author: Thompson, C. J.

text:
    Grant versus The Commonwealth.
    1. Under the Act of February 15th 1870, allowing writs of error as of right in cases of homicide, the Supreme Court will not consider the case as on a motion for a new trial.
    2. On a motion for a new trial the court considers the testimony on both sides, and judges whether the jury have given undue weight to either side under all the circumstances of the case as presented to them.
    3. The duty of the Supreme Court under the act is to see whether there was evidence which if believed by the jury would furnish the elements of murder in the first degree.

      4. If there be in the evidence ingredients to constitute murder in the first degree, the power of the Supreme Court as to awarding a new trial ceases.
    5. Under the Act of 1870, errors alleged to any portion of the charge or rulings on evidence can be brought before the Supreme Court only by bill of exception as in eivil cases: and the court cannot reverse unless the exception be taken at the trial.
    6. In this respect the Act of 1870 does not alter or supply the Criminal Code of March 31st 1860.
    7. The Act of 1870 dispenses with a bill of exceptions only so far as to ascertain whether the facts constitute murder in the first degree.
    8. Hopkins v. Commonwealth, 14 Wright 9, followed; Schoeppe v. Commonwealth, 15 P. F. Smith 51, remarked on.
    May 27th 1872.
    (At Harrisburg.) Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Oyer and Terminer of Chester county: (Eastern District.) Of July Term, 1872.
    George Grant was, at the October Sessions of the Court of Oyer and Terminer of Chester county, indicted for the murder of Amanda R. Spence.
    The trial was had November 1st 1871, before Butler, P. J., and his associates.
    On the 5th of October 1871, between 8 and 9 o’clock in the evening, Mrs. Spence went from her kitchen into her yard; shortly afterwards the report of a firearm was heard and persons going out found her lying by the door dead, with three gunshot wounds on her, sufficient to cause death. It was conceded on the trial by all parties that she had been wilfully murdered. The only question raised on the trial was whether George Grant, the defendant, had perpetrated the crime.
    Much evidence was given by the Commonwealth to show that Grant was the murderer. Amongst other evidence, witnesses for the Commonwealth under objection and exception testified as follows:—
    James Spence: “ I saw George Grant after the murder in front of saloon; some one spoke upand said: ‘ they .have arrested Burrell;’ he remained ten or fifteen minutes; he stayed in all the evening; he said to me,1 if you need any assistance call on me;’ he seemed uneasy, and was walking about: he stayed off and on all night; George Grant married my cousin; mother raised her; I remember one time George was in jail and his wife was sick, and had a child born, and mother took her home, and interfered to prevent her returning to him; it was between ten and eleven o’clock; it was stated in Grant’s presence that Burrell was arrested.”
    On cross-examination witness said: “ It was three, or four, or five years ago, that mother wanted his wife to leave him; she didn’t leave him; he came in the shop sometimes.”
    Eliza Davis: “ I saw Grant the night of the murder; I was standing on the street near the mansion-house; he was going down towards where his wife lives; I stood there several minutes ; I remained until it struck eight o’clock, and as I passed up towards Smith’s store soon after Grant passed me, talking to himself; swinging his hat in his hand, gnashing his teeth and said, ‘ the damn black bitch, I’ll match her before to-morrow morning’s sunrise,.’ and called nobody’s name ; he was going north; it had struck eight o’clock, but was not much after; I went to Henry S. Evans’s and stayed, probably, three-quarters of an hour; he was talking about Mrs. Spence two years ago; he was talking to my mother-in-law ; he said he married Mrs. Spence’s niece, but the damned old bitch is always trying to put disturbance in her head, and persuade her not to come back to me, and that he intended to kill her; that he had watched for one night, and it was so cold that he froze his feet; I said, the next time you may freeze yourself to death; he said he didn’t care a damn where his soul went, he intended to kill her; I said if ever this happens I will tell the truth; he said he would kill her and didn’t care what they did with him; my mother-in-law and sister-in-law were present; both are dead; Isaac came in during the time.”
    On cross-examination witness said: “ He commenced by saying there was a misunderstanding between him and his wife, and that Mrs. Spence took it up; Grant passed close to me.”
    Isaac Davis: “ About two years ago I went to my mother’s, and found my wife, mother and sister there, and I heard George Grant say he would kill her or shoot her; can’t say whether he mentioned Mrs. Spence’s name or not; but it was mentioned; the conversation was in progress when I came in; I was in but five or ten minutes; my brother-in-law was up stairs and I went up ; my wife came to Henry S. Evans’s between half-past eight and nine o’clock; the clock struck nine while she was there; it was the same night of the murder.”
    The decision of this case by the Supreme Court involved the construction of the Act of February 15th 1870 (Pamph. L. 16, 1 Br. Purd. 610, pi. 38, 39), as to the extent to which the Supreme Court may review and pass upon the evidence in cases of homicide. It is therefore necessary to present most of the charge to the jury; this, with the opinion of the Supreme Court, contains a synopsis of the evidence and will sufficiently exhibit the case.
    Judge Butler charged: * * *
    “ But who did perpetrate the murder ? This is the grave question which the case presents. No one, save the perpetrator himself, witnessed it; and. there is, therefore, no direct or positive evidence to be appealed to.. Indeed where wilful and deliberate murder— contemplated for any considerable time beforehand — is committed, it rarely occurs that direct or positive proof, in respect to it, exists. Perpetrated, as such murder usually is, by lying in wait for the victim, or by means of poison, the only evidence in relation to it must commonly be found in the circumstanc.es attending it. And this character of testimony is found, as well by experience, as by reason, to be little, if any, less satisfactory and certain than direct or positive evidence. Where the circumstances relied upon are properly established, and the inferences arising from each one, and from all of them combined, point naturally and unequivocally in one direction, there is no greater danger in following them to their conclusion, than attends .all human investigation. That we may err in such cases is possible — but so we may where the evidence is direct or positive — the circumstances may, possibly, mislead,'but so may the eyes, or the ears, or the dishonesty of witnesses.
    “ Turning again to the evidence, we find Mrs. Spence at the door, dead. We find wounds upon her body apparently made by rifle or pistol balls; we also find the balls; and without more, none of us hesitate to draw the inference that she was killed by a firearm of some description; but this is rendered, if possible, more conclusive by the circumstance that the report of a firearm was heard immediately before. Thus is one fact established.
    “ Then, upon examination of the ground in the vicinity, a firearm is found, half hidden in the grass and shrubbery, within a few feet of where' she lay. It is extraordinary in its character, apparently an army rifle or musket cut down in the barrel and stock, capable of receiving and sustaining a heavy charge. It is empty, and, as the witnesses say, appears to have been recently discharged— burned powder is in the muzzle, and an exploded cap, still bright, is on the tube. These circumstances, considered with the fact that the report heard was extraordinarily loud, that three balls were discharged, and one driven entirely through the body, do not leave the mind in doubt that it was with this firearm the crime was committed. The prisoner’s counsel admit this to be so.
    “ Then, whose firearm was this, and who left it in the yard ?
    “ One witness tells us that he sold it to the prisoner, some years ago, that he is familiar with it, and knows this to be the same. Other witnesses tell us that they have seen it, from time to time, in his possession. One of them says he identifies it by the cutting out of the groove made for the ramrod, and the tacks in the end of the stock. If this testimony is believed — and it is not contradicted or impeached — it cannot be doubted that this firearm, with which the crime was committed, belonged to the prisoner.
    “ This of itself, however, would be insufficient to warrant the conclusion that he used it on the occasion in question. It might excite strong suspicion — pointing in the direction, as it does, of his guilt — but standing alone would be too uncertain to justify conviction.
    “ Upon further examination of the ground where Mrs. Spence lay, a piece of calico is found, as the witnesses inform us. It is blackened, and has upon it the odor of gunpowder. 'You will judge whether this was, or was not, the wadding used in the charge with which she was killed. Other pieces of calico, of similar pattern and manufacture, are produced, which the witnesses inform us were found in the prisoner’s house, the day following the murder, some of them in a drawer with balls and percussion caps. From this latter circumstance the Commonwealth asks you to infer that the charge with which Mrs. Spence was killed was placed in the pistol at the prisoner’s house, or from his ammunition. It is in evidence, however, that goods of the same pattern and material as the supposed wad, are sold from one of the stores of this town. You will judge whether it is safe to infer that the pistol was loaded at the prisoner’s house or from his ammunition. This question does not, however, strike us as of very great importance, inasmuch as, if the ammunition is found to have been his, the case of the Commonwealth is not advanced by it a step beyond the point to which the inference arising from his ownership of the pistol has carried us. The inference from this fact — the ownership of the pistol (if it were his), — as we have before remarked, would of itself be insufficient to warrant the conclusion that he used it on the occasion of the murder. And the result would be the same if t.he ammunition with which it was loaded, was also shown to be his. He might have parted with the possession of the pistol, as he alleges, shortly previous to the commission of the crime (and if he did so it would be as likely to be loaded with his ammunition as not). Still, as we have before observed, the inference from his ownership would be strongly against him, exciting suspicion and calling for explanation. The prisoner evidently saw and felt this to be so; and therefore'declared, when before the magistrate, Mr. Hibbard, the day after the murder, that he had parted with his pistol three weeks before that time — that he lost it on the Fair ground. If this explanation is untrue, it adds greatly to the force of the inference against him. Is it untrue ? One witness, Spriggs, tells you that he saw the pistol in the prisoner’s possession on the 25th of September, ten days only before the murder. Another witness, Proctor, tells you that he saw it in his possession on the 29th of September, within six days of the murder. These witnesses speak positively, say they know the weapon and that they are not mistaken in regard to it; telling you how they fix the time, 'one of them by the opening of the Normal School, and the other by the Agricultural Fair. If these witnesses are believed, his explanation with regard to the pistol, was untrue. If this is so, as we have before suggested, it adds materially to the presumption of guilt arising from his ownership of the pistol.
    “ But now a witness is called, Rebecca J. Price, who testifies that she saw the pistol in his possession on the very night of the murder, within less than an hour of the time when it was committed. If this is true you cannot fail to see and feel its importance. It advances the Commonwealth’s case another, and a long stride. If Mrs. Spence was killed with this weapon, and if it is shown, not only that it is his, but that it was in his hands so immediately before the killing occurred, can he, without some explanation of how he parted with it between that time and the murder, escape the inference that he used it on this occasion ? We repeat, if the pistol was then in his hands, and carried out with him, as Mrs. Price declares, and Mrs. Spence was murdered with it so directly thereafter, can he without explanation, escape the conclusion that he committed the murder ? You will judge.
    “ But was it in his hands at the time referred to ? One witness only testifies to having seen him with it. Several saw him at the bureau doing something — they know not what. None of them saw, as they declare, his left hand, or what was in it, at the time. Two of them went out on an errand, and he left before they returned. It was after they had gone out, Mrs. Price says, that he turned toward her with the pistol in his left hand. Her son was there, but he says he was engaged in reading, and did not observe the prisoner turn around.
    “ Mrs. Price testifies, positively — says she saw the pistol distinctly, that she made an exclamation in consequence of it, and he dropped his hand, — that he turned his face again from her, appeared to place the pistol in his pocket, drew his coat around him, and went out. Can this witness be relied upon ? Her veracity has been attacked, and witnesses called to testify that her character for truthfulness is not good. On the other hand a number of persons were called, who testify that they never heard her character for veracity questioned. Some of these persons further say that several of the witnesses who testified against her are themselves of bad character for truth, and unworthy of belief. You will judge whether she has been successfully impeached. If she has not, and you discover no motive in her to falsify, you will be warranted in believing her. If you find she has been successfully impeached, then you should not believe her, unless you find her to be corroborated by other testimony.' As we have seen, three other witnesses testify that the prisoner was at the bureau, engaged as she describes; that they did not see his left hand; that.two of them were out on a.n errand, and that the third was engaged in reading, and says he did not observe the prisoner when he turned around.
    “ But on the cover of the bureau, where the prisoner had been engaged, several witnesses testify that a black mark was left, and that none was there when he went to it. And this mark, they say, was made by gunpowder. They tell you their reasons for saying so — some that they saw the grains, and knew them to be powder; and one, Mr. Miles, that he tasted it, and thus also ascertained it to be powder. If this was powder, left by the prisoner on the bureau cover, you will judge whether it does not corroborate the statement of Mrs. Price, wherein she says he had the pistol there at the time she describes. You will thus determine whether Mrs. Price is to be believed, and whether the prisoner had the pistol in his hands at the time referred to — just before the murder was committed.
    “ Next, a witness appears who tells us that Mrs. Spence had been spending the evening with her. That she, the witness, accompanied her out of the alley to the street; that it was soon after eight o’clock; that Mrs. Spence started on and directly came back; and that from what she said the witness particularly observed a man, who had been standing at Mr. Shaw’s stable-shed, that he passed on when Mrs. Spence came back ; that as he approached the light of the corner lamp, she could see that he had on a bluejacket, or blouse of bluish color; that she saw the prisoner the next day, and that he, and his jacket, resembled the man and the jacket she had seen the night before; and that the man she saw the night before was going north, towards the Eagle tavern. This description of clothing, and attempt at identification, we do not esteem important.
    “ Next, a witness tells us that he is employed at Taylor’s livery stable, on the west side of the street, running north, between Shaw’s place and the Eagle hotel; that soon after eight o’clock fihe prisoner passed him at the stable, going north; that they addressed each other, and that he, the witness, saw the prisoner turn at the Eagle, and pass up Gay street, westward, by Spence’s and on in the direction of the Green Tree.
    “ Then Eliza Davis testifies that the prisoner passed her further west and south, soon after eight o’clock, talking to himself, with his hat swinging in his hand; and that she heard him say : £ The damn black bitch, I’ll match her before to-morrow morning’s sun.’
    ££ The time fixed by these witnesses, you will observe, was shortly before the crime was committed.
    ££ That they should be inaccurate as to the exact time, is very probable ; it is a guess, made by such data as they had. It was after dark and before the murder, or before the witnesses had heard of it; beyond this most of them cannot be certain. These witnesses, if believed, show the movements and expressions of the prisoner jnst before the crime was committed. You will judge to what extent they harmonize with the other facts, before remarked upon, and whether they tend to connect the prisoner with the crime.
    “ Next, evidence is produced to satisfy you that the prisoner for a long time has entertained vindictive and malicious feelings towards the deceased. You will determine how far this has been successful. He is married to her niece. She advised his wife, as is said, to separate from him. Mrs. Davis says she heard him declare some two years ago that he would kill her for it, repeating the expression, and declaring that he was regardless of the consequences. Isaac Davis says he came in when the prisoner was talking at the time, and heard him use threats, but did not know to whom he alluded. One witness was called to impeach the veracity of Mrs. Davis, and two called to sustain it. You will say whether she is reliable. It appears that since the time of which Mrs. Davis and her husband speak, the prisoner has repeatedly visited the saloon of the deceased, and been waited upon by her, but that he did not visit her dwelling, and that they were not social. You will say what weight this evidence should receive, and whether it shows vindictive feeling, or motive for the crime.
    “ That some motive for the crime, or disposition to commit it, should appear is important. It must be borne in mind, however, that where murder is committed, the motive which induces it, frequently, if not generally, appears, to a properly constituted mind, greatly inadequate. The murderer, who commits the crime in cola blood, is cruel, ferocious, without ordinary conscience, belongs to the lowest class of human creatures, and is moved to the commission of his crime by considerations and causes that would offer no temptation, and present no motive, to ordinary men.
    “ The counsel on both sides have appealed to the defendant’s appearance and conduct on the night of the murder,' after its commission. The Commonwealth, as tending to show guilt, and the prisoner, as evidence of innocence. We will leave this with the comments which the counsel have made upon it, simply observing that we do not esteem it of so much importance as either side would seem to attach to it. Men are so differently constituted in mind and heart, that while one, after the commission of crime, will fly, another will stand his ground; that while one will be overcome with alarm and remorse, and shun the presence of his victim, another will wear a brazen front, exhibit no concern, and mingle with those whom his conduct has excited and collected.
    “ Thus we have called your attention to the train of circumstances on which the Commonwealth relies, so far as they have seemed to us to be important.

