text:
    Leitch v. Diamond National Bank of Pittsburgh, Appellant.

      Gifts — Delivery—Intention—Evidence—Husband and wife.

    1. If the language used by a donor iá clear and unambiguous showing a clear intent to make a gift, and a belief on his part that he had done all that was necessary to complete it, then the act of delivery if slight and ambiguous, will be aided thereby, not, however, dispensing with an actual delivery; but rendering the gift valid where it would be deemed invalid, if the acts of delivery were uncertain or ambiguous. This principle applies particularly where a gift from a husband to a wife is involved.
    2. A gift of bonds from a husband to a wife will be sustained where it appears that the husband took a box in a safe deposit vault separate from two other boxes in which he kept his own securities; that he designated the box as his wife’s box, declaring that he was going to give to his wife all his negotiable bonds, and put them in the box which he had taken for her; that he placed certain securities in the box at the time, giving her a key to it; that she had access to the box subsequently, both alone and with her husband; that the husband had produced a list of bonds which he said belonged to his wife, and that both husband and wife made wills known to each other which clearly indicated that both regarded the bonds in the box as belonging to the wife.
    3. The delivery of a gift may be proved by the declarations of the donor.
    4. Where a husband has placed bonds in a box in a safe deposit vault which he has rented for his wife, and has declared that he had given her the bonds, his subsequent access to the box with her permission for the purpose of selling and re-investing the bonds and for the purpose of placing therein additional bonds, is not inconsistent with the wife’s ownership of the contents of the box.
    5. In such a case an attorney-at-law is a competent witness after the husband’s death as to what occurred at the time the bonds were originally deposited in the box, if it appears that the relation of attorney and client did not at the time subsist between the husband and the witness. If it appears that he was thereafter employed as counsel for both husband and wife in their joint business, he may testify as to conversations which took place in the presence of both.
    Argued Nov. 3, 1911.
    Appeal, No. 234, Oct. T., 1911, by defendants from, decree of C. P. No. 2, Allegheny Co., Jan. T., 1910, No. 445, on bill in equity in case of Robert H. Leitch, Executor of the Estate of Isabella Arnold, deceased, v. Diamond National Bank of Pittsburgh, et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    This was a bill in equity filed by Robert H. Leitch, executor of the estate of Isabella Arnold, deceased, against The Diamond National Bank of Pittsburgh, Pa., Robert J. Cleland, William C. Cleland, Thomas A. Cleland, James T. Arnold, and Robert J. Cleland, attorney in fact for James T. Arnold, The purpose of the bill was to obtain possession of certain bonds which at the time of the death of Mrs. Arnold were in the safe deposit vaults of the bank. It was alleged that these bonds were the property of Isabella Arnold, having been given to her by her husband, James T. Arnold. The
    James T. Arnold and Isabella Arnold were husband and wife. They resided in Allegheny City and in 1906 he was 81 years of age and she wras 68. They had no children and the husband’s next of kin were three nepheAvs, Robert J., William C., and. Thomas A. Cleland. James T. Arnold was a man of wealth, which material facts as found by the trial judge, are as follows: no property. He had three safe deposit boxes in The Diamond National Bank of Pittsburgh, numbered 125, 158 and 159, in which he kept his various securities and title papers. Previous to May, 1906, his wife had joint access with him to box 159.
    In May, 1906, Mr. Arnold called at the office of Robert H. Leitch, a young lawyer, whose mother had been his lifelong friend, but who had previously rendered no legal services to either himself or his wife, and .requested Mr. Leitch to accompany him to the bank. They went into the vault, where Mr. Arnold unlocked the three boxes, removed therefrom a part of the contents, which he placed on the table. He then told Mr. Leitch that he was going to give Mrs. Arnold all his negotiable bonds and would put them in a box -which he then and there designated as hers. He then took certain securities from box 159, in which he said some of the bonds were, and threw them into box 158. In June, 1906, he said that he had placed all his negotiable bonds in Mrs. Arnold’s box, 158, and that they were hers. In July, 1906, he requested Mr. Leitch to call at his house to prepare a will for Mrs. Arnold, whereby she was to dispose of the bonds he had given to her to various charitable institutions, and at the same time to draw a will for him. Mr. Leitch called as requested and Mrs. Arnold, in the presence of her husband and with a view to making her will, said that he had given her bonds then amounting to $110,000, and that he would give her other bonds that he would thereafter buy from time to time. Mrs. Arnold showed a list of charities showing specific bequests intended, which amounted to $90,000, with a balance of $20,000 to be given to the Woman’s Board, and providing for payment of the collateral inheritance tax. At the same time Mr. Arnold produced a list of securities and said that the items marked “B” were the bonds owned by Mrs. Arnold and that the unchecked items on the list were stocks and memoranda that he wanted in Ms will. It was suggested by Mrs. Arnold and agreed to by Mr. Arnold, after some slight protest, that, owing to his kindness in giving her the bonds and as a mark of gratitude, he should receive the interest on them during his life, and should have the right to enter her box, examine the bonds and cut off the coupons. He accepted the gift of the income and thereafter took and used the same, up to the time of his wife’s death.
    At the same time Mr. Arnold, in the presence of his wife, directed Mr. Leitch to prepare deeds for the conveyance of his real estate to the three Clelands, his nephews and next of kin, and a will by which he would dispose of his stocks and other securities. The deeds were prepared and executed.
    Mrs. Arnold subsequently stated to Mr. Leitch in the presence of her husband that he had set apart a box for her, that all the bonds he had given her from time to time were in that box, that she had keys for all the boxes just as he had, which were in a desk which she pointed out, and that she could go to the boxes whenever she desired. Mr. Leitch suggested that she place all her bonds in a box in her own name, but she declined to do this because she had given her husband back the income for life, and she wanted him to go to the bank, see the bonds and remove the coupons, as he had done before.
    On July 19, 1906, both Mr. and Mrs. Arnold executed wills drawn up in accordance with their previous instructions. The wills bore the same date and were executed simultaneously. Both were read and examined by them, and each kneAV the contents of the other’s. Mr. Arnold witnessed his wife’s will and she witnessed his. Mr. Leitch and the three Clelands were executors of the husband’s will and Mr. Leitch alone of the wife’s.
    By Mrs. Arnold’s will her husband was to receive, while he lived, all the interest and income from “all my money and bonds of which I may die possessed,” and the principal was given to religious and charitable institutions, two of the legacies of $10,000 each being subject to life estates in persons named. The specific legacies given in the will amounted to $90,000.
    Mr. Arnold’s will contained the following clause: "Having in other ways made full and ample provision for my beloved wife, Isabella Arnold, by turning over to her absolutely a certain portion of my property, I do not by this will give her anything more, as her acceptance of said portion of my property was and is to be taken as a full release of her dower rights under this will.” He made specific bequests, aggregating $50,000, to various persons and institutions, and gave the residue of his estate to his three nephews.
    Mr. Arnold afterwards stated to several witnesses that he had given bonds to his wife and that bonds which he subsequently bought were for his wife.
    On January 4, 1906, Mr. Arnold executed papers constituting Robert J. Oleland his attorney in fact, and in effect transferring all his securities to the three Ole-lands, retaining, however, a life interest in himself. On the same day he added a codicil to his will, by which he gave his "wife all his estate, except the real estate which he had conveyed to the Clelands, and named her as executrix. On May 18, 1909, he executed a further power of attorney to Robert J. Oleland.
    On May 27, 1909, Mrs. Arnold executed another will to the same effect as the former one, except that she now made specific bequests to religious and charitable institutions, amounting to $196,000. Her husband took no part in the preparation of the latter will and there is no evidence that he had any knowledge of its contents or execution. Mr. Leitch was again named as executor.
    Between July, 1906, and January, 1908, Mr. Arnold purchased $30,000 worth of bonds, which were placed in box 158. He gave Mrs. Arnold, in May, 1906, keys for each of the boxes, retaining duplicate keys for himself. At the time of Mrs. Arnold’s death, November, 1910, there were in box 158, bonds aggregating in value $203,-500. On December 30, 1909, on application of Robert J. Cleland, James T. Arnold was adjudged by reason of age and mental and physical infirmities, to be incapable of managing his affairs and Cleland was appointed his guardian.
    The trial judge also found that when Leitch went to the bank with Mr. Arnold in May, 1906, he was neither employed as counsel by him nor was he acting as his counsel. The relation of counsel did not begin until about July, 1906, and he then became counsel at the same time for both Mr. and Mrs. Arnold, concerning the same subject matter in which both were equally interested. His testimony relates throughout either to what took place in the presence of both Mr. and Mrs. Arnold, or to matters in which they were mutually concerned and about which he was employed by both. He represented no opposing interests, while acting for both clients but was employed to put in legal form certain matters about which they were mutually agreed.
    The court below held that there was a valid executed gift of the bonds in box 158, by James T. Arnold to his wife, and the defendants were enjoined from selling, transferring or delivering any of the bonds to any person other than plaintiff or from interfering with plaintiff’s possession of the same.

      Error assigned was the decree of the court.

      D. T. Watson and Wm. M. Hall, for appellants.
    — The declarations of an alleged donor are admissible only when they accompany the act of delivery, and then only for the purpose of showing the intent of such delivery and not the fact of delivery itself: Scott v. Berkshire County Savings Bank, 140 Mass. 157 (2 N. E. Repr. 925); Chambers v. McCreery, 106 Fed. Repr. 364.
    No valid delivery, actual or constructive, takes place if the donor retains control or possession or power of disposal over the subject of the gift: Walsh’s App., 122 Pa. 177; Fross’ App., 105 Pa. 258; Allen-West Commission Co. v. Grumbles, 129 Fed. Repr. 287; Chambers v. McCreery, 106 Fed. Repr. 364; Bauerschmidt’s Estate, 97 Md. 35 (54 Atl. Repr. 637); Millard v. Millard, 221 Ill. 86 (77 N. E. Repr. 595); Young v. Young, 80 N. Y. 422.
    Delivery of key was insufficient: Tompkins v. Leary, 134 N. Y. App. Div. 114 (118 N. Y. Supp. 810); Keepers v. Fid. Title & Dep. Co., 56 N. J. Law 302 (28 Atl. Repr. 585).

