feel that you have a firm and abiding conviction of the guilt of the defendant, and are fully satisfied of the truth of the charge to a moral certainty, then you are satisfied beyond a reasonable doubt." Held, that the instruction was proper.1 4. SAME-HOW JURORS SHOULD ACT. In response to a question by the jury, who returned into court for further instruction, after the cause had been submitted, the court instructed them that "jurors are not artificial beings, governed by artificial rules; but they should bring to the consideration of the evidence before them their every-day common sense and judgment as reasonable men; and those just and reasonable inferences and deductions which you, as men, would ordinarily draw from facts and circumstances proven in the case, you should draw and act on as jurors." Held not error. 5. SAME CIRCUMSTANTIAL EVIDENCE-Weight of. Upon the trial of an indictment for larceny, the court instructed the jury, in response to a question from them, that "circumstantial evidence is to be regarded by the jury in all cases. It is many times quite as conclusive in its convincing power as direct and positive evidence of eye-witnesses. When it is strong and satisfactory, the jury should so consider it, neither enlarging nor belittling its force. It should have its just and fair weight with the jury; and if, when it is all taken as a whole, and fairly and candidly weighed, it convinces the guarded judgment, the jury should act on such conviction. You are not to fancy situations or circumstances which do not appear in the evidence, but you are to make those just and reasonable inferences from circumstances proven as the guarded judgment of a reasonable man would ordinarily make under like circumstances." "Held not error. Appeal from district court, Cerro Gordo county. The defendant was convicted of the larceny of a watch by the verdict of a jury, and he appealed from the judgment pronounced against him. A. J. Baker, Atty. Gen., for the State. J. E. E. Markley, for defendant. REED, J. 1. The indictment is in two counts. In the first count it is charged that the larceny was committed in a dwelling-house in the night-time. In the second count it is charged that the offense was committed in a dwelling-house in the day-time. It is also averred that the matters and things charged in the second count are the same transactions alleged in the first count. The defendant demurred to the indictment on the ground that it charged two offenses. He also moved the court to require the district attorney to elect upon which count he would proceed. The demurrer and motion were overruled. Section 3903 of the Code is as follows: "If any person, in the night-time, commit larceny in any dwelling-house, store, or in any public or private building, or any boat, vessel, or water-craft, when the value of the property stolen exceeds the sum of twenty dollars, he shall be imprisoned in the penitentiary. * * *"" Section 3904 is as follows: "If any person, in the daytime, commit larceny as specified in the preceding section, and the value of the property stolen exceeds twenty dollars, he shall be punished. * * The theory of the demurrer and motion is that these sections define separate and distinct offenses. But this is not correct. The preceding section (section 3902) defines the crime of larceny, and prescribes the punishment for that offense when there are no circumstances of special aggravation. The sections quoted merely point out certain circumstances which are an aggravation of the offense, and will subject the offender to a severe penalty. The crime denounced in both sections is larceny. The facts of the time and place of the commission of the offense affect only the degree of punishment which shall be imposed upon the offender. This is clear from the language of the sections. While but one offense can be charged in the indictment, it may be charged in different forms to meet the testimony. Code, § 4300. That is what was done in the present case. 1See Heldt v. State, (Neb.) 30 N. W. Rep. 626, and note; U. S. v. Jackson, 29 Fed. Rep. and note; State v. Payton, (Mo.) 2 S. W. Rep. 394. 2. The evidence which tended to connect the defendant with the commis sion of the offense was purely circumstantial. The district court gave the following instructions to the jury: "(1) If there is a reasonable doubt of the defendant being proven guilty, he must be acquitted. In criminal cases, full and satisfactory proof of guilt is required. No mere weight of evidence will warrant a conviction, unless it be so strong and satisfactory as to remove from your minds all reasonable doubt of the guilt of the accused. In considering this case, you are not to go beyond the evidence to hunt for doubts. Nor should you entertain such doubts as are merely chimerical, or are based upon groundless conjecture. A doubt, to justify an acquittal, must be reasonable, and arise from a candid and impartial consideration of all the evidence in the case, and then it must be such a doubt as would cause a reasonable, prudent, and considerate man to hesitate and pause before acting in the grave and more important affairs of