author: Mr. Justice Elkin,

text:
    Safe Deposit & Trust Company of Pittsburg v. Bovaird & Seyfang Manufacturing Company, Appellant.

      Deeds — Latent ambiguity — Evidence—Parol evidence.

    1. Where a person owns several lots on a street named First avenue, and by a deed conveys one of the lots “ and also all the estate, right, title and claim of the party of the firs! part, in and to the ground formerly occupied by First avenue, now vacated,” and there is nothing in the deed to indicate conclusively that the grantor intended to convey only so much of the vacated street as abutted on the lot of ground particularly described and conveyed by the deed, it is error for the court in an action of ejectment to construe the deed as a matter of law so as to confine the grant to the portion of the street abutting on the lot conveyed. Such a deed involves a latent ambiguity to be explained by parol evidence, and to be passed upon by a jury.
    2. In such a case the acts and declarations of the parties at and before making the deed are competent evidence to explain the conditions as they existed on the ground at the time, and to aid the jury in determining the extent or limitations of the grant; and evidence is admissible to show an intent to convey the whole street although the grantor in a later deed conveying a lot abutting on the same street included in the conveyance the portion of the vacated street abutting on such lot.
    Argued May 4, 1910.
    Appeal, No. 184, Oct. T., 1910, by defendant, from judgment of C. P. No. 3, Allegheny Co., Feb. T., 1906, No. 62, on verdict for plaintiffs in case of Safe Deposit & Trust Company of Pittsburg, Trustee under the will of William A. Nimick, deceased, Arthur O. Fording, Guardian of Eleanor H. Nimjek, a minor, Ella H. Nimick et al. v. Bovaird & Seyfang Manufactoring Company.
    Before Fell, C. J., Brown, Potter, Elkin and Stewart, JJ.
    Reversed.
    Ejectment for land fronting on Ross street in the city of Pittsburg. Before Evans, J.
    At the trial it appeared that Alexander Nimick by deed dated March 1, 1890, conveyed a lot of land abutting on ' First avenue to the defendant, “and also all the estate, right, title and claim of the party of the first part of in and to the ground formerly occupied by First Avenue, now vacated.” Subsequently the same grantor by a quitclaim deed granted another lot to W. A. Nimick, abutting on Ross street, and including within the description in the deed a portion of the vacated part of First avenue.
    When Walter Bovaird was on the stand the following offer was made:
    Counsel for defendant proposes to prove by the witness on the stand that he met, in February of 1890, Alexander Nimick, the grantor named in his deed dated March 1, 1890, to David Bovaird and John L. Seyfang, as a purchaser of this property described in this deed, the witness then representing his father, David Bovaird, and John L. Seyfang, as their agent and that the grantor, Alexander Nimick, went upon the property in question and described in this deed, showed it to the witness, walked with him over the portion of First avenue between Ross street and Try street, and pointed out the advantages that went with the property; that he proposed to sell his rights in the vacated portion of First avenue, being then the northerly half of First avenue, making this particular piece of property accessible to the railroad switch at Try street and to Ross street; that he • represented himself to be the owner of the property between Second avenue and the vacated portion of First avenue, and that he had an interest or some title in the vacated portion of First avenue between Ross street and Try street; that he would not guarantee what it was, but that whatever it was he would sell it with the property; and that the grantor knew at that time that the purchase of the property was being considered for a manufacturing site in which the use of First avenue was an absolute requisite and that later on the deed offered in this case was delivered to the witness and the purchase money therein paid as a conveyance of the property so offered and purchased, with the rights of Mr. Nimick, the grantor in this deed, as he represented.
    Objected to as incompetent and irrelevant to any issue in this case. Objection sustained.
    To which ruling counsel for defendant requests an exception. Exception. [7]
    I further propose to prove by the witness that immediately after the purchase of this property and in the lifetime of Alexander Nimick, his father, the purchaser, with John L. Seyfang, the other purchaser, began the erection of the buildings now upon the property purchased by them, situate between Second avenue and the portion of First avenue vacated, with a blacksmith shop fronting on First avenue and a driveway fronting on the vacated portion of First avenue and a crane erected on the vacated portion of First avenue, and that the grantees, David Bovaird and John L. Seyfang, and the Bovaird & Seyfang Manufacturing Company have since the conveyance on March 1, 1890, by deed, continuously used the vacated portions of First avenue as a passageway or driveway for their teams and wagons, down to 1896, the period during which time this witness was a constant employee at the defendant’s plant, to be followed by other testimony showing its use down to the present time.
    The Court: That is, its use for a driveway?
    Mr. Ritchey: Yes, its use as a driveway down to the present time; that is, the property in dispute.
    The Court: There was no erection of any structure by the Bovaird-Seyfang Company on the property in dispute?
    Mr. Ritchey: No.
    Mr. Patterson: The offer is objected to as incompetent and not relevant to any issue raised in this case.

      October 17, 1910:
    Objection sustained. .To which ruling counsel for defendant requests an exception. Exception allowed. [8]
    Verdict and. judgment for plaintiffs. Defendant appealed.

      Errors assigned were (1) giving binding instructions for plaintiff; (5, 6) overruling certain questions addressed to Walter Bovaird, quoting the bill of exceptions, and (7, 8) overruling offers of evidence, quoting the bill of exceptions.

      J. L. Ritchey, with him S. G. Nolin, for appellant.
    Under the circumstances the declarations of the grantor and his conduct and the negotiations of the parties as set forth in the offer of the defendant are safe guides to the court and jury in identifying "the ground formerly occupied by First Avenue now vacated” that was intended to be conveyed by the words used, and in removing the ambiguity: Hetherington v. Clark, 30 Pa. 393; Sargent v. Adams, 69 Mass. 72; Lycoming Mut: Ins. Co. v. Sailer, 67 Pa. 108; Easton Power Co. v. Ry. Supply Co., 22 Pa. Superior Ct. 538; Ott v. Kreiter, 110 Pa. 370; Brownfield v. Brownfield, 12 Pa. 136; Chester Emery Co. v. Lucas, 112 Mass. 424; Woods v. Sawin, 70 Mass. 322.

      Patterson, Sterrett & Acheson, with them Springer H. Moore, for appellees.
    As a rule the intention of parties to a deed must be ascertained from the written expressions, and only in rare cases from testimony dehors the instrument: Fuller v. Weaver, 175 Pa. 182.
    The evidence was not competent to affect the title of a third party, who had no knowledge whatever of any parol conversations, and who had bought his property upon the faith of, and only upon the faith of, the record title: Heilner v. Imbrie, 6 S. & R. 401; Scott v. Burton, 2 Ashmead, 312; Higgins v. Sharon Boro., 5 Pa. Superior Ct. 92.
   Opinion by

