REPORT.

Lansing, Dec. 31, 1866.

To the Honorable, the Legislature of the State of Michigan: In compliance with the requirements of statute, I have the honor to submit my Annual Report, for the year A. D. 1866. At the last April term of the Supreme Court, I appeared and argued, on the part of the defendants in error, the case of Daniel G. Grimm, plaintiff in error, against the People, defendants

I was assisted on the argument by E. M. Crofoot, Esq., Prosecuting Attorney of the county of Oakland. In this case, an information was filed in the Circuit Court for the county named, charging Daniel G. Grimm, (the plaintiff in error,) John Clarke, Jack Brady, James Johnson and George McManus with the crime of burglary. Grimm elected to be, and was tried separately, the trial resulting in his conviction. On this trial, said John Clarke, not being on trial, was offered first as a witness, and next to make a statement for Grimm. Objection being made to such offers, at the time of making the same, Clarke, by the ruling of the Court, was not allowed to so testify, or make the proposed statement. Also the record showed, that the trial commenced on the 17th day of January last, and continued from day to day, and ended on the 20th day of the same month, Grimm being present, as shown by the record, on the first and last days of the trial, but the record failed to show

presence between those days, which failure was alleged as error, as were also the above mentioned rulings of the Court. There were no other questions in the case. The Supreme Court held, in substance, that said Clarke, being a co-defendant, though not on trial at the time, was not entitled to testify as a

witness, or make a statement for Grimm, the common law not being changed by the act of 1861, as to the incompetency of a co-defendant, in a criminal case, to be a witness in favor of one jointly charged with him, but only so as to allow the party on trial to make a "statement" in his own behalf; and that the record, showing that Grimm was present on the first day of the trial, an allegation of continuances indicates that it was with the incidents before described or mentioned in the record, of which the presence of the prisoner was one. Hence, the judgment of the Court below, was affirmed.

error.

At the same term of the Supreme Court, I also appeared and argued on the part of the People, the case of James B. Townsend, plaintiff in error, against the People, defendents in The material facts in this case, as disclosed by the record, are subtantially as follows: one Peter Bowen was indicted for perjury in the Circuit Court for the county of Ontonagon, at the June term thereof, 1864. Bowen being arraigned upon the indictment, pleaded thereto, not guilty, and the case was continued to the next September term of the Court, the accused duly entering into a recognizance, before the Court, for his appearance at the term last named. August 2d, 1864, Bowen entered into a second recognizance, before the Circuit Court Commissioner of said County, for the same purpose. The rec

ord showed no reason for the taking of the second recognizance. At the said September term of the Court, Bowen appeared for trial, when, on his motion, the case was continued to the next June term of the Court, no order being made for the renewal of the recognizance. On the day following this second continuance, Bowen was called in Court and defaulted on the second recognizance, and at the June term of the Court, 1865, judgment was rendered against him and his sureties, said Townsend being one of such sureties. In this case, the Supreme Court held, that the record, failing to show any cause for taking the second recognizance, the first remained in full force, and was not superseded by the latter; that the second recognizance was therefore void; that the Court having ordered the case contin

ued to the next term, without requiring the recognizance to be renewed, there could not afterwards be a default for failure to attend further at that term; and also that where a Circuit Court Commissioner acts upon cause, the facts constituting the foundation of such action, should appear in order to show that he had jurisdiction, in the absence of which showing, the taking of a recognizance is without authority and the instrument void; and, hence, the judgment below must be set aside.

The case of Benjamin T. Rogers, plaintiff in error, against the People, defendants in error, was, by me, duly submitted, on the part of the People, at the same term of the Supreme Court Rogers being one of the sureties of Bowen, referred to in the next preceding case, and judgment having been rendered against him, as well as against the said James B. Townsend, the questions in the case were the same, and a like judgment was rendered therein.

