THE PEOPLE . FOURTH WARD, CITY OF DETROIT.

out, although there might have been irregularity in its settlement, as the party would be remediless without his own fault. In this case there has been entire good faith, and I think the case ought not to be dismissed.

COOLEY CH. J. and GRAVES J. concurred.

CHRISTIANCY J. thought the party could not be relieved against his stipulation, although there was no want of good faith, as he was bound by his agreement.

The People ex rel O. S. Wood v. Board of Registration of Fourth Ward, City of Detroit.

Board of Registration, power of.

Where a person appears before the Ward Board of Registration and claims to be registered, the Board are bound to examine him under oath and hear testimony offered by him. They have no right to pass upon the question of his legal right by mere personal inspection.

Board of Registration: Mandamus: Issue. In an application for a mandamus to compel the Board to meet for the purpose of acting on the case of the relator, it was held that no issue for trial could be ordered, as the duty to meet and consider the testimony was an imperative one.

It is the duty of the Ward Board on such a case to pass upon the question one way or the other. They have no right to reserve questions for the consideration of the City Board of Review.

Heard and decided October 23d.

Mandamus to the Board of Registration of the Fourth Ward of the City of Detroit.

This was a petition for a mandamus to compel the respondents to meet as a Board of Registration and examine relator under oath, as required by the Registry Act, to hear any testimony that relator might offer as to his right to registration as an elector of said ward, and to register him, if, upon such examination, he was found qualified and entitled to registration.

The petition set forth that relator applied to respondents while sitting as a Board of Registration, and offered

THE PEOPLE. FOURTH WARD, CITY OF DETROIT.

his own oath and other testimony to show that he had less than one fourth negro blood in his veins; that his father was a half breed Indian and his mother a mulatto; but that respondents refused to examine the relator, or to receive his testimony, but declined simply upon a personal inspection to register him: holding that he had more than one fourth negro blood, and was not a white man within the meaning of the constitutional provision relative to electors. The answer of respondents admitted the allegations of the petition, and claimed the right to reject applicants for registration, whenever, upon personal inspection, it appeared to the board that they were not entitled to such registration.

The board, however, made a memorandum of the application, and agreed to submit it to the General Board of Registration for the city, which was to meet at the City Hall the Saturday before the next election.

The motion being called up,

Otto Kirchner, for respondents, asked that an issue be formed and sent down to be tried by a jury.

Henry M. Cheever, for relator objected, and urged that as the petition was not for a writ of mandamus to compel the registration of the relator, but that the respondents meet and receive testimony and examine relator under oath as to his right to registration, no issue could be formedthe statute being imperative upon respondents to perform their duty, whatever might be their determination as to the relator's right to registration after hearing the testimony.

The Court held that the board was bound to examine the relator under oath, and to hear any testimony offered by him relative to his right to be registered as a regal elector, and it was also their duty to draw a fair and reasonable conclusion from the evidence as to relator's right to registration. That they had no right to pass upon the question of relator's right to registration by a personal inspection merely.

The Court also held that no issue could be formed for trial, as the petition was for a writ of mandamus to compel the respondents to meet as a Board of Registration, and perform a duty which was imperative by the statute, i. e. to receive the evidence, and not to register the relator, which was a duty devolving upon them only in the event of his being shown entitled thereto under the evidence.

It was the duty of the members of the Ward Board to make an absolute decision one way or the other. They had no right to reserve the question for the consideration of the City Board. That Board has no power to act except in cases coming within the special provisions of the charter. It acts merely as a Board of Review in specified cases, and can not entertain cases cognizable in the first place by the Ward Board. City Charter, p. 290, § 500..

Mandamus ordered.

William Brown v. The People.

Felonious Homicide:

Evidence of surrounding circumstances. Where a person is accused of a felonious homicide, it is both the right and the duty of the prosecution to give evidence of all the circumstances surrounding the discovery of the body of deceased which have any bearing upon the manner of the death, and any tendency to show whether it was natural, accidental, or felonious.

Such evidence is a necessary preliminary to any which shall be offered to connect any particular person with the homicide.

Witness:

Corroborative testimony: Hearsay. Where a witness had testified as to a certain fact existing on a certain day, another witness, for the purpose of fixing the date, was permitted to testify that he had been told by said witness of facts corroborating the statement: Held, that this evidence was inadmissiThough offered for the purpose of fixing a date, its sole effect was to strengthen the statement of a witness in court by proving that he had made the same statement out of court; it was therefore objectionable, for all the reasons which exclude hearsay evidence generally.

ble.

