(dissenting). Respondent was convicted under an information charging that on the 23d day of October, 1897, he—
*289“With force and arms, in and upon one Carrie Frank, a female child under the age of sixteen years, to wit, of the age of fourteen years, eleven months, and twenty days, feloniously did make an assault, and her, the said Carrie Frank, then and there feloniously did unlawfully and carnally know and abuse.”
He was sentenced to 10 years’ imprisonment in the state house of correction and branch of the state prison at Marquette.
Carrie Frank was called as a witness, and testified that at that time she lived with Winslow Smith, a brother of respondent; that on the night in question the respondent came to her room and had intercourse with her, while Winslow Smith and his wife were in a bed in the same room, and only a blanket between their bed and her own, and that that was the only time respondent came to her bed; that she said nothing about it to any one until a few days after, when a justice of the peace came to see her about it; that she at first denied it to him and to her mother and sister, but that finally she made the complaint upon which the warrant for the arrest of the respondent was issued. The justice was called, and testified that at first the girl denied the story, but afterwards admitted it, and that he thereupon issued the warrant. The prosecution also called one James Wellington as a witness, who testified that the respondent told him he was going to try to make connection with Carrie Frank, but witness could not state whether he meant married connection or not. Another witness for the prosecution testified that respondent told him that he had had connection with Carrie Frank on Saturday night, and again on Monday morning, in her room. Respondent was called as a witness in his own behalf, and denied that he had ever had intercourse with Carrie Frank. He also denied that he had ever stated that he was.going to have connection with the girl, or that he had stated that he had'had connection with her. The defense also called several witnesses who testified that the respondent’s reputation for truth and veracity was good. *290The county treasurer of the county testified that the general reputation of the witness James Wellington was bad. Mrs. Smith, the wife of respondent’s brother, testified to the location and condition of the rooms upstairs where the girl slept, and stated that there was only a curtain between her bed and where the girl slept, and that respondent never went to the girl’s room, to her knowledge.
It being made to appear to the court that respondent was unable to employ counsel, the court appointed counsel to defend him. At the close of the testimony the court limited the arguments of counsel to 35 minutes on a side, and, after counsel for respondent had spoken for that length of time, the court stopped him and would allow no further argument. Counsel took exception to this ruling. The first assignment of error is based upon this ruling. We think this was within the discretion of the trial court, under subdivision b, Cir. Ct. Rule No. 24.
We are satisfied, however, that the court was in error in the charge as given, and that under it the respondent did not have that fair and impartial trial which the Constitution provides, — not, however, in what the court said, but in what he omitted to say. After stating to the jury what would constitute the offense which respondent was charged with, he proceeded to detail the circumstances of the case, and what the people claimed, and then referred to the testimony of the girl, the testimony of the two witnésses as to admissions made by the respondent to them, and then said:
“ Did he make such admissions ? * * * Under what circumstances were they made ? If they were made voluntarily and intelligently, they are considered competent evidence, and oftentimes evidence which tends strongly to the establishment of the crime charged. * * * These admissions you have a right to weigh.”
After going over the evidence introduced on the part of the people, the learned judge said further: “You must take this evidence, and arrive at such a conclusion as *291meets the approval of your honest consciences.” Nowhere in the charge did the court call the attention of the jury to the claims made by the respondent, or to any testimony introduced in his behalf. He was called in his own behalf, and denied emphatically the story told by the girl, and also denied that he had made the claimed confessions. While calling the attention of the jury to the story told by the girl, the court did not refer to the situation of the bed the girl occupied on that occasion, — that it was within ■a few feet of the bed occupied by Mrs. Smith, with only a blanket between the two beds; nor to the testimony of Mrs. Smith, who testified that the respondent did not •come in there, to her knowledge. The charge is one which is easy to be made,, and hard to be defended against. The circumstances under which the complaint was made were somewhat peculiar. The justice who took the complaint drove many miles, and into another county, for the purpose of interviewing the girl and having her make it. At first she denied the whole matter to him and to her mother, but finally, before the justice left, he had taken the complaint, and at once on his return issued the warrant. These were circumstances which might have a strong tendency to strengthen the testimony of the respondent and to weaken the testimony of the girl; and if the court was to dwell at length upon the people’s evidence, which he did, then, in fairness to the respondent, such circumstances as were favorable to him and his theory of defense should have been given, and the attention of the jury called to the testimony given on behalf of respondent. It has many times been held by this court that even in civil cases a party to the case has the right to have his theory of the case submitted to the jury. Wildey v. Crane, 69 Mich. 17. We have not overlooked the fact that no requests to charge were tendered by counsel for the respondent; but counsel had the right to complain,of the charge as given, notwithstanding that fact, for he presumably could not have known beforehand just how *292the court would submit the case to the jury, or that the court would entirely ignore the respondent’s claims.
The conviction should be reversed, and a new trial awarded.
Moore, J., concurred with Long, J.