author: Mr. Justice Gordon

text:
    Turner versus The Commonwealth.
    1. The Court of “ Oyer and Terminer” is a sufficient description of a court having jurisdiction of homicide cases, and the omission of the words “ and General Gaol Delivery,” is of no legal significance and not a ground for reversal.
    2. The Act of April 9th 1874, providing for the election of an additional law judge in the Twenty-fifth Judicial District, is constitutional.
    3. In a trial for murder evidence of the prisoner’s illicit intercourse with the deceased is admissible, if such criminal conduct becomes in any way a link in the chain of circumstances which connects the prisoner with the murder.
    4. It is erroneous to submit the general character of witnesses to a jury without previous evidence touching such character,
    5. It was complained that the court permitted the jury to find a verdict against the prisoner upon a degree of proof less than that required by law in criminal cases. Held, that the instructions of the court, as herein contained, were all that the prisoner had a right to require.
    6. The court instructed the jury that if the defendant proved an alibi it constituted a perfect defence, but if not proved and they did not think it had been proved the attempt to manufacture evidence was a circumstance which always bore against the person making it; that no innocent person is driven to manufacture evidence. Held (reversing the Gourt below), that this instruction is manifestly wrong, inasmuch as the jury are told that the defendant having undertaken to defend himself on the ground of alibi, must produce evidence sufficient to work his acquittal, or if not his failure is evidence of guilt. Held, further, that were the defendant detected in an attempt to corrupt witnesses or to manufacture evidence it would certainly weigh heavily against hin^ but his mere failure to prove a given part of his defence is no evidence of such attempt and ought not to have been submitted aá such to the jury.
    7. Where the case of the Commonwealth rests upon positive and undoubted proofs, it seems that like evidence of an alibi should be required, but where the case rests wholly upon circumstantial evidence, the evidence of the alibi, though not clear, should be submitted to the jury as matter of defence.
    8. It seems that the burthen of proof never shifts, but rests on the prosecution throughout, and if, from all the evidence, a reasonable doubt of the defendant’s guilt is raised, there should be an acquittal.
    January 8th and 9th 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Trunkey, JJ.
    Error and certiorari to the Court of Oyer and Terminer and General Jail Delivery of Clearfield county: Of May Term 1878, Nos, 47 and 48. Certified from the Middle District.
    Indictment of Martin V. Turner for the murder of Maria J. Waple. Defendant pleaded “Not guilty.”

      The indictment was drawn as follows :—
    “ In the Court of Oyer and Terminer for the county of Clear-field, January Session 1877, County of Clearfield ss. The Grand Inquest of the Commonwealth of Pennsylvania, inquiring for the county of Clearfield, upon their respective oaths and affirmations, do present, That Martin V. Turner, late of the said county of Clearfield, on the third day of November, in the year of our Lord one thousand eight hundred and seventy-six, at the county aforesaid, and within the jurisdiction of this court, with force and arms, &c., in and upon the body of one Maria J. Waple, in the peace of God and the said Commonwealth, then and there being, then and there feloniously, wilfully, and of his malice aforethought, did make an assault, and her, the said Maria J. Waple, then and there feloniously, wilfully, of his malice aforethought, did kill and murder, contrary to the form of the Act of Assembly,” &c.
    On behalf of the prisoner it was alleged that this indictment was fatally defective, inasmuch as it did not aver that the deceased was living Avhen assaulted by the prisoner; and for the additional reason that it did not state the station, title or degree of the prisoner. 25th and 26th assignments of error.
    The indictment when sent to the grand jury was endorsed “ True bill,” and the prisoner alleged that it could not be sustained, for it had not been found a true bill by the grand jury, the endorsement having been made by the District-Attorney before reaching them. 24th assignment.
    At the trial, before Orvis, Additional Law Judge, it appeared that the deceased, Maria J. Waple, lived at Wallaceton, in Clear-field county, and was the divorced wife of Thomas J. Waple. About one o’clock on the 3d of November 1876, she started to visit her sister-in-law, Mrs. Jared Waple, who lived about two miles distant. No more was heard of her until the 8th of November, when her body was found in the woods about one hundred yards from the road leading to Jared Waple’s, with one gun-shot wound in the body and another in the top of her head. Turner and the deceased had been seen at the gate of the house of the latter engaged in conversation on the day of the murder, shortly before the deceased had started for the house of her sister-in-law, and very soon after she started two shots were heard in quick succession from the direction she had taken and- where her body was discovered. Turner, it was shown, left his house, a short distance from that of deceased, about one o’clock on the day of the murder. He arose from the dinner-table, went up stairs and started from his house with his gun. This gun had two barrels, one. of which was rifled and the other a smooth-bore, and the wound in the body of deceased was apparently made by a rifle-ball and that in the head by buckshot. When the prisoner returned to his house in the evening both barrels of .the gun were unloaded, and he remarked that he had been after squirrels and had had bad luck. When the search was made, the tracks of what appeared to be a man and woman were found in the vicinity of the body, and tracks which in size corresponded with those made by the shoes of Turner were found leading in the direction of the house of one Williams, about a mile and a half distant, where Mrs. Williams testified Turner came on the afternoon of the 3d of November, and that he had a gun in his hand.
    The court permitted the Commonwealth to show that from 1869 to June 1876, there had been a criminal intimacy between the prisoner and the deceased, and that these relations ceased on the latter date, when there had been a quarrel between them.
    The admission of this testimony was the 1st assignment of error.
    In chai'ging the jury, the court, commenting on this testimony, said: “That for a long time — from about the year 1869 down until the summer of 1876 — there was a criminal intimacy existing between the defendant and the deceased. Now, has that fact been proven to your satisfaction? Because, if it has not — if the evidence in the case does not show that this intimacy existed — then, of course, it must be thrown out of the case. It cannot form a part of the facts from which you can legally, justly and appropriately infer the guilt of the defendant.” This portion of the charge constituted the ninth assignment.
    The defendant called a number, of witnesses to prove an alibi. There was evidence that the prisoner, after leaving the dinner-table, on the 3d of November, was engaged in making repairs to the roof of a house, until about half-past one o’clock; and the freight agent at the railroad office testified that the prisoner came to the station, between two and three o’clock, on the day of the murder, and assisted him in checking manifests for fifteen or twenty minutes; and, on cross-examination, the same witness said that Turner had several times called .witness’ attention to this fact. Other evidence in relation to the alibi will be found in the opinion of this court, in their discussion of the charge of the court below, with reference to the attempt of the prisoner to manufacture evidence.
    The defendant offered to prove, by tbe constable who arrested him, that, on the night of November 11th 1876, he found him, about eight o’clock, at his father’s house, in bed; that he told him he was there to arrest him for the murder of the deceased, and that defendant replied: “ All right; I will go with you; I am innocent;” that he did not ask for a warrant, but accompanied the officer peaceably to the jail at Clearfield: this being offered to show absence of guilty fear, and that his conduct was consistent with that of innocence.
    The admission of this evidence, under objection, was the second assignment.

