gun, and was allowed to explain its workings to the jury. The respondent himself said on cross-examination that he had had the gun and case about two months, and that they had been handed to him, but he refused to tell by whom. Held, that it could not be said that these facts were clearly irrelevant to the charge of murder.

4. A prosecuting officer ought not to allude, before the jury, to the fact that respondent has put himself upon his privilege and declined to answer a question, even though it concerned a collateral inquiry of questionable relevancy; but such a remark is not sufficient ground for disturbing a verdict against respondent.

5. It is within a trial court's discretion, even in a murder case, to admit evidence out of its strict order.

6. It was shown in a murder case that the victim had fired three shots after his assailant had fired at him. Respondent claimed that his victim had fired first, and showed that four barrels of the latter's pistol had been lately discharged. The prosecution then showed, as if in rebuttal, that three had been discharged more recently than the remaining one. Held, that though the prosecution had covered the ground, and the evidence was not rebutting, it was within the discretion of the judge to receive it.

7. Whether taking merchandise away from the door of a store clandestinely, is not a larceny from the store itself, and therefore a compound larceny under How. Stat. § 9137-Q.

8. The right to arrest without a warrant remains, in Michigan, in a case of larceny which would be felonious at common law.

9. Where the evidence of a larceny would in itself be sufficient for conviction, the plea that the act was done for fun, and while the person doing it was drunk, is not enough to protect him from arrest.

Error to the Recorder's Court of Detroit. (Swift. J.) November 19.-January 7.

MURDER. Respondent brings error. Conviction affirmed. Attorney General Van Riper for the People.

Allen Howard Frazer, Levi T. Griffin and Robert E. Frazer for respondent. An officer has no right to arrest without a warrant, for a misdemeanor: Shannon v. People 5 Mich. 83; Shay v. People 22 N. Y. 317; Drennan v. People 10 Mich. 178; People v. Rawson 61 Barb. 634: 1 Whart. Cr. L. §2; People v. Dutcher 83 N. Y. 243; People v. Finn 26 Hun 60; People v. Donald 48 Mich. 493; People v. Finn 87 N. Y. 533; How. Stat. §§ 9140, 9430;

any offense which is not liable to be punished by death or imprisonment in the State prison, is a misdemeanor: People v. War 20 Cal. 120; Johnston v. State 7 Mo. 183; Ingram v. State 7 Mo. 293; Weinzorpflin v. State 7 Blackf. (Ind.) 188; People v. Van Steenburgh 1 Parker Cr. Cases (N.Y.) 45; State v. Smith 8 Blackf. 490; State v. Smith 32 Me. 372; State v. Mayberry 48 Me. 236; to proceed lawfully the officer must inform the suspect of his official character; State v. White 76 N. C. 15; State v. Underwood 75 Mo. 238; and of the charge against him, and of the purpose of the officer: State v. Curtis (1797) 1 Hayw. (N. C.) 471; Bellows v. Shannon (1841) 2 Hill 92; State v. Kirby 2 Ired. Law (N. C.) 202; 3 Greenl. Ev. (2d ed.) §§ 123, 146; Drennan v. People 10 Mich. 177; Yates v. People 32 N. Y. 517; State v. Bryant 65 N. C. 329; 2 Whart. Cr. L. (7th ed.) § 1289; State v. Belk, 76 N. C. 14; State v. Underwood 75 Mo. 238; the officer would have to treat the party being arrested without unnecessary violence, unless there is resistance; and in case of violence on the part of the officer towards the prisoner, the latter can use any force, not excessive, in defending himself Findlay v. Pruitt (1839) 9 Port. (Ala.) 195; State v. Mahon 3 Harr. (Del.) 568; Murdock v. Ripley 35 Me. 474; State v. Bryant 65 N. C. 328; State v. Belk 76 N. C. 14.; all testimony is inadmissible that relates to a distinct offense: Albricht v. State 6 Wis. 74; Hoberg v. State 3 Minn. 269; Hopps v. People 31 Ill. 385; People v. Schweitzer 23 Mich. 304; Shaffner v. Com. 72 Penn. St. 60; Rosenweig v. People 63 Barb. 634; Schaser v. State 36 Wis. 429; or could not be used for impeachment or contradiction, being immaterial and irrelevant: Fisher v. Hood 14 Mich. 190; 1 Greenl. Ev. §449.

COOLEY, C. J. The respondent was tried and has been convicted of the murder of Alonzo E. Bullard, who at the time was a policeman of the City of Detroit.

The following is a condensed statement of the facts developed on the trial.

On Wednesday November 27, 1883, the respondent was residing on Canfield street, Detroit, near Wabash avenue. At about six o'clock in the evening of that day he had or pretended to have an errand at the grocery store of one Heise a little distance from his house on the avenue, and went out to attend to it. Arriving at the store, according to his story,

he saw Heise standing at the door-way absorbed in conversation with another person. A barrel of oil was in front of the store, and it occurred to the respondent that he might roll it away without being observed. He had been drinking, and his subsequent claim was that he proposed to himself the rolling off of the barrel by way of joke merely. He did roll it away without at the time being observed, and put it in his own front yard, where he left it until bed-time. He then rolled it into a shed attached to the house, and locked the door.

