author: Mr. Justice Gordon

text:
    Watson et al. versus Jones et al.

    1. The deed of the treasurer to the commissioners of Warren county having been lost, its delivery and contents were properly proved by the books found in the custody of the proper officers.
    2. Whore a commissioners’ deed had no seal, it was competent for the court to permit the county commissioners to seal it at the time of trial when the validity of the deed was questioned.
    8. In determining the dividing lines between tracts of land, courses, calls and distances, must give way to the marks on the ground, and these marks control as well the description found in the patent as that found in the survey.
    June 26th 1877.
    Before Asnew, C. J., Swarswood, Mercur, Gordon, Paxson, Woodward and Sterrett, JJ.
    Error to the Court of Common Pleas of Warren county: Of May Term 1877, No. 36.
    Trespass for cutting and carrying away timber and timber trees, brought by W. E. Jones and others, against Lewis E. Watson and others.
    The plaintiffs claimed title to warrant tract No. 4822, and defendants to tract No. 4824. No. 4824 lies immediately north of and adjoining 4822. The lands are east of the Allegheny river, and situate in Limestone township, Warren county. The parties claimed title to their respective tracts from the Holland Land Company. January 30th 1†94, a large number of warrants, including 4822 and 4824, were issued to the Holland Land Company. Surveys were made in September 1794, which were returned October 2d 1799. The defendants’ tract was surveyed September 11th 1794, and the plaintiffs’ September 12th 1794. The true location of the south line of 4824 and north line of 4822, as fixed by the original survey, was a question in the case.
    The defendants, in support of their location of the disputed line, showed that tract 4824 and 4822 were two of a large number of warrants surveyed to the Holland Land Company by the same deputy surveyor, and at about the same time; that tracts 4837, 4819, 4838 and 4839 were surveys also of lands for the Holland Land Company; that the west and south lines of 4837 were run and marked on the ground for that tract, and also as boundaries of defendants’ tract on the same day, September 11th 1794. The location of the black oak, called for as the corner of 4837, 4819, 4838 and 4824, together with the original lines running east and west therefrom, was proved and admitted on the trial. It was also in evidence that tract 4819 was surveyed September 9th 1794, and the tracts 4837, 4838, and defendants’ tract, 4824, were surveyed on the same day, September 11th 1794, by the same surveyor. The defendants claimed that in the absence of any survey actually made on the ground, fixing their south or the plaintiffs’ north boundary, that they were entitled to run south the distance called for in their survey, 265T3ff rods, and thence due west to the intersection of lands that had, before the Holland Company’s survey, been warranted and surveyed to one George Mead by a different deputy surveyor. A line thus run would include all the timber cut by defendants.
    The plaintiffs claimed that the true location of their north and defendants’ south line was some ninety-four rods north of the line claimed by defendants; and this, if true, would give them the timber cut by defendants.
    In February 1794, a number of warrants were issued to George Mead. These warrants were laid in April 1794, and returned July 6th 1798. In laying those, the surveyor commenced at the Allegheny river and worked towards the east. These surveys were made by a different surveyor from the one who surveyed the Holland Land Company’s warrants. The Mead warrants were for 1000 acres each, were rectangular in form, and laid on forty-five degree lines; the Holland Land Company’s warrants were on true meridian lines. A large number of the Holland Land warrants, including the tracts claimed by plaintiffs and defendants, were laid on the same land covered by the Mead surveys. The Holland Company filed caveats against the issuing of patents on a large number of the Mead surveys, and on the 21st of April 1796, a compromise was effected, by which the Holland Company withdrew the caveats as to a large number of the Mead warrants, including the tracts 5250 and 5249; and Mead relinquished all claim to certain other of his warrants, covering, among others, the two tracts claimed respectively by plaintiffs and defendants, and numbered in the Holland Company’s drafts as 4822 and 4824.
    To locate the north line of their tract, the plaintiffs, having given in evidence the warrant and survey of 4822, introduced evidence to show that a pine at the southeast corner of Mead’s warrant, 5250, was an original corner, marked as a corner of three of the George Mead warrants, and that a line run northeast from that tree a distance of 583 rods (the distance called for as the southeast line of Mead’s warrant); and claimed that this distance and course marked the location of the post called for at the northeast corner of 5250, and fixed the location of the post called for in the surveys of tho Holland Land Company’s tracts, 4822 and 4824, and that tho dividing line would be a line run due east from this post. The southeasterly and the northeasterly lines of the Mead warrants, 5250 and 5249, were never run on the ground. The post called for at the northeast corner of 5250 was a supposititious one. Neither the east line of plaintiffs’ or defendants’ tracts, the dividing line between them, or the southwesterly line of defendants, or the south or northwest line of plaintiffs’ tract, were originally run on the ground, and the post called for at the west end of the line dividing them was a supposititious one.
    The defendants further claimed that even if the original location of the dividing line between 4824 and 4822 was as claimed by the plaintiffs, that the same was changed by the owners under whom both parties claim; and the line as claimed by defendants was adopted as the true dividing line between the tracts; and this upon the following facts, which were proved on the trial, viz :
    In 1814, or prior thereto, the title of the Holland Land Company to the tracts 4822 and 4824, together with other lands, amounting to some 170,700 acres, lying in one body, became vested in the Lancaster Land Company. On the 20th of April 1814, the Lancaster Land Company placed upon record in Venango county, to which Warren was then attached, a draft of their lands, and by that draft the lands were afterwards sold in parcels. This draft dropped the original numbers of the warrants, and divided the rectangular tracts each into six subdivisions, with new numbers. The irregular tracts were not subdivided (plaintiffs’ and defendants’ tracts were irregular tracts), but the warrant number of plaintiff's’ tract, 4822, -was dropped, and No. 708 was substituted. The warrant number of defendants’ tract, 4824, was dropped, and No. 769 was substituted. This draft gives the length of the line bounding both the tract of the plaintiffs and that of tho defendants, together with the adjoining land of the Lancaster Land Company, anil does not call for and makes no mention of the Mead land ; the dividing line between 768 and 769 being a line run due west from a point 265t% rods south of' the black oak tree, the admitted corner of the original tracts, 4824, 4837, 4819 and 4838.
    On the 28th of March 1814, being before the recording of the draft before mentioned, the Lancaster Land Company made au agreement in writing with a surveyor, one Samuel Dale, by which he agrees that he will go on to their lands “ and will lay off the same into 772 tracts, according to the sizes and dimensions, courses and distances, of a large draft of said lands, ’ ’ which draft was made part of the agreement. This draft, with the exception of one or two immaterial clerical errors, is the counterpart of the one recorded. Pursuant to this agreement Dale did go on to the ground, in the summer of 1814 and 1815, and run and marked the lines and courses of the sub-divisions, and these were easily traced. Commencing at the maple in the eastern line of No. 767, as shown by his original notes, ne run north, measuring and marking the courses of the subdivisions on the east plainly by their numbers. The dividing line between 767 and 768 he indicated by a post. The dividing line between plaintiffs’ tract, 768, and defendants’ tract, 769, he also indicated by a post. This post is 92 rods north of the southwest corner of sub-division No. 572, which corner is plainly marked, and at the east end of the division line, as claimed by defendants, between 768 and 769 — and is 265'rods south of the black oak admitted corner. Dale marked the line running south of-the subdivision numbers 543 and 544, and line west of subdivisions 544 and 513. A few days afterwards, as shown by his notes, Dale goes back to the maple in the east line of 767 and runs and plainly marks, as