author: Chief Justice Agnew

text:
    Brown versus Commonwealth.
    1. On a challenge to the polls of grand jurors the defendant cannot examine the jurors on their voir dire as to the alleged cause of challenge ; but may establish it by evidence aliunde.

    2. A bill may be sent to the grand jury by the district attorney, with the sanction of the court, without previous binding over.
    3. After exhausting the regular panel, a venire for talesmen generally, authorizes the selection of jurors from the county at large as well as from bystanders.
    4. When two persons are murdered at the same time and place, under circumstances evidencing that both murders were committed by the same person, and were part of the same transaction, &c., evidence as to the circumstances of the murder of one is admissible on the trial for the murder of the other.
    5. On a trial for murder, there was evidence that the defendant had in his possession coin at a time when specie payments were suspended; that the murdered man was living in a place where there was no safe deposit for money; under these circumstances evidence was admissible that the murdered man had received a quantity of coin, although several years before.
    6. In order to establish identity, evidence that the witness gave testimony in a prosecution against prisoner for another murder, and that he recognised him as the person from whom he purchased coin the morning after the murder, was properly admitted without producing the record of the prosecution.
    7. A prisoner confined in the jail with the defendant, testified that he held a conversation with the defendant through the soil-pipes, in which defendant confessed his guilt, and that the witness knew it was the defendant from his voice. Held, that the testimony was admissible ; its weight was for the jury.
    _8. The court charged the jury, that they might acquit the prisoner or find him guilty of murder in the first or second degree, and state the degree in their verdict. Held, that it was not error to omit instructing the jury on the subject of manslaughter, no instruction having been asked as to that.
    9. It is not error in the court to omit instructing a jury on the abstract principle, that on an indictment for murder, there may be a conviction for manslaughter.
    10. McCullough v. Commonwealth, 17 P. F. Smith 30, followed.
    May 27th 1874,
    at Harrisburg. Before Agnew, C. J,, Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Criminal Court of Schuylkill county: No. 226, to January Term 1874.
    At the April Term 1872, of the Criminal Court of Schuylkill county, two indictments were found against Joseph Brown; one for the murder of Daniel S. Kraemer, and the other for the murder of Annetta Kraemer his wife. He was tried at the August Term 1872 on the indictment for the murder of the husband, was found guilty of murder in the first degree, and sentenced to be hung. The record was removed to the Supreme Court by writ of error, and the judgment there reversed; one of the grounds of the reversal being that the grand jurors who found the indictments had not been properly selected: 23 P. F. Smith 321.

      At July Term 187 3, the district attorney sent a new bill to the grand jury ; it Avas returned a true bill. The case Avas continued, on the application of the defendant, until October Term 1873. The trial commenced October 28th 1873, before Green, P. J., and on the 15th of November, the jury found the defendant guilty of murder in the first degree. He was sentenced to be hung and took out this writ of error.
    The proceedings, evidence, &c., are not contained in the paper-book, except as they appear in the assignments of error, which will sufficiently elucidate the questions decided in the Supreme Court.
    The specifications of error were not passed upon in the opinion of the Supreme Court in their numerical order, but were grouped together when relating to one general subject; they are here stated in the same order.
    The 1st and 8th assignments of error were upon the defendant’s separate motions to quash the array of grand and petit jurors respectively, because the venire was issued by C. E. Rahn, as clerk of the Criminal Court of Schuylkill county, an office to which he was not elected nor commissioned, and had not given security and been qualified, because the prothonotary and clerks of the courts had not certified to the sheriff and jury commissioners, at the end of each term, the names of jurors making default or excused; and that the sheriff and jury commissioners had not returned such names to the jury-wheel when the present panel was drawn; and because the jury-wheel was not secured according to law ; had been unlocked in the absence of the sheriff and not locked and sealed as required by law.
    The district attorney traversed directly all the allegations set forth as reasons for the quashing the arrays.
    The court overruled the motions to quash and sealed several bills of exception.
    2d, 3d, 4th and 5th assignments: The defendant, July 7th 1873, challenged to the polls for favor, certain grand jurors named by him, and moved to show cause, before the grand jury should be sworn, why the persons named should not be excluded from passing upon the charge against the defendant, they not standing indifferent, and that he be permitted to prove this on the voir dire of the grand jurors or by any other kind of competent testimony.
    The court below, on this motion, ruled that the defendant might prove the facts alleged in his motion as a cause of challénge, but would not permit him to examine a grand juror on his voir dire to prove the' cause of challenge assigned against him, and sealed several bills of exception.
    6th assignment. After the indictment was found, the defendant moved to quash it because it had been “ sent to the grand jury by the district attorney without previous prosecution, hearing or binding over.”
    The court overruled the motion and sealed a bill of exceptions.
    10th assignment. The regular panel of jurors having been exhausted, the court ordered “that a tales de eircwmstantibus do issue for one hundred talesmen, returnable to-morrow morning,” &c.
    The defendant moved to quash the panel returned because “ the jurors summoned and returned are not de eircumstantibus, but of the county at large, having been summoned from various places in said county.”
    The court overruled the motion and sealed a bill of exceptions.
    14th and 15th assignments were to the admission of the following offers of evidence:— "
    “ The Commonwealth proposes to prove by Daniel M. Kraemer, a son of the deceased, that upon Monday morning, between the hours of eight and nine o’clock, in going from his mother’s house to the house of John Adam Brown, a near neighbor, for the purpose of giving an alarm, he found the body of his father lying dead in the lane, about two hundred yards from the house, to be followed by evidence that the chest, bureau and desk at the house had been broken open; to show7 that the motive of the murder was robbery, and the death of Daniel S. Kraemer was an incident in the accomplishment of this object, and as a fact and circumstance descriptive of the manner in which the murder of Annetta Kraemer was accomplished.”
    “ The defendant does not object to any evidence as to the condition of the chests or furniture in the house, but objects to all the other portions of the offer.
    “ 1. The finding of Daniel S. Kraemer dead some two hundred yards from the house is a circumstance which does not throw any light upon the charge for which defendant is now being tried.
    “ 2. The defendant is under indictment for the killing of Daniel S. Kraemer; it is in fact and has been treated by the Commonwealth as an independent affair, and defendant objects to being tried for killing Mrs. Kraemer, and convicted of killing Daniel S. Kraemer.
    “ 8. It does not appear in the offer that the facts proposed prove or tend to prove the motives alleged in the offer.”
    “ The Commonwealth proposes to prove by the witness Daniel M. Kraemer and others, that he and they made an examination of the body of Daniel S. Kraemer, found by his son, the witness, on the morning of the 25th of February 1872, and also the result of said examinations as to the nature and character of the wounds found upon his person, the condition of his clothing and general appearance. This to be followed by evidence of the admission of the prisoner that he killed Daniel S. Kraemer, and also to be followed by evidence that there was a large amount of silver and gold coin in the house of said Daniel S. Kraemer, which fact was known to the prisoner. This for the purpose of showing motive on the part of the prisoner in the murder of Annetta Kraemer at the house where such coin was kept.”
    “ The defendant objects that the offer is indefinite, and does not state what facts are to be proved as to the nature and character of wounds found on Kraemer, nor whether his death was the result of injuries or natural causes.
    “ The defendant’s admissions in respect to Kraemer are immaterial in this case, and no more evidence in this case than the dying declarations of Mrs. Kraemer would be in a trial of defendant for killing Kraemer.
    “ The offer to prove that Kraemer had in his house gold and silver is immaterial, and does not prove any material matter in this case.
    “ The matter stated in the offer does not tend to prove any motive for killing Mrs. Kraemer.”
    The court admitted the offers, and sealed several bills of exception.
    The 16th, 18th, 19th, 21st, 22d, 24th, 25th, 26th and 34th assignments were to the decisions of the court on the following offers of evidence: — ■
    “ The Commonwealth proposes to prove by the witness Daniel M. Kraemer, that within two years prior to the 25th of February 1872, he saw a large quantity of gold and silver coin in his father’s house; to be followed by evidence that about one year prior to the said date, five hundred dollars in gold and a large quantity of silver coin was in the house, and that immediately after the death of Daniel S. Kraemer and prior to the death of Annetta Kraemer, but after she had received the injuries which resulted in her death, the prisoner had in his possession a large quantity of silver coin, which he admitted that he had taken .from Kraemer’s house. This on the question of motive for the murder of Annetta Kraemer.”
    “ The defendant objects that the proof of gold and silver in the house of Kraemer one or two years before the 25th of February 1872, is too remote, and therefore irrelevant; that there is no legal presumption that he had such gold and silver in his possession February 25th 1872.
    “ That as it is not claimed that any of Kraemer’s gold and silver was taken at the time the offence was committed, nor at any -other time, the offer is irrelevant.
    “ If all the offer contains be true, the facts do not prove a legal inference that the prisoner committed the crime charged against him.
    “ It is not proposed to prove that the gold and silver witness saw was the property of Kraemer or even in his possession.”
    “ The Commonwealth proposes to prove by the witness that her father, John Machmer, at his death, left a large amount of gold and silver coin; that this coin was distributed by his legal representative among the heirs; that witness was present when the share of Annetta Kraemer, one of the heirs, was paid to her; that the said John Machmer died about four years prior to the death of Annetta Kraemer, and this distribution was made some time subsequent to his (Machmer’s) death; to be followed by evidence that said coin was kept in the house of Kraemer from the time it was paid until the 25th of February 1872; and also to be followed by evidence that Joseph Brown, the prisoner, had in his possession on the 26th day of February 1872, a large quantity of silver coin, which he admitted he had taken from the house of Kraemer on the night of the 25th of February 1872. This for the purpose of showing the prisoner’s motive and presence at Kraemer’s on the night of the 25th of February 1872.”
    The defendant objects that the witness has stated at least four times that she did not see or know of any money in Kraemer’s possession within two years of the death of Mrs. Kraemer, and that her sister got her inheritance some years a.go, but that she did not know where it was kept, nor whether she had it or any of it at her death. The facts proposed are immaterial, and the evidence of 'Mrs. Kraemer’s receipt of money too remote as to time to raise any presumption; that in a murder trial the Commonwealth should prove the loss of coin from Kraemer’s house and the possession of it by the defendant before they show that it was the property of Kraemer or his wife.”
    “ The Commonwealth proposes to prove by the witness David Machmer, that he, as executor of his father’s estate, paid to Annetta Kraemer, one of the heirs of said estate, a large amount of gold and silver coin (about two months after the death of John Machmer, who died in August 1867), prior to death of said Annetta Kraemer. To be followed by evidence that Joseph Brown, the prisoner, had in his possession immediately after the injuries as aforesaid were inflicted upon Annetta Kraemer, a large quantity of silver coin, which lie admitted he got at the house of Daniel S. Kraemer on the night of February 25th 1872, the time when said injuries were inflicted. This on the question of motive for the commission of the murder of said Annetta Kraemer.”
    “ The defendant objects to all that part of the offer which relates to payments by Machmer, the witness, to Mrs. Kraemer, as too remote and under the offer too irrelevant.”
    “ The Commonwealth proposes to ask the witness on the stand, whether a young man came into his, witness’s place of business, on Monday February 26th 1872, and sold there a quantity of silver coin, and if so, the time of day and how the person was dressed, it having been already proved that the prisoner, Joseph Brown, was in Pottsville about the time it is.proposed to prove the silver was sold and that the person who sold it was dressed in the same manner as' Brown. This as evidence to be submitted and passed upon by the jury on the question of the identity of the prisoner as the person who sold the silver as aforesaid.”
    “ The defendant objects that the prisoner has stood up before the witness on the stand, and the witness having stated that he cannot say that he ever saw the prisoner before, and that he cannot recognise him, the question proposed is not admissible. ■ The Commonwealth.are bound to remove all doubt about the identity of the’person who, if any, sold the silver, and cannot ask the jury to guess that a person, though he may have- been dressed similar to the prisoner, might have been the prisoner.”