In the morning the respondent, who was a painter by trade, started out ostensibly to procure work, but found his way after a time to the Russell House, where after noon he was in the company of Freeman, the baggagemaster of the hotel, who was an acquaintance. Heise in the mean time had missed his barrel of oil. The barrel was painted a light blue color, and it was easily traced on the stones where it had been rolled. The loss was reported to the Police Department, and officer Bullard proceeded with Heise to investigate. They followed the trail to respondent's place, and looking through the cracks in the shed, saw the barrel there, which Heise thought he identified as his own. Bullard then knocked at the door of the house which was opened by Mrs. Wilson, and the officer asked of her permission to go into the shed. She said it was locked and her husband had the key, and it would be necessary to wait until he returned, which would be between six and seven at night. Bullard said, All right; he would be back at that time, and went away. Heise was then sent off for a search-warrant, which was obtained and delivered to officer Bendall of the police force, who proceeded with it to respondent's place, meeting Bullard there about half-past three. Bendall called on Mrs. Wilson and said to her he had a search-warrant for a barrel of oil, and it would save a good deal of trouble if she would give it up. She repeated that her husband had the key to the shed and they must wait for his return, but they declining to do this, she went and got a number of keys for them to try in the lock. None of them fitted it, and she

then went to the bed-room and brought one from there, with which the door of the shed was opened and the barrel found partly covered with rubbish. Mrs. Wilson began to cry, and said if her husband had taken anything it was only for "devilment" and she would give it up. Bendall then turned the barrel over to Heise, and inquired of Mrs. Wilson where her husband worked, and she replied, as he says, that he was a painter by trade and worked for Godfrey & Dean, and added that he was not the man most to blame; it was George Smith. Bullard and Heise then started off to procure a warrant, and Bendall went to Godfrey & Dean's for respondent. On making inquiry he found respondent did not work there, and he then went back to the neighborhood of respondent's house, and waited about there until about five o'clock.

When the officers left respondent's place Mrs. Wilson started out to find her husband. She went immediately to the Russell House, where she saw Freeman and asked him where respondent was. Freeman said he had been there just a little while before with Hughes, and he would send Hughes out for him. He did so, and respondent soon came in. Mrs. Wilson told him what had taken place at the house, and urged him to go home and see about it. He said he would go home bye and bye, and when she urged that he go with her, he declined, and sent Hughes. When they got to the house, Hughes threw off his coat and said he should make himself at home. In a little while officer Bendall came in, bringing with him officer Bullard, who had come back, but without bringing a warrant of arrest. Bendall asked Mrs. Wilson why she had told him her husband worked at Godfrey & Dean's, and she replied she thought he did. Hughes was then observed by the officers, neither of whom knew Wilson though he had been described to them, and Bendall said, "Mrs. Wilson, who is this man here?" Bendall says, she replied it was her husband; and he then inquired of the man if his name was George Wilson, and the man replied it was. Bendall then told him he had a warrant for him for the larceny of a barrel of oil. Mrs. Wilson in her

testimony denies having said Hughes was her husband, but admits that the officers were led to suppose he was, and they arrested him as the thief and started off with him. On the street, when they got a good view of Hughes, the officers saw he was a much older man than respondent had been represented to be, and Bendall said to him "You are not George Wilson." Hughes replied, "I never said I was." Some angry words then passed, and Hughes was turned loose. Bendall then, who was Bullard's superior officer, told the latter to hang around until about seven o'clock, and if Wilson did not come in the mean time, to then go to the stationhouse.

On the Monday preceding these occurrences, respondent had made arrangements with George Smith to cross the river to Canada with him for duck-shooting. On Wednesday he went up to his house a little before six o'clock, and proposed to start off at once on this expedition. His wife wanted him to see about the oil, but he made light of what she said. He had been drinking, and claimed afterwards to have been intoxicated. He had a loaded gun in the house, and with this he started off, bidding his wife and babe goodbye at the door. Bullard had been watching the house, and had seen respondent go in, and started to arrest him. He came up to respondent almost immediately after he left the house, and made attempt to arrest him. Exactly what words passed between the parties can only be known from the ante-mortem statements of Bullard, and the testimony of the respondent. Quite a number of persons, however, heard the discharge of a gun, which is not disputed to have been the fowling-piece in respondent's hands, followed almost immediately by three lighter discharges, which were from a pistol in the hands of Bullard. Respondent claimed that Bullard fired four times-once before he fired, and three times afterwards-but there is no supporting evidence for this except that when Bullard's pistol was found, there were empty shells in all the four barrels, and some witnesses testified that all the barrels had the appearance of having been recently discharged.