the draft requires, a line south a distance of 71 rods to a chestnut tree. This tree is plainly marked by Dale in figures, 7 67, as the southeast corner of that tract. Erom the chestnut he ran west, and for 171 rods, as called for in the draft, he marked the line plainly. It was iii proof that running from the west end of this 171 rod line, the courses and distances called for by the draft, as the southwesterly side of plaintiffs’ tract, would locate the dividing line between the plaintiffs’ tract, 768, and defendants’ tract, 769, at the point claimed by defendants. Dale did not run the division line between 767 and 768, or between 768 and 769; nor did he run either the southwest line of 767, the noi’thwest line of 768, or the southwest line of 769. Erom the chestnut marked by Dale as the southeast corner of tract 767, due north to the admitted black oak, the northeast corner of defendants’ tract, 769, and also the corner of the subdivisions 543, 542 and 545, is 1130 rods, as given on the draft; and the recent measurements given in evidence agree with the draft and the work of Dale on the ground within from six to nine rods — showing that each of the tracts, 767, 768 and 769, have their full distances on the east line as called for by the draft put on record, and the one from which Dale made his survey, by locating the division line between 768 and 769, as claimed by defendants. But if located as claimed by plaintiffs they would have some 94 rods more, and the defendants 94 rods less than their distance as given on the recorded draft.
    The plaintiffs claimed title to their tract under an alleged sale made by the treasurer to the commissioners of Wai'ren county in 1840. No deed from the treasurer to the commissioners was shown, and there was no proof that any person had ever seen or known of the existence of such a deed. It was in proof that it was the practice of the commissioners to retain the deeds of the lands bought by them at the treasurer’s .sales, and that the package of deeds of lands bought by them in 1840 was still in the office.
    Eor the purpose of showing sale by the treasurer to the commissioners, the plaintiffs offered and under exceptions the court admitted in evidence, a book brought from the treasurer’s office. This book was a large docket, into which the original sale lists were claimed to have been copied for many years before and after the year 1840, and both before and after 1840 were in the handwriting of Thomas Clemons. The original sale lists were burned, and no proof was given that the book offered was a copy of the sale lists,' nor was any authority shown directing such a book to be kept by the treasurer.
    As further evidence of the existence of a deed from the treasurer to the commissioners, the plaintiff offered and the court, under exceptions, admitted the minute-book of the commissioners, in which under the heading, “ Lands purchased at treasurer’s sale by county commissioners for use of the county for year 1840,” it was stated that June 10th 1840, the tract 768, Limestone township, was purchased by the commissioners, and also marked “sold October 1st 1845;” and entry in the same minute-book under date of October 17th 1845, “sale of tract 768 to James A. Alexander,” under whom plaintiffs claimed title.
    In further tracing title the plaintiffs offered a paper claimed to be a deed from the commissioners of Warren county to James A. Alexander, dated January 30th 1846, for tract 768. The defendants objected to the deed, because the paper had neither the private seal of the commissioners nor the official seal of the county, and because no title was shown in the commissioners’ deed. The court, under exceptions, admitted the paper in evidence. While the case was on trial, the plaintiffs, January 6th 1876, had the county commissioners affix the seal of the county thereto, and again offered it in evidence, and the court, under exceptions, received it in evidence in its amended form.
    On the question of the dividing line between the lots the court, Vincent, P. J., inter alia, said:—
    “ This suit only involves, directly, the true location or survey of Holland Land Company warrants Nos. 4824 and 4822, the former claimed by the defendants and the latter by the plaintiffs.
    “ The timber which is in dispute was cut upon one or the other of these tracts; if upon a tract owned by the plaintiffs, they are entitled to recover; if upon a tract owned by the defendants, your verdict should be for them.
    “ The survey of tracts 5249 and 5250 w'ere returned July 6th 17 98, or more than a year after the compromise between Mead and the Holland Land Company, and we have a right to presume that it was done in pursuance of that compromise. The return of the survey of 4824 was made more than one year after the return of 5249 and 5250, and this return shows one southwest corner of the tract at a post, which in the plot of the same survey is made the northeast corner of 5250, and the southwest line of 4824 is the northeast line of both 5249 and 5250. The patents to the Holland Land Company for 4824 begins the description at a post, thence by lands surveyed on warrants 5250 and 5249 northwest 640 rods to a post, which was no doubt intended to carry this line to the northwest corner of 5249, and the draft of the survey so shows. This survey is bounded on the east and in part on the north by the east and south lines of Holland Land Company’s tract 4837 and west line of 4838. It also calls for tract 4822 as one of its south boundaries.
    “ The initial point of the survey of 4824 is a post at the northeast corner of 5250, and thence along northwest line of 5250 and 5249, and we must locate the whole survey by starting from this initial point.
    “ It is conceded that the surveyor did not actually run on the ground in 1794 the lines of 4824 as the lines of that tract, but that he adopted certain lines as its boundaries.
    “ In order, then, to find the true starting point of the survey of 4824, we must locate the true northeast corner of 5250 and the northwest line of 5250 and 5249.
    “ It is in testimony that a certain white pine at the southeast corner of 5250 is an original corner of the Mead survey, and -the fact that it was marked for three of his tracts is evidence that it is an original corner, but it is for you to decide whether it is or not.
    “ If you find the white pine to be the true southeast corner of 5250, the true northeast corner of that tract is at the end of a line running due northeast 583 rods, and the true southwest line of 4824 is a line running northwest from that poipt; and if you find that the survey was made from the end of that line of 583 rods, and no lines were marked on the ground, the other courses and distances must conform to the known course and known line, and the true south line of 4824 and north line of 4822 will be a line running due east from the north end of the line 583 rods from the white pine, for such now we must presume to have been the intention of the surveyor if this was a chamber survey, for more than twenty-one years have elapsed since it was made and returned.
    “ In 1814 the Holland Land Company’s land had become the property of the Lancaster Land Company, and in that year the latter company made a contract with Samuel Dale to subdivide these lands into 772 tracts. Dale did so subdivide these lands, but in doing so he adopted the lines of 4824, 4822 and 4820 as subdivision lines, running in part only the east lines of 4824, 4822 and 4820, and probably the south line of 4820. He also ran and marked the south and west lines of 4837, but there is no evidence that he run or marked any other lines of either 4824 or 4822. He adopted the other lines. At this time the Lancaster Land Company owned both 4824 and 4822, and the adjoiners on the east, and they could alter their own lines as they pleased, but the map furnished to Dale does not nor does the contract with him propose to change any of the lines of the original surveys of their lands; and unless Dale did, by marks on the ground, do so, with their consent, before or after, the lines of the original surveys still stood after his survey as the lines of the several original tracts, and they will therefore still remain as their true boundaries, and define the extent of the ownership of the respective owners of 4824 and 4822. You will thus see that the lines originally made or adopted, as the true division line between 4824 and 4822, is the true division line between these tracts, unless it was changed by the owners before any ownership thereof by the plaintiffs, or their predecessors in title.”
    The verdict was for the plaintiffs for §4800, and after judgment defendants took this writ, assigning for error, inter alia, the charge of the court upon the question of the dividing line, the admission in evidence of the books of the treasurer, and the admission of the commissioners’ deed to Alexander, which was unsealed.