      “ First — to recapitulate — that the murder was committed by a firearm.
    “ Second — by the firearm found in the yard and produced here.
    “ Third — that this firearm belonged to the prisoner; and further that it was seen in his hands, if the Commonwealth’s evidence can be relied upon, within less than an hour of the commission of the crime, without any attempt at explanation upon his part of how he parted with it between that time and the murder.
    “ Fourth — that he lied, if the Commonwealth’s witnesses are believed, in attempting to create the belief that he had lost his pistol some three weeks before the murder.
    “Fifth — that the prisoner’s feelings towards Mrs. Spence, as the Commonwealth asserts, were vindictive and malicious, and that he had threatened her life.
    “ Such is the case upon which the Commonwealth asks for a conviction.
    “ The prisoner’s counsel, as you have observed, urge that this case is insufficiently made out; and too uncertain to justify a finding of guilty. ■ And they further rely upon an alibi; claiming that the evidence shows the prisoner to have been down about Rebecca Price’s, and in that vicinity, at the time the murder was committed; and that he, therefore, could not have committed it.
    “ Does the evidence show this ?
    “ It would seem to be reasonably clear that he was at Mrs. Price’s, or in that vicinity, at about fifteen minutes before nine o’clock. A number of witnesses speak of his coming there as the train arrived; and the officers upon the train testify that it arrived at fifteen minutes to nine. From this time, it is also clear, that the prisoner did not go to Spence’s until after the murder. But does it appear that the murder did not take place earlier than fifteen minutes to nine ? Does it appear with certainty at what precise moment it did occur ? If not, this point, raised for the prisoner, fails. Hoopes Matlack, it is true, says he had his watch in his hand, when he heard the shot, and that it marked ten minutes to nine o’clock.
    “Is this reliable — the honesty of the witness is beyond all question — was the watch correct ? This was five minutes after the train had arrived; and yet Mr. Snare says that he walked immediately from the train to Gay street, some two or three squares, and there saw the crowd at Spence’s, and learned that the murder had been committed. Was or was not this more than ten minutes before nine, the time named by Mr. Matlack? Would it require five minutes to walk the two or three squares ? But the crowd was then collected; the deceased had been carried into the house and the doctor was standing by, holding her arm, as the witness thinks. How long before this had the crime been committed? Dr. Massey says he walked from below the Eagle hotel after he heard the shot, found her on the ground, examined her slightly outside, and had her carried in, as soon as he could find persons to do it. How long did this consume ? She was inside, and the doctor was there, apparently examining her again when Mr. Snare arrived, directly from the train.
    “ Now, is it or is it not reasonable to believe that she was shot before the train arrived? Dr. Massey further says he left his' patient at half-past eight o’clock by his watch; had walked half a square when he heard the shot, and he, therefore, testifies that the shot was fired a little after half-past eight. This would be before the arrival of the train. Can you then find that the crime was not committed until the train arrived — fifteen minutes before nine — when the prisoner was seen down about Price’s. If not, this point made for the prisoner fails.
    “ If you find that the crime was committed so late as the defendant’s counsel alleges, when the prisoner was down about Price’s, then you will, of course, find that he did not commit it.
    “ If you find the defendant guilty, you must determine the grade of his crime.
    “ In Pennsylvania the legislature, considering the difference in guilt, where a deliberate intention to kill exists, and where no such deliberate intent appears, has distinguished murder into two degrees — murder of the first, and murder of the second degree — and required the jury, trying the accused, if it finds him guilty, to ascertain and find by their verdict whether it be murder of the first, or murder of the second degree.
    “ And further provided that ‘ all murder which shall be perpetrated by means of poison, or lying in wait, * * or by any other kind of wilful, deliberate and premeditated killing, shall be deemed murder in the first degree; and all other kinds of murder shall be deemed murder of the second degree.’
    “Then, if the defendant is guilty, is it of murder,of the first, or murder of the second, degree ?
    “ We have seen that where the crime is committed by lying in wait, it is murder of the first degree.
    “ Did' the individual who murdered Mrs. Spence ‘ lie in wait ’ for her ? What is the plain inference ?
    “If he did, the offence is murder in the first degree. But, as we have seen, all other wilful, deliberate and premeditated killing is also murder in the first degree. So that if the individual who committed this crime did not watch and wait for Mrs. Spence, is it not plain that the killing was wilful, deliberate.and premeditated? The manner in which she was killed — after night, clandestinely, the deadly character of the weapon used — would seem to leave no room for doubt of this. In our judgment the crime committed was murder of the first degree.
    “ Still, we repeat, this question is for you alone to determine. And if you convict the prisoner you must say whether it is of murder in the first or murder of the second -degree.
    “ In conclusion, we urge upon you, in passing upon the case, to bear in mind its importance. To the prisoner it involves everything of earthly desire — life itself. You will, therefore, give to the facts not only their most reasonable construction, but also their most charitable and merciful construction. And if, when thus considered, they fail to satisfy you of his guilt, you will acquit him, regardless of all consequences. And he is entitled to the benefit of every reasonable doubt.” [The court here explained the meaning of the term “reasonable doubt.”]
    “ If, on the other hand, the facts satisfy your minds of his guilt, you must convict him. In such case no consideration of pity or mercy can influence you. To listen to such suggestions would be more than a mistake — it would be a crime against society. With the consequences which may attend conviction, you have nothing to do — they rest upon others. Following the pathway of the evidence, you can turn neither to the right nor the left, but must accept the conclusion to which the facts lead — as well by your duty to the public, as by the solemn oaths and affirmations pronounced by you on entering the jury-box. If you entertain views unfavorable to capital punishment, you must disregard them here — remembering that it is not the jury, but the law that inflicts the punishment. The jury does not pronounce the sentence which condemns to death, but simply determines whether the prisoner has committed the crime.
    “ You will now take the case, and forgetting everything but the law, the evidence, and your duty, you will pass judgment between the Commonwealth and the prisoner.”
    The jury, on the 4th of November 1871, returned a verdict against the defendant of “ Guilty of murder in the first degree.”
    A rule to show cause why a new trial should not be granted, was discharged January 31st 1872, and the prisoner sentenced to be hanged.
    He removed the record to the Supreme Court and assigned the following errors—
    1. The Court erred in saying to the jury, “ does it appear with certainty at what precise moment it (the murder) did occur ? if not, the alibi relied upon by the prisoner fails.”
    2. The Commonwealth failed to show any motive for the commission of the crime.
    3. The Court erred in allowing declarations of the prisoner made two years ago, to be given in evidence to show a motive.
    4. The President Judge left the bench while the court was in session, and during the progress 'of the trial.
    5. The evidence fails to prove the guilt of the prisoner, and he should have been acquitted.