      To show the relations of the deceased toward Waple, her divorced husband, and to repel the presumption sought' to be raised by the Commonwealth that the prisoner was the only person who had any jealousy or a grudge against the deceased, the defendant offered evidence to show that Waple, the husband of the deceased, returned from the penitentiary in May 1875, and came to the house owned and occupied by deceased; that, although divorced, they lived together as man and wife until September of that year, when they separated by reason of a quarrel between them; that Waple, the husband, then went to Woodland, a distance of some three miles from Wallaceton; that he was arrested for non-payment of the costs in the divorce proceedings, and confined in jail at Clearfield; that, while there, some time in the latter part of October 1876, he requested deceased to bail him out of jail, and she refused; that he got out of prison, and was seen in the house of Mrs. Waple, at Wallaceton, on Friday night of November 3d, and on the Saturday night following, at Wallaceton early on Sunday, and beyond Wallaceton before daylight Saturday morning.
    David Quigley, one of defendant’s witnesses, having testified in chief that Waple was in the house on the Monday following the murder, and came out and asked him and one Strickland in, the Commonwealth proposed to ask witness, on cross-examination, for what Waple had asked them in, what théy did when they went into the house, and what was there said 'and done. This testimony was admitted, under objection, which -was the third assignment. Quigley testified that Waple told him he was searching for traces of the murder.
    The Commonwealth offered to prove, in rebuttal, the whereabouts of Waple, from the morning of Friday, November 3d 1876, until the evening of that day, where he was that night, his business at Wallaceton on Saturday morning, the 4th inst., and his business at Wallaceton on Sunday morning, the 5th inst.; also to show that at Bradford church he received word first that Mrs. Waple was missing, this being the evening that he was found, as testified to by defendant’s witnesses, in the house of deceased, looking for some trace of her whereabouts; also to show that, on that evening, November 6th, he went to John Bice’s house for the key to Mrs. Waple’s house, John Bice being her next neighbor.
    The admission of this evidence constituted the fifth assignment.
    The following points were submitted by defendant, to which are appended the answers of the court:—
    1. That the jury must be satisfied beyond a reasonable doubt that a murder was committed, and that the prisoner was the guilty agent therein, or they must render a verdict of acquittal.
    Ans. “ That is undoubtedly true, and we cheerfully affirm the point. You must be satisfied beyond a reasonable doubt: first, that the murder was committed; second, that this defendant was the guilty agent, or you would not be justified in finding a verdict of guilty. What is a reasonable doubt ? Not a mere figment of the intellect, not the shadow of the substance of a theory, but a substantial, reasonable doubt; such a doubt as would make an ordinarily prudent man hesitate before coming to a conclusion. If such a doubt exists, of course it must work the acquittal of the prisoner.” Nineteenth assignment.
    3. That the several circumstances relied upon by the Commonwealth to convict the prisoner, must each be proved to be true beyond all reasonable doubt, and if any of them be not so proved, it 'is the duty of the jury to disregard such circumstances in making up their verdict.
    Ans. “We affirm this point with this remark: That those circumstances relied upon by the Commonwealth must be essential circumstances — necessary circumstances to prove guilt, * * *
    every fact and circumstance essential to make out the prisoner’s guilt must be proved.” Twentieth assignment..
    4. That the jury must examine the facts proved with impartial minds, giving them their weight, as well of favor as of disfavor to the prisoner, and they cannot convict him unless the conclusion of his guilt flows naturally from these facts, and is consistent with all of them ; but if there be any of the facts absolutely inconsistent with his guilt, they must acquit him.
    Ans. “ We affirm this point also, with the remark as before, that it must apply to essential facts proven in the case. If there is a fact proved which is inconsistent with the defendant’s guilt, it shows that the theory of his guilt cannot be true; but that some witness testified to something which is inconsistent with his guilt would not work his acquital, unless you are satisfied the fact alleged is true. If any fact proved in the case, that is established by satisfactory evidence, is inconsistent, and totally incompatible with the theory of his guilt, of course it must work his acquittal.” Eighteenth assignment.
    5. That the jury must acquit the prisoner unless the evidence of the facts proved are absolutely incompatible with his innocence, and - cannot be explained upon any other reasonable theory than that of his guilt; and if they find that the crime could have been committed by another, and the facts proved still be true, they must acquit the prisoner.
    Ans. “We told you in our charge that the facts proved must be such as to exclude every reasonable hypothesis but that of the prisoner's guilt. We affirm this point.”
    In their general charge, the court, inter alia, said:—
    [“ There are persons who think that circumstantial evidence does not prove anything; it is a common thing to hear persons who, after hearing the trial of a case depending on circumstantial evidence, use an expression like this : ‘ I have no doubt the fellow is guilty, but the Commonwealth could not prove it.’ They convict themselves of error in the very expression they make use of. For if the evidence satisfied them that the man is guilty, it is proved, it is what the law requires. That is what the law requires of all evidence ; it must be of such a character as to convince the intellect and conscience of the jury that the party is guilty; then it amounts to proof, and not till then.”]
    [“ Now you are to consider this case in all its bearings. You are first to take the case of the Commonwealth and see if they have proved, by clear and satisfactory evidence, the facts from which they ask you to infer the defendant’s guilt. If the facts themselves are not proved, no legal inference can be drawn from them. If they are proved, then you must determine as to the materiality of these facts; whether all the facts can be true and yet the defendant be innocent. If they are not of a conclusive character, then, of course, it does not necessarily follow that the defendant is guilty. He may be guilty and he may.not.”]
    [“ It is alleged on the part of the Commonwealth that the defendant was away from home, and in possession of an instrument of the kind which must have been used in committing this act. Now, has that fact been proved ? If the' evidence of the Commonwealth leaves it in doubt when considered alone, or if the .evidence of the defendant shows that it could not be true, then it is not a fact in this case. But if it is proved, satisfactorily proved, proven to your satisfaction, so you believe it, then it is a fact proven in this case. It is, however, to be considered in determining whether that allegation is proven to exist; you must consider and weigh all the testimony bearing upon it, whether that testimony comes from the Commonwealth’s witnesses or the witnesses for the defendant.”]
    [“ It is alleged in the next place by the Commonwealth that there were tracks, coming from near where the body was found, leading through the woods for nearly two miles, and coming to a place where the prisoner was upon that.day; that these tracks were the tracks of the prisoner ; that they correspond in size, in length, in width and with peculiarities that are shown to have existed in his boots. Now is that a fact proved in this case ? Does the evidence satisfy your minds that that is true ?”]
    [“ The fact of the defendant’s guilt, it is incumbent upon the Commonwealth to prove by affirmative evidence. The defence have aright simply to sit still and say, ‘You have not proved your allegations.’ They question the validity of the proof; the satisfactory nature of the evidence; the credibility of the witnesses; the truth of the evidence. If they have satisfied your minds that there are weak points in. the case of the Commonwealth ; that they have not proved any material fact, or if the facts proved are not of a conclusive character, it will be your duty to acquit the defendant.”]

      [“ If the evidence does clearly point to him as the guilty agent, then no consideration whatever should prevent you from convicting him. If the evidence does so satisfy your minds and consciences that he is guilty, the fact that he belongs to one family or another; that he is rich or poor; that he may have rich relations, or he may not have them; that he may have a father or mother, sisters or brother, to whom his conviction would be a terrible blow, must not weigh with you, if the evidence shows that he is guilty. The fact that the public want him convicted, if it is true that they do, should not weigh one feather’s weight to convict him, if the evidence does not satisfy your minds and consciences that he is guilty.”]
    The foregoing portions of the charge constituted, respectively, the seventh, eighth, tenth, eleventh, thirteenth and twenty-first assignments.
    The court again said:—
    “ It is alleged on the part of the Commonwealth that the defendant made efforts to manufacture testimony that was not true; that he attempted to get witnesses to swear to his presence at times and places where he was not.; that he called attention to a time and place where _ he said he was and afterwards denied it. Now, are these facts sustained by the proof? If it was proved that this defendant did so attempt to manufacture evidence that was false, it is a fact which you must consider.” Twelfth assignment.
    Again:—
    “ The next branch of the defence is of a different character, and of a more affirmative character. That is what is called in law an alibi. You should examine very carefully all the evidence bearing upon that question. An alibi is a perfect defence, when it is fully, clearly and satisfactorily established, but the burden is upon the person asserting it to establish it. If a defendant offers to show an alibi, the burden is upon him; there he becomes the affirmant; he becomes the actor, and the law requires him to prove to your satisfaction that his allegation of being somewhere else is true. This, from a negative defence, now becomes an affirmative one.” Fourteenth assignment.
    Again:—
    “ You must bear in mind all of those facts by which the credibility of the witnesses can be determined, to ascertain whether the proof of the alibi, or of the prisoner being elsewhere at the time the murder was committed, is made out. It is for you to say whether that fact is established. If it is sustained or satisfactorily proven, of course he cannot have committed the murder. Whether or not it is established, is of course for you. to determine. There is a considerable conflict or discrepancy in the evidence bearing upon the facts, but it does not necessarily follow that the persons who have testified to these discordant facts have necessarily perjured themselves. It is your duty to reconcile these statements without imputing perjury, if the discrepancies in the testimony can be reconciled upon the hypothesis of mistake. Judge of the different witnesses whether they tel] the truth or not, if their statements caii all be reconciled upon any reasonable hypothesis of truthfulness, and let the testimony of all the witnesses stand. You must determine with regard to each of these witnesses in your own examination, which was most liable to be mistaken,' what circumstances they show which would enable them seemingly to fix the time; this applies as well to days as hours or parts of days. * * * You must determine what is true. In order to do that you must scrutinize the evidence; you must consider the witnesses, who they are, what their character is in the community, whether their character for veracity has been assailed.” Fifteenth assignment.
    Again:—
    “ Then you must determine from all this, guided by these rules, whether an alibi has been proved or not. If proved, it constitutes a complete defence; if not proved, and if you think it has not, the attempt to manufacture evidence is a circumstance which always bears against the person. No innocent person is driven to manufacture evidence. If you believe that this defendant has attempted to manufacture evidence that is not true — has attempted to prove that he was at a place and time where he was not, then that is a circumstance against him. If his allegation is true — if his allegation is supported by truthful evidence, reliable evidence, then it goes to his defence.” Sixteenth assignment.
    The jury rendered a verdict of murder in the first degree, and his honor, Judge Orvis, sentenced the prisoner to be hung. This writ was then taken by him, and, among others, he assigned the errors noted above, together with the following :—
    Twenty-second assignment. That the indictment was found and the defendant tried and sentenced in a court unknown to the Constitution and laws of the Commonwealth, as the record named the court as the “Oyer and Terminer” and omitted “and General Gaol Delivery.”
    Twenty-third assignment. That the defendant was tried and sentenced by an additional law judge, who has no constitutional power to try pleas of murder in a “ double district.”

      William A. Wallace (with whom was T>. L. Krehs), for prisoner.
    — 1st and 9th errors: Proof of illicit connection is no proof of motive. In absence of threats, jealousy, possession of secrets or a quarrel, it could only tend to prejudice the jury and permits them to imagine a motive. It is proof of an independent crime. There must be a connection between the two in the mind of the criminal: Shaffner v. Com., 22 P. F. Smith 60; 1 Greenl. Ev. 961. Motive cannot be imagined. It must result from facts proved. It is contrary to nature to deduce the motive for murder from the genesis of being, in the absence of proof of threats, jealousy or quarrels. This, in effect, proved prisoner’s character by acts. This is illegal: People v. Jones, 31 California 566; People v. Bennett, 49 N. Y. 147; State v. Lapage, 57 N. H. 245.
    2d error : Prisoner’s statements as part of res gestee admissible: U. S. v. Craig, 4 Wash. C. C. Rep. 729; State v. Swink, 2 Dev. & Batt. 9; Kirby v. State, 7 Yerger 259; McClenkan v. McMillan, 6 Barr 367; Tompkins v. Saltmarsh, 14 S. & R. 281; Potts v. Everhart, 2 Casey 498; Cattison v. Cattison, 10 Harris 276.
    7th error: This part of the charge substitutes the ■ ‘ satisfaction” of a hearer not under oath for the higher measure of conviction necessary for an oath-bound juror. We all believe facts, as men, that we would not act upon as such in a capital case. A juror must base his finding upon the legal conviction of his intellect. The judgment of a bystander might adjudge preponderance, but the presumption of innocence is to be overcome. In such cases the intellect is appealed to through the medium of lawful proof. It must be legal, not moral conviction.
    8th, 10th and 13th errors: The court here imposes the onus upon the prisoner. It in substance permits the Commonwealth to prove a prima facie case and then calls upon us to answer it. The 11th error is the assumption of a vital fact and is error: Musselman v. Railroad Co., 2 W. N. C. 105; 32 Leg. Int. 404; Harrisburg Bank v. Forster, 8 Watts 304; Parker v. Donaldson, 6 W. & S. 132.
    12th error: The words are, “ No innocent person is driven to manufacture evidence.” .No proof of such in any part of the case. The logic is, if Turner’s alibi fails he manufactures proof. Therefore Turner is guilty. Failure to prove alibi no proof of guilt: Briceland v. Commonwealth, 24 P. F. Smith 463; State v. Collins, 20 Iowa 85; Great Western Railroad Co. v. Morthland, 30 Ill. 457; White v. State, 31 Ind. 262; State v. Josey, 64 N. C. 56.
    Fourteenth, fifteenth, sixteenth and eighteenth errors. The court erred—
    1st. He has held the prisoner in his proof of alibi to a higher measure of proof than he requires of the Commonwealth upon any vital fact or upon the whole case.
    2d. He has held the prisoner to the same full measure of proof as not being at Williams’s, 688 rods from the scene of murder, on Fi'iday with a gun, as to his being at Wallaceton at the moment of the murder.
    3d. He has required from the prisoner full proof of his own allegation from his own side as to the alibi, and failed to give them the whole evidence to weigh and consider upon that point.

