mortgage was transferred to defendants Aaren J. Rayner, Augusta Rayner, and Iva E. Bond, in whose names the record title now stands.

[Ed. Note. For other cases, see Taxation, Cent. Dig. § 1594.]

Appeal from Circuit Court, Gratiot County, in Chancery; Kelly S. Searl, Judge.

Suit by George McVicker and another against Frank G. Kneeland and others. From a decree for plaintiffs, defendants appeal.

Affirmed.

Argued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, BROOKE, and FELLOWS, JJ.

Chas. H. Chase, of Lansing (Edwin H. Lyon, of St. Johns, of counsel), for appellants. O. G. Tuttle, of Ithaca, for appellees. Chas. W. Giddings, of St. Louis, for Helen L.

Kneeland.

MOORE, J. The bill of complaint in this case was filed in March, 1914, for the purpose of removing a cloud upon title to a piece of real estate. From a decree in, favor of the complainants the case is brought here by appeal.

It is averred in the bill of complaint that the complainants are the owners in fee and in possession of certain lands, to which they acquired title on the 12th day of May, 1914, by warranty deed from Frederick W. Hooper and his wife; that Frederick W. Hooper purchased said land on the 2d day of August, 1893, from Bert Woodward and wife, who were the owners of valid tax titles against them for the years 1888 and 1889 and who conveyed them to Mr. Hooper by warranty deed, and said Hooper took immediate possession of the land, and remained in the open, continuous, exclusive, hostile, uninterrupted, and adverse possession of the same for more than 20 years; that the land was assessed to Mr. Hooper each year from 1893 to 1914, both inclusive, and he paid all taxes assessed against them amounting to $587.58, exclusive of interest thereon.

Defendants claim liens for taxes assessed against said land, based on mesne conveyances from the purchaser of tax titles of said land for the years 1865 to 1886, inclusive, except for the year 1875.

On the 24th day of February, 1887, Nelson B. Jones and James B. Porter, claiming to have an interest in said land by reason of the said tax sales, made a mortgage covering said land and other lands, to one Aaron J. Rayner, guardian, and by assignment the

Defendants filed an answer in which it is said, among other things:

claim is one which they would not be able to enforce by any suit for possession, they aver that it is one which is a lien and a cloud on the title of said lands which they have a right to ants or their successors in possession do equity retain in statu quo until such time as complainby paying the lawful tax liens held by these dethese defendants further aver that any decree fendants with the lawful interest thereon. And made by this court to quiet title and remove clouds should be made on the express condition that said complainants do equity by paying said tax liens with the said interest thereon."

"And while these defendants admit that their

The trial judge said upon the hearing: "The only question in this case is whether to insist that complainant may not have a decree the holder of an outlawed tax title has the right quieting his title without payment of the tax."

The contention of appellant is stated by counsel as follows: We quote from the brief: "And upon the trial of said case said defendants admitted that they were not contending that they had such title that they could come into court by suit in ejectment and acquire title, or that they could disturb possession of complainants come into court and ask for a decree plainants, but merely asserted that when comquieting title, they ought to pay the taxes and accrued interest thereon, or, in other words, 'if they have the title cleared up, they must do equity."

A great many authorities are cited, but we do not think they support the contention of counsel.

When Mr. Woodward acquired his tax deeds from the auditor general for the taxes of 1888 and 1889, and he and his grantees have been in possession and exercised acts of ownership over the premises for the time shown by this record, the mortgage and tax deeds of prior date were cut off. See section 11965, Howell's C. L. (2d Ed.) and the many footnotes; Cleland v. Casgrain, 92 Mich. 139, 52 N. W. 460; Schneider v. City of Detroit, 135 Mich. 570, 98 N. W. 258; Pence v. Miller, 140 Mich. 205, 103 N. W. 582; Flint Land Co. v. Fochtman, 140 Mich. 341, 103 N. W. 813; Carmell v. Parr, 161 Mich. 429, 126 N. W. 835. See, also, section 1842, Howell's C. L. (2d Ed.), and section 14119, Howell's C. L. (2d Ed.).

The decree of the court below is affirmed, with costs to the complainants.

PEOPLE V. WINNEY. (No. 162.) (Supreme Court of Michigan. May 31, 1917.) 1. CRIMINAL LAW SIBILITY-REMOTENESS.

Where witnesses testified to the existence of tracks in the blood on the floor of the room where the homicide occurred within two or three days after the body was discovered, and while the condition of the premises remained substantially the same as when the body was found, it was not error to refuse to strike out the testimony of another witness as to the existence of such tracks when he examined the premises nearly two months later; the weight of the evidence being for the jury.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 848.]

2. CRIMINAL LAW 404(4)-EVIDENCE-DE

MONSTRATIVE EVIDENCE.