      W. Strickland, Jr., and W. B. Waddell, for plaintiff in error.
    6r. B. Smith, District Attorney, for the Commonwealth.
    July 3d 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

The plaintiff in error in this case was indicted and convicted in the court below, of the crime of murder in killing one Amanda E. Spence, by shooting her, and his case has been brought up for review under the provisions of the Act of Assembly of the 15th February 1870. The act allows a writ of error as of right “in all cases of murder and voluntary manslaughter,” and defines our duty to be “ to review both the law .and the evidence, and to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist; and if not so proved, then to reverse the judgment, and send the same back for a new trial, or to enter such judgment as the laws of this Commonwealth require.”

We have listened to the able and zealous argument of the prisoner’s counsel as if on a motion for a new trial; we could find no fault with that, for it in fact was a method of showing that the ingredients of murder in the first degree had not been proved. But our duty under the Act is widely different. A court on hearing a motion for a new trial, judges of the action of the jury on the testimony on both sides, and considers whether too much or too little weight has been given to features for the whole of the testimony in view of its intrinsic character; the manner in which it has been given by the witnesses, their apparent bias, intelligence or want of it, and character. All this has been before and under the eye of the court, and they can say on a calm reconsideration of it all, whether justice does, or does not, require a new trial. This court cannot do this, and the Act of Assembly does not contemplate any such thing. Our duty is to see whether there was evidence given in the case, which, if believed by the jury, would furnish the elements, or “ ingredients,” as the act says, of murder in the first degree, under our statutes on the subject, viz.: the corpus delicti, either “killing by poison, lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape, robbery or burglary.” To this extent is the duty devolved on this court of reviewing the facts in cases of convictions for murder in the first degree, by the Act of 1870. It goes no further towards enabling it to grant new trials. If there have appeared in the testimony the ingredients to constitute murder in the first degree, our power ceases. Whether the jury should or should not have believed and relied on it, is what this court cannot • examine into. That must be inquired of on a motion for a new trial in the court below, as formerly.

We have examined the testimony given in this case as returned by the learned judge below, and in our opinion it discloses every ingredient necessary under the law, to constitute murder in the first degree, and to connect the prisoner with the performance of the wicked deed. That the jury believed the evidence is conclusively shown by their verdict. We do not mean to recapitulate it minutely. The corpus delicti was clearly shown, and not controverted by the prisoner. The life of the deceased was taken by shooting her at or near her own kitchen-door, in the night time, and the instrument of death was a peculiar sort of firearm or pistol, constructed out of an army rifle, and was found lying near the body. The ownership of the pistol was traced to the prisoner, and testimony was given to show that he picked or scraped, and capped the nipple, that evening shortly before the murder; that there was an old grudge in the mind of the prisoner towards the deceased; that he was heard' to express threats that evening that he was going to commit violence on some one while walking rapidly towards the house of the murdered woman, and shortly afterwards the sound of a firearm was heard in that direction by the neighbors. There was testimony to raise an inference that he was in the lot at the back of the kitchen, for dock burrs, such as grew there were proved to have been picked from his clothes a very short time after the killing of Mrs. Spence took place. There was also proof that marks on the weeds and grass by the fence near the kitchen-door, indicated that some one had lain there that night, at least for a time, for some purpose or other. There was proof also, that the prisoner alleged after arrest, or about that time, that he had not the pistol in his possession on that evening, that he had lost it some weeks before. It was a peculiar weapon, and the witness who swore she saw it on his person on j;he evening when he was doing something with it at her .bureau, said she knew it well, and had seen it often before. It was exhibited without denial or objection on the argument before us, and I can safely say, that any person who had once seen it would have no difficulty in recognising it on seeing it again: The testimony of this witness was distinct that the prisoner had it the evening of the murder and before she heard the shot. ' It was further proved that the wad discharged from the pistol and picked up where Mrs. Spence fell, was identical with a piece of calico found on the bureau in the prisoner’s house, in the top' drawer of which were balls and caps suitable for loading the pistol in question. This was.evidence, although there may have been hundreds of yards of the same material for sale in the town. The firearm and the ammunition in so close proximity to it, gave consequence to the kind of wadding shown in his possession. But our duty is done when we find in the testimony proof of the ingredients of murder in the first degree; this we unhesitatingly do. Whether it was right or wrong for the jury to believe it, and disbelieve tbe prisoner’s theory of his actions on the occasion, was for the jury, and it was all presented to them in a clear, impartial, and intelligible manner by the learned judge, and their finding afterwards approved by him on a motion for a new trial.