      “ The court permits the Commonwealth to prove facts such as point to the identification of the prisoner, as description of dress, &c., and then to prove the facts proposed to be proved as to the silver.”
    “ Commonwealth proposes to ask the witness whether he learned there the name of the person whom he recognised at the time.”
    “ Defendant objects to it unless he learned it from the defendant himself.”
    “ The Commonwealth having already proved that Joseph Brown, the prisoner, was in the borough of Pottsville, on Monday morning, the 26th of February 1872; that he was dressed in a blue army overcoat and had a black slouched hat on; that he offered to Charles Kantner silver coin for sale; that he sold gold and silver coin to H. H. Huntzinger; now proposes to prove by the witness on the stand that he purchased old silver coin upon the same morning, and about the same hour, from a person of the height of the prisoner, dressed in a blue army overcoat and black slouched hat. This for the purpose of being submitted to the jury on the question of the identity of the person selling the coin with the prisoner, and to be followed by evidence of the admission of the prisoner that he had silver coin in his possession, which he took from Kraemer’s house on the night Annetta Kraemer received the injuries of which she subsequently died.”
    “ The defendant objects that the matters proposed to be proved are irrelevant; that this evidence does not propose to prove that the prisoner sold any silver to the witness at the time and place stated in the offer. The purchase of silver of a person the height of prisoner, dressed in a blue army overcoat and slouched hat, does not support the issue in this case. The purpose of the evidence set forth in the offer is not material in this case. If the witness cannot identify the person from whom he bought silver coin, it is illegal to submit the question of identity to the jury, whose means of identification are much less than the witness, and therefore less competent to judge who sold the silver than the witness.”

      “ The Commonwealth proposes to prove by the witness on the stand, Meyer Kuhn, that on the 26th day of February 1872, about nine o’clock in the morning, the prisoner, Joseph Brown, bought of the witness a suit of clothes and handkerchief. This for the purpose of proving the possession of money by the prisoner at said time, it having already been proved by the Commonwealth that the prisoner exchanged silver coin upon the morning in question for paper-money; to be followed' by evidence of the admission of the prisoner that he took silver money from the house of Kraemer on the night Annetta Kraemer received the injuries of which she subsequently died. This to be submitted to the jury to be passed upon by them as to whether the paper-money paid to witness was not the money received in exchange for the coin as aforesaid, the money taken by the prisoner in the perpetration of the murder of Annetta Kraemer. It having already been proved that the prisoner had not received any money for his labor, for the work done by him for weeks prior to the murder of Annetta Kraemer, and to be followed by evidence that the prisoner had received but little money for a long time prior to said 26th of February 1872.”
    “ The defendant objects that it is immaterial what he did with the money for which Commonwealth alleges he exchanged silver. The proposed evidence is irrelevant. The object proposed to be proved by this offer is immaterial. The purchase of the clothes was after 'the commission of the alleged crime, and has no connection therewith. It is not alleged that prisoner took any paper-money from the house of Kraemer, and the payment of paper-money by him cannot be material.”
    “ The Commonwealth proposes to prove by George Worcester, the witness, that on Monday, the 26th day of February 1872, about noon, the prisoner left with him, at his eating-saloon at Auburn, an oil-skin bag containing a suit of clothing, hat, necktie and suspenders, and that at the same time he bought ale in this saloon for himself and one Raush. This on the question of the expenditure and possession of money and property in unusual amounts by the prisoner immediately after the infliction of injuries upon the person of Annetta Kraemer, of which she subsequently died, and to be submitted to the jury upon the question of preparation for flight, to be followed by evidence of the confession of the prisoner that he took the silver money from the house of Kraemer on the night of the 25th February 1872.”
    “ The defendant objects that the evidence proposed in this offer is irrelevant.”
    “ The Commonwealth proposes to prove by the witness on the stand that she was present when a tin box, containing silver coin, was found on the 10th of June 1872, in the barn of the father of the prisoner with whom he resides ; that this money was found in a place which evinced secrecy. The Commonwealth having already established this as the place of concealment of money, which the defendant confessed he got from Kraemer’s on the night the injuries were inflicted of which Annetta Kraemer died. This for the purpose of showing the prisoner’s presence at Kraemer’s on the night of the murder, and the motive for the crime.”
    "“Defendant objects: that the testimony offered is too remote; that the Commonwealth does not propose to identify the money found June 10th with any money ever in Kraemer’s possession.”
    The court admitted these offers of evidence and sealed several bills of exception.
    23d assignment. “ The Commonwealth proposes to prove by the witness upon the stand that he gave testimony in a prosecution between the Commonwealth and Joseph Brown, upon a charge of the murder of Daniel S. Kraemer, and that he recognises the defendant in that prosecution as the person from whom he purchased silver coin on Monday morning, after the killing of Daniel S. Kraemer, to be followed by evidence that the defendant in that prosecution is the same person as the prisoner at the bar.”
    “The defendant objects that the only evidence of the proposed prosecution is the record thereof, which is not evidence in this case; also, to any parol evidence of the prosecution proposed in this offer as immaterial, and not the best evidence which the nature of the case is susceptible of, that evidence of another prosecution, as proposed, tends to the injury and prejudice of the prisoner before the jul7-”
    The court admitted the evidence offered and sealed a bill of exceptions.
    28th, 29th and 30th assignments:—
    “ The Commonwealth proposes to prove by the witness John J. Kaercher, that he assisted Ewing, the constable, in making the arrest of Joseph Brown, the prisoner, what conversation took place between himself and the prisoner from the time of such arrest until they arrived at Pottsville, for;the purpose of showing by such conversation that the prisoner admitted his presence at the house of Kraemer on the night and at the time the injuries were inflicted upon Annetta Kraemer which caused her death, and also his admission that he took money from the premises.”
    “ The defendant objects that the above offer is indefinite and does not set forth the conversations proposed to be proved, so as to show their relevancy.”
    “ The defendant proposes and now asks the court to order the ■Witness to stand aside for the present, and that the jury be withdrawn from the court-room, to allow him to offer proof and show that any conversations he may have had with the witness, and any confessions he may have made to witness, were not voluntary, but extracted from him while under arrest and charged with homicide, by promises of hope held out to him and by threats and appeals to his fears. The defendant further objects to the conversations not set forth as irrelevant.”
    “ The court, before ruling upon the offer of evidence made by the Commonwealth and objected to by the defendant, will permit evidence to be given to the court to show that the conversations referred to in the offer were not voluntary, and made under such circumstances that they ought to be rejected as evidence; and further direct that, pending the decision of the question, the court will comply with the defendant's request that the jury retire.”
    “ Commonwealth offers as witness John J. Kaercher, to show that he offered no inducement, and that these confessions and statements were not made either by exciting hope or fear in the mind of the prisoner, and also for the purpose of contradicting F. W. Bechtel, a witness produced by the defendant, as to statements made to him by Kaercher.”
    “ The defendant objected that he having shown by evidence of witnesses that the declarations and confessions were obtained by threats, and by exciting hopes in the prisoner, the witness Kaercher is not competent to qualify himself to testify by his own testimony, and for the additional reason that the Commonwealth have put in evidence Ewing’s testimony to prove inducements to confess, and they cannot contradict that evidence, as they now propose to do. The prisoner, under the evidence that has been submitted upon the preliminary question as to the proof of confessions by him, requests the court to rule that, under all the evidence that has been submitted to the court upon the question, the confessions proposed to be put in evidence are inadmissible.”

      “ The Commonwealth objects to the above objection, for the reason that under the preliminary testimony, and after the same had been offered, passed upon by the court, the Commonwealth offered the witness who had received the alleged admissions or confessions from the prisoner, to which offer the defendant excepted and has the full benefit, and the Commonwealth object because the prisoner has already excepted to the testimony.”

