ing to account for her submission to his will at the time of the assault charged; and that the court below, in submitting the case to the jury, correctly instructed them that they were to regard it for that purpose only. In the present case the court instructed the jury that they must ignore every other offense testified to except the one charged in the information, and that this testimony was admitted for the purpose only of showing the relations of respondent with her, and his opportunity to have had connection with her on the occasion when the offense is charged to have been committed, and that what he may have done before he was not to be charged with in this prosecution.

3. It is charged that the court erred in permitting the prosecutor to ask one of the witnesses for the people, who was called on rebuttal, what the reputation of Mrs. Van was for morality, decency, virtue, truth, and veracity in that neighborhood; and the same question was asked in reference to Evelyn Merty and Mary Gardner, with the permission of the court. These parties had been called as witnesses for the defense, and the question was asked for the purpose of impeaching them. The witness answered that the reputation of these parties was bad. The court attempted to correct the admission of these questions by saying in the charge to the jury that, in considering the question of the impeachment of these witnesses, they should leave out that part of the questions and answers which related to their reputation for morality, decency, and virtue, and consider only that portion relating to their truth and veracity. In permitting these questions to be answered there was manifest error, and the attempt to cure it in the charge does not remove the effect it probably had on the jury. The prosecution had the right to impeach the witnesses for truth and veracity, but, when with the question there was coupled an inquiry into their reputation for chastity, the question should have been excluded.

Leonard v. Pope, 27 Mich. 145; People v. Whitson, 43 Id. 419; People v. Mills, 94 Id. 630. The answer was before the jury, and it is impossible to say that it did not have weight with them in considering the testimony of these witnesses, notwithstanding the caution of the Scripps v. Reilly, 35 Mich. 371.

4. The court also erred in instructing the jury that they must convict the respondent of rape, if at all. The information for rape necessarily embraced the offense of an assault with intent to commit the crime of rape, and an assault and battery, and the jury should have been instructed that they might convict him of either of the lesser offenses. How. Stat. § 9428, provides:

"Upon an indictment for any offense consisting of different degrees, as prescribed in this title, the jury may find the accused not guilty of the offense in the degree charged in the indictment, and may find such accused person guilty of any degree of such offense inferior to that charged in the indictment, or of an attempt to commit such offense."

In People v. McDonald, 9 Mich. 150, 153, it was said:

"It is a general rule of criminal law that a jury may acquit of the principal charge, and find the prisoner guilty of an offense of lesser grade, if contained within it."

See, also, Hanna v. People, 19 Mich. 316, to the same effect, and in which the provision of the statute above quoted was cited.

It was settled in Campbell v. People, 34 Mich. 351, that under an information charging rape it is competent to find the respondent guilty of an assault with intent to ravish. 'The same doctrine was followed in Hall v. People, 47 Id. 636. In the latter case it was said:

"We are also of the opinion that the court erred in not instructing the jury that they might convict the accused of a felonious assault under the offense charged."

It was held in People v. Courier, 79 Mich. 366, that,

under an information charging carnal knowledge and abuse of a female child under the age of 14 years, the accused may be convicted of an assault with intent to commit that offense, or of simple assault.

In this case it was a question for the jury, under the evidence in the case, to determine whether the respondent was guilty of rape, of assault with intent to commit that crime, or of simple assault; and the court should have directed them what constitutes the lesser offenses, and that they might convict on either of these lesser offenses. Hall v. People, 47 Mich. 636.

For these errors the judgment must be set aside, and a new trial awarded.

The other Justices concurred.

THE PEOPLE V. JOHN CURTIS.

Criminal law-Charge to jury-Reasonable doubt.

1. It is not error to refuse to instruct the jury in a criminal case that if, in their deliberations, one or more of their number, after consulting with his or their fellow-jurymen, retains a reasonable doubt as to the respondent's guilt, the jury should not find the respondent guilty.

2. An instruction that the burden is upon the people to prove the guilt of the respondent beyond a reasonable doubt, and that he is presumed to be innocent until proven guilty, and that all of the jury must be satisfied of his guilt beyond a reasonable doubt in order to convict, is all that the law requires.

Error to Ionia. (Smith, J.) Submitted on briefs November 2, 1893. Decided November 10, 1893.

Respondent was convicted of robbery from the person,

and sentenced to State prison for two years and six months. Judgment affirmed. The facts are stated in the opinion.

Foote & Dooling, for respondent.

A. A. Ellis, Attorney General, and R. A. Hawley, Prosecuting Attorney, for the people.

GRANT, J. The only error alleged is that the court. refused to give the following request on behalf of the respondent:

"The jury are instructed that in their deliberating, if any one or more of their number, after consulting with their fellow-jurymen, retains a reasonable doubt as defendant's guilt, the jury should not find him guilty."

Upon this point the court instructed the jury as follows: "Now, gentlemen, I have said to you that this man is presumed to be innocent until he is proven guilty. There is about him that presumption, and it attaches to the entire case. The burden is upon the people to prove his guilt beyond a reasonable doubt. He is presumed to be innocent until proven guilty, and all of the jury must be satisfied beyond a reasonable doubt in order to convict."

The instruction given was all that the law requires. This case is not ruled by People v. Hare, 57 Mich. 519. In that case it does not appear that the court instructed the jury at all upon the subject, but, on the contrary, said that it was not the duty of the court to charge individual members. The decision goes no further than to say that when such a request is presented it is the duty of the court to call the attention of the jury to the subject.

To hold that jurors, under the instruction, would not understand their duty, would be to say that they were not possessed of common sense.

Such a request was held properly refused in State v. Hamilton, 57 Iowa, 596; State v. Young, 105 Mo. 634. Judgment affirmed.

The other Justices concurred.

ALBERT BEEM V. JOHN H. PALMER, CIRCUIT JUDGE OF NEWAYGO COUNTY.

Practice in circuit court-Assumpsit-Appeal-Nonsuit-CostsTrial fee-Discretion of court-Taxation.

1. How. Stat. § 9004, which provides for the allowance to the prevailing parties in suits at law, commenced or brought into the circuit court by appeal or otherwise, of certain attorney's fees, fixes the fee for the trial of an issue of fact in an action of assumpsit at $10.

2. The issue of law referred to in the provision of the statute giving an increased attorney fee for the trial of issues of fact and law, when tried at the same time or term, is an issue framed upon the record.

3. Where the plaintiff in an appeal case submits to a nonsuit at the circuit after the testimony has been taken and the argument begun, and the court awards full costs to the defendant, its discretion under How. Stat. § 7026, to award the costs, or such part thereof as it may deem just and right, to either of the parties, in view of the particular circumstances of each case, is at an end, and it is the duty of the clerk to tax the costs, including a trial fee, at the amount provided by statute; and on appeal from his taxation the power of the court is limited to a correction of the errors of the clerk, if any.

Mandamus. Argued October 31, 1893. Granted in part November 1, and opinion filed November 10, 1893.

Relator was sued in justice's court in an action of assumpsit, and from a judgment in his favor for costs plaintiffs appealed to the circuit, and upon the trial voluntarily submitted to a nonsuit, whereupon a judgment for costs was entered in favor of relator. The costs, as taxed by the clerk, included a trial fee of $15. Plaintiffs appealed from the taxation, claiming this item to be excessive and unauthorized, and respondent struck the same from the taxed bill. Relator applies for a mandamus to compel