author: Mr. Justice Paxson

text:
    Johnston versus The Commonwealth.
    1. To obtain admission to a dwelling-house at night, with the intent to commit a felony, by means of artifice or fraud, or upon a pretence of business or social intercourse, is a constructive breaking, and will sustain an indictment charging burglary by breaking and entering.

      2. In commenting upon the evidence relating to the charge of entering without breaking, under the third count of the indictment, the court said, “ The Commonwealth claims that evidence can establish nothing if this evidence will not establish the facts alleged in the third count, and I cannot, for my part, see how the jury can hesitate a moment to convict the prisoner on the third count.” Held, that although this was certainly a strong expression of opinion, yet taken in connection with the entire charge, it did not amount to a binding instruction, and under the facts of this case was not erroneous.
    3. The court sentenced the prisoner upon the second count of the indictment, which charged a higher grade of crime, to six years and four months imprisonment, and upon the third count, which charged a lessor crime, to three years and ten months, both sentences to take effect from the same date; Held, that this was a technical error, and that the sentence imposing the shorter term should be reversed.
    June 20th 1877.
    Before Agneav, C. J., Sharswood, Mercur, Gordon, Paxson, Woodavard and Sterrett, JJ.
    Error to the Court of Oyer and Terminer of FranJclin county: Of May Term 1877, No. 190.
    Indictment of Ralph L. Rolland and B. Johnston, for burglary and entering with intent to steal.
    The indictment contained three counts. The first tAvo charged the d'efendant with having committed a burglary in the dAvellinghouse of George R. Messersmith, on the night of the 24th day of March 1876. The third count was founded on the 2d section of the Act of 23d of April 1863, Purd. Dig. 353, Pamph. L. 195, and charged the defendant with having on that night entered the house of Mr. Messersmith with intent to commit a felony therein.
    The real estate was the property of the National Bank of Chambersburg. Mr. Messersmith Avas the cashier of the bank, and on the night in question, was living in the banking-house with his family and servants.
    This case was submitted to the Supreme Court on a former writ of error and reversed, a report of which will be found in 1 Norris 306, where the evidence is set forth more in detail. On this second trial, Johnston pleaded “not guilty” and was separately tried.
    It appeared at the trial, that Johnston and Rolland, about 8 o’clock of the night of the 24th of March 1876, went to the front door of Mr. Messersmith’s residence and rang the bell. The door was opened by Mr. Kindline, a brother-in-law of Messersmith, and a member of his household. Rolland inquired of Kindline if Messersmith Avas in, and being informed that he was not, expressed regret and introduced Johnston as his friend from New York, who had some business with Messersmith, and then remarked that perhaps they would call back later in the evening. They came back about twenty minutes afterwards, again rang the bell, which was answered by Kindline, who, opening the door, invited them to walk in and conducted them through the hall and dining-room into the office of Messersmith in the rear of and adjoining the banking-room. When they were ushered into the presence of Messersmith by Kindline he invited them to be seated, and after a friendly conversation of about half an hour, they made a violent assault upon Messersmith with a view of silencing him, so that they could consummate their intended purpose of robbing the bank. Messersmith made a desperate resistance and an alarm was given which frustrated their scheme. Rolland was captured in the yard of the bank building and Johnston about twenty miles from Chambersburg. Rolland and his wife had lived at a hotel in Cliambersburg for some months previous to the attempted robbery, and by their mode of life and genteel manners had established relations of confidence and intimacy with many persons of the town, among them Messersmith. The mode of obtaining admission to the bank in order to carry out their scheme is fully set forth in the testimony of Mr. Kindline, as detailed in the opinion of this court.
    The following points were presented by the defendant, to which are appended the answers of the court, Rowe, P. J.,
    3. If the jury believe from the evidence, that on the night of the 24th of March last, Rolland and Johnston went to Messersmith’s dwelling and rang the door-bell, and Kindline, a brother-in-law of Messersmith, and a member of his household, opened the door, and recognising Rolland as a friend and acquaintance of Messersmith, invited him and Johnston to walk into the house, and that this invitation wras then declined; and if the jury further believe, that after this invitation was given, Rolland inquired of Kindline if Messersmith was in, and upon being told that he was not, introduced Johnston to Kindline, remarking that ho had some business to transact with Messersmith, and that perhaps they w'ould call again; still all these facts, taken together, if believed by the jury, do not constitute such a fraud or trick on the part of Rolland and Johnston as would make the entry into the house, at that time, or at a subsequent time, on the same night, a constructive breaking.
    Ans. “I affirm the point, and answer that the facts therein set forth would not, in and of themselves, constitute a constructive breaking. I more readily affirm this point because Kindline testified that he invited them in when they first came, before any pretence of business, and that the pretence of business had no influence whatever upon him. In view of Kindline’s whole evidence it is clear that the pretence of business, or anything that was said on the occasion of the first call that night, was not the means by which the defendant obtained admission to the house. But a fraud or trick must not only be perpetrated for the purpose of gaining admission, but it must be the means by which the house was entered. I instruct you then, generally, that what occurred on the evening of the 24th of March, before the entrance into the house, did not amount of itself to a constructive breaking, because the Commonwealth’s evidence shows it was not the means of obtaining admission. This answer will be fully understood when we shall have answered the defendant’s next point.”
    4. If the jury believe from the evidence, that Rolland was a friend and acquaintance of Messersmith, and that Kindline knew this, and admitted him and Johnston into Messersmith’s dAvelling, on the night of the 24th of March, wholly on the strength of this friendship and acquaintance, and not on account of the pretence of business, if such pretence was made, then the entry of Rolland and Johnston was not a constructive breaking, and there can be no conviction of the prisoner for burglary.
    Ans. “ If there is not in this case any other evidence of fraud or trick than the pretence of business that night, when Kindline opened the door, this point would have to be affirmed, because that pretence would not be the means of admission, and I have already said, that the fraud or trick must have procured the entrance.
    “ But to affirm this point in this manner would be to present an inadequate view of the law of constructive breaking, as it arises on the facts of the case. The Supreme Court say, ‘ it is established by numerous authorities that there may be a constructive breaking. This may be done by an act in fraud of the law, or by fraud not carried on under cloak of legal process.’ And again, ‘ that a trick and fraud by means of which admission is obtained to the house is a constructive» breaking.’ And they have decided that the entrance need not follow immediately upon the trick, but it is sufficient if the entrance is referable to a previous trick intended to accomplish that result; that if fraud and artifice are used at a prior time for the purpose of gaining admission with intent to commit a felony, and the call which resulted in the admission is part of the same transaction, in pursuance of such previously formed design, then the entrance so effected by the previous fraud is a constructive breaking. Such I understand to be the principle of the decision.

      “ I instruct you, then, that if the calls made on the night of the attempt on the bank were in pursuance of and part of a series of frauds and tricks perpetrated by Rolland for the purpose of gaining admission to the bank, and the entry was the last link of a chain of fraudulent artifices intended to effect such entry, and without which such entry could not have been made, and that admission was in fact obtained by means of the whole system of fraud practised by the parties who then gained admission, this would be a constructive breaking. It would be an entry obtained by trick and fraud, only the fraud does not consist in a single act or transaction, but in a series of acts all tending to a common end.
    “ The Supreme Court says: 4 If admission was obtained by pretence of business, and that was a fraud, it is enough.’ But if this pretence was only part of a scheme to gain admission, of course the whole scheme would be sufficient, else a part would be greater than the whole. But the pretence of business may not itself have succeeded and been the means of admission, because the artifices used may have rendered that part of the scheme not necessary to admission. If, however, the whole scheme of fraud worked its purpose in putting the owner of the house off his guard, and in making him ready to admit the contrivers of the fraud when they presented themselves, and they presented themselves, continuing to use their artifices, and by this means gained admission to the house, it would be a constructive breaking.
    “If you believe that, long before the 24th of March 1876, Holland had conceived the idea of entering the Bank of Chambcrsburg with intent to rob or steal, and concocted a plan by which he might effect such purpose; that he cultivated the acquaintance of the cashier and placed himself on as familiar terms as ho could with him and his family, and began to talk to him of the buying of farms, and finally stated that he had a friend whom he wished to have come to Chambersburg to reside, and spoke of the Stouffer farm and thought it was too small, and on the night in question presented himself with a friend, who he stated had some business with the cashier; and if you believe this was false and fraudulent, and intended to obtain admission to the house, and that it was by means of this that Rolland and Johnston did in fact obtain admission into the house, then this was such a fraud as amounted to a constructive breaking. If Rolland, by frauds and tricks and artifices, deceived the cashier, and induced him to believe that he was concerned to buy a farm for a friend, and that if he would call at his house with such a friend it would bo for that purpose, and that it was thus that he was received into the house and the whole household was so deceived, and Kindline opened the door under the influence of Holland’s deceptions as to his true character and purposes, it was a constructive breaking.”
    5. In order to convict the prisoner of burglary, the entrance of Rolland and him into the house must have been procured by a trick or a fraud; and if the jury believe from the evidence that Kindline would have admitted them without any trick or pretence of business, and that their entrance was obtained not by such means, but because of Kindline’s acquaintance with Holland and his knowledge of the friendship between him and Messersmith, then the entry of Holland and Johnston was not burglarious or a constructive breaking, and the prisoner cannot be convicted of burglary.