      “ The court, after hearing the testimony of the witness, decides to admit the evidence of Joseph J. Kaercher, as to the conversations referred to in the offer of the Commonwealth, and declines, by reason of the conflict of testimony, to rule that, under all the evidence in the case, the confessions are inadmissible, but will refer the question of fact to the jury to determine as to the circumstances under which said conversations took place, under such evidence as may be produced.”
    Several bills of exception were sealed by the court.
    31st, 32d and 33d assignments:—

      “ The Commonwealth proposes to prove by Joseph Trumbo, the witness upon the stand, confessions made by the prisoner within his hearing as to the prisoner’s participation in the robbery of the Kraemers, husband and wife, and his presence at the house upon the night when the injuries were inflicted upon Annetta Kraemer, of which she subsequently died.”
    “ The defendant objects that the offer does not set forth what the confessions are, and therefore defendant cannot say whether or not they are material. He therefore prays the court for a more specific offer. The testimony of the above witness has been taken on a former trial, and it appeared then that the alleged conversations between witness and defendant were carried on, not in the presence of each other, but through the water-pipes in the county prison, and that the witness did not see the defendant, and had no other means of recognition of defendant than his voice; If this offer refers to such conversation, defendant prays that it may appear in the offer, that he may have an .opportunity to object. As this offer refers neither to time, place nor other circumstance, defendant is deprived of any objection, except it be founded upon an assumption that may or may not be true. Defendant therefore, being unable to determine from the character of the offer what objection to make, prays the court to reject this offer and require the Commonwealth to specify with more certainty the confessions and other matters which they propose to prove.”
    “ Commonwealth proposes to prove by the witness on the stand that he was confined in the Schuylkill county prison; that a short time after the arrest and imprisonment of Brown, the defendant, the witness had a conversation with Brown through the pipes of the water-closets in the prison ; that in the conversation thus conducted the prisoner admitted his participation in the murder of Annetta Kraemer, and that robbery was the object of such murder; that the witness did not see the prisoner, but recognised him by his voice alone; to be followed by evidence that conversations can be held as proposed to be proved by the witness, perfectly distinct and audible; it having already been proved by the Commonwealth that the witness was a companion and familiar with the voice of the prisoner Brown.”
    “ The defendant objects to this offer of evidence
    “ The witness has already stated that he did not see Brown; that he did not know what cell he occupied, but that he was back in the far end of the prison, while the witness was near the front end, with a number of cells intervening; that his only means of knowing Brown was by his voice. The defendant objects that the witness could not know who he was talking with, and his opinion as to whose voice he recognised is not admissible.”
    “ Commonwealth proposes to ask how the witness knew that Brown was in prison,' having stated that he, Trumbo, called to him through, the pipes; to be followed by evidence that Brown was in prison at that time.”
    .“ Defendant objects, unless he saw the prisoner, or had actual personal knowledge of his being there.”
    The offers were admitted and several bills of exception sealed.
    35th, 36th and 37th assignments:—
    “ The Commonwealth proposes to prove by the witness upon the stand and others, the declaration of Annetta Kraemer as to how she received the injuries of which she subsequently died, to wit, upon Sunday, the 4th day of March 1872, and who inflicted said injuries; it having been already proved that the said Annetta Kraemer was fully conscious of her approaching dissolution at the time said declaration was made. This for the purpose of proving that Joseph Brown, the defendant, inflicted the blows which resulted in her death.”
    “ The defendant objects that no sufficient evidence has been given to authorize her declarations to be given in evidence. The offer does not state what declarations of Mrs. Kraemer the Commonwealth propose to prove; whether they will prove anything against the defendant, he cannot know from the offer.
    “ The defendant objects to any conversations between Mrs. Fehr and Fertig and Mrs. Kraemer, inasmuch as they, Fertig and Mrs. Fehr, have already sworn that Mrs. Kraemer did not make any dying declarations to them under a belief of impending immediate dissolution. The most she is proved to have said to them (on Tuesday, when they conversed with her), was that she had great pain, and that she would die, unless there was a change in a day or two. If the Commonwealth propose to prove dying declarations by any other witnesses than those mentioned in these objections, defendant objects until ground shall be laid for their introduction.
    “It is further objected to this offer that it does not state at what time during the illness of Mrs. Kraemer her declarations were made.”
    ■ “The Commonwealth proposes to prove by the witness, the Commonwealth having already proved that Annetta Kraemer was conscious of her approaching dissolution at the time said declarations were made to the witness, that Joseph Brown, the prisoner, was present, and he alone was with her at the time she received the injuries of which she subsequently died. This to prove the presence of the prisoner at the time and place when-said injuries were inflicted.”
    “ The defendant objects that the witness had already stated that he did not hold any conversation with Mrs. Kraemer after Tuesday the 27th of February, upon the subject of this offer, and he denies that there is any evidence in this case that deceased was conscious of her approaching dissolution on that day. Dying declarations are only evidence of the circumstances which cause death, and as the witness has twice answered that she, Mrs. Kraemer, never said anything to him as to when or how she received her injuries, any statements of hers, such as Commonwealth proposes to prove, are not competent as dying declarations.”
    “ Commonwealth proposes to ask witness what Mrs. Kraemer said as to how and when her injuries were inflicted, all she said upon the subject, it having been already established by the testimony of this witness that the declarant was conscious of approaching dissolution.”
    “Defendant objects that they have laid no ground to prove dying declarations by this witness.”
    The court admitted these offers and sealed several bills of exception.
    The court charged:— * * *
    “The prisoner is charged with the highest crime known to the law — treason alone excepted — that of murder. Murder at the common law is defined to be ‘ the felonious killing of another with malice aforethought, either express or implied.’ In order to constitute the killing a murder it must be done with malice, and that constitutes a necessary ingredient.
    “ When that ingredient is wanting, the offence becomes reduced to a less degree of crime, either voluntary or involuntary manslaughter ; or if the killing is not unlawful, to excusable or justifiable homicide. It becomes then of importance for the jury to determine what this malice is that constitutes a felonious killing murder. It is of two kinds — express malice or implied malice. It is express when the killing is the result of personal ill-feeling and hatred or enmity towards the party killed. Implied when the killing takes place under such circumstances of atrocity that show a wicked and malicious disposition in-the perpetrator, a heart wicked and depraved, bent upon mischief and void of social duty, as for instance, when the killing shows that it was done out of pure wantonness or recklessness, or that there was an absence of sufficient provocation [or it was done in the perpetration of some felony, in such case the law implies malice and the killing is murder. Manslaughter is defined to be the felonious killing of another without malice, either express- or implied, and is of two kinds, voluntary and involuntary. Yoluntary, as when one in the heat of passion, excited by reasonable provocation, kills another, and involuntary, when one in the perpetration of some unlawful act, not amounting to a felony, or the perpetration of a lawful act in an unlawful way by accident kills another.] In both kinds of manslaughter it will be readily seen that the malice which constitutes the essential element of murder is wanting. These are the distinctions which are made by the common law in all cases of felonious homicide, and there is a broad line of demarcation between each grade of offence depending upon its greater or less degree of heinousness.
    “ But in Pennsylvania the law makes an additional distinction; it divides murder into two degrees — murder in the first, and murder in the second degree, both degrees still preserving the essential element which distinguishes murder from manslaughter, to wit: malice. The statute of this state upon this subject reads as follows: ‘ All murder which shall be perpetrated by means of poison or by lying in wait, or any other kind of wilful, deliberate and premeditate'd killing, or which shall be committed in the perpetration of or the attempt to perpetrate any arson, rape, robbery or burglary, shall be deeemed murder in the first degree, and all other kinds of murder shall be deemed murder in the second degree.’ Therefore, before a jury could convict of murder in the first degree, they must first be satisfied from the evidence in the cause that the killing was done either by poison, or by lying in wait, or was done wilfully, deliberately and premeditatedly, or in perpetration of or attempt to perpetrate any of the felonies mentioned in this statute. Even if the circumstances of the killing should show that it was not done deliberately and premeditatedly, yet if it were done either in the perpetration of or attempt to perpetrate any of the felonies mentioned, the party would be guilty of murder in the first degree, for he would come within the very words of the statute. If the jury should be satisfied not only that the killing was thus done, but that it was also done with deliberation and premeditation, the offence would come doubly under the description of murder in the first degree, as defined in the statute, and the party might be considered in a sense as doubly guilty. The statute of Pennsylvania defines murder in the second degree in no other way than by saying that all murder which is not murder in the first degree is murder in the second degree. Therefore, while in murder in the second degree there is still the ingredient of malice as we have before explained: it either lacks the combined elements of wilfulness, deliberation and premeditation, or else was not done in the perpetration of or attempt to perpetrate any of the felonies mentioned. Murder in the second degree, while not perhaps capable of precise definition, may be said to be a felonious, malicious killing, in which the specific intent to take life is wanting. Then the deliberate, premeditated intention is not present, but the malice is, as when a person out of ill-will, not intending to kill, but only to inflict bodily harm, should kill another, here the intention to kill being wanting, the offence is reduced to murder in the second degree, and the malice or ill-will being present, constitutes the crime murder instead of manslaughter.
    “This is a general view of the different grades of unlawful homicide as laid down by the law of Pennsylvania, and to apply it to the facts of the present case, we say to you that if Annetta Kraemer was killed by some one whilst engaged in the perpetration of or an attempt to ^ -petrate either a robbery or a burglary, that then the party would'be guilty of murder in the first degree. If she had been killed by some one wilfully, premeditatedly and deliberately, this would likewise constitute murder in the first degree. The offence would be reduced to murder in the second degree, if there were an absence of proof that it was done in the perpetration of one of the felonies named or that it was done wilfully, deliberately and premeditatedly, or if the evidence should show that the design of the person in inflicting thé injuries was not to take life, but only to inflict bodily harm. In these cases, if the malice was still present, the offence would be murder in the second degree. [If the jury should be satisfied, under the evidence in the case, that Annetta Kraemer lost her life at the hands of some one whilst in the act of robbing the house, or for. the purpose of robbing the house, this would be murder in the first degree, and the guilty party should be convicted of such a degree of crime.] * * * * #
    “ It is of importance that you determine what was the situation of ■the house and furniture upon Monday morning, for the purpose of determining two facts which are- alleged by the Commonwealth. First [whether the motive which led to the killing of Mrs. Kraemer was robbery]; and second, whether there was actually a robbery committed. If the jury should find that robbery was the motive which led to the killing, and that it was in the perpetration of this that the killing took place, that would determine the degree of guilt of the party; and if the jury should find that a robbery had actually taken place there, it would aid in determining the investigations of the jury as to the party who was concerned therein, and by consequence of the party who inflicted those injuries upon Mrs. Kraemer. * * *
    “ Under the evidence in this case, then, it is for the jury to determine the motive which led to this killing. It is for you to say whether there is or can be any reasonable doubt upon that subject. [Can any reasonable hypothesis be made to show any other motive for the act but the intention to rob the house ?] The Commonwealth claims that it is not possible to frame any other reasonable hypothesis than that the killing was for the purpose of robbery, and that all the evidence points to that, and to that alone.
    “ Under the facts of the case, the jury can probably have but little doubt as to the motive which led to the killing of Mrs. Kraemer. If they should determine that robbery was the object, and that the killing took place in the carrying out of that object, then the party who committed this deed would be guilty of murder in the first degree, and the jury should not hesitate to say so. The jury will understand that they are the judges of the facts of a case. We cannot dictate to them the view they shall take of them. They may believe this witness; they may discredit that one; they may place reliance upon this piece of testimony; they may reject that one. They are only bound by the oaths they have taken' to render their verdict according to the evidence. A court may lay down its opinion upon the facts of a case in the most unequivocal terms, but the jury would not be bound by them. It is the duty of the court to lay down the law of the case, and the jury will apply the law as the court lays it down to the facts of the case as they shall find them from the evidence, and render their verdict accordingly.

