text:
    Wakefield’s Appeal
    (No. 1).

      Elections — Nomination papers — Pre-emption of party name — Local and district offices — Act of July 9, 1897, P. L. 223.

    1. The pre-emption oí a party name for state purposes does not give to the pre-emptors, or the body represented by them, the exclusive right to control the use of that name in the nominations of candidates for every local or district office.
    2. Where five electors of a congressional district file with the prothonotary of their county, as required by the Act of July 9,1897, P. L. 223, an affidavit setting forth that they had adopted the name of a certain party to designate their policy in the election of a congressman froth that district; and, following this pre-emption, the nomination paper, properly signed by a sufficient number of electors, residents of the district, is filed in the office of the secretary of the commonwealth accompanied by a certificate from the prothonotary setting forth compliance with the act; and the pre-emption is first in point of time so far as the district nomination is concerned and there is a strict compliance with the act of 1897 in the preparation, signing and filing of the nomination paper; a prima facie case in favor of the validity of the nomination paper is made out and the paper is not rendered invalid by reason of its not having the approval of the political body represented by five electors who at a prior date had pre-empted the name of such party to designate their policy in the nomination of candidates for state offices.

      Argued Oct. 24, 1910.
    January 3, 1911:
    Appeal, No. 4, May T., 1911, by James A. Wakefield, from decree of C. P. Dauphin Co., Jan. T., 1911, No. 173, sustaining objections to nominar tion papers of James A. Wakefield as a candidate of the Keystone Party to Congress in the Thirtieth Congressional District of Pennsylvania.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Reversed.
    Objections to nomination papers.
    The opinion of'the Supreme Court states the case.

      Error assigned was decree sustaining objections and declaring the nomination papers invalid.

      Charles H. Bergner, J. H. Harrison and B. C. Tunison of Florida, for appellant.

      James A. Stranahan, with him William H. Sponsler, for R. J. Black, appellee.
   Per Curiam,

A majority of the court are of opinion that there should be a reversal in this case and that the nomination paper of appellant be declared valid. The nomination paper was filed agreeably to the requirements of the proviso to sec. 1 of the Act of July 9, 1897, P. L. 223. Appellant complied with every provision of the act by which the regularity of his nomination paper must be tested. Five electors of his congressional district filed with the prothonotary of Dauphin county, as required by the act, an affidavit setting forth that they had adopted the name of the Keystone party to designate their policy in the election of a congressman from that district. Following this pre-emption, the nomination paper objected to in this case, properly signed by a sufficient number of electors residents of the district, was filed in the office of the secretary of the commonwealth accompanied by a certificate from the prothonotary setting forth compliance with the act. The pre-emption was first in point of time so far as the district nomination was concerned and there was a strict compliance with every requirement of the act in the preparation, signing and filing of the nomination paper in question. This makes out a prima facie case in favor of its validity. It, however, is contended that it docs not have the approval of the political body represented by the five electors who at a prior date had preempted the name of the Keystone party to designate their policy in the nomination of candidates for state officers, and by reason thereof the nomination paper is invalid. There is nothing in the act which requires such approval and such a construction would necessitate reading into it provisions not contained therein. The preemption for state purposes does not empower the five electors who made it, or the political body for whose protection it was made, to either make or approve district nominations. The people of local districts are jealous of their right to nominate and elect candidates of their own choice and in matters affecting the locality would not willingly surrender that choice to those in control of the body representing the party policy for state purposes. If the five original pre-emptors for state purposes, or the political body represented by them, have the power to approve and disapprove nominations for local and district offices, the hands of the local people would be so effectually tied as to deprive them of the valued privilege of making their own nominations and of voting for the candidates of their own choice. When the legislature intends to make such a radical departure from the policy of allowing the people to select their own candidates for local offices, the language expressive of such intention should be so plain as to leave no doubt about its meaning. The language of the act of 1897 does not stand this test. The position sustained by the learned court below is that the pre-emption of the party name for state purposes gave to the pre-emptors, or the body represented by them, the exclusive right to control the use of that name in the nomination of candidates for every local or district office. In other words that the electors of a district could not nominate a candidate for the legislature, or the senate or congress, or for any other local office, without the approval of those who originally pre-empted the name for state purposes. This gives to the act a broader scope than any reasonable construction of its provisions warrant. Section 1 of this act authorizes nominations to be made by nomination papers, signed by qualified electors of the state, or of the electoral district or division thereof for which the nomination is made. If the nomination be for a state office the number of signers must be at least one-half of one per cent of the largest vote for any officer elected in the state at the last preceding election; if for a district office, two per cent of the largest entire vote for any officer elected in that district at the last preceding election. Thus it clearly appears that nominations by separate nomination papers must be made for each class of offices. If the nomination is for a state office, the pre-emption is for that purpose;.if for a district office, the pre-emption is for the district. One pre-emption does not cover or include the other. The act in express words • provides for a separate nomination paper and a separate pre-emption for each class of offices. What the act requires must be done. In the organization of a new party more or less confusion necessarily arises. Five electors pre-empt a party name for state offices and this is followed by filing nomination papers naming the candidates. This starts the movement with the right to the exclusive use of the name pre-empted and with the nomination of persons desired as candidates. It is the foundation upon which the new party structure rests. If it be deemed expedient or desirable to strengthen the new party movement by making nominations for district offices, it is necessary to have electors of the local district pre-empt the name for that district and to sign the necessary nomination papers for such candidates as they may prefer. The original pre-emptors for state purposes have no authority to make district nominations, nor can they do indirectly, by exercising the power of approval or disapproval, what they cannot do directly. District nominations must be made by the electors of the district as the law provides. When two or more nomination papers are filed for the same office in the same district the courts must decide which one is valid. In such cases many questions arise, such as priority of pre-emption, good faith of pre-emptors, and whether trick, artifice or fraud has been practiced. In the present case questions of this character are not involved. There is no allegation of fraud or misrepresentation and the pre-emption upon which appellant relies has the priority in point of time. His papers are regular and were properly signed and filed. He did not have the approval of the state body representing the Keystone party and this the law does not require. We therefore hold that the nomination paper of appellant is regular and valid. The order to this effect has already been made and is of record.


source: Caselaw Access Project

author: Pee Cueiam, Per Curiam.

license: Public Domain

text:
    Wakefield’s Appeal
    (No. 2).