      Ans. “ I affirm this point, unless you believe that such acquaintance of Kindline and friendship of Messersmith were procured by fraud and trick and as a means of entry, as I have instructed you in the preceding point.”
    6. If the jury believe from the evidence that there was a pretence made by Rolland of business with Messersmith on the occasion of the first call, as testified to by Kindline, and no entry was then made, and that about twenty minutes afterwards, without any pretence of business, Kindline admitted Rolland and Johnston, and that he did so wholly uninfluenced by and without regard to the previous pretence of business, then the entry of Rolland and Johnston was not burglarious or a constructive breaking, and the prisoner cannot be convicted of burglary.
    Ans. “ This point, relating as it does only to the pretence of business on the night of the 24th of March, is affirmed. I have said that what occurred that night would not constitute a breaking; but that if you find it to be only part of a scheme of fraud, a series of artifices, and that such scheme of fraud, the total of all the artifices used, was the means of obtaining admission, it would be constructive breaking. There is no burglary in this case, unless there was constructive breaking by fraud, and there was no such fraud at the time of the entry as by itself wrnuld make constructive breaking; but there is evidence of fraudulent practices by Rolland running over a considerable period of time, and it is for you to say whether the entry was effected by the whole of such practices, continuing down to the time of entry. If, notwithstanding you should find such acts and practices as I have referred to, you should be of the. opinion that they did not procure the admission, but that it was the genteel manners and agreeable conversation of Rolland that did it, and not at all the practices, then it would not be a constructive breaking.”
    The court, in their general charge, said, “ A question then arises, whether, if the call at Messersmith’s house, when they obtained admission, was with the same design and part of the same transaction with the previous call on the same evening, and if that previous call was for the purpose of gaining admittance by fraud and artifice, namely, under pretence of business, with intent to commit a felony in the house; and if these acts and this pretence of business were part of a larger scheme of fraud devised by Rolland and carried on for a long time, with the design of deceiving the cashier of the bank, as to his true character and purposes, and of thus securing his confidence and that of the members of his family, with the purpose and object, by this means, ultimately to obtain admission to the house of the cashier and steal the moneys of the bank; and the sum total of the fraudulent practices was the means whereby admission was obtained to the house, though the last trick of the series was ineffectual because unnecessary, whether an admission so procured would be a constructive breaking, and I instruct you that it would be such.

      “ If Johnston, the prisoner here, was the man that entered the bank with Holland, and the calls that night were the last steps in the fraud used to procure entrance, then Johnston is responsible for all that Rolland did to gain entrance, for his every falsehood and device directed to this object. And the tricks played on Messersmith, if through him they affected Kindline, would bo the same as if practised on Kindline himself. There is no difficulty on this score.
    “ Would Kindlino have admitted these two men into the bank building that night if he had not learned in Messersmith’s family to regard Rolland as an acquaintance of Messersmith, held by him in estimation ? If lie would not, then their admission is to be attributed to Messorsmith’s opinion of the character and purposes of Rolland. And if he (Messersmith) believed Rolland to be an honest man, contemplating the purchase of a farm and with like objects in view, and that his purpose in coming to his house was honest and to facilitate such objects, when in fact he was a villain conspiring to rob the bank and coming to Messorsmith’s house for that purpose; and if Messersmith’s belief was produced by the fraud, artifices and tricks of Rolland, intended to deceive him in relation to Holland’s true character and purposes, and thus to enable him to gain admittance to the house in the execution of his design to rob it, then it was the fraud of Rolland that induced Kindline to open the door,
    “ It is claimed by the Commonwealth that the testimony of Messorsmith and Kindlino shows that Holland’s whole intercourse with Messersmith from the beginning was one continuous fraud and deception ; that the pretence that he had packages of valuables that needed to be kept securely in bank was a trick; and the pretence that he was interested in farms in the vicinity as a possible purchaser for himself or his friends; and the pretence that he had friends whom he wished to settle at Ohambersburg were tricks; and that this scheme of deceit was kept up until the evening of the attempt on the bank and practised at the first call of Rolland and Johnston in the pretence that the call was on business. Messersmith says he was not warned as to Holland’s true character, but heard doubts about him, and the Commonwealth may argue that he was prevented from making inquiry by these alleged decejffions and artifices of Rolland.
    “ The Commonwealth insists that it was this fraud and artifice of Rolland in its totality which induced Kindline to let him and Johnston in.
    “ But the defendant’s counsel have endeavored to point out a state of intimacy between Rolland on the one side and Messersmith, and to show that the latter was attracted by the genteel manners and cultivated conversation of Rolland, and that it was these that opened the door to him and not any fraud or trick practised to that end. If the entry is to be referred to such reasons of course it was not a constructive breaking. If it is to be referred to the fraud and trick continued and practised up to the admission on the night in question, it would be a constructive breaking.”
    In referring to the charge of entering without breaking, under the third count of the indictment, the court, after commenting upon the evidence, said: “ The Commonwealth claims that evidence can establish nothing, if this evidence will not establish the facts alleged in the third count, and I cannot for my part see how the jury can hesitate a moment to convict the prisoner at the bar on the third count.”
    The verdict of the jury was not guilty of the burglary charged in the first count of the indictment, but guilty of the felony and burglary charged in the second count, and guilty of the felony in entering the dwelling-house with intent feloniously to steal charged in the third count.
    A motion for a new trial was overruled on the 12th of December 1876, and on. that day the court sentenced the prisoner, under the second count, to imprisonment in solitary confinement for six years and four months from the 12th of December 1876, and under the third count to an imprisonment in solitary confinement, at labor, for three years and ten months, to commence from the same date, 12th of December 1876.
    Defendant took this writ, the errors assigned being from one to five inclusive, the answers to defendant’s points, and that portion of the charge bearing thereon; sixth, that portion of the charge upon the evidence under the third count; and seventh, the sentence of the court.

      J. McDowell Sharpe and Duncan & McGowan, for plaintiff in error. —
    The evidence showed conclusively that the pretence of business did not influence Kindline to admit Rolland and Johnston into the house. He testified that he would have unhesitatingly admitted them without any such pretence, and that when he did admit them at the second call, it was without any thought of what occurred at the first call. In considering the question of constructive breaking, the occurrences at the first call can be of no value in its determination. Had there been no pretence of business made on the night in question, and Rolland and Johnston had obtained admission solely on the ground of their acquaintance with Kindline and Messersmith, would their entry have been a constructive breaking ? To answer affirmatively would be to give the doctrine of constructive breaking a bolder sweep than any precedent will justify. We contend, therefore, that the pretence of business was wholly without influence in gaining admission to the house, and that there was no connection established by the evidence between the previous conduct of Holland in his intercourse with Messersmith and the alleged pretence of business ; nothing to show that such pretence was any part of a previously-arranged scheme of Rolland to rob the bank; that it was the culmination of the fraudulent practices directed against Messersmith.
    The instruction contained in the sixth assignment took away from the jury all consideration of the evidence. It assumed the credibility of the Commonwealth’s witnesses, and excluded the jury from every other hypothesis except that of the prisoner’s guilt. That such finding or one-sided construction upon the facts is ground for reversal in a civil action, is sustained by abundant authority ; and how much more cause for reversal should it be in a criminal prosecution where the prisoner is charged with a high felony: Strohl v. Levan, 3 Wright 177; Wenrich & Co. v. Heffner, 2 Id. 207; Kester v. Miller, 1 Casey 481; Rhodes v. Commonwealth, 12 Wright 396; Lane v. Commonwealth, 9 P. F. Smith 372.
    The court erred in passing a double sentence on the prisoner, both sentences to be computed from the same day and to run concurrently.