The assignment of error to the portion of the charge quoted, discloses no error whatever, and needs no argument to vindicate the remark made.

But we are of opinion that when error is alleged to any portion of the charge of the court, or ruling on points of evidence or points of law in a case like this, it cannot be brought to the notice of this court otherwise than by bill of exception, as in civil cases: See §§ 57, 58, Act of 31st March 1860; Hopkins v. The Commonwealth, 14 Wright 9. The Act of 1870 does not alter or supply the law in this respect, and this court has no other means of knowing that objection was made in time, or at all, but by this means. In favorem vitce we may look at errors ineffectively assigned, but as we said in the case just referred to, we cannot reverse unless the exception be taken on the trial. So far as to ascertain whether the facts bring a conviction within the act defining murder in the first degree, the act dispenses with the bill of exceptions, but it does not dispense with it in questions raised on the trial. We expressed ourselves in regard to the loose and insufficient character of the Act of 1870 in the case of Schoeppe v. The Commonwealth, 15 P. F. Smith 51; but our remarks do not seem to have attracted the attention of the General Assembly, as they should have done, and we must administer the act as best we may, to make it consist with the certainty of procedure in other cases brought for review to this court.

There is nothing further for us to say in this case, than that the sentence of the court below upon the prisoner is affirmed.


source: Caselaw Access Project

author: Read, J.

license: Public Domain

text:
    First National Bank of Mount Joy versus Gish’s Assignees.
    1. By arrangement with a hank and with the knowledge of S., a note for $6000, at sixty days, drawn hy B. in favor of S. and endorsed hy him, was discounted for B. on condition that $1000 should remain to be paid on the note when due. About the time of the discount B. gave his check for $1000 to the cashier; it was not charged to his account. Shortly after B. made an assignment and was subsequently adjudged a bankrupt. Held, that the transaction reduced the liability of S. to $5000, as if the note had been given for that sum.
    2. The transaction was not obnoxious to the bankrupt laws, as preferring an antecedent debt.
    3. It was not a fraud of the usury laws of Pennsylvania, the penalty being only of the excess of interest.
    4. It was not in fraud of the National Bank law, the penalty for usurious contracts being a forfeiture of the interest only.
    5. B. drew a check on the bank before his assignment, which was not presented until after: Held,, not to be an appropriation to the payee; the amount remaining in bank passed to B.’s assignees.
    May 9th 1872.
    Before Thompson, C. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of Lancaster county: Of May Term 1872, No. 59.
    This was an action of assumpsit commenced May 14th 1870, by W. A. Wilson and John C. Gingrich, assignees in bankruptcy of John B. Gish, against The First National Bank of Mount Joy, to recover the sum of $1260, which was on deposit with defendant to the credit of John B. Gish, when he became bankrupt.
    The facts were undisputed and are these :—

      Shortly before March 28d 1869, John B. Gish -wrote to Andrew Gerber, the defendant’s cashier, inquiring whether the bank would discount for him a note for $6000, with the endorsement of John S. Gish.
    The cashier informed him by letter that the note would be discounted if he would let $1000 of the proceeds remain in the bank to be appropriated to the note when it became due at the end of sixty days; this letter was shown to John S. Gish. The note, dated March 23d 1869, was then drawn to John S. Gish as payee, endorsed by him, discounted by the defendant, and the proceeds, $6936, passed to the credit of John S. Gish. On the 26th of March, John S. Gish drew his check for $5936, in favor of John B. Gish; of this check he received all but $2500.32, which were , passed to his credit on the books of the bank. In pursuance of the arrangement with the bank in relation to discounting his note, he on the same day drew a check as follows:—
    “ Mount Joy, March 26th 1869.
    First National Bank of Mount Joy:
    Pay to Andrew Gerber, Cashier, on account of my note discounted in bank, or bearer, one thousand dollars.
    John B. Gish.”
    The check was delivered to the cashier, but was not charged to John B. Gish’s account, and still remained in the bank. On the 27th of March 1869, John B. Gish drew a cheek on the defendant in favor of Jacob Overholfcer or order for $260. Up to the 3d of April 1869, John B. Gish had drawn from the bank all the proceeds of the note except $1260. On that day he made an assignment for the benefit of his creditors to Philip Oldweiler. The check to Overholzer having become the property of Samuel Ely, was presented for payment on the 5th of April, and payment refused. On the 28th of April 1869, proceedings in bankruptcy were commenced against John B. Gish; on the 5th of May he was adjudged a bankrupt, and the plaintiffs appointed his assignees. John B. Gish was insolvent when the note was drawn.
    On the 7th of December 1871, on the application of John S, Gish and Samuel Ely, the court allowed them to intervene as defendants.
    The court, Hayes, J., charged:—
    * * * “ The bankrupt law is. essentially a law of equality ; a law of equal distribution of the bankrupt’s effects among all his creditors without preference to any. And any device or scheme to defeat such a distribution, within four months previous to the bankruptcy, is void.
    “[With respect to the arrangement proposed by Andrew Gerber, and agreed to by John B. Gish, to which John S. Gish was privy, as his son showed Mr. Gerber’s letter to him when ho endorsed the paper, I am of opinion that it was a violation of the law of the state, as well as the bankrupt law, and the Act of Congress relative to the National Banks; that it was in fraud of the law, and that John S. Gish would be precluded thereby from any preference as to the one thousand dollars; the bank does not claim it, and there is no evidence that John S. Gish has demanded it of the bank. We think this sum must be paid over to the assignees of John B. Gish under the bankrupt law, because .we are of opinion that the check of John B. Gish to Andrew Gerber, cashier, of the 26th of March 1869, was no appropriation of the $1000 to his father, John S. Gish, and that the said sum remained as a deposit of John B. Gish and his voluntary assignee up to the time of his bankruptcy.]
    “ [As to the $260, the check for that amount was not presented at the bank for payment until the 5th day of April, when it was refused. On the 3d of April, John B. Gish had made his voluntary assignment to Philip Oldweiler, when, as he said, he knew he was insolvent, and from the very small dividend which his creditors have received, it is manifest he was desperately insolvent. By that assignment all his property passed from him and amongst the rest these $260. His check, therefore, presented not until the 5th of April and then refused, cannot be regarded as an appropriation of this sum; and the consequence is this sum also remained still the property of John B. Gish until his assignment, and then vested in his assignee, and subsequently passed to the assignees in bankruptcy.]
    “ [Then, as there was no appropriation of these sums, they belong to the plaintiffs, who are the assignees in bankruptcy of John B. Gish, for the general benefit of all his creditors, equally and without preference, and the verdict of the jury should be for the plaintiffs for the whole amount.]”
    The verdict was for the plaintiffs for $1479.48. The defendants removed the record to the Supreme Court, and in three specifications assigned the charge as included in brackets for error.

      W. W. Brown (with whom were Gf. M. Kline and A. Herr Smith), for plaintiffs in error.
    — If the contract as to the $1000 were usurious it was valid as to all but the excess of six per cent, interest: Campbell v. Sloan, 12 P. F. Smith 481; Act of May 28th 1858, sects. 1, 2, Pamph. L. 622, 1 Br. Purd. 803, pl. 1, 2. The arrangement was not a preference to John S. Gish nor a payment of an antecedent debt, but of a debt then created. The National Bank Act of Congress, June 3d 1864, sect. 30, 2 Br. U. S. Digest 58; where excessive interest is reserved works a forfeiture of the interest only. The delivery of the $1000 check to Gerber was an appropriation of that amount: Greenfield’s Estate, 12 Harris 232; Nesmith v. Drum, 8 W. & S. 9; Chase v. Petroleum Bank, 16 P. F. Smith 169.