Mr. Justice Elkin,

This is an action of ejectment,in which is involved the title to a small parcel of land located within the lines of a vacated street. All parties claim title under Alexander Nimick as common grantor, but just what kind or character of title he held to the premises in dispute does not clearly appear. All of the McKee and Nimick deeds relating to the vacated street indicate that the grantors were in doubt as to the title being absolute in them because they were only willing to execute quitclaim conveyances. For the purposes of the present case it is not important to consider this underlying question of title because both parties rely upon grants from Alexander Nimick and stand upon whatever title he had. The defendant company stands upon the title conveyed by deed from Alexander Nimick to David Bovaird and John L. Seyfang, dated. March 1, 1890. The deed in question conveyed a certain lot of ground particularly described by metes and bounds with certain streets as boundaries, about which title there is no dispute. This particular grant is followed by a paragraph conveying all of the rights and privileges of the grantor in and to a three-foot alley, and then follows another clause out of which the present controversy arises, to wit: “And also all the estate, right, title and claim of the party of the first part of, in and to the ground formerly occupied by First Avenue, now vacated.” It is the contention of appellees, and this was the view of the learned court below, that the deed to Bovaird and Seyfang “conveyed only that part of the land formerly occupied by First Avenue which abutted and was appurtenant to the land conveyed in the genera] description.” This being the construction placed on the deed itself it was held there was nothing to be submitted for the determination of a jury. Holding this view, the learned court below refused to allow the introduction of parol testimony to explain what ground was intended to be conveyed by the parties at the time of making the deed. After very careful consideration we have concluded this was error. If from the plain words of the deed it appeared that the grantor only intended to convey the lot of ground particularly described together with such portion of the vacated street as abutted thereon or was appurtenant thereto, then and in that event it would be a question of construction for the court and not of fact for the jury. We are not convinced, however, that the plain words of the deed show such an intention or that the language used is so clear as to necessarily lead to this conclusion. Indeed, the plain words of the grant indicate an intention on the part of the grantor to convey ail of his estate, right, title and claim in and to all the ground formerly occupied by the vacated street. This is what the language says and it is the natural import of the words used. It may be that the parties did not so intend, and inasmuch as the same grantor subsequently executed a quitclaim deed for a portion of the vacated street to another grantee it is a reasonable inference that he did not intend to part with his title to the whole of the vacated street by his first conveyance. But in his deed to Bovaird' and Seyfang he did not limit his grant to any particular part of the vacated street, but used words broad enough to include all of it, although when explained by facts, circumstances and conditions on the ground at the time a jury might be warranted in fixing a more definite description of the premises intended to be conveyed. The grant is of the “grounds formerly occupied by First Avenue now vacated.” This language naturally suggests the inquiry what ground was formerly occupied by that part of First avenue which was then vacated. There is nothing in the deed to supply the description, or to indicate the limitations of the grant. Did the grantor intend to convey his title to the whole of the vacated street or only a part of it? The deed furnishes no sufficient explanation. Certainly under these facts there arises what is known in law as a latent ambiguity which under all authorities may be explained by parol. In Lego v. Medley, 24 Am. St. Rep. 706, it was held that a latent ambiguity arises in the description of premises conveyed by deed when it is necessary to resort to surrounding circumstances to determine the description intended. It was held in Breckinridge v. Duncan, 12 Am. Dec. 359, that when the intention of the parties is clearly expressed, but a doubt exists not as to the intention, but as to the object to which the intention applies, a latent ambiguity arises. All of the authorities agree that a latent ambiguity exists where on the face of the instrument there is no doubt or uncertainty, but by proof aliunde the language is shown to be alike applicable to two or more persons or objects. In Bell v. Martin, 18 N. J. Law, 167, it was said that there is a class of cases, partaking of the nature of both patent and latent ambiguities, as where the words of the grant are all sensible, and have a settled meaning, but at the same time consistently admit of two interpretations, according to the subject-matter in the contemplation of the parties. In our state it has been frequently held that when an ambiguity has been raised by parol, it may be explained by parol. As far back as Collins v. Rush, 7 S. & R. 146, it was held that while the construction of a written instrument is the exclusive province of the court, the description of land conveyed, its limits and contents are frequently mixed questions of law and fact. In Hoffman v. Danner, 14 Pa. 25, this court held that where from the generality of the terms used in a deed, or from uncertainty of description, a doubt is raised as to the boundaries, or the position or limits of the land sold, evidence aliunde may be resorted to for the purpose of aiding a jury to determine what land was intended to be included in the grant. In Hetherington v. Clark, 30 Pa. 393, it was held that where a party conveyed a particular tract of land to one who neglected to record his deed, and subsequently conveyed to another party by a general indefinite description, all the lands belonging to him in the same place, and the last deed was recorded, a latent ambiguity arose which might be explained by parol in order that a jury could determine whether the land described in the first deed was intended to pass by the second. In Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. 108, Mr. Justice Sharswood, pointed out the distinction between the character of evidence necessary to reform an instrument on the ground of accident, fraud or mistake, and the weight of evidence introduced for the purpose of explaining a latent ambiguity. The Massachusetts cases recognize the same rule. In Sargent v. Adams, 69 Mass. 72, it was held that where by reason of the general description in a written instrument the language used may apply to two distinct objects, a latent ambiguity arises which may be explained by parol. The books are full of authorities to the same general effect, but enough have been cited to warrant its application under the facts of the present case.

It is contended for appellees that the declarations or parol statements made by Alexander Nimick to Bovaird and Seyfang at or before the making of the deed, could have no effect in reforming that deed or in extending the subject-matter covered by it as against W. A. Nimick, a subsequent grantee, without evidence that he had knowledge of the declarations prior to his purchase. In answer it may be said that the offer was not made for the purpose of reforming the deed by extending the subject-matter of the grant, but was intended to explain the latent ambiguity arising out of the generality of the description. As was pointed out in Lycoming Mut. Ins. Co. v. Sailer, 67 Pa. 108, there is a clear distinction between the two classes of cases. A latent ambiguity is determined by the weight of the evidence and as a rule is for the jury. It may be conceded that the rights of W. A. Nimick, a subsequent grantee, could not ordinarily be affected by the declarations of third parties of which he had no knowledge, but when he took a quitclaim deed for the premises in dispute, there was a deed on record to Bovaird and Seyfang conveying all of the estate, right, title, interest and claim of the common grantor in and to the vacated street to them. He had constructive notice at least of the former grant and took his title subject to whatever rights the first grantees had in the premises. If Alexander Nimick had conveyed all of his title to the land in the vacated street to Bovaird and Seyfang in 1890, he had no title to convey to W. A. Nimick in 1891. The description in the first deed is general and indefinite and we think under the authority of Brownfield v. Brownfield, 12 Pa. 136, and Ott v. Kreiter, 110 Pa. 370, the acts and declarations of the parties at the time of and before making the deed are competent evidence to explain the conditions as they existed on the ground at the time and to aid a jury in determining the extent or limitations of the grant. It is further argued that even when declarations or statements are admissible to explain a latent ambiguity, they must be contemporaneous with the making of the instrument, or so closely related as to be practically connected with its execution. This may be conceded as a correct statement of the general rule applicable in such cases, but it does not mean that the declarations or statements must be made at the exact time when all the parties come together to execute and deliver the deed. It is sufficient if they were made while negotiating for the sale and purchase of the land and formed part of the transaction which resulted in the executed agreement of the parties. The offers of the rejected testimony came reasonably within this general rule. When the case is again tried it will be necessary for the appellant to show that the statements relied on were made during the negotiations which resulted in the execution of the deed, also that they were made to the purchasers or their representative. The rejected offers were broad enough to cover these requirements and we can see no sufficient reason why the testimony in support of the offers should have been rejected. Again, without reference to any specific declarations or parol statements, it is competent to show that the parties or their representatives went upon the premises while the negotiations were pending, walked over the ground, and that the common grantor pointed out the boundaries of the vacated street which he proposed to convey. This for the purpose of explaining the intention of the parties and to aid a jury in determining the limits of the land intended to be included in the conveyance.

An important question to all parties concerned has not been raised by this record, and inasmuch as the case is to be sent back for a new trial we feel that attention should be directed to it. The land in dispute is part of a street dedicated to public use by a private owner on the original O’Hara plan of lots. Each abutting owner acquired an easement in the street thus dedicated to public use regardless of who owned the fee simple title to the bed of the street. The part of the street in dispute although vacated by the city has not been closed and, as we understand the facts presented by this record the abutting owners have always used it for street purposes. If the abutting owners still have the right to enjoy this important easement the question of who owns the fee simple title is not very material so long as the easement remains undisturbed. However, this question is not now before us, and we do not undertake to pass finally upon it.

The first, fifth, sixth, seventh and eighth assignments of error are sustained.

Judgment reversed and a venire facias de novo awarded.


source: Caselaw Access Project

author: Mr. Justice Moschziskeb,

license: Public Domain

text:
    Commonwealth v. Detweiler, Appellant.

      Criminal law — Murder—Defenses—Intoxication—Use of drug.

    1. The mere intoxication of a person charged with murder will not excuse or palliate his offense unless he was in such a state of intoxication as to be incapable of conceiving any intent. If he was, his offense is reduced to murder in the second degree.
    2. Intoxication from the voluntary excessive use of opium or any other drug taken to gratify the appetite is considered in the law the same as intoxication from the voluntary use of liquors.

      Criminal law — Murder—Evidence—Accusation—Standing silerit.

    3. In a murder trial a witness for the commonwealth may be permitted to testify that he said in the presence of the defendant, who was standing within four feet of him, with the deceased’s body lying before them, “that is something you ain’t going to get away with.” In such a case it is for the jury to say whether the defendant heard the remark, and also whether or not the remark was in the nature of an accusation, and what effect they would give to the standing silent of the defendant under the circumstances.
    4. Where the trial judge in a colloquy between counsel and the court over a remark of the district attorney in his argument, suggests that anger or revenge over the loss of money might have been the motive for the killing, and there is evidence upon which the judge might have made such a suggestion in his charge, a verdict of guilty will not be set aside because of the suggestion made by the trial judge.
    5. A verdict of guilty in a murder case will not be set aside where the district attorney permitted a woman to sit by his side during the trial whom he supposed to be the wife of the deceased and addressed as such, where it appears that the woman had lived with the deceased as his wife, had seen the killing, and was in court as a witness for the commonwealth.
    Argued Oct. 3, 1910.
    Appeal, No. 1, May T., 1911, by defendant, from judgment of O. & T. Dauphin Co., Sept. T., 1909, No. 138, on verdict of guilty of murder of the first degree in case of Commonwealth v. Wells W. Detweiler.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Kunkel, P. J.
    The facts appear in the opinion of the Supreme Court.
    At the trial Leon G. Landis, a witness for the commonwealth, was asked this question:
    “Q. State, please, what conversation, if any, you heard pass between the officer and Detweiler at that time, what Detweiler said? A. I heard Detweiler say something about: ‘You ain’t got no business in here, you ain’t no member here.’ That is all I heard him say. Q. Did you see Dwyer there? A. I seen him there laying on the floor, yes, sir. Q. What, if anything, did you say to Detweiler at that time? A. I said: ‘ That is something you ain’t going to get away with.’ Q. What did he say? A. He didn’t say nothing.”