      “ This brings us to the consideration of what is perhaps the main question in this case, and that is, who inflicted the blows upon the person of Mrs. Annetta Kraemer, from the effect of which she died ? Was it the defendant, or was it some one else unknown to the jury ? * * *
    “ As to the confessions made to Kaereher and Ewing, the defendant claims that the jury ought not to regard them because they were elicited by a promise of favor held out by Kaereher, the constable. The Commonwealth denies that any promise was held out, or any threat made at the time, to induce the defendant to make a confession. The rule of law is this: That if the confession is voluntary, not drawn out,either by the influence of hope or fear held out to him, then it is properly in evidence, and its weight and importance to be considered by the jury. But if the confession is not voluntary, but has been drawn out either by the hope of favor or forced out by threats, then it is to be entirely rejected. The law does not permit confessions extracted in such a way to be given in evidence, for fear that, not being voluntary, they are untrue, and for the purpose of discouraging attempts at entrapping defendants into admissions of their own guilt. [We therefore call your attention to the evidence as to the fact whether these confessions were voluntary or not.] You have the testimony of the two witnesses who were present, as to what was said by way of evidence at the time the alleged confession to Kaereher was made. This is the testimony of Kaereher himself and the testimony of Ewing. Kaereher swears that he did not say to the prisoner that he had better tell, and words to that effect; that he had only told him he might as well tell now as any other time, and that he had been cautioned by Ewing in the presence of Brown that he should make no promises and hold out no inducements to the prisoner. Ewing’s testimony corroborates Kaereher’s in this, that he told Kaereher in Brown’s presence that he should make no promises. [If the jury should find that the expressions used were as Kaereher swears they were, or that, by reason of the caution given by Ewing, that the effect of any promise or threats was done away with in the mind of the defendant, then we think the confession of Bi’own was properly received in evidence, and should be given that weight with the jury to which they may think it entitled.] But if, on the other hand, the jury should think that this was not the true state of the case, but that the defendant was told that it would be better for him to tell whose money it was, or who was along with him, or that he was told that he had better tell whose money it was, and who popped the old man over, and that he might get off, or they would let him go clear, as Mr. Bechtel swears Kaercher told him he had said to the prisoner, then we say to the jury that they are to disregard and throw entirely out of consideration any confessions so elicited by the flattery of hope held out to the defendant, except so much as may have been said by the defendant before the promise was held out to him, and also except as to that part of his confession which revealed the hidden place of the money over the door in his father’s barn, and which was found there by the officers in consequence of this confession. If, however, the jury should come to the conclusion that this confession was not elicited by any inducement or promises so held out, then it is properly to be considered by them as part of the evidence in the case. The Commonwealth does not claim that these declarations in confessions are true; on the contrary, they have produced witnesses here to prove their falsity in many particulars. [We are free to say to the jury that, had the evidence been clear that these declarations had been so elicited, either by promises held out or by threats made, we should have ruled them out, and not have permitted them to go to the jury as part of the evidence in the case. The jury must judge in the midst of the conflict of testimony from all the evidence in the case, whether the declarations to Ewing and Kaercher were voluntary or not. If not voluntary, as we have before explained them, they should not be considered by the jury as part of the evidence in case.] * * * “ It is always to be borne in mind that when a party is charged with a crime the burden is upon the Commonwealth to prove him guilty. If the Commonwealth fails in this, then the defendant is entitled to a verdict of- acquittal, for the presumption of innocence surrounds him until he is stripped of it by the evidence produced against him. It must further be borne in mind by the jury that the Commonwealth must prove him guilty beyond any reasonable doubt. If from the facts in evidence such doubt arise as to the guilt of the defendant, then the jury must give him the benefit of that doubt. The law does not seek the conviction of any person who may be innocent, and therefore it says if there is a reasonable doubt as to his guilt, then the jury must acquit. This doubt should be such an one as grows out of the facts and circumstances of the case; such an one as causes the mind honestly to hesitate in its belief in the guilt of a party. [There is but one count in the indictment, and that is a count for murder; the jury under that count may either acquit the defendant altogether, or they may find him guilty of murder in the first degree, or murder in the second degree; and therefore, if you find him guilty at all, you will state in your verdict the degree of guilt.] We submit the case to you, feeling conscious that your verdict, whatever it be, will be according to the law and the evidence. The case has been long and tedious, and no doubt has tried your patience ; but we exhort you to give it cool, careful and prayerful deliberatign, and render your verdict accordingly. If you should be satisfied that the defendant is guilty, then, under the oath you have taken, it will be your duty to say so; if, however, you are not satisfied beyond any reasonable doubt of his guilt, then you should acquit the prisoner.” * * *

    The 41st assignment of error was that the judge .erred in his charge to the jury. “ The parts especially excepted to are enclosed in brackets.” So much only of the charge as is necessary to understand the parts excepted to is given.

      Gr. R. Kaercher and J. W. Ryan (with whom was F. Gf- Farquhar), for plaintiff in error.

      J. B. Reilly, District Attorney, and L. Bartholomew, for Commonwealth.
   Chief Justice Agnew

delivered the opinion of the court, July 2d 1874.

On the night of the 25th of February 1872, Daniel S. Kraemer, a farmer of reputed wealth, aged about sixty years, and his wife, were murdered on his farm in Washington township, Schuylkill county. She was found on the next morning lying across her bed insensible and partially undressed, but afterwards became conscious and able to state some of the circumstances of that night, and died on the 4th of March following. Her son, living away from home, who first found her, ran to give the alarm, and on his way discovered the dead body of his father lying at a distance from the house of about three hundred yards. Near him was found a heavy oak club covered with blood and hair. The wounds on the head of both husband and wife were such as this weapon would probably make, and were of a fatal character. The chest, bureau and desk in the house had been broken open, and evidenced that the perpetrator of the murders had been in pursuit of plunder. The only inmate of the house, beside Mr. and Mrs. Kraemer, was her mother, a lady so old, deaf, blind and helpless that she could furnish no information. All the circumstances evidenced that the murders and the search for money were contemporaneous and part of the transaction.

The prisoner has been twice tried and convicted. The first conviction for the murder of Daniel Kraemer was reversed for errors more technical than substantial. The second conviction was for the murder of Mrs. Annet.ta Krsemer, and this is the record before us.

Under these circumstances, before reversing a second time, a court should feel satisfied a substantial error has been committed. Of the forty-six assignments of error, only a few present questions of substance. Many are unsubstantial, others are technical, and some are unsupported by the requisite evidence. We shSll notice those only we think deserving, and shall group many of them together.

The first subject of remark are the objections to the jurors. In Dyott v. Commonwealth, 5 Whart. 67, it was held that after a prisoner stands mute, a plea of not guilty is entered for him and he participates in the trial and is convicted, the case falls within the provisions of the Act of 21st of February 1814, enacting that a trial on the merits, or pleading guilty on the general issue, shall be a waiver of all errors and defects in or appertaining to the precept, venire, drawing, summoning and returning of the jurors. This decision resulted from the language of the Act of 2Sd September 1791, relating to prisoners standing mute or challenging peremptorily more than the allowable number of jurors, that the trial shall proceed in the same manner as if the prisoner had pleaded not guilty, and put himself for trial on the country. We do not think this decision is applicable to a case where the prisoner makes his objections at first to the panel of jurors, and on their being overruled, takes a proper bill of exceptions; but the decision is strongly illustrative of the unwillingness of courts to sustain objections to the jury, grand or petit, after a full and fair trial on the merits. It is therefore sufficient to say, as to the first and eighth assignments of error to the refusal of the court to quash the array of the grand and the petit jurors, that the objections of the prisoner were squarely traversed by the Commonwealth by plea, while the bill of exceptions contains no evidence of their truth. We must presume the court had sufficient ground to refuse'the challenge.

