author: Mr. Justice Potter,

text:
    Burns v. Vesta Coal Company, Appellant.

      Negligence — Master and servant — Mines and mining — Goal mining— Neglect to warn employee of danger.

    1. It is the duty of the master to warn his servants of new or increased dangers caused by a change in his machinery, appliances or place or methods of work, and he will be held liable for injuries resulting from his neglect of duty in this respect.
    2. Where a man works in a coal mine for two days on a motor which carries him safely through the entries when seated upon the front end of the motor, and he is then transferred to a larger and higher motor, having no seat in front, and operated in another and unfamiliar part of the mine, and the workman is not warned that he could not safely ride on the top of the motor because of low places in the roof, and as a result he is thrown from the motor at a depression of the roof, he may recover from his employer damages for the personal injuries sustained.
    3. If a particular practice of mining is a dangerous one, and an injury results therefrom to an employee, the employer in a suit against him for damages by the employee, cannot show that the practice was customary in other mines. Customary negligence is no excuse in such a case.
    Argued Oct. 15, 1908.
    Appeal, No. 54, Oct. T., 1908, by defendant, from judgment of C. P. Washington Co., Feb. T., 1907, No. 101, on verdict for plaintiff in case of William J. Burns v. The Vesta Coal Company.
    Before Mitchell, C. J., Fell, Brown, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Taylor, J.
    The circumstances of the accident are stated in the opinion of the Supreme Court.
    At the trial the court refused several offers of testimony to the effect that the ordinary method of constructing entries in coal mines was to make the height only sufficient to permit the passage of loaded cars of coal without striking the roof. [3, 4]
    When Joseph Edwards was on the stand he was asked this question:
    “Q. Mr. Edwards, considering that in this mine eight-ton motors were used for gathering coal, I ask you whether it was a safe construction of the entry to permit this roof at this point on ten butt C to remain at the height of four feet nine inches and five feet? A. Yes, sir.”
    Mr. Ewing: Object to the question: he can testify to what the facts are there.
    The Court: It is a fact for the jury to say whether it was safe or not, they can say how long they used it that way, and this was the only time they had an accident that resulted from such circumstances as claimed here and anything relating to that. Let the jury draw the inference as to whether both parties performed their duty. Bill sealed for defendant. [5]
    William Gillingham, defendant’s witness, being on the stand, was asked this question:
    “ Q. What was the proper position for a snapper to be in that was riding on the front end of the motor going down through ten butt C, or a similar place, after a trip?”
    Objected to.

      The Court: We will sustain that objection; you can ask him how his men rode; that is a conclusion of the witness that the jury must arrive at from all the circumstances of the case. Bill sealed for defendant. [6]
    The court charged in part as follows:
    [He might be required to take notice of the fact, as an incident of his employment, that a mine varies in height at different places from one cause and another, but if there was a very low place, so low that it had scooped the coal off of cars at times, other things touched it that were on the motor beside the men, that there was such a place as that in the mine, then it is for you to say whether or not it was the duty of his employer or the employer of laborers to work in a place of that kind to give them special notice that there was such a place there if they required them to work in there, to go in there, when they had never been in there.] [7]
    [Now was there anything, gentlemen of the jury, any particular place on this motor that this man, with his limited knowledge of motors and snappers’ positions, would be required to take? Was there any seat provided for him? Had he been riding on any other car that there was a seat on and when he mounted this eight-ton motor on which there was no seat, would he as a reasonable and prudent and careful man sit in the position on that car where the seat was on the other where he could perform the duties of snapper properly? All those things have to be taken into consideration by you in determining whether or not there was any negligence here on the part of the plaintiff that would defeat his rights to recover if you find the defendant was negligent.] [8]
    But while he was intent, as he claims, in watching the track ahead of him, assuming, as he had a right to assume if he had no notice to the contrary and had no knowledge of his own, that the roof was high enough for him in that position all the way through there, if he was sitting as he was, to prevent his head coming in contact with it, his head struck a low place in the roof and he was knocked off the motor and it ran over his leg.] [9]
    Defendant presented these points:

      8. Under all the evidence the verdict of the jury must be for the defendant. Answer: Refused. Now, we say, gentlemen of the jury, on that point, further, that it having been testified in this case, and I believe on the part of the defendant, that this low place in this mine was generally known. Now, “ generally known,” you would have a right to assume and the court assumes when a witness testifies that generally known to the employees who had been working in that mine and to the owners and operators, to mean both, because they had the means of knowing it; it was a stationary, fixed thing, it did not happen in a nighttime or by the fall of slate or anything of that kind, but it was a fault in the geological formation, I would understand,.or the roof by the absence of slate above the coal at that point, this sandstone, as they call it, coming down and at that low place either required them to shoot it out to get through or to dig out in the bottom sufficient to let them through to continue the driving of the entry under and at right angles to other entries. So, if the jury find from the testimony of that kind that the mine owners or operators knew or ought to have known under all the circumstances that are testified to in this case that this low roof existed in there and coal was being dragged off, then it makes no difference, the plaintiff does not have to invoke the aid of the “Employers’ Personal Liability Act” which was passed last session of the legislature. An offer of testimony was made by the defendant during the trial of the case which, if we would affirm, or would have admitted might have resulted in taking the case away from you, because that is under the bituminous mining Act of May 15,1893, P. L. 52, where the legislature of this state virtually took out of the control of the owner of a coal mine his management of the mine by saying, “You shall have a fire boss, you shall have a pit boss, you shall have a superintendent and shall have a mine foreman,” etc. The state by act of assembly created all those positions, and all that the law required a mine owner or operator to do was to employ competent men who had certificates of their fitness for said position under the mine inspectors of the mining board, and if somebody was hurt through their negligence why the state, having assumed to run that man’s business to this extent, relieved the owner of the mine from the liability and you could only hold him in case he employed incompetent officials or had knowledge that one that he had employed was incompetent, became incompetent and he had knowledge of it. But we leave it to you, gentlemen of the jury, to say whether or not such an obstruction as this faulty formation was which projected down from the roof of that mine and left a distance at this particular point, as the plaintiff claims, the lowest point where he claims his head was struck four feet eight inches, — seven inches, or whatever it was, and as claimed by the defendant four feet nine inches, maybe by another witness or two, five feet one inch,- and it existed there since this mine was opened or since the entry was driven through that formation, then the operators and owners of that mine would be charged with the general knowledge of employees and officers of the mine that this alleged obstruction was there. [10]
    6. If the jury believe from the evidence that the entry was finished in the ordinary manner and that’the plaintiff knew, from his former experience as a miner and driver, that the entry roof would be of varying height, they must find that the plaintiff assumed the risk as one ordinarily attendant upon the employment and the verdict must be in favor of the defendant. Answer: That would be affirmed, if you find that it was such a low place in that mine as was ordinary and common and that so generally known as to bind this man, whether he had been through it personally or not, but knew about the mine. [1]
    7. The Act of assembly approved June 10, 1907, P. L. 523, commonly known as the “Employers’ Liability Act,” has no retroactive effect and has no application to this case. Answer: We may affirm this point; whether the plaintiff may or may not recover in this case does not depend on the question of law raised by the point. Nor that said act may be so construed as to relieve the defendant from liability in this case if the jury find from all the evidence that the owners or operators of the mine in which the plaintiff was injured personally knew or reasonably from all the circumstances ought to have known that this low place in the roof complained of was there, and that it was a menace to the lives or limbs of its employees, lawfully on its electric motors while traveling through said mine and through said places while in the performance of their duties and in the exercise of ordinary care under the circumstances. [2]
    Verdict and judgment for plaintiff for $7,500. Defendant appealed.

      Errors assigned were (1, 2, 7-10) above instructions, quoting them; (2-6) rulings on evidence, quoting the bill of exceptions.

      Andrew M. Linn, for appellant,
    cited: Cunningham v. Bridge Works, 197 Pa. 625; Leonard v. Herrmann, 195 Pa. 222; Titus v. R. R. Co., 136 Pa. 618; Boyd v. Harris, 176 Pa. 484; Northern Central Ry. Co. v. Husson, 101 Pa. 1.