      Elections — Nomination papers — Pre-emption of Party name — Fraud —Act of 1897.

    The nomination of a candidate for congress who first secures the preemption of a party name and files nomination papers in compliance with the law will be declared regular, where no question of fraud, misrepresentation or bad faith is raised on the record.
    Argued Oct. 24, 1910.
    Appeal, No. 5, May T., 1911, by James A. Wakefield, from decree of C. P. Dauphin Co., Jan. T., 1911, No. 204, overruling exceptions to nomination papers of II. J. Black as a candidate for Congress in the Thirtieth Congressional District of Pennsylvania.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Mosciizisker, JJ.
    Reversed.

      January 3, 1911:
    Exceptions to nomination papers.
    The opinion of the Supreme Court states the case.

      Error assigned was decree overruling exceptions.

      Charles H. Bergner, J. H. Harrison and B. C. Tunison of Florida, for appellant.

      James A. Stranahan, with him William H. Sponsler, for appellee.
   Pee Cueiam,

The principles which govern this case were discussed in the preceding case and the discussion need not be elaborated here. Appellee relies upon the approval of the original pre-emptors of the party name for state purposes to establish the validity of his nomination papers. We have just held that the validity of a nomination paper did not depend upon having such approval. The nomination of a candidate for congress by any party must be made by electors of the congressional district, and if the nomination be made by nomination papers there must be a strict compliance with the requirements of the act or acts governing the same. In one particular, at least, appellee failed to meet this requirement. The act provides that a certificate from the prothonotary setting forth that five electors had pre-empted the party name for the office to be filled in accordance with the requirements of the law, must be filed in the office of the secretary of the commonwealth with the nomination papers. This was not done and the nomination paper filed was irregular in this respect. Again, the nomination papers of appellant were regular and had priority in time. There cannot be two candidates of the same party for the same office. Appellant having first secured the pre-emption of the party name and having filed nomination papers in compliance with the law, and there being no question of fraud, misrepresentation or bad faith raised on the record, his nomination must be declared regular. It follows that the nomination papers of appellee are irregular and void. A decree to this effect has already been made.

The original opinion of the Supreme Court in this case and in Wakefield’s Appeal, No. 1, ante, p. 581, was filed Oct. 25, 1910, in the following form:

Per Curiam.

The majority of the court are of opinion that each of these appeals should be sustained, and it is so ordered; and it is further ordered that the prothonotary so certify to the secretary of the commonwealth, that the name of James A. Wakefield may appear upon the official ballot for the thirtieth congressional district of the state as the candidate of the Keystone party for Congress in that district at the election to be held on Tuesday, November 8, 1910.


author: Mr. Justice Potter,

text:
    Commonwealth v. Rusic, Appellant.

      Criminal Law — Murder—Charge of court — Reasonable doubt.

    1. On a trial of an indictment for murder, where the undisputed testimony establishes that the accused shot his victim by deliberately holding his pistol so close to her head as to leave deeply stained powder marks upon her skin, and where the court’s charge as a whole is a correct and adequate presentation of the law, leaving the jury absolutely free to reach their own conclusion, it is not error for the court to say, in the course of its instructions: “If there is a reasonable doubt that he did the shooting, he is entitled to an acquittal. But in the light of all the testimony, can there bo a reasonable doubt of his guilt?”
    2. On the trial of an indictment for murder, where the fact of a deliberate and intentional killing is shown, the inability to prove the motive does not disprove the crime.

      Practice, O. & T. — Amendment to record — Expiration of term.

    3. The court of oyer and terminer has the power to amend the record of a trial of an indictment for murder so as to make it conform to the truth, even after the term has expired.

      Argued Oct. 17, 1910.
    January 3, 1911:
    Appeal, No. 146, Oct. T., 1910, by defendant, from judgment of O. & T., Allegheny Co., March T., 1910, No. 14, on verdict of guilty in case of Commonwealth of Pennsylvania v. Steve Rusic.
    Before Fell, C. J., Beown, Mesteezat, Pottee, Elkin, Stewaet and Moschziskee, JJ.
    Affirmed.
    Indictment for murder. Before Beown, P. J., presiding, McFablane and Fobd, JJ.
    The facts appear in the opinion of the Supreme Court.
    Verdict of guilty of murder of the first degree upon which judgment of sentence was passed.

      Errors assigned were (1) portion of charge quoted in the opinion of the Supreme Court, and (11) in permitting an amendment to the record after expiration of the term.

      Charles Gulentz, for appellant.

      William A. Blakeley, district attorney, and Harry H. Bowand, assistant district attorney, for appellee, were not heard.
   Opinion by

Mr. Justice Potter,

The appellant was convicted in the court below of murder of the first degree, and has brought the record here for review. In the first assignment of error counsel for appellant complain that the court below erred in unduly emphasizing the lack of ground for reasonable doubt, in instructing the jury as follows: “If there is a reasonable doubt that he did the shooting, he is entitled to an acquittal. But in the light of all the testimony can there be a reasonable doubt as to his guilt? ” It is further argued that in the portion of the charge assigned for error in the second, third and fourth assignments, the court unduly assumed that under the evidence there could be no reasonable doubt that the appellant shot and killed Mrs. Domboy. We are not so impressed, in reading the charge as a whole. While it would have been difficult for the jury to draw from the undisputed evidence, any other inference than the guilt of the appellant, yet it is clear that the judge did not attempt to control the jury as to their finding in this respect. He left them entirely free to reach their own conclusion under the evidence, and instructed them properly that the burden was upon the commonwealth to establish beyond a reasonable doubt that appellant was guilty of doing the shooting. The facts as shown by the undisputed evidence were, that Mrs. Domboy lived with her husband and two adult children in two rooms in a certain house containing four rooms, the other rooms being occupied by another family. The room on the first floor was occupied by Domboy and his wife; the room on the second floor by their boarders, of whom the appellant was one; and to gain admission to this apartment it was customary for the boarders to go through the room of the Domboys. On the night of the killing it is not clear how the appellant, Steve Rusic, gained admission, but it is clear that it was not through the usual way. However, at about 11: 30 in the evening Louis Domboy was awakened by the voice of his wife who was pleading with the appellant, Steve Rusic, to leave her alone and go to his room. Domboy’s attention being called, he observed the appellant pulling the hair of his wife: He (Domboy) then spoke to Rusic, requesting him to go to bed, whereupon Rusic replied “Son to you” (this being a literal interpretation of a phrase used by the Croatians as an insulting remark) “you will speak no more;” and immediately fired three shots, one shot striking Mrs. Domboy, and one passing immediately over her head as she lay on the bed, and the other pointed at and intended for Domboy as he sprang from the bed and made toward the appellant. Rusic thereupon left the room, went upstairs, removed the empty shells from the revolver, went downstairs again with the revolver in his hand, passed through the kitchen of the other apartment of the house, and warned the occupants in that room not to make so much noise. He then went to a friend’s home at a distance requiring a walk of ten minutes, obtained admission and told his friend and his wife that he had shot some person, a man or a woman. He then gave the revolver to his friend who opened it and discovered one full cartridge. The next morning a police officer went to the house in which appellant was, and placed him under arrest, he at that time also telling the officer he had shot some person the night before, and did not know whether it was a man or a woman.

