
    The People v. Riley Davis.
    
      Adultery — Bill of particulars — Complainant—Privileged communications —Prosecuting attorney —Remote evidence — Affidavit for capias.
    
    1. The respondent in a prosecution for adultery is entitled to a specification of the times and places of the acts relied on for conviction in any case in which he might otherwise he misled in preparing for defense.
    
      2. A prosecution for adultery may be instituted on complaint of the husband of the woman with whom it was committed. How. St. § 9279.
    3. Communications made to a prosecuting attorney by the complaining witness in a criminal case are not privileged, so far as the witness is concerned, for he is not the prosecutor’s client and cannot control the use of the communications, which are made for purposes of public justice. Whether the State cannot sometimes claim the-privilege — Q.
    4. The prosecuting attorney is a sworn minister of justice whose duty it is to see that the innocent are protected as well as that the guilty are brought to punishment.
    5. The complaining witness in a prosecution for adultery testified that he caught the parties thereto in the act upon a certain date and at a particular place. Held that respondent was entitled to show, by the testimony of a former prosecuting attorney, that the complainant, in laying the case before him, had stated that at the place and date specified he saw nothing wrong between them.
    6. A prosecution for adultery must be instituted within a year after the offence; and evidence of acts which at most would raise only a suspicion of improper relations should not be admitted if they occurred more than a year before the commission of the alleged offence, unless they were shown to belong a continuous series of improprieties.
    7. An aflidavit for a capias in a civil action for criminal conversation ought to be admitted on a prosecution for adultery, based upon the same act, if the complaining witness took it out and it tends to contradict his testimony in the criminal case.
    8. An information in a criminal case is presumed to have been framed with reference to the facts disclosed on the preliminary examination ; and the date of the offence as given therein is supposed to-correspond fairly with the facts then stated.
    Exceptions before judgment from Macomb. (Stevens, J.)
    January 30.
    February 6.
    Information for adultery.
    Conviction set aside.
    Attorney General Jacob J. Van Hiper for tbe People.
    Prosecution for adultery may be begun on complaint of tbe husband or tbe wife of either of tbe guilty persons: How. St. § 9279; Bayliss v. People 46 Mich. 221; Parsons v. People 21 Mich. 509; State v. Roth 17 Ia. 336; a bill of particulars is properly refused m a prosecution for adultery if no showing is made that it is necessary: People v. McKinney 10 Mich. 92; Tiff. Cr. Law 382; disclosures to a prosecuting attorney by complaining witness are privileged: 1 Whart. Cr. Law § 773; 1 Greenl, Ev. § 239; evidence of previous conduct of the parties showing intimate relations is admissible: Com. v. Lahey 14 Gray 91; Com. v. Merriam 14 Pick. 518; 2 Whart. Ev. § 34; People v. Jenness 5 Mich 305; Com. v. Nichols 114 Mass. 285.
    
      Weeks da Self ridge for respondent.
    Prosecution for adultery can be begun on complaint only of the consort of the person to be prosecuted; Lyon v. Waldo 36 Mich. 345; People v. Knapp 42 Mich 269; State v. Wilson 22 Ia. 366; State v. Roth 17 Ia. 337; Bish. Stat. Crimes § 662.
   Cooley, C. J.

The information in this case charges the respondent with having committed adultery with one Sarah M. O’Bourke, the wife of Thomas O’Bourke, at the township of Armada in Macomb county, on the first day of September, 1881. Before the case came on for trial the respondent moved the court that the prosecuting attorney be required to furnish to respondent’s counsel a particular statement, specifying the times and places where the alleged acts of adultery upon which he expected to rely for a conviction were supposed to have been committed. The motion was denied.

The record does not show whether respondent had had any preliminary examination upon the charge; but if he had, it is to be presumed the information was framed with reference to the facts then disclosed, and that the evidence was directed to some transaction of or near the date mentioned in the information. But as the prosecution would not be restricted on the trial to the time mentioned in the information — People v. Jenness 5 Mich. 305—we think the particulars called for should have been required. The justice of such a requirement was made apparent by the very first step taken by the prosecution in the cause; for instead of attempting to prove an act of adultery occurring on or near September 1,1881, the complaining witness swore to having caught the parties flagrante delicto on the night of April 30, 1882; and it was upon this evidence that a conviction was sought and obtained. If the prosecution when the information was filed, intended to rely upon proof of a transaction in April, the information— which was verified by the oath of the prosecutor himselfj testifying as of his own knowledge, — should have given that as the time of the alleged offense ; for the defendant might otherwise be altogether misled in his preparation for a defense. And whenever it is possible that such a result might follow, the court should guard the respondent against it by requiring a statement of particulars, if the defense calls for it. This may perhaps be a matter of discretion in the court, but as the case must go back for a new trial on other points, we think it proper to call attention to it.