      Mr. Fox: If the court please, we ask that that be stricken out. How is that evidence?
    The Court: With Dwyer’s body lying in front of them both? We think it is evidence with whatever weight may be attached to it.
    Mr. Fox: If the court please, we ask that that be stricken out.
    The Court: “Q. Did Detweiler hear this remark? A. He was standing there — he was very stupid — with the officer. Q. Do you know whether he heard it or not? A. I don’t know whether he heard it or not. He didn’t say nothing, anyhow. ...”
    The Court: “Q. How near to Detweiler were you, when you asked him whether he shot him? A. Why, I was standing right in front of him. Q. Was he looking at you? A. His eyes was about half cocked. Q. You can’t tell whether he heard you or not? A. No, sir; he didn’t say nothing back anyway.”
    The Court: We think we will admit this evidence and give you an exception; the weight to be attached to it is for the jury. We cannot determine in advance that the defendant did not understand what was being said to him. [5]
    Mr. Weiss: Your honor, please, I ask the question and the answer of the witness, to your honor’s question, whether Detweiler heard him or not, the answer: “ He appeared to be stupid,” be stricken from the record as not responsive to your honor’s question.
    The Court: Strike that out.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed. The prisoner appealed.

      Errors assigned were (5) rulings on evidence, quoting the bill of exceptions, and various rulings on evidence sufficiently set forth in the opinion of the Supreme Court.

      John E. Fox, with him E. E. Beidleman and Frank E.

      Ziegler, for appellant,
    November 2, 1910:
    cited as to the effect of drugs: Jones v. Com., 75 Pa. 403.
    Cited as to standing silent: Moore v. Smith, 14 S. & R. 388; Com. v. Kenney, 53 Mass. 235; Com. v. Johnson, 213 Pa. 607.
    Cited as to the conduct of the supposed widow of the deceased: Com. v. Hoover, 227 Pa. 116.

      John Fox Weiss, district attorney, with him W. H. Musser and M. E. Stroup, assistant district attorneys, for appellee.
    Intoxication is no excuse for crime: Jones v. Com., 75 Pa. 403; Com. v. McGowan, 189 Pa. 641; Com. v. Wireback, 190 Pa. 138; Com. v. Hallowell, 223 Pa. 494; Com. v. Renzo, 216 Pa. 147.
    Silence is assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a quasi confession: O’Mara v. Com., 75 Pa. 424.
   Opinion by

Mr. Justice Moschziskeb,

The defendant was convicted of murder of the first degree. The crime occurred at a clubhouse where the defendant and the deceased had been gambling. The defendant went to this house shortly after ten o’clock on the night prior to the morning of the killing, and the gambling commenced at midnight and continued until about seven o’clock in the morning, when the game was broken up by a dispute over the money. The defendant then left the clubhouse and went to a pawn shop where he purchased a thirty-eight caliber revolver and requested the clerk in the shop to load it. He returned to the club, inquired for the deceased, and when he found him immediately fired two shots in rapid succession, both of which entered the body of his victim, causing death within a short time. The defendant admitted the facts as outlined down to the time of the card game, but claimed that his mind was a blank from that time until his arrest and removal to the station house. He testified that he had been smoking and taking opium for almost a week; that at about ten o’clock on the evening prior to the killing he had taken a pill the size of a pea, and during the course of the night he had drunk a large quantity of beer.

It is contended that the court below erred in refusing to charge the jury that they were bound to acquit the defendant if they believed that he was in such a condition of mind from the joint use of opium and alcohol as to be unable to reason or to distinguish right from wrong at the time of the commission of the crime; and that further error was committed in the refusal to affirm the defendant’s points to the effect that a disordered mental condition superinduced by the excessive use of a drug such as opium was considered differently in the law from a similar condition due to voluntary intoxication from liquors.

In the words of the trial judge, “There was no evidence, nor was it contended that the defendant was permanently or continuously deranged in mind, or, in other words, insane, but the defense was that by the voluntary use of beer and opium he was temporarily rendered incapable of deliberating and premeditating and of forming a conscious purpose to kill.”

The law as settled in our state is, “The mere intoxication of the defendant will not excuse or palliate his offense unless he was in such a state of intoxication as to be incapable of conceiving any intent. If he was, his grade of offense is reduced to murder in the second degree:” Com. v. Cleary, 135 Pa. 64. When that case was before us the second time the following instruction was assigned for error: “If, however, you find that the intoxication of the prisoner was so great as to render it impossible for him to form the willful, deliberate and premeditated intent to take the life of the deceased, the law reduces the grade of the .homicide from murder in the first to murder in the second degree, and your verdict should be murder in the second degree;” and in affirming we said that the instruction was “entirely accurate and as favorable to the prisoner as he had any right to expect:” Com. v. Cleary, 148 Pa. 26. In Com. v. McGowan, 189 Pa. 641, we said: “But even though there is intoxication there may be deliberation and premeditation, and if the evidence shows these elements of murder in the first degree to have been present, the intoxication will not reduce the murder to the second degree.” Also see Com. v. West, 204 Pa. 68, and Com. v. Dudash, 204 Pa. 124. Finally, in Com. v. Eyler, 217 Pa. 512, Chief Justice Mitchell states: “The defense was intoxication. . . . The only issue, therefore, was the degree of guilt, and that depended on the degree of intoxication.” These authorities fully sustain the trial judge’s instructions upon the law and his refusal to charge as requested by the defense. Intoxication from the voluntary excessive use of opium or any other drug taken to gratify the appetite is considered in the law the same as intoxication from the voluntary use of liquors.

In addition to a witness who was present at and described the actual shooting, there was testimony of several other witnesses which would warrant a finding that the defendant knew what he was about when he left the clubhouse and when he purchased the revolver, and that apparently he was in his right senses sufficiently to appreciate the nature of his acts immediately before and after the shooting. Despite his intoxication, the jury evidently believed that at the time of the killing he was capable of forming and executing a deliberate and premeditated intent to take life. We are unable to say that such a conclusion cannot be founded justifiably upon the evidence, and consequently the defendant’s contention that the crime could not rise higher than murder of the second degree cannot be sustained. The case of Jones v. Com., 75 Pa. 403, relied upon by the defendant, is so plainly distinguishable on its facts as not in any sense to rule the present case.

We see no merit in the remaining assignments of error. The remark made by the witness in the presence of the defendant, with the deceased’s body lying before them, “that is something you ain’t going to get away with,” evidently referred to the killing of the deceased, and there was no error in its admission. Although the witness could not tell positively whether or not the defendant heard the remark, yet as he was within four feet of him at the time he uttered it, the question was for the jury; and it was also for the jury to say whether or not the remark was in the nature of an accusation, and what effect they would give to the defendant’s silence under the circumstances. As to the answer given by this witness, “he was very stupid,” when asked if the defendant had not heard the remark, it is a matter of opinion whether or not the reply was responsive to the interrogation, and the trial judge considered that it was not. However this may be viewed, we are satisfied that no real harm was done to the defendant by the ruling in question.

It is complained that the trial judge in the presence of the jury suggested that it might be argued that anger or revenge over the loss of money formed the motive for the killing. It appears that the district attorney was contending that possibly robbery was the motive, and when it was objected by counsel for the defendant that there was no evidence , to support such an argument, a colloquy occurred between counsel and the court during the course of which the suggestion was made of which the defendant now complains. There was evidence upon which to base the thought expressed by the trial judge; it would not have been wrong for him to have made the suggestion to the jury in reviewing the evidence, and there was nothing in the manner of, or the circumstances surrounding, its utterance that would constitute reversible error.

The fact that one of the witnesses testified that at the time of the killing she was the wife of the deceased, when in truth she was not, and that this witness occupied a seat beside the district attorney during the course of the trial, does not move us to a reversal. This woman had been living in the relation of a wife with the man whom she called her husband, and it is admitted that the district attorney did not know that she was not the widow of the deceased. The fact that the witness said that the deceased was her husband might well have been considered in passing upon her credibility, but as she was an eyewitness to the killing which she described, and as this was not disputed but practically admitted at the trial, any attack upon her credibility would have been of no material avail to the defense. There is nothing upon the record to support the contention of the appellant that the presence of this witness beside the district attorney brings the case within the category of Com. v. Hoover, 227 Pa. 116, and the authorities there cited.

A careful consideration of the whole case fails to disclose any reversible error. The assignments are all overruled, the judgment is affirmed, and the record is remitted for the purpose of execution.


author: Mr. Justice Moschzisker,

text:
    Commonwealth v. Polichinus, Appellant.

      Criminal law — Murder—Constitutional law — Right to be heard by counsel.

    1. Where a trial judge on the trial of an indictment for murder tells the jury, without any saving words, that they are not to consider the evidence in the light of the arguments of counsel, he commits clear, reversible error, inasmuch as he trenches upon sec. 9 of art. I, of the constitution of Pennsylvania, which provides that “In all criminal prosecutions the accused hath a right to be heard by himself and his counsel.”

      Criminal law — Murder—Improper remarks of district attorney — Exception.

    2. An improper remark addressed by the district attorney to a witness for the defense in a murder trial is not the basis for an assignment of error where neither an objection nor an exception was taken to the remark at the trial.