No testimony whatever was offered in behalf of the defense, but the trial judge instructed the jury that the burden was upon the commonwealth to establish beyond a reasonable doubt that the appellant was the guilty party. The definition of a reasonable doubt was set before the jury in terms to which no exception could be taken. This was followed by the instruction that if the jury found there was no reasonable doubt that the appellant killed Mrs. Domboy, it would then be their duty to determine the grade of the crime. The learned trial judge then put before the jury the language of the statute as to the degrees of murder, and gave to them the definition of the terms “willful,” “deliberate” and “premeditated” killing, substantially in language which has been many times approved by this court. The testimony shows that the appellant evidently shot Mrs. Domboy intentionally, by deliberately holding his pistol, a deadly weapon, so near to her head as to leave deeply stained powder marks upon the skin. It is true there was no evidence of a quarrel and a definite motive for the crime did not appear; but the fact of a deliberate and intentional killing was shown. When the fact appears the inability to discover the motive does not disprove the crime: Lanahan v. Com., 84 Pa. 80. From the nature and use of the weapon, and from the acts and conduct of the prisoner, we think his intention to kill was fairly and justly to be inferred; and that the time used in the commission of the crime, and opportunity offered for deliberation, were sufficient to justify the conviction that his purpose was willful and premeditated. There can be no doubt but that the ingredients of murder of the first degree were shown by the evidence. We are satisfied that the charge as a whole, while very compact and concise, was a correct and adequate presentation of the law, as applied to the testimony in the case. At the close of the charge, counsel for appellant when asked if they desired anything else to be brought to the attention of the jury, said they had nothing to suggest.

The eleventh assignment of error, which suggested error in the allowance of a slight amendment to the record, made after the expiration of the term, was not pressed in the argument. The minutes of the trial, as originally entered by the clerk, did not show that the motion for a new trial, filed by defendant, was argued before the court in the presence of the defendant, Steve Rusk:; and did not show that he was present in the court at the time of the refusal of a new trial, and when sentence was imposed upon him. As a matter of fact, he was present upon these occasions, and the amendment was allowed for the purpose of making the record conform to the fact in these respects. There can be no doubt of the power of the court to amend its record so as to make it conform to the truth, even after the term has expired. See Crew, Levick & Co. v. McCafferty, 124 Pa. 200, and cases there cited.

We find no merit in any of the assignments of error, and they are all dismissed.

It is ordered that the judgment be affirmed and the record remitted to the court below, that the sentence may be executed.


author: Per Curiam,

text:
    Commonwealth v. Cameron, Appellant.

      Criminal law — Constitutional law — Evidence—Compulsory self incrimination — Constitution of Pennsylvania, art. Ill, sec. 32.