Thomas O’Rourke was the complainant in the case. It is objected that only the respondent’s wife is authorized by the statute. How. St. § 9279. But the contrary was held in Bayliss v. People 46 Mich. 221, and we have seen no reason for doubting the correctness of that decision.

The prosecutor gave his evidence in the case at length, and when the defense entered upon their proofs Mr. Lowell, who was prosecuting attorney of the county when the prosecution was begun, was called to the stand and was asked, with a view to impeaching the prosecutor, whether in the statement O’Rourke made to him he did not say that on the occasion when he saw his wife and respondent together on April 30, 1882, he saw nothing wrong between them. Objection was made to this question by both Mr. Lowell and the present prosecuting attorney, on the ground that communications made by the prosecutor to the prosecuting attorney were privileged; and the court sustained the objection.

It does not appear to have been claimed that Mr. O’Rourke had any privilege in the case, nor could it be; for he was not as to this prosecution the client of the prosecuting attorney, nor was that officer in any sense his counsel. He was on the other hand a sworn minister of justice, whose duty it was, while endeavoring to bring the guilty to punishment, to take care that the innocent should be protected. Wellar v. People 30 Mich. 17, 24; Meister v. People 31 Mich. 99. Communications made to him for the purpose of invoking official action are supposed to be made for the purposes of public justice, and the party making them can assume no control as to the use that shall be made of them subsequently.

If, then, there is any privilege in the case, it must be the privilege of the State in whose interest O’Rourke assumed to act when making his' communication to the prosecuting officer. And we are not called upon in this case to consider whether there may not be cases in which the prosecuting attorney would be excused, in the interest of the State, from disclosing what had been told to him with a view to the commencement of criminal proceedings. There would be strong reasons in many cases why the counsel of the State should be inviolably kept; and nothing we shall say in this case will be intended to lay down a rule except for the very case at bar and others standing upon the same facts.

In this case the prosecutor testified that on a particular day and at a place specified he witnessed the commission of the crime charged. The defense then offered to show that in laying the case before the prosecuting officer the prosecutor stated that on the day and at the place specified he witnessed nothing wrong between the parties. If he did so state at that time, when he was laying before the public authorities the very case they were to prosecute, and if he now swears to a ease altogether different, it may well be argued that he is unworthy of belief; and the State has no-interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons. But surely the State has no such interest; its interest is that accused parties shall be acquitted unless upon all the. facts they are seen to be guilty; and if there shall be in the possession of any of its officers information that can legitimately tend to overthrow the ease made for the prosecution, or to show that it is unworthy of credence, the defense should be given the benefit of it. There was, therefore, no privilege to preclude the giving of the testimony for which the defense called.

To give color to the charge made against the respondent and raise a presumption of its truth, the prosecution was allowed to prove certain suspicious acts alleged to have occurred in 1879, and which are said to show improper familiarities at that time between the parties accused. The acts proved were the going to the prosecutor’s house at unusual hours when he was known to be absent. This might raise a suspicion of improper relations between the respondent and the prosecutor’s wife, but an inference of such relations would not be a necessary one from the facts proved. "We doubt, therefore, if the evidence can be considered sanctioned by People v. Jenness 5 Mich. 305, under which it was received. But we think there was a further objection in the remoteness of the acts in point of time. A prosecution for adultery is by statute limited to one year ; and to allow the guilt to be established by the aid of proof of acts committed earlier, and which, if actual offenses, would not now be punishable, it ought to be made to appear that they were not isolated acts separated by a considerable interval of apparently proper conduct from the act relied upon for conviction, as for aught that appears was the case here. The difficulty in meeting such charges when the respondent has had no notice in advance of the intention to prove them, is so great that the liberty of making proof of them ought commonly, we think, to be restricted to the statutory period, unless a continuous course of improprieties is relied upon, which was not the case here.

A civil action, it appears, had been brought by the prosecutor against the respondent to recover damages for the same criminal conduct; and the defense offered in evidence the affidavit for the capias, for the purpose, as was stated, of contradicting the evidence given by the prosecutor on this trial. The court excluded it. íhe affidavit is not given in the record, and we cannot therefore know whether its tendency would have been as claimed, but if it would, it should have been received.

The circuit court is advised that the exceptions are well taken, and that the verdict should be set aside and a new trial granted.

The other Justices concurred.  