      Frank Ewing, with him John H. Murdoch, for appellee.
    March 1, 1909
   Opinion by

Mr. Justice Potter,

In this action the plaintiff sought to recover damages for personal injuries, resulting, as alleged, from the negligence of the defendant. It appears from the evidence that in the operation of its coal mines by the defendant, the coal is loaded in cars which are assembled in trains in the mine by electric motors, and these trains are then hauled out by other larger and more powerful motors. The gathering motors were equipped with a seat in the rear for the motorman, which seat was low enough to require a portion only of the body of the motorman to extend above the platform of the motor. A similar seat on the front end was provided for the use of an assistant to the motorman, who was called the “snapper,” and whose duty it was to throw switches, make couplings, and keep a general lookout ahead on the track, and in various ways assist the motorman. The “snapper” usually rode on the front end of the motor. When the plaintiff applied to the defendant company for employment he stated in answer to a question, that he had never worked with a motor, but he had been a mule driver in a coal mine and had discharged duties in gathering and handling cars, somewhat similar to those of a “snapper.” He was then given employment as a “snapper” and went to work on a five and a half ton motor. After working two days he and the motorman with whom he was working were assigned to an eight-ton motor, constructed differently and with a higher platform or top, and without a seat for the' “snapper” such as had been provided on the motor upon which he was first engaged. The evidence tends to show that no instructions were given to plaintiff as to where he should ride upon the larger motor, and that no warning was given him against the danger from low places in the roof of the mine, which would not permit of passage while sitting upon the top of the motor; nor does it appear that he had any knowledge of the existence of such low places, which were liable to catch and injure him. Prior to the accident the plaintiff sat upon the top of the front end of the motor, and while in this position, as it was moving to the place in the mine where work was to begin, and while he was attending to his duties, looking ahead for switches and obstructions on the track, a low place in the roof was encountered which would not permit of passage without crowding plaintiff from the motor, and in consequence he fell on the outside of the track, with one leg over the rail, and was run over and so injured that amputation of the leg became necessary.

Upon the trial, binding instructions in favor of the defendant were refused, and the trial judge submitted to the jury the questions of the negligence of the defendant and the contributory negligence' of the plaintiff. The verdict was for the plaintiff, and from the judgment entered thereon, the defendant has appealed, and has filed ten assignments of error. The first, second and tenth relate to answers to points. In the first assignment it is alleged that the court erred in refusing to affirm without qualification defendant’s sixth point, which was as follows: “If the jury believe from the evidence that the entry was finished in the ordinary manner, and that the plaintiff knew, from his former experience as a miner and driver, that the entry roof would be of varying height, they must find that the plaintiff assumed the risk as one ordinarily attendant upon the employment, and the verdict must be in favor of the defendant.” The trial judge answered this by saying, “That would be affirmed, if you find that it was such a low place in that mine as was ordinary and common, and that so generally known as to bind this man, whether he had been through it personally or not, but knew about the mine.”

The answer gave to the defendant the benefit of more than it was entitled to. For the negligence of which complaint is made, lay in the fact of placing the plaintiff upon a motor too large to permit him to ride upon it and pass through certain portions of the mine without danger of being crushed, or crowded off, and that without giving him warning of the danger. Certainly the defendant has no reason to complain of this instruction, and we therefore dismiss the first assignment of error.

Complaint is made in the second assignment that the trial judge did not affirm without further comment the seventh point, in which the court was requested to charge the jury that the Employers’ Liability Act of June 10, 1907, P. L. 523, is not retroactive and had no application to this case. The point was properly affirmed, but the trial judge added a confused statement which could hardly have been intelligible to the jury. Its relevance is not apparent, but we do not see in the statement anything which would necessarily mislead the jury or warrant a reversal of the judgment.

The third and fourth assignments are to the refusal of defendant’s offer of evidence to show that in mines where a fault in the roof like the one in question occurred, it was the ordinary method of constructing entries to make the height only sufficient to permit the passage of loaded cars of coal, without striking the roof and dislodging the coal from the cars. This evidence was properly refused, If the practice was a dangerous one, it mattered not that it was common. Customary negligence would be no excuse for the defendant. Besides, the negligence charged here was not the maintenance of the low roof alone, but the failure to warn plaintiff against the peril of attempting to pass under it while riding upon the large motor provided for use in the mine. These assignments are therefore dismissed.

In the fifth assignment counsel for appellant complains of the exclusion of a question, which the witness answered before the objection was made. The answer was not stricken out, so that defendant was not in any way harmed by the ruling, even if it had been erroneous, which it was not. In the sixth assignment counsel for appellant complains of the overruling of a question as to the proper position for the “snapper” to occupy while riding upon the front end of the motor. The form of-the question was objectionable, as it called merely for the opinion of the witness. He was allowed to state the facts as to the manner in which his men rode, and this was all that the defendant was entitled to. We see nothing objectionable in the portions of the charge assigned as error in the seventh, eighth and ninth specifications. The court referred to evidence tending to show that the roof was so low at one place as to scrape coal off the cars at times, and left it to the jury to say whether or not prudence required the employer to give notice of the existence of such a place, to an employee who had never been in that portion of the mine before. He further asks the jury to say whether, under the circumstances of the change from one motor to the other, it was reasonable and prudent for the plaintiff to sit where he did, on the higher motor. We think the evidence was sufficient to justify the remarks of the court as to all these various phases of the case. The comments in connection with the refusal of the eighth point, which requested binding instructions for the defendant, were by no means clear, but taken in connection with the general charge we do not think that the jury could have been misled by them.

It is evident that the change from the smaller motor, provided with a low seat, to the larger and higher motor, which was without any seat, increased the danger to the employee whose duty required him to ride upon the motor. The danger was intensified by the inexperience of the plaintiff, and his lack of acquaintance with the'entries in the mine. It was a fair question for the jury to determine, whether under the circumstances prudence did not require the employer to warn the plaintiff to look out for the low places in the roof. This was particularly true because of the increased danger arising from the change from the smaller to the larger motor, the latter taking more space in the entry, and being without a seat for the “snapper.” “It is the duty of the master to warn his servants of new or increased dangers caused by a change in his machinery, appliances or place or methods of work, and he will be held liable for injuries resulting from his neglect of duty in this respect:” 26 Cyc. L. & Pr. 1169. The same principle is more fully stated in 4 Thompson on Negligence, sec. 4066: “ If the master makes any change in his business or in the structure of his premises, which exposes the servant to increased danger, of the nature and extent of which the servant is not aware, the master is bound, in the exercise of the same duty, to instruct the servant as to the character of the new risks to be run, unless they are open and visible, or such as by the exercise of ordinary care the servant will see.”

In the case at bar the plaintiff had been working in the defendant’s mine but two days, and during that time he rode upon a motor which carried him safely through the entries, when seated upon the front end of the motor. He was then transferred to the larger motor without warning that he could not safely ride upon it through the entries. He testified that he had not before been through the entry where he was hurt, and that he had no knowledge of, nor any notice of, the low place in the roof, and no warning of danger. Upon the record as a whole, we are of opinion that the case was properly for the jury, and in the manner of its submission we see no substantial error which would justify a reversal of the judgment. It is therefore affirmed.


source: Caselaw Access Project

author: Mr. Justice Elkin,

license: Public Domain

text:
    Williams v. Monongahela Connecting Railroad Company, Appellant.

      Negligence — Railroads—Standing on pilot of engine — Contributory negligence.

    1. To ride upon the pilot in front of an engine without a necessity for so doing, or unless the railroad company by its rules authorizes employees to ride on the pilot in certain instances, or where provision is made for the employee to stand in front of the engine for the convenient discharge of duty, as in the case of a shifting engine used in yards where trains are made up, and for other like purposes, is negligence per se which will defeat a recovery for injuries received in collisions or other like causes.
    2. A freight conductor who is injured by being thrown from the pilot of a moving engine where he was standing, cannot recover from the railroad company owning the track upon which the engine was being run, where it appears that the conductor was in the employ of the railroad company owning the engine, that the engine had no standing board in front of the pilot, that the conductor took his stand voluntarily on the pilot without any duty to perform thereon, and that he had on all previous occasions gone ahead of the engine in performing a similar duty.
    Argued Oct. 22, 1908.
    Appeal, No. 82, Oct. T., 1908, by-defendant, from judgment of C. P. No. 3, Allegheny Co., May T., 1904, No. 237, on verdict for plaintiff in case of William R. Williams v. Monongahela Connecting Railroad Company.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Trespass to recover damages for personal injuries. Before Kennedy, P. J.
    The facts of the case are stated in the opinion of the Supreme Court.
    Verdict and judgment for plaintiff for $3,029. Defendant appealed.

      Errors assigned amongst others were in refusing binding instructions for defendant.