    1. Exemption from compulsory self incrimination is not a natural right, nor is it a right secured by the federal constitution which a state constitution can neither take away nor abridge.
    2. The words of sec. 32 of art. Ill of the constitution: “Such testimony shall not afterwards be used against him in any judicial proceeding,” do not confer on the witness an immunity from prosecution for an offense relative to which he has been compelled to testify.
    Argued Oct. 17, 1910.
    Appeal, No. 95, Oct. T., 1910, by defendant, from judgment of the Superior Court, April T., 1910, No. 36, affirming judgment and reversing sentence of Q. S. Allegheny Co., Dec. Sess., 1906, No. 585, on verdict of guilty in case of Commonwealth v. Charles S. Cameron.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment under sec. 9 of the Act of May 23, 1874, P. L. 230, for offering a bribe to a councilman. Before Van Swearingen, J.
    At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.
    Rice, P. J., filed the following opinion:
    If sec. 32, art. Ill, of the constitution were merely an act of the legislature, and not a constitutional provision, a question open to discussion would be whether it supplied a complete protection from all the consequences against which the constitutional prohibition of compulsory self incrimination was designed to guard, and, therefore, whether the appellant could have been compelled to give the incriminating testimony referred to in his special plea in bar. The question of the sufficiency of a statutory immunity to save the statute from conflict with the constitutional prohibition has been learnedly and elaborately discussed in many cases cited and reviewed in the opinion of the learned judge below and in the briefs of counsel, but it is not the precise question upon which this case turns. No one pretends that sec. 32, art. Ill, is not valid and enforceable, and could not do so without ignoring or denying effect to the decisions in Com. v. Gibbons, 9 Pa. Superior Ct. 527, affirmed on appeal in Kelly’s Contested Election, 200 Pa. 430, and without asserting also that exemption from compulsory self incrimination is a natural right, or a right secured by the federal constitution, which a state constitution can neither take away nor abridge— a position which is not sustained by principle or authority. In the celebrated case of Counselman v. Hitchcock, .142 IT. S. 547, the distinction between a legislative and a constitutional impairment of the privilege was distinctly recognized, for the court said: “Legislation cannot detract from the privilege afforded by the Constitution. It would be quite another thing if the Constitution had provided that no person shall be compelled in any criminal case to be a witness against himself, unless it should be provided by statute that criminal evidence extracted from a witness against his will should not be used against him. But a mere act of Congress cannot amend the Constitution, even if it should engraft thereon such a proviso.” Still more emphatic is the utterance of the supreme court of the United States in Twining v. New Jersey, 211 U. S. 78: “Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to the great majority, it cannot be ranked with the right to hearing before condemnation, the immunity from arbitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham; many doubt it to-day, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. It has no place in the jurisdiction of civilized and free countries outside the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law. It should, must, and will be rigidly observed where it is secured by specific constitutional safeguards, but there is nothing in it which gives it a sanctity above and before constitutions themselves.” As there is nothing in the right or privilege which gives it sanctity above and before constitutions themselves, the question before us must turn on the construction of the constitutional provisions contained in sec. 9, art. I, and sec. 32, art. III. We are not disposed to accept unqualifiedly the construction of the former, which would restrict the words “the accused cannot be compelled to give evidence against himself” to the accused then upon trial: Horstman v. Kaufman, 97. Pa. 147; Counselman v. Hitchcock, 142 U. S. 547. Without entering into an elaborate discussion of the scope of that section, we assume that were it not for sec. 32, art. Ill, sec. 9, art. I, without the aid of sec. 10 of the Act of May 23, 1887, P. L. 158, would have protected the appellant from being compelled to give self incriminating evidence in the prosecution against Martin and the prosecution against Flaherty and Milholland. Section 32, art. Ill, takes away the privilege in the class of cases to which those prosecutions belong, but couples with the deprivation of it a provision protecting the witness, who has been compelled to give self incriminating testimony against the use, afterwards, of such testimony against him in any judicial proceeding, except for perjury in giving it. This being a matter subject to constitutional regulation the provision cannot be rejected upon the ground that it is in conflict with sec. 9, art. I, as already pointed out; nor is it permissible to enlarge it by construction, so as to give immunity which was not intended. It is not to be treated as a subordinate and less important provision, to be warped this way or that in order to make the rule in bribery cases conform as nearly as possible to the rule in other cases. It is rather to be construed, as an exception to the general rule against compulsory self incrimination, and as expressing the extent to which the framers of the constitution and the people adopting it deemed it wise, in that instrument, to give the witness immunity in exchange for the privilege of which he has been deprived. Thus viewing it, it is impossible to conclude that the words “such testimony shall not after-wards be used against him in any judicial proceeding” are the equivalent, or intended to be, of declaring “that the person so compelled to testify shall be exempt from punishment for the offense concerning which he is so required to testify, and of which he may be guilty.” Certainly, the clause would not be given that effect in the construction of a statute. This the learned counsel for the appellant expressly conceded when they say in their able and comprehensive brief, it cannot be doubted that if the section were a statutory instead of a constitutional provision it would be held ineffective. This may not be conclusive of the construction that ought to be given to the section of the constitution, but it is a very pertinent consideration; for while great liberality of construction is allowed to bring constitutional provisions into harmony, so also is it permissible in order to bring a statute into harmony with the constitution. If it were permissible to refer to the proceedings of the constitutional convention in order to arrive at the intent of the section, it could be shown beyond doubt that a provision to give the witness complete immunity from prosecution was proposed, fully debated by able lawyers of the convention and rejected as inexpedient. In view of some of the latter utterances of the Supreme Court upon the subject of referring to the proceedings and debates of the convention in construing a constitutional provision, we make no point of the extraneous fact above referred to and rest our conclusion exclusively upon principles of construction which are well settled. Great stress is laid by appellant’s counsel on these remarks of Justice Dean in Kelley’s Contested Election: “The argument that section 10 is fatally repugnant to section 9 of the Bill of Rights, and that the latter must prevail, is without force; assuming that the witness’s answer would disclose the fact that he used money to purchase the votes of certain electors, his answer could not be used against him in any legal proceeding, therefore he would be subject to no penalty or fine involving deprivation of liberty or forfeiture of land or goods. The most that he could suffer would be that odium which attaches to moral turpitude.” We think the learned counsel press these remarks beyond the real meaning of them when they cite them as supporting their contention that the witness could not afterwards be prosecuted. We hesitate to believe that Justice Dean intended that meaning to be taken from what he said. The utmost that can be claimed is that as the answer could not be used against him in any legal proceeding, he would not be subjected thereby, that is by his answer, to any penalty or fine involving deprivation of liberty or forfeiture of lands and goods.
    It is not necessary to define with exact precision what use of the testimony of the witness is prohibited; it is enough for present purposes to say that it is not impossible that a person who has been compelled to give evidence tending to criminate him may be convicted without any use whatever of that testimony. Nor is it to be implied from what is averred in a special plea in bar that it would be impossible to convict the defendant without the use directly or indirectly of the testimony he had given in the prosecutions above referred to. This, as well as the fact that the present prosecution was not under sec. 49 of the penal code, is an answer to the suggestion that that section barred the prosecution.
    Upon the question of the effect of the provisions of the federal constitution it is sufficient to refer to Twining v. New Jersey, 211 U. S. 78.

      Error assigned was judgment of Superior Court.

      January 3, 1911:

      A. S. L. Shields, with him O’Brien & Ashley, for appellants.

      Warren I. Seymour, with him William A. Blakeley, for appellee.
   Per Curiam,

We concur in the conclusion reached by the Superior Court, that sec. 32, art. Ill, of the constitution is restrictive only of the use of the testimony actually given by a witness under compulsion and that it does not confer immunity from prosecution for an offense in relation to which a witness has been compelled to testify. We affirm the judgment on the opinion of the learned president judge of that court.


text:
    Commonwealth v. Bolger, Appellant.

      Evidence — Self-incriminating testimony — Grand jury.

    1. To entitle a party called as a witness to the privilege of silence the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer; although if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question.
    2. No possible infringement of the privilege of silence can be predicated of the facts that one is subpoenaed to appear as a witness before a lawful tribunal and examined on oath. The only purpose and effect of the subpoena are to enforce the performance of this duty and procure the desired attendance. It is only when he is called upon actually to testify as to self incriminating facts that he can set up his privilege.
    3. A person who has testified before a grand jury may be indicted before the same grand jury.
    4. Where a person has been indicted on presentation of the grand jury before which he himself testified, he cannot successfully allege that he was deprived of his constitutional privilege of silence unless he shows by specific averments that he had asserted his constitutional privilege at a time an assertion was proper, and should have been effective, arid that the protection secured to him by the constitution was denied.