      W. B. Rodgers, for appellee.
    — Leitch was competent: Goodwin Gas Stove & Meter Co.’s App., 117 Pa. 514; Seip’s Est., 163 Pa. 423.
    Evidence of delivery was sufficient: Herr’s App., 5 W. & S. 494; Parker’s Est., 34 W. N. C. 376; Garrison v. Union Trust Co., 129 N. W. Repr. 691.
    February 5, 1912:
   Opinion by

Mr. Justice Potter,

Forty-five assignments of error are here filed, but they actually raise but three questions: First, whether there was a gift of bonds by James T. Arnold to his wife, perfected by delivery; Second, whether Eobert H. Leitch, upon whose testimony plaintiff’s case largely depended, was a competent witness, and Third, whether evidence of declarations by James T. Arnold that he had given the bonds to his wife, or was purchasing them for her, was admissible. The learned judge of the court below made full and complete findings of fact, and stated clearly his conclusions of law, and determined, upon all the facts and circumstances of this case, that there was a gift inter vivos of the bonds in question, made by James T. Arnold to his wife, Isabella. After a careful consideration of the arguments of counsel, and a close examination of the evidence, and of the law applicable to the issue raised, we see no sufficient reason to differ with the conclusion reached by the trial judge. His opinion shows that he had clearly in mind the essential elements of a valid gift inter vivos, and we are not convinced that he erred in the application of those principles to the facts which he found were established by the testimony in this case. Counsel for appellants contend strongly that the evidence does not show that there was an actual delivery of tbe bonds. But in determining this question, the situation of the subject of the gift, and its nature, must be considered. A controlling principle is thus stated: “If the language used by the donor is clear and unambiguous, showing a clear intent to make the gift and a belief on his part that he had done all that was necessary to complete it, then the act of delivery if slight and ambiguous, will be aided thereby, not, however, dispensing with an actual delivery: but rendering the gift valid where it would be deemed invalid if the acts of delivery were uncertain or ambiguous.” Thornton on Gifts, sec. 148. The parties here were husband and wife living harmoniously and taken up with matters of mutual interest: and that must be kept in mind. The writer just quoted very properly says; “The relation of husband and wife is so close, and their every day life is so blended that it is often difficult to tell when the husband has perfected a gift to his wife by delivery; * * * The law takes cognizance of these relationships, of the daily contact of such a donor and donee, of the blending, as it were, of their daily walks and acts, and will construe an act to amount to a delivery where it often would not if the donor and donee were not members of the same family. The law does not dispense with an actual or constructive delivery, but it accepts the acts of the donor, if a clear intent to give is shown, as amounting to a delivery, when it would not do so if the donor and donee occupied separate habitations and were not members of the same family.” Thornton on Gifts, sec. 169. This principle is recognized in our Pennsylvania cases. Thus in Herr’s Appeal, 5 W. & S. 494, where a husband placed coin in a chest or trunk, and stated that it was for his wife, and that it was his wife’s, it was held that there was a gift of the coin to the wife. In that case the husband had access to the chest, and there was no manual delivery of the coin by the husband to the wife. He merely put it in the chest, and said it was hers. Practically the same thing was done in the present case, except that here the box in which the bonds were placed was in the vaults of a bank, and not in the house Avhere the parties made their home. It will be noted that Herr’s Appeal is authority for the admission of evidence of the husband’s declarations, as it holds that both subsequent declarations and acts of the donor (the husband) were evidence of the gift. To the same effect was the decision in Wise’s Estate, 182 Pa. 168, where Mr. Justice Mitchell said (p. 171): “Three other witnesses testified to decedent’s repeated declarations, about the time of the gift, that all his property was to be his wife’s. * * * These declarations would not of course establish a gift, but they are confirmatory of the intent Avith which the actual delivery of the securities testified to by the other witnesses was made. The evidence as a whole was sufficient, if believed, to sustain the claim of a gift; the auditor and the judge below believed it; and we have not been convinced that they were in error in so doing.” These cases, which we follow, dispose of the objection raised upon behalf of appellants, to the admissibility of evidence of declarations by Mr. Arnold, the husband, that he had given the bonds to his wife, or was purchasing them for her. Such evidence was clearly admissible. Herr’s Appeal was closely followed in Crawford’s Appeal, 61 Pa. 52, where Mr. Justice Agnew, dwelling upon another phase of the decision, said (p. 56), in referring to Herr’s Appeal, “There the subject of the gift was money unaccompanied with any declaration amounting to a trust. There money was kept in a lower or false bottom of a trunk to which the husband had access at all times, and to which he often went without the presence of his wife. The, money continued just as much within his actual dominion as if it had been kept by him in another place. There was no evidence of actual delivery or passing over of the money, as the gift was inferred from the declarations of the husband that the money was his wife’s, his keeping it in the lower division of the trunk, apart from his other money, his adding to it from time to time and taking none away, and his wife’s carrying the keys. There was no formal delivery, no counting of the money, no specific sum stated by him; indeed the sum was not known except as a probable or supposed amount, so that the case in fact rested directly on the declarations of the husband, and the setting aside that much money apart from his own; while his actual access and control over it, and the legal unity of person, made the possession as much his own as his wife’s.” The facts of the present case bring it within the principle of the decision just cited. There is evidence here that Mr. Arnold obtained an additional box in the safe deposit vault, and designated it as his wife’s box, saying that he was going to give to Mrs. Arnold all his negotiable bonds, and would put them in this box number 158; that he placed certain securities in the box at the time; that he gave her a key to it, and provided that she should have access to it whenever she wished; that she did have such access to the box thereafter, coming to the bank at times for that purpose in company with Mr. Arnold, and sometimes alone; that Mrs. Arnold said in the presence of her husband that he had given her all his bonds, and that she was to get any thereafter purchased by him; that Mrs. Arnold produced a list of bonds, which he said belonged to his wife; that his own will and that of Mrs. Arnold were then prepared in accordance with instructions, and in his own will he declared that he had turned over to Mrs. Arnold a certain portion of his property, which she had accepted, and that Mr. Arnold read his wife’s will and witnessed its execution, in which will she bequeathed a large estate, when at the time she had nothing to bequeath unless she was then owner of the bonds. There was also evidence that from time to time thereafter Mr. Arnold placed other bonds which he purchased, in the same box, and that nothing but such bonds were placed therein, he having two other boxes in the same vault, in which he kept his own securities and valuable papers. Under the principle of Herr’s Appeal, as cited above from Crawford’s Appeal, all this was evidence from which the fact of delivery of the bonds could be found. In Crawford’s Appeal a husband placed upon his books, to the credit of his wife, the sum of $3,000, and credited interest thereon from time to time. It was held that the facts of the transaction amounted to evidence of an executed gift. In cases of this character it is not necessary that any eye witness should be produced as to the fact of delivery; words of the donor indicating that he had renounced ownership are sufficient. Judge Penrose puts this clearly in Malone’s Estate, 8 W. N. C. 179, where he says (p. 182): With regard to the proof of actual delivery, it is not necessary that the witnesses shall have seen it take place. The bonds, or the notes, or the policy may have been at the time already in the custody of the donee, and in such case words indicating that the donor renounces all ownership would undoubtedly be sufficient.” He further says that “the delivery may be proved by the declarations of the donor, just as the gift itself may be; and when the donor declares that he had given at a previous time, and that the donee had then become the owner, it is implied that delivery, and indeed every other formality necessary to create a gift, had taken place. The law always presumes knowledge of its requirements.”

In the present case, without going into details of the testimony we may say that there are five witnesses, Mrs. Campbell, Mr. R. H. Leitch, Mr. Clark, Mr. Jenkins and Mr. Phillips, whose testimony as to the acts and declarations of Mr. Arnold, constitute ample justification, we think, for the findings of fact by the learned trial judge, and, upon those findings, his conclusion of law that they make out all the essentials of an executed gift, is warranted. This conclusion is further buttressed by the language of the wills already referred to, which were executed simultaneously by Mir, and Mrs. Arnold. In the will of Mr. Arnold he speaks of having turned over to his wife absolutely a certain portion of his property, and for that reason gives her nothing in that will. In the will of Mrs. Arnold, she gave to her husband the income of her bonds for life and after his death directed that the principal of her estate should be devoted to benevolent purposes. The evidence shows that Mrs. Arnold had little estate of her own, and therefore these references in the wills to property of Mrs. Arnold would be without meaning or significance, except upon the theory that the bonds had been given to her, and were subject to her disposal in her will.

It appears from the evidence that each knew and approved of the contents of the other’s will. The trial judge was impressed by this fact for he says, “These two wills, with the testimony of witnesses as to the declarations of the husband, and those of his wife made in his presence, before, at the time of, and after the execution of these wills, force the mind to the conclusion that he had made a gift of his bonds to his wife, and. that she had accepted them as her share of his estate.”

If the bonds became the property of the wife, as .and when they were placed in the safe deposit box for her by her husband, then all that he did with them thereafter, as disclosed by the evidence, was not inconsistent with such ownership by the wife. His access to the box and to the bonds was with her permission, and for purposes stated by her and consistent with her ownership. She was at liberty to give the coupons to her husband and to allow him or any other person to make sale of the bonds for her in case of necessity and to reinvest the funds in other securities. This is what seems to have been done. That shé should have relied upon her husband for these ■ services was. entirely natural.

Counsel for appellants cite the decisions in Clapper v. Frederick, 199 Pa. 609, and Ashman’s Estate, 223 Pa. 543, as sustaining their contention that there was no valid gift here. But in neither case was the alleged gift from husband to wife. In Clapper v. Frederick, the evidence showed merely an intention to give. There was no testimony at all showing delivery. In Ashman’s Estate the alleged donor stated in writing that he gave certain bonds to his son, but added that they were “not to be used until after my death.” The decision was based on the express grounds (p. 550) that the retention of control over the bonds was inconsistent with the claim of an executed gift and that the writing showed only a testamentary gift which was revoked by a subsequent will.

