has power to suspend sentence, where the circumstances, in his opinion, render the offence trifling and the law has imposed no minimum punishment

for it.

In general, where a sentence has been omitted by the judge who tried the case, another judge may impose the proper sentence at a subsequent time.

But where sentence has been suspended by a judge under circumstances that indicate his opinion that no punishment should be inflicted, as, e. g., where he has discharged the prisoner on his own recognisance in a nominal amount, a subsequent sentence by a different judge is erroneous and will be reversed.

ERROR to Van Buren Circuit.

Weaver, on the 8th day of July 1874, pleaded guilty to a charge of malicious injury to a dwelling. The case was pending in the Circuit Court for the county of Van Buren, and the plea was put in before Hon. J. W. STONE, Circuit Judge. On the same day Judge STONE suspended sentence until the first day of the next term, which was the first Monday of October 1874, the respondent being allowed to give his own recognisance to appear at that day, in the sum of one hundred dollars. The sentence was not further suspended, nor the recognisance forfeited, and the defendant was not called up for sentence at the return term, but continued at liberty. On the 25th day of October 1875, Judge TENNANT, a judge of another circuit sitting temporarily, sentenced Weaver to two years and six months imprisonment in the state prison. On this error is brought.

W. Scott Beebe, for plaintiff in error.

Andrew J. Smith, Attorney-General, for the People.

The opinion of the court was delivered by

CAMPBELL, J.-It is not necessary in this case to discuss the power of a different judge to give sentence where it has been omitted, and where it does not appear that such omission was designed to interfere with punishment. There has been some

dispute as to the best course to pursue under such circumstances. Lord HALE, not considering the abstract question, said it was not his custom to give such sentences in cases of felony. But generally the question seems to become important in view of some action or expression of the trial judge indicating his sentiments.

It is said with much force that inasmuch as there can be no sentence without the joint belief of the jury in the prisoner's guilt, and of the judge in the deserts of the offender, where he has any discretion to exercise, the views of the judge are to be respected.

In the present case there was no fixed penalty. It might be imprisonment in the state prison, or it might be a short imprisonment in the county jail, or a fine not exceeding five hundred dollars, but with no minimum amount required to be imposed. In other words, it was recognised by the legislature that such offences might be of trifling enormity, and not worthy of serious notice.

Sentences may be suspended for various purposes. It may be for the purpose of allowing steps to be taken for a new trial or other relief, or it may be with a view of letting the offender go without punishment. The release of a defendant on his own recognisance and without sureties, in a merely nominal amount, signifies usually the latter purpose. It at least is a plain assertion of the judge that he did not regard the offence as one that should receive a serious punishment. The failure to take steps during the October Term of 1874, was a practical abandonment of the prosecution, and corroborates the opinion that such must have been understood as the object of the suspension, and as the record stands it is fairly to be inferred it was intentional. To sentence a prisoner to the penitentiary under such circumstances, and when the trial judge has distinctly said he ought not to be so sentenced, is not supplying his omissions, but is overruling his decision. This we think is not admissible, and the sentence was unauthorized, and the judgment must be reversed, and the prisoner discharged.

Court of Appeals of New York.

WILLIAM LEETCH, RESPONDENT, v. ATLANTIC MUTUAL INSURANCE CO., APPELLANT.

In all contracts of marine insurance there are certain implied conditions which are of the same force as if written in the policy, and are distinguishable from mere representations.

Among these conditions, in case of an insurance on cargo, is that it shall be stowed in a safe and proper manner and in the usual and customary place for the carriage of goods of the kind insured. Any breach of this condition by which the risk is varied and the perils increased avoids the policy.

The testimony of experts and particularly of underwriters is always admissible upon the question of the materiality of circumstances affecting the risk.

Gold being stowed in the rear of the vessel under the cargo, and the testimony being clear that that was not the customary place and was a place of greater hazard than the cabin, where coin is usually stowed, the judge should have directed the jury, as a matter of law, that that was a material variation of the risk.

THIS was an action on a policy of marine insurance. The material facts were that gold was shipped at Laguna, consigned to New York, and was, at the time of lading, placed in the rear of the vessel, outside the cabin and under the ballast. At Minatitlan a cargo of mahogany was taken on board and filled the hold, thereby rendering the gold inaccessible. The vessel met with disaster and was abandoned at sea. The gold could not be reached and was not saved. Subsequently the vessel was found and towed into port, but on unloading no gold was found.

Samuel Hand and Wm. G. Choate, for appellant.