      Trial — Jury—Reading evidence to jury — Practice, C. P.

    5. A trial judge cannot be convicted of reversible error because, in answer to a request made by the jury, he permits their recollection to be refreshed by reading a portion of the testimony actually delivered on the trial, concerning which some misapprehension had arisen in the minds of the jury after they had retired.
    Argued Oct. 17, 1910.
    Appeal, No. 98, Oct. T., 1910, by defendant, from judgment of the Superior Court, No. 25, April T., 1910, affirming judgment of Q. S. Allegheny Co., March T., 1909, No. 533, on verdict of guilty in case of Commonwealth v. H. M. Bolger.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and Moschzisker, JJ.
    Affirmed.
    Indictment for bribery. '
    Head, J., filed the following opinion:
    The defendant, Bolger, was tried and convicted upon a bill of indictment which charged him with the offense of bribery or corrupt solicitation. The indictment was not preceded by an information before a magistrate, a hearing before him, and a binding over for trial in the usual and customary manner.
    It appears that the grand jury of Allegheny county, in the spring of 1909, began a general inquiry into the subject of bribery of members of city councils of Pitts- ■ burg, after such investigation had been duly given them in charge by the court of quarter sessions then sitting. At the conclusion of their inquiry, they made a lengthy presentment reciting that they had investigated a number of separate and distinct transactions and had summoned, and presumably heard, “Fifty-three witnesses, including all persons publicly stated to have special information relating to such matters.” One of these witnesses was Bolger, the defendant. As to some of the matters inquired into, the grand jury reported that, owing to the unsatisfactory character of the evidence produced, they were unable to make any presentment, but recommended that “Further information be made from time to time by the District Attorney under the direction of the Court.” As to several other independent transactions investigated, the grand jury found evidence sufficient to warrant them in presenting for indictment a number of persons. In each case the report sets forth with precision the nature and character of the alleged criminal act and gives the names of witnesses to be summoned by the district attorney to support the several indictments suggested.
    Following this presentment recommending the indictment of the present defendant, among others, the district attorney, prepared, and by direction of the court, sent up a bill indorsing on it, as the witnesses for the commonwealth, the names of the two persons mentioned in the grand jury’s report. It was returned a true bill. The defendant was brought to trial, was again confronted by the testimony of the same two witnesses and was found guilty.
    The appellant does not allege that the bill of indictment on which he was tried lacked any legal requirement of form or substance. Nor does he complain of any error in the rulings of the learned trial court, upon questions of evidence; or of the manner in which the evidence was summed up and submitted in the general charge or that the evidence, if believed by the jury, was insufficient to support the verdict they rendered.
    At the very opening of the trial the defendant moved to quash the bill, not because of any irregularity exhibited by the record as it then existed, but because of certain alleged facts dehors the record, the existence of which he offered to establish by his own testimony. The learned judge sustained the objection made to this offer and the refusal of the motion to quash followed.
    “It cannot now be doubted that an indictment may be quashed for matters not apparent upon the face of the record:” Com. v. Bradney, 126 Pa. 199. In Com. v. Green, 126 Pa. 531, the grand jury in the course of their ordinary investigations of a bill charging a person with an assault, incidentally heard evidence tending to show that the house in which the assault occurred was a disorderly house kept by one Lizzie Green. They then made a presentment recommending her indictment, and the court directed the district attorney to send up a bill which was found. A motion to quash was made on the ground that the presentment originated in the manner above described, and in support of the motion the court permitted a grand juror to be called and to testify to the facts. The bill was quashed and the Supreme Court held that the practice was correct and affirmed the order. It may not be unimportant to note that in the course of the opinion of Mr. Justice Clark who says: “If the Court, in the exercise of its discretion had sustained this indictment and brought the defendant to trial and conviction upon it, it is quite improbable that this court on a writ of error, would have disturbed the judgment; it is only for a flagrant abuse of this discretion, as we have said, this court would interfere.” From these cases it would follow, we think, that if the matters of fact offered to be proven would have furnished a legal reason for quashing the bill, the learned trial judge would have been wrong in denying to the defendant the opportunity to bring them on the record by his testimony.
    What then was the offer? We quote it in full: “Counsel for defendant offered to show by the proposed witness, Mr. Bolger, that upon March 15, 1909, having been subpoenaed by the Commonwealth, he appeared before the grand jury in the course of its investigation which led to the indictments in this and other cases; that upon March 19 following the appearance of Mr. Bolger, the presentment in this case was handed to the Court; that a presentment filed upon March 19 recommended the indictment of the defendant here who had testified before the same grand jury on March 15; that the deliberations of the said grand jury extended from March 15 up to and including March 22, upon which day a true bill was then found against the defendant in this case; and further that the examination of the defendant when he appeared before the grand jury was confined to the circumstances involving the charge upon which this indictment is founded.”
    The learned counsel for appellant argues from the existence of the facts, in the offer stated, the conclusion clearly follows that the defendant is robbed of the privilege secured by the constitutional declaration that “In all criminal prosecutions the accused .... cannot be compelled to give evidence against himself.”
    The literature of the law contained in our reports, federal and state, is exceedingly rich in discussions by eminent jurists covering almost every conceivable case in which this general constitutional privilege could require judicial interpretation. Professor Wigmore, in the fourth volume of his work on evidence, has given us a complete history of the origin, rise and development of the doctrine. But the solution of the question before us does not, in our judgment, take us so far afield. In turning to a more particular examination of the question we may, we think, quote with profit one general proposition announced by the author last named as resting both on reason and authority, viz.: “In preserving the privilege, however, we must resolve not to give it more than its due significance. We are to respect it rationally for its merits, not worship it blindly as a fetish.”
    There is no law, natural, civil or moral, which forbids to a criminal the right to divulge his guilty secret, and thus perhaps best begin the work of his own reformation. But out of our knowledge that innocent men are sometimes accused, and our conception of the dignity and self-respect which ought to characterize the conduct of the government of a great people, even in the detection and punishment of crime, have been born the principle that one accused must not be compelled to help in bringing about his own conviction. The constitution then confers upon every citizen the personal privilege of remaining silent whenever it reasonably appears that his testimony or declaration might result in self incrimination. “The privilege is merely an option of refusal; not a prohibition of inquiry:” Wigmore, sec. 2268. If a privilege, it may be asserted or waived at the choice of him who possesses it. If asserted, it must be when the time has arrived, when the conditions are present that make the exercise of the privilege reasonably necessary to secure the protection intended to be conferred. And of these matters the witness is not the only and final judge. “The relator was not the. final arbiter of the question whether his answers to the interrogatories propounded would tend to criminate him. It was the plain duty of the trial judge to decide that question. . . . The trial judge, and not the witness, is therefore the proper person to decide such questions:” Com. v. Bell, 145 Pa. 374. The general rule was thus formulated by Chief Justice Cockburn in R. v. Boyes, 1 B. & S. 311: “To entitle a party called as a witness to the privilege of silence the Court nfust see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer; although if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question.” This, in no substantial way, differs from the statement of the same rule declared by Chief Justice Marshall in Burr’s trial and it has since been so1 generally adopted that it may now be said to be as universal as the privilege, the nature and scope of which it defines.
    Manifestly, then, no possible infringement of the privilege can be predicated of the facts that one is summoned to appear as a witness before a lawful tribunal and examined upon oath. There is no room yet for any assumption by such person that his constitutional privilege will be impaired or denied. It is not the object of the privilege to exempt any citizen, not a defendant, from the obligation to appear as a witness when duly summoned, and the only purpose and effect of the subpoena are to enforce the performance of this duty and procure the desired attendance.