      4th. In asserting the broad proposition that the burden of proof of the alibi was on the prisoner, and that' he must fully and clearly establish it.
    5th. In permitting the jury to consider the character of witnesses in the community, when no attack had been made upon their character.
    As to the first proposition: the measure of proof applied to the facts relied on by the Commonwealth is stated thus : “ It is necessary therefore that the Commonwealth should prove fully and satisfactorily to your minds the facts themselves, from which she asks you to infer the guilt of the prisoner.” The same language is repeated, except that it is to be to their satisfaction. Again, the court gives the concrete thus: “ You are first to take the case of the Commonwealth and see if she has proved by clear and satisfactory evidence the facts from which she asks you to infer the defendant's guilt.”
    Now, we turn to the other side; as to the alibi. “ If this is established clearly and satisfactorily of course it is an end of the case.” Again: “An alibi is a perfect defence where it is fully and satisfactorily established.” Again: “If it is sustained or satisfactorily proven, of course he cannot have committed the murder.”
    One conclusion or the other forces itself from this comparison, namely: either the measure of proof to which the Commonwealth was held was too low, or the proof to which the prisoner was held was too high. They are not similar in requirement, and there is error here.
    This burden ought not to lie, and, as- the law is now held, does not lie, on the defendant.
    Neither the humanity, the reason nor the authority of the law sustains the court.
    The presumption of innocence shields the prisoner. He may sit still and demand proof beyond doubt of his guilt. What reason can be given, in accord with humanity, for changing this rule and destroying this presumption, when he tries to show the physical impossibility of his presence ? It is often the only refuge of innocence. The jury, under instructions, maybe safely trusted with the legal scrutiny of the evidence. It is not sustained by reason. The allegation of the indictment is “he did then and there kill.” This is a vital part of the proof of the Commonwealth. It is traversed by the plea of not guilty. Alibi is a defénce and not»a plea. It confesses nothing. It avoids nothing. It does not admit the killing either “then or there.” It simply says : You must prove this charge; if you do prove it, I am not guilty for I was elsewhere. It is not an afiirmative defence. It is a denial of the charge “you did there kill.” There can be no such thing under the law as an affirmative defence to the gist of a crime, which will shift the burden of proof from the Commonwealth to the prisoner. If alibi be such, it is an anomaly in criminal jurisprudence. The defences of insanity, provocation, necessity, and former acquittal or conviction are all in excuse or justification, and each of them is an admission of the essence of the offence — the very fact of killing. Alibi, on the contrary, if narrowed to its lowest conception, distinctly traverses this vital element of the crime — he did there kill. All of the authorities agree that the Commonwealth, upon the whole case, must prove every essential of the crime beyond a reasonable doubt. They also agree that the prisoner makes no admission of guilt by setting up an alibi. If those be sound law, and they are undoubtedly humane — it necessarily follows that the presumption of innocence is not dethroned, that the burden of proof rests, as to this averment, upon the Commonwealth. If this be not true, we have the incredible result that a law based upon humanity, logic and common sense, holds the prisoner innocent until he is proved guilty, but as to the vital requisite to the crime • it requires him to prove his innocence. The burden of proof in the sense used by the court below — the affirmative of the issue as to the material averment, “ he did, then and there kill,” never shifts from the Commonwealth. The character of the proof to support this defence, and the measure of that proof may well be what this court and others of like enlightened character hold them to be — carefully scrutinized and preponderating proof, but these do not justify the charge of the court nor sustain the illogical position that.the burden of proof is upon both the Commonwealth and the prisoner as to an essential element in the crime.
    The charge cannot be sustained upon authority. We mean by this, that the broad declaration, that “ If a defendant offers to show an alibi, the burden is upon him, there he becomes the affirmant, he becomes the actor, and the law requires him to prove to your satisfaction that his allegation of being somewhere else is true,” is not warranted in law. If for no other reason, it is unsound, because it imposes the duty of satisfying the jury of its truth upon the prisoner, and denies him the benefit of this proof in qualifying all of the proof on. this subject, so as to enable the jury to determine whether a reasonable doubt existed. He is held to the task of proving it to their satisfaction — of proving it as a truth. But we place the case here upon other ground, as well as upon this. The burden of proof is not upon' the prisoner; he does not become the affirmant — the actor. The burden is still upon the Commonwealth. The jury must carefully scrutinize the evidence upon the alibi, and if there be a preponderance of the whole evidence from which they are satisfied the alibi is established; or if, taking this in connection with all of the other proof in the cause, a reasonable doubt is raised, they must acquit. The charge, as a whole, asserts the doctrine that the prisoner must prove the alibi affirmatively; if he fails in doing so, that failure is- to be considered as a fact against him; and if, upon the whole case, including that fact, there is satisfactory proof of the defendant’s guilt, they should convict him.
    Authorities need not be quoted for the propositions:—
    That it devolves upon the Commonwealth to prove all of the material allegations in the indictment; or,
    That, if, upon the whole evidence, the jury have a reasonable doubt as to the defendant’s guilt, they must acquit.
    Even where a prima facie case is made out, the burden of proof is not thereby shifted on to the defendant. The presumption of innocence is still his shield, and comes to aid all of the proof he adduces: Com. v. McKie, 1 Bennett & Heard’s Lead. Crim. Cas. 347 and note; State v. Flye, 26 Maine 312; Chaffee v. U. S., 18 Wall. 544, supra 22; Toler v. State, 16 Ohio St. 583; Spencer v. State, 50 Ala. 124; Line v. State, 51 Ind. 173; Wharton on Homicide, sect. 652; Pollard v. State, 53 Miss. 410.
    We can readily understand how it must result, from the statement in Fife v. Commonwealth, that the facts are admitted by the defence of alibi, that it necessarily follows that the burden of proof would then be thrown upon him who alleged the reverse of these facts; but, where the fact of killing “then and there” is the issue traversed and denied, and the law is, that an alibi does not admit its truth, it seems inevitable and logical that the presumption of innocence is in full force, and the burden is on the Commonwealth. The doctrine quoted from Wills, which asserts that “A resort to that kind of'evidence implies an admission of the truth and relevancy of the fact alleged,” if it ever was the law, is not so now. The whole of this sentence in Wills is as follows: “An unsuccessful attempt to establish an alibi is always a circumstance of the greatest weight against -the prisoner, because the resort to that kind of defence implies an admission of the truth and relevancy of the facts alleged, and the correctness, of the inference drawn from them, if they remain uncontradicted.” We have already seen that the first clause of this sentence is not the law. It is not “a circumstance of the greatest weight” as matter of law, and the concluding part of the sentence is merely the reason given for that which is not the law. Judge Dillon, in the case in 20 Iowa 94, discusses this subject, and declares it to be wrong to state to the jury, that the effect of a failure to establish an alibi is to admit the truth and relevancy of the facts alleged. “Whether true or not,” he says, “is for the jury to determine;” and this is certainly the only safe doctrine.
    The case must go to the jury upon the whole evidence: Wharton on Homicide 647; Commonwealth v. Choate, 105 Mass. 451; Meyers v. Commonwealth, 2 Norris 131; West v. State, 48 Ind. 483; Binns v. State, 46 Id. 311; Harvey v. State, 40 Id. 516; Stokes v. People, 53 N. Y. 181.
    Nineteenth error: The definition of a reasonable doubt by the court is, “ such a doubt as would make an ordinarily prudent man hesitate before coming to a conclusion.” This standard is too low: Commonwealth v. Harman, 4 Barr 269; Miller v. People, 39 Ill. 458; Pate v. People, 3 Gilman 644; State v. Oscar, 7 Jones 305; People v. Ashe, 44 Cal. 288.
    “An ordinarily prudent man” may act upon strong probabilities in ordinary or even important affairs. Many such “ take the chances,” and often win, but it will not do to make the rule in matters of life and death one of ordinary care or strong probability, or even the exercise of ordinary caution in grave matters. It is high diligence, extraordinary care; not absolute certainty, but that caution which men of prudence in every-day life take in matters of the greatest importance to themselves. Under such a charge as in this case a preponderance of proof might induce strong probability and cause “ an ordinarily prudent man to act without hesitation,” but no preponderance of proof supplies the measure of the law: 1 Starkie Ev. 514, 543; Wharton on Homicide 650 note; 3 Greenl. Ev. 29; State v. Dineen, 10 Minn. 408; State v. Shettleworth, 18 Id. 208; Otmer v. People, 76 Ill. 149; People v. Ah Sing, 51 Cal. 372; Anderson v. State, 41 Wis. 431; State v. Rover, 11 Nev. 343; Burrill Crim. Ev. 199, 200; Wills Crim. Ev. 7.
    Twenty-second error : The name of the court in the proceedings is only half the constitutional name: Cons. 1790, 1838, 1873, art. 5, sect. 1, 3; Purdon 382 ; 1 Wh. Crim. Law 223; 5 Bac. Abr. 93, 94; Dougherty v. Commonwealth, 19 P. F. Smith 286; Purd. 377, sect. 12; Commonwealth v. Kass, 3 Brewst. 426.
    Twenty-third error: There can be no additional law judge under the new Constitution in districts composed of more than one county: Cons. 1873, sect. 5; Kilpatrick v. Commonwealth, 7 Casey 198; Myers & Murray v. Commonwealth, 29 P. F. Smith 308; Commonwealth v. Zephon, 8 W. & S. 382; 1 Hale P. C. 497; 4 Blackstone 178; Clark v. Commonwealth, 5 Casey 129; Commonwealth v. Burrell, 7 Barr 34.
    Twenty-fourth error: The words “true bill” on the indictment when it went to grand jury, are in excess of power of the district-attorney. It interferes with freedom of the grand jury. It debases the institution and serves to make it subservient to power. It is an interference and is matter of substance: Wh. Crim. Law 477, 500; 1 Chit. Crim. Law 323.
    Twenty-fifth error: The implication in indictment is that deceased was not “in being.” The indictment ignores the idea of existence and asserts that of place: Wharton on Homicide 805; 1 Archbold 831; 5 Bac. Abr. 68; Lutz v. Commonwealth, 5 Casey 443; 1 Wh. Precedents 114.