      O. C. Bowers, District Attorney, and Kennedy & Stewart, for the Commonwealth. —
    To make pretence of business, and thereby gain admission to commit a felony, is burglary, so decided by this court in this very case. To make pretence of social, friendly intercourse, and thereby gain admission, in order to commit a felony, must be adjudged the same. Ey what rule can the one be distinguished from the other ? It certainly can make no difference that in the one case the pretence is expressed by words, and in the other by silent conduct; for the one may be just as effective as the other; and it is easy to conceive of cases in which the latter might be the more misleading and deceptive. The false pretence constitutes the trick, and if it be the means whereby the entrance is effected, it matters not how it was practised.
    So that, standing alone, unaffected by Holland's previous artifices, we assert that Johnston was guilty of constructive breaking. It was by a trick practised by himself that he gained admission to the bank. Judged by the severest test that the learned counsel for the prisoner can suggest, his guilt is established, for the artifice wras both apparently and expressly for getting the fastening removed, whereby to gain admittance without breaking it, and so defraud the law of its justice by an evasion ; and further, the entry wras made immediately after thm fastening was removed. Thus we have all the requisites fulfillea.
    What we relied upon to establish constructive fraud in this case, under the instructions of the court, was the whole series of fraudulent practices, ending with the opening of the bank-door; what occurred after that can help only in making more clear and manifest the whole scheme as devised. The operative fraud was Rolland gaining the confidence of Messersmith and his family, by deceit, tricks and misrepresentations, to such an extent that the house of . the latter would be opened, without question or suspicion, to him and his confederate, when their plans should be ripe, and so it was left to the jury, to say whether such deceit, tricks and misrepresentations were practised, whether they were practised for the purpose of acquiring the confidence of Messersmith and his household, and whether this intimacy was for the purpose of gaining admission to the house by an evasion of the law.
   Mr. Justice Paxson

delivered the opinion of the court, October 1st 1877.

The assignments of error from the first to the fifth inclusive, refer to the same question and may be considered together. They allege error in the application by the court below of the doctrine of constructive breaking to the facts of this case. We may remark, in passing, of the first assignment, that the defendant’s third point was affirmed. This left him nothing to complain of. The point itself wholly omits any reference to the felonious intent existing in the mind of the defendant when he rang the door-bell. Without this the point was without point. An entering of the character referred to would not be burglarious in the absence of any design to commit a felony. In affirming it the learned judge of the court below ruled the law more favorably to the defendant than he had a right to claim.

Without going into extended details, there was abundant evidence to show a conspiracy between the defendant (plaintiff in error) and his confederate, Rolland, to rob the bank. This design had evidently existed for a period of some weeks, and the plan carefully arranged. There were well-matured preparations for disguise and flight; masks and gowns, and a horse saddled, and kept waiting near at hand; a pistol and dirk for defence or attack if necessary, and gags to silence those who might be in the bank. There was a completeness of preparation that marks the experienced and accomplished burglar. This was especially the case with Rolland, who appears to have cultivated pleasant social relations with many of the citizens of Chambersburg, and particularly with Mr. Messersmith, the cashier of the bank intended to be plundered. This enabled him to become familiar with the plan of Mr. Messersmith’s house and banking-room. The evidence was abundant to justify the conclusion that the object of all this social intercourse was to throw the cashier off his guard. To furtHüb inspire confidence, Rolland gave him one or more sealed packages, represented to contain valuables, but which were of course but waste paper. It was a cunningly-devised scheme — planned with skill, and executed with boldness. It would have succeeded in all probability but for Mr. Messersmith’s manly and stubborn resistance. This was probably unloolced for in vieAV of the disposition of the modern cashier to hand over the keys upon demand. The defendant and his confederate having thus laid and matured their plans, the next step was to effect an entrance into the bank. Mr. Kindlino states how this was done:—

“ I reside in the bank with Mr. Messersmith; I was in bank on night of 24th of March last; I answered the call of the bell; between eight and nine o’clock that night a bell rang from the outside ; I was in the main hall when the bell rang; it was then night time; the door was fastened with a dead-latch ; it could not have been opened from the outside; I sprung back the dead-latch; I found two men there ; one I recognised as Holland; he asked me whether Mr. Messersmith was in; I said no, he had just walked out; he said he was sorry, that he had a friend from New York that Avanted to transact some business with him, and he introduced a Mr. Johnston; defendant is the man; he said he Avould call later in the evening; I said it Avas a disagreeable evening, and Rolland said yes, Ave may have some sleighing yet; then they left. Shortly after Mr. Messersmith came; Ave talked in the parlor; I did not tell Mr. Messersmith that these parties had been there to see him ; I went up-stairs, and Mr. Messersmith to his office ; some time after, fifteen or twenty minutes, I heard the bell ring again ; I answered it a second time; the dead-latch Avas down; the door was locked ; it was at front door, leading from the street into the hall of the house; 1 opened the door and found there Rolland and the man he had before introduced as Johnston; he asked me if Mr. Messersmith was in, and I said he was; they came in and put their hats on the rack; Johnston had an overcoat; took that off and hung it up; they had an umbrella this time ; I led the way through the hall into the dining-room; they followed to Messersmith’s office; I opened the door of the cashier’s room, leading from the dining-room in, and saw Messersmith at the grate with his back toAvards the door.”

Was there evidence here of a constructive breaking? Of an entrance obtained by artifice and fraud, by means whereof Mr. Messersmith was deceived and the laAV evaded ? The court beloAv said in answer to the defendant’s fourth point: “ If you believe that long before the 24th of March 1876, Rolland had conceived the idea of entering the Bank of Chambersburg with intent to rob or steal, and concocted a plan by which he might effect such purpose ; that he cultivated the acquaintance of the cashier and placed himself on as familiar terms as he could with him and his family, and began to talk to him of the buying of farms, and finally stated that he had a friend whom he wished to have come to Chambers-burg to reside, and spoke of the Stouffer farm and thought it was too small; and on the night in question presented himself with a friend, who he stated had some business with the cashier, and if you believe this was false and fraudulent and intended to obtain admission to the house, and that it was by means of this that Rolland and Johnston did in fact obtain admission into the house, then this was such a fraud as amounted to a constructive breaking. If Rolland, by frauds and tricks and artifices, deceived the cashier, and induced him to believe that he was concerned to buy a farm for a friend, and that if he would call at his house with such a friend it would be for that purpose, and that it was thus that he was received into the house, and the whole household was so deceived, and Kind-line opened the door under the influence of Rolland’s deceptions as to his true character and purposes, it was a constructive breaking.” This ruling was not only free from error, but it was more favorable to the defendant than he was entitled to. It was laying an unnecessary burden upon the Commonwealth. If, when Rolland and Johnston rang Mr. Messersmith’s bell, they did so with the intent of entering under the guise of'friendship or the pretence of business, and then robbing the bank, it was a burglarious entry; it was a breaking within the meaning of the law. Nor would it matter that one of the burglars had established such social relations with Mr. Messersmith that he would have been admitted without question. It makes the fraud the greater. The dead-latch was down and the door was locked. The bolts were withdrawn upon the implied if not express assurance that they came there as friends for social intercourse or to transact business. This assurance in either case was a trick and deception. The law is not so impotent as to permit a burglar to enter a house under such circumstances and yet evade the responsibility of his act. We are not asserting any new doctrine nor extending the application of an old one. The principle is fully sustained by the authorities cited in Rolland v. The Commonwealth, 1 Norris 306. In addition I will refer to Sharswood’s Blackstone, vol. 2, p. 226; Wharton’s Crim. Law, vol. 2, § 1539; Roscoe’s Crim. Ev. 346; Bacon’s Abr., tit. Burglary (A.),. 133; Chitty’s Crim. Law, vol. 3, p. 856, where numerous authorities are cited in support of the text. In Ducher v. The State, 18 Ohio 317, the facts were these: Sarah Brown was living in the house with her son, John Ondery. On the night mentioned in. the indictment they were awakened by some one knocking at the door; in answer to which John said, Come in.” The persons outside pulled the latch-string without being able to open the door, when they stated that they could not come in. John then got up and opened the door, when two men walked into the house. After they had entered one of them nearly closed the door and stood by it; the other stated that they had a warrant for John Ondery from the prosecuting attorney of Pickaway county. John asked for time to put on his clothes, and after he had done so, one of the men told him that they wanted his money, and asked for his motlier’s money. John said it was in a chest. They told her to get the key, which she did. They tried to open the chest, where John told them the money was, and being unable to do so, with threats of violence induced her to do it, and then took from the chest the money described in the indictment: Meld, that this was a constructive breaking under the Ohio statute, which provides against & forcible breaking and entering. It will be observed, in the case above cited, that the door was opened in obedience to a knock. Not a word was said by way of inducement to open it; yet it was a manifest trick and fraud. When a person rings the door-bell of a house, the owner has a right to presume that his visitor calls for the purpose of friendship or business. If, in obedience to the summons, he withdraws his bolts and bars, and the visitor enters to commit a felony, such entry is a deception and fraud upon the owner and constitutes a constructive breaking.