      Criminal law — Murder—Intent—Evidence.
    3. On the trial of an indictment for murder it is not improper to permit a witness for the commonwealth to testify that the defendant met him four hours before the shooting a mile from the place of the shooting, and asked him in a general conversation at what part of the body he would aim to shoot a man if he desired to kill.
    Argued Oct. 10, 1910.
    Appeal, No. 226, Jan. T., 1910, by defendant, from judgment of O. & T. Northumberland Co., Dec. T., 1909, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Joe Polichinus.
    Before Fell, C. J., Mestrezat, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Indictment for murder. Before Savidge, P. J.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned were (4) portion of charge quoted in the opinion of the Supreme Court.
    2. "When the assistant district attorney said to Peter Shelsky, defendant’s witness, “Didn’t I say to you up in Mt. Carmel, after I was through talking to you, that you were a little liar?” and to which defendant objected, the court erred, because it did not immediately reprimand the assistant district attorney, and request him to withdraw the remark and instantly caution the jury to entirely disregard the same.
    3. The court erred in admitting the testimony of E. J. Kaufman, a witness for the commonwealth, who testified that while he was on the mountain side, chopping wood, one mile west of the place of the shooting, and four hours before the shooting, the defendant came to him and in a general conversation, idly asked of Kaufman at what part of the body he would aim to shoot a man if he desired to kill. Whereupon the witness said, that he would, shoot him in the heart, to which the defendant replied that he would shoot him “across the back, or somewhere;” which conversation was not a part of the res gestae, and not in the nature of a threat made against the decedent or anyone else, and after which the defendant came down from the mountain side, into the borough of Mt. Carmel, and was seen there for several hours before the shooting of the decedent took place, as shown by the commonwealth’s own testimony.
    November 2, 1910:

      L. S. Walter and A. F. John, for appellant.

      A. K. Deibler, district attorney, with him M. H. Taggart and D. M. Hughes, for appellee.
   Opinion by

Mr. Justice Moschzisker,

The defendant was convicted of murder of the first degree. In his charge to the jury, after reviewing the testimony, the trial judge said: "After considering that evidence carefully and dispassionately, without any feeling either for or against the defendant, or without any prejudice either for or against the commonwealth, considering it without reference to anything that may happen in the future, without any reference to consequences— because with those you have nothing to do — considering it, not in the light of the arguments or speeches, made either by the counsel for the commonwealth or for the defense, but considering it on the testimony alone, considering it in the light of cold reason, and bringing to bear upon it your cool and deliberate and very best judgment, giving the defense that same kind of consideration, if you conclude that this defendant is guilty beyond a reasonable doubt, then you ought to find him guilty.” The defendant contends that these instructions practically deprived him of the effect of his right to be heard by counsel.

Sec. 9 of art. I of the constitution of Pennsylvania provides: "In all criminal prosecutions the accused hath a right to be heard by himself and his counsel.” Any deprivation or material abridgment of this right may be assigned for error: Cathcart v. Com., 37 Pa. 108. The right of the accused to have counsel assigned to defend him has existed in this state by statute since the Act of May 31, 1718, 3 Pa. Stat. at Large, 199, and only recently, by the Act of March 22, 1907, P. L. 31, the legislature supplemented this right by providing for the allowance of expenses and fees to counsel assigned in murder cases: Com. v. Darmska, 35 Pa. Superior Ct. 580.

The constitutional right to be heard by counsel carries with it the right to have arguments of counsel considered by the jury in passing upon the evidence. “Courts may regulate the manner and time for the exercise of the right to be heard by counsel, and may limit the number and length of the addresses to be made to the jury:” Stewart v. Com., 117 Pa. 378. A trial judge may properly instruct the jury that the arguments of counsel are not binding upon them, and that they are only to be guided by such arguments in so far as they are supported by the evidence and appeal to their reason and judgment; but, when the learned judge in the present case told the jury, without any saving words, that they were not to consider the evidence in the light of the arguments of counsel, he committed clear reversible error. The fifth assignment is sustained.

One other matter calls for notice. When the assistant district attorney was cross-examining an important witness for the defense, he said: “Didn’t I say to you up in Mt. Carmel, after I was through talking to you, that you were a little liar? ” This very properly met with a prompt reprimand from the court. The printed testimony fails to disclose that any question was being raised concerning the commonwealth’s failure to call this witness, or to disclose other sufficient excuse or justification for the language of his -interrogator. We have discountenanced conduct of this character in a number of recent cases, and have gone so far as to say that on appropriate occasions it may be the duty of the trial judge of his own motion to withdraw a juror. However, we did not mean by this to relieve counsel from the duty of making objection to what they may consider to be improper harmful remarks or from the obligation of securing exceptions. The record showing neither an objection nor an exception, we are not required to pass upon the assignments covering the matter in question.

As the fifth specification of error calls for a reversal, it is not necessary to discuss the remaining assignments other than to state that we see no error in the admission of the testimony referred to in the third assignment.

The judgment is reversed, and a venire facias de novo is awarded.


author: Per Curiam,

text:
    Etter, Appellant, v. McAfee.

      Public officers — Elections—State treasurer — Vacancy—Duration of appointment.

    A state treasurer appointed by the governor in April, 1910, holds his office until his successor shall be elected at the general election in the year 1912, inasmuch as the amendment of 1909 provides for an election to this office in 1912, and not in the intervening years, and art. IV, see. 8, of the constitution expressly provides that in case of a vacancy in an elective office “a person shall be chosen to said office on the next election day appropriate to said office according to the provisions of this constitution.”
    Argued Oct. 17, 1910.
    Appeal, No. 3, May T., 1911, by plaintiff, from decree of C. P. Dauphin Co., Equity Docket No. 455, dismissing bill in equity in case of George E. Etter v. Robert McAfee, Secretary of the Commonwealth of Pennsylvania, Isaac S. Hoffman, Samuel S. Miller and W. W. Wallower, County Commissioners, and D. Frank Lebo, Commissioners’ Clerk of the County of Dauphin, and J. Rowe Fletcher, Sheriff of the County of Dauphin.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Bill in equity to restrain the secretary of the commonwealth from certifying the names of the candidates for state treasurer to the county commissioners, and that the county commissioners of Dauphin county be restrained from printing the names of the candidates for state treasurer on the ballot or sending the names to the sheriff, and that the sheriff be restrained from advertising or making proclamation of an election for state treasurer.
    October 19, 1910:
    The defendants demurred to the bill.
    The court sustained the demurrer and dismissed the bill.

      Error assigned was decree dismissing the bill.

      Alex. Simpson, Jr., of Simpson & Brown, for appellant,
    cited: Com. ex rel. v. Sheatz, 228 Pa. 301; Sharpless v. Philadelphia, 21 Pa. 147; Page v. Allen, 58 Pa. 338; Keller v. Scranton, 200 Pa. 130.

      Henry Budd and James A. Stranahan, for Cornelius Scully, a candidate.

      M. Hampton Todd, attorney general, with him William M. Hargest, assistant deputy attorney general, and J. E. B. Cunningham, deputy attorney general, for appellee,
    cited: People v. Brenham, 3 Cal. 477; Smith v. Bryan, 100 Ya. 199 (40 S. E. Repr. 652); State of Oregon ex rel. v. Johns, 3 Oregon, 533; Shelley v. McCullough, 97 Ky. 164 (30 S. W. Repr. 193); Brooke v. Com. ex rel., 86 Pa. 163.
   Per Curiam,