      ■ Thomas S. Murray, Cyrus Gf-ordon and William M. McCullough (District-Attorney), for Commonwealth.
    — While it may not be competent to show the commission of a crime charged by proof of another crime unconnected with that in the indictment, it is competent to show a relation existing between the parties from which motive may be inferred: Shaffner v. Commonwealth, 22 P. F. Smith 60. While the prosecution cannot attack the character of a prisoner by the proof of acts not charged in the indictment, whether to prove general character or a tendency to commit the crime charged, yet where such acts are so connected by circumstances with the particular crime in issue that this proof has a bearing upon the issue other than expressed above, “such acts may be proved:" State v. Lapage, 57 N. H. 245. This offer is admissible, if for no other reason, because it is proof of a relation existing directly between prisoner and deceased. In this respect it differs from that large class of cases where either the crime was committed, or relation sustained by prisoner in reference to a third party. And why cannot a relation existing between the parties be proven? Surely, not to be rejected (if admissible on other grounds) because that relation may be such as to include also a crime.
    In cases where the scienter or the quo animo constitutes a necessary part of the crime charged,' as in cases of forgery, murder, and the like, testimony of such acts or declarations of the prisoner as tend to prove such knowledge or intent is admissible, notwithstanding they may constitute in law a distinct crime: Dunn v. State, 2 Ark. 229; Tharp v. State, 15 Ala. 749; Stout v. People, 4 Park Cr. Cas. 71; Com. v. Ferrigan, 8 Wright 387. It is a general rule that declarations óf a party accused of a crime made in his own favor, after the time of the alleged commission of the crime, are not evidence for him, unless the accompanying acts are part of the res gestee : 1 Archbold’s Crim. Pl. 429; State v. Hildreth, 9 Ired. 440; State v. Scott, 1 Hawk. 24; Campbell v. State, 23 Ala. 44.
    We contend that the burden of proving an alibi rests upon the person who asserts it, and that for the reason that it is of an affirmtive character, and in the highest sense affirmative; and .that to avail him the proof on that averment must be satisfactory to the minds of the jury: Commonwealth v. Choate, 105 Mass. 451; Briceland v. Commonwealth, 24 P. F. Smith 464. An attempt to manufacture testimony is a circumstance against a defendant, especially in an alibi: Stark. Ev. 505; Briceland v. Com., supra; Cathcart v. Com., 1 Wright 113; Com. v. Twitchell, 1 Brewster 608; Wills on Circumstantial Evidence 83; Burrill on Circumstantial Evidence 519; Commonwealth v. Webster, 5 Cushing 311.
    In several sections of the new constitution the term “Oyer and Terminer” is used as a designation of a court. So the Act of March 18th 1875, Pamph. L. 28, makes a like designation in fixing the terms for holding courts. So also in the Act of February 27th 1875, Pamph. L. 62, and various other acts.
    A fair and reasonable construction of the new constitution, we contend, does not prohibit but sustains the Act of 1874, providing for an additional law judge in the Twenty-fifth District, and is in strict accordance with the intent of the framers of the constitution, the 5th section of which provides that “whenever a county shall contain 40,000 inhabitants it shall constitute a separate judicial district, and shall elect one judge learned in the law, and the General Assembly shall provide for an additional law judge, as the business of said districts may require. Counties containing a population less than is sufficient to constitute separate districts shall be formed Into convenient single districts, or, if necessary, may be attached to other contiguous districts, as the General Assembly may provide. The office of associate judge, not learned in the law, is abolished in counties forming separate districts; but the several associate judges in ofiice when this constitution shall be adopted shall serve for their unexpired terms.”
    The 9th section provides that “Judges of Common Pleas, learned in the law, shall be Judges of the Courts of Oyer and Terminer, Quarter Sessions of the Peace and General Jail Delivery, and of the Orphans’ Court, and within their respective districts shall be justices of peace as to criminal matters.”
    The Act of 9th April 3874, Pamph. L. 54, designating the jm dicial districts of the state, designates the Twenty-fifth District, composed of Clearfield, Centre and Clinton counties — which had been an established judicial district for many years prior to the adoption of the new constitution — authorized the election of an additional law judge for this, among other districts similarly situated, and also provided that said judges shall have the same power, authority and jurisdiction as the president judges in the several courts of their districts. The Act of 38th March 1875, Pamph. L. 25, authorizes each of the law judges in any district to hold at the same time with the others, separate courts, including the Court of Oyer and Terminer.
    Under these Acts of Assembly, his honor, Judge Orvis, who presided at the trial of this cause, was elected.
    May 6th 1878.
   Mr. Justice Gordon

delivered the opinion of the court,

The exceptions in this case are very numerous, and we must, as far as we can, classify and examine them in this manner. Naturally those exceptions which go to the jurisdiction of the court first claim our attention. It is alleged, firstly, that the indictment was found, and the defendant tried and sentenced, in a court unknown to the constitution and laws of this Commonwealth. This allegation is based on the fact that the record names the coutt as the “ Oyer and Terminer,” and omits “and General Gaol Delivery.” This, however, is exactly what is done in the eighth and ninth sections of the fifth article of the constitution of 1874, so that such a court cannot be said to be unknown to the constitution. The first of the above-named sections designates the criminal courts of Philadelphia and Allegheny counties as “ the Courts of Oyer and Terminer and Quarter Sessions of the Peacethe second connects the-term “General Gaol Delivery,” not with the Court of Oyer and Terminer, but rather with, as it immediately follows, the Quarter Sessions. This latter section is that which confers upon the judges the power to hear and determine all cases of a criminal character. Thus it comes to pass that our judges have, in a single commission, all the powers which the English judges derived from several. Indeed, as we learn from Blackstone’s Commentaries (vol. 4, p. 270), anciently it was the custom to issue separate writs of gaol delivery, called writs de bono et malo, for each case. This practice, being found to be attended with inconvenience, was in the course of time abolished, and instead thereof, a general commission was substituted for all prisoners triable at a particular term. This commission, unlike that of oyer and terminer, ran only to “try and deliver” prisoners in each separate gaol. (Id. 271, note.) The reason for this was, that as the commission of oyer and terminer only, empowered the judges to “ inquire and determine,” they could proceed under it only upon indictments found at the same term as that at which the several trials were heard, hence the necessity of an additional writ for the disposition of indictments and other cases previously found and instituted. Under our system this writ has no place; and it is obvious .that the name itself can have no legal significance, since it but imports a power which every judge possesses by virtue of his general commission. We conclude, therefore, that the omission of the words “general gaol delivery” was of no importance, and, had the attention of the court been called thereto, might have been supplied by amendment.

It is alleged, secondly, that the defendant was tried and sentenced by an additional law judge, who had no constitutional power to try pleas of murder in a “ double district.” The validity of the commission of Judge Orvis, who held the Court of Oyer and Terminer in which the defendant was convicted, is thus called in question. It is insisted that the Act of Assembly which authorizes the election of an additional law judge for the 25th district, composed of the counties of Clearfield, Centre and Clinton, was and is unconstitutional and void. This point is raised under the 5th section of the 5th article of the constitution. It will be observed that when, by this section, a county is to compose a separate district, provision is made for additional law judges ; but for single districts, formed of several counties, no such provision is made. The learned counsel for the defence regards this omission as significant. Not, indeed, because, without more, the legislature would not possess the power to create such judges, since it is conceded that such power must necessarily belong to that body if it be not in terms withheld, but because it is said the phrase “ single district,” as used in this section, means a district having but a single law judge. To prove this, reference is had to the debates in the convention. But if these prove anything, they prove too much for the argument which they are adduced to support, for they advocate districts with single judges, without regard to whether those districts were to be composed of one or several counties. As the idea was dropped as impracticable in single county districts, we may well suppose it was also abandoned as to those formed of several counties; for it is not reasonable to suppose that, whilst provision was being made for the possible wants of districts having populations of forty thousand, those having possibly double that number should have been wholly neglected. We are inclined to think that that- word “single,” directly connected as it is with the word “ district,” is to be regarded as a synonym of “ separate,” and as having been used to avoid tautology. If not, its use, in the connection in which it now stands, was unfortunate, for grammatically it qualifies and characterizes the judicial districts, and does not limit the number of judges.

The first and ninth assignments of error cannot be sustained. They relate to admissions of evidence and the charge of the court on the subject of the relations existing between Turner and Mrs. Waple. That adulterous intercourse may be proved as a circumstance leading to the commission of crime, is ruled in the case of Ferrigan v. Commonwealth, 8 Wright 386, and it would thus seem to follow that if the criminal conduct proposed to be proved becomes in any way a link in the chain of circumstances which connects the defendant with the crime.charged, it is admissible in evidence. That such circumstance is in its character criminal, and tends to exhibit another crime than the one charged, is no reason for its exclusion. It certainly does not follow that evidence, otherwise legitimate, should be excluded only because it tends to exhibit a character not accordant with an honest life. We need not say how important this testimony is to the case now in hearing, and how little there would be without it to connect the defendant with the offence charged ; it is enough to say that it is a legitimate part of the case, and that it was properly admitted. It is conceded that an independent crime, unconnected with the matter in trial, may not be put in evidence, for this is but proof of character, and that in its most objectionable shape; such, however, is not the case with the testimony under consideration. The criminal relation is but one of a series of facts connecting the defendant with the homicide, and a proper use was made thereof by the prosecution.

