author: Mr. Justice Mekour

text:
    McLain versus Commonwealth.
    1. At a coroner’s inquest upon a murdered person the evidence of a witness was taken down by a bystander, the report being expressed to be “for whom it may concern.” The evidence was not taken down under the direction of the coroner, nor was it certified and returned by him with the inquisition. Subsequently, on the trial of the alleged murderer, the witness was unable, through temporary illness, to appear in court. The report of his evidence before the coroner was offered in evidence on behalf of the defendant. Held, that it was rightly rejected.
    3. On a trial for murder there was but a single witness for the Commonwealth who testified to having seen the crime committed. • There was, however, much evidence tending to corroborate him. The defendant introduced considerable evidence to discredit the single witness. The court laid due stress upon all the discrediting evidence, but instructed the jury that it was not essential that the single witness should be corroborated. Held, that this instruction did not constitute error.
    8. On a trial for murder, the fact of the murder being established, inability to discover the motive does not disprove the crime.
    4. Where a murder of great atrocity was committed without discoverable motive on the part of the accused, the court in its charge, after dwelling at length upon the evidence as to the good character of the accused and impressing the jury with the weight of such evidence, said: “ Where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things and beyond common experience, it is so manifest that the offence if perpetrated must have been influenced by motives not frequently operating on the human mind, that evidence of character and of a man’s habitual conduct under common circumstances must be considered far inferior to what it is in the instance of an accusation of low'er grade.” The court then added that evidence of reputation might of itself create in the minds of the jury a reasonable doubt of the existence or truthfulness of the criminating circumstances, and thus induce them to acquit the defendant. Held, that this instruction as qualified did not constitute error.
    5. Semble, that the court approve the doctrine of Shaw, C. J., in the above quotation from the charge in Prof. Webster’s case.
    6. On a trial for murder the testimony tended to show that the crime had been committed with a certain shovel which had stains upon it. These were subjected to chemical analysis and microscopic examination by different experts, some of whom asserted that the stains were caused by human blood, while others failed thus to identify them. Certain unlearned observers testified that in their opinion the stains were caused by human blood. The court, remarking that if scientific research gave no aid in such an investigation it was deplorable, instructed the jury that they might convict upon the testimony of the unlearned observers if they were satisfied of its truth. Held, that this was not error.
    7. Whore the court in charging the jury in a criminal case sufficiently bring the evidence on both sides to the attention of the jury and comment fairly upon tlio facts, it is not error to present some of the facts in the form of questions. Such a course is sometimes well calculated to present for consideration the exact points in controversy.
    8. The charge of the court in the present case pronounced clear, full, impartial and satisfactory.
    November 1st 1881.
    Before Sharswood, C. J., Merger, Gordon, Trunkey, Sterrett and Green, JJ. Paxson, J., absent.
    Error to the Court of Oyer and Terminer of Allegheny county: Of October and November Term 1880, No. 61.
    Indictment of Samuel McLain, Samuel Gisal and Theodore Gross, for the murder of Samuel Hunter. A nolle prosequi was entered as to Gross. McLain and Gisal pleaded not guilty, and a separate trial was allowed to McLain on bis demand.
    On tbe trial, before Bailey, J., the following facts appeared : — On the evening of the 5th of March 1879, about half-past six o’clock, the dead body of Samuel Hunter, a lad fourteen years of age, was found lying in tbe edge of the Monongahela river, not far from tbe foundry and stable where be had been employed as a driver boy. His face was greatly mutilated, the left side of his skull was broken in, and a small piece was cut off the end of a finger.
    Samuel Hunter had been seen riding bis mule from the foundry to the stable at six o’clock, just as tbe foundry whistle blew; a little later he wras seen at the trough watering his mule, and then taking the animal into the stable. So far as the testimony disclosed, he was not seen to leave the stable.
    Among the men known to have been at tbe stable between six and half-past six o’clock on that evening was the defendant, Samuel .McLain, who was a stable boss. In tbe absence of any clue to the murderer suspicion fell on him, also on Samuel Gisal, who was also engaged about the stable, and on a colored man named Theodore Gross, all of whom were arrested. A day or two after their imprisonment Gross was told by the police that McLain and Gisal had charged the crime on him, and that McLain and Gisal would be discharged from custody. Gross Ilion charged the murder on McLain. He testified on the trial that on the evening in question he was standing at the watering trough when he saw Hunter take his mule into the stable, and McLain follow him in; that he then went to the stable door, looked in, and saw Hunter put bis mule in tbe stall, and as lie was backing out from the stall McLain hit him twice on the head with a coal shovel, and Hunter fell dead after the second blow; that Gisal, who was silently standing by, then got a coffee-sack which was lying on the hay-rack, into which the two men put the dead body, and McLain slung it over his shoulder, and with Gisal took it towards the river’s edge, towards the place where it was found. The defendant showed that there were some inconsistencies between the story testified to by Gross on the trial, and- that sworn to by him at the coroner’s inquest.
    Bernard Churchill, a witness for the Commonwealth, testified that on his way home from work about the hour in question, he saw two men carrying a burden across the field towards the river; he thought at the time it was a bag of provisions they were taking to the ferry — there being a skiff ferry at the point in the river where the body of Hunter was found. He did not, however, locate the position of the men carrying the burden in .exact correspondence with that sworn to by Gross.
    The Commonwealth put in evidence the shovel with which Gross testified the killing was done, and portions of the clothing worn by McLain, and offered to prove by the testimony of several witnesses, physicians and laymen, that certain stains found upon-the shovel and clothing were those of human blood. One of the physicians testified that in his microscopical examinations of specimens of the substance scraped from the shovel, he found well-defined blood disks or corpuscles which resembled human blood corpuscles, and which he' believed to be such. Several other physicians testified that they failed to find blood corpuscles in similar specimens. Unlearned witnesses testified to the effect that stains on the shovel looked as if they had been caused by human blood. One or more of the physicians testified that it would be impossible to determine by inspection by the naked eye the presence of human blood upon a rusty and dirty shovel several days after the stains had been made; also that while it might be possible to detect blood in old stains by chemical, microscopic or spectroscopic tests, it would be difficult, if not impossible, to discriminate between human blood and that of other mammalia.
    Some time after the finding of the body a large hatchet was found in the bed of the stream near where the body was found. A large portion of the medical testimony was directed to show that the wounds on- Hunter’s head and hand could not have been made by the shovel, but could have been made by the hatchet.
    Nicholas Kramer, who owned, a skiff at the ferry, testified that about twenty minutes past six on the evening in question, while he was on the opposite bank of the river, he heard a scream or shout which appeared to proceed from the point where the dead body was afterwards found. About the same time another witness saw two men running away from the river bank. Nicholas Kramer crossed the river about fifteen minntes later, with two other men, and they then found the dead body lying in the water. The theory of the defence, founded upon the -foregoing evidence and on the fact that no blood was found in the stable, was that Hunter was killed at “the river side by an unknown person or persons other than the defendant, and not in the stable as contended by the Commonwealth.
    Counsel for the defendant offered in evidence a report of the testimony of one James Cox, given at the coroner’s inquest, Cox being ill and unable to attend court. The evidence was taken down by a shorthand writer, who attended the inquest and took down the proceedings, as he stated, “ for whomsoever it may concern.” He was not requested to do so by the coroner, and the coroner did not certify to the notes. At the time of the trial, Cox was within the jurisdiction of the court, but was recovering from an attack of typhoid fever, and was still confined to bed. Objected to as incompetent, and because there was no cross-examination by the Commonwealth; objection sustained ; exception.
    On the part of the defence, a large number of witnesses testified to the good character and reputation of McLain. A witness testified that McLain was outside of the stable, at work boarding up the over-shoot of the barn during the afternoon in question until twenty-eight minutes past six o’clock, when the witness started for a train ; and that it would have been impossible for McLain to have walked from there to the river between that time and the time the body was found. It was also shown that McLain’s young son was present at the stable at tbe time in question, and the boy himself testified he was there and accompanied his father home. McLain’s whereabouts were traced and accounted for during that evening. After he left the stable, lie went home, ate bis supper, went to East Liberty and purchased a lot of groceries, which he brought home on the eleven o’clock train. On arrival he was informed that Samuel Hunter had been killed; he then went to his house, left his packages and joined in the search for evidences of the crime.
    The Court delivered a lengthy charge, of which the following extracts include all the portions assigned for error:
    “You will also consider whether the statements of Gross here have been so corroborated that you can safely trust to particulars in which he has not been corroborated, [It is not indispensable that Gross should be corroborated;] if satisfied with his testimony you have a right to convict upon it though uncorroborated, but confirmation of it may lead you to believe it, when if not corroborated you might not.....[Were Gross’s eyes accustomed to the obscurity of the stable so that lie might have been able to see when others say they could not ?]....
    “ The Commonwealth has offered testimony tending to show that there was human blood upon the shovel in evidence, when found in the stable, and also such blood -upon the left shoulder of the overcoat worn by defendant on the 5th of March. The answer to this on the part of the defence, if I understand it, is that no one by the unaided eye can distinguish blood of any animal from madder, or from certain paints, dyes and fruit juices, and that by no chemical test or scientific appliance can human blood be distinguished from that of many animals, and that any testimony to the effect that blood, if any, found on the shovel or coat is human blood, is utterly unreliable. The claim is, that in order to know that anything discovered is truly blood there must be a scientific examination, and that such examination will utterly fail to show that the blood if such be found, may not be that of some domestic animal, [in fine, that to know the blood of man with sufficient certainty to make it of avail as evidence, it must be seen to flow from human veins.] . . .
    “[If scientific research only establishes that our supposed knowledge is mere ignorance, and not only gives us nothing better in its place, but merely informs us that we must be content to remain in ignorance in respect to a most important element in the discovery of a heinous crime, it is certainly most deplorable. The result here claimed is surely at variance with all that scientific investigation has taught us of the diversity and distinctiveness of the works of creation, and is not to be accepted unless it be clearly established.]
    “ [I undertake to say that a jury may, if satisfied of its truth, lawfully convict upon proof of the existence of human blood by the testimony of unlearned observers. I will read from the opinion of our Supreme Court in the case of William Gaines, reported in 50 State Reports: “ Several of the witnesses had testified to having seen blood on the day after the murder, in various places, near the window through which the fatal shot was fired, and along the route which the murderer was supposed to have taken. As the defendant had been wounded shortly before the murder, and was bleeding profusely, the evidence, if believed, tended to show that he was near the place when the gun must have been fired; that he had returned to the house of the deceased without any other apparent motive for his return than a desire for revenge upon the deceased, who had wounded him, and had retreated again along the route over which the blood was traced to the place where he was afterwards discovered. Indeed, it was most pregnant evidence, difficult to be reconciled with any other hypothesis than that of his guilt. Whether what the witnesses saw was really blood, was, therefore, a vital question. They testified positively that it was. They saw it the next day, and they traced it a considerable distance.”