The determination of the question involved in this appeal depends upon how long the state treasurer appointed by the governor in April, 1910, to fill the vacancy caused by the death of Jeremiah A. Stober, before he qualified, shall hold his office by virtue of such appointment. Mr. Stober was elected at the general election in 1909 for a term of three years beginning the first Monday of May, 1910, and ending the first Monday of May, 1913. He died before his term of office began without having qualified, thus creating a vacancy which the governor had the power to fill and did fill by appointment; see Com. v. Sheatz, 228 Pa. 301. The present incumbent holds under that appointment, and the question for determination is, For what length of time does he so hold? If his successor is to be elected this year he can only hold until the successor so elected qualifies, but if he holds until a successor elected in 1912 qualifies, as the constitution provides, there is no vacancy at present to be filled. Both contentions are made and the correct answer must be found in the amendments to the constitution adopted in 1909. By these amendments the provisions of the constitution of 1874 requiring biennial elections of state treasurers have been abrogated and are no longer in force. The same may be said of the acts of assembly relating to biennial elections of such officers. The constitutional provisions requiring the election of a state treasurer every two years and the statutes relating to such biennial elections no longer being in force it necessarily follows that there is no lawful authority for the election of a state treasurer in 1910 unless that authority is to be found in the amendments adopted in 1909. The amendment to art. IY, sec. 21, provides as follows: “but a state treasurer, elected in the year one thousand nine hundred and nine shall serve for three years, and his successor shall be elected at the general election in the year one thousand nine hundred and twelve, and in every fourth year thereafter.” It is clear that if Mr. Stober had lived, the first election of a successor that could have been held would have been at the general election in 1912. It is so provided by the express language of the constitution and there can be no doubt of the plain meaning of the words used. There is no provision for an election in 1910 or in 1911, but as to the election of a state treasurer it is expressly provided that the successor of the person elected in 1909 shall be elected at the general election of 1912. We must, therefore, inquire whether there are any other provisions of the constitution as amended by virtue of which these express provisions as to the election of state treasurers may be disregarded, and an election to fill a vacancy in such office be held in 1910. The contention made and sustained in the court below was that such a situation arose by reason of the limitations upon the power of the governor to fill vacancies under art. IV, sec. 8. This section confers upon the governor the power to fill vacancies and among other things provides: “but in any such case of vacancy, in an elective office, a person shall be chosen to said office on the’ next election day appropriate to such office according to the provisions of this constitution.” It will be noticed that the governor is given the power to fill vacancies in the office of state treasurer and that the successor to a person so appointed shall be chosen by a vote of the people “on the next election day appropriate to such office according to the provisions of this constitution.” We think it is clear that the plain words of the constitution fix the general élection in 1912 as “the next election day appropriate to such office according to the provisions of this constitution.” It is not for the courts to say that the people did not mean what is so plainly said in the amendment to the constitution which by their votes was adopted in 1909. By that amendment they wrote into the organic law the positive mandate that the first election of a state treasurer for the full term of four years should be held in 1912 and they did not provide for an election to fill vacancies occurring prior to that time. The expression of one thing in the constitution necessarily excludes things not expressed: Page v. Allen, 58 Pa. 338. Another amendment did confer upon the governor the power to fill vacancies by appointment, which power he has exercised in the present case, and the vacancy has thus been filled in the only manner authorized by the constitution. How long does the appointee of the governor hold the office to which he was appointed? The constitution as amended answers this question. He holds until the time fixed by law for the qualification of his successor. It is provided that his successor shall be chosen “on the next election day appropriate to such office according to the provisions of this constitution.” As to the office of state treasurer the first election day provided for is in the year 1912 and hence the election to be held in that year is the appropriate election within the meaning of that section of the constitution which gives the governor the power to appoint. According to the provisions of “this constitution” there is no election day for the office of state treasurer in the year 1910, but there is the positive mandate for an election in 1912. Surely that election day is appropriate which the people fixed as the appropriate day for such an election when they adopted the amendment to our organic law. Such a construction gives effect to every word and part of the constitution and to do this is a cardinal rule of constitutional construction. Any other construction would strike down the positive mandate of the constitution requiring the election of a state treasurer in 1912 and every four years thereafter and would read into it by way of inference provisions not contained in the fundamental law. There is no necessity for such a construction and we are of opinion that the safe and proper rule is to give the words used their plain and popular meaning. If it be said that this denies to the people their right to elect a state treasurer in 1910, as is contended, the answer is that the people themselves by the adoption of the amendment fixed the year in which the next election of a state treasurer shall be held. It was their right to do so and having exercised that right we are bound by what they themselves did. We therefore hold that under the provisions of the constitution no election can be had for the office of state treasurer until 1912 and that the appointee of the governor holds under his appointment until the time fixed by law for the qualification of a successor elected at that time.

Decree reversed, bill reinstated, and injunction directed to issue as prayed for. Costs to be paid by appellee.


text:
    Commonwealth v. Voychek, Appellant.

      Criminal law — Murder—Point for charge — Self-defense.
    Where in a murder trial the prisoner presents a point involving self-defense, but not correctly stating the law, and not founded on the testimony, the prisoner cannot complain if the court refuses unqualifiedly to affirm the point. In such a case, if the court affirms the point with a full explanation of the law governing the right of self-defense, the prisoner has the advantage of an instruction to which he is not in fact entitled.
    Argued Oct. 3, 1910.
    Appeal, No. 110, Oct. T., 1910, by defendant, from judgment of O. & T. Clarion Co., Dec. T., 1909, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Vincent Voychek.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Wilson, P. J.
    The opinion of the Supreme Court states the case.
    The defendant presented the following point:
    11. If the jury disbelieve the testimony of the defendant about what is alleged to have occurred in the house of the deceased, but believe there was any kind of trouble between the defendant and the deceased, and believe that the deceased went in search of the defendant with a poker in his hand (a deadly weapon) and found him and attacked him, and in the fight Andy Stupka was killed, they should acquit the defendant. Answer: Affirmed, with the qualification that if the jury find from the evidence that the deceased attacked Vincent Voychek with a deadly weapon and that Vincent Voychek killed Andy Stupka under such circumstances that a reasonable person might apprehend danger of his own life or great bodily harm in consequence.
    The commonwealth contends that there is no evidence to show that Andy Stupka assaulted Vincent Voychek out in the yard by the piano box or that there was any fight there, or that the alleged cutting with the knife was done in self-defense.
    January 3, 1911:
    The law is well settled that in cases of personal conflict it must appear, in order to establish excusable homicide in self-defense that the person attacked had retreated, either so far as he could, or so far as the fierceness of the assault would permit him. While a man may kill another in self-defense, he may not do so if he have other probable means of escape. When his back is to the wall, and the question is whether he shall die or his assailant, he may slay his assailant to preserve his own life, but, if he had probable means of escape without doing so, he must resort to such means before he is justified in killing his adversary. Human life is too sacred to be taken unnecessarily.
    In the present case the commonwealth contends that under the evidence at least four or five minutes elapsed from the time Vincent Voychek left the door of the house before Andy Stupka and Mike Sidor went out, and that even after Andy Stupka came out of the house with Mike Sidor with the lantern in one hand and the poker in the other, that the defendant had sufficient opportunity and time to flee and escape in safety without the necessity on his part of using the knife in self-defense. [12J
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Error assigned amongst others was (12) above instruction, quoting it.

      John T. Reinsel, with him John S. Shirley, for appellant.

      W. J. Geary, district attorney, for appellee, was not heard.
   Per Curiam,

The appellant was convicted of murder of the first degree in killing Andy Stupka. He had been a guest at Stupka’s house and left at night because of a quarrel or was ejected therefrom. A few minutes after his departure, Stupka, accompanied by a friend, went into the yard of his house carrying a lantern and armed with an iron poker to see if the appellant was lurking about the place. Some one sprang from an empty piano box in the yard and stabbed him with a knife, causing instant death. The appellant testified that he did not stab Stupka, and denied all knowledge of the crime. The charge contained a full, clear and accurate statement of the law, and carefully guarded every right of the appellant. A general exception was taken to it but the only specific objection made was to the qualification of the eleventh point. By this point the court was asked to charge that if the jury disbelieved the testimony of the appellant but believed that Stupka went in search of him armed with a deadly weapon, and found him and attacked him, and in the fight that followed was killed, the appellant should be acquitted. This point was affirmed with a full explanation of the law governing the right of self-defense. The point was bad in that it did not correctly state the law and because it was not founded on the testimony. It could not properly have been unqualifiedly affirmed and its refusal would not have been error. The answer complained of gave the appellant the advantage of having the jury consider a theory of his innocence wholly unsupported by proof and in direct conflict with his own testimony.

We find no merit in any of the assignments. The judgment is affirmed and it is directed that the record be remitted for the purpose of execution.


author: Mr. Justice Stewart,

text:
    Commonwealth v. Ballon, Appellant.

      Criminal law — Murder—Evidence—Previous attempt at robbery — Confession of confederate — Inference of assent.

    1. Where a prisoner indicted for murder confesses that he went with three others in the nighttime to the house of the deceased, remained outside the house until the killing took place, and then entered, but denies that he confederated with the men who did the killing, evidence is admissible to show that about three weeks previous to the murder he had conspired with two of the men who had done the killing to break into the deceased’s house to rob or steal, and had at that time actually made the attempt.
    2. On the trial of an indictment for murder, where the commonwealth shows that shortly after the prisoner’s arrest, but before information against him, a confession of a confederate had been read to him, and that he made no denial of the statements it contained with respect to his own complicity, but became visibly affected, the confession of the confederate may be read in evidence to the jury, but only for the purpose of supporting an inference of assent to the statements made therein from the defendant’s silence and manner.
    Argued Oct. 3, 1910.
    Appeal, No. 207, Jan. T., 1910, by defendant, from judgment of O. & T. Montgomery Co., on verdict of guilty of murder of the first degree in case of Commonwealth v. John Ballon.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Swartz, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree, upon which judgment of sentence was passed.

      Errors assigned were in the following form:
    1. The court below erred in allowing the jury to consider evidence of attempts to break and enter the murdered man’s house several weeks in advance of the date of the actual commission of the crime charged.

      January 3, 1911:
    2. The court below erred in allowing the confession of Felix Fare to be read to the jury, and in not instructing the jury that the circumstances attending the reading of the confession made it at least a quasi judicial proceeding, and therefore the prisoner’s silence or other actions were not competent evidence.

      Charles B. Connolly, for appellant.
    The general tenor of the decisions of the higher courts in this state would indicate that they confine the efforts of prosecuting ■ attorneys to proving prisoners guilty only of the crimes charged in the indictments. Other offenses not specifically charged cannot be introduced at the time of trial. Shaffner v. Com., 72 Pa. 60; Com. v. House, 223 Pa. 487.
    The confession of Fare was improperly admitted: Fife v. Com., 29 Pa. 429; Com. v. Johnson, 213 Pa. 607.