      W. D. Brown and R. Brown, for plaintiffs in error.
    — The plaintiffs in error claim that the lines of their tract not run and marked on the ground, are to be located by the courses and distances of the survey as returned, taking the actual marked lines and corner of their own tract as the basis of the courses and distances of the lines not run. The question was not whether there was an interference between the Holland Land Company and the Mead warrants since the compromise, but did the surveys originally interfere? While it is conceded that where in official surveys, a discrepancy exists between the courses and distances and the calls for an adjoinder the latter governs, this is so only because the adjoinder has actual marks on the ground, but here neither the post corner of the Mead warrant, 5250, nor the lines in either direction from it, had been run or marked at the time of the survey of 4824, and that corner was ascertainable only by courses and distances. Why, then, should these courses outweigh the courses and distances in the survey of 4824 in determining the true south line of 4824 ?
    The books from the treasurer’s office were not competent evidence.
    The paper from the commissioners to Alexander was not a deed, having neither the corporate nor private seal of the commissioners thereon, and the sealing thereof during the trial cannot by relation make it a deed prior to that time.

      Johnson Lindsey and Clark & Noyes, for defendants in error.
    —In ascertaining the boundaries of a tract of land, the marks of the survey on the ground are paramount, and in the absence of marks calls in the deed or grant, whether of natural or artificial monuments, are to prevail over courses and distances. If there be neither actual survey, nor calls, then the courses and distances are to govern.

      In the book kept in the treasurer’s office were recorded the sales of unseated lands by all the treasurers since the organization of the county, in 1819, while it was shown that all the original manuscripts of the several treasurers, prior to 1850, had been burned. The sales of unseated land were entered in 1840, in this book, in the handwriting of Thomas Clemons, then treasurer, and among them appears the sale of tract 768 to the commissioners. The best evidence possible was thus offered. The deed from the commissioners to Alexander was not invalid because of the absence of their seal, and it was competent for them to affix the seal at any time; and if the county was willing to thus perfect the deed, the grantees could not object.
   Mr. Justice Gordon

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

The treasurer’s deed, for tract No. 768, to the commissioners of Warren county, having been lost, its delivery and contents were properly proved by the books found in the custody of the proper officers. In the case of Halsey v. Blood, 5 Casey 319, the minute of acknowledgment, made by the prothonotary, -was held to be competent for such purpose, but this evidence would certainly not be superior to that furnished by the records kept by the officers who made the sale. It is urged, however, that the treasurer’s sale-book offered was not competent, forasmuch as it contained but transcriptions of the sale lists, and was therefore not an original document. But we do not so regard the matter. The book appears to have been kept by Thomas Clemons, the treasurer for the year in which .this land was sold, and admitting that it contained but transcriptions from his temporary lists, yet* being made by himself, no doubt in order to put the evidence of his own work in a safe and convenient form, quoad that work, however it might be as to that of others found with it, it must be regarded as original evidence. As well might objection be made to the continuance docket, found in the prothonotary’s office, because many of the entries therein contained have been transcribed from the court minutes and appearance docket. Neither can we treat with more favor the exception to the deed of the county commissioners to Alexander. Technically there can be no deed without a seal, for it is the seal which makes the deed; nevertheless we well know that a valid conveyance of land may be made without it. As- long ago as McDill v. McDill, 1 Dall. 66, it was held, that the signing of a deed was the material part of its execution, and that the act of sealing had become a mere form. And in Huston v. Foster, 1 Watts 477, an objection to a commissioners’ deed, that it was sealed with the private seals of the commissioners and not with the corporate seal, was not sustained. It would be difficult, however, to point out any substantial difference between the private seals of the officers mentioned in the above case and no seals at all, for they certainly were of no significance whatever, in passing title to county lands. Indeed, it is apparent from the opinion, that the matter was so ruled in order to avoid a technicality the maintenance of which would have been pi’oductive of more harm than good. Following the same line of thought thus indicated, and we cannot but approve of the action of the court in avoiding a barren technicality by permitting the sealing of the deed by the county commissioners at the time of trial.