      W. A. Wilson (with whom were S. H. Reynolds and JD. W. Patterson), for defendants in error,
    referred to Act of Assembly of May 28th 1858, and Act of Congress of June 3d 1864, supra. The consideration for the discounting the note was illegal, and no obligation could arise on it: 1 Parsons on Contracts 458; Bartlett v. Vinor, Carthew 252; Mitchell v. Smith, 1 Binn. 118; Seidenbender v. Charles, 4 S. & R. 151; Columbia Bank v. Haldeman, 7 W. & S. 233. The payment by an insolvent, before maturity, of an endorsed note is a preference to the endorser, and obnoxious to the bankrupt law: Ahl v. Thomer, 3 Bankrupt Reg. 29. This transaction was not in the usual course of business, but for the purpose of obtaining usurious interest: Perry v. Langley, 1 Bankrupt Reg. 155. The check indicated no fund on which it was drawn, and therefore was no appropriation: Lloyd v. McCaffrey, 10 Wright 410; Greenfield’s Estate, 12 Harris 232. As soon as the assignment was made the amount to the credit of John B. Gish in the bank became the property of his creditors: Lunt v. Bank of N. America, 49 Barbour 227.
    May 30th 1872,
   The opinion of the court was delivered, by

Read, J.

— John B. Gish, a grain dealer, doing business at Elizabethtown, Lancaster county, addressed a letter to Andrew Gerber, cashier of the First National Bank of Mount Joy, asking for a discount of anote of six thousand dollars, with John S. Gish, his father, as endorser. The bank agreed to discount the paper offered, if John B. Gish would leave in bank one thousand dollars of it, to be appropriated to the reduction or payment of the note at maturity. The letter of the cashier communicating this to John B. Gish was shown to John S. Gish, and he assented to the arrangement and endorsed a note for six thousand dollars, drawn by John B. Gish to the order of John S. Gish, payable at the First National Bank of Mount Joy sixty days after date. This note was discounted by the bank on the 23d March 1869, and the net proceeds $5936 passed to the credit of John S. Gish, and on the 26th of the same month John B. Gish presented the check of John S. Gish to the bank for that sum, when the same was transferred on the books of the bank to the credit of John B. Gish, who on the same day drew his check on said bank as follows :—

“ Mount Joy, March 26th 1869.
First National Bank of Mount Joy
Pay to Andrew Gerber, Cashier, on account of my note discounted, or bearer, one thousand dollars. John B. Gish.”

This check is in the handwriting of Andrew Gerber, the cashier of the bank, and was immediately handed to and retained by him, and still remains in bank.

After paying some indebtedness to the bank and the payment of several checks drawn by him, there remained in bank the $1000 and $260, on the 3d April 1869, when John B. Gish made a voluntary deed of assignment of his estate for the benefit of his creditors, and on the 28th April 1869, a petition was presented to the District Court of the United States for the Eastern District of Pennsylvania, in pursuance of which he was on the 5th May following, adjudicated an involuntary bankrupt, and the plaintiffs were in July following appointed his assignees in bankruptcy, and the voluntary assignee, Philip Oldweiler, by the directions of the United States court, assigned and transferred to them all the estate of the said bankrupt, which had vested in him by virtue of the voluntary assignment of the 3d of April.

On the 27th March 1869, John B. Gish drew a check in favor of Jacob Overholzer for $260, who transferred it to Samuel Eby, who presented it at the bank for payment on the 5th April 1869, when payment was refused. The plaintiffs claim these two sums of $1000 and $260.

With regard to the first sum, the court were of opinion that the arrangement proposed by Andrew Gerber and agreed to by John B. Gish, and to which John S. Gish was privy, “was a violation of the law of the state as well as the bankrupt law, and the Act of Congress relative to the national banks; that it was in fraud on the law, and that John S. Gish would be precluded thereby from any preference, as to the one thousand dollars.”

Our Act of 25th May 1858, was clearly not violated, for it permits the contract for and payment of more than six per cent., which the borrower or debtor alone can reduce to the lawful rate of interest. The 30th section of the Act of Congress of 3d June 1864, establishing a system of national banks, forfeits only the interest, but does not affect the principal; neither of these laws therefore support the opinion of the learned judge.

Nor is the case covered by the 35th section of the Bankrupt Act of 2d March 1867, rendering “the giving a preference to any creditor or person having a claim against him or who is under any liability for him,” by any of the means pointed out in the section, and the means employed void.

There was clearly no antecedent debt or liability. It was all one transaction, the effect of which was to reduce the original liability of John S. Gish to five thousand dollars, as clearly as if the note had been drawn for that sum only.

This disposes of the claim for the one thousand dollars; but the learned judge was right as to the check for $260, presented two days after the general assignment, and which therefore the plaintiffs were entitled to recover.

Judgment reversed and venire de novo awarded, unless the plaintiff remits so much of the verdict as consists of the $1000 with its interest.


text:
    Lewis’s Executors versus Barry.
    1. Herr, a citizen of Pennsylvania, owning real estate there and in Maryland, made in Maryland an assignment for creditors to Barry of all his estate, with preferences; the next day being advised that it was void as to the Pennsylvania estate, he made an assignment there to Lewis, reciting the first; this was recorded immediately; the first was not recorded within thirty days. Lewis received the rents and sold the real estate in Pennsylvania: Held, that the deed to him passed nothing, and Barry was entitled to the balance in his hands.
    2. The Barry deed passed all Herr's real estate in Pennsylvania for the benefit of creditors without preferences.
    3. As to creditors both assignments were void; the land could be sold under judgments against Herr.
    4. The proceeds of sale in Lewis’s hands represented the real estate, and Barry claiming and receiving it validated the sale by Lewis.
    5. The money received by Barry from Lewis was to be distributed according to the laws of Pennsylvania.
    May 9th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of York county: No. 62, of May Term 1872.
    This was an action of assumpsit, brought to April Term 1870, •of the Common Pleas of York county, by Llewellyn E. Barry, assignee of John Herr, against Mary J. Lewis and Horace Bonham and Rebecca E. his wife, the said Mary and Rebecca being executors, &c., of Eli Lewis. There were no pleadings in the case, but on the 9th of June 1871, a case stated was filed, showing the following facts :—
    John Herr, a resident of York county, Pennsylvania, and owning real estate both in Maryland and in York county, on the 2d of April 1857, in Baltimore executed a deed of assignment for the benefit of his creditors, to Llewellyn Barry, the plaintiff; the deed contained preferences to certain creditors named in it; it was recorded the same day in Baltimore. Barry and Herr came to York the same day for the purpose of recording the deed there, but were advised by Herr’s counsel that the deed was void under the laws of Pennsylvania. Herr, by the advice of his counsel and against the adviee and wishes of Barry, on the 3d of April executed to Eli Lewis a deed of assignment of his real estate in York county, for the benefit of all his creditors. The deed contained this recital:—
    “Whereas, John Herr, of the borough of York, county of York, and state of Pennsylvamia, on the second day of April, eighteen hundred and fifty-seven, by deed of that date, sold and conveyed unto Llewellyn E. Barry, of the city of Baltimore and state of Maryland, all his property, real, personal and mixed, according to the laws of the said state of Maryland, and in trust for the creditors of the said John Herr: And whereas, the said John Herr is the owner of certain real estate in the state of Pennsylvania upon which the said deed of conveyance already made is not to operate.”
    This deed was recorded in York county on the same day; the deed to Barry was not recorded in Pennsylvania within thirty days.
    Barry proceeded in Maryland under the deed to him, and legal proceedings were commenced in that state to test the validity of the deed. Lewis also acted under the deed to him, and on the 24th of August 1857, filed an inventory of the personal and real estate of Herr in York county, amounting to $15,950, of which but $98 were of personal property.
    On the 5th of February 1862, the Columbia Bank commenced an action against Herr, as endorser of a note held by the bank, and on the 8d of March recovered judgment against him for $6438.33. Under this judgment the real estate contained in Lewis’s inventory was on the 16 th of August 1862, sold to Y. K. Keesey, Esq.
    Lewis received the rents and profits of the York county real estate, from the date of the assignment until August 25th 1862.
    On the 8th of September 1862, the judgment of the Columbia Bank was assigned to Mr. Keesey; who on the 5th of February 1863, issued an attachment execution on it, attaching all the goods and effects, money, &c., of Herr, rents, &c., of his real estate in the hands of Lewis.
    On the 13th of March 1863, Lewis, as assignee, petitioned the Court of Common Pleas, setting forth the deeds to Barry and himself, the pendency of the suits in Maryland to test the validity of' the deed to Barry, the sale of the real estate in York county by the sheriff, and asking instructions from the court as to a sale by himself of the same real estate. The court made the following decree.
    “ March 16th 1863, as the trust mentioned in the petition was constituted for the purpose of paying the creditors of the said assignor, and as it is no part of the duty of the trustee to litigate the title, the court order the trustee, Eli Lewis, Esq., to proceed with the sale already advertised to be held this day (Friday), and sell the real estate assigned if practicable.”
    Lewis thereupon sold the real estate to Elizabeth Herr in two lots, for $2000.
    On the 9th of February 1864, Lewis as garnishee, pleaded “nulla Iona” to the attachment, and on the’ 10th of February, judgment was taken in the attachment against John Herr, Mr $6132.65. On the 16th of April 1864, a case was stated in the attachment between the plaintiff and Lewis, the garnishee, the decision of which would determine whether Lewis took anything under deed of assignment from Herr to him. The Court of Common Pleas, Fisher, P. J., decided that nothing passed to Lewis, and entered judgment as follows :—
    “ July l;t 1864, the court enter judgment for the plaintiff for the use of Y. K. Keesey, Esq., against Eli Lewis, garnishee, under the case stated for the sum of $2178.76, to be levied of the moneys in the hands of'the said Eli Lewis, received as rent of the property of John Herr, with the interest and accretions thereon ; and court grant leave to the plaintiff to issue legal process for the collection of the same according to the form in use, as if judgment had been rendered for the proper and private debt of the said garnishee, and upon making payment as aforesaid, the said Eli Lewis be thereupon discharged for the said sums so attached and levied of the debts and moneys in his hands.”
    On the 6th of August 1864, Lewis paid to the plaintiff in the attachment, $2178.76, the amount of the judgment. On the same day he filed an account as assignee, in which he charged himself with the rents of the real estate and interest on the money received by him, the proceeds of the real estate sold by him and profit on investments of the funds of the estate; the whole amounted to $4865.88. He took credit for the amount of the judgment in the attachment paid by him and the expenses of managing the trust, showing in his hands a balance of $2019.33. The York County Bank, a creditor of Herr, filed exceptions to his account.
    The Court of Appeals in Maryland afterwards decided that the • deed to Barry was valid under the laws of that state, and it was recorded in York county on the 9th of May 1866.
    Lewis died May 4th 1867, having made a will of which he appointed the two female defendants the executors.
    On the 8th of December 1869, the exceptions to Lewis’s account as assignee were dismissed and the account confirmed absolutely.
    It was agreed under the facts as follows:—
    1. If the court should be of opinion that the plaintiff-is entitled to recover from the defendants the entire amount of the assets of the said John Herr, as shown by the inventory, &c., judgment to be entered in favor of the said plaintiff, for the sum of $15,950, with interest as hereinafter mentioned.
    2. But if the court should be of the opinion that the plaintiff is entitled to recover the amount from the defendants, actually received by and charged on the debit side of the account filed by said Eli Lewis, without deduction of costs, charges and the amount of the attachments and judgments paid by him, as above stated, then judgment to be entered in favor of said plaintiff for the sum of $4865.88, with interest as hereinafter mentioned.
    3. But if the court should be of the opinion that the said plaintiff is entitled to recover from said defendants the balance on the account filed by the said Eli Lewis, on the 6th of August 1864, then judgment to be entered in favor of the plaintiff, against the defendants for the sum of $2019.33, with interest as hereinafter mentioned.
    4. But if the court should be of the opinion that the plaintiff • is not entitled, upon the facts stated, to recover any amount from the defendants, then judgment to be entered for the defendants.
    In either case, costs to follow the judgment, and if for the ■plaintiff, interest to be allowed, from such date as the court may think right.
    March 4th 1872, the court entered judgment for the plaintiff for $2019.33, with interest from the 17th of January 1865, allowing three months to put out the money to interest after the date of filing exceptions to the account of the trustee.
    The defendants took a writ of error and assigned for error:—
    1. The court erred in entering judgment for the plaintiff for $2019.33.
    2. The court erred in not entering judgment in favor of defendants on the case stated.
    3. The court erred in charging interest against the defendants in the case stated, from January 17th 1865.