The second assignment covers nothing of importance. Turner’s voluntary declarations of innocence at the time of his arrest explained nothing in connection with that act; they' were purely gratuitous, and hence no part of the res gestee. The case of Rhodes v. Commonwealth, 12 Wright 396, is not in point, for in that case the circumstances of the search rendered explanation necessary, and therefore the declarations of the defendant became as much a part of the transaction as the search itself.

There is nothing in the third and fifth assignments. If it was deemed important by the defendant to prove that- Waple asked Quigley and Strickland to come into the house,' it was proper for the prosecution to ascertain why they were so asked, and what was said and done after they had complied with the invitation. The whole was one transaction, and could not be dissevered to suit the purposes of either party. In like manner, when the defence undertook to show Thomas Waple’s whereabouts at and about the time of the murder, and his animus towards the deceased, it was altogether proper for the Commonwealth to endeavor to rebut the presumptions arising from those facts; for, however concealed, their purpose could have been nothing less than to direct the attention of the jury to Thomas Waple as the real criminal.

The seventh, eighth, tenth, eleventh, thirteenth, seventeenth, eighteenth, twentieth, and twenty-first assignments are not sustained. In these the complaint is that the court permitted the jury to find a verdict against the prisoner upon a degree of proof less than that required by law in capital cases. We think this complaint not well founded. The evidence, if believed, was sufficient to warrant a conviction; and an examination of the charge shows that, in submitting that evidence, the court omitted no proper instruction. The. attention of the jury was called to the duty resting upon it of carefully and faithfully weighing and examining the evidence. That body was told that in order to work a conviction each material fact must have been satisfactorily proved, and if it remained in doubt, or if the defendant’s proof showed that it could not be true, it must not be regarded as a fact in the case. The learned judge further says, in answer to the defendant’s first point, “you must be satisfied beyond a reasonable doubt, first, that the murder was committed; second, that, this defendant was the guilty agent, or you would not be justified in finding a verdict of guilty.” Again, in answer to the fifth point, “we told you in our charge that the facts proved must be such as to exclude every reasonable hypothesis but that of the prisoner’s guilt.” Surely if the jury misunderstood this language it was no fault of the court; everything was said that the defendant had a right to require.

W e pass the twenty-fourth, twenty-fifth, and twenty-sixth assignments, with the remark, that we are not convinced that there is either anything wrong in the indictment, or that it was not proper for the grand jury to adopt the words “true bill,” as printed on the back thereof.

So far we agree with the rulings of the court below, but we must now advert to some particulars of this trial which compel us to dissent. And, first, it was improper to submit the general character of the witnesses to the jury without evidence touching such character. There is a very wide distinction between the personal character of a witness and the character of the evidence which he may give in a particular case. If the former be good, though the latter be impeached by facts and circumstaáces developed during the trial, yet the defects in such testimony may be accounted for by mistake or lack of memory, and whatever of it remains uncontradicted may be accepted without hesitation ; on the other hand, if the former be bad, corroboration must follow the evidence in all its material parts or it is worthless. This submission ivas erroneous in that it gave to the jury the power of testing evidence by that which could be found only outside of the trial itself, perhaps in the personal knowledge of some of the jurors. Perhaps this submission was inadvertent, and from its generality may have been harmless; nevertheless,, we have thought proper to advert to it in order that its repetition may be avoided.

A much more important error is found in the twelfth assignment. This covers the submission to the jury of the alleged attempt by the defendant to manufacture evidence. As was said by the court, “if it was proved that this defendant did so attempt to manufacture evidence that was false, it is a fact which you must consider.” The matter is thus put as an important element of the. case. Now if there was testimony to support this submission no fault could be found with it, but we have looked in vain for such testimony, though, in this, we have had the assistance of the able counsel for the Commonwealth. The evidence on this branch of the case is as follows: George Morgan testifies to Turner’s presence at the depot at Wallaceton, between two and three o’clock of the afternoon of the day of the murder. He says the defendant was in the office before the arrival of the freight train, and assisted him in checking his manifests. On cross-examination, he stated that at two or three times, or perhaps oftener, Turner had called his attention to this fact, and that, previous to these reminders on the part of Turner, he had not recollected the time. As, however, Morgan seems to have been a reputable witness, it would seem, that the defendant but called his attention to what was the truth, and thus, in a legitimate manner, obtained for himself an important piece of testimony. This act, unaccompanied as it was by anything, resembling an attempt to corrupt this witness, was altogether proper, unless, indeed, one accused of crime is to make no effort in the way of self-defence. Then, it is said, he was seen in close conversation with a witness named David Snyder, but what he said to Snyder, or Snyder to- him, is wholly unknown. Certainly nothing in the way of evil should be predicated of a matter such as this, unless the intent was to convict the defendant on bare suspicion.

Again, it is said, he contradicted John Rice; but John Rice does not allege that. Here is his testimony :—

Ques. Mr. Turner went to the jury inquisition ? Ans. He was there. Yes, sir. I told Martin that the old man had contradicted me. He says, “did I tell you this was Friday night?” I says, yes. He says, “I must have been mistaken, it was on Thursday.” Ques. He corrected you? Ans. No; he did not correct me. He said he had been down to John Stamer’s to see about the value of switch ties; he did not say he had been out hunting.

In this there is nothing which resembles a contradiction of the witness; on the contrary, his statement is taken for verity, and Turner says, “I must have been mistaken.”

Beyond what we have recited we discover nothing that tends, even remotely, to sustain the charge of an attempt, by the defendant, either to manufacture or to prevent evidence, and we cannot but pronounce as wrong the submission of such a question to the jury.

We must also take issue with the learned judge on the rule which he has announced as the governing one in a defence resting upon an alibi. He says (page 20 of the paper-book), “an alibi is a perfect defence when it is fully, clearly, and satisfactorily established, but the burden is upon the person asserting it to establish it.” And further on (page 23), “ If proved it constitutes a complete defence ; if not proved, and you think it has not been proved, the attempt to manufacture evidence is a circumstance which always bears against the person. No innocent person is driven to manufacture evidence.”

As an abstract proposition the first part of this instruction might be regarded as correct, for, in the first place, as is said in Briceland v. The Commonwealth, 24 P. F. Smith 463, per Agnew, J., when a defence rests upon proof of alibi, it must cover the time when the offence is shown to have been committed, so as to preclude the possibility of the prisoner’s presence at the place of murder.

It thus necessarily follows, that if the evidence on this point is imperfect it comes to nothing. So, if the case of the Commonwealth rested upon positive and undoubted proofs, it might require like testimony to beget a reasonable doubt, and hence, less than full, clear, and satisfactory evidence would be worthless. The fault, however, with this instruction, in the present case, which is one depending wholly upon circumstantial evidence, is that, under it, if the testimony fails to reach a strength sufiicient to work an acquittal, it is in effect excluded from the case. This is a rule inadmissible in modern criminal jurisprudence; for proof of an alibi is as much a traverse of the crime charged as any other defence, and proof tending to establish it, though not clear, may, nevertheless, with other facts of the case, raise doubt enough to produce an acquittal. We are inclined to think with Mr. Greenleaf (Ev. vol. 1, sec. 81 b) that the true rule in criminal cases, notwithstanding some decisions to the contrary, is, that' the burden of proof never shifts, but rests upon the prosecution throughout, so that, in all cases, a conviction can be had only after the jury have been convinced, beyond a reasonable doubt, of the defendant’s guilt. From this it results, that, if from any, or from all the evidence taken together, a reasonable doubt of the defendant’s guilt is raised, there should be an acquittal.

The latter part of the instructions above cited is manifestly wrong in this, that the jury are told that the defendant, having undertaken to defend himself on the ground of alibi, must produce evidence sufficient to work his acquittal, or, if not, his failure is in itself evidence of guilt. This is adding a penalty to what maybe, not the defendant’s crime, but his misfortune — a result that we cannot sanction. Were the defendant detected in an attempt to corrupt witnesses, or to manufacture evidence, it would certainly weigh heavily against him, but his mere failure to prove a given point of his defence is no evidence of such attempt, and it 'ought not to have been submitted as such.

The sentence of the Court of Oyer and Terminer is reversed, and a new venire is ordered.


source: Caselaw Access Project

author: Mr. Justice Woodward

license: Public Domain

text:
    Gramlich versus Wurst et al.

    1. Where the owner of land, in the exercise of lawful dominion over it, makes an excavation thereon which is such a distance from the public highway that the person falling into it would be a trespasser upon the land before reaching it, the owner is not liable for an injury thus sustained.
    2. Where one is in the lawful occupancy of land and engaged in an employment that is entirely legitimate, in the absence of evidence to show exceptional hazard he is not required to provide exceptional safeguards.
    3. An owner of land may improve it in his own time and in his own way, so that he violates no duty that he owes to any adjacent owner or to the public.
    4. Where there is no conflict of testimony, and either the standard of individual duty has been judicially determined, or the rights of owners of property have been judicially defined, the decision of a question of negligence affecting individual action in the one case, or the exercise of dominion over property in the other, becomes the duty of the court. Negligence is to be found upon evidence, and is not to be presumed from the bare fact of the occurrence of an accident on a defendant’s land.
    5. Hydraulic Works v. Orr, 2 Norris 332, distinguished and affirmed.
    January 10th 1878. Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.