On the theory of the dividing line between tracts 4822 and 4824, we must dissent from the court below. As these surveys were made on warrants of the same date for the same party (the Holland Land Co.), -were returned at the same time, and were, as is conceded, chamber surveys, we can give neither precedence from an apparent difference of time in location. The problem then is, to find the dividing line between two tracts of land, which as to their exterior lines, are to be treated as a single block. Were it not for the adoption of the pine of the Mead survey as the southwest corner of 4822, our task would be a simple one; for that out of the way, the black oak, the common corner for Nos. 4837, 4819 and 4888, adopted for 4824, would be the only original corner found on either tract and must govern the whole survey. Wo would have then, but to run south from this black oak on the line of No. 4838, 265 j®0- rods, and a line wrest from the point thus reached would definitely resolve the question. In such case it is obvious neither the interference of the Mead survey nor the calls on the west could in anywise influence the matter, for we would have to do only with the position of the division line of the two lots. Having, however, the white pine of the Mead surveys as the southwest corner of 4822, as well as the black oak corner of 4824, we have two fixed original marks found upon the ground by which the block must be governed.

The court below rejected the black oak as a dominating mark, and adopted the white pine, instructing the jury that from this point the northwest line of 4822 was to be run, and the distance 583 rods on this line would reach and fix the northwest corner of that tract, from which point the division-line was to be determined by running due east to the western boundary of 4838. But why not as well determine this line by running 265 rods south from the black oak ? The only reason given by the court for its preference is that the patent for tract No. 4824 indicates, as the initial point of its description, the post at the northeast corner of the Mead survey, No. 5250 ; that is, at the end of the lino 583 rods northeast from the pine. But this is not sound; for the patent but follows the survey. If there is an error in the survey, it is repeated in the patent; and at all events, the marks upon the ground must control as well the description found in the patent as that found in the survey. Suppose, however, we adopt the patent description, and, commencing at the post, we travel around the tract in due order; where do we find the point from which to project the closing line? Certainly the patent fixes this point 265 rods south of the black oak; but if from that point we run the line on the course called for, we shall still strike the Mead line some ninety or one hundred rods southwest of the initial post corner, thus completely inverting the result arrived at by the court. But neither will this do, for it adopts the black oak corner to the exclusion of the pine.' It is thus apparent that the true solution of this question is to be found in the adoption of both these corners; remembering, at the samé time, the inflexible rule that courses, calls and distances must give way to the marks found on the ground. Proceeding on this theory, we ascertain the northwest corner of 4822 and the southwest corner of 4824, by running the line north 45° east, 583 rods from the pine; and we find the southeast corner of the one and the northeast corner of the other at the end of the line, 265fV rods south of the black oak, then a protraction from the one point to the other gives us the required division-line. We have not, in this discussion, considered the subdivision surveys made by Dale for the Lancaster Land Company, as they in no manner affect the lines of the warrants in controversy.

The judgment of the court below is reversed, and a venire facias de novo is awarded.


source: Caselaw Access Project

author: Mr. Justice Sterrett

license: Public Domain

text:
    Kehoe versus The Commonwealth.
    1. Where several parties unite to make an assault, which results in homicide the acts and declarations of the defendant immediately prior to the assault, what was said in his presence by those acting in concert with him, and what occurred after the attack, are competent evidence.
    2. In a trial for homicide it was shown that the deceased was terribly beaten and left insensible by his assailants. He was carried to a house near by, and on the following morning started to his home, about a mile distant, unaccompanied and on foot. About midway to his home he was met by an acquaintance, whom he accosted, saying, “ Bill, it is all up with me ; I will never get over itand then went on to speak of his wounds and how they were inflicted, and from the effects of which he died two days thereafter. Held, that this evidence was properly received as dying declarations.
    3. Where one has been convicted of an infamous crime, but not sentenced, and motions in arrest of judgment and for a new trial are pending, he is not a competent witness for another who was jointly indicted for the same offence and granted a separate trial.

      4. Where several parties are jointly indicted and separate trials grantpd, one who has not yet been tried is not a competent witness for either of the others on trial.
    5. It seems that when the essential ingredients of murder a.t common law, or murder of the second degree, under our code, are shown to exist, the burden of raising the grade to murder of the first degree devolves on the Commonwealth.
    6. All the ingredients necessary to constitute murder of the first degree were found to exist in this case.