      Cochran and Say, for plaintiffs in error. —
    The assignment to Barry, executed and delivered in Maryland, did not operate on the real estate of Herr in Pennsylvania : Wharton’s Conflict of Laws, sect. 275; Osborn v. Adams, 18 Pick. 245; Loving v. Pairo, 10 Iowa 282. If Barry’s deed divested Herr of the title to the real estate, Lewis took nothing, and all his acts amount to nothing as to it. His deed to Mrs. Herr passed no title; the real estate may be recovered from her: Adams v. Humes, 9 Watts 305: and the proceeds therefore should be repaid to her. The assignee selling must make a good title or notify the vendee that he sells only what the assignor had: White v. Foljambe, 11 Vesey 345; McDonald v. Hanson, 12 Id. 277; Perry on Trusts, sect. 774. The fund in controversy is wholly from real estate, and lex situs governs: Speed v. May, 5 Harris 91. Our Acts of March 24th 1818, sect. 5, 7 Sm. L. 122, 1 Br. Purd. 92 pl. 7; March 18th 1775, sect. 1, 1 Sm. L. 442, 1 Br. Purd. 472, pl. 76, govern Barry’s deed. If Barry succeeds, Pennsylvania creditors will take subject to the preferences in his deed: Dent’s Appeal, 10 Harris 514; Parker’s Appeal, 11 P. F. Smith 478. As to interest they cited Hoopes v. Brinton, 8 Watts 73; Dieterick v. Heft, 5 Barr 87; Yoder’s Appeal, 9 Wright 394; McElhenny’s Appeal, 10 Id. 347.

      J. Gilson, for defendant in error.
    — The deed to Barry having been accepted by him, the legal title to all the property intended to be conveyed by it passed from the assignor to him, and the trust which it was its principal object to create in favor of the creditors instantly took effect: Seal v. Duffy, 4 Barr 274; Read v. Robinson, 6 W. & S. 329; and had the same effect as if the debtor had delivered money to an agent to pay his creditors: Story’s Equity, § 972 n. 3; Act of 24th of March 1818, supra. A deed is good without recording. Without any record the deed is effective as against the grantor. Recording is only to guard against frauds upon subsequent purchasers or mortgagees : Journeay v. Gibson, 6 P. F. Smith 57, 61. The Act of the 17th of April 1843, Pamph. L. 273, 1 Br. Purd. 91, pl. 2, does not invalidate assignments in trust for creditors, which direct preferences ; but the assignment is operative for the benefit of the creditors generally : Law v. Mills, 6 Harris 185; Wiener v. Davis, Id. 331. The accountability of Mr. Lewis must be that of an executor de son tort, and he will be charged as such for intermeddling with goods which are held by a conveyance declared void: Stockton v. Wilson, 3 Penna. R. 129. He is liable to the legal representative for all beyond rightful payments by retainer or disbursement: Meigan v. McDonough, 10 Watts 287.
    July 3d 1872,
   The opinion of the court was delivered, by

Read, J.

— The facts of this case stripped of unnecessary details are few and simple: on the 2d April 1857, John Herr of the borough of York, Pennsylvania, assigned all his property real and personal to Llewellyn E. Barry of the city of Baltimore, Maryland, in trust for the benefit of the creditors of said John Herr, making preferences of certain creditors therein named, which deed of assignment was executed and recorded in Baltimore on the same day, and which has been held to be good and valid under the laws of Maryland by the Court of Appeals of that state. This deed was not recorded in the office for recording of deeds for York county until the«9th day of May 1866.

This deed was carried by Herr and Barry to York, Pennsylvania, with the intention of having the same executed and recorded in York county, according to the laws of Pennsylvania, but being informed by a member of the York bar, who was consulted as counsel, that it was void by the laws of this state, Herr, against the advice and wishes of Barry, on the 3d day of April executed a deed to Eli Lewis, of the borough of York, conveying all his property in Pennsylvania for the benefit of the creditors of the said Herr, which was on the same day recorded in the recorder’s office for the county of York. Eli Lewis accepted the trust and on the 24th August 1857, filed in the office of the prothonotary of York county an inventory and appraisement of the property conveyed to him, amounting to the sum of $15,900.'

The Columbia Bank recovered a judgment against John Herr for $6438.38, on which execution was issued and the real estate described in said deed to Lewis was levied upon and condemned, and under a writ of venditioni exponas the same was sold on the 16th August 1862, by the sheriff of York county to Y. K. Keesey, Esquire, and a deed therefor was acknowledged and delivered by the said sheriff.

On the 6th February 1863, a writ of attachment-execution was issued on said judgment, and the rents, issues and profits of said real estate in the hands of the said Eli Lewis as garnishee, were attached, and on the 10th February 1864, judgment was rendered against John Herr, defendant, for $6132.35; on the 16th April 1864, a case was stated in said attachment-execution between the plaintiff and the garnishee, and on the 16th July 1864, judgment on said case stated was rendered against said Eli Lewis, garnishee in favor of the plaintiff for the use of Y. K. Keesey, Esquire, for $2178.76, to be levied on the moneys in the hands of said Eli Lewis as garnishee, received as rent of the property of the said John Herr, with the interest and executions thereon, and leave was granted to issue legal process for the collection of the same.