A piece of paper with blood stains thereon, found on the floor of the room where the homicide occurred a few days after the body was discovered, was properly received; the weight of the evidence being for the jury.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 873, 891, 893, 1457.] 3. CRIMINAL LAW 783(1)-TRIAL-INSTRUC

TIONS.

Assignments of error based on part of the charge relating to the use that could be made of the evidence of a burglary by defendant, and the possession of revolvers stolen by him at the time, and the finding of a revolver in the jail after defendant's arrest, and his testimony in that connection, held without merit, as the evidence bore upon the question whether or not the defendant had possession of the means to commit the crime of murder.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1872-1874, 1876.] 4. WITNESSES

349-CROSS-EXAMINATION

DISCRETION of Court.

On cross-examination, the court must be allowed considerable discretion in permitting questions eliciting information as to the past life and conduct of a witness.

[Ed. Note. For other cases, see Witnesses, Cent. Dig. §§ 1135-1139.]

Portions of the charge relating to the duty of the jury in connection with a view of the premises where the homicide was committed, when taken in connection with the whole charge and with a conversation between court and counsel, held not erroneous, although some isolated expressions were not correct.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1990, 1994, 3158.]

7. HOMICIDE 260-TRIAL-VIEW OF PREMISES-PURPOSE-DISCRETION OF COURT. The matter of the view of the premises where the alleged crime was committed is discretionary with the court, and its purpose is to enable the jurors to comprehend more clearly by the aid of visible objects the evidence already received, so that it would not be improper to permit a witness to testify as to the location of

ISES.

Where a jury had been allowed to visit the premises where the homicide occurred, they had the right to consider all that they saw in the room, having reference to tracks, imprints, or marks testified to and mentioned by the witnesses in a general way.

[Ed. Note. For other cases, see Homicide, Cent. Dig. § 555.]

9. CRIMINAL LAW 864-TRIAL-CONDUCT OF JURY.

Questions asked by a juror as to whether the jury could use evidence they saw at the scene of the murder in their deliberation or anything that had not been sworn to, or that supposing another track had been discovered that had not been sworn to in the evidence that would correspond with the track which had been sworn to, did not indicate that the jury were considering, or contemplated considering, new evidence, or anything that had not already been testified to. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2068.]

Error from Circuit Court, Jackson County; James A. Parkinson, Judge.

Harold L. Winney was convicted of murder in the first degree, and he brings error. Affirmed.

Argued before KUHN, C. J., and STONE, OSTRANDER, BIRD, MOORE, STEERE, and BROOKE, JJ.

John F. Henigan, of Jackson, for appellant. Nathan E. Bailey, Pros. Atty., of Jackson, for the People.

STONE, J. The defendant was charged with the murder of Caroline Sryrock, a woman upwards of 70 years of age, in her house in the township of Spring Arbor, Jackson county, on the 26th day of February, 1914, by shooting with a 32-caliber revolver. It was not disputed that Mrs. Sryrock was murdered and under circumstances that made the crime murder of the first degree, but defendant denied all connection with the murder. Mrs. Sryrock lived alone in her home and was last seen alive on Thursday, February 26, 1914, between 5 and 6 o'clock p. m. It was claimed on behalf of the people that defendant did the act with a revolver with which he had previously supplied himself for that purpose. As tending to show that defendant had the means of doing this act, evidence was received tending to show that he committed a burglary in the hardware store of Finch, Rowley & Bower at the city of Jackson on the night before the murder; and it appeared by defendant's testimony, on his direct examination, that on the night before the murder was committed he burglarized said hardware store in the city of Jackson and there obtained two revolvers of 32-caliber and a rifle, and some ammunition, and the guns were produced at the trial, and defendant testified: "I should say the guns

here as exhibits are the same ones I stole." It was claimed upon the trial that defendant, and probably some one co-operating with him, took possession of a horse and cutter standing on the street in the city of Jackson on the evening of Thursday, February 26, 1914, and made use of this horse and cutter as a means of transporting himself to the home of Mrs. Sryrock, in the township of Spring Arbor, about 10 miles from the city of Jackson, early in the evening of that date, and then and there with the use of one of said revolvers shot her to death. Defendant at the time was stopping temporarily at a hotel in the city of Jackson. He was acquainted with Mrs. Sryrock, having recently lived with his grandmother, who resided a short distance from Mrs. Sryrock's home. He testified, on his direct examination, that 6 weeks or 2 months before his arrest he had been at Mrs. Sryrock's home and there stole $10 from her, and it was the claim of the people on the trial that the motive which inspired this murder was that of obtaining money. The evidence produced by the people was largely circumstantial, together with certain claimed admissions and statements in the nature of confessions made by the de

fendant. The defense was an alibi and a complete denial by the defendant that he committed the crime. The defendant was convicted of murder of the first degree, and was sentenced for life, and is now undergoing such sentence in the state prison at Jackson. The case has been brought here by the defendant upon writ of error, and, while there are many assignments of error, we shall consider only those which are argued in defendant's brief; the case having been submitted to this court upon briefs.