That portion of the charge of the learned judge of the court below, which forms the subject of the sixth assignment of error,' was certainly a strong expression of opinion, but taking it in connection with the entire charge did not amount to a binding instruction. It really amounted to no more than saying that if the jury believed the evidence, he did not see how they could fail to convict upon the third count. This was not error under the facts of this case. The evidence for the Commonwealth was overwhelming. It stood unchallenged and uncontradicted by the prisoner. The jury had no right to disregard the evidences and the case was precisely of that class to which Mr. Justice Strong referred in Kilpatrick v. The Commonwealth, 7 Casey 198, when he said “ a judge may rightfully express his opinion respecting the evidence, and it may sometimes be his duty to do it, yet not so as to withdraw it from the consideration and decision of the jury.” If the case wore in the least doubtful upon the evidence ; if there had been anything for the jury to hesitate about, there might have been more force in this assignment of error. As it stands the defendant could not have been injured by that portion of the charge complained of.

The seventh and last assignment alleges error in the sentence. The prisoner was sentenced upon the second count, charging burglary. He was also sentenced upon the third count, which charges, an entry without breaking. Both sentences take effect from the same date, so that the sentence upon the third count imposes no additional imprisonment. It was probably imposed by the learned judge of the court below in order to avoid bringing the prisoner up. for re-sentence in case this court reversed the judgment on the second count. It was, however, technical error, and as we have sustained the judgment on the second count, the judgment on the third count must be reversed. The offence of entering was merged in the higher offence of breaking and entering; the greater includes the less. Commonwealth v. Birdsall, 19 P. F. Smith 482, does not apply. There the different counts in the indictment showed different offences. Here the offence was the same, and this appears from the indictment itself.

So much of the judgment of the Oyer and Terminer as imposes an imprisonment of six years and four months under the second count of the indictment is affirmed, and so much of the judgment as imposes imprisonment of three years and ten months under the third count of said indictment is reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Rolland versus The Commonwealth.
    1. To open the inner door of a dwelling house, at night, with the intent to commit a felony in the house, is an actual breaking and will sustain an indictment for burglary, and it matters not whether the felony is to be committed in ' the particular room into which this inner door opens, or in another part of the house.
    2. Per Paxson, J.: We do not think the Act of April 22d 1863, sect. 2, Pamph. L. 531, was intended to apply to or affeot the offence of burglary at common law, but to define and punish a new offence, unknown to the common law, yet partaking of the nature of burglary, viz. : breaking and entering by day, and entering by day or by night without breaking; and also to apply to a class of buildings which are not the subject of common law burglary, and that it was to such buildings only that the words “with or” in the Act of 1863 have reference.
    June 20th 1877.
    Before Agnew, O. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Oyer and Terminer of JFranklin county : Of May Term 1877, No. 149.
    Indictment of Ralph L. Rolland, the first count of which charged defendant with breaking and entering into a dwelling-house, &c.; and the second with entering without alleging a breaking. The first count was founded on the 135th section of the Act of 30th of March 18,60, Pamph. L. 415, Purd. Dig. 352, pi. 194; and the second on the 2d section of the Act of 22d April 1863, Pamph. L. 531, Purd. Dig. 353, pi. 195.
    The prisoner pleaded “Hot guilty.” The evidence produced on the trial was similar to that offered on the trial of Johnston v. The Commonwealth, ante, page 54.
    ■Additional testimony was offered to the following effect: That upon the night of the attempted robbery of the bank when Rolland and Johnston obtained admission to the bank through Mr. Kind-line, they were conducted by the latter to the cashier’s room and were there left with Mr. Messersmith. Jt appeared by the testimony of Messersmith that when Kindline left the room, as he went out he dosed and latched the door that leads from the cashier’s room to the dining-room. Kindline also testified that when he left these men in the room with Messersmith he closed and latched the door to the dining-room as lie wnt out, as also the door leading from the dining-room into the hall. Messersmith, in his account of tlie straggle between himself and these men, said: “During this struggle some one fell over a chair, or a chair fell to the floor, it is impossible for me to say which. That fall was heard up-stairs, and my outcry. At this point I thought I heard my brother-in-law coming down the back stairway. Rolland released his hold upon me at that moment, opened the door of the dining-room and rushed out. Johnston released me at the same moment; he rushed out the same door and I staggered to my feet. * * * They both — Johnston following Rolland — rushed back into the dining-room, through the dining-room into the kitchen, and, I believe, out of the kitchen door. That was the last I saw of them. The door from the cashier’s room into the dining-room had not been opened from the time Kindline left until Rolland opened it.”
    Shortly after his capture, while confined in the county jail, Rolland made statements to several parties, the substance of which is herewith detailed. To John M. Pomeroy he said :—

      “ His intention in coming here was to rob the National Bank, which he saw, by examining the vault and securities of the bank, could very readily be effected; sought the acquaintance of the citizens whom he thought could be made useful to his purpose; was deterred from the execution of his purpose by Messersmith’s kindness, and had a difficulty in bringing his mind up to making the attack, on that account; went in company with Johnston; was disappointed in the resistance of Messersmith, and left him in charge of Johnston, supposing he would give no further trouble ; left him in charge of Johnston while he went up-stairs to secure Kindline, supposing he would be entirely safe in Johnston’s hands ; thought Messersmith had been overcome in the straggle; in going into the entry was somewhat surprised to see Kindline coming down-stairs at so rapid a rate, and was further surprised at seeing Johnston and Messersmith, on looking around, coming in at the other end of the hall; presented a pistol at Kindlino, and it had not the desired effect; found that the servants were raising an alarm and that nothing was left but to attempt to escape.”
    To Colonel McKnight he said: “ Purpose in coming to Chambers-burg vras to crack or rob the bank; in conflict with Messersmith found him a more muscular man than expected; when I loft him in charge of friend told him to hold Messersmith, but not to harm him; went to attend to Kindline; was surprised to find him down-stairs in the passage; made way to the front door and found it obstructed, and pointed revolver at Kindline, but did not do; found it necessary to escape.”
    To Mr. Mcllvaine he said: “ Had tried to gag Messersmith; had found him a bad customer to handle; left him, after he was subdued, in charge of his comrade, and started to go up-stairs to quiet Kindline; was not his intention, when he left room, to escape with the $30,000 only, but to take all the funds of the bank.”
    To Mr. Keefer he said: “ There was no use of his denying that he attempted to rob the bank; that a package belonging to the bank was found on his person. It was not the contents of that package I wanted, but to go through the bank and get all that was there. We would have succeeded, had my friend played his part. We had Messersmith down and completely intimidated. My friend wanted to kill him, and I would not let him. Murder is not my business; it is one more honorable than that. I knew Kindline was in the house and must be shut up. I told my friend to hold Messersmith, but not harm him; I must see to the front. I left Messersmith in charge of my friend, and went to the hall. When in the hall I saw Kindline, and would soon have intimidated him. I had him under cover of my pistol, when to my surprise my friend followed me quickly, with Messersmith on his heels, crying ‘Murder!’ I had nothing more to do than to attempt an escape, and capture was the result.”
    On behalf of the Commonwealth it was contended that the foregoing testimony showed a breaking of an inner door, and with a felonious intent, and that these constituted an actual breaking, and was such a breaking as constituted a felonious burglary.
    The second point of the prisoner was as follows, to which is appended the answer of the court (Rowe, P. J.):—
    The Commonwealth has failed to show any actual breaking of the dwelling-house of Messersmith by the prisoner on the night of the 24th of March 1876.
    Ans. “ I submit to the jury, on all the evidence, the question whether an actual breaking has been proved.
    “ There cannot be burglary without a breaking; and the opening of a door, whether an inner or an outer door, in an eifort to escape, is not a burglarious breaking. So much was decided by the Supreme Court in this case on a former trial.
    “ But the breaking requisite to constitute a burglary is not confined to the external parts of the house, but may be of an inner door, after the offender has entered by means of a part of the house which he has found open. Thus, if one enters a dwelling of another in the night time, the outer door being open, and when within the house, unlatches an inner door with intent to steal, this will be burglary.
    “ If the prisoner Rolland’s design was to get the contents' of the vault of the bank, and if, having succeeded, as he thought, in subduing Messersmith, so that he might safely leave him with Johnston, he unlatched and opened the door leading from the cashier’s room to the dining-room, and went out thereat for the purpose, not of escaping, but of securing and quieting Kindline, and with the intention, after that should be done, of prosecuting further his design to rob the bank, with the intention of coming back to the banking-room and continuing an effort already begun to rob the bank of its moneys and valuables, then such unlatching and opening of that door was a breaking within the meaning of the law.
    “But if Rolland, in unlatching and opening the door — either door — did so with the intent to escape, it would not be such a breaking as is requisite in burglary.”
    In their general charge, the court also said:—
    “ The great struggle in this case has been about the point of the breaking. The counsel for the Commonwealth has insisted that the evidence delivered before you shows a breaking as well as an entrance. The prisoner’s counsel claim that it does not do so. Now, breaking is either actual or constructive. Actual, as when one unlocks or unlatches a door which is closed and enters. Constructive, where admission to the house is procured by trick or fraud. You have nothing to do with a constructive breaking in this case. I must instruct you that there can be no conviction for constructive breaking on the evidence in this case. The counsel for the Commonwealth have explicitly declined to ask such instruction, or to claim conviction on that ground, and have so notified the counsel for the prisoner and the court. We are therefore relieved from any trouble on this score. The Commonwealth rests her case on an actual breaking.
    “Now in order to prove an actual breaking, the Commonwealth relies on the evidence of John M. Pomeroy, W. C. McKnight, Frank Keefer and John S. Mcllvaine. These witnesses testify to conversations with Rolland at the jail. Pomeroy and McKnight were together, and they agree substantially in saying that Rolland said that he left Messersmith in charge of Johnston," supposing that he was overcome in the struggle and would be safe in Johnston’s hands, and would give no further trouble, and that ho left the room with the intention of going up-stairs to secure Kindline, and that on going into the hall he was surprised to find Kindlino coming down-stairs, and on looking round, to see Johnston and Messersmith coming into the hall; that he then saw that nothing remained but to escape. To the same effect is the testimony of Keefer a.nd Mcllvaine.
    “ The Commonwealth relies upon the evidence of Messersmith and Kindline to show that the door was shut and latched; on the evidence of Messersmith to show that Rolland opened it; and on the four witnesses whom I have named above to prove that he wrent out of this room with the intention of securing, or quieting or shutting up Kindline, and-that the intention to escape was only formed when he saw Messersmith follow him into the hall; and on Keefer and Mcllvaine to show that after Kindline should be secured, the vault was to be robbed, and all the funds of the bank taken.
    “ If you believe these witnesses, and that Rolland meant to do what he told them was his intention when he left the room of the cashier and entered the hall — that is, if you believe that the door was latched and Rolland opened it after he thought Messersmith subdued, and went out into the dining-room and thence into the hall, with the design of securing Kindline, and after that of proceeding to rob the bank, then such unlatching of the door was a burglarious breaking, and he may be convicted on the first count of the indictment. If he is, he will be condemned out of his own mouth, for without the declarations made by him at the jail to the four witnesses, who speak as to them, there would be no evidence of an actual breaking.”
    The verdict was “ guilty in the manner and form indicted,” and a motion for a new trial having been overruled, the prisoner was sentenced to an imprisonment of eight years in solitary confinement at labor.
    He then took this writ, assigning for error the answer of the court to his second point and the portion of the charge noted.