      Wm. A. Challener, with him James C. Gray and Clarence Burleigh, for appellant.
    — Plaintiff was guilty of contributory negligence: Downey v. Ry. Co., 28 W. Va. 732; Thane v. Traction Co., 191 Pa. 249; Woodroffe v. Roxborough,. etc., Ry. Co., 201 Pa. 521; Bainridge v. Traction Co., 206 Pa. 71; McDade v. Rapid Transit Co., 215 Pa. 105; Harding v, Phila. Rapid Transit Co., 217 Pa. 69; Warden v. R. R. Co., 94 Ala. 277 (10 So. Repr. 276).

      F. W. Miller, with him John 8. Robb, for appellee.
    — The plaintiff’s duty required him to be upon the pilot at the time he was hurt and it was the uniform custom for employees discharging the duties the plaintiff was performing at the time the accident happened and was immediately thereafter to perform, to ride upon the pilot. The plaintiff could therefore not be held guilty of contributory negligence by reason alone of his being upon the pilot no matter what accident occurred. Even if the plaintiff, however, could be deemed guilty of contributory negligence at all by the mere reason that he was standing upon the pilot, it would only be with reference to accidents which he would be bound to foresee in the ordinary course of events, such as a collision. An accident such as the one which happened, due to the cause which gave rise to it, was not one which the plaintiff in any event was bound to foresee. The rule as to proximate cause is just as applicable to contributory negligence as to negligence itself: Gray v. Scott, 66 Pa. 345; Kibele v. Phila., 105 Pa., 41; R. R. Co. v. McCloskey, 23 Pa. 526; Baughman v. R. R. Co., 92 Pa. 335; Penna. R. R. Co. v. Zink, 126 Pa. 288; Hammer v. Steel Car Co., 204 Pa. 594.
    March 1, 1909:
   Opinion by

Mr. Justice Elkin,

Appellee was not an employee of appellant company. He was a freight conductor of the transporting railroad company which in making up its train used the line of the defendant railroad company. The engine on the pilot of which he was riding at the time of the accident belonged to the transporting railroad company. The appellant had constructed a short line of railroad to connect the tracks of the transporting railroad with the furnaces from which the finished product was taken out and to which raw materials and other freight were carried in. The only duty resting upon the appellant company . was to provide a reasonably safe roadbed and tracks over which the engine, trains and employees of the transporting railroad company could be carried into and out of the yards of the furnace company. It is contended that appellant failed in the performance of its duty in that it did not maintain its roadbed and tracks in a safe condition for the purpose intended. As to the alleged negligence of the defendant the evidence is meagre and somewhat indefinite, but on the whole we think it was sufficient to submit to the jury on this branch of the case. The burden, however, was on the plaintiff in the court below not only to establish the negligence of the defendant, but to make out a case free from contributory negligence on his part. Did he meet this burden? In his testimony in chief the plaintiff described the position occupied by him on the pilot of the engine, commonly known as the cowcatcher, at the time of the accident. He stood with his right foot on the angle iron that formed the base of the pilot, his left foot resting higher on one of the bands of iron running around the pilot and being part of it, his left hand resting on the wooden cross tie to which the pilot was attached, and his right hand hanging loosely by his side. While in this position, the engine moving at a moderate rate of speed, and while' crossing over the tracks of a street-railway, there was a slight sinking of the tracks on which the engine was moving which caused the nose of the pilot to dip and strike one of the rails of the defendant railroad. The jar or jolt caused the plaintiff to lose his balance, and he was thrown from the pilot on which he stood and received the injuries for which he seeks to recover damages. It must therefore be determined whether under these circumstances he has made out a case free from contributory negligence. This question in one form or another has been passed upon in many jurisdictions, and it has been uniformly held that to ride upon the pilot in front of an engine without a necessity for so doing, or unless the railroad company by its rules authorizes employees to ride on the pilot in certain instances, or where provision is made for the employee to stand in front of the engine for the convenient discharge of duty, as in the case of a shifting engine used in yards where trains are made up, and for other like purposes, is negligence per se which will defeat a recovery for injuries received in collisions or other like causes: Warden v. L. & N. R. R. Co., 94 Ala. 277; Railroad Co. v. Jones, 95 U. S. 439; Doggett v. Railroad Company, 34 Iowa, 284; Robertson v. Railroad Co., 22 Barb. (N. Y.) 91; Glover v. Scotten, 46 N. W. Repr. 936; Kresanowski v. Railroad Co., 18 Fed. Repr. 229; Hickey v. Railroad Company, 96 Mass. 429; Bryant v. Central Vermont R. R. Co., 56 Vt. 710.

We do not understand that the authority of this rule is seriously questioned by the learned counsel for appellee, but it is earnestly contended that the circumstances of the present case are such as to make the general rule inapplicable and to permit a. recovery under what may be termed an exception to the rule. In other words, the right to recover here is based on the theory that the engine in use at the time of the accident was engaged in switching, and must, therefore, be considered a shifting engine, and that the injured conductor in the performance of his duties had a right as a matter of convenience or custom to stand upon the pilot. The engine did not belong to appellant, and it could not be charged with neglect of duty in failing to furnish a proper shifting engine with a standing board in front of it, nor was the appellee an employee of appellant, and it could not exercise any control over him in the performance of his duties. There was nothing in the construction of the engine itself, -such as a standing board, to invite an employee to take the dangerous position on the pilot, but it is sought to justify the appellee on the ground of custom. Several witnesses testified that it was customary for employees to stand on the pilot while the engine was passing down into the furnace yards. There is no evidence to show that the railroad company authorized its employees to so ride, or that there was any necessity for so doing. The appellee, who had many years of experience in railroad work and who had been engaged a considerable length of time as freight conductor, testified that he had usually walked down ahead of the engine while performing his duties, and that this was the only occasion on which he had attempted to ride on the pilot. He could not therefore say that he was misled by a custom which in his own experience he had never availed himself of before, and which he had disregarded until the very day on which he was injured. The ground upon which the right to recover in any such case is based is justifying necessity in the performance of duty. A brakeman whose duties require him to make a coupling of the engine to a car to which it is to be attached,' and where a standing board has been provided for this very purpose in front of the engine-, would be justified in talcing that position. Of course, in such a case the brakeman should not be held guilty of contributory negligence for standing at a point indicated by his employer and where the duties of his employment called Mm to be. In the present case appellee had no duty to perform which required him to stand on the pilot. He was not the brakeman, and had no duty to perform in connection with the coupling of cars. He was the conductor, and part of his duty was to flag the train into the yard after passing Carson street, and this could be better done, as it had always been done before, by walking down ahead of the engine. If he had done so he would not have been injured. He chose, however, to stand in the most dangerous place. He could have taken a seat on the cross tie where the brakeman who was not injured took Ms place, or he could have taken his place on the engine and in either position he would have been safe. He voluntarily took the most dangerous position he could take without any necessity for so doing, or without having to do so in the performance of his duties, and as a result he suffered the injuries about which complaint is made. Under the rule of all the authorities examined in the consideration of this case, and we have examined nearly all of them, the appellee must be deemed to have been guilty of contributory negligence and his right to recover cannot be sustained.

Judgment reversed and is here entered for the defendant.


author: Mr. Justice Fell,

text:
    Commonwealth v. House, Appellant.

      Criminal law — Assault and battery — Evidence as to another crime.

    1. A presumption of guilt cannot be raised by proof of a distinct crime unconnected with that laid in the indictment.
    2. On the trial of an indictment for assault and battery where the charge is that the defendant stabbed a woman on a public street, evidence is inadmissible to show that the defendant on the same evening, but in another street, although in the same neighborhood had attempted to assault another woman.
    3. On the trial of an indictment for assault and battery where the prosecutrix and a witness positively identified the defendant as the assailant, it is reversible error for the court not to refer to the fact that both witnesses had declared shortly after the assault that the defendant was not the assailant.