life. If, after a careful and impartial consideration of all of the evidence in the case, you can say and feel that you have a firm and abiding conviction of the guilt of the defendant, and are fully satisfied of the truth of the charge to a moral certainty, then you are satisfied beyond a reasonable doubt. "(2) Jurors are not artificial beings, governed by artificial or fine-spun rules; but they should bring to the consideration of the evidence before them their every-day common sense and judgment, as reasonable men; and those just and reasonable inferences and deductions which you, as men, would ordinarily draw from facts and circumstances proven in the case you should draw and act on as jurors. It "(3) Circumstantial evidence is to be regarded by the jury in all cases. is many times quite as conclusive in its convincing power as direct and positive evidence of eye-witnesses. When it is strong and satisfactory, the jury should so consider it, neither enlarging nor belittling its force. It should have its just and fair weight with the jury; and if, when it is all taken as a whole, and fairly and candidly weighed, it convinces the guarded judgment, the jury should act on such conviction. You are not to fancy situations or circumstances which do not appear in the evidence, but you are to make those just and reasonable inferences from circumstances proven as the guarded judgment of a reasonable man would ordinarily make under like circum stances." In the case of State v. Pierce, 65 Iowa, 85, S. C. 21 N. W. Rep. 195, we had occasion to consider an instruction in the same language as the one first quoted above, and we there held that, while the single clause which was objected to by counsel might not, if it stood alone, meet our approval, the instruction as a whole was not objectionable. The other instructions were given in answer to a question by the jury, who returned into court for further instruction after the cause had been submitted to them, and they had deliberated upon it for some time. We think they do not afford the defendant any just ground of exception. They relate merely to the rules by which the jury ought to be governed in their consideration of the circumstantial evidence in the case. In effect, the jury were directed by them to bring to consideration of the question before them their best judgment as reasonable men, and that they ought to make such deduc-tions from the circumstances as would be drawn by the guarded judgment of reasonable men under like circumstances. There was doubtless an apparent necessity for instructing on the question. Jurors are often reluctant to find a verdict of conviction on evidence of that character, however convincing the circumstances proven may be, and the we.ht and value of such testimony are often disparaged by counsel for the defendant in criminal causes. It is therefore proper, in any case in which evidence of that character is relied upon, for the court to admonish the jury as to their duty in dealing with it, and it doubtless often happens that a necessity exists for the court to do this in order to secure a just and faithful administration of the law. In such cases, the jury should be admonished that such evidence should be fairly and reasonably considered, and that such deductions and inferences should be drawn from the facts and circumstances proven as would be drawn from them by just and reasonable men if they were called upon to take action in the grave and important affairs of life with reference to them. In effect, that is all that was done in the present case. We find no ground in the record for disturbing the judgment. Affirmed. USHAW v. MALLET. (Supreme Court of Michigan. January 6, 1887.) VENDOR AND VENDEE-VENDOR WITHHOLDING DEED-FRAUD INJUNCTION-ACCOUNT. Complainant bought land of defendant for $1,000, of which he paid $500, and gave a mortgage for the other $500. He received a deed imperfect by reason of the absence of the signature of defendant's wife. Complainant sent the deed to defendant with a request for the wife's signature, but defendant refused for 16 years to comply with his request to give him a proper deed. Ten years after the sale, defendant, through an attorney, by means of fraudulent representations, obtained from complainant, who is an ignorant and confiding man, a quitclaim deed; complainant being unable to read, and ignorant of the nature of the instrument he was signing. Defendant brought ejectment against complainant, putting him to trouble and expense. Complainant asks relief in equity by the execution of a deed by defendant, or repayment of the purchase money, together with the value of the improvements. Held, that complainant was entitled to the relief asked. Appeal from circuit court, Berrien county. E. M. Plimpton, (Clapp & Bridgman, of counsel,) for complainant. David Bacon, (James A. Kellogg, of counsel,) for defendant and appellant. SHERWOOD, J. The bill in this case is filed to compel the defendant to convey to complainant, by a good and sufficient deed, 50 acres of land off the north end of the E. of the N. W. of section 20, township 6 S., of range 19 W., lying in the county of