      “ I read from the charge of the court below : £ But we cannot instruct you,’ is what the court below said, and what is complained of in the Supreme Court, ‘ We cannot instruct you that because no analysis has been made of the snbstauce which the witnesses supposed to the blood — no chemical test, no microscopic examination — that you are therefore to reject the evidence as insuilieent to show that it was blood. We feel it fco be our duty to refer the question to yon.’
    ££ I now read from the second paragraph, on the same page, which is the language of the Supreme Court: £ It is insisted on behalf of the defendant, that the Commonwealth was bound to prove, by chemical analysis or microscopic test, that the substance which the witnesses saw and declared to be bloocl, was such, and that all evidence short of such analysis was insufficient and should have been withdrawn from the jury. The position is wholly untenable.’]
    “ The conflicting evidence upon this subject is for you. While I have not lost my faith in an educated eye-siglit, you will carefully consider what has been presented.

      “ [Yon are not bound to adopt the conclusions of one set of physicians rather than those of the other; neither does their disagreement necessarily raise a reasonable doubt. Yon can accept those which in your considerate judgment seem the most reasonable.]
    “ Stress has been laid upon the claim that no adequate motive has been shown to lead the defendant to commit the crime charged upon him. You have the right to take into account the question whether or not a motivo has appeared, but there is no burden upon the Commonwealth to establish an adequate motive for the alleged crime of defendant. [We cannot safely wander into such inquiries. What would be an impelling motive to one might he wholly inadequate to move another.]
    ££ The motive may be obscure, indeed, may not be fathomed, but the crime of murder may he proven, though the causes which may have moved the accused to commit the deed may remain inscrutable. [The Supreme Court of the state has said, £ the fact of murder being established, the inability to discover the motive does not disprove the crime;’] and again, £ when all the elements of crime are present, retribution cannot be avoided, because the motive lies hidden in the breast of him who only could disclose it.’
    “ The defendant has produced evidence of his general reputation for peace and good conduct among those who have known him during his past life. The effect of sucli evidence is not confined to doubtful cases. Evidence of good character, when proven to exist, is not a mere make-weight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence. A case may be so made out that no previous character, however good, can make it doubtful; but there may be cases in which evidence given against a person without character would amount to certainty, in which a high character would produce a reasonable doubt, or, indeed, actually outweigh evidence which might otherwise appear conclusive.
    “ [On the celebrated trial of Professor Webster, Chief Justice Shaw made use of this language, which I submit to your consideration : ! Where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things, and beyond common experience, it is so manifest that the offence, if perpetrated, must have been influenced by motives not frequently operating upon the human mind; that evidence of character, and of a man’s habitual conduct under common circumstances, must be considered far inferior to what it is in the instance of accusations of a lower grade.’]
    “ Such evidence is in truth £ a fact vai’ying greatly in value according to its nature, varying still more in value according to the proofs to which it is opposed,’ but it may of itself by the creation in your minds of a reasonable doubt of the existence or truthfulness of the criminating' evidence, cause you to acquit the defendant.
    ££ The weight of the evidence here and its influence in the case are for you. [You will decide whether the general reputation of defendant in his former place of residence has been shown to have been continued in later years, and whether, if that has not been shown to your satisfaction, you are authorized to assume that it has so continued in the absence of affirmative evidence.] You will of course see that the testimony upon this point receives proper consideration.....
    “ [Is there serious assertion by others than Dr. Dean that the long wounds on the face could have been made with a hatchet, as against the positive statements of two or more physicians that they could not have been made with such a weapon ?]
    “Were there blood and brain matter on the shovel? You have the fact as to the blood asserted by one observer and by two physicians, who saw the shovel when what was supposed to be brain matter on the back of the shovel was still wet. They say what they saw were not blood stains — using the word stain as Dr. Pollock used it, in its ordinary meaning — but coagula of blood, with its distinctive characteristics. Were they mistaken ? Was Dr. Shaw mistaken when he says he found what he believed to be human blood disks in the matter taken from the shovel ? Ordinarily, affirmative evidence is greatly better than negative, but it is not, if it is impossible that one who asserts a fact can know it to be true. Is such the case here ? [Does the negative testimony of Drs. Wood and McCann and others that they failed to find blood disks overcome the positive assertion of Dr. Shaw that lie did find them ?]
    “ ¡ The interrogative form in which I have made my suggestions is that customary in charges by the courts, and is designed to prevent any possible misconception. They indicate, merely, linos of thought, to which, in the judgment of the court, your inquiries should be directed, and are not intended to be exhaustive. Your good sense will have, doubtless, suggested these and others. Except as such suggestions they possess no other significance.].....
    “ [An acquittal or conviction upon perjured testimony involves no responsibility on the part of jurors if they do not know, nor have reason to believe it to be false.]”
    The defendant presented (in addition to a number of points which were answered generally in the foregoing portions of the charge), the following: — ■

      Í. The jury have the right to take into consideration the absence of all evidence of motive for the commission of the very high crime charged against the defendant; also the absence of all evidence of ill-will or previous quarrel. Answer. It is for you, to say whether there is or not an “ absence of all evidence of motive,” or “ of ill-will or previous quarrel.” If you so find, yon have the right, as I have already instructed you, to take it into consideration.
    Verdict, guilty of murder in the second degree. A motion for a new trial was, after argument, refused by the court, Dailey-, J., delivering an opinion, in which Stowe, P. J., and Collier, J., concurred.
    The prisoner was afterwards sentenced to pay the costs of prosecution and to undergo an imprisonment in the Penitentiary for the W esteni District of Pennsyl vania for the term of ten years.
    The prisoner, thereupon, took this writ of error, assigning for error, inter alia: («) The refusal to admit in evidence the testimony given by James Cox before the coroner’s inquest, as taken down by a short-liand writer, the witness being too ill to attend court, (i) The portion of the charge above given included in brackets, (e) Error in tho charge generally, “in directing the mind of the jury to the criminating evidence of the Commonwealth and omitting all reference to the material facts of the defence; in not presenting the defendant’s ease to the jury in that clear and impartial manner, in which he was entitled to have it considered; in not giving proper -weight to the defence; and in not adequately presenting it to the jury.” (d) In argumentatively putting interrogatories to the jury all tending to answer or dissipate the defence set up by the prisoner. (e) In not giving specific answers to all the points submitted by defendant’s counsel, and the answer to the seventh point.
    The case was twice argued in the Supreme Court.