      Criminal law — Evidence—Identity—Reasonable doubt — Good reputation — Charge.
    4. No class of testimony is more uncertain and less to be relied upon than that as to identity, and where great doubt is cast upon it by the witnesses themselves there is a double reason for submitting it with great caution.
    5. On the trial of an indictment for a crime it is reversible error for the court to charge as follows: “If there is such a doubt that prevents you arriving at a satisfactory conclusion of guilt, then the defendant is entitled to the benefit of that doubt. On the other hand, — still speaking about this evidence with relation to reputation, — if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has previously had a good reputation is not a defense, that is the material that you make use of in ascertaining whether or not he is guilty, and if, looking at that and looking at all the other evidence in the case, you are convinced that this is the guilty man, then your duty is plain and simple. ” Such instructions do not give the accused the benefit of the right to have his proofs as to reputation considered as the proofs of a distinct fact in determining his guilt or innocence, or of the principle that good reputation may in itself be sufficient to create a doubt that would work an acquittal.
    Argued Jan. 4, 1909.
    Appeal, No. 10, Oct. T., 1909, by defendant, from judgment of Superior Court April T., 1908, No. 17, affirming judgment of O. & T. Westmoreland Co., Feb. T., 1907, No. 12, on verdict of guilty in case of Commonwealth v. F. R. House.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Reversed.
    Appeal from Superior Court. See 36 Pa. Superior Ct. 363.
    At the trial in the common pleas when Emma Byers was on the stand the following offer was made:
    Counsel for the commonwealth offers to prove by this witness that the defendant in this case attempted to assault her, or assaulted her on the porch of the house at the corner of East. Pittsburg street and Alwine avenue about the hour of six o'clock on the evening of November 15, 1906. This for the purpose of contradicting the defendant, who denies having met anyone at that point, or having assaulted anyone at that point, or having been at that point at all at any time during that evening.
    Mr. Ogden: This is objected to, for the reason that it tends to establish an entirely different crime, and is not material to the issue involved in this case.
    The Court: This being offered in response to the defendant’s testimony with respect to his whereabouts during the time of his stay in Greensburg, his attention having been called to the particular circumstance on which this witness is called to testify about, it is admissible for the purpose named. The objection is therefore overruled. Exception noted. [3]
    “Q. Will you state to the court and jury where you were along about six o’clock of the evening of November 15, 1906? A. Well, I was through work about twenty-five minutes of six and whenever I was going home from work I was going up there by East Pittsburg street, and this young fellow was coming down and I was going on up putting on my gloves, and this here fellow he went upon a porch as if he was going to the door. Q. Whose porch, now? A. I don’t know the people’s name; the second house. Q. What house is it? A. The second house from Alwine avenue. Q. Is it the house at the comer of Alwine avenue and Pittsburg street? A. No, sir; the one up this way; high porch on it. Q. The one with a high porch on? A. Yes, sir; a high porch. He went up on the porch and as I got there he jumped down and grabbed me by the shoulders. Then I screamed and got loose from him, then he struck at me, then he run. Q. Is that man in court who assaulted you? Is he in court now? A. Yes, sir. Q. Who is it? A. There he sits (indicating). Q. Is this the man, the defendant here? A. Yes, sir.”
    The court charged in part as follows:
    [If there is such a doubt that prevents your arriving at a satisfactory conclusion of guilt, then the defendant is entitled to the benefit of that doubt. On the other hand — still speaking about this evidence with relation to reputation — if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has previously had a good reputation is not a defense. That is the material that you make use of in ascertaining whether or not he is guilty, and if, looking at that and looking at all the other evidence in the case, you are convinced that this is the guilty man, then your duty is plain and simple.] [6]
    The jury returned a verdict of guilty, upon which judgment of sentence was passed.
    On appeal to the Supreme Court the errors assigned among others were (3) ruling on evidence, quoting the bill of exceptions; (4) that the charge as a whole was inadequate on the question of identity, and (6) portions of charge, quoted above.

      Denna C. Ogden, with him John B. Keenan and Philip K. Shaner, for appellant.

      Chas. G. Crowell; assistant district attorney, with him John F. Wentling, Jr., for appellee.
    March 1, 1909:
   Opinion by

Mr. Justice Fell,

The prosecutrix was assaulted on St. Clair street in Greens-burg, a few minutes after six o’clock on November 15, 1906, by a man who stepped in front of her on the sidewalk and cut her with a knife. It was dark; the nearest electric light was 150 or 200 feet distant, and she saw only the lower part of the face and the' overcoat of her assailant, who after the assault left her and walked rapidly across the street. A few feet from the place of the assault she was met by James Reed, a mail carrier, who while on a cross street had heard her scream and reached the corner in time to see a man cross the street and stop on the opposite side. The appellant, who was the principal of the public schools of a town in an adjoining county, was a stranger in Greensburg; he had arrived there about noon and had spent the afternoon in visiting places of interest. He approached the scene of the assault from the direction in which the assailant had fled and, while standing with a number of people near the prosecutrix, he was charged by Reed with having committed the assault. He denied the charge, named the hotel at which he was staying, and offered to accompany anyone to it in order to establish his identity. After he had left the scene, he met a policeman on the street, related the occurrence to him, accompanied him back to the house to which the prosecutrix had been taken and in the presence of a number of people asked her whether he was the man who had assaulted her. She replied that he was not the man. The next day he was taken under arrest to the hospital to which she had been removed, and she failed to identify him. Reed, the mail carrier, visited the station house soon after the arrest of the appellant and within an hour of the assault, and after a careful examination said he was not the man whom he had seen crossing the street. Subsequently on a second examination he said that he was the man, and he and the prosecutrix testified at the trial that he was the man who had committed the assault. They were the only witnesses who had seen the as-' sailant. This statement of facts does not include all that was testified to in support of the commonwealth’s case, but it includes all that is important in considering the assignments of error.

The appellant in his testimony had given a circumstantial account of his whereabouts during the whole of the afternoon. On cross-examination he was asked whether he had not been in Alwine avenue and had there tried to put his arms around a girl. He answered that he had not. In rebuttal the commonwealth made the following offer: “Counsel for the commonwealth offers to prove by this witness that the defendant in this case attempted to assault her or assaulted her on the porch of the house at the corner of East Pittsburg street and Alwine avenue about the hour of six o’clock on the evening of November 15, 1906. This for the purpose of contradicting the defendant, who denies having met anyone at that point, or having assaulted anyone 'at that point, or having been at that point at all at any time during that evening.” The Overruling of an objection to this offer is the subject of the third assignment of error.

It would have been competent for the commonwealth to prove that the appellant was in Alwine avenue, since this would have contradicted his testimony as to his whereabouts and would have shown that he was near the place of assault about the time it was committed. For the latter purpose it may be said there was no necessity for proof, as the appellant had admitted this. We find no justification for the admission of proof that an assault had been made on the witness. There was no such logical connection between these assaults as parts of the same transaction nor as showing motive or establishing identity that proof of the former was proof of the latter. Manifestly the testimony was highly prejudicial to the appellant, and we must regard its admission as violative of the rule that a presumption of guilt cannot be raised by proof of a distinct crime unconnected with that laid in the indictment. In referring to the evidence of a distinct offense it was said in Shaffner v. Commonwealth, 72 Pa. 60, that unless the connection is clearly shown, — “the benefit of the doubt should be given to the prisoner, instead of suffering the minds of the jurors to be prejudiced by an independent fact, carrying with it no proper evidence of the particular guilt.”

The fourth assignment presents the question of the adequacy of the charge on the subject of identity. This was the only question in the case. The two witnesses by whom the identity of the appellant was established were the prosecutrix and Reed. In referring to their testimony it was said in the charge: “The commonwealth produced two witnesses, who testified, you will remember the details of their testimony, — that this defendant was not only in this locality but that he came out of that St. Clair avenue or street or alley or whatever it is, about the time this young woman screamed and ran to Mr. Reed for protection. Mr. Reed says to-day that this man did that; the young lady says this is the man. While there may be some variance in their stories, in substance this is the nature of the charge.” The prosecutrix, before whom the appellant had voluntarily gone a few minutes after the assault, positively asserted that he was not the man who had assaulted her; the next day when he was brought before her, she refused to say that he was the man. Reed, within an hour after the assault, after a careful examination had declared that the appellant was not the man. Neither witness saw the assailant under circumstances favorable to subsequent identification; and the qualifying fact that, when the matter was fresh in their minds, they positively asserted the appellant’s innocence, should have been brought to the attention of the jury. These facts weakened very materially their testimony at the trial, and they should have been referred to in connection with it. No class of testimony is more uncertain and less to be relied upon than that as to identity and, where great doubt is cast upon it by the witnesses themselves, there is a double reason for submitting it with great caution. It was said by the present chief justice in Bryant’s Estate, 176 Pa. 309: “There are few more difficult subjects with which the administration of justice has to deal. The carelessness or superficiality of observers, the variety of powers of graphic description and the different force with which the peculiarity of form or color or expression strikes different persons, make recognition or identification one of the least reliable facts testified to by actual witnesses who have seen the parties in question.”