Berrien, excepting five acres off the north end thereof, or that, instead thereof, if, upon an examination of the case as presented on the pleadings and proofs, the court should be of opinion that the complainant's equitable rights in the premises would be better protected and enforced by securing to him the payment of the money he has advanced upon his contract with defendant for the purchase of said land, together with the value of the improvements he has made thereon, decree may be made accordingly, and that the defendant may be restrained by injunction from making sale of the property until final decree is made in the premises, and depriving complainant of his possession. The case made by the bill is substantially as follows: In 1865 the complainant lived in Huron county, Ohio, and the defendant was a resident of the same county, and owned the land in question, with other parcels lying in Berrien county. The complainants also owned 40 acres of unimproved land lying on section 21, in town of Lake, in Berrien county. In the same year the complainant removed to Michigan, near the land of defendant in question. This land had a small house and barn upon it, but was otherwise unimproved. Soon after the complainant with his family arrived, at the request of the defendant the complainant removed with his family into the house on defendant's lot, where he has ever since remained. The bill further avers that he had been upon the land but a short time when defendant proposed to sell the same to him for $1,000. Not long after this the complainant sold his 40 acres, and took $500 of the purchase money in notes, and thereupon, in the spring of 1867, wrote to the defendant he would treat with him for the purchase of his 45 acres if defendant would take complainant's said notes towards payment. That on the first of November thereafter, Mallet came to Michigan, and saw complainant, and four days later agreed with complainant to sell to him the said land for $1,000, and take the aforesaid notes as part payment, and for payment of the remaining sum agreed to take notes made by complainant, secured by mortgage upon the property; that the complainant made the notes and mortgage, and delivered the same to the defendant as promised, and the defendant executed and delivered to the complainant a deed of the land, not signed by his wife; that neither said deed nor mortgage has ever been recorded, nor has said mortgage ever been paid; that the complainant is an illiterate, uneducated man, scarcely able to read or write his name, and unacquainted with business; that he was soon informed that the defendant's deed, unsigned by his wife, did not give him a good title, and thereupon sent the deed to defendant in Ohio to obtain the wife's signature; that Mallet received the deed, and repeatedly promised complainant that he would have his wife sign it, and return it to complainant, which defendant never did; that complainant made many unsuccessful efforts to secure a return of said deed, and for the want thereof he underwent great anxiety and embarrassment, and was entirely unable to raise money upon the property to relieve him from his pecuniary engagements, and suffered much damage thereby; that he has never, after repeated importunities, been able to obtain from defendant any other deed for his property; that in the mean time he has cleared up the land, built a new house thereon, fenced the land, grown a valuable orchard, and made the little farm a desirable homestead, and increased its value to $2,500; that he is now 65 years old, and has no other property, and is nearly worn out by hard labor; that defendant now seeks to deprive him of his property, absorb the proceeds of his many years of toil, and drive him from his home without any compensation whatever; that, about six years since, the defendant came to the house of complainant on his farm, and, after making known his business, handed to the wife of complainant the five notes and mortgage which he had given to defendant when he purchased the property, and said to her, “I make you a present of these;" and when, shortly after, he was seen by complainant, and asked what he meant by, so doing, defendant replied, "You have lost your land." Complainant then demanded a deed of the land, and told defendant, “when that was done, he was ready to pay him all he owed him," and would have paid him long before had not defendant withheld the deed from him. The bill further avers that defendant never asked complainant to pay him anything after the mortgage was made, but has written to complainant several times, when requested to return the deed with his wife's signature, that he would do it, and it should be all right; that he was not anxious for his pay; that complainant had always paid the taxes upon the property, which has been regularly assessed to him; that the property is all the home he has for himself and wife in their feebleness and old age; and, until defendant got ready to deprive him of it, he always said to complainant and his wife it was for that purpose he desired them to have it, and he should never make them any trouble; that a few years since