      October 1st 1877.
    Before Agnew, C. J., Sharswood, Mercur, Gordon, Paxson, Woodward and Sterrett, jj.
    Error to the Court of Oyer and Terminer of Schuylkill county: Of July Term 1877, No. 29. Certified from the Eastern District.
    Indictment of John Kehoe for the murder of Frank W. S. Lang-don. On the night of. Saturday the 14th of June 1862, Langdon was severely beaten at Audenreid, in Carbon county, and died from the effect of his injuries, at his house in Schuylkill county, on the following Tuesday. About fifteen years thereafter John Campbell, Neal Dougherty, John Kehoe, Michael McGee, Columbus McGee and John Chapman, were charged with and jointly indicted for the murder. Each defendant demanded a separate trial, which was granted, and Campbell and Dougherty were severally tried and convicted of murder in the second degree.
    On the 9th of January 1877, before Pershing, P. J., the trial of Kehoe commenced. From the evidence disclosed therein it appeared that Langdon was wdiat was called a “ ticket boss” at a colliery, whose duty it was to see that the coal taken from the mines was clean, and if not, to “ dock” the delinquent diggers. By his conduct as such “ ticket boss” it seemed he incurred the ill-will of the workmen, and a combination was formed to kill him. Kehoe, it appeared, was party to this scheme, and about three weeks before the fatal occurrence, which resulted in Langdon’s death had said to Langdon, “ You son of a bitch, I will kill you before long, because you are robbing me and robbing the men, by your docking.” It was claimed, however, that this remark was made while Kehoe was under the influence of liquor.
    On the evening of the 14th of June 1862, a meeting of citizens was held at Williams’s hotel, in Audenried, to make the necessary arrangements for the celebration of the approaching 4th of July. Langdon was active in getting up the meeting. Kehoe was there and seemed bent on creating a disturbance. It was shown that in the procession, previous to the meeting, he had taken a flag from Langdon and struck him with it. He spat upon the flag after-wards, and upon remonstrance being made said, he “ would do worse than that before he went home.” From the group where Kehoe stood in the crowd pebbles were thrown on the porch where Lang-don was, and upon his making his appearance one of the group said, “ If they got the son of a bitch off the porch they would kill him.” In this group were the other defendants jointly indicted with Kehoe. When the meeting closed and the crowd, which was composed of about two hundred people, dispersed, Langdon started for his home. Shortly thereafter a man cried out, “ Don’t, don’t, for God’s sake don’t, I have had enough,” and the rattle of stones was heard as if thrown against a fence. Witnesses who approached the spot whence these cries came found that Langdon had been violently assaulted, and it appeared that there were six men engaged in the assault, one of whom was identified as Kehoe. These six men were recognised as among those who had disturbed the meeting, and had been seen together several times during the evening. After leaving the hotel, Langdon, it appeared, was first assaulted and knocked down by Campbell, and left insensible on tbe street. He was again attacked while lying there by a party of men, who cast stones at him, some of them weighing two to two-and-half pounds. After lying a short time Langdon regained his feet and tried to escape, but was again followed, and, as the Commonwealth alleged, was again twice knocked down by Dougherty and Kehoe. Shortly thereafter, when found, Langdon was unconscious and terribly lacerated and wounded, from the effects of which injuries he died three days later at his home in Schuylkill county. When found he was carried to the hotel, and the next morning walked to his home, about a mile distant. Very soon after the occurrence it was in evidence that Kehoe and Dougherty were in a saloon not far from where the assault was made, and that they walked up to the bar and one of them remarked, witness thought it was Kehoe, “ that they had just been twenty minutes coming from Beaver Meadows,” which was, four miles distant, and that Dougherty had a handkerchief over his eye, and said he met a person on the road with a bottle of whiskey and some of it had got in his eye. William King also testified that he met Kehoe, the morning after the affray, and that Kehoe said to him, “ They killed Langdon last night;” that witness said ‘‘ What ?” and Kehoe replied, “ The boys gave him a devil of a beating,” or “ a bell of a beating, last night.” Shortly after the death of Langdon, Campbell and others were arrested in Carbon county, but the grand jury ignored the bill. No further proceedings were had until these were instituted in June 1876, when a true hill was found against all the above-mentioned defendants.
    At the trial it was contended, on the part of the defendant, that the testimony relative to the acts and declarations of Kehoe, prior to the assault upon Langdon, and what was said by others with whom it was alleged he was acting in pursuit of their common purpose to attack Langdon, as well as what occurred after he was attacked, should be excluded, and the refusal of the court to do so constituted the assignments of error from one to five inclusive, and the eighth and ninth. These acts and declarations have been chiefly detailed in the foregoing statement of the case.
    When on his way home, the morning after the assault, Langdon •was met by an acquaintance named Canvin, to whom he said, “ Bill, it is all up with me; I will never get over it.” Canvin then tried to encourage him, and remarked he would get over it; and Langdon again said, “ Oh, no !” Upon inquiry as to why he had started home, he repeated what he had before said. The Commonwealth then proposed to have Canvin state what Langdon had said about his injuries and how he was beaten, to which objection was made on the part of the defendant that the declarations which were about to be made were not sufficiently showm to be dying declarations; that Langdon lived two days thereafter, and was at this time able to travel without assistance on his way home, half the distance of which he had then traversed. The court allowed the witness to testify, and this constituted the sixth and seventh assignments.
    The witness then proceeded to tell what Langdon had stated, which in substance was that he had been three times assaulted and knocked down.
    To contradict the testimony of the Commonwealth, showing that these several defendants, who were jointly indicted, were in company on the evening in question, the defence called Neal Dougherty. The latter had been convicted of murder in the second degree for this same crime, and a motion in his case in arrest of judgment and for a new trial was pending. The Commonwealth, objected to the witness as incompetent, because he had been convicted of an infamous crime charged in the indictment against him, which was still pending and undetermined.
    McGee was also offered, to whom objection was made, on the ground that he was a co-defendant in the indictment with Kehoe ; that he had elected to be tried separately, and had not yet been tried.
    Both these objections the court sustained, and they constituted respectively the tenth and eleventh assignments of error.
    . The fourth and fifth points of the defendant were as follows, to which are subjoined the answers of the court:—
    4. If the jury believe the evidence of James Shearer and John Cook, that the defendant, Kehoe, was with them in front of the hotel at the time Langdon was beaten and stoned, and that Kehoe was not present at the beating and did not participate therein, the verdict of the jury should be for the defendant.
    Ans. “ To this we say, 'yes, with this qualification; that if the jury find from the evidence, that the defendant, as claimed by the Commonwealth, entered into a combination or conspiracy with the other defendants to procure the killing of Langdon; if he counselled the act or procured it to be done, he would be guilty as an accessory before the fact, although absent at the time of the commission of the crime. If present, aiding and abetting, although he did not strike the blow, he would be equally guilty, in the eye of the law, with those who actually did the beating.
    5. If the jury believe that a prosecution against John Campbell and others was commenced in Carbon county shortly after Langdon was beaten, and that Young, Horne and others, who now identify Campbell as the person who struck a blow and felled .Langdon to the ground, were present before the grand jury and gave their evidence as they then remembered the circumstances, and that the prosecution failed, the jury may take into consideration such facts in connection with the fact, that from the long time (fifteen years) which has elapsed since the injuries were done to Langdon, that there is a strong probability that witnesses may have forgotten the order of events, the particular time of their occurrence and the persons who participated therein, as well as the identity of those whom they supposed they saw.
    Ans. “ The facts in connection with the legal proceedings in Carbon county have been stated by the witnesses and are for the consideration of the jury. In affirming that we may observe, as the matter has been incidentally discussed, although it is no necessary part of our instruction to the jury, that at one time when a party was beaten in one county and died in another, it was held that the perpetrators of the crime could not be tried in either county, because in neither was the offence complete. It appearing that Langdon was beaten in Carbon county and that he died in Schuylkill county, the existing statute gives jurisdiction of the case to this court.”
    The defendant was convicted of murder in the first degree, and was sentenced to be hanged. He then took this writ, his assignments of error being those heretofore noted.