In the charge there was a clear instruction that evidence of good reputation was not a mere makeweight but a distinct item of evidence to be considered in connection with the other evidence in the case. But in defining a reasonable doubt it was said: “On the other hand, still speaking about this evidence with relation to reputation, if upon the other hand you are satisfied in view of all the evidence in the case that the defendant is guilty, then the fact that he has previously had a good reputation is not a defense. That is the material you make use of in ascertaining whether or not he is guilty and if, looking at that and looking at all the other evidence in the case, you are convinced that he is the guilty man, then your duty is plain and simple.” These were the last words to the jury on the subject and they may have deprived the appellant of a right to have his proofs as to reputation considered as the proofs of a distinct fact in determining his guilt or innocence. The first sentence was confusing and might lead the jury to infer that reputation was a ground of defense to be considered only in case of doubt, not a fact that might' in itself be sufficient to create a doubt that would work an acquittal. The instruction was more open to criticism than that for which a reversal was directed in Commonwealth v. Cate, 220 Pa. 138.

The third, fourth and sixth assignments of error are sustained. The judgments of the Superior Court and of the court of quarter sessions of Westmoreland county are reversed, and a venire facias de novo awarded.


author: Mr. Justice Stewart,

text:
    Commonwealth v. Hallowell, Appellant.

      Criminal law — Murder—Insanity—General insanity — Evidence.
    1. Mental unsoundness which exempts from legal responsibility for what otherwise would be felonious and therefore criminal homicide, denotes a mind so far devoid of understanding that it is unable to distinguish between right and wrong and is therefore without freedom of moral action.' However unsound in mind a man may be generally it is only when he has lost utterly this power of moral perception that he ceases to be responsible in the eye of the law.
    2. On the trial of an indictment for murder where general insanity is set up as a defense, and a large number of the witnesses, including two alienists, testify that in their opinion the defendant was of unsound mind, the court commits no error in charging as follows: “Before speaking of their (defendant’s witnesses) testimony I would also say to you that the question here is not — Was this prisoner of unsound mind? Or, if you choose to put it so — Was he insane? That, gentlemen of the jury, is not the question. The question which you will have to determine is — ■ was his mind so affected by disease as to make him irresponsible according to the standard set down by the law? And whether you approve of the law, whether the doctors approve of it, or any of us approve of it, we are bound to administer it as it is. In order to excuse the prisoner on the grounds of insanity it must be shown — and of course the burden of proof is upon him — by fairly preponderating evidence, that at the time when he committed the act his mind was so affected by disease, that he did not know the nature and consequence of his act. Or if he did know the nature and consequence of it, that he did not know that it was wrong and would be punished by law, or that he was so impelled by an impulse that he had no power whatever of resisting. That is the legal standard, gentlemen, and you will see that it is a very different standard from the mere general impression that a man is of unsound mind. If the prisoner knew the nature and quality of his act, if he knew that his act was wrong, and if he knew what he was doing at the time, he is responsible under the law.”
    Argued Jan. 4, 1909.
    Appeal, No. 318, Jan. T., 1908, by defendant, from judgment of O. & T. Phila. Co., Nov. T., 1907, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. Walter Hallowell.
    Before Mitchell, C. J., Fell, Brown, Mesteezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Indictment for murder. Before Ralston, P. J.
    The circumstances of the killing are stated in the opinion of the Supreme Court.
    The trial judge charged in part as follows:
    [We come now to the defense of the prisoner. I think I may say, before I start to speak of the testimony of the prisoner’s witnesses, that they were an unusually respectable, honest; intelligent lot of people. Before speaking of their testimony I would also say to you that the question here is not, was this prisoner of unsound mind? or, if you choose to put it so, was he insane? That, gentlemen of the jury, is not the question.] [1] The question which you will have to determine is,-was his mind so affected by disease as to make him irresponsible according to the standard set down by the law? and whether you approve of the law, whether the doctors approve of it, or any of us approve of it, we are bound to administer it as it is. In order to excuse the prisoner on the ground of insanity it must be shown —and of course the burden of proof is upon him — by fairly preponderating evidence, that at the time when he committed the act his mind was so affected by disease that he did not know the nature and consequence of his act. Or if he did ■know the nature and consequence of it, that he did not know that it was wrong and would be punished by law, or that he was so impelled by an insane impulse that he had no power whatever of resisting. That is the legal standard, gentlemen, and you will see that it is a very different standard from the mere general impression that a man is of unsound mind. If the prisoner knew the nature and quality of his act, if he knew that his act was wrong and if he knew what he was doing at the time, he is responsible under the law. Unless his mind was so affected by disease that he could not control his actions, or his knowledge of what he was doing was destroyed, he is responsible. That is the legal standard and the test, and you must apply it.
    Coming to the testimony on behalf of the prisoner, a great many witnesses were called to exhibit to you so far as possible the prisoner’s whole life. [It was shown in the first place that some of his forbears had been insane. His father testified that he had a sister who suffered from brain disease; that his grandmother’s brother had been in a room for.years; that he had an uncle who died of softening of the brain; that his father’s first cousin was insane, and that his grandfather-had paralysis, which attacked his brain and he committed suicide. It was shown by the prisoner’s parents that he was a delicate, nervous child. Of course, you will consider that for what it is worth.] [2] It appeared in other parts of the testimony that the boy went to school with other boys, and his companions come here now and say that he was much the same as other schoolboys. Indeed, I got the impression — and of course, gentlemen, my impressions are not to govern or sway you at all, the testimony being for your consideration — that the defense came down to the fact that the man’s mind began to alter and change some five or six years ago. A great number of these witnesses were called to testify to peculiar actions; I could hardly name them all, nor refer to each one of them. I will mention a few, however.
    [Dr.’Purvis, the dentist, testified to the prisoner having been injured in the head while playing baseball and having been knocked insensible. That apparently did not have much effect upon him, for he was up and about and playing baseball again in a very short time, and that was years ago.] [3] A witness testified that his conversation was erratic, that he had a peculiar expression and sometimes a vacant stare; another that he ran or drove a horse deliberately into a heavy wagon loaded with stone. The doctor said that he came over to his office and flourished a revolver there and said, “The dirty suckers are after me;” that he had a pair of shoes on which were not mates and conversed in an irrational manner. It was testified that he threw a paper in a car and afterwards went up and asked a man why he had stolen his paper; that on one occasion when a man treated him to a drink and some lunch he threw it on the ground; another time he left his change on the counter; another time he greased the harness with a lotion instead of oil; another time he drove a hay wagon into the creek and sat there apparently oblivious of any danger that might be present; at another time he wanted to buy fish from a rag man; that he jumped from one subject to another; that he apparently got lost while driving a feed wagon; that at his brother’s wedding he behaved in a very peculiar manner and at his brother’s funeral he behaved in a most unfeeling, irreverent way, asking at the grave if certain men who were pallbearers would come back to the house and play cards with him; also, that he was very erratic in the way of planting corn and harrowing a field, harrowing it across instead of lengthwise. Others said that he was rambling in his talk; that he told a barber that he did not know how to comb his hair; that he thought people were doing things against him at times and that he had a silly grin and foolish expression. It was testified that at another time he grabbed one of his friends in the car and began to tussle with him; that he complained that the room in which he was was too warm when it was really cold, and took his coat off, and then put his coat on and said it was cold, when the temperature was just the same as it had been. Another man testified that he had used profane and abusive language in the.station and on one occasion grabbed a flower that was in a man’s buttonhole and pulled it out. Another man testified that he pushed him over a stove, and another that he made uncomplimentary remarks to him across a hedge. I shall not attempt to refer to all the peculiar incidents testified to by this great number of witnesses. [I consider it unnecessary for me to read their testimony to you or to review it with any minuteness or detail. You heard all the testimony, and if you do not remember every detail of it you at least have the general effect of it in your minds. Many or probably all of the witnesses who testified to these peculiar acts said that in their judgment the man was of unsound mind.] [4]
    That was followed by expert testimony. Expert testimony, gentlemen, is opinion testimony given by men who have made a special study of the subject for many years. In this case the experts for the defense are not only gentlemen of the highest reputation for integrity, not only honorable, fair-minded men, but they stand very high in their profession. They are very eminent men and men who are respected by all who know them. I refer to Dr. Mills and Dr. Dercum.
    [Dr. Mills told you that he considered the prisoner insane; he stated to you the basis of his opinion, which was founded not only upon the evidence which he had heard from the lay witnesses, but also upon personal examinations of the prisoner which he had made. Dr. Mills was asked a question which brought to his attention and to yours the legal test of responsibility — not whether the man is insane, but whether he knew the nature and quality of his act — whether he knew what he was doing and could have refrained from doing it if he had so willed. Dr. Mills testified as follows: “Q. In reference to the act itself, do you believe he understood what he was doing at that time? A. I do not believe he understood it as a sane man would. The testimony is very meager as to the act itself, at least what I heard. I do not believe that he understood it in what might be termed a sane way.”
    So you see, gentlemen, he does not express the opinion positively that the prisoner did not at that time understand what he was doing, but he says he does not believe he understood it as a sane man would.
    Dr. Dercum testified that in his opinion and for reasons which he gave to you the prisoner was insane. He was asked practically the same question as Dr. Mills, which is the question you have to determine as the test of the prisoner’s legal responsibility. He testified as follows: “Q. Do you think he understood and comprehended what he was doing when he shot this girl? A. I believe that he may have. No one can know just what the state of his mind was at that time. It is, of course, only a matter of conjecture as to the condition of his mind. He may have known if the pistol was a weapon and he could discharge it at the person that it would kill.”
    As illustrating the difference between the legal standard of mental responsibility and the view taken by doctors as to whether a man is insane or not I will read this question and answer from the testimony of Dr. Dercum: “Q. Then, as I understand you, you say that you don’t believe that that man on that day when he took this girl’s life did not know what he was doing, did not plan it, and did not know what he set out to do? A. He may have done all that and still have been insane.”
    That is “insane” from a medical point of view, but does that come within the legal standard which I have given to you? Reading further from his testimony on that page: “Q. The question is whether he knew what he was doing. A. I say that no one could know the state of his mind — that would be matter of conjecture. Q. Is it your opinion that he knew the difference between right and wrong, wrong in the sense of being that for which he would be punished? A. I do not believe the idea of punishment ever occurred to him at all, until perhaps after the whole thing was over. Q. It occurred to him immediately afterwards. A. Possibly according to the evidence which is that he said ‘I am done for.’ ”] [5]
    [Now, gentlemen, does that testimony of these two expert physicians in conjunction with the testimony of the lay witnesses, establish that the prisoner when he shot this girl did not know what he was doing, and did not know right from wrong? In other words, does it establish such a state of insanity as the law recognizes as an excuse for crime?] [6]
    Verdict of guilty of murder in the first degree. Defendant appealed.