      Chas. D. McAvoy, assistant district attorney, with him J. B. Larzelere, Jr., district attorney, for appellee.
    Evidence of the prior burglaries is competent to show motive, purpose, identity and guilty knowledge: Com. v. Hutchinson, 6 Pa. Superior Ct. 405; Com. v. Ferrigan, 44 Pa. 386. Com. v. Biddle, 200 Pa. 640; Com. v. Major, 198 Pa. 290.
    Besides the proof of direct evidence, the conduct or demeanor of the prisoner, on being charged with the crime, or upon allusions being made to it, is frequently given in evidence against him: O’Mara v. Com., 75 Pa. 424; State v. Nash, 7 Iowa, 347; State v. Baldwin, 36 Kan. 1.
   Opinion by

Mr. Justice Stewart,

The victim of this murder was an old man named Johnson, who lived by himself in a humble home in Montgomery county; about two and one-half miles from Norristowli: • Among some he was reputed a man of miserly habits who had accumulated his earnings until they amounted to a considerable sum, which it was supposed he kept either upon his person or secreted about his house. By a written statement voluntarily made shortly after he was taken in custody, the defendant admitted that on the night the assault was made on the old man, and from the effects of which he died within a day or so thereafter, he in company with three other men went to Johnson’s home about midnight. Singularly enough this written statement in its entirety does not appear in either paper-book. All we have before us in regard to its contents is what appears in the judge’s charge. This so far as it goes we will assume to be a correct recital, since it is not made the subject of complaint. It does not appear that in the statement the defendant indicated any purpose, lawful or otherwise, that he and his companions had in visiting the house of Johnson on this particular occasion. That purpose whatever it was is to be derived from the evidence as to what there occurred, and the acts and declarations of the defendant which preceded the occurrence. In the statement he declares that in accompanying his three associates he did not know where they were going or what they had in mind to do. He admits that he did accompany them to the Johnson home, and that when there he saw one of the party break through a cellar window or screen, and saw this man, whom he knew to be armed with a pistol, and another of his companions, enter the cellar of the home through the opening thus made; that shortly thereafter he heard firing within the house, and that then the kitchen door being unfastened by those within, he and his remaining companion entered. He then describes the situation as he found it. The injuries from which the old man died had already been inflicted; he was lying in a chair, his head bleeding, and he had been robbed. The defendant declared that he bound up the wound with a handkerchief and then went to his home, leaving his three companions in the house. That the murder was committed in an attempt to rob or steal was established beyond possible contradiction. The only question was whether the defendant was confederated with the three men who broke and entered the dwelling, one of whom fired the fatal shot. Were there nothing in the case beyond the facts above recited the jury would have been warranted in finding a verdict of guilty in manner and form. The fact that the defendant accompanied three others two and one-half miles into the country at the hour of midnight to the home of an old man living alone, and, who so far as the evidence shows, sustained no relation to any of the parties, not even of acquaintanceship, while not sufficient perhaps in itself to associate him with the felonious purpose of those of the party who broke and entered the house, yet, unexplained, it needed but little by way of supplement to convince beyond reasonable doubt that he shared in the common purpose, despite his denial of guilty knowledge. That little was more than supplied by his own admission that when they arrived at the house, he stood in front of it and saw two of his companions break a cellar window and force an entrance into the house; that instead of at once withdrawing from the place he remained standing there, or walking about the house, until he heard shots fired within, and then entered himself through a door which those within opened to admit him. With these facts admitted, without qualification or explanation, no other inference was possible than that the defendant not only had. guilty knowledge of the criminal purpose of his companions, but that he was an active participant in their crime. The commonwealth, however, with a view to strengthen the inference of his guilty knowledge of the design of those he was with, to commit burglary, introduced evidence to show that about three weeks previous to the murder, the defendant had conspired with two at least of the party he was with on the night of the murder, to break into the Johnson house to rob or steal, and had actually made the attempt. The admission of this evidence is assigned as error. Its admissibility depends upon the purpose for which it was offered, and that purpose we have just stated. It was not to show depravity on the part of the defendant equal to the commission of burglary, by proving an earlier offense committed by him of like degree; but to support the contention of the commonwealth that his presence at the Johnson house on the night of the murder, was with intent to accomplish the robbery which he had shortly before attempted but in which he had failed. The evidence was clearly admissible.

One Faire was charged with complicity in the crime. After his arrest he made a voluntary confession in writing in which he declared among other things that the defendant was present and participated in the crime. Immediately following the confession the defendant was arrested, and the statement made by Faire was read to him in Faire’s presence. Separate trials were allowed these two men. On the trial which is here for review the commonwealth was permitted to show, that shortly after defendant’s arrest but before information had been made against him, the statement of Faire was read to him, and that not only did he make no denial of the statements it contained with respect to his own complicity, but became visibly affected, and several hours afterwards made his own confession above referred to. This ruling required the Faire confession to be read in presence of the jury. It is objected that it was incompetent. The only purpose of the evidence was to support an inference of assent to the statements made in the confession, from the defendant’s silence and manner; and its effect was so limited by the court in the plainest terms. There is no analogy between this case and that of Com. v. Johnson, 213 Pa. 607, which is relied upon as supporting the contention here made on behalf of the defendant. In that case the admission of the testimony was condemned on the ground that the incriminating statement which it was proposed to show had been made in the prisoner’s presence, was immediately followed by his denial of its correctness. Here the defendant remained silent under the charge, and an inference of assent could properly be derived from his silence. The case referred to simply reaffirms the general rule that statements made in the presence of one accused of crime, can be put in evidence against him only when his silence under the circumstances is ground for the inference of his assent to their correctness. Here sufficient ground was shown. There is nothing in that case which in any way conflicts with the ruling in this. Upon a careful review of the whole record we find no error committed. The assignments of error are overruled; the judgment is affirmed and the record remitted for execution.


text:
    Commonwealth v. Pacito, Appellant.

      Criminal law — Murder — Evidence —■ Malice — Premeditation — Insanity.

    1. A conviction of murder of the first degree will be sustained where the evidence, apart from any proof of the prisoner’s insanity, shows that the prisoner went in the evening to the house in which the murdered man was eating his supper, called him to the front door, drew a revolver, fired three shots all of which took effect, resulting in almost instant death, and that he then ran off, and while attempting to make his escape, threw his revolver into a graveyard.
    2. Where on the trial of an indictment for murder the trial judge in his charge first calls the attention of the jury to the contentions of the commonwealth, and immediately explains that the case of the commonwealth must be considered in connection with the defense of insanity set up by the prisoner, and then takes up the contentions of the prisoner, what is said in the charge relating to the commonwealth’s case must be considered in connection with the instructions as to insanity and the instructions as to the prisoner’s contentions.
    3. Where, upon the trial of an indictment for murder, the charge covers the general rules of law applicable to the defense of insanity, an omission to charge specifically on the subject of.delusions, with which the prisoner is alleged to have been afflicted, is not ground for reversing a conviction, where the record shows that no request was made at the trial for more definite instructions as to such delusions.

      Criminal law — Murder—Degree of murder.

    4. On the trial of an indictment for murder the trial judge cannot be charged with insufficiently instructing the jury as to the degrees, where he points out the distinction between the two degrees and specifically states that the burden is upon the commonwealth to show a deliberate intent to take life before the crime could be raised from murder of the second to the first degree.
    5. Under such circumstances the failure of the trial judge, when no request is made to so charge, to instruct the jury that the killing having been proved, the law presumes a murder no higher than of the second degree, is not reversible error. The facts and not the presumptions control.
    Argued Oct. 3, 1910.
    Appeal, No. 213, Jan. T., 1910, by defendant, from judgment of O. & T. Phila. Co., Nov. Sessions, 1909, No. 273, on verdict of guilty of murder of the first degree in case of Commonwealth v. Antonio Pacito.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment for murder. Before Ralston, J.
    The court charged in part as follows:
    In the first place, what was the crime committed in this case? Four of the witnesses who have testified saw the shooting. They were Maria Silvia, Joseph Cosky, Sebastian Polito and Tony Bonella. These witnesses, who were either in the house or in the street near the house, testified that they saw the prisoner fire the shots which killed the deceased. Mrs. Silvia testified that she was in the kitchen of the house, where the deceased had been sitting, and that the prisoner called to the deceased, who went into the doorway or into the front room when the prisoner called him. From her testimony and that of the other witnesses who saw the shooting, it appears that the prisoner was standing in the front doorway, and that when the deceased came out from the kitchen he shot him. They heard three shots, and each saw one or more of the shots fired. There can, I suppose, be no reasonable doubt that the deceased came to his death by the act of the prisoner.
    That crime, gentlemen, would be murder. It is not necessary for me to speak of other crimes, because we have to do with no crime but murder. A killing under such circumstances would undoubtedly be murder, and it is the duty of a jury in a trial for murder to determine whether it is murder of the first degree or of the second degree. As to the definition of these degrees of murder, I may say to you that in this case, if the crime is not murder of the first degree, it is murder of the second degree, and, if you do not find it to be murder of the first degree, you must necessarily; under the facts in this case, find it to be murder of the second degree.
    Murder of the first degree is a willful, deliberate and premeditated killing. This is the most heinous crime known, to our law. It means that the prisoner has had time to, and has made up his mind to kill the deceased, and that he has killed him in pursuance of that determination. As you know from everyday experience, it takes a very short time to form an intention. An intention may be formed almost instantaneously, and it matters not how long the prisoner may have had this intention; if he formed it almost immediately before and did intend to kill the deceased, and shot him with that purpose, it is murder of the first degree.
    In determining what the intention of the prisoner was, you must determine it as you would any other fact in your ordinary, everyday experience in life. In determining a man’s intention when he does a certain act, you may consider a declaration of his intention made by himself, if you have any evidence of such declaration. For instance, a man says that he is going to kill another and afterwards does it; from that you would conclude that he intended to kill the other person. There is no such declaration in this case to, guide you as to the intention of the prisoner. Ordinarily, you must judge a man’s intentions by his actions. Suppose you had been present, and had seen this deed committed as it has been described to you from the witness stand. Suppose that you had seen the prisoner fire a revolver into the forehead, or side of the head of the deceased, so that the bullet penetrated the brain and was found in the back of the head, and then fire another shot striking him in the chest under the collar bone, on the left-hand side, the bullet passing-through to the shoulder blade in the back, and then fire a third shot when, as I think one witness who saw it testified, the deceased had fallen, which shot penetrated his buttock, what would you say was the intention of the man firing those shots? The third.shot was probably a mere flesh wound, and although it may have done but little harm, you have the fact that he fired a third shot. If you had seen that, what would you conclude that he intended to do? What would be the result, in ordinary experience, of such an act? What would almost necessarily follow from shooting a man with a thirty-eight caliber revolver through the head, through the body, and then firing a third shot into his body when he was on the ground? What would be the almost inevitable consequence of such an act? In ordinary experience, it would result in the man’s death. If you saw a man commit such an act, would you be satisfied that he intended to kill the deceased — in short, that he intended the natural, probable and ordinary consequence of his action? From that evidence, if you find that the prisoner intended to kill the deceased and did so in pursuance of that intent, then he would be guilty of murder of the first degree. There is no dispute as to that testimony. It is uncontradicted.
    Verdict of guilty of murder of the first degree.