It ought to be here stated that the homicide was not discovered until the evening of the 27th day of February, 1914. The house was then visited by Dr. Marks, coroner of the county, and a deputy sheriff. Dr. Marks was unable to state how long Mrs. Sryrock had been dead, but he testified that she had received numerous gunshot wounds in the head, any one of which, in his opinion, was sufficient to have caused instant death. He testified that the body was cold, that rigor mortis had either set in and passed away, or else it had not set in; that it was impossible for him to say which; that rigor mortis may last from 10 or 12 hours to 24 hours. She was found in the kitchen where she had lived, and there was a little fire remaining in the coal stove which was used for heating the room.

The defendant was arrested on the afternoon of Saturday, February 28th, being the last day of February that year. He is a young man who for a number of years had been totally deaf, and had a crippled or short leg, and wore what is termed a stirrup, the bottom of which was of iron, to overcome the shortness of that leg.

The first assignment of error is to the effect that the court erred in refusing to grant a motion of defendant's counsel to have stricken from the record the testimony of the witness Holland, a deputy sheriff, in regard to tracks in the blood which he claimed to have discovered on the 23d of April, because the evidence at that time showed that the tracks were not discovered by him until the 23d of April, and it was claimed that the murder took place February 26, 1914, to which ruling counsel for the defendant duly excepted. The testimony of the witness Holland was to the effect that he visited the premises on the evening of February 27, 1914, being Friday night, between 8 and 9 o'clock. It is true that this officer did not at that time discover any tracks, or anything claimed to be tracks, in the blood upon the floor in the room where the woman was found killed. At that time her body was found on the bed, and her limbs were off the bed and her feet down on the floor, and the condition of the room was what is described as "in a torn up condition." The bureau drawers had been pulled out, and it looked as though the contents had been scattered about the floor. This witness described very fully the condition of the blood on the floor, and the fact that he picked up two bullets in the blood.

They were bullets of 32-caliber size. The following day he visited the house again and found another bullet in the blood, or close to it, of the same caliber as the first two. This witness described the conditions, stating that it looked as though the body had been dragged on the floor and thrown upon the bed, and an apron had been wound around the head of the deceased. Upon the trial, this witness further testified as follows:

"I was out there on the 23d of April, and at that time I observed what looked to me like a track in the dry blood. It appeared to me as though it was made by an iron stirrup worn on the bottom of the shoe of a man that was crippled in one limb to overcome the shortness. Appeared to me there was nothing touched in the center of the track, but there was a rim right around the outside about half an inch wide. I think I went out there again on the 27th with Sheriff Strobel, Arthur Havens, Fidus Livermore, and William Horsman, and yourself, and I observed this track at that time. There was a track, but it wasn't as plain. When I was another place that looked as though it might be out there with you and the sheriff and Mr. Livermore, we had this iron shoe belonging to the respondent, and it was tried in there to see if it fitted that track that was in the blood we saw there, and it did. I don't know that I ever had any talk with respondent about this matter. * I was there when the comparison of this toe with that footprint out there was made. If you stand off towards the southeast corner of the room, perhaps five, six, or seven feet, you can see that footprint very plainly in the dry blood. You have to bend over to look at it in a diagonal way. * ** There were a good many marks around on the floor there. There was what indicated a heel print and that had been affected by the rats. It was less distinct. it was when I was out there first and saw it. The track is obliterated slightly now from what There has been-what I would say the work of

* 2

rats, been gnawing more or less so it isn't as plain as it was when I first saw it."

The testimony of the witness Holland came in at first without any objection. At the close of the recross-examination of the witness, defendant's counsel moved to have stricken from the record the testimony of this witness in regard to these tracks in this blood which he claimed to have discovered on the 23d of April, on the ground that it was too remote, and that the evidence showed no such tracks were discovered by him at the time of the first visit. The prosecuting attorney then announced he would produce the testimony of 4 witnesses to show the tracks were seen soon after the body was discovered. The court said upon this announcement by the prosecuting attorney:

"If at the close of the testimony you call my attention to that, or in connection with the charge, I will try to give proper instructions in regard to it, or possibly strike it out. I don't know, but at the present time I don't think I ought to grant your motion, especially as the prosecutor says he will produce evidence that that track referred to by this witness Mr. Holland was there and noticed immediately after the discovery of the crime."

An exception was taken to this ruling, but the matter was not again called to the attention of the court during the trial.