      Errors assigned were (1-6) above instructions, quoting them.

      Maxwell Stevenson, with him Walter P. Bishop and Harry S. Ambler, Jr., for appellant.
    — The charge was inadequate on the subject of insanity: Meyers v. Com., 83 Pa. 131; Com. v. Moore, 2 Pitts. 502; Pannell v. Com., 86 Pa. 260; State v. Rippy, 10 S. E. Repr. 259; Goersen v. Com., 99 Pa. 388; Hodder v. Rapid Transit Co., 217 Pa. 110; Com. v. Elvin, 5 Pa. Dist. Rep. 593.

      Joseph H. Taulane, assistant district attorney, with him Samuel P. Botan, district attorney, for appellee.
    — It is submitted that the statement of the law in the charge is in harmony with all the decisions of the court: Com. v. Mosler, 4 Pa. 264; Sayres v. Com., 88 Pa. 291; Taylor v. Com., 109 Pa. 262; Com. v. Wireback, 190 Pa. 138; Com. v. Lewis, 222 Pa. 302; Com. v. Moore, 2 Pittsburg, 502.
    March 1, 1909:
   Opinion by

Mr. Justice Stewart,

After a trial in which defendant had accorded to him every privilege which an accused has a right to demand or expect, the appellant was convicted of murder in the first degree. The record is practically free from exceptions, and none are here brought for review except a general one to the charge of the court. The several assignments of error show to what severe analysis and scrutiny this charge, evidently intended to be full, fair and impartial, has been subjected to at the hands of able and zealous counsel. Separate discussion of each is unnecessary. In the argument on appellant’s behalf several propositions have been submitted which include them all, and in disposing of these every assignment will have been considered.

The fact of killing was not denied; nor was there any dispute as to the circumstances attending the immediate commission of the act. The victim was a young woman about thirty years of age. She was shot and killed by the prisoner on the evening of October 14, 1907, at about six o’clock, on a public street in the city of Philadelphia, while returning home from the place of her employment, in company with two of her female friends. The prisoner a half hour before had gone to the shop where she worked, and inquired whether she was still there. In company with two companions of his own, he overtook these girls while on their way, and advancing upon his victim discharged a pistol at her head, with no other effect, however, "than to throw her from her feet upon the ground. Instantly he was over her, and while she was there prostrate, fired the shot which quickly terminated her life. To the officer who made the arrest, arid within a few minutes after the occurrence, he said he shot the girl because he wanted some money from her with which to pay a doctor; that he had been going with her for a long time but that she had refused to go with him any more; that he was suffering from a painful disorder, and that his friends were ridiculing him on account of the girl denying him her company. The evidence discloses nothing else as to the motive which prompted the act. The only defense set up was general insanity. It was not pretended that the appellant in taking the life of his victim was under the control or influence of illusion or hallucination. What is known as partial insanity was therefore not in the case. The whole defense rested on general unsoundness of mind. Whether this condition can be urged as a sufficient defense against an accusation of crime, depends upon the extent and degree of the unsoundness. Any variation, however slight, from normal conditions, implies unsoundness in some degree; and ordinarily when one is said to be unsound mentally, the expression indicates nothing as to the extent or degree of the variation. There is, however, nothing uncertain or indeterminate in these words when they are used to denote the mental unsoundness which exempts from legal responsibility for what otherwise would be felonious and therefore criminal homicide. The words used in this connection have a fixed and definite meaning; they denote a mind, so far devoid of understanding that it is unable to distinguish between right and wrong, and is therefore without freedom of moral action. However unsound in mind a man may be generally, it is only when he has lost utterly his power of moral perception that he ceases to be responsible in the eye of the law. Therefore it is that whenever insanity is set up as a defense to an accusation of crime, it becomes the duty of the trial judge to clearly define to the jury what kind or degree of insanity absolves, to the end that they may intelligently understand the real point at issue, and weigh with discriminating judgment the evidence submitted to them. And this is what the learned trial judge did in this case in very full and careful instructions. When about to review the testimony of the defendant’s witnesses, he found occasion to remind the jury' of the distinction he had directed them to observe in determining the question of the defendant’s legal responsibility, and what was said in this connection is made the subject of earnest complaint. Very many witnesses, testifying in defendant’s behalf — some forty in all — impressive not only in numbers, but in intelligence and character as well, testified to defendant’s general unsoundness of mind, each giving some peculiarities of conduct which led to the conclusion expressed. Among these were several alienists, who testified to like effect, but resting their conclusions largely, however, upon personal examination of the defendant subsequent to his arrest. Excepting these latter, the witnesses were neighbors and acquaintances who had had opportunity, much or little as the case might be, to observe the conduct and behavior of defendant for varying periods. Each and all expressed the opinion that defendant was of unsound mind; but it was the fewest number, not more than three or four as we count them, who attempted to define or indicate the degree of unsoundness. In the exception referred to, the witnesses having expressed the opinion from what they had observed that defendant was insane, were asked, by one side or the other, whether they regarded him as so far deprived of reason and understanding that he could not have comprehended the moral character of the act of which he was accused. Apart from these, however, so far as the lay witnesses were concerned, the defendant’s case rested on their general concurrence that defendant was simply of unsound mind, and the facts given in support of this conclusion. The reference made by the trial judge to the testimony, and which is complained of, was as follows: “Before speaking of their testimony (defendant’s witnesses), I would also say to you that the question here is not —Was this prisoner of unsound mind? or, if you choose to put it so — Was he insane? That, gentlemen of the jury, is not the question.” Later on in the charge this occurs, and in the assignment it is coupled and associated with the expression above quoted, — “The question is not whether he is eccentric or peculiar, or what these people call unsound, but the test is as I have stated to you and as so stated you must-apply it to this case.” These extracts are from very widely separated parts of the charge, and the incompleteness of each is apparent; yet each standing by itself can easily be vindicated. It is a. test, however, to which no charge should in fairness be subjected. . As we have already said, general unsoundness of mind, unaccompanied with loss of power to distinguish the moral element in an act, is no defense in law where crime is charged. Evidence of general unsoundness is admissible of course, for it is only when the whole mental condition of the accused is exhibited that the extent or degree of the insanity can be determined. The test comes not upon offers of evidence, but when the jury is in possession of the whole case, and the real issue is to be determined by them. All the evidence is for their consideration, but its importance is to be judged by the light it reflects upon the one question of the accused’s legal responsibility for his actions. Therefore, when the judge said to the jury that the question they were deciding was not whether the prisoner was of unsound mind or insane, he was strictly within the law. What they were to determine was a question of legal accountability; and since this could exist even where there was unsoundness, the statement of the court was not only entirely correct, but, in view of the character of the testimony he was about to review, it was none too direct or positive; for however correct defendant’s witnesses were in the opinions expressed that defendant was a man of unsound mind, it is manifest from the facts given by each in support of such inference, with the few exceptions, that the unsoundness they were considering was not that which in law exculpates. The instruction did not suggest to the jury that they might disregard the facts testified to by these witnesses, nor indeed the opinions expressed by them; but it did point them to the one standard required by law, to the disregard of any different standard that may have been in the minds of the witnesses. It is complained that it minimized the value of the testimony of defendant’s witnesses; indeed, that it practically nullified it, especially when considered along with this latter expression: “The question is not whether defendant is eccentric or peculiar, or what these people call insane.” Conceding that such was the effect, the fault lay not with the instruction, but with the evidence. The complaint, however, greatly exaggerates the effect. The instruction, as the jury must have understood it, required a consideration of all the evidence. It did unquestionably impair the force of opinions and conclusions where the witnesses spoke of a general unsoundness of mind; but it left every fact on which these opinions were based, for the consideration of the jury in connection with the one issue they were trying. If the instructions complained of be allowed their true setting, their absolute fairness and correctness will be all the more apparent. The remark that the question was not whether the defendant was of unsound mind, or insane, was, as we have said, preliminary to a review of the defense; and it was immediately followed, beginning with the very next sentence, by this very clear direction: “The question which you will have to determine is — Was his mind so affected by disease as to make him irresponsible according to the standard set down by the law? .... In order to excuse the prisoner o.n the ground of insanity it must be shown — and of course the burden of proof is upon him — by fairly preponderating evidence, that at the time when he committed the act his mind was so affected by disease that he did not know the nature and consequence of his act. Or if he did know the nature and consequence of it, that he did not know that it was wrong and would be punished by law, or that he was so impelled by an insane impulse that he had no power whatever of resisting. That is the legal standard, gentlemen, and you will see that it is a very different standard from the mere general impression that a man is of unsound mind. If the prisoner knew the nature and quality of his act, if he knew that his act was wrong and if he knew what he was doing at the time, he is responsible under the law.” The. other remark complained of — “What these people (defendant’s witnesses) call unsound” — occurs in this instruction: “It is incumbent upon the defense I say to satisfy you that the prisoner did not know the nature and quality of his act, that he did not know that his act was wrong in the sense that it would be punished by law, or that he had not the will to resist, that his mind from disease was so clouded and weakened that he was unable to control his actions, and did not know what he was doing or had no power to resist the impulse to do it. That, gentlemen, as I have said to you several times, is the test of a man’s responsibility in the law. The question is not whether he is eccentric or peculiar or what these people call unsound, but the test is as I have stated to you and as so stated you must apply it to this case.”