a lawyer from Niles called at the house of complainant, when he and his wife were alone, no one else being present, and stated he had a paper he wished them to sign, so they could get a deed of their land; that if they signed it they would surely get their deed, but, if complainant and his wife did not sign it, they could not get a deed of their home; the lawyer being Daniel Bacon, a gentleman with whom the parties had been acquainted for some years, and believing what he told them was true, complainant and his wife signed the paper, without hearing it read, and never have known what its purport was, but are informed it was a quitclaim deed of their farm, running to said defendant; that from that time complainant has remained in possession of his homestead, expecting his deed from Mallet and wife therefor, until in January, 1881, when he received a letter from said Mallet that he had sold complainant's farm to a Mr. Millar, and re questing complainant to give said Millar possession when he called for it, and that this was the first intimation he ever received from Mallet that he did not intend to give your orator a deed of his homestead; that said Mallet, by his said attorney, Daniel Bacon, commenced proceedings before a circuit court commissioner to eject complainant from his home; and that complainant truly believes that Mallet, by the means taken and herein stated, intends to deprive complainant of his property. The bill was filed on the nineteenth day of March, 1881. An order for the defendant's appearance was published, he being a non-resident of the state. He failed to appear, and the bill was taken as confessed against him on the twenty-seventh day of May following. On the twentieth day of June, 1881, an order was made vacating the order pro confesso. The answer of defendant was filed on the sixth of June. The proofs were taken previous to the twentieth day of September, 1882, and on that day were reported to the court by the circuit court commissioner. On the nineteenth day of November, 1883, it was stipulated by the solicitors of the parties that the cause might be heard on the pleadings and proofs. The cause was brought to a hearing on the eighteenth day of April, 1884, at which time the defendant was allowed to amend his answer, and the hearing was continued. The amended answer, signed but not sworn to by defendant, was filed on the twenty-fifth day of August following. The original answer does not appear in the record. The amended answer admits the complainant's entry upon the land in dispute under the circumstances stated in the bill, and the agreement for the purchase thereof, the making of the deed by defendant, the mode and manner of payment, and the detention of said deed by defendant after the same was sent to him for his wife's signature, and the condition of and improvements upon the land as charged by complainant's bill. The other material facts charged are denied, and the orator then avers that, at the time Mr. Bacon obtained the deed from complainant and his wife, the complainant executed a contract, which had previously been signed by the defendant, whereby the latter sold and agreed to convey the land in question to the defendant, and that the complainant agreed to pay therefor $800, with interest at 10 per cent.; said sum to be paid in two equal annual payments from the date of the contract, at which time a deed was to be given. Time was to be taken as of the essence of the contract; and in case of non-payment of said sum, or any part thereof, the land was to become forfeited to the defendant, together with all improvements made thereon, and payments before then made upon the contract, and the complainant was to be debarred of all rights or remedies thereunder, either at law or in equity. Among the witnesses whose testimony was taken were the complainant and his wife, and the defendant and Mr. Bacon. A reference was ordered by the court, after the amended answer was filed, to take proofs of the value of the improvements, and of the use of the land at the date of the deed given by defendant, and the interest on the money paid to defendant. On the coming in of the report on the reference, the hearing of the cause was resumed before Judge SMITH, who, after giving due consideration to the case, on the twelfth day of April, 1886, made a decree requiring the defendant to pay to the complainant, or to his solicitors, within 90 days from the date of the decree, the sum of $1,731.36, and the costs of the suit to be taxed, and, upon such payment being made, the complainant yield and deliver up the possession of the land in question to the defendant, and, in case defendant neglects or refuses to make such payment, that the said complainant shall have said lands in fee, and be vested with the title thereof under the decree, a certified copy of which may be recorded by complainant in the office of the register of deeds of Berrien county, and shall have the same force and effect as a deed of conveyance of said lands from the defendant. The circuit judge also finds in the decree that the material allegations in the bill of complaint have been sufficiently and |