      Errors assigned amongst others were (2) portion of charge as above, quoting it; (4) because the learned court below erred in not referring in any portion of his charge to the specific form of insanity, to wit, delusional insanity, which the testimony on behalf of defendant tended to show might have existed in the defendant’s mind at the time of the shooting; (6) because the learned judge of the court below erred in not stating to the jury in his charge that the presumption of law in a case of murder rises no higher than a presumption that the crime is murder of the second degree.
    January 3, 1911:

      Chester N. Farr, Jr., with him Michael A. S'paiola, for appellant.

      Joseph H. Taulane, assistant district attorney, with him Samuel P. Rotan, district attorney, for appellee.
   Opinion by

Mr. Justice Elkin,

Appellant shot and killed the deceased for whose murder he was conyicted. Pacito in the evening came to the boarding house in which Rizzi, the murdered man, was eating his supper; called him to the front door, drew a revolver and fired three shots, all of which took effect, resulting in almost instant death. He then ran away and while attempting to make his escape threw the revolver into a graveyard. The manner of the shooting and the acts of appellant indicate malice, deliberation and premeditation. The killing was willful and brutal and unless excused by the plea of insanity set up as a defense, the crime committed was clearly murder of the first degree. The jury so found and the evidence is ample to sustain the verdict. It must be sustained unless there was. reversible error in the submission of the case. The first assignment is without substantial merit and need not be discussed. . The admission of the evidence complained of could not have done appellant any harm and certainly does not constitute reversible error. The second assignment relates 'to certain portions of the charge of the trial judge. It is argued that the language used was tantamount to binding instructions for a verdict of first degree murder and that it was in the nature of a comment upon the failure of defendant to take the stand as a witness. We do not so read nor understand the language used. To give it such an interpretation it would be necessary to. read into the charge words not used or to give the words used a meaning not intended. It would also mean that other parts of the charge must be disregarded and that the particular portions complained of should be taken as the final instruction to the jury. The court could not sum up both sides of the case at the same time and very properly began by calling the attention of the jury to the contentions of the commonwealth. This was followed almost immediately by explaining to the jury that what had been stated relative to the case of the commonwealth depended upon the fact whether the accused was sane or insane at the time of the shooting. All of which was entirely correct. The facts connected with the shooting were undisputed and appellant either committed a deliberate murder or did not commit any crime because being insane he did not know what he was doing. These questions were all submitted to the jury in the course of the whole charge.

The third and fourth assignments relate to the charge of the court on the question of insanity. It is not what the court said that is made the subject of complaint but what was left unsaid. The error alleged is that the trial judge failed to instruct the jury as to delusional insanity which was the specific form of mania relied on as a defense. In the charge insanity was said to be divisible into three general kinds or forms, that is, where the accused party did not know what he was doing; that he did not know the difference between right and wrong; or, that he was moved by an insane impulse, impossible of resistance, to commit the act. All that was said on the general subject of insanity, was clearly within the rule as laid down in our cases, but it is true no reference was made to the alleged fact that the defendant was afflicted with delusions of persecution leading him to imagine that many individuals were endeavoring to kill him and that as a result of these delusions he believed the deceased was about to kill him on the day of the shooting. This was the defense set up and several witnesses testified to facts from which such inferences might be drawn. But appellant had the full benefit of this defense in the argument of his counsel to the jury, and the learned trial judge instructed them that if the killing was the result of an insane impulse there should be an acquittal. If more definite instructions were required it was the duty of counsel to call the attention of the court to the matter by points or .requests. A point was submitted covering the particular matter complained of but it was withdrawn after the delivery of the charge. This indicates that at the time of the trial counsel for appellant was satisfied with the instructions given the jury, otherwise he would have insisted on having his points answered. While it may be stated as a general rule that it is the duty of the trial judge to charge fully upon the law as applicable to the facts, and this without regard to the points presented by counsel, yet when the instructions cover the general rules of law applicable to the case, the omission to charge upon a particular point not called to the attention of the court is not error: McMeen v. Com., 114 Pa. 300; Com. v. Caraffa, 222 Pa. 297. Failure to elaborate questions of law upon which the court has charged is not error when no points are submitted or requests made asking for more definite instructions.

The sixth assignment raises the question whether error was committed in not specifically charging that the commonwealth having proved the killing, the law presumes the homicide to be murder, but that this presumption rises no higher than murder of the second degree. In homicide cases the burden is on the commonwealth to prove the necessary facts to raise the degree of the crime from murder of the second degree to murder of the first degree. In the case at bar the facts shown by the testimony are clearly sufficient for this purpose, if the appellant was of sane mind and knew what he was doing. The learned trial judge did charge that, “in order to raise the crime of murder from the second to the first degree, it is the duty of the commonwealth to convince you beyond a reasonable doubt that there was a willful, deliberate and premeditated killing.” This followed moré definite instructions as to what constituted murder of the first degree and murder of the second degree to which no objection is made. With a charge pointing out clearly the distinction between the two degrees of murder and an instruction that the burden was on the commonwealth to show a deliberate intent to take life before the crime could be raised from murder of the second to the first degree, the jury had an intelligent understanding of the law applicable to the facts of the case, and this is all that is required. Under such circumstances failure of the trial judge, when no request is made to so charge, to instruct the jury that the killing having been proved the law presumes a murder no higher than of the second degree is not reversible error. The facts and not the presumptions control. The remaining assignments are technical and without substantial merit.

A careful review of the whole record has convinced us that the appellant had a fair and impartial trial. He was represented by able and experienced counsel who defended him with skill and intelligence. His cause has been argued with marked ability here but notwithstanding all that has been pressed upon us by his counsel we fail to discover any error that would warrant a reversal with a venire. The facts were for the jury and the verdict is amply sustained by the evidence.

Judgment affirmed and record remitted in order that execution may be had according to law.


text:
    Rager, Appellant, v. Pennsylvania Railroad Company.

      Negligence — Railroads—Passenger—Standing on platform — Contributory negligence.

    Where a passenger stands on the. platform of a vestibule car when there is standing room inside the car, and vacant seats in the forward car, and is asked by the brakeman to go inside, but declines to do so, and shortly thereafter, when the doors are opened upon approaching a station, the passenger falls from the car in some unexplained way, no damages can be recovered from the railroad company for his death resulting from the fall.
    Argued Oct. 3, 1910.
    Appeal, No. 74, Oct. T., 1910, by plaintiffs, from order of C. P. Cambria Co., Sept. T., 1908, No. 447, refusing to take off nonsuit in case of Sarah A. Rager et al. v. The Pennsylvania Railroad Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband.
    The opinion of Reed, P. J., specially presiding, stated the circumstances of the accident to be as follows:
    The deceased with a number of others attended a celebration of some kind at Johnstown, Pa., the evening of October 31, 1907. They resided at South Fork, a short distance from Johnstown, and returned home on the train leaving Johnstown shortly after eleven o’clock that night. It was a vestibule train and the coaches were more or less crowded. The evidence, however, failed to show the number of cars composing the train, or whether all were crowded or not. The deceased entered the train between the first and second coaches, and with several others remained in the vestibule between these two coaches. He made no effort to enter either coach, but remained in the vestibule until the time of the accident which resulted in his death. He with the others standing in the vestibule, shortly after the train left Johnstown, was requested by the brakeman in charge of the first and second coaches to go inside, but the request was not complied with. When the train was nearing the South Fork station the brakeman. asked the deceased and others who were standing on the trapdoor in the vestibule next the second coach to get off the trap so that he could open the door. They moved off and the brakeman opened the floor and outside doors preparatory for the discharge of passengers at the station which the train was .approaching. The doors on the station side were opened both at the rear end of the first coach and at the front end of the second coach, and when opened the train was within about one-half mile of the station. At the rate it was running, it would take about one minute to reach the station. After opening these doors the brakeman was required to pass through the second coach and make similar preparations for the discharge of passengers by opening the doors between the rear end of the second and the front end of the third coaches. The accident occurred immediately after the brakeman opened the floor and outside doors at the front end of the second coach. None of the witnesses explained just how it happened.
    January 3, 1911:
    The court entered a compulsory nonsuit which it subsequently refused to take off.