      A. Campbell, S. A. Garrett and John W. Ryan, for plaintiff in error. —
    It is not denied that when a party has committed a crime, preparations looking towards it, opportunities sought to accomplish it, may be given in evidence to strengthen the probabilities of his guilt; but the circumstances offered in evidence must be such as to impress a reasonable mind with conviction that they are the proper surroundings of the crime charged. A reasonable doubt about the bearing of any fact in a case of this character requires the rejection of the offer. The court here permitted detached circumstances in evidence to be shown, having no probable or apparent connection with the offence charged, for the purpose of procuring a verdict of murder in the first degree, where there had been two verdicts of murder in the second degree against parties charged with participation in the same crime.
    Hying declarations are not admissible, unless it appears that they were made under a sense of impending dissolution and a consciousness of the awful occasion. Langdon was beaten about a mile from his home, and on the following morning left the hotel, on foot, without company ox assistance, and walked to his own dwelling. About midway there he met Canvin, who walked with him to within two hundred feet of the house, when Langdon asked him to proceed no further, lest his wife might think he was injured worse than he was. Two days afterwards Langdon died. It was while on the way to the house that the declarations were made. Were they dying declarations ?
    It is the judgment of the court, and not merely conviction, which disqualifies a witness. Uor is it a valid objection that the witness is a party to the record, if not otherwise interested in the case. A party defendant may be called by the prosecution, if willing to testify, and give evidence against himself and co-defendants. In England this is well settled doctrine: Worrell v. Jones, 7 Bing. 395; Mant v. Mainwaring, 8 Taunt. 139; Pipe v. Steele, 2 Q. B. N. S. 733; Whitehead v. Bank of Pittsburgh, 2 W. & S. 172; Mevey v. Matthews, 9 Barr 112; Paine v. Tilden, 20 Vermont 654; Moddewell v. Keever, 8 W. & S. 65; Johnson v. Blackman, 11 Conn. 342; Woodruff v. Westcott, 12 Id. 134; Bowen et al. v. Burk et ux., 1 Harris 146; Kennedy v. Philipy, Id. 408. It is not, therefore, sufficient ground for the exclusion of a witness that he is a party to the record.
    It is the general doctrine that where the suit is ended as to one of several defendants, and he has no direct interest in its event as to the others, he is a competent witness, and may be called as a witness on either side of the controversy : 1 Greenlf. on Ev. 470, 473; Van Deusen v. Van Slyck, 15 Johns. 223; Moon v. Eldred, 3 Hill 104; Wildwarth v. Mountford, 4 W. C. C. R. 79.
    So in criminal prosecutions, one of several persons jointly indicted may be rendered competent to give evidence, either for the prosecution or for defendants, as if one plead guilty, he is a competent witness, before sentence, on the trial of the others: Rex v. Henks, 2 C. & K. 462; Rex v. Fletcher, 1 Stra. 633; Rex v. George, C. & M. 111; Commonwealth v. Smith, 12 Metc. 238; Commonwealth v. Marsh, 10 Pick. 57; People v. Bill, 10 Johns. 95; Regina v. Hinks, 1 Denison 84; People v. Donnelly, 2 Parker 182; Shay v. Commonwealth, 12 Casey 305.
    It was contended also that the weight of the evidence did not sustain a verdict of murder in the first degree, and its careful scrutiny was therefore invoked by the prisoner’s counsel.
    As no assignment was made to this effect, the chief justice suggested that such an assignment should be made, and in pursuance thereof it was done, and the contention of counsel thereon was that there was no evidence to show a deliberate intent to take life, and nothing in the weapons used to indicate such intent.

      George R. Kaercher (District Attorney), Guy F. Farquhar, Charles Albright and F. W. Hughes, for the Commonwealth.
    The acts and declarations were those of Kehoe immediately prior to the beating of Langdon, as well as those of parties concerned with him in the murder. ■ They were made, as alleged by the Commonwealth, by those parties while in pursuit of their purpose to kill Langdon, and were relevant and material. •
    The nature and character of the injuries inflicted are to be considered, in connection with the declarations of the party, in determining the state of his mind at the time the declarations were made. Death may not ensue for a long time afterwards, still the declarations made under the belief that death is impending as the result of the injuries received, will render the evidence admissible.
    The admissibility of such testimony is a question of fact for the determination of the court under all the evidence before it. The judgment of the court upon the facts is not to bo reversed unless it plainly appear that error has been committed: Fife et al. v. Commonwealth, 5 Casey 437; Phillips on Evidence, vol. 1, pp. 3, 5 and 7; McCorkle v. Binns, 5 Binn. 340; Hemphill v. McClimans, 12 Harris 370.
    It was decided in Shay v. Commonwealth, 12 Casey 305, that an untried joint defendant cannot be a witness. See also Staup v. Commonwealth, 24 P. F. Smith 462.
    It is claimed by the plaintiff in error, that while it is a general rule that a party to an action cannot be a witness, yet that by the conviction of a party, he ceases to be a party to the record and may he a witness. That though the conviction may be of an infamous crime, yet until sentence be pronounced he is not disqualified on the ground of infamy. This, if true, would place a party convicted of an infamous crime in the position of being a competent witness, while his unconvicted and presumably innocent co-defendant, under the ruling in Shay v. The Commonwealth, would be incompetent as a witness.
    The authorities cited by the counsel, only go to the extent of establishing that a co-defendant may in certain cases he a witness, where upon a conviction, the case as to him is at an end, as where he has endured the punishment, or paid the fine, &e. The case must, as to the party, be at an end. Now with a motion in arrest of judgment, and for a new trial pending, the case of Dougherty was not at an end, as to him. At no period in the case, was it more the interest of'Dougherty, than when struggling to reverse the verdict against himself, to furnish exculpatory testimony in behalf of his co-defendants, who, being freed by his testimony, would become competent witnesses for him, in the event of his being granted a new trial: Greenl. on Ev., vol. 1, sect. 363; The State v. Young, 39 N. H. 283; Kirk v. Ewing, 2 Barr 455; Given v. Albert, 5 W. & S. 338; Commonwealth v. Lewis 10 Pick. 57; Wolf v. Finks, 1 Barr 439; Cambria Iron Co. v. Tomb, 12 Wright 394; Parke v. Bird, 3 Barr 360; Irwin v. Shumaker, 4 Id. 177; Lies v. Stub, 6 Watts 48; Stub v. Leis, 7 Id. 43; Marshall v. Bank, 1 Casey 386; Noble’s Adm’rs v. Laley, 14 Wright 284; Swanzey v. Parker, 14 Id. 454.
    It was argued also that the evidence sustained the verdict, and that the intent to kill was manifest in the threats made. In response to a query from the court as to whether then it was not necessary to show that the party who made the threats did the killing, counsel contended that there was no evidence to show what was the mortal wound, and that Kehoe was present when the concerted effort was made and the numerous and repeated blows given. The court again suggested that there may have been malice and an intent to beat severely, but was there evidence of an intent to take life and counsel argued that whether the intent was to kill or beat was a question for the jury, and they had found that it was the former.
   Mr. Justice Sterrett

