to constitute the offense, desertion, abandonment, and refusal or neglect must contemporaneously combine; that, the desertion and abandonment having occurred in 1905, the offense could not be considered as committed in 1909, by reason of the then refusal or neglect to provide necessary shelter, etc.

Applying the construction of the statute in those cases to the facts in this case, and conceding that at the time charged, and to which the testimony was directed, respondent neglected or refused to provide necessary and proper shelter, food, care, and clothing for his children, there is no proof that he at that time separated himself from, deserted, or abandoned them, within the meaning of the statute; but, on the contrary, he was apart from them, and his legal status was such that it was impossible for him to do so. Whatever his culpability and legal liability under other laws may be, we are constrained to hold that the facts proven by the prosecution in this case do not constitute the offense charged under the statute in question.

The conviction must be set aside, and respondent discharged.

MOORE, C. J., and MCALVAY, BROOKE, STONE, OSTRANDER, and BIRD, JJ., concurred. KUHN, J., did not sit.

PEOPLE v. DAHROOGE.

1. PERJURY-EVIDENCE.

Evidence tending to show that respondent in a civil suit denied receiving or depositing certain money in the bank, that he in fact made such deposit and that a deposit slip produced by him was falsified, held, to sustain a conviction of perjury.

2. CRIMINAL LAW-TRIAL-MISCONDUCT OF PROSECUTING ATTORNEY

-EVIDENCE-PRIVILEGED COMMUNICATIONS.

Where the prosecuting attorney called to the stand the attorney for respondent in a civil suit, wherein it was claimed respondent had testified falsely, and asked him questions as to communications made to him by his former client, who was thereby compelled to claim that such communications were privileged and to object to the questions, the conduct of the prosecutor was prejudicial and required the reversal of the

case.

Exceptions before sentence from the superior court of Grand Rapids; Stuart, J. Submitted November 14, 1912. (Docket No. 133.) Decided December 17, 1912.

George Dahrooge was convicted of perjury. Reversed.

Earl F. Phelps, Prosecuting Attorney, and Louis T. Herman, Assistant Prosecuting Attorney, for the people. Powers & Eardley, for respondent.

BROOKE, J. Respondent, having been convicted of perjury, brings his case to this court for review upon exceptions before sentence.

Respondent was plaintiff and one Salamy was defendant in a suit tried in the justice's court of the city of Grand Rapids. The suit was upon a draft for $200, which sum the plaintiff (respondent) claimed was due him from Salamy. Salamy admitted the receipt of the money represented by the draft, but claimed that it did not

represent a real indebtedness from him to respondent for the following reasons: On February 4, 1910, respondent and Salamy went to the Kent State Bank, where respondent signed and Salamy indorsed a promissory note for $300. Respondent discounted this note at the bank and claims to have then and there paid the $300 over to Salamy. The note was afterwards paid by Salamy. At the trial Salamy claimed that respondent gave him but $100 of the $300 obtained upon the note, and that the draft for $200, upon which suit was brought, was given him on May 28, 1910, to balance that transaction. Salamy produced his bank book which showed a deposit of only $105 on that day, and testified that respondent had taken $200 of the $300 and in his presence had handed the money to his (respondent's) wife, together with $10 which he took from his pocket, and had instructed her to deposit the same in his own bank. He demanded the production of respondent's bank book, which he claimed would show such a deposit on February 4, 1910. The bank book, being produced, did show a deposit of that amount on that day. The next morning, being the second day of the trial, respondent produced and offered in evidence a paper which, he testified, was the original deposit slip accompanying his deposit of February 4, 1910. The slip was in the handwriting of respondent and was as follows:

Kent State Bank.

Deposited by George Dahrooge, Grand Rapids Mich.
February 4, 1910.

Please list each check separately.

The justice of the peace having secured an alleged true copy of the original slip from the bank, respondent was defeated in his civil suit against Salamy, and thereafter this prosecution was begun. The officials of the bank,

being called in this case, testified that no such deposit as is described in this slip was made by respondent on said date. They identified a copy of the original slip made for the justice by Arthur Weitz, teller of the bank, on the last day of the trial in the justice's court, a copy of which follows:

Kent State Bank.

Deposited by George Dahrooge, Grand Rapids, Mich.
February 4, 1910.

Please list each check separately.

Currency

Gold..

$210 00

Silver..

Checks.

The wife of respondent at this trial testified that she herself got the slip produced by respondent from the bank on the second day of the trial in the justice's court and handed it to Mr. Wesselius, her husband's attorney, in the courtroom. A careful reading of the entire record in this case leads to the conclusion that there was abundant evidence to warrant the verdict of the jury.

It is urged, however, on the part of respondent, that reversible error was committed. There are 28 assignments of error. We think they are all without merit except two -the fifth and the twenty-seventh. The fifth is based upon the following proceeding occurring during the trial: "The people called Sybrant Wesselius in rebuttal, and he testified as follows:

"Q. You were attorney for Dahrooge, this respondent, in justice's court upon a trial August 29 and 30, 1910? "A. Yes, sir. I was attorney in some case down there between Dahrooge and Salamy.

"Q. That was a case, was it not, in which a certain deposit in the sum of $210, as shown by Dahrooge's books, bearing date February 4, 1910, became involved?

"A. There was a deposit involved of $210; I think that was the date.

"Q. I want to ask you, Mr. Wesselius, when that deposit became involved there, did Dahrooge tell you where he got the money that constituted that deposit?

Mr. Powers: I object to that as leading. In the next

place Mr. Wesselius could not testify to it, anyway, because he would be barred on account of the confidential relation.

"The Court: I suppose Mr. Wesselius would know in regard to whether it is a privileged communication or not. The Court: So far as that question is concerned, you may answer.

66

"Mr. Powers: An exception.

"A. He told me where he got part of it.

"Q. Did he tell you where they were when they went to put the money in the bank?

"Mr. Powers: I submit that is incompetent and improper because this is violating this relationship between attorney and client. Mr. Wesselius was his attorney at that time.

"The Court: You may answer that.

"Mr. Powers: An exception.

"Mr. Brown: I will waive that.

* * *

Q. You can answer that by "yes" or "no."

"The Court: You may answer.

66 A. He told me who was at the bank.

"Q. At the bank?

"A. Yes, sir.

"Q. The bank the deposit was made in or the other bank?

"A. The bank the deposit was made in.

"Q. That the $210 was made in ?

"A. Yes, sir.

"Q. Did he tell you what time of day it was?

"Mr. Powers: I object to that for the same reason. Mr. Brown assumes that he can get around this statute by asking a particular question on each part and have the whole story go in, which is again a violation of the statute. An attorney cannot disclose what his client told him.

"The Court: Of course, I assume Mr. Wesselius, being an attorney, will claim his privilege where he feels that it is involved. Every talk between a lawyer and client is not a privileged communication.

"Mr. Powers: The one who has the privilege and who can waive this point is the client and not the attorney. "The Court: No, the attorney can do that sometimes. "Mr. Powers: I understand it is the client.

"Mr. Brown: I will ask some of these questions and see whether counsel objects to them.