      Thomas M. Marshall (with him JS. H. McOormicIc, W. D. Moore, and William Scott), for the plaintiff in error. —
    The stenographic record of Cox’s testimony at the coroner’s request should have been admitted. Cox was there examined as a witness for the Commonwealth in the presence of the accused. At the time of .the trial, the witness was ill and unable to attend. Under several British statutes, believed to be in force in Pennsylvania, as well as at common law, the coroner, as a high judicial officer, takes the evidence at his official inquest with fairness, “ whether against or in favor of the party charged : ” Stat. 3 Henry YII. cap. 1; 4 Edw. I. cap. 2; 1 & 2 Phil, and Mary; 2 & 3 Phil, and Mary; Robert’s Dig. p. 106. The question has been virtually decided in this state in Brown v. Commonwealth, 23 P. F. Smith 321, upon which we rely. The facts there are similar to this case, except that the examination was before a magistrate, and the witness was dead at the time of the trial; but these differences are shown by the opinion of Read, C. J., in that case to be immaterial. The reason of the rule is the same in case of sickness as of death; the former is as much the act of God as the latter. When the reason exists, the rule exists. The English authorities support the proposition that the testimony of witnesses taken before the coroner on inquests, may be read in evidence on a subsequent trial in court, where by the act of God the witness is unable to be present, whether by reason of death, sickness or inability to travel; and the rule is the same in civil and criminal cases: Powell on Evidence, *254; Rex v. Morly, 1 Levinz 180; 2 Keble 18, 19; Kelyng’s Rep. 55 ; 2 líale 284; 2 Hawkins P. C. 605. The rule is the same in Pennsylvania, and in the United States: Brown v. Commonwealth, supra; Emig v. Diehl, 26 P. F. Smith 359. We j>roved the accuracy of the written testimony by the short-hand writer, who took it down. The fact that he was not specially employed by the coroner is, in the absence of circumstances tending to impeach its accuracy, immaterial.
    The court erred in admitting the testimony' of the existence of stains of human blood on the shovel and on the coat of the accused. The testimony of all the experts except one was concurrent that under the circumstances human blood could not be distinguished from blood of other mammalia by any scientific test, much less by the naked eye. This is sustained by all the medical and scientific text-books: Taylor’s Med. Juris. 301; Beale, The Microscope in Medicine (Ed. 1878) 286, 267; 10 Cent. Law Jour. 181, 185; IVliart. & Stille Med. Juris. (3d Ed.) 755; "Woodman & Tidy, Forensic Medicine and Toxicology (Ed. 1S77) 516, 517; Amer. Monthly Microscopic Journal, Xpi'il 1880; Dalton’s Physiology (6th Ed.) 253. The court also erred in its comments in the charge on the scientific testimony, and in charging : “ I undertake to say that a jury-may, if satisfied of its truth, lawfully convict upon the proof of the existence of human blood by the testimony of unlearned observers.” This is a dangerous doctrine, where human life is at stake.
    The court further erred in that portion of its charge relating to motive; in argumentatively putting interrogatories to the jury; in depreciating and subordinating the circumstantial evidence in favor of the defendant’s theory that the killing took place at the river, and not at the stable : viz., the absence of all trace of blood at the stall or stable, where Gross swore the killing took place ; the finding of the hatchet, and also the cap and dinner bucket of the murdered boy at the river, in failing to notice the testimony of the surgeons that the wounds were such as could hardly have been made with a shovel, but could well have been made with a hatchet; and generally in failing to present the defendant’s case in a fair and impartial manner, while that of the Commonwealth was presented forcibly, the court even suggesting reconciliation of contradictions apparently irreconcilable with the truthfulness of Gross’s story. IV e ask the especial attention of this court to this case in view of the subsequent acquittal of Samuel Gisal on the same indictment, and on precisely the same evidence on behalf of the Commonwealth, except that the defence had the advantage of the presence and testimony of James Cox, the exclusion of whose testimony in our case is insisted on as grave error.

      M. Swarrtzvmlder (John S. Robb, District Attorney, with him), for the Commonwealth, defendant in error. —
    The testimony of Cox at the coroner’s inquest was properly rejected. It was not taken by or for the coroner, nor adopted nor certified by him. It was taken by a volunteer, as he stated, “ for whom it may concern.” At the inquest there was no accused — there was no accuser. The witnesses did not appear for either side, but in the interests of public justice. Hence, there was no opportunity for cross-examination, which is a test of the subsequent admissibility of depositions. An inquest is a common law proceeding by virtue of power vested in the coroner long before any statute. The British statutes referred to were passed not with reference to testimony taken at a coroner’s inquest being read at a subsequent trial of the prisoner, but they related to its being used for tbe “ bailment of tbe prisoner.” It is said that these statutes are substantially in force in Pennsylvania, but this cannot be so, as the parts of the statutes relating to bailment of the prisoner have been supplied by our own statutes, and other portions of the British statutes relate to matters which do not exist here, e. g., inquests in cases of rape, deodands, etc. The British statutes, if ever in force here, are now obsolete by non-user. The authorities relied on, both English and American, do not sustain the contention. In every case, the witness whose testimony given at the coroner’s inquest was admitted on a subsequent trial was dead. Although the resolution of the Judges, on the trial of Lord Morly, as reported in Kelynge, 53-55, was, that the testimony taken before the coroner of witnesses who were “ dead or unable to travel” could be read on the trial, yet it appears by the reports of the trial of Bromwich, as aiding and abetting Lord Morly, Levinz 180, and 2 Keble 19, that the witnesses referred to were dead. So, also, the witness was dead in Brown v. Commonwealth, 23 P. E. Smith, 325; and United States v. Macomb, 5 McLean 286. Emig v. Diehl, 26 P. F. Smith 359, was an ejectment, and clearly not in point. Such testimony of an absent sick witness has been refused even in a civil case: Harrison v. Blades, 3 Campbell 457. The extreme limit reached by any of the authorities is thus stated in Queen v. Scaife, 1 Moody & Rob. 551: “ If a witness is dead or insane, or where there is no probability of his ever being able to attend, or where he is kept away by the prisoner, his deposition, if properly taken, is admissible, but other absences are insufficient ground to admit the evidence.” See also, 1 Whart. on Evidence, § 179; Rex v. Savage, 5 Car. &P. 143; People v. Restell, 3 Hill 290 ; Regina v. Austin, 1 Dearsley Crown Cas. 612. If the rule, as contended for, governed in criminal cases, it would be a temptation to perjury before the coroner, there being no cross-examination, and to feigned sickness during the trial.
    It is charged that the court erred in admitting the evidence relating to blood stains, and in charging that such stains might be proved by other than chemical, microscopic or spectroscopic tests. This ruling follows the decision in Gaines v. Commonwealth, 14 "VYr. 319'; and if this were not so, what becomes of all the convictions, on this ground, before these modern scopes were invented ?
   Mr. Justice Mekour

delivered the opinion of the court, January 3d 1882.

All the specifications of error argued, were properly presented under a few heads, and will now be so considered. The first is to the rejection of the testimony given by James Cox before the coroner on the inquest. Oox was shown to be ill, and although convalescent at the time of the trial, yet unable to attend court.

It is undoubted law that the testimony of a deceased witness given on a former trial between the same parties in the same issue, and duly proved, is admissible in a civil case. The authorities are not in entire harmony as to the application of the same rule in criminal cases. The preponderance of authority is that the rule does so apply, if the witness be dead: 1 American Crim. Law, § 667; 1 Whart. Law of Ev. § 177; Commonwealth v. Richards, 18 Pick. 434; Crary v. Sprague, 12 Wend. 41; Brown v. Commonwealth, 23 P. F. Smith 321.