      Error assigned was refusal to take off nonsuit.

      John H. Stephens, with him M. B. Stephens, for appellants.

      H. W. Storey, for appellee.
   Per Curiam,

A nonsuit was entered on the following state of facts developed by the plaintiff’s testimony. Her husband was a passenger on a train composed of vestibule cars, and stood on the front platform of the second car, when there was standing room inside the car, and vacant seats in the first car. He was asked by the brakeman in charge of these two cars to go inside, but declined to do so. When the train was half a mile from a station, at which it was to stop, he and others who were standing on the platform, were asked by the brakeman to step off of the floor door that covered the steps. This request was complied with, and the brakeman raised the floor door and opened the outside door. Immediately thereafter the plaintiff’s husband fell from the train and was killed. What caused him to fall did not appear. He rode on the platform, not from necessity, but from choice, when there was room inside the cars, and he disregarded the request of the brakeman to go inside and he remained on the platform when he knew the doors were open; he fell from some cause unexplained.

Under these circumstances there was no ground upon which the defendant could have been held liable for his death: Hopkins v. Railroad Co., 225 Pa. 193. It provided a place in which he could ride in safety, and it did nothing except that which was necessary in the operation of its train, to increase the risk that he had voluntarily assumed.

The judgment is affirmed.


text:
    Pearce, Appellant, v. Walters.

      Judgment — Issue—Evidence—Principal and agent.

    On the trial of an. issue to determine the validity of a portion of a judgment, where the plaintiff’s claim is based upon an agreement alleged to have been made with defendant’s agent by which the defendant was to be liable for the whole amount of the judgment although such amount was much more than the amount which the defendant had borrowed from the plaintiff, a verdict and judgment for plaintiff for only the amount of the actual loan will be sustained where the evidence shows that if the agreement was made by the defendant’s agent, it was made without the defendant’s knowledge or authority, and through collusion between the agent and the plaintiff.
    Argued Oct. 4, 1910.
    Appeal, No. 152, Oct. T., 1910, by plaintiff, from judgment of C. P. Cambria Co., Dec. T., 1907, No. 186, on verdict for defendant in case of Use of T. J. Pearce v. Emma Walters.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ;
    Affirmed.
    Issue to determine the validity of a judgment entered on warrant of attorney for $7,350. Before O’Connor, P. J.

      January 3, 1911:
    The opinion of the Supreme Court states the case.
    Verdict and judgment for plaintiff in the sum of $4,195.74. Plaintiff appealed.

      Errors assigned were various rulings and instructions.

      H. W. Storey, with him Alvin Sherbine, for appellant.

      S. L. Reed, with him I). P. Weimer, for appellee.
   Per Curiam,

The issue in this case was to determine the amount due by the defendant on a judgment entered on a warrant of attorney, on her note for $7,000. The plaintiff loaned the defendant $4,067, to pay the purchase money of a house and lot on which she had an option and it was conceded at the trial that this was the only money furnished by the plaintiff. He sought, however, to maintain the lien of the judgment for the full amount for which it was entered, because of an oral agreement alleged to have been made with the defendant’s agent whereby she was to convey the property to him in satisfaction of the judgment and in case of her default, the judgment was to stand against the property for the full amount for which it was entered. The effect of the agreement was to give the plaintiff the right to purchase the property of the defendant, after she acquired title thereto, at the price she had paid, with a penalty in case of her refusal, of nearly $3,000, to be enforced by a judgment entered on her note given for money loaned.

The validity of the agreement set up by the plaintiff need not be considered. The jury found that if made by her agent, it was without her knowledge or authority and through collusion between him and the plaintiff.

The judgment is affirmed.


author: Mr. Justice Brown,

text:
    Reese, Appellant, v. Pennsylvania Railroad Company.

      Beneficial associations — Railroad Employees’ Relief Association— Damages — Release—Public policy — Negligence.
    Where an application for membership in a railroad employees’ relief association stipulates that the member’s acceptance of benefits for injuries shall operate as a release of all claims for damages against the railroad company arising from such injuries which could be made by or through him, a member who accepts benefits for an injury sustained in the course of his work cannot in the absence of fraud inducing the acceptance of the benefits claim any other or additional damages for such injury. Such a contract of membership is not void on the ground of public policy.
    Argued Oct. 4, 1910.
    Appeal, No. 153, Oct. T., 1910, by plaintiff, from judgment of C. P. Armstrong Co., Sept. T., 1909, No. 24, on verdict for defendant in case of Charles Reesé v. Pennsylvania Railroad Company, a corporation, lessee or owner and operating the Allegheny Valley Railway Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Patton, P. J.
    The facts are stated in the opinion of the Supreme Court.
    The court ga've binding instructions for defendant.
    Verdict and judgment for defendant. Plaintiff appealed.

      Error assigned was in giving binding instructions for defendant.

      C. E. Harrington and Harry C. Golden, for appellant.

      Qrr Buffington, with him O. W. Gilpin, for appellee.

      January 3, 1911:
   Opinion by

Mr. Justice Brown,

Charles Reese, the plaintiff below, was a fireman in the employ of the defendant company. On January 2, 1907, he applied to its relief association for membership. His application was accepted and his dues were paid up to August 7, 1907, when he sustained the injuries complained of in this action. After being injured he received benefits from August 6,1907, to April 3, 1908. On April 2, 1908, he was notified by Doctor Sahm, the surgeon for the relief association, to report for examination of his injuries. After having so reported, the doctor gave him what is called a “return to duty card.” He returned to duty and, having worked nearly six months, received a furlough for sixty days, but again resumed work as a fireman and lost one of his legs in March, 1909, while in the employ of the defendant company. The claim in this case, however, is not for the injuries sustained by the appellant in 1909, but for those suffered on August 7, 1907, and his contention is that he is entitled to recover because he was not in a physical condition to return to work when Doctor Sahm gave him his return to duty card. The complaint upon which he seeks to recover is that, if the doctor had examined him as a prudent physican should have done, it would have been discovered that he was not fit to return to duty, and in view of the alleged fraud practiced upon him by the doctor, he now contends that his agreement when he became a member of the relief association and what he did under it do not stand in the way of his right to compel his employer to pay him.

What the surgeon for the relief association did on April 2, 1908, is not to be regarded as involved in this controversy. If the appellant were seeking to recover benefits withheld from Mm by the association as the result of his examination by the surgeon, his complaint of the conduct of that officer might be pertinent, though, under the sixty-fifth regulation of the association, it seems that if he was dissatisfied with the decision of the surgeon, his right was to appeal to the superintendent of the relief department, and from the latter’s decision, if unsatisfactory, to an advisory committee; but on this we need not dwell. The single question before us is whether the appellant, by his own act, has precluded himself from recovering for the injuries for which he sues.

Immediately after he was injured he began to avail himself of the benefits of the relief association, and for a period of eight months continued to do so. In the application for membership in the relief association signed by the appellant there was a stipulation that his acceptance of benefits for injuries should operate as a release of all claims for damages against the company arising from such injuries which could be made by or through him, and he accepted membership under a regulation of the association which provided that his acceptance of benefits should operate as a release and satisfaction of all claims against his employer for damages arising from injuries while in its service. Neither when the appellant first accepted the benefits nor at any time during the period that he received them is it pretended that any fraud was practiced upon him to induce him to do so. A very different situation would be presented if it appeared that, by fraud or deception practiced upon him, he was induced to take the benefits, operating as a release from him to the defendant company for any claim he might have had for the injuries that resulted from its negligence; and this is the distinction which seems to be overlooked in pressing his present contention. With full knowledge of the effect his acceptance of the benefits would have upon any claim that he might have had, against his employer for its negligence resulting in the injuries to him, he promptly accepted the benefits and continued to take them for months. His first acceptance of them, in the absence of any fraud or deception inducing him to take them, was an end of his right to recover damages from the defendant. Nothing in his contract of membership in the association barred his right to recover, but what he voluntarily did after he was injured— the effect of which he declared in his application for membership should be a release to the company — is the release upon which, under our own cases and those in other jurisdictions, the defendant has a right to rely for protection from any liability. This case is so squarely ruled by Johnson v. Philadelphia & Reading R. R. Co., 163 Pa. 127, and Ringle v. Pennsylvania R. R. Co., 164 Pa. 529, that nothing more can be said about it, unless it be to call attention to Frank v. Newport Mining Co., 11 L. R. A. (N. S.) 182, in the notes to which cases from other states are referred to, holding, like our own, that the contract of membership in the relief association entered into by the appellant is not void on the ground of public policy, and that it is not such contract, but the acceptance of benefits, that constitutes the release.

The assignments of error are overruled and the judgment is affirmed.