      Duncan & McCrowan and J. McDowell Sharpe, for the plaintiff in error.
    — A careful examination of the authorities shows conclusively that in every case where the opening of an inner door and passing through it have been held a sufficient breaking in law to constitute burglary, the intention to commit a felony in the very room into which such entrance was effected was clearly present, and constituted the very essence of the offence : Edmond’s case, Hutton 20; 1 Hawk. P. C. 102; Rex v. Gray, 1 Strange 481, 2 East P. C. 488; State v. Wilson, 1 Coxe (N. J. L.) 441; U. S. v. Brown, 4 Cranch 604; State v. Henry, 9 Ired. 471.
    The facts assumed in our case show that Rolland, when he unlatched the doors and passed through them, had no immediate purpose of committing a felony in the room or place to which the doors led, but that in fact he was going away from the banking-room, which was the theatre in which his plot to rob the bank was to be enacted, if he had any such plot at all.
    We submit, then, that the learned judge was in error in ruling, that if the jury believed the facts assumed to be proved by the Commonwealth, Rolland was guilty of an actual breaking.
    The error is still more manifest, when, under the facts of this case, the court charged the jury that there vras an actual breaking under the Pennsylvania Criminal Code, and the Act of April 22d 1863, which were intended to provide for an offence where the entering is by night, without breaking, and which apply to this case.

      O. C. Bowers, District Attorney, and John Stewart, for the Commonwealth.
    — We have here a breaking and entering of a certain part of the dwelling-house in the night time for the purpose of doing an act in the furtherance of the general design to steal, and it indeed seems idle to undertake to say that it was not done with, intent to commit a felony. With what intention was it done if not with that one ?
    It is of no consequence that Holland was going out and away from the banking-room, which was to have been tlie theatre in which liis original plot was to b,e enacted, when he opened the dining-room door and started for Kindline.
    He W'as not breaking and going out, but he was breaking and entering that portion of the house in which he knew Mr. Kindline to be, for the very purpose of taking a second necessary step in the accomplishment of Ids design, that is, for the purpose of committing a felony. State v. Wilson, 1 Coxe (N. J. L.) 441, is an analogous case.
   Mr. Justice Paxson

delivered the opinion of the court, October 1st 1877.

This record presents hut a single question. Was there such a breaking as constitutes felonious burglary ? That the opening of an inner door may bo such breaking is too well settled to need discussion. If a person leaves bis doors or windows open, it is his own folly and negligence, and if a man enters therein it is no burglary ; yet if lie afterwards unlocks an inner or chamber door it is so : Sharswood’s Blackstone, vol. 2, p. 226. The same rule is asserted in Wharton’s Criminal Law, vol. 2, § 1536 ; 1 Bishop’s Or. Law 308; Roscoe, p. 302, and numerous authorities cited in which the point has been decided. It was conceded at bar that the law is so, but it was contended that in tlie case of the opening of an inner door, it must be accompanied with an intent to commit a felony in the very room so entered. We do not assent to this qualification of the common-law rule. If a burglar, entering by an outer door or window, incautiously left open, with the intent to commit a felony in a particular room in the house, as if lie intends to rob a safe with the location of which ho is familiar, and in furtherance of his design, and to enable him to accomplish it successfully, opens the door of the adjoining room in the same house to gag and bind the owner sleeping therein, it is a breaking within tlie meaning of the law defining the offence of burglary. Yet in such case there would be an entire absence of an intent to commit a felony in the bed-room. The binding of the owner, standing alone, would be a mere assault and battery, punishable as a misdemeanor. Taken in connection with tlie main-object it assumes a different character, and becomes a necessary incident of the felony, as much so as the lifting of a latch or the breaking of the door of the safe. The true test, as applied to an inner door of a house, is whether it was opened in the perpetration of or attempt to perpetrate the felony. If it was a necessary act in the perpetration of the felonious design, it can make no difference that the felony was to bo committed in an adjoining room. There may be cases in which the qualification referred to would apply, as in the case of a lodger at an inn who intends to commit a felony in another room in the same house. But if such qualification exists in any case, we fail to see its application to the facts of the case at bar. We will not strain the law to meet a particular case, nor will we refine it away in the interest of burglars. We think the court below submitted the question of intention fairly to the jury. They were told that if the prisoner opened the door for the purpose of escaping, he could not be convicted of burglary; but if it was done in furtherance of a design to commit a felony in the house, the offence was complete. This ruling -was clearly correct.

Our attention was called to the Act of 22d of April 1863, Pamph. L. 531, and it was urged that the second section of said act was' intended to meet such cases as this: that is, where there is an entering without the breaking of an outer door, but the opening of an inner door with intent to commit a felony. In Rolland v. The Commonwealth, 1 Norris 806, we endeavored to make the meaning of this act plain and to reconcile it with the 135th section of the Act of 31st of March 1860, Pamph. L. 415. I will repeat now what was said at greater length in that case: that we do not think the Act of 1863 was intended to apply to or affect the offence of burglary at common law, but to define and punish a new offence, unknown to the common law, yet partaking of the nature of burglary, viz.: breaking and entering by day and entering by day or by night without breaking; and also to apply to a class of buildings which are not the subject of common-law burglary, and that it was to such buildings only that the words “ with or” in the Act of 1863 have reference. We cannot make this subject any clearer. There is an admitted obscurity in the sections referred to, and a necessity for such a construction as would reconcile their seeming repugnancy. We could not assume it to have been the legislative intent to abolish the offence of burglary. In the case before us, the offence of common-law burglary was complete, and the provisions of the Act of 22d April 1863 have no application.