The witness Cox was not dead, nor was his sickness of a character imposing permanent disability. On the contrary, he was recovering from typhoid fever, so there was reason to suppose ho would be able to attend on some future day to which the trial may have been postponed. In civil cases, the recognized rule in this state, is to admit the testimony of a witness, unable to attend court, without regard to the permanency of his sickness ; yet we are not aware that the precise point has ever been decided by this court, in a criminal case. Under the rule declared in Harrison v. Blades, 3 Camp. 458; Jones v. Brewer, 4 Taun. 47, and Whart. Law of Evi. § 179, the evidence of a witness temporarily ill would be excluded in a criminal case. It however is not necessary to invoke that distinction in the present case. The action of the court rests on firmer ground. The hearing before the coroner was not between the 'parties to the issue in which the evidence was offered. No issue was there formed between the Commonwealth and the plaintiff in error. An inquiry there takes a broad range. It is not to ascertain the guilt of any particular person, but of every person that the evidence might implicate. No technical rules. restrict or control the admission of evidence. No cross-examination of witnesses is Lad. The coroner’s discretion marks the line where the evidence of a witness shall begin, and where it. shall end.

It was contended that the evidence should have been received under the British statutes, more especially under the 1 ,& 2 Phil. & Mary, and the construction given thereto.. Chapter 13, § 5, of that statute, does require the coroner in inquisitions finding murder or manslaughter, to put in writing the effect of the material evidence given to the jury before him, and to certify and return the same with the inquisition, thus making it a part of his judicial action. When so taken, certified and returned, and the witness be dead, the courts in England have held the evidence admissible. Our attention has not been called to any Pennsylvania authority giving such con struction to the statute. If, however, it were otherwise, the rule could not apply to this case, as the witness is still living. Other reasons exist for its exclusion. The testimony offered was not taken down by the coroner nor under his direction or supervision. Nor was it certified or returned by him with the inquisition. It was taken by a short-hand writer at the instance of some person not clearly disclosed by the evidence, and, as testified by the writer, for “ whomever it might concern.” It is further urged that the evidence should have been admitted under the ruling on the trial of Lord Morely, reported in Kelynge 53, 18 Chas. II. It was then resolved, that in case any of the witnesses which were examined before the coroner were dead or unable to travel, and oath made thereof, that then the examination of such witnesses might be read, the coroner first making oath that such examinations are the same which he took upon oath without any addition or alteration whatsoever.” This was the case in which Lord Morely and Bromwich wore indicted for the murder of Hastings. The former was tried by his peers before the Lord High Steward; the latter before the Court of King’s Bench; Levinz’s Reports, part 1, page 180, and again reported in 2 Keble, 19. In each case it is shown that the witnesses were dead when their testimony was offered. The admission of the evidence did not rest on any temporary disability, but on their death, and the sworn testimony of the coroner as to the correct taking of the evidence offered. As the testimony of Cox was in no manner proved by the coroner the present case does not come within those authorities under the broadest rule there indicated. Nor does the case of Brown v. Commonwealth make the evidence admissible. There the testimony of the witness was taken before a justice of the peace on a hearing wherein Brown was charged with the crime. He was present and represented by counsel. Full opportunity was thus given for cross-examination of the witness. The accused had “ met him face to face,” and the witness was dead when his evidence was offered on the trial. The evidence given by Cox was properly rejected.

Gross was the only witness who testified to having seen the accused commit the murder, although there was much other evidence tending to corroborate him. If Gross was believed, the guilt of the accused was established. It was therefore of vital importance to the accused to cast discredit on the testimony of this witness. Evidence was given which, if believed, was very proper for the jury to consider in determining the credit to be given to Gross. It consisted, in part, in showing that this testimony was contrary to his previous statements; that the number of cuts found on the head of the murdered boy proved the infliction of more blows than Gross swore were struck; that other evidence indicated lie could not have been killed in tho stable at the time and in tho manner testified to by Gross. All tho substantial contradictions to the evidence of Gross were fully, distinctly and fairly called to the attention of the jury, and they were well instructed in regard to believing that only which carried conviction to their minds.

It was further urged that no adequate motive was shown to induce the accused to commit the crime charged. The court well said the Commonwealth was not bound to establish an adequate motive for the alleged crime, and declared, in the words of this court, “ the fact of murder being established the inability to discover the motive does not disprove the crime.”

Tho fact that Hunter was murdered was unquestionably proved. The only contention was whether the accused committed the act. He gave evidence of a previous good reputation. The instructions of the court gave due weight to this evidence. It said, “ evidence of good character, when proven to exist, is not a mere make-weight thrown in to assist in the production of a result that would happen at all events, but it is positive evidence. A. case may be so made out that no previous character, however good, can make it doubtful; but there may be cases in which evidence given against a person without character would amount to certainty, in which a high character would produce a reasonable doubt, or indeed, actually outweigh evidence which might otherwise appear conclusive.” The learned judge then submitted for “their consideration” tho language of Chief Justice Shaw in the case of Professor Webster: “'Where it is a question of great and atrocious criminality, the commission of the act is so unusual, so out of the ordinary course of things, and beyond common experience, it is so manifest that the offense, if perpetrated, must have been influenced by motives not frequently operating on the human mind; that evidence of character, and of a man’s habitual conduct under common circumstances, must be considered far inferior to what it is in the instance of accusations of a lower grade.” After reading this, he added that such evidence “ may of itself, by the creation in your minds of a reasonable doubt of the existence or truthfulness of the criminating evidence, cause you to acquit the defendant.” We are not prepared to dissent from the doctrine declared by Chief Justice Shaw ; but qualified as it was by the court below the accused has no just cause of complaint.

Error is alleged in regard to the manner in which the court submitted the evidence proving the finding of human blood. Gross testified that tho murder was committed with a shovel. Stains or discolored spots were found on the shovel and also on the clothing of the accused. These were subjected to chemical analysis and microscopic examination by different experts. Some succeeded in finding well-defined blood corpuscles, indicating human blood, other's failed to find them. It was contended on the part of the accused that human blood could not be distinguished from that of many animals by any chemical test or scientific appliance. In answer to this, the court substantially said, if scientific research gave no such aid in the discovery of a heinous crime, it was deplorable. Nevertheless he charged that if the jury was satisfied of its truth, they might lawfully convict, upon proof of the existence of human blood, by the testimony of unlearned observers. The correctness of this view is fully sustained by Gaines v. Commonwealth, 14 Wright 319. That was a case of homicide, and the court below said to the jury, “We cannot instruct you that because no analysis had been made of the substance which the witnesses supposed to be blood, no chemical test, no microscopic examination, that you are therefore to reject the evidence as insufficient to show that it was blood. We feel it to be our duty to refer the question to you, and leave it for you to say whether the Commonwealth has satisfied you beyond a reasonable doubt that the spots seen by the witnesses were blood.” The correctness of that ruling was affirmed by this court.

The evidence on each side was sufficiently brought to the attention of the jury, and- the facts fairly commented upon. There was no error in presenting some of them in the form of questions. It was well calculated to present to their consideration the precise points in controversy. The facts were stated in a clear and impartial manner. The evidence of the experts and the positive and negative testimony of each was fairly contrasted. The contradictions and improbabilities of much of Gross’s evidence were fully stated.

It is not necessary to refer to the various assignments more in detail. We have examined all of them. The court very carefully and correctly instructed the jury that they were the judges of tire credibility of witnesses, and as to the weight they should give to the opinion of the court on questions of law. The case was well tried and with due regard to the rights of the accused. We find no error in the record.