    The offer next asserts the fact that the grand jury, before whom defendant appeared during the general investigation in which that body was engaged, was the same grand jury which later found a true bill against him. From this fact the learned counsel for appellant draws the legal conclusion which he thus states: “Appellant contends that a person who has testified before a grand jury cannot be indicted before the same grand jury.” Cross prosecutions are familiar features of the ordinary business of our courts of quarter sessions. They usually arise concerning the same transaction. In one case A is the prosecuting witness and B the defendant, in the other the positions are reversed. As prosecuting witnesses, both A and B are compelled by subpoena of the commonwealth to be in attendance. It is usual for each of them, in his character of prosecuting‘witness, to appear before the grand jury. If the proposition just quoted were sound, that grand jury, having heard both of them as witnesses, could indict neither. We know of neither reason or authority that would fairly support such a contention, and we must therefore regard it as untenable. The grand jury was conducting a general investigation covering a wide range of subjects. The defendant, although a witness before that body may have testified as to one or more of many things in no way connected with the question of his own guilt or innocence of the offense charged in the indictment. Or he may have testified that he had no knowledge of any of the matters then before the grand jury, and thus his testimony would have been entirely valueless for any purpose. To say, that because a grand jury in such an investigation examined a witness, such person could not thereafter be indicted even upon the most satisfactory proof of guilt from sources outside himself, would be to limit and restrain the power and usefulness of a grand jury, at the instance of a defendant, who can show no constitutional or other right in himself to demand such an exercise of judicial power.
    But a single additional fact is contained in the offer, viz.: “And further that the examination of the defendant when he appeared before the grand jury was confined to the circumstances involving the charge upon which this indictment is founded." From this carefully guarded and somewhat obscure statement as to the character of the testimony elicited from the witness before the grand jury, we are asked to draw the inference that such testimony was in some degree self incriminating. The entire argument of the appellant on the subject of his constitutional privilege seems to us to rest solely upon this inference, which at the best is an extremely remote and doubtful one. If in point of fact the defendant gave no self incriminating testimony before the grand jury, then the whole argument on this branch of the case is without a foundation upon which it can rest. If he did give such testimony, and now seeks to build upon that fact a barrier to shield him from indictment by the tribunal that heard the testimony, why does he not assert the fact? As already stated, his motion to quash rests upon alleged facts dehors the record. As to the character of the testimony he gave, it is his right to be silent if he chooses to remain so, but it seems anomalous to say that he may predicate immunity from indictment by the grand jury on a fact, the existence of which he is unwilling to assert. It was open to him, as it was to the defendant, in the case of Com. v. Green, 126 Pa. 531, to call a grand juror to prove if he could that he had asserted his constitutional privilege at a time when its assertion was proper and should have been effective, and that the protection secured to him by the constitution was denied. Or if it be his theory that the investigation during which he testified, was of such a character that he could not claim the privilege of withholding his testimony, and that his protection then rested on the other constitutional provision that such testimony could not thereafter be rightfully used against him, again the burden was on him to furnish proof of crucial fact.
    Further, the inference we are asked to draw not only finds no support in the record of the grand jury, but is practically contradicted by that record. The presentment of the grand jury declares in substance at least, if not in so many words, that the testimony which in their judgment called for the indictment of this defendant was that of Ramsey and Vilsack, the bank officers; because they give to the district attorney the names of these two witnesses as those whose testimony would support the indictment he was invited to prepare. When the bill went up it contained but the names of these two witnesses, and the return of a true bill, under these circumstances, is again a practical declaration by the grand jury that the bill was found upon their testimony. On what theory shall we infer that it was not so found, especially in the light of what the record now exhibits, viz.: that this testimony was not only sufficient to warrant the indictment, but was actually found to be potent enough to secure the conviction of the defendant on his trial.
    The record further shows that the presentment against one Charles Stewart, a member of select council, was arrested on some of the same circumstances out of which grew the indictment of this defendant. Why should we undertake to assume that the testimony of the defendant before the grand jury even if “confined to the circumstances involving the charge upon which this indictment is founded,” was not directed towards a discovery of the connection of that municipal officer with the transaction then the subject of investigation? In Com. v. Mosier, 135 Pa. 221, Mr. Justice Paxson said: “The second assignment alleges that the Court below erred in refusing to quash the indictment because the wife of the defendant was examined before the grand jury as a witness, and testified against her husband contrary to law. It nowhere appears that she testified against her husband contrary to law. The defendant was indicted for the crime of adultery. The Act of May 23, 1887, P. L. 158, expressly authorizes the wife to testify to the marriage upon a charge of adultery against the husband. We have nothing here but the indorsement of the wife’s name as a witness on the back of the bill of indictment; and, in the absence of any information as to what she testified to, we must assume she was examined only as to matters to which she was a competent witness.”
    So we say here the fair presumptions that flow from the record, as it existed at the time the motion to quash was made, point to the conclusion that this defendant was deprived of no constitutional right. It was his right to place upon the record, if he could, the facts which would properly raise the conclusion he now asks us to reach. We are satisfied he has not done this, and therefore, even if we assume that due proof had been made of every fact contained in his offer, we would still be unable to find a legal reason that would have necessarily compelled the learned judge below to quash the bill or would warrant us in reversing this judgment because he refused to do so.
    The view we have thus taken renders it unnecessary to discuss several interesting phases of the question carefully argued in the able briefs submitted or to attempt to review and analyze many cases therein cited. As we have stated, from the moment the bill was returned by the grand jury to that when sentence was pronounced we have a record singularly free from even the allegation of substantial trial errors. The main claim of the appellant is that in the fact that the grand jury — at a time when no indictment was pending and when that body was engaged in a general investigation of the manner in which the municipal business of a great city had been conducted —called him as a witness along with fifty-two other citizens, and then subsequently, on abundant testimony from sources outside himself, presented him for indictment and found a true bill against him, there is wrapped up the legal conclusion that he was deprived of his constitutional privilege. When we come to measure his claim by the rule of the practical, the substantial and the tangible, it seems to elude our grasp. To the writer it appears to be rather an appeal to the hypercritical eye of the casuist than to that broad sense of justice which ought to keep the judicial mind alert to see that no man, accused of or tried for crime, is deprived of any substantial rights secured to him by the constitution and laws of the commonwealth.
    After the jury had retired and begun to deliberate upon their verdict they sent to the trial judge a request for further instruction or information. The jury was brought back to the court room and the learned trial judge then read aloud their note of inquiry. This seemed to indicate to him that there was an impression in the minds of the jury, or some of them, that there was no testimony of any direct payment of money to Bolger, and in such event they required if they could lawfully infer the fact of such payment from the circumstances detailed by the witnesses who were then present, as to where the money was placed and when it disappeared. The learned trial judge first proceeded to correct what he believed to be a misapprehension of the fact upon the part of the jury and had the stenographer read to them the notes of the testimony tending to show a direct payment to Bolger. He further answered the question contained in the note in the following language: “. I answer that it would be sufficient if the inference was such as to convince you beyond a reasonable doubt that Bolger got the money.” The objection made to the supplemental instructions thus given is as follows: “Counsel for defendant object to the Court entering upon a review of the testimony before the jury by reading of the notes inasmuch as the recollection of the testimony in this case is entirely for the jury and such review of it by the Court is an improper re-opening of the case.”

