We have held in a civil case-Thorn v. Maurer, 85 Mich. 569-that refusals to charge, not excepted to, will not be reviewed on error; but this does not apply to such a case as this. Under the circumstances of the case it was the duty of the court to give the request as made, and the respondent cannot be permitted to be prejudiced thereby because, in the heat of the trial, his counsel neglected to take a formal exception to the neglect of the court to charge as requested. His counsel had excepted to the language of the prosecuting attorney, and asked the circuit judge to correct it in his instructions to the jury. It was his duty to do so, and we have heretofore held that the neglect of the court in criminal cases to properly charge the jury upon a material point could be taken advantage of without an exception on the trial. People v. Murray, 72 Mich. 10; People v. Macard, 73 Id. 15. We should not grant a new trial in this case had these remarks of Mr. Burroughs been passed unchallenged, or had the case stopped with only an exception to them. But when the court was distinctly asked to correct in his charge their effect upon the jury, and refused to do so upon the prosecutor's objection,-for the neglect to charge. as requested was tantamount under the circumstances to a direct refusal,-the error is so manifestly prejudicial to the rights of the respondent that the conviction must be set aside, and a new trial granted, and it is so ordered. The other Justices concurred. 89 70 123 246 THE PEOPLE V. CHARLES T. Wright. Criminal law-Preliminary examination-Return of magistrate— 1. Where an examining magistrate fails to certify in his return 2. An elector of a township who removes to another township in 4. Evidence of the character of the wounds upon the body of a person 5. In such a case it is not error to permit the counsel for the people to exhibit the clothing of the murdered men to the jury, and comment upon the same in their arguments; it being proper to show the circumstances under which the crime was committed, and how near to each other the parties were at the time of the killing, it being claimed that the clothing exhibited some evidence of, such fact. 6. A request to instruct the jury that they could not convict respondent of murder in the first or second degree, but only of manslaughter, is held to have been properly refused. 7. Where, on the day of the conviction of a respondent of the crime of murder, his counsel entered a motion for an order arresting and staying judgment and sentence, for the reason that the court was without jurisdiction to try the respondent for the offense charged, as appeared by the records and files in the cause, but without further specifying the grounds of the motion, which the counsel refused to do on the request of the court, the refusal of said order, and the immediate sentence of the respondent, cannot be assigned as error. 8. Error cannot be assigned upon the sentence of a respondent, upon conviction of murder in the first degree, to solitary confinement in the State prison for his natural life, the word "natural" being surplusage. Error to Benzie. (Aldrich, J.) Argued November 12, 1891. Decided December 21, 1891. Respondent was convicted of murder in the first degree, and sentenced to State prison for life. Conviction and judgment affirmed. The facts are stated in the opinion. N. A. Parker and Thomas A. Wilson, for respondent. A. A. Ellis, Attorney General, and George G. Covell, Prosecuting Attorney, for the people. LONG, J. The respondent was convicted of murder in the first degree in the Benzie circuit court on April 30, 1890, and on the 1st day of May, 1890, was sentenced to the State prison at Jackson for life. The information charged that the respondent killed one Frank E. Thurber, at Aral, in the township of Lake, Benzie county, August 10, 1889. Upon the trial the killing was not denied by the respondent. The circumstances surrounding the transaction, as claimed by the prosecution and shown by the evidence, were that the sheriff of that county, claiming to have made a levy upon certain saw-logs under a writ of attachment, sent his deputy, Neal A. Marshall, to Aral, to take charge of the logs, to see that they were not removed. These logs were the property of the Otter Creek Lumber Company, which was carrying on a lumber business at Aral. The respondent was president and manager of that company. Aral is a small settlement around the mill of the com pany, situate on Otter creek. A north and south highway crosses the creek above the mill. West of the highway and south of the creek a saw-mill, blacksmith shop, and carpenter shop are situated. A part of the lumber from the mill is piled upon each side of the highway and in the highway south of the creek, leaving a roadway in the highway between the lumber piles. North of the creek and west of the highway are situated the company's store, its barns, etc., together with two or three dwelling-houses. A highway crosses this north and south highway from 20 to 30 rods north of the creek, extending east and west. East of the point where these roads cross is an hotel. The bridge crossing Otter creek in the highway is so situated that it can be removed, and this is frequently done, for the passage of logs down the creek. The logs in controversy were upon the bank of the creek, above this bridge, at the time the deputy-sheriff went there by direction of the sheriff to take possession. At this time the respondent, as president of the company, was in possession, and proceeding to roll the logs into the creek. It appears that the trouble originated in the following manner: Some days previous to the 10th of August the sheriff of the county attempted to make a levy upon these logs by writ of attachment, and several days after the levy he found it necessary to place some one in charge of the logs, and so sent his deputy, Neal A. Marshall, to take charge of them, and see that they were not removed. The respondent caused a writ of replevin to be issued out of the circuit court for that county to regain possession from the officer. The writ was placed in the hands of the coroner, and, the respondent failing to give the bond required by the statute, the logs were released. August. This was on the morning of the 10th of himself with a Marlin repeating rifle, and went to the roll-way with his men, for the purpose of forcibly taking possession of the logs, and rolling them into the creek. Deputy-sheriff Marshall came there soon after, and forbade the respondent and his men from removing the logs. The respondent said to him, "Don't you molest my men," and, being told by Marshall that he would, raised his gun, and pointed it towards Marshall, and said, "If you do, I will drop you." Something of a dispute. arose between Marshall and the respondent at this time. A part of the men employed by the respondent were Indians. Marshall arrested one of the Indians, who was assisting in rolling the logs. The controversy was kept up from about 10 o'clock in the forenoon until noon, when Marshall went away. He returned in the afternoon, and then arrested two other men; but, being unable to prevent the rolling of the logs, Marshall said to his men, "Come up to the hotel; we cannot do anything with them;" and he and his men then went away. After the logs were rolled in, the company's men went to their work at the mill, and the respondent went to the barn, left his gun there, and then went to the company's store. He soon after returned to the barn, took the gun, went to the mill, and from there to the blacksmith shop. While in the blacksmith shop, Mr. Reed, the blacksmith, says he looked out of the window, and told respondent that some one was coming down the road. The respondent took his gun, which he had put into a corner of the shop, and said, "It is a good thing to have plenty of sand," and, if they interfered with him again, he would fix them. He then left the blacksmith shop, carrying his rifle, and went towards the lumber piles in the highway south of the creek. Neal A. Marshall, the deputy-sheriff, after leaving the roll-way in the afternoon, went to the hotel on the east |