Judgment affirmed, and it is ordered that the record be returned for due execution of the sentence.


source: Caselaw Access Project

author: Chief Justice Sharswood

license: Public Domain

text:
    Woods and McBroom to use, etc. versus The Pittsburgh, Cincinnati and St. Louis Railway Company.
    A. and B. contracted in 1855 with a railroad company to do certain work in the construction of the road for a sum certain, and executed the work in performance of their contract. In 1856 the railroad company executed a mortgage upon its road in contravention, of the provisions of the Act of January 21st 1843, Pamph. L. 367, forbidding any railroad company to execute a mortgage upon its road while debts incurred to contractors and laborers for the construction thereof remained unpaid. In 1857 A. and B. filed a bill in equity against the railroad company and obtained a decree for the amount due to them under their contract. In 1865 tlie mortgagee filed a bill to foreclose his mortgage. To this bill A. and B. were made defendants, it being set out in the bill that they claimed to have a lion or some interest in the road, the validity of which complainant denied. A. and B. wore served with process and appeared but failed to plead, whereupon a decree was entered against them pro confesso. Subsequently a decree was entered in the cause, declaring the mortgage a first lien, fixing the amount due thereon, directing payment of said amount by a time certain, and in default of such payment directing a sale of the road at which the purchaser should take a title free and discharged from all liens or incumbrances whatever. Default was made, and the road sold accordingly in 1867, and bought by the P., O. & St. L. R. Co. A. and B. having afterwards in 1878 issued a scire facias in accordance with the provisions of the act of April 4th 1862, § 1, Pamph. L. 235, to continue and revive the lien of their decree of 1857, to which scire facias the P., C. & St. L. R. Co. defended as torre tenant, Held, that the plaintiffs were under the circumstances to be held estopped by the decree in the foreclosure suit and proceedings thereon, and that the torre tenant was therefore entitled to judgment.
    November 1st 1881.
    Before Shaeswood, C. J.’, Mercur, Gordon, Tetinkey, Steerett, and Green, J J . Paxson, J., absent.
    Error to the Court of Common Pleas No. 2 of Allegheny county: Of October and November Term 1881, No. 80.
    Scire facias sur decree, by Hugh Woods and John McBroom to use, etc. against the Pittsburgh and Steubenville Railroad Company, with notice to Tbe Pittsburgh Cincinnati and St. Louis Railway Company, terre tenants. The scire facias was brought by virtue of the provisions of tlie Act of April 4th 1862, § 1, Pamph. L. 235.
    On the trial, before Kirkpatrick, J., the following facts appeared : — On May 12th 1855, Hugh Woods and John McBroom entered into an agreement with the chief engineer of the Pittsburgh and Steubenville Railroad Company, defendant, to finish a certain beading or drifting in a tunnel upon the line of the road of said company. They performed the work according to contract, and upon August 14th 1856, at a meeting of the board of directors of the railroad company their agreement with the engineer was ratified, it being resolved that they should be paid for the work $5,000 in cash and $1,650 in the capital stock of the railroad company.
    " On August 1st 1856 the railroad company executed a mortgage upon all its property and franchises to one Thomas McElrath in the sum of $1,000,000 in order to secure certain bonds of the said company that day issued in said amount. This mortgage was recorded October 20th 1856. It was executed in contravention of the Act or Besolution of January 21st 1843, Pamph. L. 367, which provides in substance that it shall not be lawful for any railroad company to execute a mortgage of its road while the debts incurred to contractors and laborers for the construction of the road remain impaid, so as to defeat, postpone, endanger or delay said creditors, without their written consent first had and obtained. Said Act or Besolution further provides that any mortgage executed in contravention of its provisions shall be null and void as against creditors as aforesaid.
    On July 14th 1857 "Woods and McBroom filed a bill in equity against the Pittsburgh and Steubenville Bailroad Company, wherein they averred their contract with the chief engineer of said company, their completion of the work under said contract, the ratification of said contract by the directors of said company and the resolution of said directors fixing the the compensation of complainants. The bill further averred that the amount of said compensation so fixed had not been paid complainants, and prayed for a decree ordering and directing such payment. A copy of this bill was served on the company defendant, and a rule to plead filed. Defendant, however, did not appear, and the bill was accordingly taken pro confesso. A decree was entered fixing the sum due from defendant to complainants at $8,890.93 in cash and $1,650 in the defendant’s capital stock, and it was ordered that that sum be paid to the complainants. This decree was entered January 5th 1858.
    In the year 1865 McElrath, as trustee for the various bondholders, filed a bill in equity against the Pittsburgh and Steubenville Bailroad Company to foreclose the mortgage held by him. To this bill Woods and McBroom were, inter alios, made parties defendant, the bill averring that said defendants “ allege themselves to have been contractors with the said Pittsburgh and Steubenville Bailroad Company for the construction of said work, and that in pursuance of said contract, they did some work towards the construction of said railroad, and claim some lien thereon or interest therein, of the nature of which the complainants are not advised, but which they do not admit to be valid, or that the same can in anywise affect the priority of lien of the said first mortgage or the rights of any of the holders of bonds thereby secured.”
    The bill prayed that the mortgage held by complainants be decreed a first lien on the railroad, that the amount due thereon be ascertained, that the Pittsburgh and Steubenville Railroad Company be decreed to pay whatever amount might thus be found due upon a day certain, and finally, that in default of such payment, it be decreed that the defendants, and all persons claiming under them, be absolutely barred and foreclosed of and from all right and equity of redemption in and to the said premises ; or that a decree bo entered directing the sale of the whole of the premises mortgaged or intended so to be, at such time and in such manner by such master or other officer or persons, and the purchase money thereof be paid or adjusted or settled as the court may direct, appoint and deem proper.
    Woods and McBroom were served with a subpoena and appeared in the cause, but being ruled to plead, answer or demur within a stipulated time, failed to do so. A decree pro confesso was accordingly entered against them.
    The other defendants filed answers in the cause, and the case -was referred to an examiner and master.
    Upon the coming in of the master’s report, the case was heard upon bill, answers and proofs, and also upon the said report, and a decree was entered that the mortgage of complainants constituted a first lien upon the mortgaged premises, that there was due thereon the sum of §865,234.06, that the railroad company defendant should pay said sum to defendant on January 10th 1867, or that in default of said payment all the property covered by the mortgage should be exposed at public sale and sold to the highest and best bidder, complainant McElrath to execute to the purchaser a good and sufficient deed therefor in fee simple, “ said purchaser to hold the same free and discharged from all lions or incumbrances whatever.” (See McElrath v. Pittsburgh and Steubenville Railroad Company, 5 P. F. Smith 192.)
    Default being made in the payment of the sum fixed by this decree at the time stipulated, the mortgaged premises were sold in the manner specified in the decree, and were bought by the Pittsburgh, Cincinnati and St. Louis Railway Company to which corporation McElrath executed a deed in fee simple. This deed was executed December 7th 1867.
    On February 2d 1878 Woods and McBroom, in accordance with the provisions of the Act of April 4th 1862, § 1, Pamph. L. 235, issued the present scire facias to revive and continue the lien of the decree entered in their favor January 5th 1858 against the Pittsburgh and Steubenville Railroad Company; the Pittsburgh, Cincinnati and St. Louis Railway Company, being notified as terre tenants, appeared and took defence.
    The court instructed the jury to find for plaintiffs, subject to the point reserved whether said plaintiffs were not estopped by the decree in the case of McElrath v. Pittsburgh and Steubenville Railroad Co., whereto they had been made parties defendant, and by the proceedings subsequent to said' decree, whereby the terre tenant had derived its title. Verdict accordingly. Subsequently the court entered judgment for the'terre tenant on the point reserved, non obstante veredicto, filing the following opinion:
    “ Unless concluded by the proceedings in the case of McElrath v. The Pittsburgh and Steubenville Railroad Company, 5 P. F. Smith 189, the plaintiffs are entitled to judgment in their favor.
    “ On examination of the pleadings in that case it is evident that the purpose of the bill in that case was not merely to obtain a decree of foreclosure on the mortgage held by the plaintiff, but, also, in the same action, to call in all the parties having or claiming to have liens on the road and franchises of the company, and have the rights of all parties determined before a sale should be ordered, so that bidders at the sale could know what they were purchasing, whether a road burdened with liens or a property free from incumbrances.
    “ We have no doubt that the court had jurisdiction and full power to determine these questions in that proceeding.
    “The judgment of the present plaintiffs had then been entered against the Pittsburgh and Steubenville Railroad Company, they were all made parties defendant to the bill, a decree pro confesso and a final decree was entered against them.
    “ The final decree declared that ‘ the mortgage was a first lien on the road. . . And further, that the purchasers under the mortgage should take the road free from all liens and incumbrances whatever.’
    “ Under this decree the present defendant or their vendors became purchasers.
    “Had the decree been that the judgment of Woods and McBroom was a valid subsisting lien prior to the mortgage, and that the purchaser under the mortgage should take subject thereto, the defendant could not thereafter have been heard in denial of the validity of that decree. \
    “ We are of the opinion that the decree referred to arid in evidence was a conclusive adjudication of the questions involved here.”
    Plaintiffs thereupon took this writ, assigning for error the entry of judgment for terre tenant non obstante veredicto.