W. J. A. Fuller and E. L. Fancher, for respondent.

The opinion of the court was delivered by

ALLEN, J.-The question of most prominence, as it is the most important in this case, is as to the validity of the policy upon the gold, and the rulings of the learned judge at the trial in respect to it. There is no conflict of evidence or substantial dispute as to the facts upon which its validity is challenged by the defendant. The claim is that the specie was not stowed on board the vessel in the usual and customary place for the carriage of freight of that description, but that it was placed in an unusual part of the vessel, by which the peril was greatly increased and the risk essentially varied from that assumed by the underwriter. The evidence of the shipmasters, given upon the trial, was uniform, that the usual place for the carriage of coin or specie of any kind was either in some proper place in the cabin or in that part of the run of the vessel immediately under the cabin, and accessible from it by an opening in the floor with a trap properly fitted, so that it might be at all times under the immediate watch and care of the captain, and only accessible from the cabin. The masters of vessels, who were examined as witnesses upon this subject, had been engaged in trade to Mexican and South American ports, as well as to other ports and places, and all agreed that the usual and proper place for the safe-keeping of coin, carried as freight, was either in or

under the cabin, as stated. It was proved by one or more of the witnesses, and not disputed, that the only exception to this usage was when specie was taken out of the country clandestinely, in violation of the revenue laws, and to evade the payment of export duties, when it was sometimes concealed among the cargo or in other parts of the vessel, but never under the cargo. In such case, as soon as the vessel was at sea and the pilot had left the ship, the coin was invariably taken from its temporary place of concealment and deposited in the usual place. The same witnesses, and the only witnesses upon the subject who were experienced as navigators and masters of vessels, agreed that a deposit of coin under the ballast or under the cargo was unusual and increased the hazards and risk of loss to which it was exposed. In case of disaster, it was less accessible and could not be saved in whole or in part, as it might under ordinary circumstances and as usually stowed. This fact is so palpable, upon a mere statement of the different modes and places of stowage, that it needed not to be proved by experts. It was not denied that while under the freight, especially such as that laden on board the vessel in this instance, it was safer from barratry or theft than when stowed in the usual place; but even in such case, the risk of theft was greater when the vessel was unladen, and during that process, from its liability to be taken by stevedores and others who would have access to it. The claim of the plaintiff is that the gold was lost, not from the perils said to be diminished by the stowage resorted to, but by that which was confessedly increased. The gold, in the present instance, was suffered to remain under the ballast from the time it was placed there at Laguna, until the vessel sailed, and during the voyage from that port to Minatitlan, and until the cargo of mahogany was laden on board at the latter port. During all that time it is selfevident that it was exposed to equal if not greater peril from barratry and theft than if stowed in the usual place. There is no evidence, except that of the plaintiff, that the gold was seen on board the vessel after it was first laden at Laguna. Whether there was any necessity for the stowage of the gold in the hold of the vessel, outside of the cabin, while the vessel remained upon the coast and at the ports of Laguna and Minatitlan, which would justify a deviation from the usual course of lading, and of which the underwriters might be presumed or were bound to have known, and thereby to have assumed the varied risk, cannot be determined.

upon the present record. These questions were not tried or decided by the trial court. The facts proved by these witnesses, and which are not controverted by any witness upon the trial, clearly and conclusively establish that the actual risk upon the gold was not the same as it would have been if stowed in the usual place, and that the risk of loss in case of disaster at sea, the peril by which it is claimed the gold was lost, was increased.

In addition to this evidence, several underwriters were called as experts, and they were unanimous in the opinion that the carriage of specie under the ballast and cargo did increase the risk, and that the fact that it was so carried was material to be known by an underwriter, and would affect his judgment as to accepting the risk; and, if accepted, the rate of premium. But a single underwriter was called by the plaintiff, and his evidence did not detract from the force of or conflict with that given in behalf of the defendant. He testified that a stowage under the cargo would (in his own language) "of course," in some respects, increase the risk so far as the perils of the sea were concerned, and only diminish it as against barratry or theft on the part of the mariners. He also stated that when so stowed the risk would be different in character and different in kind from what it would be if the gold were stowed in the cabin or in the run immediately under the cabin.

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The plaintiff, himself a witness upon the trial, stated that he had frequently shipped specie and carried it under the cargo and the timbers, in oat sacks, in the cook's coppers, and almost everywhere in the vessel where he deemed it most prudent, but he did not state under what circumstances he had so carried it, or that it was usual so to do, or that when so carried it was insured. Under objection that he had not shown himself competent to testify as an expert, he was permitted to testify that in his opinion the risk would not any greater for the safety of the specie whether stowed under the cargo or in any other place on the vessel, and that it would be safer under the cargo against barratry and theft. His testimony was not in conflict with, but rather in corroboration of, the testimony of the other witnesses, except in the statement that the gold was equally safe in any part of the vessel. It is well settled that the testimony of experts, and especially of underwriters, as such, is admissible upon the question of materiality of circumstances affecting the risk: McLanahan v. The Universal Ins. Co., 1 Peters