delivered the opinion of the court, January 7th 1878.

The plaintiff in error was indicted jointly with five others for the murder of Frank W. S. Langdon, charged to have been comnritted at Audenried, on the 14th of June 1862. The defendants each demanded a separate trial, which was granted. The assignments of error relate exclusively to the trial of John Kehoe, and we are not called upon to consider the legal status of any of the other defendants, except in so far as it may have affected their competency as witnesses, or otherwise have a legitimate bearing on the present case.

The testimony before the jury was of such a character as to leave no reasonable doubt on their minds that an atrocious murder was committed upon the person of Langdon, and it was equally clear that several persons were concerned in its commission. A great deal of testimony, direct as well as circumstantial, was introduced for the purpose of showing that John Kehoe participated in the homicide, and it thus became a question of fact exclusively for the jury. By their verdict, the felony charged in the indictment, as well as his guilty participation therein, has been conclusively established. It is very clear to our minds that the testimony was quite sufficient to warrant a verdict of guilty ; but it is claimed that it did not justify the jury in finding the higher grade of murder. This would be so if there was no testimony from which the jury might fairly and reasonably find that the killing was wilful, deliberate and premeditated, as well as malicious and without justification or excuse.

When the essential ingredients of murder at common law, or murder of the second degree, under our code, were shown to exist, the burthen of raising the grade to murder of the first degree devolved on the Commonwealth. The previous threats of the prisoner, the nature and circumstances of the attack on the deceased, and the atrocious severity of the injuries inflicted on his person, were mainly relied on for the purpose of proving the intent to kill. It was shown that Langdon was “ticket boss” at the colliery, and as such it was his duty to see that the coal, as it came out of the mine, was clean, and if not, to dock the delinquent diggers; that complaints were made of his docking, and about three weeks before he was murdered,- Kehoe threatened to kill him, because he was robbing him and others there by bis docking. It may be said that Kelioe was somewhat intoxicated at the time, and that bis threats were mere idle bravado, intended to intimidate Langdon. It is true the witness says he was “ in liquor,” but it by no means follows that bo did not mean what he said. When men are under the influence of liquor, they are perhaps more unguarded and outspoken than when duly sober. The testimony tends to show that Langdon had become obnoxious, especially to Kehoe, on account of the manner in which he discharged his duties as “ ticket boss,” and that in making the threats be was actuated by feelings of hatred and revenge. These, however, w'ere matters of fact to be determined by the jury. In endeavoring to discover the motive and intention of the prisoner, they would naturally and properly consider, among other things, the inhuman manner in which Langdon was assaulted and beaten without provocation; the fiendish cruelty with which his assailants persevered in their wicked purpose, even after he had begged them to desist and spare his life. When these and all the attendant circumstances are taken into consideration, in connection with the previous threats to kill him, there was quite sufficient before the jury to warrant the conclusion that they intended to carry the threat into execution. Doct. Dimmiek and other witnesses, who speak of the condition in which Langdon was found, describe his head as “ almost a complete mass of wounds and bruises.” They say, “in fact his whole head was a mass of wounds, more particularly about the posterior part;” one of bis ears was lacerated and almost severed from his head ; his nose and lip were cut through, and some of his teeth knocked out. It was satisfactorily shown that death resulted from the injuries in less than three days ; and if he had not been a man of vigorous constitution he could not have survived so long. If it may be presumed that men intend the natural and ordinary consequences of their acts, it required no strained inference to reach the conclusion that they intended to beat him to death. But the jury had no occasion to rely exclusively on any such presumption. The previous threats and subsequent conduct of the prisoner tended strongly to the same conclusion. When he met the witness, William King, early next morning, he said “ I was up at Pottsville last night, and they killed Langdon.” How came he to use this expression if the idea of killing Langdon had not been previously entertained ? Scattered throughout the testimony there are a number of facts and circumstances which tend to connect the prisoner with the murder, and at the same time justify the jury in determining the degree as they did. It is unnecessary to refer to them in detail or at greater length than has been done. They all appear to be consistent with the theory upon which the verdict, must have been based, and at the same time irreconcilable with any reasonable hypothesis of the prisoner’s innocence. The body of the offence was clearly established. There could be no doubt that Langdon was murdered, and the evidence was amply sufficient to justify the jury in finding that the prisoner was one of the guilty parties, and that the grade of his offence was murder of the first degree. A careful review of the evidence satisfies us that “ all the ingredients necessary to constitute murder of .the first degree were proved to exist.” The supplemental error, assigned at bar during the argument, is, therefore, not sustained.