      Error to the Court of Common Pleas, No. 2, of Philadelphia county: Of July Term 1877, No. 86.
    Case by Mary Wurst, and others, the widow and minor children of John A. Wurst, against Frederick Gramlich, to recover damages for the death of said John A. Wurst, which plaintiffs alleged was occasioned by the negligence of defendant in not properly guarding an excavation, into which said Wurst fell and was killed.
    The facts are fully stated in the opinion of this court.
    At the trial before Mitchell, J., among other points, the defendant submitted the following:—
    3. The place of this excavation being on private property, and not on any line of street or public highway, but some distance therefrom, and the said decedent (not being engaged in any manner whatever by the said defendant or his agents) had no right to be there, and was a trespasser, and the verdict should have been for the defendant.
    The court refused the point, and charged the jury, inter alia, substantially as follows :—
    “ Now as to the defence, it is contended by defendant:—
    “First. That there is no direct evidence how the accident happened, and therefore no sufficient evidence of defendant’s negligence. In support of this view, defendant’s counsel has called your attention to the fact that Wurst, when he fell in, was not on his route home from the place where he was last seen at work. His home was in another direction. Further, he was a trespasser on the lot where the excavation was, and had no legal right to be there at all.
    “I instruct you that those facts do not absolutely prevent a recovery by the plaintiffs. A man is bound to exercise reasonable care even toward a trespasser. But these facts bear very strongly on the question of what was reasonable care on the part of defendant under the circumstances — in other words of his negligence, and also of the negligence of the deceased. A trespasser is bound to proceed with more care than where he has a right, and on the other hand, the defendant was not, in ordinary circumstances, bound to anticipate a trespass.
    “ Secondly. Has the plaintiff proved to your satisfaction, that under all the circumstances of the case, the defendant was guilty of negligence ?”
    [Here his honor reviewed the evidence as to the nature of the ground; the testimony for and against the existence of paths across the open lots, the habit of people to cross the lots, &c., and continued:] •
    “Now you are to judge from all this evidence whether the defendant was negligent in leaving his excavation without lights and without a fence, under the special circumstances of that night. There had been a serious accident, resulting in loss of life, and there was, according to. all the testimony, a crowd of people about the place all the afternoon. This in itself would impose on the defendant more care in regard to his excavation than under ordinary circumstances; it increased the danger of injury to trespassers, as to whom, as I have already' said, the defendant owed the .duty of a reasonable care; not such degree of care as required as to people who should be habitually and lawfully there, but such as under all circumstances was reasonable to require even as to others.
    “ In judging of this care, however, the defendant is entitled to have you consider the facts that this was an extraordinary occurrence, such ás he was not bound and in fact Could not anticipate ; that the street was not opened through for public travel; that the ground between the fallen ice-house and the edge of this excavation was not only steep and up-hill, but was also’ encumbered with piles of lumber and the debris of the fallen ice-house, so as to make it unlikely that any one'would clamber over them from that direction, and in general the want of probability that any person would be injured by falling into his excavation.
    “Lastly. You will consider the question whether the deceased was negligent in going towards the cellar on a dark and rainy night, &c.”
    ■ The court then proceeded to state the law as to contributory negligence, and called the attention of the jury to the necessity of care on the part of Wurst, whether he knew the dangerous character of the locality, or, still more, if he was ignorant of the ground and ventured on it in the dark, and instructed them that if they believed him guilty of contributory negligence it would be a bar to a recovery. The verdict was for plaintiff for $4000, a remittitur for $1000 of which was subsequently filed by plaintiffs, and the defendant took this writ, assigning for error the refusal of the court to affirm his point.

      George W. Dedrich and David W. Sellers, for plaintiff in error.
    — The deceased was in defendant’s close without right or permission. The instruction of the court was, in effect, that defendant should have erected a fence around his property to keep off those who had no right to be there. We contend that the owner of private property owes no duty to a trespasser. ,
    Injury to trespassers is without remedy, because property is not owned or used with any contemplation of them: Railroad Co. v. Hummell, 8 Wright 375; Mulherrin v. Railroad, 31 P. F. Smith 375. In Allen v. Willard, 7 P. F. Smith 374, the one injured was traversing the highway, adjoining which was the excavation.

      Walter J. Budd and John B. Devine, for defendants in error,
    provided no paper book, but in their argument relied upon Hydraulic Works v. Orr, 2 Norris 332; Railroad v. Hummell, 8 Wright 375.

      January 28th 1878.
   Mr. Justice Woodward

delivered the opinion of the court,

John Adam Wurst was killed hy falling into a vault which Frederick Gramlich, the defendant below, was employed in exca^ vating on a lot belonging to Adam Miller, on the east side of Thirty-first street, above Jefferson. The work was done under a contract between Gramlich and Miller, and for the purposes of the contract Gramlich had exclusive possession of the lot. Another person had fallen into the vault, and in approaching to aid him in response to his cries for help, it is probable that Wurst met with the accident that caused his death. In falling his head struck the shaft of a cart that was in use in doing the work, and which had been left over night in the excavation.

It was after dark, on the evening of the 13th of February 1874, that the accident happened. On the morning of that day the roof of an ice-house on a lot of Henry Miller, intervening between Adam Miller’s land and Jefferson street, had broken down, and Wurst, who was a carpenter, had been at work at that building during the whole of the afternoon. Michael Gossey, one of the witnesses for the plaintiffs, said he saw him about half-past three o’clock on the top of the brewery getting wood down, and Henry Miller said: “ Wurst was there before I was, clearing off the roof. It was a little after 12 o’clock when I arrived there. As long as I stood there he was working there; he was there until after 7 o’clock. He was hauling away timber; it was hauled to the north side, between my brewery and the vault Mr. Gramlich was digging.” There was an open space between Henry Miller’s building and Adam Miller’s line, and from the account which the plaintiffs gave of Wurst’s employment during the day, the fact that the excavation was being made must have been known to him, and the situation of the vault when the work ceased that evening must have been within his view. When he fell he was passing from the land of Henry Miller near the rear of Adam Miller’s lot, and perhaps eighty feet eastwardly from the Thirty-first street front.

Under these facts — and all of them that are material are gathered from the testimony on behalf of the plaintiffs — what duty did Gramlich owe to Wurst ? The contract for digging the vault .was a perfectly lawful one, and it has not been alleged that the work was done otherwise than in the accustomed way. It was all done within Adam Miller’s lines. No adjacent land was encroached upon, and no danger to passengers on any highway was created. Indeed, there was no highway to be involved in danger. Thirty-first street, north of Jefferson, had only been opened along the property of Henry Miller, and the surface of Adam Miller’s lot at the line of the street was from ten to fifteen feet above its established grade. There was some conflicting testimony aS to paths alleged to have traversed the lot, but if there were such paths, .they extended eastwardly or northeastwardly in the direction of a lampblack factory, and it was not contested that Wurst fell into the vault as he approached it from the southern side. The existence or non-existence of paths across the property was immaterial.

In the ordinary case, a jury must pass upon evidence given in support of a charge of negligence. They must do this always when the measure of duty is ordinary and reasonable care, and the standard of the degree of care shifts with the change of circumstances. And they must do it also where essential facts are controverted. But where there is no conflict of testimony, and either the standard of individual duty has been judicially determined, or the rights of owners of property have been judicially defined, the decision of a question of negligence affecting individual action in the one case, or the exercise of dominion over property in the other, becomes the duty of a court. Negligence is to be found upon evidence, and is not to be presumed from the bare fact of the occurrence of an accident on a defendant’s land. Gramlich was in the lawful occupancy of the lot on which Wurst was killed, and was engaged in an employment that -was entirely legitimate. In the absence of evidence to show the existence of exceptional hazards, he was not required to provide exceptional safeguards. _ An owner of land may improve it in his own time and in his own way, so that he violates no duty that he owes to any adjacent owner or to the public. A case as old as Blyth v. Topham, Cro. Jac. 158, held that “an action doth not lie if a man makes a ditch in his waste, which lies near the highway, into which the horse of another falls ; for the ditch in his own soil was no wrong to the other, but it was his fault that his horse escaped into the waste.” Where A., who was the owner of a storehouse and lot left at the rear of the storehouse an excavation walled up to give light to the cellar, and B., - who, on an alarm of fire went down to the storehouse, adjoining the house in which the fire was, and entering at the front door, went through the store, and going through the back door, turned off the gangway across the opening and fell in and was injured, it was held that the digging of an open space in the rear of the storehouse by A., upon his own ground, was a lawful act by him, and he had the right to keep it there as an appurtenant right for the use of his property, and B. falling in by accident, the same not being near a public street or- crossing, gave no right to recover damages from A. as a wrongdoer, and B., going there on account of the fire, did not change the rule: Kohn v. Lovett, 44 Ga. 251. The law fully recognises the right of blip who, having the dominion of the soil, without malice does, a lawful act on his own premises, and leaves the consequences of an act thereby happening where they belong, upon him who has w'andered out of his way, though he may have been guilty of no negligence in the ordinary acceptation of the term. It is purely damnum absque injuria: Morgan v. City of Hallowell, 57 Me. 377. “ When an excavation is made adjoining to a public way, so that a person walking on it might, by making a false step, or being affected with sudden giddiness, fall into it, it is reasonable that the person making such excavation should be liable for the consequences. But when the excavation is made at some distance from the way, and the person falling into it would be a trespasser upon the defendant’s land before he reached it, the case seems to me to be different Martin, B., in Hardcastle v. The South Yorkshire Railway Co., 4 Hurl. & N. 67. So where the defendants were owners of waste land which was bounded by two highways, and they worked a quarry in the waste, and the plaintiff, not knowing of the quarry, passed over the waste in the dark and fell into the quarry and broke his leg, and then brought an action for the injury, it was held that the action could not be maintained, as there was no legal obligation in the defendants to fence the quarry for the benefit of the plaintiff, who was a mere trespasser on the land : Hounsell v. Smith, 7 C. B. N. S. 731. This rule was laid down by Chief Justice Gibson in Knight v. Abert, 6 Barr 472, which decided that though no action lies in Pennsylvania for trespass by cattle pasturing on unenclosed woodland, yet that, not being a matter of right, the owner of the land is not liable for injury sustained by such cattle falling into a hole dug by him within the boundaries of his land, and left unenclosed. And the opinions of Mr. Justice Strong in The Philadelphia and Reading Railroad Co. v. Hummel, 8 Wright 378, and of Mr. Justice Sharswood, in Gillis v. The Pennsylvania Railroad Co., 9 P. F. Smith 129, illustrated and enforced substantially the same rule.