      T. G. Lazear and S. A. MoOhmg (with whom was John G. MaeOonnell), for the plaintiffs in error. —
    Plaintiffs were not estopped by the decree in McElrath v. The Pittsburgh and Steubenville Itailroad Company, and the proceedings in pursuance thereof. By admitting the allegations of the bill as to the invalidity of their lien, they merely constituted those allegations evidence as against them : 1 Daniel’s Chan. Pr. 581. Moreover, they were not bound by the clause of the decree deciding McElrath’s mortgage to be a first lien. That clause must be construed with reference to the object of the bill itself, which was evidently to procure a foreclosure of the mortgage and effect a distribution of the proceeds of sale among the bondholders. This right Woods and. McBroom could not resist or gainsay, for their claim was protected by the Eesolution of 21st January 1843, and could in nowise be impaired or discharged by the sale under the mortgage, inasmuch as by the terms of the Eesolution, “ the mortgage was fraudulent, null and void as against such contractors.” They could make no claim therefor upon the proceeds of the sale, and hence, as to them, it was true, as alleged in the bill (and which was established as against them by the decree pro confesso), that their claim “ could in no wise affect the pi’iority of the lien of the said first mortgage or the rights of any of the holders of the bonds secured thereby.” If the mortgage was “ fraudulent, null and void as against them,” how could they be heard to object to any sale that might be made under it or to the application to it of the entire proceeds, so as to give it the effect of a first lien as regards such proceeds ? Byrod’s Appeal, 7 Casey 241; Fisher’s Appeal, 9 Casey 294 ; Hoffman’s Appeal, 8 Wright 95; Fisher r. Kurtz, 4 Casey 50.
    The decisions under the Eesolution of 1843, which, we maintain, make our claim perpetual as against mortgages and other transfers, until paid, are the following: Fox v. Seal, 22 Wallace 424; Tyrone and Clearfield E. E. Co. v. Jones, 29 P. F. Smith 60 ; Pennsylvania and Delaware K. E. Co. v. Leuffer, 3 Norris 168; Shamokin and Pottsville E. E. Co. v. Malone, 4 Norris 25 ; Pittsburgh, Cincinnati and St. Louis E. W. Co. v. Marshall, Ibid. 187.
    The portion of the decree providing that in case of sale the purchaser should take free of all liens, was unwarranted, and, as regards plaintiffs, an utter nullity.
    Plaintiffs were not properly joined as parties defendant: Michigan State Bank v. Gardiner, 3 Gray 308; Story’s Eq. Pleading. And therefore, though served with process, were not bound to defend, and are not concluded by the decree : Gihon v. Belleville White Lead, 3 Iialst. Ch. 531; Williamson v. Probasco, 4 lb. 571; Hogan v. Walker, 14 Howard 37; Jerome v. McCarter, 94 United States 735.
    If the decree would have been of no benefit to Woods and McBroom in the McElrath case, had they gone on and obtained one in their favor, they are not estopped by the decree actually entered in the case: Work v. Work, 2 Harris 319; Eisher v. Kurtz, 4 Casey 50.
    The other question in the case is whether the plaintiffs are entitled to recover for the stock equal with the cash portion of the decree. We maintain that, as the company did not deliver the stock according to their option, they must now pay its face value in money, and on this point we refer to 2 Parsons on Contracts 652; Roberts v. Beatty, 2 Penrose & Watts 63; Church v. Eeterow, Ibid. 301.

      Dalzell (with whom was Hampton), for defendant in error.
    —Plaintiffs were properly made parties to the bill in equity filed by McElrath: Story’s Eq. Pleading 193 ; Einley v. Bk. U. S., 11 Wheaton 304; Bishop of Winchester v. Beavor, 3 Yesey 315-317; Haines v. Beach, 3 Johns. Ch. 459; Bishop v. Paine, 11 Yesey 198; Mondey v. Mondey, 1 Yesey & Beam. 223 ; Coekes v. Sherman, 2 Ereeman 14; Sherman v. Cox, 3 Ch. Rep. 83 (46); Ensworth v. Lambert, 4 Johns. Ch. 604; McGown v. Yerks, 6 Johns. Ch. 450. And are therefore undoubtedly estopped by the decree in that cause and the proceedings thereon: Jerome v. McCarter, 94 United States, 735; Westeott v. Edmunds, 18 P. F. Smith 36; Taylor v. Cornelius, 10 P. F. Smith 198; Wilhelm’s Appeal, 29 P. E. Smith 120 ; Giffard v. Hort, 1 Sch. & Lef. 408.
    In P., C. & St. L. Ry. Co. v. Marshall, 4 Norris, a recovery was had upon a contractor’s claim, for the reason that not having been made a party to the McElrath proceeding he was not bound by it. The converse of the proposition must be true in this case. The plaintiffs, having been parties, are concluded by the decree.
   Chief Justice Sharswood

delivered the opinion of the court, January 2d 1882.

It is not to be questioned that the claim of the plaintiffs, as contractors of the Pittsburgh and Steubenville Railroad Company, under the resolution of the General Assembly of January 21st 1843, Pamph. L. 367, was paramount to the mortgage of McElrath under proceedings upon which the road was sold and the defendants claim title. The amount of their claim was ascertained by the decree of January 5th 1858, at least prima facie, though not conclusively as to McElrath, the mortgagee, who was not a party to it, though his mortgage was then in existence. It is clear also that if it had been paid in whole or in part when the decree of foreclosure and sale under the McElrath mortgage was made, the mortgagee and purchasers were entitled to the benefit of such payment.

It may also be that under the resolution no mere acquiescence or other acts in pais can operate as an estoppel. Nothing can avail but the written assent of the creditors to the mortgage first had and obtained: Shamokin Valley and Pottsville Railroad Co. v. Malone, 4 Norris 25. But it certainly cannot be maintained that there may not be an estoppel by matter of record. An adjudication at law or in equity against the claim of the contractor must be as conclusive against him as against any other claimant.

What then was the effect of the proceeding in this court upon the McElrath mortgage and the decree of sale thereunder? If the plaintiffs had not been made parties, their rights would have been entirely unaffected. But they were parties. The bill charged that “ they (Woods and McBroom) claimed to have a lien on the premises described in the mortgage, that they allege themselves to have been contractors with the said Pittsburgh and Steubenville Bailroad Company for the construction of said work, and that in pursuance of said contract they did some -work toward the construction of said railroad, and claim to have some lien or interest therein, of the nature of which the complainants are not advised but which they do not admit to be valid or that the same can in any wise affect the priority of lien of the said first mortgage or the rights of any of the holders of the bonds thereby secured.” The plaintiffs were thus distinctly called upon to come in and make known their claim, not as a lien merely on the fund to be produced by the sale, but some interest in the railroad. They were stated to be contractors for the building of the road, the holders, therefore, of a privileged claim — under the resolution of 1843 — something more than a lien, an interest in the road which could not be divested by a sale. The inference from all this uras too plain to be mistaken. It was not as mere holders of a lien which could come upon the fund, but as having an interest paramount to the mortgage, that they were summoned to appear and answer. The principal contention of the plaintiff here has been that there was no prayer in the bill that the road should be sold clear of all incumbrances. If these contractors had come in and established their claim, no such decree could have been made. The sale would have been necessarily subject to their claim. It might well be that the salo would not produce sufficient to pay them. The purchasers must then take cum onere. But no such contractors making defence, though summoned and appearing, the decree of sale could then properly be made, as it was clear of all incumbrances. If all that the bill sought was to ascertain who were lienholders to be paid from the proceeds, they were unnecessary parties. This they knew very well; they knew or ought to have known that they were made parties as having an interest in the road paramount to the mortgage. It is perfectly clear that the object and sole object in making them parties was to ascertain what claims the road would be subject to in the hands of the purchasers, so that bidders might know for what they were bidding. They appeared to the bill, they had the opportunity to prove their claim conclusively as against purchasers. They did not avail themselves of it. When ruled to plead, answer or demur, they suffered the bill to be taken pro confesso against them. What did this mean ? Surely that they had no such interest in the road as contractors as could be set up against the mortgage. They chose to adopt this course, and they must take the consequences. Generally, under a bill to foreclose a second mortgage, the first mortgagee is not a necessary, but he is a proper party, especially wherever a sale is prayed for, as it is certainly desirable that the proporty should bring a full and fair price, which cannot be, if there is any uncertainty as to what title the purchaser will take — free or incumbered: Story’s Eq. PI. §193; Jerome v. McCarter, 4 Otto 735. These plaintiffs, after suffering the bill to be taken pro confesso, for some reason best known to themselves, chose to go to sleep for eleven years, and then, when all the papers and vouchers of this long-dead-and-buried corporation are probably destroyed or lost, the witnesses dead or scattered to the four winds, so that payment of the claim before the decree could not be proved, they suddenly wake up and ask that the road in the hands of the purchasers should be made liable. It is a very stale claim, not to be favored, and ought not to succeed.

