ence to your escape from the prison or your alleged escape from the prison, you may refuse to answer in the exercise of your constitutional privilege that it may tend to incriminate you.

"A. I refuse to answer that question on the ground I believe it will tend to incriminate me.

"Q. I will ask you whether that is your signature.

66 Mr. Noon: That is what he refuses to answer. "Q. I ask you whether that instrument marked 'Exhibit A' is not a confession made by you while confined in the Jackson prison, January 3, 1908.

66

Mr. Noon: You may refuse to answer that, Mr. Allison, for a like reason.

"A. Yes, sir; I do, because I think it will tend to incriminate me.

"Q. I will ask you if you did not sign this instrument as your confession, stating the facts surrounding and incident to the Richland bank robbery, your conviction on the charge, your sentence and confinement in Jackson prison, your escape from Jackson prison, your going into the State of Indiana, in and about the city of South Bend, where you received assistance and aid in concealment and your escape from Joseph E. Talbot and John W. Talbot along about the 12th day of August, 1904.

'Mr. Noon: Same objection, Mr. Allison, and this is the exercise of your privilege.

"A. I shall decline to answer that question on the ground that it will tend to incriminate me."

The foregoing is but a portion of the examination of the witness, but is sufficient to indicate the character of the testimony sought from the petitioner. Upon his refusal to answer the several questions above set forth and others of a like nature, the matter was taken before the circuit judge, who, after hearing counsel for petitioner and for the committee prosecuting the disbarment proceedings, ordered the petitioner to answer the questions or stand committed to the county jail. This is the order we are asked to review.

The circuit judge in his return to the order to show cause has attached a certified copy of the petition for disbarment of Talbot in the Indiana court, and a copy of Exhibit A, the alleged confession of the petitioner, pur

porting to have been made in January, 1908, by the petitioner after his rearrest and before his conditional pardon. An examination of the complaint filed by the committee shows that the facts touching the escape of Allison and Talbot's alleged participation therein constitute but one of 15 several specifications of wrongdoing on the part of Talbot as an attorney at law. His conviction upon any one of the specifications would apparently warrant his disbarment. Exhibit A purports to be a history of the career of the petitioner, Allison, from the time of his birth to its date, January, 1908, and it may be presumed that the statements therein contained, in some measure at least, were used by the pardon board and the governor in reaching a conclusion which resulted in the conditional pardon of the petitioner. Exhibit A is not under oath, and the statements therein contained may not all be true. Nevertheless it unquestionably had its influence upon the pardon board and the governor in determining the fate of the petitioner. Under oath the petitioner might be obliged to disclose a different state of facts than that set forth in the exhibit, and might, because of such disclosure, not only lose the benefit of his pardon, but be prosecuted as well for the escape, which, under the statute, would involve a possible penalty of three years' additional imprisonment. It is perhaps true that if, under oath, the petitioner answered the questions above quoted as counsel for the committee expected him to answer them—that is, in accordance with the contents of Exhibit A-he would not thereby tend to incriminate himself; but what authority has counsel or the court to assume that his answers would conform to the information contained in Exhibit A? Where the constitutional privilege is claimed by a witness under oath, the true rule is that it must obtain, unless the court is able to say, as a matter of law, that any direct answer to the question cannot tend to incriminate the witness. See 1 Burr's Trial, p. 244; In re Moser, 138 Mich. 302; In re Mark, 146 Mich. 714.

This, as we have endeavored to point out, is not possi

ble in the instant case. Petitioner was represented at the examination by competent and reputable counsel-themselves sworn officers of the law-and his position was taken deliberately under their advice and after an opportunity for consultation with them. It cannot be supposed that they themselves would be guilty of endeavoring to obstruct the due course of justice by their counsel, and no other conclusion can be reached if the committee's counsel is secure in his position. From what is before us, it is apparrent that the petitioner has, since his escape, while at large, and since his conditional pardon, endeavored to reform and lead a blameless life. He should not be compelled, except upon the clearest and most convincing ground, to re-open under oath a most unsavory past, with the possible attendant result of incurring further penalty of the law.

The order requiring the petitioner to answer or stand confined will be set aside and held for naught.

BLAIR, C. J., and GRANT, OSTRANDER, JJ., concurred.

MONTGOMERY, and

CITY OF MUSKEGON v. BRENAN.

CRIMINAL LAW-APPEAL-TRIAL ON MERITS-STIPULATIONS-DISCHARGE-EFFECT-CERTIORARI.

On complaint duly made and warrant regularly issued, respondent was convicted in justice's court of violating a city ordinance. He appealed to the circuit court, and, upon stipulated facts and without a jury, the court held he was not guilty in manner and form as alleged and entered an order for his discharge, held, that the trial was upon the merits, and, the proceedings being criminal in their nature, the city was not entitled to a writ of certiorari. City of Grand Rapids v. Braudy, 105 Mich. 670, distinguished.

Petition by the city of Muskegon for a writ of certiorari to review a judgment of acquittal in a proceeding against John R. Brenan for a violation of a city ordinance. Submitted March 3, 1909. (Calendar No. 23,290.) Writ denied March 16, 1909.

James E. Sullivan, for the writ.

MCALVAY, J. This is an application for a writ of certiorari, in a certain proceeding instituted and prosecuted under a city ordinance, for the claimed violation of which a conviction was asked. The case was begun before the police justice of the city of Muskegon, against John R. Brenan, upon a complaint duly made, and a warrant regularly issued, charging said Brenan with engaging in the business of peddling from door to door in said city without having first obtained a license therefor, contrary to the provisions of an ordinance in such case made and provided. The respondent, Brenan, waiving a jury trial, was tried and found guilty as charged by and before the police justice, and adjudged to pay a fine of $50 within one hour, and, in default of payment, to be imprisoned in Muskegon county jail not to exceed 30 days. Brenan appealed to the circuit court for Muskegon county, where

the case was tried before the court without a jury, upon a written stipulation of facts signed by the attorneys for both parties, and the following judgment was entered:

"The court, having heretofore heard this cause, after mature deliberation thereon, finds that the said respondent is not guilty in manner and form as the said city of Muskegon has in its complaint and warrant in this cause charged. Whereupon the said John R. Brenan and his surety are discharged from their recognizance."

We are cited to the case of the City of Grand Rapids v. Braudy, 105 Mich. 670 (32 L. R. A. 116), as authority that certiorari is the proper remedy in this case. In the case cited an appeal was taken from police court to the superior court of the city of Grand Rapids, where that court, on motion of respondent, quashed the proceedings and discharged the prisoner. No trial was had upon the merits. This court held that the ordinance in question was valid, and held that a writ of certiorari was properly granted to compel the superior court to proceed with the trial. The cases are distinguishable. In the case at bar there was a trial and a judgment of acquittal. That the facts were stipulated made it none the less a trial upon the merits. Under the circumstances, whether the trial was for violation of an ordinance or a statute, the people have no appeal. When a court of inferior jurisdiction refuses to proceed with a trial, then this court has granted the writ. Ordinance cases are brought to this court, by defendants, on writs of certiorari, from city courts, where convictions have been had, but we are cited to no case, and we have been able to find none, where the people have any appeal after an acquittal on the merits, where the proceedings were criminal or quasi criminal in their nature. The adjudicated cases are to the contrary. People v. Swift, 59 Mich. 541; United States v. Sanges, 144 U. S. 310, and cases cited.

The writ is denied.

BLAIR, C. J., and GRANT, MONTGOMERY, and BROOKE, JJ., concurred.