Eli Lewis paid the said money according to the said judgment. The validity of the deed from Herr to Lewis was questioned and the deed was decided by the court to be invalid and void.

On petition to the Court of Common Pleas of York county the court, on the 16th March 1863, ordered said Lewis, as trustee, to proceed with the sale of real estate as already advertised, and sell the same if practicable; accordingly the said Eli Lewis, as assignee, sold and on the 1st April 1863, conveyed, for the consideration of $200, real estate in Chanceford, York county, and also for the consideration of $1800, real estate in the borough of York, to Elizabeth Herr, which deeds were duly recorded in the recorder’s office for the county of York.

On the 6th August 1864, Eli Lewis, as assignee, filed his account in the prothonotary’s office of York county, exhibiting a balance in his hands of $2019.33, and exceptions to it were overruled, and on the 8th December 1869, said account was confirmed. Eli Lewis died on the 4th May 1867, and letters testamentary were granted to Mary J. Lewis and Rebekah F. Lewis, executrices in his last will and testament.

On the 4th March 1872, the court entered judgment on the case stated for the plaintiff for $2019.33, with interest from the 17th January 1865, allowing three months to put out the money to interest, after the date of filing exceptions to the account of the trustee.

The origin of the difficulties in this case, was an error in the opinion of counsel in holding the deed to Barry to be void by the laws of Pennsylvania, and directing the execution of the deed to Eli Lewis. If he had advised the recording of the deed to Barry in York county, and a compliance with our acts, in relation to general assignments for the benefit of creditors, none of the present questions could have arisen.

The deed from Herr to Barry passed all the real estate in Pennsylvania to the assignee for the benefit of all the creditors, without any preferences: Law v. Mills, 6 Harris 185; Wiener v. Davis, Id. 331.

■ This being the case, there was nothing to be conveyed by Herr to Lewis, he being perfectly aware of the deed to Barry, which was in fact recited in the deed to him.' Quoad creditors both assignments were invalid, and accordingly upon judgments and executions against Herr and an execution-attachment, in which Lewis was garnishee, certain of the real estate was sold by the sheriff and the garnishee paid over the amount of rents collected in his hands.

Two pieces of property were sold by Lewis for $2000, and the real controversy in this suit is whether the first assignee is not entitled to recover it in the hands of the legal representatives of Eli Lewis. The money represents the real estate sold, and the first assignee, by claiming and receiving the money, validates both sales and closes up all present and future litigation. Lewis may be likened to an executor de son tort who is considered as a trespasser, and is chargeable as far as assets come to his hand. It is the true trustee recovering from a supposed trustee who has been performing his duties.

The funds thus received by Barry must be distributed according to the laws of Pennsylvania, which must be regarded by the courts of Maryland as controlling the sum thus recovered.

Judgment affirmed.

Sharswood, J., dissented.


author: Per Ctjriam.

text:
    Commissioners of York County versus The Commonwealth ex rel. Smyser.
    1. A county bridge was authorized in 1859; nothing was done towards erection till 1871; mandamus would then lie to compel the commissioners to erect it.
    2. The difference in the financial condition of the county in 1859 and 1871 was not a defence to the mandamus; the county having neglected a duty could not be heard to complain.
    3. The expense of erection is to be raised by county levies.
    4. The costs of the mandamus imposed on the county.
    May 9th 1872.
    Before Thompson, O. J., Read, Agnew, Sharswood and Williams, JJ.
    Error to the Court of Common Pleas of York county: No. 7, to May Term 1872.
    On the 16th of May 1871, Zachariah W. Smyser petitioned the Court of Common Pleas of York county, setting out, that viewers appointed according to law, reported to the August Term 1857 of the Court of Quarter Sessions, that a bridge was necessary over Codorus creek, where it crosses King street in the borough of York, that the erection would cost more than the borough should bear; and that the grand jury, the Court of Quarter Sessions, and the county commissioners concurring in the report, it was at January sessions 1859, entered of record as a county bridge; that in June 1867, the county commissioners procured an estimate of the cost of the bridge and entered into a contract with Samuel Stouffer to construct it; that he commenced its construction, but was afterwards stopped lay the commissioners and the contract rescinded. The prayer was for a mandamus to the county commissioners to erect the bridge.
    The commissioners answered, admitting the proceedings as alleged in the petition under which the bridge was entered of record as a county bridge; they further answered, that fourteen years had elapsed since these proceedings, that the affairs of the county had materially changed, that there was a large indebtedness of the county not existing at the time the bridge was confirmed, for paying which all the money of the county provided for by the tax levies “ for a considerable time to come,” would be required; the commissioners should not be required to erect the bridge, when the circumstances at the time the bridge was authorized had changed; that the Act of June 18th 1836, § 36, required the commissioners at the time the bridge was authorized to erect it or show sufficient reason for not so doing; that no such cause was shown by those commissioners, and the erection of the bridge by the respondent should not be required, on account of the laches of the parties interested; that the respondent had made no provision in the county levies to pay for the erection of the bridge and ought not to be required to do so; that the county had no money to pay for the erection and had no authority to borrow money for the purpose.
    The petitioner demurred to the answer.
    On the 25th of March 1872, the court (Fisher, P. J.) decreed, that a peremptory mandamus issue against Peter Strickhouser, Lewis Strayer and Jacob Kohler, commissioners of York county, commanding them in their capacity of commissioners of York county to erect a good and sufficient bridge of wood, iron or stone across the Codorus creek in the borough of York, &c., where King street crosses said creek, for the convenience and use of the public travelling on foot, or on horseback, or with carriages, wagons or other vehicles drawn by horses or other beasts of burthen; and that the county of York pay the costs of this proceeding.
    The respondents took a writ of error and assigned for error: — •
    1. The decree commanding the erection of the bridge.
    2. The decree that the county of York should pay the costs.

      J. Gribson, for plaintiffs in error.
    — The relator has not such right as entitles him to a mandamus: Heffner v. Commonwealth, 4 Casey 108. Authorizing a county bridge does not give an indefinite right to require its erection: Howe v. Commissioners, 11 Wright 361; Long v. Laufman, 2 Rawle 154; Act of June 13th 1836, §§ 35-37, 2 Br. Purd. 1280, pl. 60-62. Rights are waived by long neglect: 2 Phillips Ev. 694; Lau v. Mumma, 7 Wright 267. Mandamus is for an immediate remedy : Tapping 16, 291. , Mandamus is of grace : Tapping 5, 29. The proceedings after so long a time should have been de novo, and have ascertained that a bridge was then necessary.

      Gr. L. McJSlroy and J. L. Mayer, for defendant in error,
    referred to Adams v. Jackson, 4 W. & S. 55; Morgan v. Commonwealth, 5 P. F. Smith 456; Dunne v. Deegan, 7 Wright 334.
    May 16th 1872.
   Judgment was entered in the Supreme Court

Per Ctjriam.