Reliance has been placed on the case of the Hydraulic Works v. Orr, 2 Norris 332, to support this judgment. The distinction between that case and this is marked and obvious. There the accident happened in a private passage or cartway adjoining a factory, where several kinds of business were carried on in different stories, and was caused by the falling of a heavy platform employed as an inclined plane to move heavy articles into and out of the building. When used it was lowered so as to óover the pavement of the cartway. When not in use, it was raised on hinges that connected one side of it within eighteen inches of the wall, was not fastened at the upper side, and was so nearly at equipoise that slight force only was réquired to draw it down. The cartway opened from a public street, where people were constantly passing and children were often at play. There was a gate at the street end, and this was frequently left open. It was so left at the time of the accident, when four children intruded into the cartway, and their thoughtless tampering with the platform resulted in drawing it down upon themselves, and in producing injury to the child of the plaintiffs from which he died. This court affirmed a verdict and judgment for damages in the Common Pleas. No cause was ever more justly decided. It was the case suggested by Baron Martin in Hardcastle v. The South Yorkshire Railway Company, of a dangerous appliance adjoining a public way. The children were trespassers certainly, but then they were children, and the defendants were bound to have regard to the reckless and thoughtless tastes and traits of childhood. The entrance to the cartway was open and unguarded, and the facts in the record showed the strong probability of danger' frqm the structure. It had once fallen against the wheels of a wagon, and when other wagons passed it was held up by hand. Even a trespasser may have redress for negligent injuries inflicted on him. Though he is liable to an action for his own wrong, he does not necessarily forfeit his right of action for injuries he has sustained, as, for example, by falling into a hole newly excavated on a defendant’s premises adjoining a public way, and rendering it unsafe to persons lawfully using the same with ordinary care : Barnes v. Ward, 9 C. B. 392, 420. The owner of open land has no right to plant in it spring guns by which ordinary trespassers may be wounded : State v. Moore, 31 Conn. 479. In this country, while a house may be thus protected from burglars, no man has a right to place on his land any instruments to injure' persons merely straying on such land*: Johnson v. Patterson, 14 Conn. 1. A party may be acting in violation of some particular statute and still be under the general protection of the law : Spofford v. Harlow, 3 Allen 176. The Hydraulic Works v. Orr rested on principles and precedents that sustained it amply, but which have no application here. The undisputed facts proved the defendant to have been guiltless of all wrong, and the prayer for instruction to the jury that he was entitled to a verdict should have been granted. ■

Judgment reversed.


author: Mr. Justice Sharswood

text:
    Pennsylvania Railroad Company’s Appeal.
    1. Where one of two parties who are equally innocent of actual fraud must lose, the one whose misplaced confidence in an agent or attorney has been the cause of the loss shall not throw it on the other.
    2. Where the owner of stock intrusts the certificates with blank powers of attorney to an agent for safe-keeping, who fraudulently transfers them to a third party, who in turn, without knowledge of the fraud, has them transferred to himself, the owner cannot recover from the corporation for the loss.
    3. A corporation is the trustee of its stockholders, and is bound to proper vigilance and care that they may not be injured by unauthorized transfers of stock.
    4. Where therefore the signatures to powers of transfer were genuine, yet it appearing that at the time the transfer was made they were thirteen years old, this fact should have put the corporation upon inquiry, and it was not justified in making the transfer unless it had first ascertained if the powers had been revoked.

      January 11th 1878.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Trunkey, JJ.
    Appeal from the decree of the Court of Common Pleas, No. 1, of Philadelphia county: Of January Term 1876, No. 202. In equity.
    Bill in equity filed by Mary Fearon, the executrix and legatee under the will of Samuel P. Fearon, deceased, against John V. Creeley, B. Schultz, and the Pennsylvania Railroad Company. Creeley was duly served, but made no answer to the bill, nor was he represented by counsel. The case was, however, proceeded with as if he had been present or represented. Schultz and the Railroad Company filed separate answers. It appeared that Samuel P. Fearon died in August 1865, at which time he was possessed of twenty-three shares of Pennsylvania Railroad stock. In 1860 said decedent pledged thirteen of said shares as collateral security for a loan, and at the same time signed a blank power of attorney on the back of the certificates, as follows:—
    “Know all men by these presents, that I, the undersigned, for value received, do hereby irrevocably constitute and appoint - - to be my true and lawful attorney, for me and in my name and behalf to sell, assign, and transfer unto--, or to any other person, or persons,-shares of the capital stock of the Pennsylvania Railroad Company. And further, one or more persons under--:-, to substitute with like power.
    In witnes's whereof, I have hereunto set my hand and seal, this twenty-fifth day of January 1860.
    Samuel P. Fearon. [seal.]
    Witnesses present:
    S. L. Smith,
    Wm. Donovan.”
    At the maturity of the loan it was paid by decedent, and said shares were returned to him, and remained in his possession up to the time of his death. -The powers of attorney were never cancelled. The plaintiff, Mary Fearon, was the executrix of decedent’s will, and in 1871 she took these certificates of stock, with other bonds, and deposited them for safe-keeping with Creeley, who, at that time, was a lawyer in good standing, a.nd was acting as the legal adviser of the executrix, and had been for several years collecting the dividends of the estate. In 1870, Creeley, pretending to be the agent of Fearon, applied to Schultz for a loan of $1000, and pledged these shares of Pennsylvania Railroad stock as collateral security therefor, giving to Schultz two judgment notes, to which he forged the name of Fearon, and delivering to him the certificates of stock, with the blank powers of attorney. Creeley converted the money to his own use. The notes not being paid at maturity, Schultz, in 1872, went to the office of the railroad company and had the stock transferred to himself, and he subsequently disposed of the same. The clerk of the company/ it appeared, made no inquiries, but directed Schultz to write his name on the blank powers, and the shares of stock were transferred to him. The clerk who made the transfer was dead at the time this bill was filed. It seems that the company made no effort to discover whether the letters of attorney were still unrevoked. It relied upon the fact that the letters were irrevocable, and contended that it was not responsible, inasmuch as these irrevocable letters had affixed thereto the genuine signatures of S. P. Fearon, and that the transfers were made in the ordinary course of business and in the utmost good faith. The bill alleged that the company was negligent, in not making the proper inquiries as to whether Schultz had authority to write his name in the blank powers; that the long time that had elapsed since their execution, namely, thirteen years, should have put the company upon inquiry to ascertain whether Fearon was still living, and that the loss occurred from their failure to so inquire. The cause was referred to a master, who reported a decree against all three defendants. The court below confirmed the decree as to Creeley, reversed it as to Schultz, and made a decree that the railroad company should issue to the plaintiff “duplicate originals of the certificates of stock so transferred,” from which decree the company took this appeal.

      Chapman Biddle, for appellants.
    — A decree should have been made against Schultz, who, if there was any wrong done to plaintiff by the company, was the real author of it. It was he dealt with Creeley as the agent of Fearon; it was he who was bound to inquire into the extent of Creeley’s authority, and it was he who procured the transfer. While it is true that a corporation, innocently permitting a transfer upon a forged power of attorney, would be bound to transfer an equal quantity of its stock to the injured party or pay its value, yet where the negligence of a stockholder misleads a corporation to believe tha£ a transfer of stock, which was in fact fraudulent, had been made with the assent of the stockholder, it is not liable: Coles v. Bank of England, 10 Ad. & Ell. 437; Duncan v. Luntley, 2 Mac. & G. 30. In the present case the poivers were genuine, and were signed in blank as far back as the 25th of January 1860, and when they had served a temporary purpose of Fearon, were kept by him until the day of his death, ini August 1865, in the same condition, without, as ultimately has appeared, any necessity whatever. If there has been negligence anywhere, that negligence arose with Fearon and was continued by his executrix. The plaintiff voluntarily deposited with Creeley, one of the defendants, these and other certificates of stock, with the identical genuine powers; or, in other words, negligently perpetuated the very means of committing the fraud of which she now complains. The company had no knowledge of the death of Fearon, and the transfer was made in the ordinary course of business, upon genuine powers of attorney.

      John A. Sccmlan, for appellee.
    — The bare fact of the loss of a certificate endorsed in blank is not evidence of such culpable carelessness as would enable the finder to 'transfer the ownership : Biddle v. Bayard, 1 Harris 150.
    The company is bound to see that the party making the transfer has the legal title thereto, and the right to do so. The mere fact that the signatures were genuine is not conclusive, for the certificates may have been lost or stolen, and if so, the company could not deprive the real owner of his property by transferring it: Bayard v. Farmers’ and Mechanics’ Bank, 2 P. F. Smith 232.
    In fact it is the duty of the company to prevent the entry of a transfer in their books until satisfied that the person who claims to be allowed to make it is duly authorized so to do. Were the law otherwise, the whole property of every stockholder would be at the mercy of the company’s clerks: Grant’s Law of Banking, page 391, 3d edition.
    A power of attorney is revoked by death, however irrevocable its terms, for a valid act cannot be done in the name of a dead man: Frederick’s Appeal, 2 P. F. Smith 338; Hunt v. Roumanier’s Exrs., 8 Wheat. 174; Lightner’s Appeal, 1 Norris 301.
    January 21st 1878.
   Mr. Justice Sharswood

delivered the opinion of the court,

There is no doubt that a corporation is a trustee of its stockholders, and is bound to proper vigilance and care that they may not be injured by unauthorized transfers of their stock: Bayard v. Bank, 2 P. F. Smith 232 ; and there is no doubt, we think also, that, had the certificates of stock, which are the subject of the controversy, been lost or stolen from the possession of the appellees, the appellants would have been responsible. Though the signature of Samuel P. Fearon to the powers to transfer was genuine, yet they had actually been revoked by his death, and, in fact, before; and the circumstance that at,the time the transfer was permitted they were thirteen years old, was enough to arouse suspicion and inquiry; and it is necessarily to be presumed that if proper inquiry had been made the truth would have been elicited. The clerk by whom the transfer was permitted, unfortunately, is dead, and we are without evidence on the subject. The onus, however, of showing due diligence was on the corporation appellants, and they must suffer from the want of the evidence.