Counsel for appellants question the competency of E. H. Leitch as a witness, on the ground that he was counsel for James T. Arnold. But the evidence shows, and the court below finds as a fact, that at the time Mr. Leitch went with Mr. Arnold to the bank, and when the bonds were transferred in his presence to box 158, the relation of attorney and client did not subsist between them. Afterwards he was employed as counsel for both Mr. and Mrs. Arnold, and the transactions about which he testified, were their joint business and the conversations took place in the presence of both. Under these circumstances he was a competent witness: Goodwin Gas Stove & Meter Company’s Appeal, 117 Pa. 514; Seip’s Estate, 163 Pa. 423; Hummel v. Kistner, 182 Pa. 216.

The assignments of error are dismissed, and the d«r cree of the court below is affirmed.


source: Caselaw Access Project

author: Mr. Chief Justice Fell,

license: Public Domain

text:
    Commonwealth, v. DeMasi, Appellant.

      Criminal law — Murder—Robbery—Evidence.

      1. Where a prisoner is convicted of murder committed in the perpetration of a robbery, the crime is fixed as that of murder of the first degree, and the duty imposed upon the appellate court by the Act of February 15, 1870, P. L. 15, is limited to ascertaining whether there was competent evidence at the trial, which if believed by the jury, would sustain a verdict of guilty.

      Criminal law — Murder—Testimony of accomplice.

    2. There is no rule of law in Pennsylvania that forbids a conviction of murder on the uncorroborated testimony of an accomplice.

      Criminal law — Evidence—Privilege of witness — Murder.
    3. The right of a witness to refuse to testify on the ground that his testimony may incriminate him, is a right personal to himself alone. The person against whom the witness is called has no rights in relation to the matter. This rule applies to an accomplice who is willing to testify against the prisoner on the trial of an indictment for murder, and to whom the prisoner objects as a witness.

      Criminal law- — Murder—Evidence.
    4. Where a prisoner on trial for murder has assigned in his testimony in chief a reason for leaving the place of the killing on the morning following the occurrence, he may be questioned on cross examination in relation to a letter which he had written to a relative in which there were statements inconsistent with the reason he had assigned for leaving the city; and this is the case although the person to whom he had dictated the letter had not followed his directions strictly, if it appears that the prisoner knew what the letter contained, and had adopted it as written, and made it his own.
    Argued Jan. 2, 1912.
    Appeal, No. 42, Jan. T., 1911, by defendant from judgment of O. & T. Phila. Co., October Sessions, 1909, No. 377, on verdict of guilty of murder of the first degree in case of Commonwealth v. Sabatino DeMasi.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Indictment for murder. Before Ralston, J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree.

      Errors assigned were various rulings sufficiently shown by the opinion of the Supreme Court.

      Charles J Roney, Jr., with him E. B. Rockwell, for appellant.

      William A. Gray, Assistant District Attorney and Samuel P. Rotan, District Attorney, for appellee.
    February 5, 1912:
   Opinion by

Mr. Chief Justice Fell,

The murder of which the prisoner was convicted was committed in the perpetration of a robbery- There is, therefore, no question as to the degree of the crime. The duty imposed upon us by the Act of February 15, 1870, P. L. 15 is limited to ascertaining whether there was competent evidence at the trial, which if believed by the jury, would sustain a verdict of guilty: Grant v. Com., 71 Pa. 495; Com. v. Morrison, 193 Pa. 613; Com. v. Danz, 211 Pa. 507.

The facts developed by the Commonwealth were that a masked man entered a saloon late at night, and after demanding money of the bar-keeper, shot and killed him. Two other men who were in the saloon were shot, one fatally. No one who saw the shooting was able to identify the prisoner. The testimony directly connecting him with it was that of an accomplice to whom he expressed his intention to enter the saloon and rob the bar-tender and to whom he said when he came out of the saloon, that he had shot two men and had got thirty dollars. This testimony was corroborated by proof that the witness and the prisoner were together during the day, that they had visited the saloon together two or three times a few hours before and were close to it a short time before the shooting. The corroboration extended to every important fact testified to by the witness, except the prisoner’s expression of an intention to rob and his admission that he had shot the deceased. The testimony of the witness was submitted to the jury with great care by the learned trial judge in a charge to which no exception was taken. There is no rule of law in this State that forbids a conviction on the uncorroborated testimony of an accomplice: Ettinger v. Com., 98 Pa. 338; Cox v. Com., 125 Pa. 94. The duty to examine such testimony with care, and to accept and act upon it, only when convinced of its truthfulness, was pointed out in the charge.

The assignment based on the overruling of the objection to the calling of the accomplice as a witness for the Commonwealth, before counsel for the prisoner, who was also counsel for the witness, had had an opportunity to confer with the witness, cannot be sustained. The witness had been tried and convicted and was under sentence but his appeal had not been heard. It was his right to be advised of his privilege not to testify and it was the duty of the court to inform him of this right. This duty was fully performed and the witness after being informed of his privilege and told that his testimony might be used against him, expressed his willingness and desire to testify. The right of a witness to refuse to testify on the ground that his testimony may incriminate him, is a right personal to him alone. The person against whom the witness is called has no rights in relation to the matter.

The remaining assignment is without merit. The prisoner in his testimony in chief had assigned a reason for leaving Philadelphia on the morning following the murder. On cross-examination he was questioned in relation to a letter he had sent to his uncle in which there were statements inconsistent with the reason he had assigned for leaving the city. The letter had been written at Ms dictation and wMle Ms directions had not been strictly followed, he knew what the letter contained and had adopted it as written and made it his own.

The assignments of error are overruled and the judgment is affirmed with direction that the record be remitted for the purpose of execution.


author: Mr. Justice Potter,

text:
    Commonwealth v. Reed, Appellant.

      Appeals — Assignments of error — Charge of court.

    1. An assignment of error quoting two distinct sentences in the charge separated by a page and a half of printed matter, is bad practice.
    2. Assignments of error criticising the charge in general terms, without quoting any of it ipsissimis verbis, are improper and will be disregarded.

      Criminal law — Murder—Degree of murder — Second degree— Manslaughter — Deadly weapon — Premeditation.
    3. Where the evidence on a trial of an indictment for murder has established a felonious homicide committed by the use of a deadly weapon upon a vital part of the body of the deceased, there is a presumption of murder of the second degree, and the burden is on the defendant to reduce the grade of the crime.
    4. On the trial of an indictment for murder it is not error for the court to charge the jury as follows: “It is not necessary that you find that he went to the house with the intent to kill; if he formed the intent to kill with a mind capable of forming that intent, an instant before he pulled that trigger, he is guilty of murder of the first degree.”
    Argued Jan. 2, 1912.
    Appeal, No. 274, Jan. T., 1912, by defendant from judgment of O. & T. Franklin Co., Sept. T., 1911, No. 2, on verdict of guilty of murder of the first degree in case of Commonwealth v. William Heed.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Indictment for murder. Before Giclan, P. J.
    The facts are stated in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree on which judgment of sentence was passed. Defendant appealed.

      Errors assigned were various instructions referred to in the opinion of the Supreme Court.

      John W. Hohe, with him Irvin C. Elder, for appellant.

      D. Edward Long, District Attorney, for appellee.
    February 5, 1912:
   Opinion by

Mr. Justice Potter,

It appears from the record in this case that William Reed was tried in the Court of Oyer and Terminer of Franklin County, for the murder of Sarah E. Mathna. The latter was employed as a domestic in Weistling Hall, the administration building of the Forestry Academy located on the State Reservation at Mont Alto, Franklin County. Although married to another man, she had lived from September 1909 to August 1910 with Reed, - but on the latter date they had separated, and the following November she obtained a position in the Forestry Academy where she had previously been employed. On the morning of May 9, 1911, while she was grinding coffee in the kitchen of the administration building, Reed came in. They talked together for about a quarter of an hour, being alone, when Reed drew a revolver and shot her three times, the last bullet, which penetrated near the heart, causing her death. Reed was arrested and indicted for her murder; and on the trial in September, 1911, Avas convicted of murder of the first degree.

Counsel for appellant are to be commended for the faithful but temperate manner in which they have discharged their duty. The record does not, however, disclose anything which would justify a reversal of the judgment of the court below. The direct testimony as to the shooting was that of Reed himself. He testified that he went to the Forestry Academy, where Mrs. Mathna was employed, for the purpose of getting from her some pictures and papers of his which she had. He asked her for them and she went upstairs, got them and brought them down fco the kitchen. She then took them all, except one big one, walked around to the range and put them in the fire. He was standing two or three steps from her and told her that he would not stop much to slap her for putting those things in the stove. Then she raised up the coffee mill and told him she would knock his head off if he did not get out of there. She was cross the whole time he was there. He happened to have a revolver, and started to shoot for the purpose of scaring her, not with any intention of hitting or hurting her. He had been drinking that morning and was not sober. If he had been sober he would not have done it. He did not intend to harm her at all, just to scare her. He could only recall firing two shots and could not see where the third shot came from. She ran from the room. He did not follow her. He did not remember leaving the house. Afterwards he looked at his revolver and saw three loads had been fired, but could not account for more than two. He had heard a noise like a bump on the floor or someone opening a door, as he left the room, and he thought afterwards he might have hurt her. He decided to give himself up, and was on his way to the squire’s office for that purpose when he met the constable who took him into custody. The Commonwealth alleged that the shooting was due to jealousy, and offered testimony mainly of declarations by the accused, both before and after the shooting, to show premeditation. Counsel for appellant did not attempt to secure an acquittal, but contended for a verdict of voluntary manslaughter.