The judgment is affirmed.


author: Per Curiam.

text:
    Fries versus The Southern Pennsylvania Railroad and Mining Company.
    1. A railroad company unable to agree with the owner of lands for right of way, gave a bond and took possession for railroad purposes. Subsequently j the railroad and property were sold under proceedings of foreclosure upon | a mortgage : Held, in a proceeding by scire lacias against the purchasers to compel the payment of land damages, that the purchaser took a clear title and that the owner of the land was thrown back upon the bond for his said damages.
    2. Western Pennsylvania Railroad Co. v. Johnston, 9 P. P. Smith 291, distinguished.
    June 21st 1877.
    Before Aghew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Franklin county: Of May Term 1877, No. 217.
    This was a scire facias quare exeeutionem non sur judgment. The Caledonia Iron, Land and Railroad Company was incorporated March 22d 1867, and changed its name on April 30th 1869 to the Southern Pennsylvania Iron and Railroad Company. On March 1st 1870 it made a mortgage to J. Edgar Thomson and Frederick Watts, as trustees, to secure $625,000 of bonds, and on September 1st 1870 made a second mortgage to John Rice, as trustee, to secure $200,000 of bonds.
    The company having begun the construction of its railroad was not able to settle the land damages for its right of way through the land of Jacob Fries, plaintiff in error, and on Jan 8th 1871, filed its bond for $2000 with R. L. Jones, H. M. Keim and I). V. Ahl, as sureties. This bond was approved by the court. Viewers having been appointed at the instance of the company, they filed their report on March loth 1871, awarding $300 of damages. From this award an appeal was taken, and on November 3d 1873, a jury found a verdict in favor of plaintiff for $1717.73, upon which judgment was entered. Proceedings of foreclosure were commenced on the second mortgage, and the property sold .December 21st 1872, to John Rico for $305,000, subject to the mortgage to Thomson and Watts. The master appointed to distribute the fund arising from this sale, rejected the claim of plaintiff below, on judgment presented by him. The plaintiff below not having been paid his land damages issued a scire facias quare exeeutionem non against the Southern Pennsylvania Railway and Mining Company, as purchaser and terre-tenant of the Southern Pennsylvania Don and Railroad Company, to compel payment of his judgment. An issue was so framed, and on December 15th 1876, the jury was directed to find a verdict for plaintiff below for $2032.46, the court reserving the question of law whether under the law and evidence plaintiff was entitled to recover. Judgmentwas entered non obstante veredicto for defendant below, which was assigned as error.

      Stenger & McKnight and J. McDowell Sharpe, for plaintiff in error.
    — Land cannot b<? taken by a railroad company without compensation to the owner: Western Pennsylvania Railroad Co. v. Johnston, 9 P. F. Smith 291. The right to occupy is merely an easement, a right of way: Lance’s Appeal, 5 P. F. Smith 26; Spear v. Allison, 8 Harris 204; Shamokin Valley Railroad Co. v. Livermore, 11 Wright 466; Haldeman v. Pennsylvania Railroad Co., 14 Id. 436; Mayor of Allegheny v. Ohio & Pennsylvania Railroad Co., 2 Casey 360. A mere easement or right of passage is not the subject of a lien, or a sale under execution: Ammant v. Turnpike Co., 13 S & R. 210; Ridge Turnpike Co. v. Stoever, 2 W. & S. 548; Leedom v. Plymouth Railroad Co., 5 Id. 265; Canal Co. v. Bonham, 9 Id. 27; Plymouth Railroad Co. v. Colwell, 3 Wright 339; Steiner’s Appeal, 3 Casey 315; Calhoun v. Jester, 1 Jones 474; Krause’s Appeal, 2 Whart. 398; Dalzell v. Lynch, 4 W. & S. 255. Judicial sales extinguish liens, and not easements: Catlin v. Robinson, 2 Watts 373. The plaintiff has never piarted with his right of property: Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Borough of Harrisburg v. Crangle, 3 W. & S. 460.

      Kennedy & Stewart, for defendant in error.
    — The fee remained in plaintiff below, subject to the right of the company to use and occupy: Railroad Co. v. Johnston, 9 P. F. Smith 294; Haldeman v. Railroad Co., 14 Id. 437. The company tendered the bond and became entitled to the right. The owner parted with his right when security was given: McClinton v. Railroad Co., 16 P. F. Smith 407.
   The judgment of the Supreme Court was entered, June 26th 1877,

Per Curiam.

— This case differs from that of the Western Pennsylvania Railroad Co. v. Johnston, 9 P. F. Smith 291. There the railroad company had neither paid the money nor given the bond required by the law as security, before entering on the land. The entry was therefore unlawful, and the land remained liable to the re-entry of the owner. The charter of the Western Pennsylvania Company subjected that company to payment of all the unpaid damages, which were declared to remain a lien on the road. But here the railroad company gave the required bond and entered lawfully. The easement of the company was therefore lawfully acquired, and passed to the purchaser under the mortgage unencumbered by any lien, except the judgment upon the report of viewers, which, however, was obtained after the mortgage had been recorded. As the consequence of these proceedings, the purchaser took a clear title and the land-owner was thrown back upon his bond. It is argued that the principles of ownership stated in Railroad Company v. Johnston ought to govern; because the owner’s right is protected by the constitution and the law. True, his right is thus protected, but not from a taking with payment, in the exercise of the right of eminent domain, even under the old constitution of 1790 ; while the more recent constitutions have placed the power to exercise the right of eminent domain upon the alternative also of security. The security being given in due course of law the grasp of the owner upon his property is loosened by die constitution itself, and consequently the easement acquired passes freed from his power to obtain payment otherwise than upon the bond, and the proceeding by assessment of damages given by the law. Under the judgment obtained in this proceeding execution may issue to collect the damages from the company taking the land.

Judgment affirmed.


author: Mr. Justice Mercur

text:
    Appeal of Joseph M. Means et al.

    3. Whore a bank has become insolvent and under the general laws it is sought to make the directors and stockholders liable for its debts, proceedings must bo in the name of tho assignee, and in idle Court of Common Pleas of tho county in which the bank is located.
    2. The liability of the stockholders being secondary cannot be enforced until the assets of the bank, which is the primary debtor, are exhausted.
    June 21st 1877.
    Before Askew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward, and Sterrett, JJ.
    Appeal from the Court of Common Pleas of Franklin county: Of May Term 1877, No. 229.
    This was an appeal by Joseph M. Means and others, stockholders of the Farmers’ & Mechanics’ Bank of Shippensburg, Pa., an insolvent corporation, from a decree making them liable for the debts of the bank.
    The bill was filed by Jonathan A. West for himself and other creditors of the hank against Joseph M. Means and a large number of stockholders, and averred as follows: The incorporation of the bank by an act of the legislature, approved April 11th 1862 ; the fact that the defendants w'ere stockholders of the. hank ; the voluntary assignment of the bank to John P. Bhoads and Samuel S. Shryock, dated May 4th 1875; the certificate of deposit of plaintiff West for $400; the demand for its payment, and the refusal to pay it; the act of the legislature, approved April 11th 1862, providing that stockholders shall be fully and severally liable to the creditors of banks. The bill prayed for an account of the debts due by the bank, the liability of defendants for such debts, and general relief.
    The defendants filed pleas and demurred and averred that the causes of action occurred in Cumberland and not in Franklin county; that in certain proceedings in the Court of Common Pleas of Cumberland county an assignment was made by the bank on the 4th of May 1875, to John P. Rhoads and Samuel S. Shryock; that auditors were appointed by said court to examine into the affairs of the bank, and that by reason of such proceedings said court has exclusive jurisdiction over the matter alleged in the bill and that the remedy by scire facias prescribed by the 33d section of the Act approved April 16th 1850, is the exclusive remedy to be pursued by plaintiffs; that the bill is defective in that all the stockholders are not made parties defendant; that there is a complete and adequate remedy at law and that no case for an account is stated.
    The court below (Rowe, P. J.) overruled the demurrers, and the defendants with leave of court filed separate answers. Examiners' were appointed and took a large amount of testimony. A master was then appointed and reported in favor of plaintiffs. The report was confirmed and a decree made against defendants, but as the bill is dismissed for want of jurisdiction, the reporter has not deemed it necessary to state an abstract of the answers, of the examiner’s and master’s reports.