As showing the condition of the record upon this subject of the tracks, the witness Welch, a deputy sheriff, testified as follows:

"I first saw the imprint of the shoe in the blood on Sunday, March 1st. It was an accident I saw it, because you have to stand back in kind of a diagonal position to see the imprint, but after you see it once you can readily distinguish it then. But unless you was standing out here, in a glance you couldn't-you wouldn't pay any attention to it, but as you stand off you can see where the shoe has pressed it into the blood, and it looks lower than any other part of the blood. The rest of it is up around it, right in between where the shoe was hollow. I also saw a mark in the blood there, I imagine about six inches or seven inches from where I picked up this paper with the blood on it, with the imprint of a shoe, with the heel of a shoe. It has got kind of a-made like iron of some kind. An ordinary shoe, I don't think, would do it. I tried with my foot to see if I could make an imprint, and I couldn't make any impression at all on it. March 6th was the next time I was out there. I was out there some time later than March 6th, too. I went out there to look over the house to see that everything was all right, so as to see how conditions was, and I examined the track then and found it just the same way it was when I first saw it. I covered it up with pails because I noticed on the north end of the blood, where the blood starts to run, from the northwest corner point of the blood, the rats had commenced to eat it, and I covered it up to protect it so nothing would get to it. I imagine the blood on the floor would be about 22 feet, starting in kind of a diagonal point and running from the corner of this which stands in the northwest corner of the room, runs in a diagonal shape towards the southeast-towards the stove. As it goes from the north, the floor looks as if it sagged and more of the blood had gone to the southeast part of the blood. The size of the space covered was about 22 feet long and about a foot or 12 feet wide. I don't know it is quite that wide. I didn't just measure it, but that was my observation of it. There was quite a

** *

time I was there, the rats had gone to eating it, and eat quite a lot of it off the floor. I picked up a piece of paper there, and that is the paper, and it is in the same condition now it was, folded up just the same way it was. Never was disturbed. The writing was put on by the sheriff, so as to prove the day we got it and where it came from. When I came right back, I turned it over to the sheriff and he wrote on it. The date ought to have been put on. I don't know whether he put it on or not. I know I brought it home on Sunday, March 1st. The heel mark was made on this piece of paper, and the toe mark was made in the pool of blood. The mark of the toe was made in the south end of the pool of blood near the stove; that is where it was thicker, and that was about, I should imagine, maybe 8 or 10 inches from the stove where it stopped to run. The piece of paper was directly in front of the stove, which would be about 22 feet probably from the nearest point of the blood to where I found that paper. We discovered some marks on the floor; I wouldn't want to claim they were put on by the heel, but later on, if the jury goes out to decide for themselves, not for me. I discovered two more marks on the floor there. Two more marks on the floor besides that one. I found that on the paper-that was found nearer where most of the other marks was on the floor."

Lena Reed testified as follows:

Mr.

"The second day after the murder, I was on the outside, and about a week later I was on week from the day of the murder I was inside, the inside of the house. I think it was just a but I don't know the date exactly. Mr. Curtis, Mr. Welch, and St. Clair Pardee was there at I noticed a heel print in the blood. It was near that time. I noticed a pool of blood there, and the edge of the pool on the east side. It looked as though it had been stepped in as they were going out. The foot was facing east. It was just a common heel print, as far as that was concerned, when the shoe was facing east. I didn't see more than one track, and Mr. Curtis called my attention to it. It looked like an ordinary heel track with the toe pointing east. That was the only track I seen. * * Welch was in the room with us when Mr. Cur tis called my attention to the heel track. don't remember that he called my attention to what appeared to be a track made by the toe of that iron shoe, or by an iron shoe like that. I didn't pay much attention to the heel track. * * * It was the heel print in the edge of the blood he wanted me to take a picture of. I developed the picture I took, and after it was printed sent them a copy. I don't know how much space the blood covered. It ran lengthwise north and south, and was longer that way than it was across it east and west. * It appeared to me as if some one had stepped there, just the heel of the shoe had struck the blood and the rest of the foot escaped striking the blood. I didn't pay much attention to the track and couldn't tell much about it."

*

The witness Livermore stated:

*

I

"I noticed when I was out there what appeared to be a footprint. It has the indication of a horseshoe, or a small horseshoe. I saw the sheriff compare the iron shoe with it, and it seemed to fit. It was the heel part I saw."

The witness Emma Pardee testified as follows:

"About a week after they found her, I was up there the same time Mr. Welch and Mr. Curtis were there, and it was the same day Miss Reed was there, but she wasn't there when I was, and I noticed an outline of a foot in the blood, but I couldn't tell from its appearance what it was made by. It looked like the outline shape of a foot, but the blood was higher in