The second, third, fourth and fifth errors raise the single question whether, upon a challenge to the polls of grand jurors, the prisoner will be permitted to examine them on their voir dire to support his objections. The court was willing to receive other proof. As to petit jurors, who try the prisoner, and therefore should be above all exception, the rule is to permit them to be examined on'their voir dire to prove objections to their competency. But the reason does not hold good as to the grand jurors, who do not try the prisoner, but merely inquire on the evidence of the Commonwealth alone, whether there is sufficient probable ground of the commission of the offence charged in the indictment laid before them. It would be impossible to conduct the business of the Courts of Quarter Sessions and' Oyer and Terminer, if every person indicted for an offence could claim the right of polling the grand jurors on their voir dire in order to purge the panel. Indictments for murder may be found in the Quarter Sessions and certified into the Oyer and Terminer. A due regard for public policy, as well as for the interests of justice and the nature of the inquiry, forbids that grand jurors should be polled and tried in this manner. If the prisoner have evidence to purge the panel, let him produce it.

6th assignment. That a bill of indictment may be sent up to the grand jury by the attorney-general, or now, by the district attorney, with the sanction of the court, is shown in McCullough v. Commonwealth, 17 P. F. Smith 30. It does not appear that the bill before us was sent up surreptitiously.

10th assignment. The 41st section of the Criminal Procedure Act of March 31st 1860, is a summary (say the codifiers) of the 144th, 145th, 146th, 147th and' 148th sections of the Act of 14th April 1834, which are left unrepealed: 1 Brightly, note c, p. 385; The venire awarded under 147th section makes no distinction between the bystander and persons in the county at large. Nor does the 41st section of the Act of 1860 make a discrimination. There is no ground, therefore, to support a distinction, and it certainly infringes no rule of right or of policy to hold that, under an order of talesmen, the venire must issue generally and not specially to summon the bystanders only, or specially for persons from the body of the county only. Under the Criminal Procedure Act, the sheriff may summon the talesmen from either or both. The expression, tales de ciroumstantibus, was evidently intended to include both.

The 14th and 15th assignments relate to the evidence of finding the body of Daniel M. Kraemer three hundred yards from the house; the condition of the chest, bureau and desk, and the fact that a large sum in silver and gold was known to the prisoner to be in the house. That the commission of a distinct offence, even similar in character, cannot be given in evidence against the prisoner, was held in Shaffner v. Commonwealth, decided at Harrisburg in 1872 (22 P. F. Smith 60). But when two persons are murdered at the same time and place, and under circumstances evidencing that both acts were committed by the same person or persons, and were part of one and the same transaction or res gestee, and tend to throw light on the motive and manner of the murder for which the prisoner is indicted, the case is different. Such was the case here. The club found near to the husband being the probable instrument of the death of the wife also, and the motive, to wit, robbery, being one and the same, which led to the murder of both at the same time. Being parts of the same res gestee, they, together, tend to throw light on each other, and there is no reason that the truth should be thrown out by excluding the evidence objected to.

The 16th, 18th, 19th, 21st, 22d, 24th 25th, 26th and 34th assignments relate to the same subject. When we consider that Kraemer was a farmer living in the country remote from a place of safe deposit, and was unused to the ways of men living in town; that it was a period of suspension of specie payments, when silver and gold seek hiding-places in the chests, drawers and desks of such men as he, and often remain hidden for years ; we cannot say the time when he and his wife received the coin was too remote, and its possession on the night of the murder impossible. The prisoner was the son of a neighboring farmer, and was without means of his own. The possession of coin and exchanging it for paper-money and purchase of clothing, on the next day, at Potts-ville, were significant circumstances, while the evidence of his identity as the person exchanging the coin in Pottsville, might require the testimony of many witnesses and many circumstances to make the proof complete. We discover no error in these assignments.

23d assignment. The fact that a witness was examined in a certain prosecution is a matter independent of the record! He may state that fact as inducement, without producing the record, when the purpose is merely to prove the identity of the person then on trial.

The most important question which arose in the trial was that to which the 28th, 29th and 30th assignments relate, to wit, the admissibility of the so-called confessions of the prisoner to John J. Kaercher. But we meet an insurmountable obstacle to its decision in the fact that the testimony of Kaercher, and of the witnesses called to show the influence used to obtain the confessions, has not been made a part of the bills of exception.

Without the whole of the testimony of these witnesses before us to enable us to sift it and discover the nature and extent of the influence used, it would be very unsafe to say the judge erred in admitting the confessions. We cannot say that he subsequently erred in submitting it to the jury on the evidence, to say whether any improper influence was. used, and in charging them, if there were any, that they should disregard the confessions. This did the prisoner no harm, and might, if true, have availed him much. It is proper also to add that the disclosures drawn from the prisoner were, rather deductions of certain specific facts than confessions of guilt. It is true that these facts were links in the chain of circumstances to convict the prisoner, and therefore his admissions were to be strictly guarded against any improper influence used to obtain them, but they stand lower in the degree of evidence than actual confessions of guilt. A damaging fact’ may be admitted without any intention to confess guilt.

The 31st, 32d and 33d assignments relate to the testimony of Joseph Trumbo, who was permitted to testify to conversations with the prisoner through the soil-pipes of the prison. Whether the voice of the prisoner could be recognised by Trumbo through these pipes, and what weight would be given to testimony, were matters within the province of the jury.

If the offer of such evidence had come from the prisoner, it would have been an error to reject it. JE converso, it was not error to receive it on part of the Commonwealth.

Speaking-tubes are used in all large hotels and business-houses, and it would be going too far to say, as a matter of judicial knowledge, that the voices of those speaking through them cannot be distinguished.

The 35th, 36th and 37th assignments are defective, in that the evidence is not made a part of the bills of exception.

The offers of evidence distinctly state that the dying declarations of Mrs. Annetta Kraemer were made when she was fully conscious of her approaching death. In the absence of evidence to prove the fact to be otherwise, we must presume that the evidence of her consciousness of approaching dissolution was sufficient as well as satisfactory to the court.

The whole charge is assigned for error. There seems to be no good reason for this. We discover nothing erroneous in the portion commented upon in the argument. The indictment consisted of a single count for murder, and the court told the jury that under it they might either acquit or find the prisoner guilty of murder in the first or second degree, and they should find the degree of murder in their verdict.

The complaint against this part of the charge is, that the court did not instruct the jury that there might be a conviction of manslaughter under the count for murder. The court was not asked to give any instruction on the subject of manslaughter, and for the very good reason that nothing appeared in the evidence on the part of the Commonwealth or of the prisoner, to reduce the homicide to manslaughter. It was a question whether the prisoner was the guilty one who took the lives of this aged couple; but there was no question that the homicide was a foul and devilish murder, committed- for- the purpose of robbery. It was no substantial injury to the prisoner, therefore, to omit to'instruct the jury that, as an abstract principle of law under a count for murder, there may be a conviction of manslaughter.

The other assignments of error need not be noticed. We discover no error in the record, and the sentence and judgment of the criminal court is therefore affirmed, and the record ordered to be remitted for execution.


source: Caselaw Access Project

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text:
    Udderzook versus The Commonwealth.
    1. On the trial of an indictment for the murder of “ Goss alias Wilson,” a photograph of Goss, testified to be like a mutilated body found, was evidence to be submitted to the jury, that the body was that of Goss.
    2. Photography is to be judicially recognised as a proper means of producing correct likenesses.
    3. A mutilated body, whose face was discolored and swollen, was found, having been buried apparently for some days ; the witness who found it had never "seen the person before. He might testify that the face resembled a photograph of a person alleged to be the one found; the question whether the witness could identify it, was for the jury.
    4. Goss having been a man in the habit of becoming intoxicated, proof that a man called “ Wilson” had the same habits, was evidence for the jury on the question as to Wilson and Goss being the same person.
    5: Papers signed “ Goss” and “ Wilson,” testified to be by the "same hand, were commented on during the trial; the jury retired without taking the papers with them; they afterwards came in and asked that the papers should be delivered to them, which was done: Held to be proper.
    May 28th 1874,
    at Harrisburg. Before Agnew, C. J., Sharswood, Williams, Mercur and Gordon, JJ.
    Error to the Court of Oyer and Terminer of Chester county: Of January Term 1874, No. 230.
    At the August Sessions 1873, of the Court of Oyer and Terminer of the county of Chester, the grand jury found a true bill against William E. Udderzook for murder.
    The first count of the indictment was for the murder of “ Win-field Scott Goss, otherwise known as A. C. Wilson;” the other count charged him with the murder “ of a person whose name is unknown.” At the same term, the prisoner being arraigned, pleaded ‘"‘Not Guilty,” and the case was continued until the next October Term. At that term, after the jury was impannelled, the district attorney elected to proceed on the first count alone.
    The circumstances connected with this case — the undisputed facts — are substantially as follows:—
    The prisoner was the brother-in-law of Goss, they having married sisters. Some time previous to the 2d of February 1872, Goss had obtained insurance on his life for a large amount in several different life insurance companies. The insurance was for the benefit of his wife. About February 1872, he occupied a frame shop on the York road in Baltimore county, Maryland, about three miles from the city of Baltimore; his residence was in the city. He was engaged in his shop in gilding picture frames and also on an invention which was to be a substitute for India rubber. On the 2d of February 1872, the shop took fire and was entirely destroyed. Amongst the ruins were found the remains of a human body; this was alleged to be the body of Goss. The prisoner made the preliminary proofs as to its identity, &c., in order to obtain the insurance for the wife of Goss.