      F. M. Kimmell, J. McDowell Sharpe, W. Trickett, W. F. Sadler, S. Hepburn and S. Hepburn, Jr., for appellants.
    A law creating individual liability on the part of stockholders must be construed strictly: Gray v. Coffin, 9 Cush. 199; Moyer v. Pennsylvania Slate Co., 21 P. F. Smith 293; McMullin v. McCreary, 4 Id. 230. The liability is purely statutory: Brinham v. Wellersburg Coal Co., 11 Wright 43.
    A stockholder is responsible for the deficit to the depositors in the ratio between the number of shares held by him and the whole number of shares in existence at the time of the suspension of the bank, and only for the deposits made while he is the holder of stock : Angel & Ames on Corporations, § 611; 1 Smalley on Partnership 315; Cary on Partnership 112; Story on Partnership, § 152; Babcock v. Stewart, 8 P. E. Smith 179; Shamburg v. Ruggles, 34 Leg. Int. 133; Moss v. Oakley, 2 Hill 265; Corning v. McCullough, 1 Comstock 47.
    The Act of April 12th 1867 provides a full and complete remedy by a proceeding by scire facias; and this writ can only be issued by the prothonotary of the Court of Common Pleas of the county in which the hank is located : Gunkle’s Appeal, 12 Wright 13. There is no community of interest and the suit is wrongly brought: Small v. Atwood, Younge 458; Newton v. Earl of Egmont, 5 Sim. 137.

      A. B. Sharpe, T. B. Kennedy and John Stewart, for appellee.
    The act expressly charges the stockholders with liability. This was the intention of the legislature; while such liability may be in antagonism with the purpose of incorporation, yet it should be enforced, when it is plainly expressed: Allihone v. Hager, 10 Wright 53; Surry v. James, 46 Ky. 119. Each stockholder is liable for the whole sum of the deposits when the insolvency occurs; March v. Eastern Railroad Co., 43 N. H. 515; Merrimac Mining Co. v. Levy, 4 P. F. Smith 227; Webster v. Upton, 1 Otto 65; Ciften v. Harbough, 3 Bissell 422; Angell & Ames on Corporations 621; Curtis v. Harlow, 12 Metc. 3 ; Holyoke Bank v. Burnham, 11 Cush. 183. Stockholders are principal debtors: Young v. Rosenbaum, 39 Cal. 646; Davidson v. Rankin, 34 Id. 503; Mokelumne Canal Co. v. Woodbury, 14 Id. 265; Perkins v. Church, 31 Barb. 86; Allen v. Sewall, 2 Wend. 340; Harger v. McCullough, 2 Den. 123; Patterson v. Wyomissing Ins. Co., 4 Wright 117. As to jurisdiction this is a matter for the court, and equity has jurisdiction : 1 Story’s Eq. Jur. 421; Brightly’s Eq. Jur. 171; Bank of Virginia v. Adams, 1 Pars. Eq. Cas. 541; Bank of Kentucky v. Schuylkill Bank, Id. 219; Boyce v. Grundy, 3 Peters 215; Kirkpatrick v. McDonald, 1 Jones 392; Skilton v. Webster, Brightly 233.
   Mr. Justice Mercur

delivered the opinion of the court, October 1st 1877.

The Act of 16th April 1850, Pamph. L. 478, contains general provisions applicable to all banks thereafter to bo created under any special Act of Assembly. It prescribes a. general system for the creation, government and liquidation of banks. It specifically declares that the stockholders of every such bank, in addition to the corporative liability, shall be jointly liable to the creditors of said bank, being noteholders, in their individual capacities for the amount of all notes issued; and the manner of enforcing such liability in case of the insolvency of the bank is also prescribed. The 33d section directs the assignees to cause a scire facias to be issued by the prothonotary of the Court of Common Pleas or District Court of the county in which the bank is located, against all the stockholders of said bank, reciting the amount of the deficiency, and requiring them to appear at the next Court of Common Pleas or District Court in said county, and show cause why execution should not be issued against them for such amount.

The Farmers’ & Mechanics’ Bank of Shippensburg was incorporated as a bank of discount and deposit, by the Act of 11th April 1862, Pamph. L. of 1863, p. 661. The proviso to section second of the act declares that “ the stockholders of said company or corporation, in addition to the corporate liability, shall be jointly and severally liable to the creditors of said bank, in their individual capacities, for the amount of all deposits made with said company or corporation, whether the same be interest or transient deposits.”

The act does not provide iñ what county, nor in w'hat manner, this personal liability shall be enforced. The eighth section, however, declares “ that the said bank shall be subject to the provisions and restrictions of the several acts relating to banks, so far as they are applicable thereto.” Thus it appears this special act did not profess to furnish, by itself, a complete system for the bank thereby created. It provided for the organization ; but when established, it declared the corporation subject to previous legislation relating to banks: This special act was thus blended with the general acts. They became a part of its charter. They are in fari materia with the special act. Whenever the special act is silent recourse must be had to them, to ascertain the powers, and to enforce the duties and obligations of the bank and of the stockholders.

The bank in question was fraudulently insolvent. It had made an Involuntary assignment. The Act of 1850 declares proceedings to enforce a personal liability of the stockholders shall be instituted in a court of the county in which the bank is located. The Farmers’ and Mechanics’ Bank of Shippensburg was located in Cumberland county. These proceedings were commenced in the Common Pleas of Franklin county. The fact that the remedy is sought by bill in equity does not change the forum. The Act of 12th April 1867, Pamph. L. 71, provides, in cases of proceedings against the officers and directors of a bank, through whose acts the fraudulent insolvency thereof was caused, they shall be by bill in equity, in the Court of Common Pleas or District Court of the county in which the bank is located, and in the name of the assignees. Thus whenever the statute prescribes the remedy to enforce a personal liability of the officers or stockholders of an insolvent bank, it directs that the proceedings be in the name of the assignees, and in a court of the county in which the bank is located. This is required for many reasons. The whole assets have passed into the hands of the assignees. The creditors of the bank and the stockholders thereof are interested in their distribution. The court of that county has acquired jurisdiction of the accounts of the trustees. Upon that court has devolved the duty of distributing all the assets.

It was contended on the argument that the liability of the appellants does not depend on the insolvency of the bank of which they were stockholders; that they are primarily liable, and that a proceeding in behalf of a depositor may be sustained against them, wholly ignoring the assignees and the condition of the bank. In this conclusion we cannot concur. It is contrary to the whole spirit of the statutes making incorporators personally liable. The individual liability of the stockholders is in derogation of the common law. The liability of the members of a corporation for its debts was merged in the associated body. The artificial body alone was responsible. A statute changing this liability must be construed strictly: McMullin v. McCreary, 4 P. F. Smith 230; Moyer v. Pennsylvania Slate Co., 21 Id. 293. While full effect must be given to the clear intent of a statute creating a personal liability of the stockholder of an incorporated company, yet it is not to be extended by implication: Id.

The debt due a depositor is still a debt due from the bank. The property of the bank is primarily liable for the payment of the debts of the corporation. The assets of the bank should first be applied in discharge of that indebtedness. The personal liability of the stockholders is designed as further security to a depositor ; hence, although a stockholder is personally liable to a depositor, yet, unless the statute directs otherwise, it is a liability which in equity cannot bo enforced until the assets of the bank, which is the primary debtor, are first exhausted. This rule is clearly recognised in Patterson v. Wyomissing Manufacturing Co., 4 Wright 117. The third section of the Act of 20th April 1858, declared the stockholders should be jointly or severally liable in their individual capacities for all debts, contracts and other liabilities of the company. Yet, said Mr. Chief Justice Lowrie, “ What is the character of their liability ? We think it is secondary, not primary; collateral, not principal; analogous to a case of guarantee, to be enforced if the regular process of the principal contract proves fruitless, or if the corporation becomes insolvent.”

It is clearly manifest that equity requires the assignees to be a party to any proceedings for the enforcement of the individual liability of the stockholders. All the remedies given by the statute for the protection of a depositor can be enforced in the name of the assignees: Gunkle’s Appeal, 12 Wright 13. The equities of all parties can then be reached. We think the statute requires it.

The assignees have not settled any account. The debts due the bank have not been collected. The amount they will pay has not yet been ascertained.

It follows that the Court of Common Pleas of Franklin county had no jurisdiction of this bill. It was not in the name of the proper parties, and was premature. The 8th, 26th, 27th and 81st assignments are therefore sustained.

As this view is fatal to the bill, it is unnecessary to consider the remaining assignments ; we therefore now refrain from indicating any opinion in regard to them.