Eighteen assignments of error have been filed, all of them to the charge of the court. In presenting the first assignment, two disconnected sentences were taken which, as actually found in the charge, are separated by a page and a half of printed matter. This is bad practice. It is unfair to the trial judge, and has frequently been condemned: Com. v. Eckerd, 174 Pa. 137; Brinton v. Walker, 15 Pa. Super. Ct. 449. The objection to the portions of the charge quoted is without merit, as they merely placed the burden of proof on the defendant to reduce the grade of the murder with which he was charged, from second degree to manslaughter. This was in accord with the rule recognized in the recent cases of Com. v. Greene, 227 Pa. 86, and Com. v. Chapler, 228 Pa. 630, that where the evidence has established a felonious homicide, committed by the use of a deadly weapon upon a vital part of the body of the deceased, there is a presumption of murder of the Second degree, and the burden is on the defendant to reduce the grade of the crime. In Com. v. Gibson, 211 Pa. 546, it was said, Per Curiam,' “Legal malice as an ingredient of murder is presumed from the use of a deadly weapon against a vital part of the body.” In Com. v. Eckerd, 174 Pa. 137, Mr. Justice Mitchell said (p. 149) : “The intent to take life, fully formed, is presumed from the use of the weapon, and certainly where as in this case it was fired three times.”

The second assignment of error is to the lo [lowing extract from the charge: “It is not necessary that you find that he went to the house with the intént to kill; if he formed the intent to kill, with a mind capable of forming that intent, an instant before he pulled that trigger, he is guilty of murder of the first degree.”' This instruction was proper, under the authorities. In Keenan v. Commonwealth, 44 Pa. 55, Chief Justice Lowrie said (p. 56) : “Our reported jurisprudence is very uniform in holding that the true criterion of the first degree is the intent to take life. The deliberation and premeditation required by the statute are not upon the intent, but upon the killing. It is deliberation and premeditation enough to form the intent to kill, and not upon the intent after it has been formed. An intent distinctly formed, even for a moment before it is carried into act, is enough.” In Green v. Commonwealth, 83 Pa. 75, Chief Justice Agnew referring to the case of Com. v. Drum, 58 Pa. 9, repeated the language used by him in that case, as follows; (p. 80): “If there be time to frame in the mind fully and consciously the intention to kill, and to select the weapon or means of death, and to think and know beforehand (though the time be short) the use to be made of it, there is time to deliberate and premeditate.” In Com. v. Krause, 193 Pa. 306, Mr. Justice Fell said (p. 308) : “The nature of the weapon (a revolver) and the manner of its use (firing five shots, two of which were fatal) indicated an intention to kill.” In Com. v. West, 204 Pa. 68, it was said, Per Curiam, (p. 70) : “We are all clearly of the opinion that the ingredients of murder in the first degree exist in this case. The fatal shot was fired from a deadly weapon and was directed against a mortal part. There was sufficient evidence, if believed by the jury, of deliberation and premeditation. The first shot did not kill but only disabled the officer. Between it and the time of firing the second and fatal shot ample time elapsed to enable the prisoner to form a conscious design to kill and to carry it into effect. As said by Judge Bush in Commonwealth v. Smith, ‘No time is too short for a wicked man to form in his mind his scheme of murder and to contrive the means of accomplishing it.’ ”

The third and fourth assignments allege error in portions of the charge containing instructions as to the deductions to be drawn from the evidence as to the use of a deadly weapon, and as to the rules governing the proof of intent to kill. There was no error in these instructions, as they are justified under the authorities already cited.

In the fifth, sixth, seventh, eighth and ninth assignments of error complaint is made of portions of the charge as tending “to unduly affect and prejudice the jury against the defendant.” These parts of the charge, however, are fair statements of the evidence and accurate presentations of the law.

We do not find any basis for the tenth assignment of error, which complains that the trial judge misstated to the jury the testimony of the defendant as to his recollection of the number of shots he fired. The language quoted seems to state correctly the testimony of the defendant in this respect.

In the eleventh and twelfth assignments of error it is alleged that the trial judge quoted to the jury testimony as to threats made by the defendant prior to the killing, without telling them that the testimony was specifically denied by the defendant. But an inspection of the charge shows that immediately after repeating this testimony, the trial judge said, “I am not saying that these things are so; what I am saying to you is that that is the testimony of the Commonwealth; consider if this testimony is true, and if it is true, does it show that he had a specific intent to take life. You will consider all of this evidence and determine whether or not the testimony of these witnesses is the truth.” And after a few sentences he says further, “Remember not only the testimony of the Commonwealth, but remember especially the testimony of the defendant himself, notwithstanding the circumstances under which he testifies. Weigh all the evidence on both sides: Give each its due weight.”

In the thirteenth, fourteenth, fifteenth and sixteenth assignments of error, the charge is criticised in general terms, but no part of it is quoted ipsissimis verbis in the specifications, as required by Rule 27. These assignments will therefore be disregarded.

In the seventeenth assignment it is averred that the court erred in not instructing the jury that they must be convinced of the defendant’s guilt beyond a reasonable doubt. It appears, however, that in the sixth and seventh points submitted by defendant for charge, the court was asked to give the jury instructions on the subject of reasonable doubt. These requests were both affirmed without qualification. In the seventh point the jury were told that the mind of each juror “must be convinced beyond a reasonable doubt of the defendant’s guilt before he can consent to a verdict of guilty.”

In the eighteenth assignment it is alleged that the court, erred in failing to call the attention of the jury to the defendant’s specific denial of any intent to kill. There was no specific request for such an instruction, but it does appear that the trial judge twice said to the jury in charging on the subject of intent, that “the prisoner says that he shot to scare her.” And that, as noted above he charged the jury to “remember especially the testimony of the defendant himself.”

The judgment is affirmed, and it is ordered that the record be remitted to the Court of Oyer and Terminer of Franklin County, that the judgment may be executed according to law.


author: Mr. Justice Moschzisker,

text:
    Wright’s Estate.

      Life estate — Remainderman—Expenditures for preservation of estate — Trusts and trustees.

    Where the Orphans’ Court makes a decree authorizing a trustee to expend out of the principal of the trust estate a sum sufficient to improve dilapidated and untenantable real estate, so as to avoid an inevitable sale to prevent the real estate from becoming a charge upon the life tenant, and the court further decrees with the consent of the life tenant that the trustee shall set aside one-third of the net income from the property so improved to reimburse the principal of the trust estate, and it appears that as a result of the improvements, the property is saved and in the course of time doubles in value, the life tenant has the right, after nearly a third of the expenditure has been reimbursed to principal out of income, to have the decree of the court modified so as to relieve him from the further application of one-third of his income to the reimbursement of principal.
    Argued Jan. 3, 1912.
    Appeal, No. 83, Jan. T., 1911, by S. Megargee Wright, from decree of O. C. Phila. Co., July T., 1895, No. 104, dismissing petition to modify prior decree in Estate of John Wright, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Petition to modify prior decree of the Orphans’ Court.
    The facts are stated in the opinion of the Supreme Court.

      Error assigned was decree dismissing the petition.

      Frederick B. Vogel, with him Henry K. Fox, for appellant.
    — Primarily principal should pay for improvements and income for repairs: Little v. Little, 161 Mass. 188 (36 N. E. Repr. 795); Lutz’s Estate, 27 W. N. C. 403; Tragbar’s Estate, 2 Pa. D. R. 407; Bradley’s Estate, 3 Pa. D. R. 359; Culp’s Estate, 5 Phila. 97.
    If the decrees of 1895 and 1897 are permitted to stand as made, the inequitable iniquitous result is attained of the life tenant’s compulsory donation of the entire cost of the improvements and of the remaindermen exclusively deriving the benefit (A) of the increase of the value, if any, in addition to (B) the contributions of the life tenant: Phillip’s Estate, 12 Pa. D. R. 690; Smith’s Estate, 53 Pitts. Leg. J. 136.

      A. H. Wintersteen, for appellee.
    February 5, 1912:
   Opinion by

Mr. Justice Moschzisker,

In 1895 John Wright died testate, leaving to survive him one son, Samuel Megargee Wright. He devised his residuary estate to his executor, the Girard Trust Company, “In trust to collect and receive the rents and income of the real estate and the interest and dividends of the personal estate, and after deducting all expenses incident to the execution of the trust to pay the same in quarterly yearly payments to my son Samuel Megargee Wright for and during the full end and term of his natural life, in such way and manner that the same shall not be subject to or liable for his debts, contracts or engagements in any way whatever;” upon his son’s death to pay unto the latter’s wife, Heloise C. Wright, if surviving, an annuity during widowhood of $3,000, then to pay for the support, maintenance and education of the testator’s grandchildren an annual sum not exceeding $2,000 for each, and ultimately to convey the corpus to such grandchildren as should be living at the son’s death and to the issue, per stirpes, of any then deceased.

At the time of his decease the testator was seised of an undivided one-third interest in certain real estate in the City of Philadelphia which passed to the Girard Company as trustee of the residuary estate. These properties were in such a dilapidated condition that they were untenantable, and the trustee petitioned the Orphans’ Court for leave to join with the other owners in erecting new buildings at an expenditure out of the trust estate of not more than $17,500. The life-tenant and his wife filed answers and agreed that from time to time one-third of the annual income from the real estate in question should be retained by the trustee to reimburse the principal fund for the expenditure thus to be incurred; and the court decreed that, “the said trustee shall set aside in each and every year a sum equal to one-third of the net income derived from the property to be improved, so as to create a fund for the purpose of reimbursing the principal of the said trust estate for the expenditures hereby authorized to be incurred for the said improvement.”

The trustee expended a total of $16,736, and down to May 9, 1910, had retained $6,355.24, income to reimburse the principal. In May, 1910, Samuel Megargee Wright petitioned the Orphans’ Court to modify its decree so that no further income should be retained, and that he be paid the money theretofore withheld. The petitioner urged that the property had greatly increased in value, and the trustee admitted this fact in its answer. The petition was referred to a master who reported that its prayers should be refused on the ground that the application was premature, because it was impossible to determine “at this time what value the improvements will have when the life-estate expires.” The Court below confirmed the report of the master and dismissed the petition; the life-tenant has appealed.

Ordinarily the cost of permanent improvements of the character of those in this case would be paid from principal and not out of income, but arrangements for the mutual benefit of all concerned, such as here decreed, whereby the income bears the burden, are not unusual in this State. But it is always within the power of the Court, where the interests of third parties do not intervene, to reconsider its decrees and to control and modify such arrangements according to changed circumstances, as justice and equity may require.

The evidence clearly shows that the property has doubled in value since and with the improvements, and that it has been changed from unrentable real estate into a large revenue producer. While the Orphans’ Court adopted the findings of its master, who attributed the first gain entirely to the increase in the value of the land, we agree with the dissenting opinion filed by Judge Lamorelle of the Court below to the effect that the testimony does not support that view. This large increase in value took place subsequent to the improvement, and the testimony is that had the property not been improved it would have been necessary to sell it in 1895 to prevent its becoming a charge upon the life-tenant, who was the primary object of the testator’s bounty, for the benefit of the remaindermen; furthermore the other owners in common desired to change the property into a revenue producer, and had the arrangements for the financing of the improvement not been entered into at that time it is probable that a sale in partition would have been forced upon the trustee. The improvement enabled the trustee to hold the land and to gain the great increase in value which has taken place, for the benefit of the remaindermen as well as of the life-tenant; and the time has arrived when no further contribution should be taken from income. A careful review of this whole record convinces us that, while the f6,355.24 retained by the trustee need not now be refunded out of the principal of the estate, justice and equity require that the life-tenant be granted relief to the extent indicated. We are not called upon and it would serve no useful purpose to consider the other points urged before us by the appellant but not raised in the Court below.

The assignment of error is sustained and the record is remitted to the Orphans’ Court with directions t<^ modify its decree in accordance with tbe view bere expressed. Tbe costs of this appeal to be paid out of tbe income of tbe estate.


text:
    Rowan’s Estate.

      Wills — Issue devisavit vel non — Refusal of issue — Signature—■ Alterations — Evidence.
    An issue devisavit vel non is properly refused where five witnesses positively identify the signature to the will as that of the testatrix, and testify that the entire will is in her handwriting, including interlineations and additions, and only one testifies that she thought the handwriting did not look like that of testatrix.
    The will is not avoided because the testatrix in her own handwriting added interlineations to identify two of the devisees by their married names, and because she added the abbreviations “Jr” to the name of the executor.
    Argued Jan. 4, 1912.
    Appeal, No. 171, Jan. T., 1912, by Sarah Harper, from decree of O. C. Phila. Co., Oct T., 1909, No. 385, refusing issue devisavit vel non in Estate of Emma A. Rowan, deceased.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from Register of Wills.
    Tbe opinion of tbe Supreme Court states tbe case.

      Error assigned was tbe decree dismissing tbe appeal.

      Frederick Beyer, for appellant.
    — Where there is a substantial dispute upon a material question of fact, sucb an issue is a matter of right, and tbe test of substantiality in tbe dispute is that a verdict could be supported by tbe trial Judge, upon a review of all tbe évidence adduced: Sharpless’ Estate, 134 Pa. 250; Knauss’ App., 114 Pa. 10; Armour’s Estate, 154 Pa. 517; Robinson v. Robinson, 203 Pa. 400.
    When tbe testator adds to bis will or desires to change in any manner its provisions or directions he must do so by another will or codicil in writing: Wineland’s App., 118 Pa. 37; Hays v. Harden, 6 Pa. 409.

      Joseph P. McCullen, with him Harry Green, for apipellees.
    — There was no evidence to warrant tbe granting of an issue: Knauss’ App., 114 Pa. 10.
    Tbe interlineations written into tbe will by tbe testatrix did not invalidate tbe document: Heise v. Heise, 31 Pa. 246; Taylor’s Estate, 230 Pa. 346.
    The interlineations and tbe addition of tbe abbreviation “Jr.” in tbe appointment of an executor did not serve to revoke tbe executed will and did not amount to an obliteration or cancellation or invalidation of tbe document: Dixon’s Appeal, 55 Pa. 424; Linnard’s Appeal, 93 Pa. 313; Tomlinson’s Estate, 133 Pa. 245; Teed’s Estate, 225 Pa. 633; Taylor’s Estate, 230 Pa. 346; Fuguet’s Will, 11 Phila. 75; Ramsey’s Will, 2 Pa. D. R. 425.
    February 5, 1912:
   Opinion by

Mr. Justice Potter,

Tbe appellant in this case alleges that tbe Orphans’ Court erred in refusing to grant an issue devisavit vel non, to determine whether tbe writing admitted to probate is in fact tbe will of Emma A. Rowan, deceased. We are not impressed with tbe merit of this contention. •The action of tbe court beloAV seems to be abundantly justified by tbe undisputed facts which appear in tbe record. Five witnesses positively identified tbe signature to tbe will as being that of tbe decedent, Emma A. Rowan, and they testified that tbe entire will was in her bandwriting, including tbe interlineations and additions. Opposed to this positive testimony was nothing except tbe opinion of one witness, tbe appellant, who thought the handwriting did not look like that of Emma A. Rowan. Evidence of this character, as against the positive identification of the handwriting, was not sufficient to justify the granting of an issue; and it was properly refused. The interlineations were not in the nature of alterations to the will. They tended only to further identify two of the devisees, .by adding their married names, and the addition of the abbreviation “Jr.” to the name of the executor, was of the same character. The Orphans’ Court was undoubtedly right in holding that these changes, made after the execution of the will, did not avoid it.

The assignments of error are overruled, and the decree of the court below is affirmed.


author: Per Curiam,

text:
    Gessler v. Graham, Appellant.

      Contract — Sale—Cemetery monument — Compliance with contract — Evidence—Charge of court.

    In an action to recover the price of a monument, where the defense was that the granite used was not the kind stipulated, and that there were substantial defects in material and workmanship, the trial judge properly charges that the plaintiffs were bound to furnish the kind of granite specified, and if they did not they could not recover; and if they furnished the kind specified, but that the workmanship although not perfect, substantially complied with the contract, the plaintiff might recover the contract price less an allowance for minor defects.
    Argued Jan. 3, 1912.
    Appeal, No. 95, Jan. T., 1911, by defendant from judgment of C. P. No. 4, Pbila. Co., March T., 1910, No. 2732, on verdict for plaintiffs in case of John M. Gessler and Martin J. Gessler, co-partners, trading as John M. Gessler’s Sons v. Emma P. Graham.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.

      Assumpsit for the price of a monument. Before Audeneied, J.
    The opinion of the Supreme Court states the case.
    Verdict and judgment for $jl,615. Defendant appealed.

      Errors assigned were various portions of the charge.

      Avery D. Harrington, with him Edgar J. Pershing, for appellant.

      Clifton Maloney, for appellees.
    February 5, 1912:
   Per Curiam,

This action was on a written contract for the erection of a monument in a cemetery. The defense was that the granite used was not the kind stipulated for and that there were substantial defects in materials and workmanship. The instruction by the learned trial judge was that the plaintiffs were bound to furnish the kind of granite they agreed to furnish and that if they failed to do this, or failed to substantially comply with the contract in any respect, they could not recover; that if the granite used was the kind stipulated for but the workmanship was not perfect, but substantially complied with the contract, the plaintiff might recover the contract price less an abatement or allowance for minor defects. With this instruction the defendant had no just ground of complaint. The questions at the trial were purely those of fact and we find no error in the manner in which they were submitted to the jury.

The judgment is affirmed.


text:
    Bergdoll to use, Appellant v. A. G. Spalding & Brothers, Incorporated.

      Landlord and tenant — Payment of rent — Place of payment.

    Where a written lease does not provide a place at which the rent is payable it is the duty of the landlord before he can take advantage of a forfeiture clause, to make a demand for the rent upon the demised premises, and this is so even though there had grown up between the parties a practice by which the tenant had paid the rent to the landlord elsewhere.
    Argued Jan. 4, 1912.
    Appeal, No. 185, Jan. T., 1911, by plaintiff from order of C. P. No. 3, Phila. Co., March T., 1911, No. 4329, making absolute rule to strike off judgment in case of Louis J. Bergdoll to use v. A. G. Spalding and Bros., Incorporated.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Rules to open and strike off judgments.
    Ferguson, J., filed the following opinion:
    There are two rules in this case, one to open judgment and one to strike off. judgment. We are of the opinion the rule to strike off the judgment should be made absolute. We can do this only when the record shows a defect that invalidates the judgment, and such a defect appears in this case. The judgment was entered by amicable action provided for under the terms of a written lease. The lease itself provides no place at which the rent is payable and the forfeiture clause gives to the landlord the right to file the amicable action and confess judgment in ejectment if the rent be at any time in arrear and unpaid. The specific breach averred in the action is the failure to pay the rent due from the first day of April, 1911, until the twenty-first day of that month, to the plaintiff at premises 4910 Wynnefield Avenue. The lease provides for the payment of the rent monthly on the fifteenth day of the month and certain letters which passed between the parties are attached to the amicable action to show a change in the terms of the lease. Upon inspection of these letters it would appear that the tenant was requested upon a change of ownership to pay the rent to the plaintiff at 4910 Wynnefield Avenue, Philadelphia, that the defendant, upon receipt of such request, wrote a letter to the plaintiff enclosing the check for the rent then due and expressing a willingness to pay the rent thereafter on the first of the month instead of the fifteenth, to which the plaintiff replied that such an agreement would be acceptable.
    When the written lease does not provide a place at which the rent is payable it is the duty of the landlord, before he can take advantage of a forfeiture clause, to make a demand for the rent upon the demised premises and this is so even though there had grown up between the parties a practice in which the tenant sought the landlord paid the rent to him elsewhere: Rea v. Eagle Transfer Co., 201 Pa. 273. There was no allegation or averment in the amicable action in this case of any demand upon the land for the payment of the rent before the forfeiture was invoked. It is argued, however, that because of the letters which passed between the parties that a place was fixed for the payment of the rent. These letters are not a part of the lease and as we read them they appear to be nothing more than a mere expression of willingness on the part of the tenant to pay the rent at a certain time and place, and on the part of the landlord to receive it. They do not constitute a contract, nor can they be sáid to be binding upon either party.
    The evidence appearing in the depositions appears to us ample to justify the court in opening the judgment, but do not think it necessary to leave the matter open for further determination when the record itself shows no right to a judgment.

      The rule to strike off the judgment is therefore made absolute.

      Error assigned was the order of the court.

      David J. Myers, with him Arno P. Mowitz, for appellant. —
    No demand was necessary. Singer v. Sheriff, 28 Pa. Super. Ct. 305; Lynch v. Versailles Fuel Gas Co., 165 Pa. 518; Hand v. Suravitz, 148 Pa. 202; Wilgus v. Whitehead, 89 Pa. 131; McNish v. Reynolds, 95 Pa. 483; Carrier v. Dilworth, 59 Pa. 406; Williams v. Irwin, 99 Pa. 37.

      John G. Johnson, with him James Wilson Bayard, for appellee.
    — No place for payment of rent having been specified in the lease, demand for payment upon the land was a prerequisite to the action. McCormick v. Connell, 6 S. & R. 151; Rea v. Transfer Co., 201 Pa. 273; Homet v. Singer, 35 Pa. Super. Ct. 491; Hughs v. Lillibridge, 8 Pa. D. R. 358.
    If the time and place for payment of rent were validly changed by the letters of January, 1911, as no forfeiture was provided for in the event of the nonpayment at the changed time and place, the landlord is not entitled to enforce any forfeiture. Rea v. Transfer Co., 201 Pa. 273.
    Where compensation can be fully made equity will in general relieve against a forfeiture. Lynch v. Versailles Fuel Gas Co., 165 Pa. 518; Steiner v. Marks, 172 Pa. 400; Cogley v. Browne, 15 Phila. 162; Times Co. v. Siebrecht, 15 Phila. 235; Merrill v. Trimmer, 2 Pa. C. C. R. 49.
    February 5, 1912:
   Per Curiam,

The order of the Court of Common Pleas is affirmed on the opinion of Judge Ferguson.


text:
    Ehlers, Appellant v. Philadelphia.

      Road law — Damages—Tenant—Voluntary removal.

    Where a tenant on the line of a proposed street improvement in a city voluntarily removes from the premises without notice from an authorized agent of the municipality, and the city subsequently tears down the buildings on the demised premises, the tenant can recover no damages from the city for the loss of his tenancy.
    Argued Jan. 4, 1912.
    Appeal, No. 190, Jan. T., 1911, by plaintiff from order of C. P. No. 4, Phila. Co., June T., 1908, refusing to take off non-suit in case of Julius C. Ehlers v. Philadelphia.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Appeal from award of jury of view. Before Atjdeneied, J.
    At the trial the court entered a compulsory non-suit which it subsequently refused to take off.

      Error assigned was refusal to take off non-suit.

      Frederick H. Warner, for appellant.
    — The plaintiff did not vacate his tenancy voluntarily but only as a consequence of a legal taking of the same by the city of Philadelphia: Uhler v. Cowen, 199 Pa. 316; Shipley v. R. R. Co., 216 Pa. 512.
    Even if the tenant by remaining after the legal appropriation by the defendant became a tenant at will or at suffrance he would still be entitled to maintain this action. Philadelphia v. Dyer, 41 Pa. 463; Uhler v. Cow-en, 199 Pa. 316.

      Percy C. Feger, with him Edgar Dudley Faries, assistant city solicitor, and Michael J. Ryan, city solicitor for appellee.
    — The date of service of the three months notice by the city of Philadelphia fixes the time of the taking of the property: DeHaven’s Estate, 12 Pa. D. R. 680; Fries v. R. R. & Mining Co., 85 Pa. 73; Hoffman’s App., 118 Pa. 512; Franklin Street, 14 Pa. Super. Ct. 403.
    Any person is an owner within the meaning of the Road Laws of Pennsylvania, and thereby entitled to the notice contemplated, who has a tenancy in the land affected, whether that tenancy be in fee, for life or for years. Phila. & R. R. R. Co. v. Getz, 113 Pa. 214; Brown v. Powell, 25 Pa. 229.
    If such an owner receives no notice to vacate he need not do so, and the Courts of this Commonwealth will restrain a municipality attempting to interfere with his possession. Large v. Philadelphia, 35 Pa. 231.
    February 5, 1912:
   Opinion by

Mr. Justice Moschzisker,

The refusal to take off the non-suit entered in this case is amply sustained by the following excerpts from the opinion of the learned trial judge :

“By an ordinance approved October 13, 1906, the City of Philadelphia directed the opening of the thoroughfare known as the Parkway northwestward from Logan Square to Spring Garden street and provided that notice should be given to the owners of the strip of land thus appropriated that at the expiration of three months that highway would be opened through their property. The Parkway has since been actually opened in that part of its course. At the time of the passage of this ordinance Julius C. Ehlers was the occupant of property known as No. 2211 Noble street, in which he carried on a laundry business. The building was owned by Sea-fried Brothers. On April 1, 1902, by a written lease, now lost, it had been let by its owners for the term of three years from that date, to Julius C. Ehlers and William C. Chryst, co-partners, trading as the Mechanics’ Laundry, at a rental of $20 per month, the lessees paying the water rent and the cost of repairs. The lease provided that it should continue in force from year to year until one of the parties thereto should have notified the other six months prior to the end of the current year that the tenancy would then be terminated. Ehlers and Chryst held over after the expiration of their original term of three years, and on October 1, 1906, dissolved their partnership. The lease, with the machinery that the firm had installed in the premises demised, was orally assigned to Ehlers who continued to carry on the laundry business there, and who, thereafter, was recognized by Seafried Brothers as their tenant under the written lease they had given to his firm. Neither landlords or tenant ever signified to the other an intention that Ehler’s occupancy of the property should cease on March 31, 1907.”
“On October 15, 1906, a written notice, signed by the Chief of the City’s Bureau of Highways and directed to Charles and Albert Seafried, informing them that at the expiration of three months from that date the Parkway would be opened through and over the ground owned by them, was left for them at number 2211 Noble street. No such notice was given to Ehlers either by the City or by his landlords. On April 1, 1907, however, the plaintiff moved from the Noble street building taking his machinery with him. This he did because he had been requested to do so by a party whose name he cannot give and whose connection with and authority to act for the city is not shown, but who seems to have been concerned in the tearing down of the adjacent house.”
“We see in these facts no reason to disturb the judgment of non-suit entered by the trial judge. It is true that the building No. 2211 Noble street has been torn down by the city and a public highway constructed over the land on which it stood, but all this was done after he voluntarily vacated the property on April 1, 1907. If, as he claims, Ehlers had the right under his lease to occupy that property for another year, that right must be regarded as abandoned when he moved out, or surrendered to the city which had acquired title to the fee by deed from the lessors. If the plaintiff chose to cease paying rent and remove from his holding, the City’s action in entering upon it was not a taking in respect of which he is entitled to compensation. One cannot be deprived of what he has abandoned of his own free will.”
“It is urged that the plaintiff’s removal from the building on Noble street was not a voluntary one, but to say this is to ignore the facts. The notice from the Bureau of Surveys of the intended opening of the Parkway was intended for Seafried Brothers. No such notice was given by that Bureau to Ehlers; nor was he ever notified to quit by his landlords, as was the case in Uhler v. Cowen, 192 Pa. 443; 199 Pa. 316. The only demand that plaintiff move from the building occupied by him came from some unknown person, who, so far as was made to appear, had no authority on behalf of the city to threaten, as it is said he did, that unless Ehlers left it the house would be torn down on top of his machinery. This was not sufficient notice under the Act of April 21, 1855, sec. 7, P. L. 264 (Purdon’s Dig. [13th Ed.] 2948), and, if there was nothing more, any interference by the city with Ehler’s possession would, on proper application to the court, have been restrained by injunction: Large v. Philadelphia, 35 Pa. 231. There can be no doubt that the plaintiff acted precipitately, and moved before he was obliged to do so. .Had he displayed less nervousness and waited for matters to take their due course, he might have been able to retain possession for the full period for which he says he was entitled to it. Be that, however, as it may, — the city found the Noble street property abandoned and tore it down. As its abandonment was not attributable to any demand on its part, it cannot be said to have deprived Ehlers of Ms interest therein; and it, therefore, is under no liability to him.”

A discussion of the first assignment of error is not necessary to the decision of this case; both assignments are overruled and the judgment is affirmed.


text:
    Pokras, Appellant v. Pennsylvania Salt Manufacturing Company.

      Negligence — Infant—Wagon—Charge of court.

    In an action to recover damages for personal injuries to a boy six years old alleged to have been caused by the negligence of defendant’s driver, a verdict and judgment for the defendant will be sustained where the weight of the testimony is overwhelming to the effect that the boy had approached the wagon from behind, and climbed on the side between the wheels, and in attempting to get off had placed his foot between the spokes of a hind wheel, and that this action of the boy had resulted in his fall and injury.
    Argued Jan. 5, 1912.
    Appeal, No. 183, Oct. T., 1911, by plaintiffs from judgment of C. P. No. 4, Phila. Co., Sept. T., 1908, No. 3745, on verdict for defendants in case of Hyman Pokras, by Ms father and next friend, Philip Pokras and Philip Pokras in his own right v. Pennsylvania Salt Manufacturing Company.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries to a boy six years old. Before Willson, P. J.
    The opinion of the Supreme Court states the cáse.
    Verdict and judgment for defendant. Plaintiffs appealed.

      Errors assigned, were various portions of the charge, and the charge as a whole.

      John C. Gilpin, with him Bernard Pockrass and Graham & Gilfillan, for appellant.

      William Findlay Brown, for appellee.
    February 5, 1912:
   Per Curiam,

The burden of the appellant’s complaint is that there was a failure by the court to adequately present to the jury the plaintiff’s testimony and that undue prominence was given to the testimony for the defendant. The boy who was injured was six years of age, and in his action and that of his father combined with it, a recovery was sought on the ground that he had started to cross a street thirty feet in front of the defendant’s team, and through the negligence of the driver was knocked down by the horses and run over by the wheels of the truck. The defense was that the boy had approached the truck from behind it, had climbed on the side between the wheels and in attempting to get off had placed his foot between the spokes of a hind wheel. The learned trial judge was evidently of opinion that the weight of the testimony was overwhelmingly with the defendant. We are of the same opinion. He carefully submitted both sides of the controversy and called attention to the testimony in support of each. We find no error in the charge. The caution to the jury in the following words: “Every juryman ought to take pride in trying to get what is just between the parties, that is what you ought to try to do in this case. That is all that either a juryman or a judge ought to have in view in the trial of a case,” was called for by the circumstances of the case, and was eminently proper

The judgment is affirmed.


author: Mr. Justice Stewart,

text:
    Commonwealth, v. Andrews, Appellant.

      Criminal law — Murder—Evidence—Alibi—Erroneous charge.

    1. Where the main purpose of evidence adduced by a defendant in a murder trial is to establish an alibi, but not the only purpose, it is error for the court in its charge to confine the effect of such evidence to the one purpose of establishing the alibi.
    2. On the trial of an indictment for murder where the evidence against the prisoner is purely circumstantial, and the defendant offers evidence for the purpose in part of establishing an alibi, it is error for the court to charge in such a way as to leave the jury to understand that they are to scrutinize more closely the evidence offered to show absence of the defendant from the scene of murder when perpetrated, than that offered to show his presence at the time, on the ground that the former was open to the suspicion that it was the product of subornation and perjury.
    3. The measure of proof when the sufficiency of evidence offered to establish an alibi is the question, is simply that it shall be satisfactory. It need not be beyond doubt. Where the evidence raises a balancing question, and the mind is brought to determine its preponderance, there may be a doubt still existing in the mind, yet the actual weight may be with the prisoner; and this proof will be considered satisfactory.
    4. Proof of an alibi is as much a traverse of the crime charged, as any other defense, and proof tending to establish it while not clear, may, nevertheless with other facts of the case, raise doubt enough to produce an acquittal.

      Criminal law — Murder—Good reputation — Charge—Motive— Reasonable doubt.

    5. On the trial of an indictment for murder where twenty or more witnesses testify to the good character of the accused, the charge is wholly inadequate as to such testimony where it merely says “some twenty witnesses were called upon the part of the defendant to testify to the general good character of the defendant, as a peaceable, law-abiding citizen,” and such inadequacy is not cured by an instruction in answer to points that “the evidence of this character is to be considered with the other evidence in the case, and if all the evidence combined creates a reasonable doubt, the defendant is entitled to acquittal.”
    6. On the trial of an indictment for murder where the motive charged was the desire of the accused to prevent the deceased from testifying in an inquiry as to a charge of embezzlement against the accused, it is only necessary to show the charge against the accused; that the investigation was still proceeding, that the deceased had been requested and was expected to testify; that his testimony, if given, would have inculpated the accused. Here the inquiry should have ceased.
    7. In every murder trial it is the duty of the trial judge to explain to the jury what they are to understand by reasonable doubt. It is proper for the court to say that the juror ought not to condemn unless he is so convinced by the evidence that he would venture to act upon that conviction in matters of the highest concern and importance to his own interest.
    Argued Jan. 8, 1912.
    Appeal, No. 256, Jan. T., 1911, by defendant from judgment of O. & T. Warren Co., June Sessions, 1911, No. 1, on verdict of guilty of murder of the first degree in case of Commonwealth v. John M. Andrews.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Indictment for murder. Before Hinckley, 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. Defendant appealed.

      Errors assigned were various rulings and instructions, and particularly (21) portion of the charge quoted in the opinion of the Supreme Court.

      D. U. Arird and James Scarlet, for appellant.
    — The court neglected to call the attention of the jury to the numerous witnesses produced on part of the defendant showing the defendant’s freedom from lawlessness, his quiet habits and his regularity of conduct: Com. v. Colandro, 231 Pa. 343; Com. v. Silcox, 161 Pa. 484; Minick v. Gring, 1 Pa. Superior Ct. 484; Hanney v. Com., 116 Pa. 322; Com. v. Cleary, 135 Pa. 64.
    Under this instruction the defendant’s guilt or innocence is made to depend and was restricted solely to the inquiry as to whether the defendant’s alibi was made out beyond a reasonable doubt: Com. v. Guttshall, 22 Pa. Super. Ct. 269; Turner v. Com. 86 Pa. 54; Briceland v. Com., 74 Pa. 463; Lack. & Bloomsburg R. R. v. Chenewith, 52 Pa. 382; Deal v. McCormick, 3 S. & R. 343; Rudy v. Com., 128 Pa. 500; Com. v. Deitrick, 218 Pa. 36; Meyers v. Com., 83 Pa. 131.
    To subject the testimony offered to support alibi to a more rigid scrutiny than any other evidence in the case is not the rule: Com. v. Webster, 59 Mass. 295; People v. Hare, 57 Mich. 505 (24 N. W. Repr. 843); People v. Keely, 35 Hun. 295.

      Frank J. Lyons, District Attorney, with him T. C. Cochran, Assistant District Attorney, for appellee.
    Proof of motive is never indispensable. The law does not require impossibilities: Pointer v. U. S., 151 U. S. 396 (14 Sup. Ct. Repr. 410).
    If the defense of alibi is false or manufactured, it should go for nothing, and have some weight against the defendant: Com. v. McMahon, 145 Pa. 413.
    February 5, 1912:
   Opinion by

Mr. Justice Stewart,

The defendant stands convicted of murder in the first degree. The evidence on which his conviction rested was purely circumstantial, a matter of no significance, if it carried conviction to the minds of the jury of the defendant’s guilt beyond reasonable doubt. This is all that is required of any evidence, whether direct or circumstantial. And yet, in view of what we shall have to say as to the instructions given by the court to the jury, it has a distinct place in the discussion. The evidence discloses these facts. Emile Amann, whose death is charged to the defendant, was a resident of Warren borough. For a number of years he had been an employee of the Warren Water Company, in charge of the company’s outside work, such as the laying of pipes, setting of hydrants, etc. The defendant had been superintendent of the company during the period of Amann’s employment, excepting that his withdrawal from the services of the company occurred 25th of March, 1910, whereas Amann continued in its employ some three weeks thereafter. Amann met his death on the night of 27th January, 1911, at a time when neither was an employee of the company. On the evening of the day last mentioned Amann, about 8 o’clock or a few minutes thereafter, hired a horse and buggy for the purpose of going to the reservoir of the Water Company on what was called Banker Hill, about one-half mile distant, stating that he would return in thirty-five minutes. He was afterwards seen driving through one of the public streets in the direction of the reservoir. About 11 o’clock of the same night the horse, unattached to the buggy, with the harness unbroken, returned to the livery stable where he belonged. The following morning the lifeless body of Amann was found on the reservoir hill, prone on the ground, face downward with three bullet wounds in the head, either one of which, according to the expert testimony, was sufficient to have caused instant death. This circumstance, with others no less significant, excluded all suspicion of suicide, leaving but the one conclusion, that a felonious homicide had been committed. The evidence relied upon to establish the defendant’s guilt in connection therewith was to this effect. It was shown that Amann had started from the livery stable in the buggy some minutes after 8 o’clock, not later than 8:15. The time is important to observe. A witness — we are now referring to the evidence for the Commonwealth — testified that at 8:10 he saw him drive up the street toward the reservoir; another, that he saw him drive up the same street at a point one-half block from the starting place at 8:10; another, that he saw him stop on his way in front of defendant’s house, saw defendant, in response to a whistle given by Amann, come out of the house, get in the buggy with Amann, that both then proceeded on their way, and that at 8:15 they were at the foot of the hill which had to be turned in order to reach the reservoir; still another testified that after hearing shots fired in the direction of the hill, he saw the defendant coming rapidly down the hill from the field where the body was found, stop under an electric light, examine his clothes, and then run down the street. The testimony seemed to be concurrent that the time when the pistol shots were heard was 8:30. Other evidence claimed to be incriminatory was adduced, but calls for no special reference at this time, since disassociated from the matter of time when shots were fired and the time when defendant was claimed to have been seen at certain points on the way leading to the place where the crime was committed, its insufficiency to establish guilt must be conceded. To meet the case of the Commonwealth, defendant called a number of witnesses with a view to showing that he could not have been the actor in the tragedy, for the reason that at 8:30, when it occurred, he was too remote from the scene, and further, to discredit and contradict the Commonwealth’s witnesses. Two of defendant’s witnesses say that they saw him, one as late as 8:15, the other, as late as 8:20, at the post-office in Warren, one-half mile away; another, that at 8:45 he conversed with the defendant, who was then in his home, over the telephone, that following that conversation he went to the defendant’s house, where he remained in conversation with him until 10 o’clock, and that there was nothing unusual in his appearance or manner. Other witnesses testified in his behalf to facts and circumstances which, it is claimed, show such marked inaccuracy in statements made by some of the Commonwealth’s witnesses, one in particular, whose testimony was most important, as to make it unreliable. We have thus called attention to the conflict of testimony in the case, not as a circumstance which impeaches the finding of the jury, for notwithstanding such conflict, and regardless of how other minds might be impressed thereby, if the jury, under proper instructions as to the law, were convinced beyond reasonable doubt of defendant’s guilt, the verdict should remain undisturbed. Our only purpose in introducing it here is to show that because of this state of the evidence, and its circumstantial character, the instructions given the jury were inadequate, and in some important matters so inadequate as to be positively erroneous.

Unquestionably the main purpose of the evidence adduced by the defendant was to establish an alibi. Equally certain it is, however, that this was not its only purpose ; and if the effect of that evidence was confined by the court to the one purpose alone, such restriction was unfair to the defendant and erroneous. The only reference to this feature of the case in the charge of the court was at its close, and is in these words: “The defendant relies upon evidence in the nature of an alibi; that is to say, that he was at another place at the time the crime was committed. * * * This defense when satisfactorily made out necessarily overturns the strongest circumstantial evidence and is sometimes the only defense to an innocent man. But in every case where the defense of alibi is made it should be very closely scrutinized for the reason so forcibly expressed by an eminent judge. It is a defense often attempted by contrivance, subornation or perjury, and the proof therefore offered to sustain it, is to be subjected to a rigid scrutiny, because, without attempting to contest or rebut the evidence of facts sustaining the charge, it attempts to prove affirmatively another fact wholly inconsistent with it, and this defense is equally available if satisfactorily established to avoid the force of positive as of circumstantial evidence.” This instruction is very largely, if not entirely, an excerpt from the charge of Chief Justice Shaw in the celebrated case of Commonwealth v. Webster, 59 Mass. 295. To say this, is to concede its correctness in the connection in which it was employed by that eminent jurist- But had the learned trial judge in this case looked further into that case, he would have found that this instruction followed upon instruction laying down a no less exacting rule to be applied in determining the effect of accusing evidence in cases where circumstances are relied upon to convict. For instance, after reviewing the evidence of the Commonwealth in his charge, he adds: “I will conclude what I have to say on this subject, by a reference to a few obvious and well-established rules, suggested by experience, to be applied to the reception and effect of circumstantial evidence. The first is, that the several circumstances upon which the conclusion depends must be fully established by proof. They are facts from which the main fact has to be inferred; and they are to be proved by competent evidence, and by the same weight and force of evidence, as if each one were itself the main fact in issue. Under this rule, every circumstance relied upon as material is to be brought to the test of strict proof; and great care is to be taken in guarding against feigned and pretended circumstances, which may be designedly contrived and arranged, so as to create or divert suspicion and prevent the discovery of the truth.” Had like instruction with this been given in the present case with respect to the circumstantial evidence adduced against defendant, the court’s employment of the words of Chief Justice Shaw, with respect to evidence adduced to establish an alibi, would have been entirely appropriate and fair; but in the absence of such instruction, the natural understanding of the jury would be that the direction required them to scrutinize more closely the evidence offered to show absence of the defendant from the scene of the murder when perpetrated, than that offered to show his presence at the time; for the reason, that the former was open to the suspicion that it was the product of subornation and perjury, while the latter was not. Could any instruction have been more unfair and prejudicial? Again, the instruction afforded the jury no standard by which they were to measure the sufficiency of the evidence offered to establish the alibi. The defendant had a right, even though no request was made for the instruction, to have the jury fully advised as to the difference between the burden resting upon the Commonwealth to establish guilt, and that resting on the defendant with respect to the alibi set up- How are we to know that the jury did not reject the defendant’s alibi because the evidence supporting it did not measure to the high degree which excluded all reasonable doubt? If they did, it was a most serious mistake into which they fell because they were not instructed to avoid it; if they did not, their avoidance of the mistake was not due to any warning they had received from the court. The measure of proof, when the sufficiency of evidence offered to establish an alibi is the question, is simply that it shall be satisfactory. “That measure is simply proof which is satisfactory — such as flows fairly from a preponderance of the evidence. It need not be beyond doubt. 'Where the evidence raises a balancing question, and the mind is brought to determine its preponderance, there may be a doubt still existing in the mind, yet the actual weight may be with the prisoner; and this proof should be considered satisfactory.” Meyers v. Commonwealth, 83 Pa. 131. And yet again, it was error, hardly less serious, to treat the evidence tending to show alibi as though it was without relevancy if it failed in this one purpose. The charge does not in express terms so limit it, but a general relevancy in the testimony is not even suggested, and the inference likely to be drawn by the jury would be that it was to be considered only in-the one connection. “Proof of an alibi is as much a traverse of the crime charged as any other defense, and proof tending to establish it, though not clear, may, nevertheless, with

other facts of the case, raise doubt enough to produce an acquittal.” Turner y. Commonwealth, 86 Pa. 54. As a fair illustration of what is here meant, there may inhere in such testimony that which, being considered, might lessen the confidence which the jury otherwise might have in the correctness of the testimony of some opposing witness to a most important, perhaps controlling circumstance, and leave them in doubt as to its occurrence, or as to the time and place where it occurred, if at all. Or, as here stated, it may be that this evidence being included and submitted to the jury for their consideration, because of its inclusion, upon a review of the whole case, the jury would not be left free of reasonable doubt as to the guilt of the accused. The considerations we have discussed properly fall within the scope of the twenty-first assignment of error, and that assignment is sustained.

There remain forty-one assignments. A discussion of each of these is wholly impracticable. A number of them indicate distinct error, but whether reversible or not we need not decide since reversal follows upon what we have already said. Inasmuch, however, as the case must again be tried, we shall indicate briefly those particulars in which the court erred to greater or less extent. First, remembering the case against the accused rested wholly on circumstantial evidence, what was said by the court in Commonwealth v. Cleary, 135 Pa. 64, touching the effect of evidence of the good reputation of the accused in such cases, may here be appropriately cited: “Evidence of good character is always admissible for the defendant in a criminal case; it is to be weighed and considered in connection with the other evidence in the cause, — it may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal. The rule itself is not merely merciful. It is both reasonable and just. There may be cases in which, owing to the peculiar circumstances in which a man is placed, evidence of good character may be all he can offer in answer to a charge of crime. Of what avail is a good character, which a man may have been a lifetime acquiring, if it is to benefit him nothing in his hour of peril?” In the present case twenty or more witnesses testified to the good character of the accused. The contrary was not asserted. The only reference to this testimony in the general charge is as follows: “Some twenty witnesses were called upon the part of the defendant to testify to the general good character of the defendant as a peaceable, law-abiding citizen.” Not a word appears in the general charge as to the legal effect of such evidence, or as to how it was to be considered and applied. From the manner in which it was thus treated by the trial judge, with not a single reference to it than that above quoted, the jury might well have inferred that in the judgment of the court it called for no consideration. The attention of the court was directed to it in three of the submitted points, each framed out of language used by this court in some particular decision. The ruling therein was as follows: “These points are affirmed in connection with which we say, as a general proposition, that the evidence of this character is to be considered with the other evidence in the case, and if all the evidence combined creates a reasonable doubt, the defendant is entitled to acquittal. That is, it is to be weighed and considered in connection with all the evidence in the case.” This answer, like the points, was framed in language adopted by this court, Commonwealth v. Cleary, 135 Pa. 64, a sufficient authority for its legal, correctness, but no authority for its sufficiency under the circumstances of this case. The instruction of the court in regard to this matter, we cannot but regard as not only inadequate in that it failed to convey to the jury a proper understanding as to how they should apply the evidence, but because it must have minimized its importance in the estimation of the jury.

The trial occupied more than two weeks. Less than one would most likely have been sufficient but for the fact that a wholly collateral inquiry was entered upon, which, aside from prolonging the trial unduly, may have had the more serious result of diverting the minds of the jury from the one issue before them. It is competent in every criminal case to introduce evidence to show motive in the accused. The motive charged here was the desire of the accused to prevent Amann from appearing and testifying in an inquiry which had been instituted by those interested with respect to the accused’s accounts as superintendent of the Water Company. In connection with this inquiry the charge had been made that the accused had embezzled the funds of the company by means of fraudulent statements and accounts. Amann’s testimony had been requested by those who were investigating the matter. The theory of the Commonwealth was that Amann, because of his position with the company during the time covered by the investigation, had knowledge of facts which would incriminate the accused, and that to prevent his testifying against him the accused took his life. Whatever went in support of this theory was relevant, and therefore, competent testimony. Whether the accused, however, had actually been guilty of the embezzlement charged was an inquiry wholly outside. It was proper enough to show that those pursuing the investigation had made the charge against him; that the investigation was still proceeding; that Amann had been requested and was expected to testify; that his testimony, if given, would have inculpated the áccused; but there the inquiry should have ceased. Instead, however, it proceeded until it became an inquiry as to the guilt or innocence of the accused with respect to the charge that had been made. To this end maps, plans, plants and measurements showing different extensions of the pipe system of the company were introduced, and accounts in connection therewith, from all of which it was sought to derive an inference of defendant’s guilt. The relevancy of this sort of testimony was more than doubtful, and besides must have tended to divert the attention of the jury from the real issue; and not only so, but a conclusion of defendant’s guilt with respect to it would most likely be followed by a prejudice to which the defendant could not rightfully be exposed.

The failure of the court to explain to the jury what they were to understand by a reasonable doubt, calls for remark. We are quite aware that in some jurisdictions it is held that this is unnecessary, because the expression is itself well calculated to convey to the juror a correct idea of what is expected of him, and that any effort at elucidation tends to .misleading refinements. The reason given for this conclusion is to our mind unsatisfactory. Our own experience leads to the belief that, except as instructed by the court, the ordinary juror fails in proper comprehension of what is implied in the term, or at least is apt to so fail. Helpful elucidation of the term has been so frequently accomplished, as our text books and reports show, that the danger of misleading in the attempt to elucidate is easily avoided. What is to prevent a trial judge from instructing, in the language of Mr. Starkie, that the juror ought not to condemn unless he is so convinced by the evidence that he would venture to act upon that conviction • in matters of the highest concern and importance to his own interest? Here we have a concise statement of what is implied in the term which brings it clearly to the comprehension of any ordinary mind, and this, or at least its equivalent, expressed in various ways in adjudicated cases, should be made the matter of instruction in every murder trial.

We have adverted to those features of the charge which we regard as fairly open to criticism only that the errors indicated may be avoided on the next trial. Having thus expressed our views as to the case, and since a new trial must follow, we do not feel called upon to discuss the numerous assignments unrelated to what we have remarked upon.

For the reasons given the judgment is reversed, and a venire de novo is awarded.