      Payment of the insurance was refused by the companies, they denying that the body found was that of Goss, and suit was brought by Mrs. Goss against one of them — the New York Mutual Life Insurance Company — in the Circuit Court of the United States at Baltimore. The verdict was for Mrs. Goss. A motion was made for a new trial, pending which, other facts were developed which led to the arrest of the prisoner.
    On the 9th of July 1873, John Hurford was travelling on the Gap and Newport turnpike. In going between Penningtonville, a station on the Pennsylvania Railroad, and Cochranville, all in Chester county, he passed “ Baer’s woodshe observed buzzards about it and also a very unpleasant odor. Gainer P. Moore, two days later, travelling the same road, observed the same things; he went into the woods about sixty-five feet from the road and discovered “ something mysteriously hiddena small part was uncovered and the remainder concealed by leaves and a thin covering of earth, and dead limbs of trees placed lengthwise over it. He after-wards returned accompanied by a neighbor. They uncovered the place and found the body of a man. He notified the coroner on the 11th of July. After he came, the body was further uncovered and it was found that the legs and arms of the body were off. In another part of the woods, about sixty-five feet distant, arms and legs were found, also under a slight covering of earth and leaves. The body was put into an ice-box and placed in the lower part of Penningtonville Hall; and on the evening of July 12th was buried in the grave-yard of the Penningtonville Presbyterian Church. The body was again taken up on the 16th for examination by physicians in the neighborhood, and was re-interred on the evening of the same day ; it was again disinterred on the 17th for the examination of Doctor Howard of Baltimore.
    On the 27th or 28th of June previously, the prisoner and another man left the William Penn Hotel in Philadelphia: on the 30th, the prisoner, with another man, was at West Grove in Chester county, on or near the Baltimore and Philadelphia Central Railroad. From this place both went towards Jennerville, also in Chester county, and situate between West Grove and Penningtonville. On the same evening the prisoner and another man were at the hotel of Samuel C. Jefferis at Jennerville. On the morning of the 1st of July the prisoner obtained a horse from a Mr. Patchell to visit his (prisoner’s) brother-in-law, Samuel Rhoads, who lived a short distance from Penningtonville. The prisoner came back to Jennerville with a carriage and horse which he had hired at Penningtonville, and in the evening started from Jenner-ville towards Penningtonville with the man who had accompanied him. When the prisoner reached Penningtonville the man was not with him, and was never afterwards seen. Baer’s woods is on the road between Jennerville and Penningtonville.

      The theory of the Commonwealth was that Goss had not lost his life in the fire in his shop near Baltimore, but that the man who had thus .accompanied the prisoner to Jennerville and left that place with him to go to Penningtonville, was Goss, and that the prisoner had murdered him in Baer’s woods, mutilated him, and buried him as before described, that the insurance money might be obtained.
    The questions on the trial were : Was the body found in Baer’s woods that of Goss ? And if so, had he been murdered by the prisoner ?
    The case came on for trial, October 29th 1873, before Butler, P. J., and his associates.
    The Commonwealth gave evidence of the facts above stated.
    G. P. Moore having testified as to the facts of finding the body, as before stated, &c., it was proposed to show witness two photographs and ask him whether he recognised either to be that of the person taken from the grave, to be followed with evidence showing whose photographs they are; to that offer the defendant objected, the offer was admitted, and a bill of exceptions sealed.
    The witness testified that one of the figures in the photographs resembled the body found in Baer’s woods; witness described in detail the points of resemblance.
    A. H. Barnitz testified that he had been acquainted with Goss from about the year 1860; he spoke of his opportunities of knowing Goss; also that he was present when the remains found in Baer’s woods were disinterred at Penningtonville, on the 17th of July; that he was asked to examine the remains “ critically, to see if I could find any resemblance in them to Goss.” The Commonwealth then asked this question: “Were you able to identify the remains, and did you recognise the remains ?” The prisoner objected to the question; the court allowed it to be put, and sealed a bill of exceptions.
    The witness testified that he recognised the remains as those of Goss.
    A. H. Carter testified that he was agent of one of the insurance companies, and knew Goss; he described his appearance, and testified that about the 17th or 18th of July he saw the remains which had been found in Baer’s woods. He was asked by the Commonwealth, “ Did you recognise the remains ?” The prisoner objected to the question; the court permitted’it to be put, and sealed a bill of exceptions.
    The witness testified that he recognised the remains as those of Goss.
    L. Engle testified that he had known Goss some months before the burning of his shop in February 1872. After the witness had given a somewhat minute description of the appearance of Goss, &c., the Commonwealth proposed to show by witness, as a means of identification, that “ Goss had the habit of drinking intoxicating liquors to excess.” The offer was objected to by the prisoner, admitted by the court, and a bill of exceptions sealed. The witness testified that he had seen him “ at one time very full of liquor, but only once.”
    J. W. Langley, manager in Maryland of the Continental Life Insurance Company of New York, testified that he had known Goss about eighteen months previously to the burning of his shop ; witness insured the life of Goss; witness examined him; took his measurement, &c.; he and Goss had their photographic pictures taken together. A photograph being shown to witness, the Commonwealth asked the witness, “ Is this the picture you had taken ?” The prisoner objected to the question; it was allowed by the court, and a bill of exceptions sealed.
    The witness said, “ That is the picture Goss and I sat for; the standing picture is Goss; the one sitting is I. This is the position we occupied when the picture was taken.”
    David R. Mullin testified: “ I reside in Delaware county, two mile? south of Bryn Mawr station, on the Pennsylvania Central Railroad; I know the defendant; first I knew him was when he was may be seven or eight years old; he came to live with me; he lived with me until he was sixteen years old; I did not see him write much while he lived with me; he left me at sixteen to go to a trade, seventeen or eighteen years ago; I have seen him write since he left to go to a trade; after he was twenty-one he came back and lived in my neighborhood a year or more, twelve or thirteen years ago; I have received letters purporting to come from him, and I replied to one; the letters were written in 1871 to ■which I refer; I saw him once or twice after he left the neighborhood ; I saw him writing while he lived with me; he came and boarded with me for two or three weeks of the latter part of the year which he spent in the neighborhood, after he learned his trade; he went to writing school while he thus boarded with me; I saw him writing oftentimes at home during that period; several times; this was twelve or thirteen years ago; it was in 1871 or 1872 that I received the letters; I replied to one; I received no letter in reply to mine; I replied after getting the second letter; I never saw him afterwards; and this is the knowledge I have of his handwriting; I think, from my having seen him write, as I have described, I know his handwriting; I believe I do.” (Letters shown witness; one dated October 28th 1871, purporting to be signed by W. E. Udderzook, and the other November 16th 1871, signed in same way.) “ I think I got these letters from the post-office at West Haverford.”
    The Commonwealth asked witness: “ Do you recognise the handwriting in these letters ?” The defendant objected to this question; it was allowed by the court, and a bill of exceptions sealed.

      Witness said that he recognised the letters to he in the handwriting of the prisoner.
    The letter of October 28th 1871 was to witness, and dated “Baltimore;” amongst other things, not bearing on the case, it contained the following:— * * *
    “ I suppose I have been prompted to this by a very particular friend of'mine, he is a man of fine appearance, and about my age, and very well to do. But the large circle of acquaintances he is obliged to mingle with has been a great source of annoyance. It is his intention to leave the city for a few months in order to wean himself from so much company. I recommended Coopertown as a quiet little place and just what would suit him. Now, if it would suit you folks to receive him as a boarder, please write soon and name the particulars. He will not want to leave Baltimore for a few weeks. Can we look for you down this fall ? we would he pleased to see you in Baltimore. I spent a few days in Jenner-ville last June. Mother was well at that time. * * * Please write very soon.”
    The other letter was to Mr. and Mrs. Mullin, and also dated Baltimore, as follows:—
    “ I wrote a few lines to- you some time since, but I have not received an answer. I came to the conclusion you did not receive it. I therefore take pleasure in writing again. The state and city elections are over,” &c. * * * “ I wrote you in my last in regard to a friend of mine that desired to wean himself from a number of his former associates. He has been in the way of getting a little intoxicated ; I thought you might reform him, would it suit you to board him a few months or less. Please answer as soon as possible.” * * *
    Witness further testified that he replied to the letters after receiving the second, saying that he did not think it would suit him to take a boarder of the kind described in them. On the 22d of June 1872, a person came, saying his name was Alexander Campbell Wilson; he hoarded with witness until the 16th of November following, and then left him to go to Athenville, a short distance from Bryn Mawr. Witness then described the appearance of his boarder. The photograph of Goss and Langley, before spoken of, was shown to witness, and the Commonwealth asked him: “ Do you recognise either of these photographs; if so, whose is it?” The prisoner objected to the question; it was allowed by the court, and a bill of exceptions sealed.
    The witness said: “ I recognise the person standing up in the picture; it looks like Wilson.”
    The Commonwealth proposed “ to show the arrival of a man at witness’ house (the man already referred to by him), to identify .this man as W. S. Goss; to show the connection of the prisoner with him, their relation to each other, and to follow this man up to the time of the murder.”