      January 3, 1911:
    We are unable to see wherein the learned trial judge in any way overstepped the boundaries of judicial propriety in giving such instructions. We know of no precedent in Pennsylvania holding that any reversible error would be committed by a trial judge when, in answer to request made by the jury, he permits their recollection to be refreshed by reading a portion of the testimony actually delivered on the trial, concerning which some misapprehension had arisen in the minds of the jury. It was upon the evidence as actually delivered that the defendant was to be tried, and we'do not deem it necessary to collate the precedents, all of which tend to show that no reversible error can be found in the action of the trial court thus complained of.
    The judgment is affirmed and the record is remitted to the court of quarter sessions of Allegheny county with direction that the judgment be fully carried into effect, and to that end it is ordered that the defendant appear in that court and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.

      Error assigned was judgment of Superior Court.

      George M. Horton, for appellant.

      Warren I. Seymour, with him W. A. Blakeley, for appellee.
   Per Curiam,

The judgment of the Superior Court is affirmed on the opinion of Judge Head.


text:
    Commonwealth v. Richardson, Appellant.

      Criminal law — Constitutional law — Conspiracy—Common-law conspiracy — Evidence—Self-incriminating testimony.

    1. A conspiracy at common law is where two or more persons combine, confederate and agree together to do an unlawful act, or to do a lawful act by the use of unlawful means.
    2. Even though no indictment can be brought under secs. 127 and (28 of the Act of March 31, 1860, P. L. 382, for conspiring to bribe and corrupt councilmen in the performance of their public duties, such an indictment may be maintained at common law.
    3. The Act of April 29, 1874, P. L. 115, which was passed to carry into effect sec. 31, of art. Ill of the constitution, applies only to an attempt to bribe, and not to a conspiracy to bribe.
    4. At common law no overt act is necessary to constitute the offense of conspiracy. In order to render the offense complete, there is no occasion that any act should be done, or that any one should be aggrieved or defrauded in pursuance or in consequence of the unlawful agreement.
    5. The mere fact that the testimony was given by a witness in a judicial proceeding against a person charged with the offense of bribery is not a conclusive bar against the use of that testimony against the witness in a subsequent judicial proceeding against him. It is only a bar where it was given under some sort of compulsion. The words “such testimony” in sec. 31, art. Ill, does not mean any testimony, but such as the person may have been “ compelled to testify.”
    6. Where the record of the prior case fails to show that the accused in the later ease testified in obedience to a subpoena, or under any compulsion, and also fails to show that he demurred to answering any question upon the ground that the answer might incriminate him, or on any other ground, the prior testimony of the accused may be used against him.
    Argued Oct. 17, 1910.
    Appeal, No. 101, Oct. T., 1910, by defendant, from judgment of Superior Court, at No. 46, April T., 1910, affirming judgment of Q. S. Allegheny Co., June Sessions, 1907, No. 50, on verdict of guilty in case of Commonwealth v. Charles R. Richardson.
    Before Fell, C. J., Brown, Mestrezat, Potter, Elkin, Stewart and 'Moschzisker, JJ.
    Affirmed.