Decree reversed and bill dismissed at the costs of the appellees.


author: Mr. Justice Sharswood

text:
    Raby, Executor of Cell, versus Cell.
    1. To submit a ease to the jury there must be evidence of such a character that the mind may reasonably rest upon it, though it may be with some hesitation. A jury ought never to be left to mere conjecture, where sympathy or some other equally improper motive will be sure to turn the scale. It is not too much to insist that there shall be evidence of circumstances on which the conclusion asked for may be reasonably predicated.
    2. Where the verdict for the plaintiff would have been without sufficient evidence to sustain it the court was right in taking the case from the jury.
    June 21st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Serrettt, JJ.
    Error to the Court of Common Pleas of Franklin county: Of May Term 1877, No. 226.
    Debt by Adam Raby, executor of John Cell, deceased, against John S. Cell, upon the following instrument of writing :—
    “ Saint Thomas, May 1st 1869.
    “ Eor value received, I acknowledge myself indebted to my father, John Cell, in the sum of three thousand dollars, with interest from April 1st 1869, the interest to be paid annually; my father, John Cell, agreeing not to collect the principal unless his circumstances are such as actually require it.
    (Signed) John S. Cell [seal].”
    Endorsed thereon were credits for interest for the years 1870, 1871, 1872 and to April 1873; together with a credit on the principal as follows: “ April 1st 1872, paid on the within note $1280 dollars.”
    The defendant pleaded payment, payment with leave, &c., to which plaintiff replied non solvit and issue.
    The following facts were admitted on the trial: That John Cell died in January 1874; that the consideration of the note was a prior indebtedness to John Cell; that at the date of the single bill, John Cell, the payee, had two children living, John S. Cell and Rebecca Raby, and three grandchildren, the children of Christian Cell; that he had shortly before the date of the single bill, namely, on the 12th of January 1869, married a second wife, who survived him ; that he had a farm in Peters township of 128 acres, worth $100 per acre; also two houses and a barn and eight acres of land in Bridgeport, worth $6000; also ten acres of mountain land worth $150 ; that his debts were at the date of the single bill $6700, which continued unpaid until his death, and in addition thereto, debts to the amount of $1866 were contracted between the date of the note and his death, which were also unpaid at his death.
    It was in evidence that Cell, the father, was in debt, and that to demands of various parties for payment he had replied: “ That is all I can pay just now, that that was all he had; that he had money coming from different persons, and could not get it in ; that that was all he could pay at the time ; that he had not money to pay his taxes, and had asked for the loan of some; that he generally complained of being bad off for money ; said he had money standing out; that he could not collect it.”
    It also appeared that the son, John S. Cell, had paid $200 on account of an indebtedness of his father, while the latter was ill, and without his solicitation.
    The plaintiff offered to prove that John Cell, Sr., was largely indebted to the witness subsequent to the giving of the note in suit, and that said John Coll gave to the witness as the reason for his not paying the same that he was expecting the money from his son John Cell, the defendant, but that he could not get it from him.
    The defendant objected on the ground that the declarations of John Cell, Sr., to the witness in the absence of defendant could not affect his rights or change the terms of the note in suit, which objection the court (Rowe, P. J.) sustained.
    The plaintiff also submitted the following points, all of which the court refused and directed a verdict to be found for the defendant:—
    1. It is for the jury to say whether the circumstances of John Cell, Sr., the payee in the note in suit, were such as to actually require the payment of the principal in said note mentioned, and in determining this question the jury are not to regard the personal wants of the said John Cell, Sr., but must consider the condition of his estate with reference to the indebtedness which he had contracted, and from this determine whether the contingency expressed in the note had arisen.
    2. That if the jury shall find from the evidence that the circumstances. of the said John Cell, Sr., did actually require the collection of the note in suit, it is not necessary that the plaintiff should prove an actual demand made by the said John Cell, Sr., in his lifetime for the payment of said principal, but the jury may infer from the payment made by said defendant that such demand was made.
    3. That the payment of $1280 by John Cell, the defendant, on the 1st April 1872, was an unequivocal admission on his part that he then knew that the circumstances of his father at that date actually required the payment of the principal mentioned in the note, and by reason of such payment the note in suit became absolute and payable thereafter on demand.
    4. That even though the contingency expressed in the note in suit never did arise in the lifetime of John Cell, Sr., the note in suit became absolute and payable on his death.
    After verdict and judgment for defendant, plaintiff took this writ, assigning for error the foregoing instruction of the court and the rejection of his evidence.

      Kennedy & Stewart and F. M. Kimmell, for plaintiff in error.

      —The clause in the bill is a latent ambiguity, which could only be interpreted in the light of the circumstances and acts of the party at the date of the bill, and subsequently to the death of the father. Evidence of this condition of things was admitted by the court and should have been permitted to go to the jury on the question involved in the issue. To the importunities of his creditors the father had but one reply, that he had no money. To pay his taxes he had to borrow. We contend that this was the exact condition of things which the father anticipated and for which he provided in the bill. It was not his intention during his lifetime to call for the principal of the bill unless these claims were pressed upon him, and if they were, then the debt was to be paid in full.

      F. S. Stumlaugh and J. McDowell Sharpe, for defendant in error.
    — We contend that it was the manifest primary intention of the father to make a gift of the principal of the note to his son; that he reserved the right to reclaim the principal only in case his pecuniary circumstances actually required it; that he was to judge when this contingency had occurred, and not the jury, and that his determination that the contingency had in fact occurred was to be evidenced by a demand of the principal from the son, or by some step to collect the same by legal process in his lifetime, of which there was not a scintilla of evidence; that if all the evidence was believed, it did not prove that the pecuniary circumstances of John Cell were such as actually required the payment of the principal; that his estate was solvent, and that the construction of the single bill belonged to the court.
   Mr. Justice Sharswood

delivered the opinion of the court, October 1st 1877.

There are cases which seem to lie on the very border-line between the provinces of the court and jury, in which the application of the rule that requires them to be carefully distinguished is very difficult. At one time, indeed, it was the admitted doctrine that if there was any, the least evidence, a mere scintilla, the question must be submitted to the jury. But that doctrine has been very justly exploded, both in England and this state. There must be evidence of such a character that the mind may reasonably rest upon it, though it may be with some hesitation. A jury ought never to be left to mere conjecture, when sympathy, or some other equally improper motive, will be sure to turn the scale. It is not too much to insist that there shall be evidence of circumstances of which the conclusion asked for may be reasonably predicated.

This case is on the very dividing-line, and it must be admitted that it is not of easy determination. The decedent expressly agreed, as one of the terms of his loan to his son, not to collect the principal, unless his circumstances were such as actually to require it. It is conceded that the right to require payment was in him. He died, and we have certainly no direct evidence of any such requisition. Was there evidence of any facts from which the jury might reasonably have drawn such an inference? The learned judge below thought that there was not, and we are not prepared to say that in this there was manifest error.

Two facts are relied on to show that there had been such a demand. The first is that there was a payment to the decedent in his lifetime on account of the principal. But as the decedent might have been satisfied with such part payment — in other words, as his circumstances may have been such as only to require that much, how can it be inferred from that alone that he had demanded the whole ? The second is, that the defendant voluntarily paid a bill against his father, without his request or knowledge, while he was sick. But this is more unsubstantial, as a ground of inference, than the first. The act of the son to relieve his father from the importunity of a creditor while he was not in a condition to attend to business, may be referred to his filial affection and gratitude; and after all, it Avould only be evidence of a demand to that amount. If indeed it had appeared that the deceased had died insolvent, so that the principal was required to pay his just debts, the case presented would have been entirely different. But the evidence fell far short of this. It is admitted that at the date of the note, which was for $3000, the decedent Avas the owner of real estate worth $18,000 and upwards. This was only four years before his death. That ho had debts, and was pressed for payment; that he OAved at that time $6700, and that between that and the day of his death his indebtedness had increased $1866, might all well be without his feeling that he ought to call on his son for more of the principal of this note than Avas actually paid.

As the offer to prove the declaration of the decedent to a third person, that he Avas expecting money from his son, but could not get it from him, did not specify whether it was before or after the date of the partial payment, it was rightly rejected, even conceding that such a declaration Avould have been admissible, for if it Avas prior to the partial payment, it might have referred to the demand for that, and so been entirely inconclusive as to a demand for the whole principal or the balance remaining unpaid.

Wo think a verdict in favor of the plaintiff would have been without sufficient evidence to sustain it, and the learned judge below was therefore right in taking the case from the jury.

Judgment affirmed.