      The prisoner objects to the offer; it was allowed by the court, and a bill of exceptions sealed.
    After the witness had testified as to the arrival of the man as already stated, &c., the Commonwealth proposed “to show that this man was of intemperate habits, as a means of identification, and of connecting him with the individual named in the letter.” The prisoner objected to the offer; it was allowed by the court, and a bill of exceptions sealed.
    Witness said: “ He was a quiet man. I think he had a habit of drinking to excess, but thought he drank but once to excess while with me; for that I discharged him. I received one letter from him after he left for Newark; I do not know his handwriting; I can only say I got a letter purporting to be from him.”
    The Commonwealth proposed to ask witness “whether the man Wilson left without paying his board, as a means of connecting him with the letter written to witness, before alluded to.”
    The prisoner objected to the offer; it was admitted, and a bill of exceptions sealed.
    Witness said a portion of the board was unpaid when he left.
    Under objection and exception, the Commonwealth gave evidence by other witnesses that Goss had habits of intemperance.
    M. B. Olby testified that during the summer he resided with Mullin, he knew A. 0. Wilson from the time he came to Mullin’s till he left; witness directed parcels for Wilson.
    The Commonwealth proposed to show “ that the packages were directed to A. C. Goss, a brother of Winfield S. Goss, in Maryland.”
    The prisoner objected to the offer; it was admitted, and a bill of exceptions sealed.
    The witness testified that, at Wilson’s request, he sent several small packages for him by Adams’s Express; witness received them from Wilson, sealed, with a slip of paper, on which was written the name and address which were to be written on the parcels; they were, “ A. C. Goss, Calvert street, Baltimore, Maryland, care of A. Stevens & Co.” At Wilson’s request, witness got letters for him from the post-office; they had the Baltimore postmark.
    Under objection and exception, the witness testified that there was a furniture card on the envelope; it was Stevens or Stevens &Co.
    Under objection and exception, witness testified that he and Wilson conversed about people residing in Baltimore who were their mutual acquaintances.
    ■ J. N. Marshall, an agent for Adams Express Company at Bryn Mawr station, testified that October 16th 1872, and afterwards, he received packages at the station for A. C. Wilson and delivered them to him. This evidence was objected to by the prisoner, but the Commonwealth saying it would be followed by evidence showing where the packages were from, it was admitted and a hill of exceptions sealed.
    Witness said the packages came in the usual course of the company’s business; from the way-bills accompanying them, they came from Baltimore.
    Witness further testified, under objection and exception, that the picture of the man standing in the photograph looked much like the man to whom he gave the packages.
    D. Bachrach, the photographer, testified that he took the picture; that he knew Goss. The picture was that of Goss and Langley.
    Hi G. Litzenberg testified that he lived at Coopertown, near Mullin’s; he knew a man known as A. C. Wilson; he gave witness a due-bill dated November 23d 1872; it was signed “A. C. Wilson.” A paper being shown to witness, he said he believed that to be the due-bill.
    Elizabeth Tombs, who lived in Newark, N. J., testified that Wilson boarded in her family from November 29th 1872, to June 23d 1873; that the prisoner came there to see him May 11th 1873, and spoke of him by the name of A.- C. Wilson. She then described Wilson’s appearance, spoke of his clothes, a ring which he had, &c. She also said that he frequently received letters for him from the postman at the door; some were postmarked Baltimore. Sometimes Wilson would scratch words off. It having been admitted that the prisoner married Eliza Arden of Baltimoré, witness, under objection and exception, said, “ I saw one letter of his he endorsed; it was to Miss Eliza Arden, Baltimore.”
    The Commonwealth proposed to show that “ A. C. Goss visited Wilson, by showing that a man called at the house to see Wilson bearing a strong resemblance to him, and to identify this man as A. C. Goss.” The prisoner objected to the offer; it was admitted and a bill of exceptions sealed.
    Witness said: “Another man visited Wilson and was introduced as his brothér-in-law; he looked like him; this was the last of January.” She further testified: “This man Goss called in August last; he represented himself as Goss; it was the man who called in January and was introduced as Wilson’s brother, who resembled him.
    Emma Taylor testified that she knew Wilson at the house of Mrs. Toomly; she described him; spoke of the ring, &c. She recognised the standing figure in the photograph as Wilson’s. Under objection and exception, she testified that he left Mrs. Toomb’s on the 25th of June and said he was going to Philadelphia.
    She said that she received notes from him; sometimes two or three a day, and sometimes once a week ; that she had a recollection of his handwriting, but not a very distinct one.
    The Commonwealth proposed to show to witness the letters to Mullin purporting to be from Wilson, and one addressed to S. R. Downs, dated June 29th 1873, and “ask her if she recognises the handwriting in them; if so, whose it is ?”
    The offer was objected to by the prisoner, allowed by the court and a bill of exceptions sealed.
    Three papers were then shown witness, with signature, &c., concealed ; she answered as to the Mullin letter: “ I know this handwriting ; it is that of A. C. Wilson, to the best of my knowledge.” As to the Downs letter she said: “ This is also the character of A. C. Wilson’s writing; I think it is his handwriting.” As to the third she said: “ This also looks like his, but is not so distinct; to the best of my knowledge, it is his.” The third was a letter without date, signed “ Winfield S. Goss.”
    The Downs letter was-:—
    “ S. R. Downs.
    Success L. i.
    Dear Sir — i have just noticed your advertisement in the New York herald, please drop me a few lines and state if you could not accommodate an humble unassuming and good natured individual, as i profess to be, for less money than your advertisement calls for, am easy to please, can put up with anything, all i want is to get in the country. Please let me hear from you at any rate with directions how to find your house.
    “ Yours most respectfully,
    “A. 0. Wilson,
    “ 331 Mulberry St., Newark, N. J.”
    The Mullin letter was:—
    “New York, Jan. 3, 1873.
    “ Dear Governor — I have but just time to write you a few lines merely to inform you of my whereabouts and good health, &c., &c. Well as you see from this letter I am again in the great metropolis, hard at work, and working harder than I ever did before in my life. I am with a large firm here, that was among the sufferers from the Boston fire. Their loss is near a $100,000, and they are working hard to regain their former footing. I am glad that I have come to them in their distress, for they were sorely in need of my assistance (humble as it may be), for in these hurried times they want no new hands, but old ones, and as I am familiar with their business as well as their custom, I need no instructions. I have been to Philadelphia twice and to Boston once since I left you, and I leave here again to-night for Boston, and as soon as I return, I am off for the West for them. So you see, my dear Governor, I have my hands full. I have not had any leisure moments to myself since I have been here and will not until I return from my Western trip. These men have been my friends in times past, and I am glad to have the opportunity to reciprocate their kindness. Gov. you know that I was looking for a package by express when I left you. Well in that package I expected a $100. I have received the package, but only received $40 instead of $100. The truth of this you can find out from the clerk at Bryn Mawr station. Had I received the $100 I should have been able to pay you what I owe you, but as it is I hope you are not uneasy for I will not long remain in your debt. Now a few words about family matters and I will close my letter. The time I lived in your family have been very pleasant and agreeable. I was treated by all like a gentleman and tried to the very best of my ability to act in accordance, and I flatter myself that I succeeded until within a few days of my departure and then that DM old fool made me mad with his insults and then I made an ass of myself by drinking whiskey. I would not have had it happen for anything that I possess, particularly while in your house, but I can only say now that I am heartily ashamed of it, and hope that I will at no distant day have an opportunity to make atonement for it. I wish that I had all to go over again. How different I would act. I would give that old scoundrel the benefit of my foot at the beginning and that would have put an end to it, but I will not forget him and will yet pay him the debt that I owe him with interest. Enclosed please find $1. Please give it to him. It is $1 that I borrowed from him. I did not intend to pay him when I borrowed it, but I don’t want him to say that I owe him anything except---. My affairs in Tennessee are progressing favorable and I hope soon to be all right. Please remember me with kindness to your good wife and to Annie. Also to all inquiring friends. I have written Abe Good and he is to send me my ring and screw-driver, and if you have no objection please give him watch. I need it very much in travelling. Write me a few lines and send it in the package that Abe is sending me. Hoping to hear from you soon I remain as ever,
    “ Yours most respectfully,
    “A. C. Wilson.”
    The third letter was:—
    “ Sir: I was much disappointed in not getting some money to settle my bill, but please don’t feel uneasy, for I will most assuredly send it to you. I have received a despatch which calls me to Philadelphia, bqt I hope I will not be detained long, for I am not through with my business here, and will soon return. If not, rest assured that I will pay my indebtedness to you in a few days. Hoping that I have not incurred your displeasure, and that I will meet you again,
    “ I remain yours most respectfully
    “W. S. Goss.”
    This letter was alleged to have been written to Dr. Stevens, and testified to by witnesses whose testimony is hereafter given.

