Counsel was here interrupted with an exception. The reference to Judge Mills should not have been made, but the circuit judge, very properly, in charging the jury, said:

"The testimony of Judge Mills was excluded by the court. Counsel for the people have no right to suggest to you what Mills would have sworn to had he been placed upon the stand. I do not remember, gentlemen, that there has been any suggestion made as to what Judge Mills would have sworn to if placed upon the stand, but I give you this instruction out of abundance of caution. If any such suggestion was made, you should disregard it altogether. Judge Mills was not placed upon the stand. You are to decide this case according to the testimony which has been given, and nothing else."

It is impossible to conceive that, after this very clear instruction, the jury could have been prejudiced by the remarks of counsel. As a matter of fact, the record does not show that he did state any fact that he could have proven by Judge Mills, or what the testimony of Judge Mills would have been if he could have been called. This was emphasized by the charge of the court, and it would be a reflection upon the intelligence of the jury to assume that after this very clear instruction they could have been influenced by this mistake of counsel in any way whatever.

Complaint is made of the instruction of the court to the effect that in passing upon the testimony of the witnesses for the respondent the jury had the right to take into consideration any interest which such witnesses might feel in the result of the suit, growing out of their relationship with respondent or otherwise, and give to the testimony of such witness or witnesses such weight as it was deemed entitled to under all the circumstances proved on the trial, and that in considering the testimony given by the respondent in his own behalf they might consider whether or not such testimony was affected in any manner by his interest in the

result of the prosecution. We do not understand that counsel contend that these instructions were not proper enough in themselves, but it is said:

"A general charge that the jury should consider the interests of all witnesses would not have been objectionable; but when nothing is said about the people's witnesses, and attention is specially directed to respondent and his witnesses, and the jury is told that their interest is an important consideration, we submit that the rights of the accused are not properly protected."

But upon turning to the record we find that the respondent's counsel asked and the court gave numerous instructions relating to the question of the weight to be attached to the testimony of various witnesses for the prosecution. Respondent's thirtieth request, as follows, was given by the court:

"In considering the question of identification, you may consider the fact that the witness Wagner swore to a complaint for the arrest of the respondent before he had seen him, and also that upon his visit to Detroit the respondent was brought into his presence alone, in such a manner that there could be no doubt as to the person charged with the crime."

And again:

"If the jury believe from the evidence that the witness Hammond did in fact indorse the draft in controversy in this case, you may consider this fact as bearing upon the likelihood of his identifying an innocent party instead of the guilty party."

And again:

"If you find that the witness Britt conspired to put up false testimony in this case, this would be a crime under the laws of the State. You may consider any temptations which are apparent from his testimony and the motives by which he is actuated."

And again:

"If you believe that the witness Britt willfully falsified

in any single particular, you are at liberty to diregard his testimony altogether.

And finally, on his own motion, the court charged the jury as follows:

"You are the sole and exclusive judges of the credibility of each and every witness who has testified in this case. As to some of the witnesses, you have been told that you should receive their testimony with great caution. As to others, you have been instructed that you may consider any interest which they may have in the result of this case, and these instructions you should heed. But it is equally true that you are to give to the testimony of each and every witness who has been sworn upon this trial just so much or so little credit as you find it is entitled to. You are the sole judges of the credibility of the witnesses, as well as of the weight of the evidence in the

case."

It is apparent that the circuit judge fairly presented the question of the credibility of the witnesses to the jury, and that he gave all proper requests of respondent's counsel, and the jury could not have failed to understand that the question of the credibility of the witnesses was solely for them. The charge of the court, as a whole, was fair, and covered all the questions presented by the record.

The respondent had a fair trial. We think his rights were fully protected, and that the judgment should be affirmed.

MCGRATH, C. J., LONG and HOOKER, JJ., concurred. GRANT, J., did not sit..

THE PEOPLE V. JAMES GAULT.

Intoxicating liquors-Information-Non-payment of tax-Former conviction- Bar.

1. In a prosecution for engaging in the sale of intoxicating liquors without having paid the required tax, the respondent is sufficiently shown not to come within the provision which excepts from the penal provisions of the statute druggists "who sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with law," by an averment in the information that he is not a druggist who sells liquors for any of said purposes, naming them, but omitting the italicized words.

2. Under 3 How. Stat. § 2283c7, which requires the payment, by any person engaged in or intending to engage in the sale of intoxicating liquors as a beverage, of the statutory tax on or before May 1 in each year in advance, and 3 How. Stat. § 2283d, which provides for the punishment of any person who shall engage or be engaged in such sales without having paid said tax, the fact that a person may have been engaged in making such sales during the year preceding May 1 will not render lawful sales made by him on May 1 without having paid the tax for the ensuing year.

8. A conviction for having been engaged in the sale of intoxicating liquors on June 30 without having paid the required tax is not a bar to a prosecution for having been engaged in such sales on the 1st day of May of the same year without such payment being made, the proofs in support of the several charges being confined to June 30 and May 1, respectively.

Exceptions before judgment from Montcalm. (Davis, J.) Argued March 1, 1895. Decided April 2, 1895.

Respondent was convicted of unlawfully engaging in the liquor business. Conviction affirmed, and court advised to proceed to judgment. The facts are stated in the opinion.

Ellsworth & Rarden, for respondent.

104 575

107 440

Fred A. Maynard, Attorney General, and Bert Hayes, Prosecuting Attorney, for the people.

MONTGOMERY, J. The respondent is charged with having, on the 1st day of May, 1893, been engaged in the business of selling and offering for sale malt, brewed, and fermented liquors, without having paid the annual tax required by law, and without having the receipt and notice. for said tax posted up. The information alleges that

"Said James Gault, not being then and there a druggist who sells or then sold liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, was then and there engaged," etc.

The statute exempts from the penal provisions of the act druggists who sell liquors for chemical, scientific, medicinal, mechanical, or sacramental purposes only, and in strict compliance with law; and it is urged that the present information is insufficient for the reason that the words "in strict compliance with law" are omitted.' It would seem plain enough that, if respondent was not a druggist who sold liquors for the purposes named at all, it cannot be said that he was one who sold them for the purposes named in strict compliance with law. The question is ruled by Luton v. Circuit Judge, 69 Mich. 610; People v. Scott, 90 Id. 376; and People v. Aldrich, 104 Id. 455.

It is next urged that the respondent could not be convicted of the offense charged for prosecuting his business on the first day of May, the record showing that he had been engaged in the business the previous year, as section 8 of the act (section 2283d1, 3 How. Stat.) provides that

"Every person engaged in the sale of any spirituous, malt, brewed, fermented, or vinous liquors, except drug

'Counsel cited People v. Haas, 79 Mich. 456; People v. Decarie, 80 Id. 578.