text:
    The Pennsylvania Railroad Co. versus Weber.
    1. In an action against a railroad company for negligence in killing a man by their engine at the crossing of a public road, evidence that such road had been made by the company was irrelevant.
    2. The cause of action did not include negligence in the construction of the public road.
    3. It is not necessary to prove affirmatively that a person injured when crossing a railroad on a public highway had stopped and looked up and down the railroad; whether he used the proper precautions is to be determined by all the circumstances of the case: per Graham, P. J.
    May 14th 1872.
    Before Thompson, O. J., Agnew, Shakswood and Williams, JJ.
    Error to the Court of Common Pleas of Perry county: Of May Term 1872. No. 19.
    Sarah Ann Weber, widow of George H. Weber, deceased, for herself and as next friend of the children of the deceased, brought an action on the case against the Pennsylvania Railroad Company for negligence in causing his death.
    The deceased was a baker living at Duncannon, in Perry county, and carried bread, &c., in a one-horse wagon to Marysville, about six miles east of Duncannon, for sale. He travelled on the county road, which is alongside the railroad, and crosses it several times between the two towns. On the 28th of August 1869, he was crossing the railroad on the public road when his wagon was struck by the locomotive of the “ Harrisburg Accommodation ” train going east; his horse was killed immediately, and himself so badly hurt that he died in a very short time.
    The crossing is about 110 feet from the end of a stone wall built on the south side of the railroad; the wall is 1117 feet in length extending westwardly. Until within 400 feet of the crossing of the county road it is below the grade of the railroad, it then ascends 128 feet from the railroad, then descends at a grade of six degrees, till within a short distance from the rails, and passes on a level over the railroad. The view of the railroad from the county road was obstructed by the embankment between the county road and the railroad, and by timber, brush, &c. The stone wall on the railroad, and the increased noise from the rolling of cars passing between the walls have the effect of drowning the sound of the whistle.
    The evidence was conflicting as to whether the whistle was sounded in due time, or other sufficient warning given of the approach of the train to the crossing.
    The engineer testified that the train was running from twenty to twenty-five miles an hour, and he whistled about 1200 feet from the crossing; when about 600 feet from the crossing he saw a horse’s head coming toward the track; he blew “ four or five short blasts in successionthe wagon stopped on the track, the man in it was pulling as if trying to back.; tbe witness put on tbe brakes and reversed tbe engine, but tbe engine struck the wagon about the middle; it would take 300 or 400 yards to stop the train: it ran 200 or 300 yards beyond the crossing before it stopped: the speed was diminished before the wagon was struck.
    There was no other evidence bearing on the conduct of the deceased before and at the time of the collision.
    On the trial the plaintiffs offered to prove, that “ the public road leading from the Cove station of Pennsylvania Railroad to Marysville, was built where it now is by the said railroad company.” This was objected to by the defendants, admitted and a bill of exceptions sealed, the court (Graham, P. J.) saying: — “ We admit the offer for the present, reserving the question as to whether it is competent evidence, until we have the whole case before us, and to be disposed of in our instructions, to the jury.”
    The defendants’ 4th point was: “ At the intersection of a railroad with a common road, there are concurrent rights and neither the traveller on the highway nor the company has an exclusive right of passage; but as the movement on railroads is necessarily rapid and the consequences of collision so disastrous, it is the duty of a traveller on a highway, when approaching the intersection, to look for approaching trains ‘ this way and that way,’ and if he fails to do so, he is guilty of negligence and cannot recover for injuries sustained by a collision; and it was incumbent on the plaintiffs in this case to show affirmatively to the satisfaction of the jury, that Weber used all necessary care to avoid the injury, and failing to do so they cannot recover.”
    The court answered: “ As to the duty of a traveller on the public highway, we answer this point in the affirmative. But we cannot say to you, that it is necessary that plaintiffs should prove affirmatively, that Weber used all these necessary precautions. He was travelling alone and he was killed; no one can tell what precautions he used to avoid the train; we, therefore, cannot say to you that there can be no recovery in the absence of affirmative evidence that he used these precautions. Whether he used them or not, you must determine under the circumstances of this case.” The verdict was for the plaintiffs for $2500. The defendants removed the record to the Supreme Court.
    The errors assigned were the answer to defendants’ fourth point, and the admission of the evidence in the bill of exceptions.

      L. W. Ball (with whom were--Melntire and B. 8. Doty), for plaintiffs in error.

      O. A. Barnett, for defendants in error.
    July 3d 1872,
   The opinion of the court was delivered, by

Thompson, C. J.

— There is no error in this record, excepting in the admission of the testimony, that the company built the public road on which the plaintiff’s husband was killed. It is, and has been a public road it appears, for a long time past; it was built some twenty years or so ago, and the supervisors have had charge of it as such. It appears from the testimony that this particular crossing is at a point which on account of the formation of the surface of the ground, and obstructions of standing timber, weeds and brush, is regarded as dangerous. If the evidence had any effect at all, as it most likely had, it was to create liability because of the location and construction of the road by the company. This was an entirely different ground of complaint from that laid in the narr. It was nothing more nor less, than superadding supposed negligence of twenty years standing to alleged, negligence in running their train where the accident occurred. That was a very remote ground of liability, and conflicted with the proximate cause laid in the narr. It cannot be disregarded on the ground of immateriality, for in the hands of able counsel much could be made out of it against the defendant. It was not necessary as showing the duty of care on part of the company at such a place. That was admitted by the regulations proved for whistling at the place; besides the surface of the earth would show that, independently of who constructed the road. The testimony was irrelevant and injurious, for its admission would induce a jury to believe it material. Counsel sometimes err by pressing too much into a case, as well as by offering too little. Being clear that there was error here the judgment below must be reversed.

Judgment reversed, and venire de novo awarded.-


author: Agnetv, J.

text:
    Gwynn versus O’Hern and Wife.
    ]. After evidence had been finished before a jury, it was agreed that the court should take the evidence and after hearing counsel “ shall determine all questions of law and fact, the verdict shall then be entered as the verdict of the jury now impannelled, and the court to. file an opinion and the evidence in the case.” The court filed an opinion, finding the facts and a sum to be paid by defendant. Held, to be the reference of the facts and law to the judge as an arbitrator.
    2. The provision that the verdict should be entered as that of the jury, made no change in the reference.
    3. It was not a trial in due course of law with remedy by exception and writ of error.
    4. If there had been a reservation for a writ of error, there could not have been a review in the Supreme Court.
    5. Writ of error in this case quashed.
    May 14th and 15th 1872.
    Before Thompson, C. J., Agnew, Shabswood and Williams, JJ.

      Error to the Court of Common Pleas of Somerset county: No. 48, to May Term 1872.
    This was an action of ejectment for an undivided one-eighth of seven tracts of land, in Somerset county, brought January 11th 1869, by Walter Gwynn, and others, against Michael P. O’Hern and Sarah O’Hern. The action was brought to enforce the payment of the purchase-money of the premises. The only question appeared to be the amount of the purchase-money due.
    The case had been heard before arbitrators, and on appeal to the Court of Common Pleas, the trial commenced September 16th 1871, before Hall, P. J., and a jury.
    It then appears by the record as follows :—

      “ Same day the parties by paper filed agree that the court shall take the papers and evidence offered in the case to chambers, and after examination and hearing the counsel, shall determine all questions of law 'and fact arising in the case; the verdict shall then be entered by the clerk as the verdict of the jury now impannelled, and the court to file an opinion and the evidence in the case; 16th September 1871, points of counsel filed and notes of trial filed; and now, to wit: 29th December 1871, opinion of W. M. Hall, President Judge, filed, directing a verdict to be entered for the plaintiff for the land in dispute, to be released upon the payment, by the defendant, of the sum of $6244.86, with legal interest from the 16th of September 1871, and if the defendant shall fail to pay the same on or before the 16th day of September 1872, the court will then appoint a master to sell the defendant’s share or part of said land, to pay the debt, interest and" costs of this case, with the costs of such rule, and to pay over the excess, if any, to the defendant; the defendant to have credit on this verdict for the one-eighth of the net proceeds of rents accruing after the 1st of April 1871.”
    The court in their opinion found the facts in the case, and stated an account between the parties showing the amount due to the plaintiffs, as above stated, and in concluding the opinion said : “ So the case presents itself, virtually as a case in equity on bill and answer, yet leaving us without the aid that well drawn equity pleadings would afford. We have discharged the duty imposed upon us as best we might, according to equity as we view it; and are relieved in the consciousness that if we have erred we have put the case in shape to be fully reviewed by the Supreme Court. And to this end we now seal a bill of exceptions to both plaintiffs and defendant.”
    Gwynn took out a writ of error. He assigned for error, the refusal of the court to affirm the points submitted by the plaintiffs; the admission of evidence offered by the defendants, and objected to by the plaintiffs, and directing judgment "to be entered for too small an amount.

      J. Kugus, W. K. Koontz and Baer $• Baer, for plaintiff in error.

      A. K. Qoffroth and S. Gfaither, for defendants in error.
    May 23d 1872,
   The opinion of the court was delivered, by

Agnetv, J.

— Although there was no judgment in this case in the court below, we listened to the argument at the request of counsel in the hope that an examination of it might enable us to determine the questions discussed. But there is no mode of reaching them in the state of the record before us. At the conclusion of the trial of the cause below, the counsel chose to take the case from the jury, by agreeing that the judge should take the papers and evidence given in the case to chambers, and after examination and hearing of the counsel, to determine all questions of law and fact arising in the case. This was nothing but a reference of the facts as well as the law to the judge as an arbitrator. The provision that the verdict should be entered by the clerk as that of the jury i wrought no change in the reference — the jury was discharged and the finding was still that of the judge and not of the jury. We do not say it was not binding; but it changed the course of the trial. It was no longer a trial in due course of law, with the remedy by exception to the charge and a writ of error. There was no charge to be excepted to and no verdict. In its place there was merely an opinion of the court upon facts, without even a reservation of the right to except and to sue out a writ of error. And had there been such a reservation it would not have brought the case within any known legal course of procedure, entitling a party to a writ of error and review in this court. It was neither a case stated nor a special verdict. In the unreported case of Haviland v. Wickersham, from Chester county, decided at Philadelphia two or three years ago, it was agreed to submit the decision of the whole case to the judge, including the damages of the plaintiff, with a right to each party to take a writ of error, as if the case had been proceeded in, in the ordinary course, upon the exceptions taken in the trial, and exceptions to the opinion of the court, as to a charge to the jury. In that case the plaintiff’s evidence was in and a motion for a new trial made. But on a writ of error this court refused to hear the errors assigned under this agreement. This case is further out of the course of a legal trial than that, and there being no judgment beside, the writ of error must be quashed.