      Much testimony was given by the Commonwealth from different witnesses, describing the appearance of Wilson, his ring, &c.; also that the standing figure in the photograph resembled Wilson.
    J. W. Butler testified that he resided in Baltimore, and had known Winfield S. Goss for several years; that he knew his handwriting ; that the letter said to be Dr. Stevens’s was Goss’s handwriting ; also the letter to Downs; that of January 3d 1873, to Mullin; also the due-bill to Litzenberg. Witness testified that several other signatures, “A. C. Wilsoti,” were the handwriting of Goss.
    O. F. Breese, agent of the Mutual Life Insurance Company, testified that they had insured W. S. Goss on the 1st of May 1868, and that the policy was in force on the 2d of February 1872. The witness knew Goss’s writing; the signature to the application for the insurance was his. The insurance was in favor of Eliza W. Goss.
    T.- C. McGuire, agent for the Travellers, &c., Life Insurance Company of Hartford, testified that Goss made an application for insurance in that company, and that his application shown to witness was that signed by him in the presence of the witness.
    . The Commonwealth gave evidence by several witnesses of the. burning of Goss’s shop at Baltimore, of the prisoner’s deportment on the occasion, of the extricating a body from the burning, and of many circumstances connected with the fire.
    S. H. Downs testified that he received the “Downs” letter in June 1873.
    The Commonwealth examined a number of witnesses as to the person, appearance, &c., of Goss.
    It was admitted by the prisoner that suits had been brought in Baltimore against several of the life insurance companies; that the companies resisted payment; that a verdict had been rendered against the Mutual Insurance Company of New York; that a motion had been made for a new trial on the ground that the verdict was against the instruction of the court; that the motion was pending at the time of the alleged homicide; a,nd that the other suits were still pending. It was admitted also that the prisoner testified in the suit tried.
    The Commonwealth gave evidence that the prisoner went in the railroad cars from Wilmington to Philadelphia on the 28th of June 1873; that he was at the William Penn Hotel, Philadelphia, about the same time and asked for A. C. Wilson, who met him; and that they left the next morning together. Wilson had come to the hotel June 26th. Also, that Mr. Pyle, who saw him on the 30th of June at West Grove, about ten miles from Baer’s woods, said the man who was with him resembled the standing figure in the photograph.
    S. C. Jefferis testified that the prisoner and a stranger came to his hotel in Jennerville on the night of the 30th of June 1873; they lodged there that night. Next morning prisoner came downstairs and said his friend was sick and would not be down to breakfast. He took breakfast to him. Prisoner went away the next morning, July 1st, and came back in the evening; his friend was then standing on the porch. The prisoner and his friend left the house of witness on the evening of July 1st in a carriage. Witness never saw the stranger again. They drove away in the direction of Baer’s woods and Penningtonville.
    There was evidence from a number of witnesses that the prisoner was the man who was at Jefferis’s with the stranger.
    C. Hann, bookkeeper of National Mechanics’ Bank, Baltimore, testified that W. S. Gross kept an account at the bank; that on February 1st 1872, he got his bank-book with cancelled checks and drew the balance of his account, $368.75, on check dated February 2d 1872. Witness said he thought the signature to the “ Stevens’s ” letter was the handwriting of Goss.
    The Commonwealth offered in evidence the letter said to be Dr. Stevens’s; letter A. C. Wilson to S. R. Downs; letter A. C. Wilson to Mullin, dated January 1872; due-bill to H. G. Litzenberg; check for $368.75 spoken of by Hann; and also other papers testified to in the cause.
    There was evidence that the prisoner hired a horse and carriage at Penningtonville, about two o’clock in the afternoon, saying that he would return at six or seven o’clock ; he returned about twelve at night; the dasher of the carriage was bent toward the horse, the rivets broken, and the carriage otherwise injured; a ring and collar-button were found next morning under the dasher of the carriage. The ring was recognised by witnesses as that which Wilson wore.
    The Commonwealth gave evidence by John Hurly, who resided within a field of Baer’s woods, that about midnight of July 1st, he heard a noise as of a man hallooing; “ as if two men were scolding very severe — very wicked;” one cried “ Oh !” heard a wagon and horse going very fast towards Penningtonville; the noise came from Baer’s woods; he saw a light in the woods.
    Other witnesses testified that they saw smoke and fire in or near Baer’s woods early in the morning of July 2d; that fragments of clothing were afterwards found where there had been fire; there were no marks of fire anywhere else. Also that the prisoner was seen alone by several persons next day, after he had gone away-with the stranger.
    The Commonwealth gave a very large amount of evidence, besides that stated, and closed.
    The prisoner then gave much testimony, principally bearing on the question of the identity of the body found in Baer’s woods with W. S. Goss.

      The court charged the jury on the 7th of November 1873. On the 9th the jury came in. The prisoner was brought in by the sheriff; his counsel also being present. The jury as'ked that the various papers which had been given in evidence and commented upon by the counsel for the prisoner and the Commonwealth, should be delivered to them. The court ordered them to be delivered to the jury, and they retired. After some time they returned, and rendered a verdict that the prisoner was “ Guilty of murder in the first degree.”
    After a motion for a new trial had been overruled, the court, on the 13th of December 1873, sentenced him to be hanged.
    The prisoner took a writ of error.
    He assigned for error :—
    1-20. The rulings of the court on the offers of evidence.
    Also that the court erred—
    In permitting the photograph of Winfield Scott Goss to be used by the witnesses, in identifying the remains found.
    In permitting the photograph of Winfield Scott Goss to be used by the witnesses, in identifying A. C. Wilson as Winfield Scott Goss.
    In sending the letter of A. C. Wilson to David R. Mullin, the letter of A. C. Wilson to S. R. Downs, and the letter of Winfield Scott Goss to Dr. Steele, hotel registers, and the applications of Winfield Scott Goss for insurance, to the jury in their room for their examination and comparison.
    That the Commonwealth failed to identify the body found as the body of Winfield Scott Goss or any other person; and that the evidence failed to prove the guilt of the prisoner, and he should have been acquitted.

      J. F. Perdue and W. Mac Veagh, for plaintiff in error.

      A. W'anger, District Attorney, and W. M. Hayes, for Commonwealth.
   Chief Justice Agnew

delivered the opinion of the court, July 2d 1874.

This is indeed a strange case, a combination by two to cheat insurance companies, and a murder of one by the other to reap the fruit of the fraud. Winfield Scott Goss, an inhabitant of Baltimore, had insured his life to the amount of $25,000. He was last seen at his shop, on the York road, a short distance from Baltimore, on the evening of the 2d of February 1872, in company with William E. Udderzook, his brother-in-law,* the prisoner, and a young man living near. They left him to go to the house of the young man’s father.

In a short time the shop was discovered to be on fire. After it had burned down, a body was drawn out of the fire, supposed to be that of Goss. Claims were made upon the insurance companies, the prisoner being active in prosecuting them. On the 30th of June 1873, the prisoner and a stranger, a man identified as Alexander 0. Wilson, appeared at Jennerville, in Chester county, this state, and remained over night and the next day. In the evening, July 1st, the prisoner and this stranger left Jennerville together in a buggy. Next day, on being met and asked what had become of his companion, the prisoner said he had left him at Parkesburg. On the 11th of July, the body of a man, identified on the trial as W. S. Goss, or A. 0. Wilson, was found in Baer’s woods, about ten miles from Jennerville; the head and trunk buried in a shallow hole in one place and the arms and legs in another. The stranger who was with the prisoner at Jennerville, identified as A. 0. Wilson, was traced from place to place, living in retirement, from June 22d 1872, until within a day or two of the time when he appeared with the prisoner at Jennerville. During this interval this prisoner and Wilson were seen together several times, under circumstances indicating great intimacy and privacy. Wilson has not been seen or heard of since the evening of July 1st 1873, when he left Jennerville in company with the prisoner. The great question in the case was the identity of A. 0. Wilson as W. S. Goss. This was established by a variety of circumstances' and many witnesses, leaving"no doubt that Goss and Wilson were the same person, and that the body found in Baer’s woods was that of Goss.

All the bills of exceptions, except one, relate to this question of identity, the most material being those relating to the use of a photograph of Goss. This photograph, taken in Baltimore on the same plate with a gentleman named Langley, was clearly proved by him, and also by the artist who took it. Many objections were made to the use of this photograph, the chief being to the admission of it to identify Wilson as Goss; the prisoner’s counsel ■regarding this use of it as certainly incompetent. That a portrait ror a miniature, painted from life and proved to resemble the person, may be used to identify him cannot be doubted, though, like all other evidences of identity, it is open to disproof or doubt, and must be determined by the jury. There seems to be no reason why a photograph, proved to be taken from life and. to resemble the person photographed, should not fill the same measure of evidence. It is true the photographs we see are not the original likenesses; their lines are not traced by the hand of the artist, nor\ \¡an the artist be called to testify that he faithfully limned the porg trait. They are but paper copies taken from the original plate, called the negative, made sensitive by chemicals, and printed by the sunlight through the camera. It is the result of art, guided by certain principles of science.

In the case before us, such a photograph of the man Goss was presented to a witness who had never seen him, so far as he knew, but had seen a man known to him as Wilson. The purpose was to show that Goss and Wilson were one and the same person. It is evident that the competency of the evidence in such a case depends on the reliability of the photograph as a work of art, and this, in the case béfore us, in which no proof was made by experts of this reliability, must depend upon the judicial cognisance we may take of photographs as an established means of producing a likeness. The Daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation’s experience. It has become a customary and a common mode of taking and preserving views as well as the likenesses of persons, and has obtained universal assent to the.correctness of its delineations-. We know that its principles are derived from science; that the images on the plate, made by the rays of light through the camera, are dependent on the same general laws which produce the images of outward forms upon the retina through the lenses of the eye. ( The process has become one in general- use, so common that we cannot refuse to take judicial cognisance of it as a proper means of producing correct likenesses,

But happily the proof of identity in this case is not dependent on the photograph alone. Letters from Wilson, identified as the\ hgfidwriting of Goss; a peculiar ring, belonging to Goss, worn! upon"fEé"linger "ox Wilson ; the recognition by Wilson of A. C.' Goss as his brother; packages addressed to A. C. Goss and envelopes bearing the marks of the firm with which W. S. Goss had been employed coming and going to and from Baltimore, and many other circumstances following up the man Wilson, leave no doubt of his identity as Goss, independently of the photograph. .

The objection to the proof of Goss’s habits of intoxication is equally untenable. True, the habit is common to many, and alone would have little weight. But habits are a means of identification, though with strength in proportion to their peculiarity. The weight of the habit was a matter for the jury.

It is unnecessary to follow the bills of exceptions in detail. They all relate to facts and circumstances bearing on the question of identity. If the bills of exception are many, they only-denote that the circumstances were numerous, and in this multiplication consists the strength of the proof.

They are the many links in a chain so long that it encircles the prisoner in a double fold. The questions put to G. P. Moore, A. H. Barintz and A. R. Carter were unobjectionable. Whether they really could not identify the dark and swollen face of the corpse, it was not for the court to decide; its weight belonged to the jury.

There was no error in permitting the jury, after their return into the court for further instructions, to take out with them, at their own request, the letters, check, due-bill and application for insurance papers which had been proved, read in evidence and commented on in the trial. The appearance, contents and handwriting of these documents were no doubt important, and to be inspected by the jury, who could not be expected to carry all these features in their minds. It is customary in murder cases to permit the jury to take out for their examination the' clothing worn by the deceased, exhibiting its condition, the rents made in it, the instrument of death, and all things proved and given in evidence bearing on the commission of the offence.

We discern no error in this record, and therefore affirm the sentence and judgment of the court below, and order this record to be remitted for execution.