Judgment affirmed.

Gordon, J, dissents.


author: Mr. Justice Green

text:
    Phelps versus Pittsburgh, Cincinnati and St. Louis Railway Co.
    1. A parol contract of apprenticeship is not binding upon the parties thereto.
    2. In this Commonwealth, a contract of apprenticeship in order to be binding on the parties, must comply with all the requisites of the act of September 39th 1770, 1 Sm. L. 309. It must, therefore, be in writing signed and sealed by the parties thereto.
    3. In the Commonwealth of Ohio such contracts must also be by indenture signed and sealed by the parties thereto, otherwise they will not be deemed binding.

      November 2d 1881.
    Before Sharswood, O. J., Mercur, Gordon, Tbunkey, Steerett and Green, JJ. Paxson, J., absent.
    Error to the Court of Common Pleas, No. 2 of Allegheny county: Of October and November Term 1881, No. 146.
    This was an action by D. F. Phelps by his next friend Susan Phelps, against the Pittsburgh, Cincinnati and St. Louis Kailway Company, to recover damages for the breach of an alleged contract of apprenticeship. The narr., as amended, declared, in a single count . . . “ for that whereas the defendant, a corporation created under the laws of the states of Pennsylvania and Ohio, heretofore, to wit: on the —-day of-, a. d. 1876, at Dennison, Ohio, to wit, at the county aforesaid, entered into and made a certain contract in writing (to the court here shown), in and by which it was then and there agreed between the plaintiff and the defendant, that he, plaintiff, should be employed as an apprentice to the said defendant, and as such apprentice to be taught the art and trade of machinist in their shops at Dennison aforesaid, and serve therein for the term of three years from the first day of May, 1876, rendering good and faithful service in the premises during said term, in consideration of his being taught and permitted-to learn the art and mystery of said trade, the defendant agreeing to pay him for his services for and at the rate of 313 days in each year as follows, to wit: for the first year, ninety cents per day; for the second year, one dollar and ten cents per day, and for the third year, one dollar and and thirty-five cents per day, when and at the expiration of said term of three years, the plaintiff should be instructed in the said trade of machinist, and skilled therein as mechanics in that trade ordinarily are instructed and skilled, to wit, at the county aforesaid.” The narr. then averred that the defendant had, in August, 1877, unjustly “discharged the plaintiff from his said apprenticeship and employment, and prevented him from following said trade, and completing the learning thereof,” etc., and claimed damages in the sum of $10,000. Plea, non assumpsit, payment with leave, etc.
    On the trial, before Kirkpatrick, J., the plaintiff produced and offered in evidence this paper:—
    Office Master Mechanic, P., C. and St. L. Kailway.
    Dennison, Ohio, May 1st 1876.
    I, D. F. Phelps, eighteen years of age, do hereby agree to bind myself to serve the Pittsburgh, Cincinnati and St. Louis Kailway Company, as an apprentice, for the purpose of learning the machinist trade, for the term of three years from the date of this agreement. It being understood that for the 1st year of 313 days of said service I am to receive from the company 90 cents per day ; for the 2d year of 313 days, $1.10 per day; for the 3d year of 313 days, $1.35 per day.
    I further agree to forfeit to the said company the sum of fifty dollars ($50) should I leave their service before the expiration of the time above named. D. F. Phelps,
    Apprentice.
    Witness: Ross Kells, M. of M., Susan Phelps.
    W. A. Stone, Foreman,
    Geo. M. Burns, Time Keeper.
    [Indorsed: Agreement of D. F. Phelps, apprentice. May 1st 1876. Three years. 18 years of age. Machinist, occupation.]
    To be followed by evidence that the plaintiff went into the service of the company and served them faithfully in pursuance of this agreement until he was discharged without reasonable» cause.
    Objected to: (1) Because upon its face it constitutes no contract between plaintiff and defendant, the defendant not being party to the paper in any way, nor has contract accrued enforceable in this action, by virtue of the fact set out in the subsequent portion of the offer with respect to the action of the plaintiff in going into the service of the defendant company. (2) Because the paper varies materially from that declared upon in the narr., and is not relevant under the pleadings in this case. (3) That there is apparent on the face of the paper offered, a total want of consideration. (!) As incompetent and irrelevant. Objection sustained; exception.
    Plaintiff’s counsel then offered to prove by witnesses, “ that the company defendant, by their agents and servants at Dennison, employed the plaintiff and took him into their service as apprentice, on May 1st 1876, to serve them for three years at certain daily wages, counting three hundred and thirteen working days to the year, and that he entered into that service or apprenticeship under that' agreement, and served them for the space of one year and four months, at which time the superintendent, agent, and servant of the defendant, to wit, the same person, Ross Kells, who employed him for them, discharged him, plaintiff, without reasonable cause, or good grounds and excuse, when he was willing and anxious to fulfill his undertaking with them, and serve the whole term of three years. By ■reason of which he was deprived of the wages he could have earned, and the trade he should have learned during that time; and the profit he could have gained from that trade during his lifetime thereafter.” '
    Objected to, as incompetent and irrelevant. Objection sustained ; exception. ■

      Plaintiff’s counsel then offered to prove by the plaintiff that he served the defendant for a year at 90 cents a day, and four months at 81.10 per day — wages inadequate to pay him for his services, except that it be on the ground that he was to learn his trade and be apprenticed to them; and at the end of one year and four months, or thereabouts, he was discharged from their service, and was prevented from fulfilling his contract or agreement with them to serve during the balance of the second year and for the third year. And also offers paper to show that had he not been an apprentice, his wages would have been double the amount at least; and that he should have received, and shoidd now receive, double the amount at least of the money that by the contract with them he was to receive as an apprentice. For the purpose of showing that he (plaintiff) lias sustained an absolute damage at least of the amount of the difference between the amount he should have received and what is here indicated. _ That is, the full wages, discarding the agreement, as they have done.
    Objected to ; objection sustained; exception.
    The plaintiff’s counsel then, by leave of the court, filed a narr. in the common counts, and renewed the above offers, which were again objected to and excluded by the court.
    His Honor instructed the jury that, there being no competent testimony offered by the plaintiff, their verdict should be for the defendant. Verdict accordingly for the defendant, and judgment thereon. The plaintiff took this writ of error, assigning for error the exclusion of his offers of testimony as above set forth.

      A. M. Watson,, for the plaintiff in error. —
    Although the writing offered in evidence was not strictly an indenture of apprenticeship, it was admissible in evidence, under the common counts, to show a contract, enforceable by the plaintiff. It appeared on its face to be in the printed form in use by the defendants, and the execution of it by the heads of the department, in the company’s shop, signing as witnesses, was the mode usually adopted by the company in receiving apprentices. We should have been permitted to show an employment in fact, in pursuance of the contract ; in such case formal execution of the paper was unnecessary : Flannery v. Dechert, 1 Harris 507.

      Dalzdl {Hampton with him), for the defendant in error.—
    The narr. was on a contract of apprenticeship, the paper offered was not such a contract, under the statute law of Pensylvania, and it was therefore inadmissible. The paper was produced by the plaintiff, and no knowledge of it was brought home to the company. In the absence of such evidence, the fact that plaintiff actually entered the shops of defendant and received the same wages as are mentioned in the paper, does not help the plaintiff, for the action is not for services rendered, but for damages for failure of defendant to teach plaintiff the trade of a machinist. The paper lacked both mutuality and consideration, and will not support an action : Lees v. Whitcomb, 3 Car. & Payne 289.
   Mr. Justice Green

delivered the opinion of the court, November 21st 1881.