But there certainly was negligence on the part of the appellee. As executrix she placed the certificates in the hands of Creeley, as her attorney, with the blank powers endorsed uncancelled. Thus by her act he was enabled to commit this fraud. The equities of the respective parties are not equal. Where one of two parties, who are equally innocent of actual fraud, must lose, it is the suggestion of common sense, as w’ell as equity, that the one whose misplaced confidence in an agent or attorney has been the cause of the loss shall not throw it on the other. As Judge King has well expressed this principle in the Bank of Kentucky v. Schuylkill Bank, 1 Parsons’s Eq. Rep. 248: “The true doctrine on this subject is that, where one of two innocent persons is to suffer from the tortious act of a third, he who gave the aggressor the means of doing the wrong must alone bear the consequences of the act.” The appellee in this case selected the attorney. She had entire confidence in him. She placed these certificates, with the blank powers, in his hands. He proved unworthy of the trust reposed in him. . He perpetrated a gross fraud by which he converted this property to his own use. That he was an attorney at law in good standing does not help her case. He added to the crime of which he was guilty that of moral perjury, by the violation of his official oath. On what principle of equity can she be allowed to throw off from herself on to the appellants the loss which has resulted from the dishonesty of her own agent ? This important element in the case was entirely overlooked by the learned master and the court below ; and we think, applying it to the undisputed facts of the case, the appellee’s bill as to the appellants ought to have been dismissed.

Decree reversed, and now the bill of the appellee, Mary Eearon, is dismissed as to the Pennsylvania Railroad Company, with costs, and the costs of this appeal.


author: Mr. Justice Mercur

text:
    In re Widening of Chestnut Street.
    ' The Court of Quarter Sessions of the county of Philadelphia has no jurisdiction of a proceeding to widen a street in said city on one side thereof, upon the petition of the property holders only on the side to be widened. The petition therefor should be submitted to the Board of Surveyors, and if approved by them the proceedings should be in accordance with the Act of June 6th 1871.
    January 11th 1878.
    Before Agnew, C. J., Sharswood, Merour, Gordon, Paxson, Woodward and Trunkey, JJ.
    Certiorari to the Court of Quarter Sessions of Philadelphia county: Of January Term 1877, No. 115.
    The proceedings in the court below were as follows :■ William Conway and others, on the 2d of October 1875, filed a petition in the Court of Quarter Sessions, which set forth that “ they were the owners of real estate upon the south side of Chestnut street, between 15th and 16th streets; that the line of the houses on the south side of Chestnut street, as at present built, is south of the established line of the street; that the necessity of business and travel demand that the said street be widened at least to the extent that the houses recede from the street. They therefore pray that a jury be appointed to view the said locality, and to report upon the expediency of widening said street between said points.”
    The court on the same day appointed a jury, who subsequently reported that the necessities of business and travel demand that Chestnut street, between Fifteenth and Sixteenth streets, be widened on the south side thereof to the extent that the houses or buildings on said south side recede from the present established south line of said street, and therefore that it is expedient that the said Chestnut street, between Fifteenth and Sixteenth streets, should be widened upon the south line thereof, so that the width of said street should be fifty-seven, feet six inches from the present north line of said Chestnut street, as established by law.
    The court overruled the exceptions filed to this report and confirmed the same, when John Crump and others, parties interested, took this writ, alleging, among other errors, the want of jurisdiction in the Court of Quarter Sessions.

      A. A. Hirst, M. Arnold, and J. Cr. Hosengarten, for plaintiffs in error.
    — There is no authority of law to widen the streets of Philadelphia by means of a jury of view. Tw'O modes only are provided for the purpose of widening streets in the city. One is by direction of the City Councils, on the petition of a majority of the owners of land fronting on the street proposed to be widened (Act of April 27th 1869, sect. 1, Bright. Purd. 1287, pl. 123, and Act of March 24th 1870, Pamph. L. 547), and the other is by the Board of Surveyors of said city, upon the petition of the majority of such owners (Act of June 6th 1871, sect. 4, Pamph. L. 1354). Besides, if such power of widening by jury of view does exist, it cannot be used to make a street more than fifty feet wide (Act of June 13th 1836, sect. 5, Bright. Purd. 1273, pl. 5). As Chestnut street is now made fifty-five feet wide by an Act of April 28th 1870, Pamph. L. 1291, the limit to which a road jury may go is already passed: In re Jackson Street, 2 Norris 328.
    No paper-book nor argument, contra.
    March 11th 1878.
   Mr. Justice Mercur

delivered the opinion of the court,-

This was a proceeding to widen Chestnut street, between Fifteenth and Sixteenth streets. It was commenced by petition of the owners of real estate upon the south side of the street, between the points named, to the Court of Quarter Sessions of the county of Philadelphia. The petition was presented on the 2d of October 1875, and the jurors were appointed on the samp day.

The main question presented by the assignments of error is ■whether the Quarter Sessions then had jurisdiction. .

The legislation relating to highways in Pennsylvania shows a diversity of sentiment as to what jurisdiction should be given to the Courts of Quarter Sessions. Thus the Act of 12 William III., ch. 55, declared that all the king’s highways or public roads Avithin this province, or counties annexed, should be laid out by order of the governor and council for the time being; but the justices of the county courts AA'ere authorized to lay out for housekeepers roads (private) leading from their premises to public roads : Bradford’s LaAvs of Pennsylvania, page 13.

The Act of 6th April 1802, Pamph. L. 178, authorized the justices of the Court of Quarter Sessions of each county in the Commonwealth, on petition, to order vieAV and lay out public and private roads. This act, however, expressly declared that it should not interfere with any special provision theretofore made, respecting the county of Philadelphia; and it further excepted from its repealing clause, roads, lanes, alleys, and bridges in the city of Philadelphia, and in other corporate towns.

The Act of 22d March 1813, Pamph. L. 136, incorporating the district of Spring Garden, provided for the election of commissioners, who were authorized to appoint surveyors to survey and lay out such streets, roads, lanes, courts and alleys, as Avere deemed necessary for a regular and convenient toAvn plan. The surveyors were to return to the commissioners two copies of the drafts and plans, one of Avhich was to be filed in the office of the clerk of the Court of Quarter Sessions. The court was then empowered to determine Avhether any, and what, alteration should be made therein, and the time when the same should be opened.

The 76th sect, of the Act of 13th June 1836, Pamph. L. 566, declared the proceedings to obtain the-laying out or widening of a street, road or alley, within the city and county of Philadelphia, should be by petition presented to the Court of Quarter Sessions at least thirty days before the commencement of each term of said court, and thereupon the court should direct a venire to issue, directing the sheriff to return a panel of forty-eight freeholders to the next term, to act as viewers in all cases of said applications, from which panel, on the return-day of the venire, the court should direct six names to be drawn as viewers, to act in each case.

The 1st sect, of the Act of 16th March 1866, 2 Purd. Dig. 1286, pi. Ill, declared in all cases relating to the opening of streets upon the plans of the city of Philadelphia, and of view, review and assessment of damages for and in relation to roads, bridges or property otheiuvise taken for public use, the persons appointed to view, revieAV and assess damages, should be appointed by the Court of Quarter Sessions of the county of Philadelphia, in the same manner as was “ provided by the general laws of this Commomvealth.” It provided, however, inter alia, that the several supplements to an act to incorporate the city of Philadelphia, relating to opening and widening streets or vacating the same, then in force, and not inconsistent with said act, should not be affected or repealed thereby. Precisely how far this act prescribed the mode of proceeding to merely widen a street already opened, is now unnecessary to determine. It was followed by the Act of 27th April 1869, Pamph. L. 1235. The first section of this act declares “ it shall be lawful for the city of Philadelphia to widen, straighten or change the course of any of the streets of the city of Philadelphia that may be on the confirmed plans of the city, when a petition, signed by a majority of the owners of property fronting thereon, shall be submitted to councils, and a plan of the same duly prepared, and approved by the board of surveyors, shall have been confirmed by the Court of Quarter Sessions, as now provided in the law, undei which the late district of Spring Garden was surveyed. The provisions of this Act of 27th April 1869 were re-enacted by the Act of 24th March 1870, Pamph. L. 547. They both declare that a proceeding to widen, straighten or change the course of .any street on the confirmed plans of the city, shall be commenced by petition to councils. Both these acts, in requiring the petition to be signed by a majority of the owners of property fronting on the street to be widened or otherwise changed, manifestly included the owners of property on both sides of the street. It remained to make some provision for the Avidening of a .street on the petition of the owners of property on one side only of the street. Hence the 4th sect, of the Act of 6th June 1871, Pamph. L. 1353, declared “that Avhenever a petition asking for the Avidening of any street in the city of Philadelphia shall be signed by a majority of the owners of property, or the OAvners of a majority of feet front, fronting on one side of said street, and shall be submitted to the board of surveyors of said city, they shall examine into the expediency of granting the petition as asked for, and if approved by them, the said street shall be widened upon the side on Avhich the property of the said petitioners may be located, in accordance with the existing laws relative to opening streets in said city.”

Thus in a proceeding to AYiden a street on one side thereof, this act gave no jurisdiction to the Court of Quarter Sessions. The petition therefor was to be submitted to the board of surveyors. If they approved of the expediency of granting the petition, the street was to be widened accordingly. No action of the Court of Quarter Sessions was required.

The thirteenth section of the Act of 23d May 1874, Pamph. L. 230, declares “the municipal authorities and courts having jurisdiction in any city of this Commomvealth, shall have exclusive control and direction of the opening, widening, narrowing, vacating, and changing grades, of all streets, alleys and highways, within the limits of such city, and may open or widen streets of such width as may be deemed necessary by such city authorities and courts ; proceedings to be had in such cases as are now required by law.”

The language first used indicates that the municipal authorities and Court of Quarter Sessions shall unite in the exercise of all the powers enumerated in the section ; but does not prescribe the order or manner in which they shall proceed. The later clause, however, orders the “proceedings to be in such cases as are now required by law.” As no law then existing authorized the Court of Quarter Sessions to appoint a jury for the purpose of widening a street on one side thereof, on the presentation of the petition of the owners fronting on that side, it acquired no such power by virtue of this section. The Quarter Sessions acquired no exclusive jurisdiction thereby which it did not possess before. It, therefore, follows that the court had no jurisdiction in the premises. As this conclusion is fatal to the proceedings, it is unnecessary to discuss the insufficient form of the petition or the ambiguous terms of the report.

Decree reversed, report set aside, and all prior proceedings dismissed.