The first five, together with the eighth and ninth assignments of error, relate to the conduct and declarations of Kehoe immediately prior to the beating of Langdon, and what was said in his presence by others with whom it was alleged he was acting in the pursuit of their common purpose to attack Langdon, and what occurred after he was attacked. As has been already remarked, it was very evident that, in the assault on Langdon, there was what at least appeared to be concerted action on the part of several persons with whom Kehoe was associated; and it would have been impossible for the jury to have had an intelligent understanding of the case without being informed as to the facts and circumstances leading to and connected with the main transaction. Many of the matters embraced in these assignments fall properly under the head of res gestee; and while some of them may have had but little if any bearing on the case, we are unable to see that the prisoner could have been, in any way, unduly prejudiced by any of the testimony to which objection was made. As a general rule, everything that pertains to the< proper surroundings of the crime charged is admissible. We cannot say that the rule was violated in this case. The length of time that has elapsed — nearly fifteen years — -between the commission of the offence and the date of trial, made it more difficult to develop the facts of thet case without the introduction of some unimportant circumstances, the relevancy of which may not have been quite clear. We have been unatile to discover any material error in the matters complained of in either of the foregoing assignments.

The sixth and seventh assignments relate to the alleged dying declarations. The testimony on which they were admitted appears to show, and no doubt satisfied the court, that they were made by the deceased under a sense of impending dissolution. In determining the state of his mind at the time, the nature and character of the injuries, from which he was then suffering, were to be considered in connection with what he said in regard to their fatal effect; and if he really believed that death was impending as the speedy result of those injuries, his declarations were properly admitted. It was a question for the court, and, while in some respects it may be considered a close one, we think it was rightly determined.

The tenth and eleventh assignments relate to the rejection of Columbus McGee and Neal Dougherty as witnesses, offered on the part of the prisoner, on the ground that they with others were indicted jointly with him for the same homicide, and that Dougherty had been tried and convicted, but not sentenced. In the case of McGee the question presented is, whether, when several persons are jointly indicted and separate trials are awarded, one who has not been tried is a competent witness for one of the others on trial.

This wvas one of the questions in Shay v. Commonwealth, 12 Casey 305, in which it was held that he was incompetent. This case vras followed by Staup v. Commonwealth, 24 P. F. Smith 458, in which the present chief justice, delivering the opinion of the court, says : “ Defendants jointly indicted for murder, though severing in their defence, cannot testify for each other. The love of life is too strong to be placed in the balance against truth, and the result might often be that both defendants would be acquitted when both were guilty.” A different rule has sometimes been recognised, but the decided weight of authority accords with our own cases.

The case of the other witness, Neal Dougherty, differs only in this, that he had been tried and convicted, but not sentenced, and motions in arrest of judgment and for a new trial were pending at the time he was offered. Was he thereby rendered competent? We think not. It is clear that when the prosecution, as to one of several defendants, is fully ended, either by acquittal, entry of a nolle prosequi, or by a verdict of guilty and judgment thereon, he is a competent witness, unless disqualified by the judgment, as in case of sentence for crime of an infamous nature. In such cases it is the judgment that renders the convict infamous, and the disqualification continues until it is removed by pardon or otherwise. In Rex v. Fletcher, 1 Strange 633, two persons were jointly indicted, one of whom pleaded guilty and paid his fine; it was held by Lord Chief Justice Raymond, that he was a competent witness, for the other, for the obvious reason that the matter was at an end as to him. He was no longer, in any just sense, a party to the record. Ilis testimony could have no possible effect on his own punishment, for that had been inflicted and satisfied; nor upon any subsequent proceedings against him, for, as to him, all proceedings had terminated. But the case is very different when the prosecution has not been ended; when a verdict of guilty has been rendered, and efforts are being put forth to arrest judgment or secure a new trial. At no period in the progress of the case, perhaps, is the defendant more interested in furnishing exculpatory evidence in behalf of his co-defendants, who, after being liberated by his testimony, would become competent witnesses for him in the event of a new trial. In The State v. Young, 39 N. H. 283, a defendant, who pleaded, nolo contendere, but against whom no judgment had been pronounced, was held to be incompetent, as a witness, for his co-defendant. In delivering the opinion of the court, Mr. Justice Fowler says, “it seems, notwithstanding cases to the contrary, that a defendant cannot properly be admitted as a witness for his co-defendant, in a criminal case, until he has ceased to be a party to the proceeding. No plea, merely, unless followed by judgment in accordance with it, can operate to remove the disqualification. So long as he remains a party to the proceeding ; so long as anything remains to be done against him which may, by possibility, be affected by his own testimony, he is incompetent.” In some cases, confusion of thought has apparently arisen from speaking of the conviction of a defendant as the end of the case. When conviction, by judgment of the court, is meant, this is correct; but, when a plea, admitting guilt, or a verdict of guilty, not followed by judgment, is regarded as a conviction which ends the case, it is erroneous.

We are satisfied that both reason and weight of authority concur in the conclusion that neither of the witnesses offered was competent, and therefore no error was committed in rejecting them.

The remaining assignments of error are not sustained, and there' appears to be nothing connected with either of them that requires special notice. The defendant's fourth point was affirmed, with an explanation and qualification, which the circumstances of the case appear to have justified. The fifth point was substantially affirmed, and the suggestions therein contained were properly referred to the jury for their consideration. What was said by the court, in the same connection, relative to its jurisdiction of the case, was correct in itself, and in no way calculated to prejudice the defendant.

The learned president of the Oyer and Terminer appears to have conducted the trial with great care and due regard to the rights of the plaintiff in error; the principles of law involved were fully and clearly explained to the jury, and the testimony was so reviewed and submitted as to leave them entirely free in the discharge of their duties as judges of the facts. Guided in their deliberations by correct and appropriate instructions, and acting under the solemnity of their oaths, they found the defendant guilty of murder of the first degree. The record discloses nothing that would justify us in disturbing the judgment.

The judgment of the Court of Oyer and Terminer is affirmed, and it is ordered that the record be remitted for the purpose of carrying the sentence into execution.