These instructions were not only correct, but the peculiar facts of this case required that they should be no less explicit and direct than the learned judge made them. Two alienists, of highest distinction in their profession, were called by the defense. Both expressed the opinion, founded upon examination made after defendant’s arrest, that he was of unsound mind. Here again, in reviewing this testimony, the trial judge directed the jury to apply the same test. “ Does the testimony of these two physicians (after quoting parts), in conjunction with the testimony of the lay witnesses, establish that the prisoner when he shot this girl did not know what he was doing, and did not know right from wrong? In other words, does it establish such a state of insanity as the law recognizes as an excuse for crime? It is here urged that the defense was prejudiced by the reference made by the court in this connection to the specific question addressed to each of these witnesses, as to whether defendant understood and comprehended what he was doing when he shot his victim, and the answers made thereto, inasmuch as the question was thus limited to a comprehension of the physical act itself, and had no regard to perception of moral quality. The contention was that this was a misleading interpretation of the testimony, and imposed on the defense the burden of showing a greater degree of mental unsoundness than the law required, since one may so far comprehend his act as to know that a pistol shot may kill, and yet be so insane as not to be legally accountable for firing it. But this, to say the least, is hypercritical. By iteration and reiteration the learned judge had in express terms instructed the jury what was meant by comprehension of the nature and quality of the act, and that the prisoner was only responsible under the law in case they found “that he knew the nature and quality of his act; knew that the act was wrong, and knew what he was doing at the time.” The jury must have understood that all these elements were included in the question addressed to the witnesses. The witnesses themselves certainly so understood the question, and their answers were sufficient, if there were nothing else, to avoid misapprehension by the jury.

There is quite as little merit in the exception taken to the judge’s failure to instruct on the question here sought to be raised on defendant’s intoxication. We agree, that had there been any evidence that at the time of the shooting the defendant was intoxicated from drink, it would have been the duty of the court, even without being so requested, to direct the jury’s attention to this matter in passing upon the degree of defendant’s guilt, if found to be legally responsible for his act; but there was no such evidence. So too with respect to the complaint that in several instances in speaking of the burden resting upon the defendant, in connection with the defense of insanity, the court said the burden was upon him to establish the fact. In an earlier part of the charge the jury had been distinctly told that all that was required of the defendant in this regard was to establish such fact by a preponderance of evidence. This instruction was entirely adequate to an understanding by the jury of the measure of proof to be observed.

The remaining assignments simply question the general fairness and impartiality of the charge. We have given them all careful consideration. In the presentation of the evidence on the one side and the other, the charge, as we read it, is characterized by the utmost fairness. Specific reference to each item of testimony is never required; here it was impracticable in view of the fact that the evidence for the defense alone covers nearly 200 pages of the record. Doubtless some of this, which defendant’s counsel thinks important, escaped special reference; but this is something not always to be avoided, and in this case it suggests neither unfairness in purpose or effect. It is certainly true that the charge was full and comprehensive to a degree which must have served to recall to the minds of the jury the evidence pertinent to the main questions in the case. A review of the whole case discloses no error, and leaves us in no doubt whatever that the defendant had a fair and impartial trial, with every right accorded him. That he is a proper object of pity because of his enfeebled mental power, however caused, whether by development of hereditary taint or his own evil courses, or both combined, must be admitted; but that he fully understood the nature of the act he was committing in taking the life of his victim; and that he was conscious of the moral and legal guilt he was incurring, and the dread penalty he faced, was the finding of the jury under careful and correct instructions, and after patient and intelligent deliberation. We see nothing in the case that would justify us in disturbing that finding.

Judgment affirmed, and record remitted for' the purpose of execution according to law.


author: Per Curiam,

text:
    Klein, Appellant, v. Philadelphia.

      Negligence — Municipality—Wharf—Infant.
    Where a boy eight years of age falls into a river while playing on a wharf at the end of a street, and is drowned, the parents of the boy cannot recover from the municipality for his death, by merely showing the defective condition of the wharf, if they offer no evidence that the accident happened from want of repair of the wharf.
    Argued Jan. 4, 1909.
    Appeal, No. 114, Jan. T., 1908, by plaintiff, from order of C. P. No. 5, Phila. Co., June T., 1906, No. 4,311, refusing to take off nonsuit in case of Herman G. Klein and Johanna E. Klein v. City of Philadelphia.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elicin and Stewart, JJ.
    Affirmed.
    Trespass to recover damages for the death of a boy eight years old. Before Ralston, J.

      Error assigned was refusal to take off nonsuit.

      John H. Fow and F. Carroll Fow, for appellants.

      Robert Brannan, assistant city solicitor, with him Frederick Beyer, assistant city solicitor, and J. Howard Gendell, city solicitor, for appellee.
    March 1, 1909:
   Per Curiam,

The plaintiff’s son, eight years old, while playing with a companion of about the same age on a wharf constructed at the end of a street, fell into the Delaware river and was drowned. He had thrown hoops into the river and was standing either on the outer edge of the wharf or on a log that extended out over the water trying to reach the hoops with a stick, when he fell. There was evidence that the wharf was not in good condition, that the logs at the bulkhead had become decayed, and that the earth back of them had to some extent been washed away. But there was no evidence that the accident resulted from want of repair. The case made out by the plaintiff’s testimony imposed no liability on the city and a nonsuit was properly entered.

The judgment is affirmed.


text:
    Weinmann’s Estate.