The cause of action in this case is an alleged contract of apprenticeship. The plaintiff is the minor, and the defendant corporation, is claimed to be the master. The affidavit of claim sets forth an article of agreement, dated May 1st 1876, by which the plaintiff .claims to have bound himself as an apprentice to the defendant “ for the purpose of learning the machinist trade,” for the term of three years from the date of the agreement, and annexes a copy of the agreement; and further avers that the plaintiff entered the service of the defendant as an apprentice, and continued therein for some time, when he was discharged without cause, and claims ten thousand dollars damages for breach of the agreement by the defendant'. The narr. counts upon a contract in'writing, “ that the plaintiff should be employed as an apprentice to the said defendant, and as such apprentice to be taught the art and trade of machinist in their shops at Dennison,” rendering good and faithful service “in consideration of his being taught and permitted to learn the art and mystery of said trade.” Throughout the entire narr. the contract is described exclusively as a contract of apprenticeship, and the breach alleged is a refusal “ to allow the plaintiff to continue longer to work as an apprentice,” and “ to complete and finish said apprenticeship,” thereby “ preventing plaintiff from acquiring and learning said trade of machinist.” He claims ten thousand nine hundred dollars damages as the reasonable value of the trade as machinist, of which he was deprived and of the sum he might have made had he been permitted to learn the said trade according to the agreement.

There was no claim for wages for the services rendered by the plaintiff during the time he was at work.

In this state of the pleadings the plaintiff offered in evidence the written paper declared upon, and, that being rejected, made offers of verbal testimony to prove a contract of apprenticeship of the same tenor, and a similar breach, and to prove that the wages agreed to be paid for the actual service rendered were inadequate, “ except it be upon the ground that he was to learn his trade and be apprenticed ” to the defendant. These offers, also, were rejected, and the action of the court in refusing them constitutes the subject-matter of the several assignments of error.

We are clearly of opinion that the learned judge of the court below was right in refusing to receive the testimony offered. The contract of apprenticeship is special and peculiar. Being made by a minor with an employer, who is sui juris, it is in this state regulated by statute, so as to make it obligatory. In order to produce this result the statutory requirements must be complied with. These are to be found in our Act of 29th September 1770, Purd. Dig. p. 72, pl. 4. The characteristics of the engagement are thus indicated by the statute : “ All and every person, or persons, that shall be bound by indenture to serve as an apprentice in any art, mystery, occupation or labor, with the assent of his or her parent, guardian or next friend, although such persons, or any of them, were, or shall be, within the age of twenty-one years at the time of making their several indentures, shall be bound to serve the time,” &c.

There must be a binding by indenture, the service must be that of an apprentice, and in some art, mystery, occupation or labor; and the contract must have the assent of a parent, guardian or next friend, or, by another act, of two or more magistrates when the contract is made by overseers of the poor. All these features are essential to the creation of a valid contract of apprenticeship. Thus, in Respublica v. Keppele, 2 Dall. 197, it was held that an indenture “to serve ” only, and not to learn any trade, occupation or labor was not valid, either at common law or under any statute. In Guthrie v. Murphy, 4 Watts 80, it was held that an indenture executed without the consent of the minor’s guardian was void, and no action could be sustained upon it, even for necessaries furnished by the master to the minor who had left his service before the term expired. To the same effect is Commonwealth v. Vanlear, 1 S. & R. 248.

The contract itself must be an indenture, and this has been held, both in England and in this state, to import an obligation under seal. In Iieeves’ Domestic Delations 484, the doctrine is thus stated : “ Apprentices are persons bound to a master to learn some art or trade. . . . An apprentice to be holden must be bound by deed. ... It would seem that an apprenticeship by parol, so far as it lays any obligation on the contracting parties, is utterly void. It will not amount to a hiring by the year, which may be by parol: 8 T. R. 374. That an apprentice cannot be bound, unless retained as such in a deed, is ascertained by the doctrine of the books. ■

Wood on Master and Servant 53 : “ There is no question but that in this country, as well as in England, in order to constitute a valid contract of apprenticeship, which can be enforced as such either at common law or under the statutes, the contract must not only be in writing, but must also be by deed or indenture, as the statute provides, otherwise the relation of master and apprentice, in its usual or legal sense, does not exist.”

In the case of Commonwealth v. Wilbank, 10 S. & R. 416, the very point was before this court, and it was held that although the contract was in writing and signed by both parties, yet as it was without seal, it was invalid as an indenture of apprenticeship. On p. 417 the court say: “ On inspecting the writing, which is called an indenture, it appears to be subscribed by the parties, but not under seal. This is the only objection, so that the single question is, whether there can be a binding, by writing without seal, under the act of 29th Septembef 1770. ... I will not say that the word indenture in its largest sense might not comprehend a writing indented though not under seal. But certain it is, that when an indenture is' spoken of, and particularly an indenture of apprenticeship, an instrument under seal is generally understood. It was said by Holt, O. J., in the case of the Queen v. Callingwood, 2 Ld. Raym. 1117, that an apprentice cannot be bound without deed. And the law is so laid down in Burn. Inst, title Apprentice p. 37, and 1 Salk. 68. It might be fairly inferred, therefore, that our Act of Assembly required a deed, from the sense in which the word indenture was usually taken. But we are not left without explanation from other parts of the Act, in which the covenants, both of the master and the apprentice, are several times spoken of, which could not be without deed. The binding of apprentices is a matter of importance, and the forms prescribed by law should be preserved, as they give solemnity to the transaction. It is the opinion of the court, that a writing without seal, is not an indenture within the meaning of the Act of Assembly. This being the case, the writing now produced is not a valid indenture.”

In the case now before us the writing in question has attached to it the signatures, “ I). F. Phelps, Apprentice,” and “ Susan Phelps.” To neither of these signatures is any seal appended. There is no execution by the defendant in any manner whatever. Neither the corporate seal, nor its name, is appended, nor that of any officer or person in its behalf. The paper itself is produced by the plaintiff, and it does not appear that any copy of it was ever in the possession of the defendant. On its face it only purports to be a declaration by the plaintiff that he agrees to bind himself to serve the defendant as an apprentice for the purpose of learning the machinist trade, upon certain terms as to payment. There are no covenants or stipulations of any kind on the part of the defendant. We are clearly of opinion that in no point of view can this paper bo sustained as a contract of apprenticeship, either under the Pennsylvania statute or at common law.

The case was not presented to us by the learned counsel for the plaintiff in error as any other than a Pennsylvania contract. The paper itself though dated at Dennison, Ohio, does not mention any place at which the service as apprentice was to be performed. Put inasmuch, as, in the narr., the place at which the contract was made is mentioned as “ Dennison Ohio,” and in other portions of the narr., “Dennison” is referred to as “ Dennison aforesaid,” though the contract is not declared upon as an Ohio contract or to be governed by the law of that state, we have looked at the Ohio statutes to see if they contain any provisions respecting contracts of apprenticeship. We find in the He vised Statutes of Ohio (ed. 1860), vol. 1, p. 76, an act passed March 8th 1831, entitled “Anact concerning apprentices and servants,” containing numerous and elaborate details.

Section 1 provides as follows: “ That any male person within the age of twenty-one or female person within the age of eighteen yeai's, may be bound until they arrive at those ages respectively, or for any shorter period, to serve, as a clerk, apprentice or servant, in manner herein provided.”

Section 2 provides for the binding of destitute children by township trustees.

Section 3 is in the following words: “ That the indenture or covenant of service shall be signed and sealed by the father ; or, in case of the death or inability of the father, by the mother or guardian ; or, in case of an orphan or destitute child, by the trustees of the township, of the one part, and by the master or mistress, of the other part.”

Then follow, in the subsequent sections, many and strict details of the matters which shall be contained in the indentures, and, especially, of covenants on the part of the master or mistress for the instruction and maintenance of the apprentice, also for the recording of the indentures, and for the hearing and trial of complaints by the apprentice against the master and by the master against the apprentice.

So far as any question in the present case is concerned, this statute is much moro precise, minute and stringent in its provisions, than our Act of 1770. Especially, it requires that the contract shall ho by indenture, which shall be signed and sealed by both parties to it.

It follows that whether the contract be considered as governed by the law of Ohio or Pennsylvania, it must be both, signed and sealed by the parties, and as it lacks these requisites it is invalid as a contract of apprenticeship.

Judgment affirmed.

Shaeswood, O. J., and Tkunkey, J., dissent.

Steeeett, J., concurs in the judgment, but dissents from the reasons given in support thereof.