At the same term of the Supreme Court, I also appeared and argued, on the part of the people, the case of the people, defendants in error, against William Dean, plaintiff in error. This case was one of unusual interest and importance, and its argument, on both sides, was designed to be at least thorough. It appeared that said William Dean had been tried in the Circuit Court for the county of Wayne, upon an information charging him with the offense of illegal voting, at an election held in one of the townships of said county, on the sixth day of April, 1865. Testimony was introduced on the part of the people, tending to show that he possessed some negro or African blood-Dr. Zina Pitcher, a physician and surgeon, who had practiced as such for forty-three years, testifying that he was acquainted with the races of men, and had examined the accused, and giving it as his professional opinion, "that he should think the prisoner had one-sixteenth African blood in his veins." There was testimony of other witnesses, not experts, who testified on the part of the prosecution, to the same effect. There was testimony introduced on the part of the accused, tending to show that he. was a civilized male inhabitant of this State, of Indian descent,

and that there was no negro or African blood in his veins. That he was a native of the United States, and not a member of any Indian tribe, was not, on the trial, disputed. Upon such evidence, the Court below charged the jury that, although the said Dean might possess all the other qualifications of an elector, yet if they believed from said evidence, that he had a portion of negro or African blood equal to one-sixteenth, as testified to by Dr. Pitcher, he was not a white man and a legal elector, within the meaning of the State Constitution, and was not entitled to vote. And if he knowingly and willfully voted at said election, knowing that he was not a white man, he should be convicted. And the said Court further charged the jury, that if they believed, from the evidence, that said defendant possessed all the other qualifications of an elector, except being a white man, nevertheless if they believed from the evidence, that he was a person of Indian descent, possessing, however, a distinct and recognizable trace of negro or African blood, amounting to onesixteenth, as testified by Dr. Pitcher, he was not a white man, within the meaning of the Constitution, and was not entitled to vote as a person of "Indian descent," under the Constitution. To which charges, so made, counsel for the said Dean, on his behalf, duly excepted. Under this charge and the evidence, said Dean, by the jury, was found guilty. No question was raised, in this case, on the argument before the Supreme Court, except as to the correctness of the foregoing charge, touching the meaning of Sec. 1, Art. VII, of the Constitution of this State, so far as it is applicable to the great question in this case. In disposing of it, the Court held, by a majority decision, that all persons in whom white blood so far predominates that they have less than one-fourth of African blood, are white within the meaning of that clause of the Constitution of Michigan which limits the elective franchise to "white male citizens," and no other persons of African descent can be so regarded. The Chief Justice, differing from the above mentioned majority decision, was of the opinion that a preponderance of white blood was sufficient to bring one within the meaning of said words

"white male citizen," their object in the Constitution being only to disfranchise males who have half, or more, of negro or African blood in their veins. The judgment below was, therefore, reversed.

In my Annual Report for 1865, on pages 10 and 11, mention is made of the case of Thomas Ryan, complainant, against George W. Brown, Wall W. Williams and Ezra T. Williams, defendants, then and now pending in the Circuit Court for the county of Chippewa, in Chancery, and to which I respectfully invite your attention. In the month of May last, I went to Saut Ste. Marie the county seat of Chippewa county, for the purpose of attending to taking the testimony in this case, on the part of the defendants, and preparing it for a final hearing, before the court, at its last August term. This being done, the case was, at the term last named, by stipulation, duly submitted to the court, upon briefs. Owing to its importance, the volume of testimony, the grave questions of law and of fact involved, and the convenience of the defeated party, whether complainant or defendants, should such party desire to take an appeal, the case will probably not be decided till an early day after the upper lake and river navigation shall have opened next year.

On pages 6 and 7, of my Annual Report for last year, mention is made of the case of Sarah J. Cashman, complainant, against Edward J. Underwood, administrator of the estate of John Cashman, deceased, defendant, then and still pending in the Circuit Court for the county of Calhoun, in Chancery, and to which mention your attention is respectfully asked. At an early day in this year, this case was turned over to the Prosecuting Attorney of said county, not only because the statute (compiled laws, Sec. 393,) is, that "the prosecuting attorneys shall, in their respective counties, appear for the State or county, and prosecute or defend in all courts of the county, all prosecutions, suits, applications and motions, whether civil or criminal, in which the State or county may be a party or interested," the Attorney General only being thus obligated (compiled laws. Sec. 180,) "when requested by the Governor, or either branch