      Trusts and trustees — Accumulations—Will.
    Where a testatrix gives by her will a fund to a trustee to invest the same and accumulate the income therefrom until her grandson should reach the age of forty years, and then to pay him the income from the whole fund capitalized for his life, and upon his death to pay the whole fund to his children, the direction to accumulate is illegal, and the income so unlawfully directed to be accumulated will, until the grandson reaches the specified age, be paid to the residuary legatee of the testatrix, who was entitled to take under the will, and not to the grandson or his assignee. ■
    Argued Jan. 4, 1909.
    Appeal, No. 135, Jan. T., 1908, by Frank P. Martin, from decree of O. C. Phila. Co., Oct. T., 1907, No. 717, dismissing exceptions to adjudication in Estate of Caroline Weinmann, deceased.
    Before Mitchell, C. J., Fell, Brown, Mestrezat, Potter, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to adjudication.
    Lamorelle, J., filed the following opinion:
    The Act of April 18, 1853,- in its ninth section (P. L. 503), provides that no one shall dispose of any property by will in such a manner as to accumulate the income wholly or in part for a longer period than the minority of the person who would, if of full age, be entitled thereto but for such direction to accumulate; in event that an accumulation shall be directed otherwise, the direction shall be void, and the income, so directed to be accumulated “shall go to and be received by such person .... as would have been entitled thereto if such accumulation had not been so directed.”
    In the present case testatrix gave the sum of $3,000 to the Commonwealth Title Insurance and Trust Company to invest the same and to add income and interest thereof to the principal until her grandson reached the age of forty years, at which time he was to be paid the income of the principal and the income from the accumulation for the term of his life; after his death'the principal and accumulated income was given to such of his children as might then be living; if none, then such funds fell into the residuary estate.
    The grandson assigned his interest to Frank P. Martin, who, at the time of the audit of the executor’s account, claimed the income from the $3,000, on the ground that as the accumulation was void (the grandson being some twenty-eight years of age at the time the will became effective) he was entitled thereto as assignee of the party who would get if there was no direction to accumulate.
    The ruling of the auditing judge awarding the income of the $3,000 to the residuary legatee forms the basis of the present exception.
    This case must not be confounded with the line of authorities beginning with Washington’s Appeal, 75 Pa. 102, the latest of which is Farnum’s Estate, 191 Pa. 75, wherein the trust beginning at a time when the minority actually exists, the accumulations have been given the minor upon the attainment of the majority, despite the fact that the accumulations were in terms given to others than the minor, and in fact (notably in Stille’s Appeal, 4 W. N. C. 42), it was never intended that the cestui que trust should have them; and the minor was never the person who, if of full age,, was entitled.

      Despite the earnest and able argument of the exceptant, its fallacy lies in its confounding the principles governing this case with the doctrine laid down in the above-quoted decisions; here the grandson is neither by express words nor by necessary implication the person who would have been entitled to the income if the accumulation had not been directed, in fact, unless and until he reaches the age of forty years by the very terms of the will he gets nothing; and his assignee simply steps into his shoes. Whether the cases above cited are sound or not they embody the law; but there is no reason why their doctrine should be extended.
    The case cannot be distinguished in principle from White’s Estate, 8 Pa. Dist. Rep. 33, in which a trust was created for a grandson and until he was twenty-five years of age so much only of the income as the executors deemed sufficient for his maintenance was to be expended; when he -reached that age he was entitled to all of the income of the trust fund, which fund, with the accumulations, was upon his death limited to his children; it is to be noted that in no event were the accumulations given to him; it was accordingly held that the accumulative income up to the time the cestui que trust reached the age of twenty-five years lapsed and fell into the residue. Said Penrose, J.:
    “Accumulation is forbidden by the act no less where it results by indirection than where it is expressly ordered; the striking down of the illegal accumulation leaves the will as if it had been silent on the subject, and future gifts are not accelerated; if the accumulation relates to a vested interest taking effect in possession, the released income goes at once to the beneficiary- — if to an interest not vested in possession, the income goes to the residuary legatee or devisee, unless the residuary estate itself be the subject of the provisions, in which case the income goes under the intestate laws to the next of kin or heirs: 1 Jarman on Wills, 274; Mitcheson’s Estate, 11 W. N. C. 547; Gray on Perp., secs. 671, et seq.”
    Applying the doctrine of that case to the present one — the grandson is not given the accumulations at all; what is given him is the income from these accumulations when he reaches the age of forty — and this distinction is real and not apparent as is forcibly put by the auditing judge when he says, “The beneficiary unquestionably would have been such person (i. e., the persons spoken of in the act as entitled to the income) if the accumulated fund had been payable to him at the age of forty.” The accumulations are given to the children of the. grandson if he shall leave any, who represent at best an estate not vested in possession; the income not well given, therefore, falls into the residue and goes to the residuary legatee.
    To the same effect is Edwards’ Estate, 190 Pa. 177; testator gave his residuary estate to his executors in trust to invest the principal, and to reinvest the interest or income, and to pay his son an annual sum of not more than 1300; upon the son’s death, his children were given the original principal and the accumulations; it was held that the direction to accumulate was void, and that the released income went to the next of kin.
    In the two quoted cases the accumulation was of a part of the income only; in the present case, of the whole; while to this extent there is a difference, there is no distinction — the applied rule is that where the accumulations are not at any time given to a cestui que trust of full age at the time of testator’s death, he cannot'be the person who, within the meaning of the act, is entitled thereto if such accumulations had not been directed; they may go to the residuary legatees or to the next of kin, but never to him.
    The fifth exception, which raises the question whether the exceptant is not presently entitled to the corpus of the trust estate, need not be considered at any great length; it is sufficient to say that the will creates a valid trust for the life of the grandson, with remainder to his children, if they survive him, and with the limitation over in case they do not. Brubaker’s Appeal, 1 Mona. 447, cited as authority for this present claim, is not in point, the court there holding that there was an absolute gift of personal property and the trust a dry one. „
    The exceptions are dismissed and the adjudication confirmed absolutely.

      Errors assigned were in dismissing exceptions to adjudication.

      Joseph M. Smith, for appellant.
    — It is clear that the person to whom the illegal accumulations are to be paid is the person who meets the definition of the act, for the income is paid, not under the terms of the will, but under the provisions of the act: Potter’s Est., 13 Phila. 293; Washington’s Est., 75 Pa. 102; McKee’s App., 96 Pa. 277; Farnum’s Est., 191 Pa. 75; Rhodes’s Est., 147 Pa. 227. Stille’s Estate (11 Phila. 31, affirmed 4 W. N. C. 42), is almost identically the case at bar: Howell’s Est., 180 Pa. 515.

      Henry P. Brown, for appellee.
    — There is no vested interest in the grandson, neither in the principal nor in the accumulations of income. All that is given to him is the income “of said principal and accumulated interest,” during his life: Mitcheson’s Est., 11 W. N. C. 547; White’s Est., 2 Pa. Dist. Rep. 207; White’s Est., 163 Pa. 388; Washington’s Est., 75 Pa. 102; Edwards’ Est., 190 Pa. 177; Mellon’s Est., 16 Phila. 323.
    March 1, 1909:
   Opinion by

Mr. Justice Elkin,

The testatrix by will bequeathed $3,000 to a trustee in trust to invest the same and add the interest and income thereof to the principal sum until her grandson should arrive at the age of forty years, at which time the trustee was directed to pay the income derived from said principal and the accumulated interest thereon to said grandson for and during the term of his natural life, and after his death to pay the principal and accumulated income to the child or children of said grandson living at the time of his death, in equal shares. In the event of the death of said grandson without leaving any child or children to survive him then the principal and undistributed income of the $3,000 to revert to and become part of the residuary estate. The question raised here is whether the income accumulated prior to the time when the grandson arrived at the age of forty years should be distributed to his assignee, the appellant here, or to the residuary legatee. It is conceded, as indeed it must be under the authority of our cases that the direction to accumulate the “interest and income,” and add it to the principal until the grandson should arrive at the age of forty years is within the prohibition of the Act of April 18, 1853, P. L. 503, relating to accumulations, and the only question is to whom the sum so unlawfully accumulated belongs. The statute provides that when an accumulation shall be directed otherwise than is provided therein, the direction shall be void,' and the income so directed to be accumulated, shall go to and be received by such person “ as would have been entitled thereto if such accumulation had not been so directed.” The controlling fact which distinguishes the case at bar from those cases relied on by learned counsel for appellant is that in no event was the grandson, under the terms of the will, entitled to take the corpus of the trust estate or the income accumulated thereon until he should arrive at the age of forty years. If the accumulations directed to be made had been lawful and the principal had been thus increased, the grandson could not have taken any part of the corpus of the trust estate so created, and it is difficult to see upon what theory he can obtain a higher right in an unlawful accumulation than in a lawful one. Certainly the grandson is not such a person as falls within the meaning of the act of 1853, which provides that the void accumulations shall go to such person as would be entitled to receive the same if such accumulation had not been so directed. The case was very carefully considered by the auditing judge and by the learned court below and we fully concur in the conclusion reached and the reasons given for the decision rendered.

Decree affirmed.