Alibi: Evidence: Rebutting testimony: Order of testimony. The defendant gave evidence tending to show an alibi. To meet this the prosecution gave evidence tending to contradict it. To rebut this the defendant offered to prove that the witnesses for the prosecution were mistaken as to the time when an occurrence sworn to by them, and supposed to be inconsistent with the alibi, took place. This evidence was rejected by the court on the ground that the defendant should have given it as a part of his evidence in chief to establish the alibi.

Held, That the court erred in this ruling. This latter evidence formed no part of the alibi, and did not become material or relevant until after the prose cution had put in their evidence to contradict it. It then became the legal right of the defendant to rebut.

A defendant has always a right to suppose that evidence will be offered and received in its logical order, and he is not bound to meet it before it becomes relevant to the case.

It is not a matter of discretion with a court to reject evidence because it was not offered before the proper time for its admission.

Error to Ionia Circuit.

Heard October 22d. Decided October 23d.

The plaintiff in error was convicted of the murder of one John Morse.

Several exceptions were taken to the rulings of the court, respecting the admission of certain evidence, all of which are stated in the opinion.

S. B. Soule, and T. Romeyn, for plaintiff in error.

1. It is error to admit immaterial evidence before a jury, and without regard to whether they are instructed afterwards to disregard it or not.-13 Johns. 350; 15 Id. 240; 2 Cow. 436; 19 Wend. 232; 9 Barb. 618; 10 B. Mon. 16; 35 Miss. 165; 2 Texas, 257; 10 B. Mon. 316; 21 Pick. 142; 22 Id. 427, 457, 397; 33 N. H. 171; 38 Id. 318; 2 Fost. 457; 2 Aik. 276; 3 Smeed, 86; 1 Munf. 288; 32 N. Y. 141, 509; 19 Id. 299; 31 Ala. 53; 33 Miss. 118.

2. It is the duty of the court to see to it that no mischief is done by the admission of incompetent evidence, and that the illegal evidence be wholly withdrawn, and withdrawn for every purpose.· 5 S. & R. 352; 1 Penn. 389; 31 Id. 196; 8 W. & S. 391; 24 Pick. 12; 9 Gray 408; 14 Mich. 260.

In criminal causes the defendant in such causes can not by silence waive any of his rights.-18 N. Y. 128; 16 Mich. 351.

3. Evidence was introduced to sustain a witness previously sworn, by showing that he had stated the substance of his testimony to other persons.

BROWN v. THE PEOPLE.

This was not competent evidence; it was hearsay, and is not within any of the exceptions to that kind of testimony. 1 Greenlf. Ev. §§ 98, 99; 7 Cranch, 290, 295; 1 Wheat. 6, 8; 3 T. R. 707.

4. The defendant sought to sustain his alibi by offering proof in reply to the rebutting evidence of the People. The court rejected it. This was error. -5 Allen (Mass.) 314; 32 Vt. (3 Shaw) 591; 28 Ga. 237; 8 Humph. 663.

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G. V. N. Lothron, and A. B. Morse, for defendants in error.

1. The first error alleged was the proof admitted as to a peculiar smell observed at the stable at the time of the discovery of the body. There was evidence tending to show that the odor was that of chloroform.

This evidence was proper.

All the surrounding circumstances noticed at the time of the discovery of the body were proper evidence. Indeed, it would be censurable to withhold any one of any peculiarity. These circumstances furnish the foundation on which all subsequent investigation must proceed. Whether any given circumstance shall finally bear one way or the other, is of no consequence.

2. It is competent to sustain a witness by showing that he had stated to other parties at a given time the same thing sworn to by him. The question is not as to the truth of what was stated, but only the fact of its having been said, and when said.-1 Dutch. 566; 1 Greenlf. Ev. S$ 109, 123; 34 Vt. 604.

3. It is well settled that a party entering on a matter should offer all his evidence relating to it. He can not rest, and, after the other side have replied, then resume and give further proof.-1 Greenlf. Ev. § 74; 2 Stark. 31; 11 Pick. 125.

4. A new trial will not be granted because of evidence with reference to a future state of the case. And if evidence is admitted which can only become competent by the