degree as to warrant the restraint of the respondent for the time being and until secured, even though he was not violent or apparently dangerous. The report itself, however, if it constitutes competent evidence upon which to base the order, recites "that at this time he has not sufficient self-control to resist violent impulses." If this statement were properly in evidence, we are of opinion it would be adequate, under the statute, to warrant the action of the court.

The seventh assignment is predicated upon the fact that, at the time the investigation was had, the respondent had neither escaped indictment, nor had been acquitted upon trial upon the grounds of insanity, nor that he was in confinement under indictment. As before noted, the respondent had been enlarged on bail some three years before the investigation was had. We think, however, that counsel for respondent overlook the fact that the investigation may be had in another class of cases-the very first mentioned in section 19, which recites that:

* * *

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"When a person accused of the crime of murder shall appear to be insane the court, being certified by the jury or otherwise of the fact, shall carefully inquire," etc.

There can be no doubt that, at the time the investigation was made, the respondent stood accused of the crime of murder, and as such was within the first class described by the statute, although he had neither escaped indictment, nor been acquitted upon the grounds of insanity, nor was he in actual confinement under indictment.

It is contended that the order itself is insufficient; that nowhere therein does the court determine that the respondent was, at the time the order was made, insane. It will be noted that, after reciting the report of the commissioners, the court proceeds:

"Whereas said report is on file in this court and in

this cause and has been duly entered on the journal of said court," etc.

Nowhere in the order does the court declare that the evidence adduced before him at the investigation convinced him of the fact of respondent's insanity, nor is it certified that it was "satisfactorily proved that such person is insane." We are of opinion that it was unnecessary for the order to contain a recitation of the report, but that it was necessary that the order should contain a judicial determination of the basic requisite fact; i. e., the respondent's insanity. North v. Joslin, 59 Mich. 624 (26 N. W. 810); In re Storick, 64 Mich. 685 (31 N. W. 582); and Partello v. Holton, 79 Mich. 372 (44 N. W. 619).

The last assignment of error raises the question of the constitutionality of the law itself. Unconstitutionality is predicated upon the fact that the statute leaves to the circuit judge the discretion as to whether or not the superintendent of the asylum shall inform the judge and prosecuting attorney that the person committed is restored to his right mind. It is said: That, if the judge does not give this direction to the superintendent of the asylum, the person committed is subject to life imprisonment in the asylum. That if such direction is given, and the person has been restored to his right mind, and the superintendent neglects or refuses to inform the judge and prosecuting attorney of the fact, there is no provision in the statute to compel the superintendent to act, and there is no provision providing for a hearing before any officer, court, or other tribunal, to determine the question whether or not the person committed has been restored to his right mind. In support of respondent's position, the following cases are cited: People v. Smith, 9 Mich. 193; People v. Lawton, 30 Mich. 386; and Underwood v. People, 32 Mich. 1 (20 Am. Rep. 633).

While the constitutionality of this statute may be seriously questioned, we must at this time decline to pass upon that phase of the case, for the reason that it is a settled policy of this court to avoid determination upon that ground, if the case presented can be disposed of upon any other ground.

For the errors pointed out, the judgment is reversed, and the respondent remanded to the custody of the sheriff of Iron county, there to abide such further proceedings as may be had according to law.

MCALVAY, J., concurred with BROOKE, C. J. KUHN, STONE, OSTRANDER, BIRD, MOORE, and STEERE, JJ., concurred in the result.

PEOPLE v. DAY.

EMBEZZLEMENT-EXECUTORS AND ADMINISTRATORS-CRIMINAL LAW

-INFORMATION.

An information charging the respondent with embezzlement under 3 Comp. Laws, § 11591 (5 How. Stat. [2d Ed.] 14646), which relates to the conversion by an agent or clerk of money intrusted to him, was improperly filed against an executor of decedent's estate for embezzling funds which came into his hands by virtue of his office: if any offense was committed it should have been prosecuted under 3 Comp. Laws, § 11610 (5 How. Stat. [2d Ed.] § 14663), relating to embezzlement by executors and administrators.

Exceptions before sentence from the recorder's court of the city of Detroit; Phelan, J. Submitted January 21, 1915. (Docket No. 128.) Decided March 18, 1915.

Ebenezer Day was convicted of embezzlement. Reversed: respondent discharged.

Grant Fellows, Attorney General, Allan H. Frazer, Prosecuting Attorney, and Paul W. Voorhies, Assistant Prosecuting Attorney, for the people.

John Galloway and Henry M. Du Bois, for respondent.

STONE, J. An information against the respondent was filed in the recorder's court of the city of Detroit under the provisions of section 11591, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14646), the charge being in the following language:

"That Ebenezer Day, late of the city of Detroit in said county, heretofore, to wit, on the 9th day of January, A. D. 1912, at the city of Detroit, in the county aforesaid, being then and there an agent and clerk of Edwin Becker, not being then and there an apprentice, nor other person under the age of 16 years, did, by virtue of his said employment, then and there, and whilst he was agent and clerk as aforesaid, receive and take into his possession certain money, to a large amount, to the amount of five hundred and forty ($540.00) dollars, in lawful money of the United States of America, of the value of five hundred and forty ($540.00) dollars, of the property of the said Edwin Becker, and which said money came into the possession of said Ebenezer Day by virtue of said employment, and the said money then and there fraudulently and feloniously did embezzle and convert to his own use, without the consent of the said Edwin Becker; so the said Ebenezer Day, in manner and form aforesaid, the said money, the property of the said Edwin Becker, his employer, from the said Edwin Becker, feloniously did steal and carry away, contrary to the form of the statute in such case made and provided, and against," etc.

The plea was not guilty.

Upon the trial of the case the following facts appeared to be undisputed: That prior to the time of

the alleged embezzlement the respondent had been appointed, and had qualified, and was acting, as the executor of the last will and testament of one Anna M. Anscomb, deceased; that while acting as such executor said respondent had received from said Edwin Becker a sum of money as part payment for certain real estate which had been sold to said Becker by Mrs. Anscomb in her lifetime; that the only relation which the respondent ever sustained to the said Becker in the matter, or in the transaction, was that of executor as aforesaid; that as such executor he received the money in question; and that there was no evidence that respondent was the agent or clerk of the said Edwin Becker in said transaction, or dealings, or at any time, or that he had ever been in his employ.

At the close of all the testimony, respondent's counsel made a motion for a directed verdict in respondent's favor, and for his discharge, for the reasons that there was no evidence that respondent had in any way acted as the agent or clerk of said Becker, or been in his employ so as to bring the case within the general statute covering embezzlement by an agent or clerk; and that, if there was any case against the respondent under the evidence, it should have been brought and prosecuted under section 11610, 3 Comp. Laws (5 How. Stat. [2d Ed.] § 14663), being

"An act to define and punish the offense of embezzlement by general and special administrators, executors or guardians."

The motion was denied, and exception duly taken. Respondent's counsel also requested the court to charge the jury that under the evidence in the case the respondent was entitled to a verdict of not guilty of the charge, which request was refused. The case was submitted to the jury, and in the course of the charge the following occurred: