text:
    Allegheny Light Company v. Pittsburgh, Appellant.
    Argued Jan. 9, 1905.
    Appeal, No. 10, Oct. T., 1905, by defendant, from decree of C. P. No. 2, Allegheny Co., July T., 1904, No. 151, on bill in equity in case of Allegheny County Light Company v. City of Pitts burgh and John F. Steel, Treasurer of the City of Pittsburg.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    The tax in this case was one half cent per lineal foot of pole line or wire, or five cents per lineal foot of conduit.
    April 17, 1905 :
   Opinion by

Mr. Justice Brown,

The tax which the city of Pittsburg would collect from this appellee is an unauthorized property tax, and, for tlie reason given in the opinion in Pittsburgh Railways Company v. City of Pittsburgh et al., No. 12, October Term, 1905, this day filed, the decree is affirmed and the appeal dismissed at appellants’ costs.


source: Caselaw Access Project

author: Mb. Justice Bbown,

license: Public Domain

text:
    Philadelphia Company v. Pittsburgh, Appellant.
    Argued Jan. 9, 1905.
    , Oct. T., 1905, by defendants, from decree of C. P. No. 2, Allegheny Co., July T., 1904, No. 154, on bill in equity in case of Philadelphia Company v. City of Pittsburgh and John F. Steel, Treasurer of the City of Pittsburg.
    Before Mitchell, C. J., Dean, Fell, Bbown, Mestbezat, Potteb and Elkin, JJ.
    Affirmed.
    The tax in this case was three cents per foot for each lineal foot of pipe laid.
    April 17, 1905 :
   Opinion by

Mb. Justice Bbown,

The tax which the city of Pittsburgh would collect from this appellee is an unauthorized property tax, and, for the reason given in the opinion in Pittsburgh Railways Company v. City of Pittsburgh et al., No. 12, October Term, 1905, this day filed, the decree is affirmed and the appeal dismissed at appellants’ costs.


author: Mb. Justice Elkin,

text:
    Crosetti’s Estate.

      Evidence—Witnesses—Competency—Party dead—Decedents’ estates—Act of May 23, 1887, sec. 5, clause (e), P. L. 158.

    Where upon the death of both husband and wife, the husband’s executors claim at the audit of the account of the wife’s administrator, that a bank deposit in the wife’s name was really the property of the husband, a daughter of both the deceased parties is not a competent witness under the Act of May 23, 1887, P. L. 158, in support of the claim of the wife’s administrator, since the daughter is a party testifying in interest adversely to the father’s estate.
    In the distribution of the estate of a deceased person where a claim is presented in the ordinary way against such estate, the heirs, legatees and other interested parties are competent to testify in favor of such estate but incompetent to testify adversely to'it.

      Evidence—Competency of witness—Party—Act of May 23, 1887, P. L. 158.
    The provisions of the Act of May 23, 1887, P. L. 158, relating to the incompetency of witnesses on account of interest where a party to the subject in controversy is dead, applies to civil proceedings before any tribunal in the commonwealth.

      Orphans’ court—Jurisdiction—Dispute as to title to property—Evidence— Husband and wife.

    While it is the general rule that no one can claim in the distribution of a fund in the orphans’ court except through the decedent, as creditor, legatee or next of kin, there is an exception where the fund is shown to be wrongfully included in the account, either because, though in the name of the decedent, it is really a trust, or where title or ownership is in another person. Thus where an administrator of a wife includes in his account a deposit in bank in the wife’s name, and the executor of the husband claims the deposit as a part of the husband’s estate, the orphans’ court has jurisdiction to pass upon the question of title.

      Husband and wife—Money deposited in wife’s name—Gift—Presumption —Evidence.

    Money on deposit in the name of a wife is prima facie her money, and where it is claimed by her husband at her death or by the husband’s executor, the burden is upon the claimant to prove that it is his property.
    Bank deposits stood in the name of a wife at her death. The husband took out letters of administration on her estate, setting forth in his petition that the estate consisted of goods and chattels, rights and credits amounting exactly to the amount of deposits. He gave his bond for double this amount. He died before the expiration of the year from her death without having completed administration of his wife’s estate, and without having claimed the deposits as his own. His executors subsequently filed the husband’s account as administrator of his wife, in which they included the deposits, but at the audit of the account they claimed that the deposits belonged to the husband. The evidence in favor of the wife’s ownership was supported by declarations of the husband, and the contrary evidence was meager, loose and unsatisfactory. Held, that the court’s finding that the fund was the property of the wife was sufficiently supported by the evidence and would not be reversed by the Supreme Court.
    Argued Jan. 11, 1905.
    Appeal, No. 197, Jan. T., 1904, by Joseph J. Crosetti and Frank Cuneo, executors of Christopher Crosetti, deceased, the administrator of Maria Crosetti, deceased, from decree of O. C. Phila. Co., Jan. T., 1904, No. 612, dismissing exceptions to adjudication in Estate of Maria Crosetti, deceased.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Exceptions to adjudication.

      The facts are stated in the opinion of the Supreme Court.

      Errors assigned were in dismissing exceptions to adjudication.

      E. B. Lewis, for appellants.
    The only one of the executors called as a witness was Frank Cuneo, the life-long friend and acquaintance of the decedent and her husband, and surely his testimony is not inadmissible because he cannot be said to be an interested party in an adverse sense, as he is not a legatee or devisee under the will of the father and cannot receive any portion of the mother’s estate because she died intestate ; not being a relative, he cannot receive any portion by the intestate laws.
    In Foringer v. Sisson, 14 Pa. Superior Ct. 266, and Bickels’s Estate, 9 Pa. Dist. Rep. 129, it was decided that the evidence of a person who was also executor of an estate claiming adversely to another estate was admissible.
    To prove that the money was given to the decedent by her husband, the declarations of the husband should be more clear and convincing hi their bearing on the subject than in the case of a stranger: Murphy v. O’Brien, 17 Montg. Co. Law Repr. 96.
    A declaration of a husband to the effect that certain property belonged to his wife was not admissible as evidence in favor of the wife. The mere possession of money by a wife is no evidence of her title to it; it ordinarily implies that she is holding it for her husband : Parvin v. Capewell, 45 Pa. 89 ; McDermott’s App., 106 Pa. 358.

      Edwin O. Nevin, for appellee, was not heard.
    April 17, 1905:
   Opinion by

Mb. Justice Elkin,

The entire estate of Maria Crosetti, deceased, consists of two deposits in the name of decedent, one in the Philadelphia Saving Fund Society, and the other in the Western Saving-Fund, amounting at the time of her death to the sum of $2,784.69. The appellants claim that said deposits were made by Christopher Crosetti, the husband, in the name of the wife for convenience, but in fact belonged to him. In support of this contention they offer the testimony of Frank Cuneo, one of the appellants, his son, F. J. Cuneo, Antonio Crosetti and John Crosetti, sons of Christopher Crosetti, deceased. The appellee admits that the whole estate is made up of the deposits in said banking institutions. It is not denied that these deposits were transferred by Christopher Crosetti to Maria Crosetti in the lifetime of both parties. It is urged, however, that the facts show and the parties intended a gift by the husband to the wife. The appellee, Louisa Rataliatta, testified as a witness to show that the father .intended the money so deposited as a gift, and also offered the testimony of her husband, John Rataliatta, and Charles Huff, an officer of the Saving Fund Society. The question of the competency of Louisa Rataliatta, a daughter of the decedent, as a witness has been raised. We do not consider her testimony necessary to sustain the contention of appellee, yet it is important, and we therefore stop to consider whether she was a competent witness.

Section 5, clause (e) of the Act of May 23, 1887, P. L. 158, provides: “ Nor, where any party to a thing or contract in action is dead, or has been adjudged a lunatic and his right thereto or therein has passed, either by his own act or by the act of the law, to a party on the record who represents his interest in the subject in controversy, shall any surviving or remaining party to such thing or contract, or any other person whose interest shall be adverse to the said right of such deceased or lunatic party, be a competent witness to any matter occurring before the death of said party.” The language of the statute excludes any person “ whose interest shall be adverse to the said right of such deceased.” What deceased ? The answer is obvious : “ Any deceased party to a subject in controversy whose right thereto or therein has passed either by his own act or by the act of the law to a party on the record who represents his interest.” It follows, therefore, that if the executors of Christopher Crosetti, deceased, had brought an action in the common pleas Christopher Crosetti must be considered within the meaning of the act as a deceased party interested in the thing or contract in action. In his lifetime he had a right to controvert tlie alleged gift to his wife. Upon his death this right passed to his legal representatives, and Louisa Rataliatta, being interested in sustaining tbe administrator of her mother against the executors of her father, would not be competent to testify to any matter occurring before the death of her father, her interest being adverse to the right of the deceased father: Keener v. Zartman, 144 Pa. 179. The same principle is recognized in Walls v. Walls, 182 Pa. 226, and Semple v. Callery, 184 Pa. 95. In both of these cases, being actions by legal representatives against legal representatives of deceased parties, the witnesses established their competency by executing releases of all their interest in the respective estates. In the case at bar the executors of Christopher Crosetti, instead of bringing their action in the common pleas, came into the orphans’ court. It was suggested by the learned auditing judge that this proceeding was irregular, but in order to avoid circuity of action he would pass upon the claim on its merits.

It is true the general rule is that no one can claim in the distribution of a fund in the orphans’ court except through the decedent as creditor, legatee or next of tin. This general rule is settled law: McBride’s Appeal, 72 Pa. 480; Braman’s Appeal, 89 Pa. 78; Winton’s Appeal, 111 Pa. 387; High’s Estate, 136 Pa. 222. There is, however, an exception recognized in many cases, as for instance where the fund may be shown to be wrongfully included in the account either, because, though in the name of decedent it is really a trust, or where title or ownership is in another person: Marshall v. Hoff, 1 Watts, 440; Miller’s Appeal, 84 Pa. 391; High’s Estate, 136 Pa. 222; Qualters’s Estate, 147 Pa. 124. The present case is eleai’ly within the exception, and the court below bad jurisdiction to pass on the same. If, therefore, the executors of Christopher Crosetti are to be regarded as in a court of competent jurisdiction with authority to determine the question of ownership of the property in dispute, clearly Louisa Rataliatta must be considered as an incompetent witness unless a different rule of evidence obtains in the orphans’ court than in the common pleas. No such contention, we apprehend, will be seriously made. The fourth section of the act of 1887 is intended to cover the competency of witnesses in a civil proceeding before any tribunal of the commonwealth. The tribunal may be a register of wills, master, auditor, arbitrator, referee, court of common pleas, at law or in equity, the orphans’ court, quarter sessions, the Superior or Supreme Court, or any other tribunal created by law to try causes of action between contesting parties. The act of 1887 makes no distinction between different classes of civil actions, nor does it prescribe one rule o.f competency for actions in the common pleas and another for proceedings in the orphans’ court. Our attention has been called to the rule laid down in Toomey’s Estate, 150 Pa. 535; Smith v. Hay, 152 Pa. 377, and Brose’s Estate, 155 Pa. 619. We do not dispute the authority of these cases. We consider the law finally settled that in the distribution of the estate of a deceased person where a claim is presented in the ordinary way against such estate the heirs, legatees and other interested parties are competent to testify in favor of such estate, but incompetent to testify adversely to it. In such cases the estate of the deceased person is the thing or contract in action, and under the express terms of the statute witnesses adverse to such estate cannot testify to any matter occurring before the death of the decedent while those in support of the estate may be heard. In the distribution of a fund in the orphans’ court creditors, legatees and next of kin claim or take through the decedent, hence the corpus of the estate is the subject-matter for consideration which by act of law has passed to a personal representative being the party on the record who represents the interest of decedent. The rule therefore applies because there is only one party to the thing in action, the decedent whose estate is being distributed.

The question raised in the case at bar does not grow out of the ordinary distribution of an estate, and hence the rule above stated does not apply. This is in fact a controversy between the executors of the deceased husband on one side, and the administrator of the deceased wife on the other, involving the ownership of the whole estate. There are two parties to this action. They are both dead. Their interests have passed to personal representatives, parties on the record. Had an action in the common pleas been instituted by Christopher Crosetti in his lifetime against the administrator of his wife, or had he presented a claim against the estate of his wife before an auditing judge, Louisa Itataiiatta would have been competent to testify in favor of the estate to any matter occurring before the death of her mother: Gerz v. Weber, 151 Pa. 396; Brose’s Estate, 155 Pa. 619; Rine v. Hall, 187 Pa. 264; Bank v. Henning, 171 Pa. 399; Dickson v. McGraw, 151 Pa. 98. The death of Christopher Crosetti and the fact that this case involves not a distribution of the estate of Maria Crosetti, but the question of the ownership thereof, makes a change in the situation. True the mere death of Christopher Crosetti in itself worked no change, but when his rights passed upon his death to a party on the record who represented his interest, and the issue involved the question of adverse ownership between two parties, the witness became interested adversely to the light of the deceased father, one party to the thing or contract in action, and incompetency attached. To hold otherwise would be to make the death of one litigant more potent in working incompetency than the death of the other. When both parties to the litigation represent dead persons the death of each works the incompetency of all persons interested in the estate of the other: Triekett on Pennsylvania Law of Witnesses, sec. 217.

As we have hereinbefore stated, the present case is not the ordinary distribution of the funds belonging to the estate of Maria Crosetti, deceased, but is a contest involving the ownership of the funds deposited in the saving fund societies, being-the thing or contract in action. The jurisdiction of the orphans’ court only attaches because of the equity powers lodged therein, and under the line of cases cited the auditing judge is authorized to find the facts and decide the questions involved. It is on this theory alone that the appellants had any standing in the court below. Both parties to the thing in action being dead, their rights having passed to personal representatives, parties on the record, it follows that Louisa Rataliatta, her husband and her brothers are all equally incompetent to testify to matters occurring in the lifetime of the parents. We must therefore consider the case without reference to the testimony of these witnesses. How then does it stand?

It has been frequently held by this court that money on deposit in the name of a wife is prima facie her money, and where it is claimed by her husband at her death the burden is on him to prove that it is his property: Qualters’s Estate, 147 Pa. 124. To the same effect is Earnest’s Appeal, 106 Pa. 310. In the present case the two deposits were in the name of the wife at the time of her death, and therefore the presumption arises that the funds belonged to her. This presumption is strengthened by the fact that the husband recognized these funds as belonging to his wife when he took out letters of administration on her estate and proceeded to administer it according to law. Let us see just how the deceased husband treated the estate of his wife.

Maria Crosetti, the decedent, died on November 11, 1902, and on December 19, following, Christopher Crosetti, the husband, appeared before the register of wills and demanded letters of administration on said estate. He presented his petition, which was sworn to before the deputy register of wills, in which he sets out that the goods and chattels, rights and credits of Maria Crosetti, deceased, were valued at $2,784.69, being the exact amount of said deposits. On the same day he made an affidavit to faithfully perform his duties as administrator of said estate, in which he states, inter alia, “ that the whole of the goods, chattels, rights and credits of the personal estate she died possessed of in the aggregate, do not in value exceed the sum of two thousand eight hundred dollars.” He then gave his bond in the sum of $5,600, with Frank Cuneo and Joseph J. Crosetti, the appellants, as his sureties. He received letters of administration and proceeded to administer the estate. He died on October 22, 1903, before the year had expired in which to file his account. There is no testimony showing or tending to show that he ever questioned the right of his wife to these funds. Every act of the husband negatives the position now taken by his executors, the appellants here.

He who alleges a trust takes the burden of proving it, and all of the essential requisites must be shown by clear, exjjlicit and unequivocal proof: Earnest’s Appeal, 106 Pa. 310. In the case at bar the proof does not measure up to this standard. The only testimony offered which tended to prove such a trust was that of Frank Cuneo, with some corroboration by his son. The testimony of these witnesses is indefinite, vague and inconclusive in its effect. In substance they say that Christopher Crosetti and wife came to their office at the time the money was deposited in the name of the wife ; that Christopher Crosetti having other accounts in these banking institutions in his name could not receive interest on such a large amount if deposited to his own credit, and that for the purpose of getting interest on the deposit it was made in the name of his wife. It will be observed that-this is what Cuneo said, and not what Christopher Crosetti stated. The testimony is meager, loose and unsatisfactory as to just what was said by the two Crosetti’s at the time. The theory on which this contention is based is seriously shaken by an official of the bank who testified that there was no such rule in reference to interest on deposits, and that Christopher Crosetti would have received interest on his account if deposited in his own name just as his wife did when deposited in her name. F. J. Cuneo, son of appellant, who was present when the husband and wife came to the office of his father to have the transfer made, testified that Christopher Crosetti said, “ I will put it in my wife’s name,” and this is in substantial corroboration of the testimony of Frank Cuneo. There is nothing in this testimony that negatives the idea of a gift by the husband to the wife. The fact that Christopher Crosetti said he would put it in the name of his wife supports rather than defeats the gift. His subsequent actions indicate that he intended it as a gift to his wife.

To support the contention of the appellee, we have three important and to our minds controlling facts: first, the moneys were deposited in the name of the wife and subject to her control; second, the husband recognized these moneys as belonging to his wife when he took out letters of administration, gave his bond and proceeded to administer said estate; third, the accountants when they filed the first and final account of Christopher Crosetti, administrator of Maria Crosetti, deceased, charging themselves with these very funds and making affidavit that the facts stated in their account were true, that the balance shown by the account was correct and belonged to the estate of Maria Crosetti, deceased, admit that the estate did so belong. The questions of fact involved in this case were found in the court below in favor of the appellee and will not be disturbed by an appellate court except upon manifest error, and where there is no evidence to support the finding: Countryman’s Estate, 151 Pa. 577; Mulley v. Shoemaker, 180 Pa. 585; Sutton v. Guthrie, 188 Pa. 359. We do not see that there was manifest error in the findings of fact by the court below. Indeed, we think it would have been manifest error to have found otherwise.

Assignments of error overruled and decree affirmed.


author: Mb. Justice Dean,

text:
    Louchheim, Appellant, v. Somerset Building & Loan Association.

      Building and loan associations—Corporations—Officer—By-laws—Notice— Payment of dues to secretary—Estoppel—Waiver.

    Where a corporation, such as a building and loan association, designates an officer or a committee as its agent, to receive moneys due it, and this is known to those who intend to pay, -or if they have the means of knowledge, then a payment to another officer or committee is only a payment to the corporation if it actually receives the money. Notwithstanding this, the corporation may by its conduct depart from its appointed method and set up a different one, which under certain circumstances will be binding upon it.
    The authority of an officer of a corporation as its agent, although distinctly designated by the corporation, may be ascertained to be different, from circumstances covering a period of time long enough to manifest a course of dealing, provided such circumstances are known also to, and acquiesced in, by the board of directors and if the course of dealing is one the board had power to authorize.
    The by-laws of 'a building and loan association provided that payments of dues should be made at a meeting of the association to a financial committee consisting of three directors. During a period of ten years a father of a member, or the member himself, paid dues to the secretary at the father’s place of business, where the secretary called to receive them. The secretary was not a member nor a director of the financial committee. He had, however, the custody of the pass books of the association and delivered them to the members respectively, either at their homes or places of business. He receipted in the pass book for the moneys received by him and turned some of the payments over to the association and embezzled others. The directors did not know of the actual embezzlement of the money by the secretary, but they did know of his methods of transacting the business, and that he had kept this up for a long course of years. The secretary falsified the books of the association, particularly a book called the “roll book” in which was kept the account of members’ monthly dues. It did not appear that any of the books had been examined by the directors. Held, that the association had waived the requirements of the by-laws as to payments of dues to the financial committee, and that it was chargeable with payments made by the member to the secretary.
    Pell and Potter, JJ., dissent.
    Argued Jan. 16, 1906.
    Appeal, No. 314, Jan. T., 1904, by plaintiff, from judgment of Superior Court, Oct. T., 1903, No. 49, affirming judgment of C. P., No. 1, Phila. Co., Dec. T., 1900, No. 440, sustaining exceptions to report of referee in case of Walter C. Louchheim v. Somerset Building and Loan Association.
    Before Mitchell, C. J., Dean, Fell, Beown, Mesteezat, Pottee and Elkin, JJ.
    Reversed.
    Appeal from Superior Court.
    The facts appear by the opinion of the Supreme Court and by the report of the case in 25 Pa. Superior Ct. 325.

      Error assigned was the judgment of the Superior Court.

      Samuel K. Louchheim,, with him V. Gilpin Lobinsón and S. Davis Page, for appellant.
    If the plaintiff made his payments of dues to an officer authorized to receive them, the fact that those payments' were received by that officer outside of the place of meeting, and retained by him, is no defense to his claim: Schutte v. Bldg. & Loan Association, 146 Pa. 324; Louchheim v. Richmond Mutual B. & L. Assn., 16 Pa. Superior Ct., 33.
    The defendant is estopped from denying the validity of the payments to the secretary: Jones v. Nat. Bldg. Assn., 94 Pa. 215; Mohrfeld v. Bldg. Assn., 194 Pa. 488; Millward-Cliff Cracker Co.’s Est., 161 Pa. 157.

      Prank P. Prichard and Horace Ilaverstick, for appellee.
    The by-laws of a corporation when enacted become a part of its charter, and all persons, whether members or strangers and a fortiori members, are bound at their own risk to take notice of them and of the powers and duties, as defined by the bylaws, of those officers of the corporation with whom they deal: Millward-Cliff Cracker Co.’s Est., 161 Pa. 157; Wayne Title, etc., Co. v. Ry. Co., 191 Pa. 90; Worthington v. Ry. Co., 195 Pa. 211.
    A course of dealing cannot abrogate the by-laws : MillwardCliff Cracker Co.’s Est., 161 Pa. 157; Delaware Ins. Co. v. White Dental Mfg. Co., 109 Fed. Repr. 334.
    April 17, 1905:
   Opinion by

Mb. Justice Dean,

This case is an action of assumpsit in the court below, by plaintiff against defendant, to recover the withdrawal value of nine shares of stock in the association, on which he alleged he had paid the dues required to be paid by the by-laws of the association. The defendant in its affidavit of defense, denied that he had paid the dues so required to be paid. The issue by agreement of the parties was referred to E. Hunn Hanson, Esq., to find the facts and state the law applicable thereto. On the facts found by him, from the evidence, he awarded to plaintiff, after several corrections of the amount at the instance of the parties, the sum of $1,102.30 as of July 12, 1902. To this report exceptions were filed by both parties in the court below. The learned judge of the court of common pleas sustained the nineteenth exception filed by defendant, to wit: that the referee should have decided that defendant owed nothing to plaintiff, set aside the report and entered judgment for defendant. From this judgment plaintiff appealed to the Superior Court, which court affirmed the judgment entered by the common pleas.

There was much said and well said on both sides of the question involved as well by the referee as by the two lower courts. We take from the report of the referee these facts : The sixth section of article II of the by-laws of the association says : “At the regular meeting of the Board of Directors in March and September, the President shall appoint three Directors as a Financial Committee to serve the ensuing six months, who shall receive the monthly payment of dues, interest and fines at the monthly meeting, pay the same to the Treasurer and take his receipt for the same.”

On October 20, 1890, H. S. Louchheim, the father and trustee of the plaintiff, then in his minority, paid B. F. Houseman, the secretary of the association, for nine shares of its stock, the sum of $18.50, and received from him a deposit book with his receipt for this sum. The book was blank at the space left for the designation of the series. The then current series was the twenty-eighth, and the plaintiff, either by his father or by himself, after attaining his majority, paid from October 20, 1890, the monthly dues upon these nine shares up to and including the payment of May 21, 1900. Excepting the last, the payments were all made to Houseman, when and as he each month called for them at the store of H. S. Louchheim on Market street, which was not the place of meeting of the association. Excepting the last payment, all were receipted for in the deposit book by Houseman. Neither the plaintiff nor his trustee ever attended a meeting of the association; neither did he read the by-laws, or know what they enjoined.

Of the dues amounting to $1,053 so paid, Houseman paid to the association no more than $415.50, and he caused it to appear in the roll book that the first subscription on account of the plaintiff was in April, 1894, when the thirty-fifth series was current.

Stockholders were entitled to a certificate of stock by virtue of the sixth section of article I of the by-laws; to most of the stockholders certificates were not issued, they were so issued generally when a stockholder transferred his shares, and when the stockholder obtained a loan from the association; no certificate was issued to the plaintiff.

It will be noticed that Houseman was only the secretary; he was not a director nor a member of the financial committee. Of the money paid to him by plaintiff he embezzled a large part and then on May 10, 1900, when the association was about discovering his crime, killed himself. The father, the present trustee, had previously subscribed for stock for his sons in the same association and had paid the subscription price and monthly dues for the same for about ten years, and then at the expiration of the series received the withdrawal value of the shares for his sons. The payments for these shares, another series, ran over a period of ten years. The payments were all made for this stock to Houseman who called each month at the father’s store on Market street for the money and gave a receipt as secretary for it. The trustee never attended any of the monthly meetings. The defendant avers, that Houseman was not a person to whom the monthly dues of the association could be legally paid and therefore such payment must be treated as no payment to the association.

Undisputedly, the secretary was not the officer designated by the by-laws to receive subscriptions for stock and the monthly dues, and if the answerability of defendant depended on that fact alone, the affidavit of defense would effectually answer plaintiff’s claim; but the law is not so narrow in its interpretation as to be conclusive against plaintiff on a mere reading of the by-law. The learned referee correctly states the law as follows:

“ Where a corporation designates an officer or a committee as its agent to receive moneys due it, and this is known to those who intend to pay, or if they have the means of knowledge, then a payment to another officer or committee is only a payment to the corporation if it actually receives the money. Notwithstanding this, the corporation may by its conduct depart from its appointed method and set up a different one, which under certain circumstances will be binding upon it. The legal principle is this :

“ The authority of an officer of a corporation as its agent although distinctly designated by the corporation, may be ascertained to be different, from circumstances covering a period of time long enough to manifest a course of dealing, provided such circumstances are known also to and acquiesced in by the board of directors, and if the course of dealing is one the board had power to authorize: Hoyt v. Thompson, 18 N. Y. 207-218; Martin v. Webb, 110 U. S. 7; Kraft v. Freeman Printing, etc., Association, 87 N. Y. 628.”

The referee properly says the burden was upon appellant to prove such circumstances, covering a long period of time, known to and sanctioned by the board of directors, which justifies appellant in assuming that another than the financial committee had authority to receive the monthly dues and he says the circumstances were these, which were neither questioned nor denied:

“ For a period of ten years without interruption the plaintiff’s trustee had paid to Houseman, the secretary, monthly dues regularly upon stock for which he had subscribed and at the place of business of the trustee which was disconnected from and in a different part of the city from that of the meetings of the association. A period of this number of years was long enough to manifest the course of dealing by which the payments intended for the association were made in a way different from that required under the by-laws and to a different depository.”

He then says further: “ The fact that during the ten years Houseman was secretary of the association and in that relation its express agent, in the absence of evidence to such end any presumption that he was the agent of Louchheim is inadmissible.

“ The board of directors from the nature of their office had it in their power to require Houseman, the secretary, to collect from stockholders their dues as Houseman collected from H. S. Louchheim ; and the board could acquiesce in and ratify that which they had the power to require or permit.”

From these findings of fact and conclusions of law the referee awards in favor of plaintiff the amount of his claim. While the findings of fact, probably, include every material fact on which the award is based, the statement of them is perhaps too meager to present the full significance of the conduct of the secretary and directors tending to show that plaintiff was fully warranted in believing that Houseman had full authority from the association to receive the payments. Houseman was the secretary and had held that office for many years. He had custody of the pass books of the association and delivered them to the members respectively either at their homes or places of business ; in these were entered the original subscription and monthly payments by each member. He delivered to plaintiff his book in which for ten years was entered his monthly payments. These were made by check to order of Houseman, in which it was probably specified the payment was for the association, and whenever he paid, the secretary signed his name in the pass book. Many of these payments were turned over to the association ; some of them were not turned over; for some the secretary gave his individual due-bills to the association and as to others he so falsified the books as to conceal the misappropriation. While the directors did not know of the actual embezzlement of the money by the secretary, they did know of his methods of transacting the business and that he had kept this up for a long course of years; yet there was not a word of disapproval to the secretary or to any one of the members. It seems to us, that if a long course of dealing, month by month running through many years, was as to third parties a recognition of and the ratification of the authority of an agent by his principal, there was such recognition and ratification in these facts. Assume that the secretary might have embezzled a single payment and have concealed the fact from the directors ' without imputing culpability to the association, yet it was the secretary’s duty by the by-laws of the association to keep all the accounts and books, among these what is called the “roll book”; in this book was kept the account of the plaintiff’s monthly dues, yet the secretary persistently falsified this account, so as to conceal the real condition of it from the plaintiff as well as the directors for years. Admit, which we do not admit, that the payment was a mispayment, still if the secretary had kept the roll book with some approach to honesty, necessarily, the plaintiff would at latest, after one month’s default have received notice. Whose duty was it to scrutinize the books and detect the wrongdoing of the officer? Surely that of the directors, the by-laws impose no such duty on the member. So, that in no view of the circumstances can this defendant escape liability for the money lost by the misconduct of its trusted officer.

Both of the courts below have concurred in setting aside the report of the referee and principally on the same ground, that is, that the financial committee by the by-laws had the sole power to receive the money and that when plaintiff paid to the secretary without express authority from the board of directors he constituted the secretary his agent to carry the money to the association. We are of opinion that in so ruling on these facts both courts erred. All the undisputed facts and circumstances significantly negative an agency for the plaintiff and point without doubt to an agency for defendant in receiving the money for the association. While the facts are not precisely the same as in Mohrfeld v. Building Association, 194 Pa. 488, the same principle is applicable. There is no distinction in the facts which would warrant a variation in the ruling principle. In that case the judgment, in an opinion by Chief Justice Green, was affirmed, although it was shown that the money had been paid by the plaintiff to the secretary, who defaulted, instead of to the treasurer as provided by the by-laws, and this on the sole ground that a long course of dealing warranted the plaintiff in believing that, notwithstanding the by-laws, the secretary had authority to receive the money.

As before intimated, we do not think a single transaction between plaintiff and the association would have warranted him in paying to the secretary, but when the proof showed that for almost twenty years he had made such payments in that way and that at the end of the first ten years the board of directors had recognized the authority of the secretary to receive the money by paying to the plaintiff the withdrawal value of his stock, and then for the next ten years recognized as regular and lawful its secretary’s method of collecting dues month after month, it would now be gross injustice to permit defendant to successfully set up want of express authority in the by-laws.

The three cases cited by the learned referee, Hoyt v. Thompson, 19 N. Y. 207, Martin v. Webb, 110 U. S. 7, Kraft v. Freeman Printing etc., Association, 87 N. Y. 628, are directly in line with our own case, Mohrfeld v. Bldg. Association, 194 Pa. 488. They all establish the rule, without variation, that where the company or association, either orally, or by express instructions, waives the exactions of their by-laws, the member of the association cannot be held to have made a mispayment if not made to the officer named in the by-laws, and it may be said of the facts in this case as was said in Schutte v. California B. & L. Association, 146 Pa. 324, “ The attempt to throw the loss occasioned by the fault of the secretary upon individual members, who have paid their dues in good faith, is not creditable to any one concerned.” There is no case cited by the appellee nor by either of the lower courts where facts similar to these have been held to constitute a mispayment.

The judgments of the Superior and common pleas courts are reversed and it is directed that judgment be entered for plaintiff in the court of common pleas for the amount awarded by the referee.

Fell and Potter, JJ., dissent.

       Also reported 3 Sup. Ct. Repr. 428. Reporter.


author: Mb. Justice Bbown, Me. Justice Dean,

text:
    Commonwealth, v. Danz, Appellant.

      Criminal law—Murder—Appeals—Duty of the appellate court—Evidence ■—Act of February 15, 1870, P. L. 15.
    Under the Act of February 15, 1870, P. L. 15, it is the duty of the Supreme Court on an appeal from a conviction of murder of the first degree to review both the law and the evidence, and to determine whether the ingredients necessary to constitute murder of the first degree were proved to exist. Whether such ingredients were proved to exist is to be determined by a review of the evidence produced by the commonwealth, for if they are there found, the appellate court cannot disturb the verdict because it may be plausibly argued that the jury should not have believed the witnesses for the commonwealth, or that, in view of the contrary evidence, the prisoner should have been acquitted.
    That a verdict might fairly have been a different one is no ground for judicial interference with the one rendered, if there was proper evidence to support it; and this is true whether such evidence be circumstantial or positive. Facts to be found from contradictory evidence are always for the jury and never for the court. It is only when, from undisputed evidence, but one finding can follow and a jury reaches a different one, that a court must interfere and avert injustice by setting the verdict aside.
    - The evidence in this case considered by the Supreme Court and found to be sufficient to support a verdict of guilty of murder of the first degree by poison.
    Dean and Mestkezat, JJ., dissent.

      Criminal law—Murder—Poisoning—Arsenic.

    Where it is established that arsenic is rapidly eliminated from the human body after administration, it is not incumbent on the commonwealth to prove that a- quantity of poison sufficient to cause death was found in the body before a jury can be allowed to find that it was the cause of death, if the evidence sufficiently establishes the fact that the poison alleged to have caused death did kill the deceased.
    Where it appears not only that arsenic is quickly eliminated from the body before death, but also that it escapes in form of arsenious gas after the body lies in the grave, the quantity of arsenic remaining nearly two years after death is not evidence of the quantity in the body at the time of death, and the quantity that may be found in it then is not evidence of the quantity that had been administered.

      Criminal law—Murder—Poisoning—A rsenic—A ntimony—Evidence.

    On the trial of a woman indicted for poisoning her husband with arsenic, there was evidence that the prisoner had also administered antimony to the husband for the alleged purpose of curing him of drinking. The commonwealth introduced evidence to the effect that the deceased had not been a drunkard. There was testimony that death had been probably accelerated by the administration of antimony. The court gave such instructions as excluded from the consideration of the jury any other cause of death than arsenical poisoning. Held, that the fact of the administration of antimony was, under all the circumstances, a matter for the consideration of the jury.

      Criminal law—Murder—Arsenical poisoning—Motive—Evidence.

    On the trial of an indictment for murder by arsenical poisoning where all the ingredients of murder of the first degree are shown by the evidence, the jury may return a verdict of guilty of murder of the first degree, although the motive of the prisoner is not shown. The fact of murder being established, the inability to discover the motive does not disprove the crime.

      Criminal law—Murder—A ppeals—Review—Evidence.

    On an appeal in a murder case where numerous errors are assigned to rulings on evidence, the Supreme Court will examine each of the rulings with the utmost care, and if they find that each was plainly right, they will say so generally without demonstrating that there was no violation of the rules of evidence.

      Criminal law—Murder—Evidence.

    A verdict of guilty in a murder case will not be reversed on appeal because the court erroneously disallowed an offer of evidence by the prisoner where it appears that immediately afterwards and without any renewed objection by the commonwealth, the evidence covered by the offer was actually given.

      Trial—Points of charge—Answers to points.

    A trial court cannot be convicted of error in refusing to affirm a point where an affirmance would have given the jury a license to find material facts of which there was no evidence.

      Criminal law—Murder—Trial—Points.

    On the trial of an indictment for murder the trial court is not required, in answer to a point, to repeat instructions which it has previously, clearly and correctly given in an answer, or answers, to other points. In such a case no harm is done to the defendant if the point is not read to the jury.

      Criminal law—Murder—Evidence—Misconduct of district attorney.

    On the trial of an indictment for murder by poison the prisoner cannot complain of the conduct of the district attorney in not calling as a witness a physician who had examined the body of the deceased, where it appears that early in the trial counsel for the defendant had been informed that the physician would not be called by the commonwealth, and that the defendant could call him if she so desired.
    Argued Oct. 27, 1904.
    Reargued Feb. 13, 1905.
    Appeal, No. 218, January T., 1904, by defendant, from judgment of O. & T. Phila. Co., April T., 1903, No. 154, on verdict of guilty of murder of the first degree in case of Commonwealth v. Catharine Danz.
    Before Mitchell, C. J., Dean, Fell, Brown, Mestrezat, Potter and Elkin, JJ., on reargument.
    Affirmed.
    Indictment for murder. Before Martin, P. J.

      The facts appear by the opinion of the Supreme Court.
    When Robert McKenty was on the stand he was ashed this question:
    “ Q. She made the remark you have testified to and then went on toward the cell? A. We went on to the cell. Q. Where did you go from that point? A. To the cell room, and I brought Hossey out of the cell and at that time Mr. Donaghy was in the cell room, we were probably about as far from here to that railing from one another. Q. Hossey and the woman? A. Yes, sir; she throwing up her hands and saying, ‘ I don’t know that colored man, I never saw that nigger.’ I said, ‘ George is that the butcher’s wife on Fourth street that paid you the $51.00 for that powder? ’ and he said, ‘ Yes.’ ”
    Judge Martin: “ Q. Who is George? A. Hossey.”
    Mr. Bell: “ Q. Did she hear you say that ? A. The probabilities is she did not; I cannot say whether she did or did not, I said it loud enough. That is not the one that Donaghy said he did n’t hear.”
    Mr. Scott objects and moves to strike the witness’ answer out.
    Judge Martin: The jury can pass on whether she heard it or not.
    Exception for defendant. [13]
    Frederick Genth, a witness for the defendant, while under direct examination was asked these questions:
    “ Q. And these are the two bottles which have been produced here in court and identified by Mr. Shrawder? A. Yes, sir. Q. What did you do with them ? A. I examined them for arsenic. Q. What did you find ? A. I found arsenic.”
    Mr. Bell: Confine it to the fluid used here.
    Mr. Scott: But Eckels testified it was not in either kind.
    The Court: My recollection of Mr. Myers’s testimony is that he used the Royal Embalming fluid.
    Mr. Scott: I will read from Mr. Eckels’ testimony, page 35: “ Q. Does that embalming fluid, Primero, you are selling to-day, contain arsenic in sufficient quantities to be weighed ? A. No, sir. Q. It would be impossible? A. Yes.”
    Mr. Scott: I propose to contradict him upon that and show that we have examined this very Primero embalming fluid and that it does contain arsenic in weighable quantities.

      Objected to.
    Objection sustained, as the portion of testimony read from was cross-examination. Exception for defendant. [17]
    Verdict of guilty for murder of the first degree upon which judgment of sentence was passed.

      .Errors assigned were (1-21) various rulings on evidence; (22-51) refusal to answer thirty points offered by defendant.

      Henry J. Scott, for appellant.
    Circumstantial evidence is only competent to support a verdict of guilty when it excludes every other reasonable hypothesis than that of guilt: Reg. v. Hodge, 2 Lewin C. C. 27.
    Since an action without motive would be an effect without cause, a presumption is consequently created in favor of innocence by the absence of all apparent inducement for the commission of the alleged offense: Will’s Circumstantial Evidence, 49 ; State v. Moxley, 102 Mo. 374 (14 S. W. Repr. 969) ; People v. Ah Chung, 54 Calif. 398 ; United States v. Reder, 69 Fed. Repr. 965; People v. Foley, 64 Mich. 148 (31 N. W. Repr. 94) ; Gray v. Com., 101 Pa. 380.
    The accused’^ opportunities to commit the crime, her conduct and alleged falsehoods prior, during or subsequent to the alleged crime, are not competent to prove the corpus delicti: Com. v. Johnson, 162 Pa. 63; Reg. v. Frost, Gurney Rep. 689.
    That defendant administered tartar emetic to her husband was irrelevant and incompetent evidence.
    The rule which prohibits the proof of extraneous crimes to prove the crime charged is applied by the coui'ts of this state: Shaffner v. Com., 72 Pa. 60; Com. v. Birriolo, 197 Pa. 371.
    The commonwealth should have satisfactorily accounted for not calling Dr. McFarland: Com. v. Rhoads, 23 Pa. Superior Ct. 512; Com. v. Bubnis, 197 Pa. 542.

      John O. Bell, district attorney, with him Owen J. Roberts, assistant district attorney, for appellee.
    The corpus delicti was proved: Zell v. Com., 94 Pa. 258 ; Gray v. Com., 101 Pa. 380; People v. Hickman, 113 Cal. 80 (45 Pac. Repr. 175); State v. Heidenreich, 29 Oregon, 381 (45 Pac. Repr. 755) ; Fletcher v. State, 90 Ga. 468 (17 S. E. Repr. 100).

      The function of determining what are the facts in the case and what inferences are to be drawn from them is for the jury, and unless the finding of the jury is entirely contrary to what the commonwealth’s evidence shows to be the probable truth, there should not be any intervention or interference with the verdict: Grant v. Com., 71 Pa. 495 ; McCue v. Com., 78 Pa. 185 ; Gray v. Com., 101 Pa. 380; Com. v. Morrison, 193 Pa. 613.
    The commonwealth does not admit that it was under any necessity to prove a motive in this case. If it proved a case containing every ingredient of the crime of murder, and satisfied the jury upon every one of the ingredients of the crime of murder, the mere fact that no motive could be definitely assigned for the action of the defendant would constitute no legal reason for acquitting her: McLain v. Com., 99 Pa. 86; Lanahan v. Com., 84 Pa. 80; McCue v. Com., 78 Pa. 185; Zell v. Com., 94 Pa. 258.
    It is both legally and medically established beyond peradventure that in order to sustain a conviction it is unnecessary to prove that any given quantity of arsenic was found in the cadaver after death: Tawell’s Case, 1 Woodall’s Celebrated Trials, 162 ; Com. v. Zell, 94 Pa. 258.
    There was no duty upon the commonwealth to call Dr. MoFarland unless it saw fit to do so : Onofri v. Com., 20 W. N. C. 264; McCabe v. Com., 8 Atl. Repr. 45.
    In a number of jurisdictions it has been held that upon a trial for murder, previous assaults, whether with the same or a different instrument, and previous attempts to take life, are admissible, as showing intent and motive: State v. Nugent, 71 Mo. 136 ; Medina v. State, 49 S. W. Repr. 380 ; Pritchett v. State, 92 Ga. 65 (18 S. E. Repr. 536) ; State v. Patza, 3 La. Ann. 512 ; State v. Merkley, 74 Ia. 695 (39 N. W. Repr. 111) ; Hamilton v. State, 56 S. W. Repr. (Texas), 926; State v. Walters, 45 Ia. 389; State v. Rohfrischt, 12 La. Ann. 382; Com. v. McCarthy, 119 Mass. 354; Com. v. Bradford, 126 Mass. 42.
    It has always been the rule of this court in criminal, as well as civil matters, that where the court has covered the point in its general charge, or considered and answered the point in connection with another point, it is not error to fail or refuse to answer such point: McLain v. Com., 99 Pa. 86; Com. v. McManus, 143 Pa. 64; Com. v. Clark, 3 Pa. Superior Ct. 141.
    April 17, 1905:
   Opinion by

Mb. Justice Bbown,

By the Act of February 15, 1870, P. L. 15, it is made our duty to review both the law and the evidence in this case, and to determine whether the ingredients necessary to constitute murder of the first degree were proved to exist. The first assignment of error is based on their alleged absence. Whether they were proved to exist is to be determined by a review of the evidence produced by the commonwealth to sustain its grave accusation, for if they are there found, we cannot disturb the verdict, because it may be plausibly argued that the jury should not have believed the witnesses for the commonwealth, or that, in view of the evidence offered by the prisoner, she should have been acquitted. That a verdict might fairly have been a different one is no ground for judicial interference with the one rendered, if there was proper evidence to support it; and this is true whether such evidence be circumstantial or positive. Facts to be found from contradictory evidence are always for the jury, and never for the court. It is only when, from undisputed evidence, but one finding can follow and a jury reaches a different one, that a court must interfere and avert injustice by setting the verdict aside.

William G. Danz died June 27, 1901. On March 12, 1903, his body was exhumed and the coroner’s }:>hysician made a post-mortem examination. He testified to the condition of the organs at the time the body was exhumed and delivered the heart, liver, kidney, stomach, intestines, brains and part of the muscular tissue of the thigh to an expert chemist for examination. That expert testified that he had found arsenic and antimony in various oi’gans of the body in weighable and appreciable quantities. The body had been embalmed, and, to repel any presumption that the arsenic found might have been injected into it by the embalmer, the chemist who manufactured the embalming fluid was called and testified that it contained no more than a mere trace of arsenic, which was neither weighable nor appreciable. The two physicians who had attended Danz during the last four weeks of his life testified to his symptoms. Three most eminent members of the medical profession, called as experts, pronounced them to be those of arsenical poison, and testified that, from the evidence produced by the commonwealth, they were of opinion such poison had caused the death, probably accelerated by the use of antimony. The wife of the deceased had administered the antimony to him for the alleged purpose of curing him of the drinking habit. When the prisoner was asked to allow the body to be exhumed, she said, in consenting, that it would be found full of poison, because Dr. Eberhard, one of her husband’s physicians, had told her so. When she made this statement nothing had been said by any one about poison, and it does not appear that the doctor had ever told her what she said. Hossey is a colored man from whom, according to the commonwealth’s theory, the poison was obtained. Her conduct, when she confronted him at the city hall, was a most important and significant circumstance. She became suddenly and greatly excited and asked to be taken away from him, saying and repeating: “ I do not know that colored man, I never seen that nigger, I never seen him; take me away from here.” To this he replied: “What is the matter with you, woman; I am not giving you away.” He was asked in her presence whether she was the butcher’s wife who had paid him $51.00 for a powder; to which he replied, “yes.” Shortly afterwards she mentioned the colored man’s name, though it had not been mentioned by any one before. Subsequently she admitted she knew him, and agreed rvith him in certain of his statements. She admitted that she had got a powder from him, that it was gray in color, something like slate pencil dust. Finally, when taken to another room, she admitted that after her husband’s death she had paid Hossey the $51.00 referred to by him and at the time stated by him. When he was arrested there were found in his office a box of rough on rats and a package wrapped up in a newspaper, tied with a string, and similar to the one the prisoner said she had got from him. It contained gray powder. A chemical analysis of the contents of this package, of one similar to it sold by Hossey to a man named Gavin and of the rough on rats found in his possession at the same time disclosed a large proportion of arsenic in each. A number of witnesses were called who had known Danz from five to twenty years, and, according to their testimony, he was not a man who drank to excess. There were frequent quarrels between him and his wife. He accused her of trying to poison him. She stated to some of the witnesses that she would be happier if he were dead. To one she repeatedly said she would like to get rid of him. To others she said he would not survive the month in which he died. To Mrs. Heinel she stated that she had put the powders Hossey had given her into her husband’s coffee, and that the son-of-a-bitch had discovered it and thrown it out, but she would catch him yet. To still another she said she was sorry he had not died a few weeks before, as she would have saved a premium on his life insurance. The foregoing are the main features of the commonwealth’s case. That they were sufficient to establish the corpus delicti needs no demonstration from us, and, as we find in the evidence the ingredients necessary to constitute murder of the first degree, the first assignment must be overruled.

There was evidence offered for the prisoner from which'her learned counsel asked for an acquittal. Distinguished experts testified that her husband had not died from arsenical poison, and, if their opinions were correct, the commonwealth’s case fell without more. Other features of the defense might be referred to upon which confident reliance may have been placed that there would be a different finding, but it is not for us to discuss them or to say what the verdict should have been. It was for the jury alone, as they were properly told by the learned trial judge, to determine from all the evidence what were the real facts in the case. They have discharged that exclusive duty, and their verdict cannot be disturbed, unless in its instructions to them or in its rulings on the trial the court fell into error. We have referred to the case as made out by the commonwealth that it may appear what ingredients necessary to constitute murder of the first degree were proved to exist. “ Our duty is to see whether there was evidence given in the case, which, if believed by the jury would furnish the elements, or 4 ingredients,’ as the act says, of murder in the first degree, under our statutes on the subject, viz.: the corpus delicti, either 4 killing by poison, lying in wait, or by any other kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempted perpetration of any arson, rape, robbery or burglary.’ To this extent is the duty devolved on this court of reviewing the facts in cases of conviction for murder in the first degree, by the act of 1870. It goes no further towards enabling it to grant new trials. If there have appeared in the testimony the ingredients to constitute murder in the first degree, our power ceases. Whether the jury should or should not have believed and relied on it, is what this court cannot examine into. That must be inquired of on a motion for a new trial in the court below, as formerly: ” Grant v. Commonwealth, 71 Pa. 495.

But a small quantity of arsenic was found. The' commonwealth made no attempt to show just what amount had been administered. Dr. Shoemaker, one of the experts called by it, testified: “ Arsenic is eliminated by all the glands of the body inside and all the glands of the body outside; it is eliminated through the hair and is even deposited in the hair; eliminated through or by the kidneys and through the bladder and urine, the bowels, and even, owing to the rapid elimination of arsenic, especially if the patient vomits, there will be very little arsenic in the body after death or in the subject.” In this he was supported by medical authorities. “ Arsenic is not a strongly cumulative poison; it is temporarily deposited in the liver and other organs of the body, after absorption, but it is rapidly eliminated from the system by the urine, bile, and other secretions. Should the person survive for two or three weeks no trace of poison may be found after death, in consequence of its total elimination during the interim: ” Reese’s Medical Jurisprudence and Toxicology, 443. And it is not incumbent on the commonwealth to prove that a quantity of poison sufficient to cause death was found in the body before a jury can be allowed to find that it was the cause of death, if the evidence sufficiently establishes the fact that the poison alleged to have caused death did kill the deceased. In Tawell’s Case, 1 Wood-all’s Celebrated Trials, 162, it was urged by the counsel for the prisoner that it was a rule of law that there ought to be proof of the finding of such a quantity of poison in the body of the deceased as would necessarily occasion death; but Mr. Baron Parke instructed the jury that it was not necessary to prove that such a quantity as to destroy life had been found in the stomach, if the evidence satisfied them that death had been occasioned by poison and that it had been knowingly administered by the prisoner. This is the law. If it were different, murderers by arsenic would often escape. The body of Danz was exhumed nearly twenty-one months after his death. According to the testimony of the experts and the unquestioned medical authorities, if arsenic was administered to him, it was distributed through every organ and tissue, and during the twenty months that the body lay in the grave it would escape in the form of arsenious gas. The weighable quantity found in the body was taken from but portions of it. How much remained in the whole body does not appear, nor was it necessary to show; for, in view of the testimony and authority just quoted, what remained nearly two years after the death would not have been evidence of the quantity in the body at the time of death, and the quantity that might have been found in it then would not have been evidence of the quantity that had been administered.

There was evidence to show that the prisoner had administered antimony to her husband for the alleged purpose of curing him of drinking. This was admitted without objection by the prisoner. There was nothing to show that the antimony had caused death, and the jury must have understood from the evidence and the distinct instructions given them that they could not convict unless they were satisfied that the death had been caused by the administration of arsenic with felonious intent. The specific direction given by the learned trial judge, in his answer to the defendant’s twenty-first point, was: “ The commonwealth must show that not only was arsenic bought, but that the same was administered to William G. Danz with a felonious intent by Mrs. Danz, the defendant, and that he died as a result thereof, and unless this is proven beyond a reasonable doubt, the defendant must be acquitted.” This in itself excluded from their consideration any other cause of death for which she could be held acccountable on the indictment against her. There was testimony that death had probably been accelerated by the administration of antimony, and the evidence of that administration was, therefore, relevant, for it tended to show the physical condition of the deceased and the greater susceptibility of his system to the fatal influence of arsenic. The symptoms of the deceased were described to the experts, and it was proper that they should know what other drugs had been given him before they expressed opinions on which a life might depend. No possible harm was done the prisoner by this evidence, and, for the reason stated, it had a fit place as a particular in the proofs. Even if it had been objected to, it would have been properly received for another reason. The theory of the commonwealth, supported by testimony, was that Danz had not been a drunkard, and the antimony had not, therefore, been administered by his wife from the motive assigned by her. If this theory was correct—which was for the jury’s determination—they could have properly taken into consideration the administration of the antimony on the question of the felonious intent of the prisoner when she gave her husband the poisonous powder obtained from Hossey.

It is urged as a reason for the reversal of this judgment that no motive was disclosed for the crime charged. The position taken by the appellant’s counsel is found in the twentieth point submitted for her, which is: “ There being no evidence of the administration of arsenic, the commonwealth’s case being based upon circumstantial evidence alone, the prosecution must show a motive for the crime, and, unless this motive is clearly proven, the defendant must be acquitted.” This was affirmed without qualification, and such affirmance of it was more than the appellant had a right to expect. Though the evidence against her was circumstantial, if it satisfied the jury of her guilt, she is not to be saved from the consequences of her crime because a motive for its commission, however important a matter the same might be, had not been disclosed. There can be no escape from punishment for crime when all the elements of it are proved, whether the evidence be positive or circumstantial, simply because the motive lies hidden in the heart of the only one who knows it. If the guilt of the prisoner was established beyond a reasonable doubt, some motive existed, known to a certainty only to herself, and disclosed only to the Unseen Eye from which the secrets of no heart can be hidden. Though it had been undisclosed to her triers, they could not, for that reason alone, have declared her guiltless. If, from all the circumstances in the case, they believed that it was her hand that gave the poison as her chosen agency to accomplish her husband’s death, the jury must, under the instructions given them, have found a motive clearly proven, or they would have acquitted her. What they found it to be we do not know. What they might have found it, can be readily conjectured from the evidence. It might have been hatred; it might have been weariness of her husband and a longing for a life that she thought would be pleasanter and happier without him, or it might have been avarice aroused by insurance policies on his life. Whatever it was, the jury found it, though they were not required to find one. The motive may be obscure, indeed may not be fathomed; but the act was there plainly and fully obvious to the senses, and the effect of it clearly open to the prisoner’s own mind. The ingredients of the crime of murder in the first degree were all there, however inscrutable may be the causes which moved the prisoner to commit the deed. When all the elements of the crime are present, and when there can be but one rational inference from the act itself, retribution cannot be avoided, because the motive lies hidden and unrevealed in the heart of him only, who could disclose it: ” McCue v. Commonwealth, 78 Pa. 185. This was followed in Lanahan v. Commonwealth, 84 Pa. 80, where the same learned chief justice said: “ It is asked what was the motive ? True, this is not yet solved, but the fact of a deliberate and intentional killing is there. The fact of murder being established, the inability to discover the motive does not disprove the crime. When the question is, whether the prisoner committed the crime, his motive may be a most important fact in the proof, but the crime being established it is well shown in McCue v. Commonwealth, 28 P. F. Smith, 185, that the hidden motive is unnecessary to be disclosed.”

The assignments from two to twenty-one, inclusive, relate to alleged errors in rulings on offers of evidence and in overruling motions to strike out certain testimony. All have been examined with the utmost care, and no one of them, except the seventeenth, calls for any discussion of its merit, for the ruling upon each was plainly right. In such a case we do not feel called upon to say more by demonstrating that there was no violation of the rules of evidence, for such demonstration would be of use to no one, and, if of interest to any, only to counsel who raise the questions. Due consideration must be given them, as of every question raised before us; but when clearly -without merit, there is no duty on us to say more of them.

At first blush the seventeenth assignment seems to direct attention to substantial error and to call for a reversal of the judgment. At the very threshold of its case the commonwealth undertook to prove that poison had not been injected into the body by the embalmer. He testified that he had used Royal Fluid, which he had purchased from Eckels & Company. Howard S. Eckels, the manufacturing chemist who had sold this fluid to the embalmer, was called to prove that there was no weighable or appreciable arsenic in it. In his examination in chief he stated that he had manufactured and sold two kinds of fluid to the embalmer—Primero and Royal—and in speaking of his fluid generally, he said it contained no weighable or appreciable arsenic. On cross-examination he distinctly stated, without objection from the commonwealth, that the Primero Fluid did not contain weighable arsenic. The theory of the defense was that the fluid used by the embalmer had contained the arsenic found in the body. Genth, an expert called by the appellant, testified that he had examined both fluids and found arsenic in each. It was then proposed to prove by him that he had found arsenic in a weighable quantity in the Primero. This was objected to on the ground that the Royal, and not the Primero, had been used by the embalmer, and the court overruled the offer, stating as a reason for doing so that the portion of the testimony of Eckels which was to be contradicted was in his cross-examination. So it was, but it was germane to his examination in chief, was relevant and material, for he must have been understood as saying, in reply to the questions put to him by the commonwealth, that arsenic was not found in weighable and appreciable quantities in either of his fluids. If found in the Primero, the appellant had a clear right to prove that fact, for it affected the credibility of one of the most important witnesses for the commonwealth on a most material matter, and, from the seventeenth assignment, it seems that this right was denied and injustice done the prisoner, calling for a reversal. But, turning to the notes of testimony, there is found, immediately following the disallowed offer, the- testimony of the witness, Genth, given without renewed objection by the commonwealth, that he had not only found arsenic in the Primero, but had weighed it. What had been improperly excluded was admitted a ' moment afterwards, with no testimony on any other feature of the case intervening. It is as if the overruled offer had been instantly renewed and the answer given, without objection, upon which the appellant hoped to impair the credibility of Eckels. For that purpose it was as useful to her as it possibly could have been if given in support of the overruled offer, and the seventeenth assignment must, therefore, be dismissed.

The remaining assignments call attention to alleged errors in refusing to affirm thirty of the forty-eight points submitted by the appellant. Some of these assignments, standing alone, seem to call for affirmance of certain refused points, but when thejr are examined in connection with the proofs in the case, the general charge of the court and its answers to other points, not one of them was improperly refused. We need give but two or three illustrations of this.

The refusal to affirm the twenty-seventh point is the thirty-sixth error assigned. That point was : “ If the jury believe that Professor Genth found arsenic in weighable quantities in the two ounces of fluid which he chemically analyzed, they are at liberty to conclude that the arsenic found in Danz’s body came from this, source, and if so, the defendant must be acquitted.” The jury could not have found from Genth’s testimony that there was arsenic in weighable quantities in the Royal Fluid, which was the one used by the embalmer, for the witness distinctly testified that he had not weighed the arsenic found in it. His testimony is: “Q. You examined the bottle of Royal Embalming Fluid, did you? A. I did, and I found it to contain arsenic. Q. In what quantities ? A. I did not weigh the arsenic in the Royal Embalming Fluid, but I did weigh it in the Primero.” Eckels testified that there was not a weighable quantity in the Royal—not more than a mere trace of arsenic. If the twenty-seventh point had been affirmed, the jury would have been given a license to find a material fact of which there was no evidence. Point thirty-two and one-half was: “ If the jury believe that the arsenic found in Danz’s body got there in any way after death, the defendant must be acquitted.” There was no evidence from the beginning to the end of the case, that the weighable arsenic found in the body had got there after death. It is quite to the contrary; for it is, that if any arsenic did get into the body after death, there was a mere trace, that could not be weighed. That found was weighed, and if defendant’s last point had been affirmed, the jury would have been allowed to imagine, the existence of an unproved fact, so important that there might have been a verdict which would have wronged the commonwealth. The thirteenth point submitted was: “ Unless the jury believe that William G. Danz came to his death through the administration of arsenic by Mrs Danz for the purpose of taking the life of William G. Danz, and unless they arrive at this conclusion without a reasonable doubt the defendant must be acquitted.” This was not affirmed, but in the general charge the court said: “ Even if Mrs. Danz administered to her husband poison, and by reason of that poison he died, if she administered it to him ignorantly, in good faith believing it was a cure for drunkenness, your verdict should be not guilty. Although Hossey may have furnished her with poison, and he .knew its deadly character, and intended that she should use it to kill her husband, if she used it innocently she is not guilty of the crime of murder.” And in affirming the eighth, seventeenth and twenty-first points, the jury were specifically instructed as follows : “ The defendant, Catherine Danz, stands in the light of the law an innocent woman and the burden is upon the commonwealth to prove her guilty of the crime of murder. The commonwealth must do that beyond a reasonable doubt; the burden of proof is on the commonwealth to prove the defendant guilty and that burden of proof never shifts. The jury must first inquire and decide whether William G. Danz died a natural death. If he did, the defendant must be acquitted. If the jury shall decide that he died an unnatural death, then the question arises: was death due to arsenic administered with a felonious intent by Mrs Danz, the defendant? If it was not, the defendant must be acquitted. The commonwealth must show that not only was arsenic bought, but that the same was administered to William G. Danz, with a felonious intent by Mrs. Danz, the defendant, and that he died as a result thereof, and unless this is proven beyond a reasonable doubt, the defendant must be acquitted.” The thirteenth point, as a correct statement of the law, was thus affirmed in the general charge and in the answers to other points. To more than this the prisoner was not entitled; for, even under sec. 58 of the Act of March 81, 1860, P. L. 427, the court is not required to repeat instructions, if once clearly and correctly given in an answer or answers to other points, as they were given here.' That section requires the court, on the trial of any indictment for murder or voluntary manslaughter, to give an opinion upon any point submitted by the defendant and stated in writing. Here, the opinion asked for in the thirteenth point was given in the manner stated. The point was not read to the jury, and no harm, therefore, was done her by the refusal to affirm it, for they did not know what it contained, and the specific instructions asked for by it were given them.

As to the assignment relating to alleged zeal and partisanship by the district attorney, amounting to misconduct, we fully concur with the learned trial judge in his answer to the first point, for we, too, have seen no evidence of anything to call for any criticism of that officer. Great stress is laid upon his failure to call Dr. McFarland. At the instance of a former district attorney this physician had made an examination of certain parts of the body of the deceased after its exhumation ; but his report to the coroner of the result of that examination threw no light upon the cause of death. It does not appear that he had ever expressed an opinion that the deceased had not died from arsenical poison until called as a witness in support of the rule for a new trial. At an early stage of the trial counsel for the prisoner, as is not denied, was notified by the district attorney that he would not call this doctor as a witness, and that if the prisoner thought his testimony would be of any use to her she should call him. He testified that he could have attended as a witness for her if notified. Under the circumstances there was no duty on the part of the district attorney to call McFarland as a witness for the prosecution, quasi judicial officer though he be, as much concerned to see that no innocent person suffers as it is to see that no guilty man escapes. His full duty to the prisoner was discharged when he notified her that he would not call him, coupled with the notice that she must do so if she thought his testimony would help her.

Nothing more remains to be said in detail of the assignments. Every question raised by tbe learned counsel for tbe appellant has been most carefully considered; and if we had any doubt about the correctness of any ruling or of any instruction given to the jury by the learned and careful trial judge, it would be resolved in favor of another trial. But we have no such doubt, and with the verdict of the jury, with whom exclusively were the facts, we cannot interfere.

The judgment is affirmed, and it is ordered that the record be remitted for due execution of the sentence.

Me. Justice Dean,

dissenting:

The majority of the court have concluded to affirm this judgment; I cannot concur and do not stand alone in this nonconcurrence. The case was first argued at Pittsburg before a full bench; it was then affirmed by a majority of the court, but three judges did not join in the affirmance and two of them dissented of record. Justice Thompson, who was then a member of the court, wrote a dissenting opinion in which I joined, but the court thought best to order a reargument, which was had at this term. In the meantime, Justice Thompson’s term, as a member of this court, had ended, so that, in fact, three judges nonconcurred in the judgment first determined on but in fact that left then the affirmation of the judgment standing by the bare majority of one of the court that first heard the argument. Affirmance of the judgment is now concurred in by five of the court who heard the reargument. While the judgment is that of the court, yet especially in a case of the gravity of this one, involving life, it has not the weight that it would have had if it had been rendered by an undivided court.

Our act of 1870, section 2, enacts, that “In all cases of murder in the first degree,' removed into the Supreme Court, under the provisions of the first section of this act, or now pending in the said court, it shall be the duty of the judges thereof to review both the law and the evidence, and to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” I am aware that this court has given a very narrow construction to these comprehensive words and has decided that they do not empower the court to review the question of the guilt or innocence of the prisoner. See Grant v. Commonwealth, 71 Pa. 495, and several cases following it. Still, the question in a case like the one before us involves an argument of what are the ingredients necessary to constitute murder of the first degree. This judgment depends wholly upon circumstantial evidence and the first question that suggests itself to my mind is : Was there sufficient evidence of the corpus delicti, that is, was the body of the offense proven clearly when the necessary ingredient of the offense was, that a murder had been actually committed? It was an “ingredient” absolutely necessary for the commonwealth to prove, that a death had occurred from poison and then, that the intention in administering the poison was to take the life of the deceased; if these be not ingredients under the act of assembly, I cannot conceive what are; therefore, the circumstances must, under the rules governing the application of circumstantial evidence, point to the guilt of the accused and must be inconsistent with any other theory or, to adopt another form of statement, the circumstances must be irreconcilable with any other reasonable theory than that of guilt. I think the circumstances are entirely reconcilable with the theory of innocence, that is, that first, the accused may have administered arsenic with the intention, under the advice of a quack doctor, of producing a condition of illness which would make intoxicating liquor entirely repugnant to him and bring about a reformation in his propensity to drunkenness or, second that there is no sufficient evidence that death was caused by any poison administered with the intent to produce death. I do not differ from Gibson, Chief Justice, in his masterly opinion in Commonwealth v. Harman, 4 Pa. 269, on the relative value of circumstantial and positive or direct evidence, but in arriving at a conclusion of guilt from purely circumstantial evidence, circumstances must be irreconcilable with any other reasonable theory than that of guilt. In this case,the evidence,to my mind, points very strongly to the conclusion of innocence. I concede, that there were some circumstances which tended to cast suspicion on the accused but they were not significant; ought not to have the weight which the jury gave them. They seemed, from their verdict, to have arrived at conclusions without an unbroken chain of circumstances pointing to but one result, but to have jumped to a conclusion of guilt from immaterial circumstances. As Lord Bacon says in Aphorism 45 of his Novum Organum, “There is a natural tendency in the human mind to suppose a greater order and conformity in things than actually exist.” This as is stated by Best on Presumptions, sec. 193, “May proceed in certain cases from indolence or aversion for the patient and accurate consideration of minute and ever-varying particulars. But perhaps the most common source of inaccurate reasoning .from facts in cases of moral conduct is precipitation produced or heightened by moral emotion. This is particularly the case where a great crime has been committed.” The evidence points, here, significantly and conclusively enough to the fact, that the accused was not a good woman and her conduct on many occasions was reprehensible, but we cannot say that a woman shall be hanged because she is not a good woman. She can only justly be hanged, according to law, if she is guilty of murder, and yet these facts, to my mind, show nothing further than that this was a rough, uneducated woman, goaded to bad conduct by the drunkenness of a worthless husband, ofttimes expressing the very feelings that an exasperated woman would have toward a husband who had worried and illtreated her and she may, at the suggestion of the quack doctor, when she consulted him as to her husband’s propensity for drunkenness and how to cure it, have administered the powders he gave her, and it is possible that these contained, with antimony, arsenic, but the essential ingredient of the offense, that she administered these powders, if they were poisonous, with intent to produce death, utterly fails; but not only does the proof of the felonious intent fail, but proof of the essential fact that the death was caused by poison fails. True, there was some evidence that arsenic was found in the body of the deceased after death but not sufficient to have caused death. The jury jumped to the conclusion that the death was caused by poison because a poisonous drug in a small quantity was found in the body after death, and then they jumped further, to the conclusion that because the accused had made wild and unkind declarations with reference to her husband, that she desired and brought about his death by the administration of this poison. Taking the wholes evidence, fact by fact, as proven, and massing them all together, they do not convey to my mind properly the conclusion of guilt and I cannot concur in the judgment. As I have already noticed, these two essential ingredients of the offense are lacking : First, proof that death was caused by poison, and second, proof of the felonious intent that the poison was administered by the accused with intent to produce death. I have read this evidence very carefully and in the light of two able arguments, I cannot bring my mind to concur with the majority. I can see how the jury may have conscientiously found their verdict: First, on insufficient evidence, they found a great crime had been committed; then, on insufficient evidence, that the wife of the deceased had committed this crime. The case was most zealously and most ably prosecuted by the commonwealth. Every circumstance, no matter how trivial, was held up before the jury as indicating guilt, but the main facts which are necessary to constitute ingredients of the offense were lacking.

For that reason, I would reverse the judgment and order a new trial.

Mestkezat, J. I concur in this dissent.