      Indictment for conspiracy to bribe and corrupt a councilman. Before Frazer, P. J.
    The facts appear in the report of this case in 42 Pa. Superior Ct. 337, and in the opinion of Rice, P. J., as follows:
    After averring by way of inducement that there was pending and undetermined in the councils of the city of Pittsburg a certain ordinance for the proposed grant of certain franchises to the Pittsburg & Tube City Railroad Company, the count of the indictment under which the appellant was convicted charged, in substance, that the defendants unlawfully did falsely conspire and agree together, and with other persons, whose names were to the grand inquest unknown, to tempt, solicit, bribe, corrupt and influence certain members of the city councils in the performance and discharge of their public and official duties in relation to the ordinance referred to, and to procure their votes and official influence in favor of the enactment of the same and the grant of the franchises to the railroad company, by the use directly and indirectly of large sums of money and other things of value and personal advantage to the said members of councils, to the prejudice of the city and divers citizens and residents thereof, contrary to the form, etc.
    .It is suggested in the course of the printed argument of the appellant’s counsel upon the first, fifteenth, sixteenth and seventeenth assignments of error, that neither secs. 127 nor 128 of the penal code (Act of March 31, 1860, P. L. 382) comprehends such conspiracy as was laid in the indictment. This is certainly true of sec. 127, and for present purposes it may be conceded to be true of sec. 128. This, however, is not a conclusive reason for holding the indictment to be bad. If there were no statute upon the subject of criminal conspiracy, an indictment for such conspiracy as is here alleged would lie at common law. No implication of an intention on the part of the legislature to abrogate or supersede the common law as to all criminal conspiracies arises from legislation defining particular conspiracies and prescribing the penalty therefor. The principles enunciated in Com. v. McHale, 97 Pa. 407; fully sustain the first of these propositions, and Wilson v. Com., 96 Pa. 56, is authority for both of them. Speaking of sec. 128 of the penal code, the court said: “An examination of this section shows that it, is confined to conspiracies to cheat and defraud, just as the previous section (127) relates to conspiracies to indict. A conspiracy at common law is a much broader offense, and embraces cases where two or more persons combine, confederate and agree together to do an unlawful act, or to do a lawful act by the use of unlawful means. Section 128 of the code does not, nor was it intended to interfere with the indictment and punishment of a common-law conspiracy.” See also Com. v. Stambaugh, 22 Pa. Superior Ct. 386; Com. v. Brown, 23 Pa. Superior Ct. 470.
    It is urged that sec. 1 of the Act of April 29, 1874, P. L. 115, which was passed to carry into effect sec. 31, art. Ill, of the constitution, provides specifically for attempted bribery, defines the offense, names it corrupt solicitation, declares it to be a misdemeanor, and fixes the penalty, and therefore sec. 183 of the penal code, comes into operation and prevents any penalty being inflicted or anything being done agreeably to the common law in such case. It is to be observed, however, that the act of 1874 relates only to a “person or persons who shall directly or indirectly, by offer or promise of money, office, employment, testimonial or other thing of value, or who shall by threats or intimidations endeavor to influence,” etc. There is a plain and substantial distinction between an attempt to bribe and a conspiracy to bribe; for at common law no overt act was necessary to constitute the offense of conspiracy, and neither the act of 1874 nor any other act has changed the rule in Pennsylvania, at least so far as the particular kind of conspiracy under consideration is concerned: Collins v. Com., 3 S. & R. 220; Com. v. McKissen, 8 S. & R. 420; Wilson v. Com., 96 Pa. 56; Brown v. Com., 23 Pa. Superior Ct. 470. “It has been repeatedly ruled that in order to render the offense complete there is no occasion that any act should be done, or that any one should be aggrieved or defrauded in pursuance, or in consequence, of the unlawful agreement:” Gordon, J., in Heine v. Com., 91 Pa. 145. The doctrine of the case of Com. v. Railing, 113 Pa. 37, does not rule the question before us. The point there decided was that sec. 87 of the penal code took the crime therein specified, procuring miscarriage resulting in the death of the child or woman, out of the class designated as murder, made it a felony of lesser grade and prescribed the punishment therefor. But here, as has been seen, all the essential elements of a complete offense at common law may be proved without proof of the acts which constitute the statutory offense of corrupt solicitation. The thought is well expressed by the learned trial judge in the opinion overruling the motion for new trial as follows: “In this case, therefore, if Richardson combined with others to corruptly influence councilmen, and the verdict established that he did do so, he was guilty of conspiracy, before he ever met Martin who was a member of council and to whom the commonwealth claims corrupt propositions were made. It was for that offense, namely, the combination and confederation, that defendant was tried and cofivieted,” where a count in an indictment does not charge a statutory offense, yet, but for the words contrary to the form of the act of the general assembly in such case made and provided, is a well drawn count for a common-law offense, those words may be rejected as surplusage: Com. v. Kay, 14 Pa. Superior Ct. 376, and cases there cited. We conclude that the indictment and the evidence were sufficient to sustain a conviction of common-law conspiracy; therefore, the first, fifteenth, sixteenth and seventeenth assignments of error are overruled.
    The matters complained of in the remaining assignments of error may be embraced under two general heads: First, the admission in evidence, in the presentation of the commonwealth’s case in chief, of a duly proved transcript, in longhand, of the official stenographic notes of the testimony given by the appellant, as a witness on behalf of the commonwealth, on the trial of an indictment against William A. Martin; second, permitting the district attorney upon the cross-examination of the appellant to read to him in the hearing of the jury certain portions of the transcript, and to interrogate him as to whether he had so testified on the trial of the Martin case. The objections made on the trial to these offers were that they were incompetent and irrelevant. The specific objection urged here is that the rulings contravened the provisions of sec. 32, art. Ill, of the constitution of this commonwealth which so far as material here reads as follows: “Any person may be compelled to testify, in any lawful investigation or judicial proceeding against any person who may be charged with having committed the offense of bribery or corrupt solicitation or practice of solicitation, and shall not be permitted to withhold his testimony upon the ground that it may criminate himself or subject him to public infamy; but such testimony shall not afterward be used against him in any judicial proceeding, except for perjury in giving such testimony.” It is claimed by the commonwealth’s counsel in opposition to this contention that no part of the former testimony was read to the jury except those parts which were embraced in the questions put to the appellant upon his cross-examination, and that these parts were not criminating. On the other hand, the recollection of counsel for appellant appears not to be in entire accord with this contention, for he asserts in his printed brief that the district attorney read the principal parts of the testimony in the presence and hearing of the jury, and commented on it in his argument to the jury. In the circumstances, we are compelled to consider the assignments of error in the light of the bill of exceptions exclusively. This shows that, after the district attorney had proved by the official stenographer the correctness of the transcript of the appellant’s testimony, he formally offered it “to be read to the jury,” it being marked exhibit No. 2, and that the objection to the offer was overruled. The fair interpretation of the bill of exceptions is that the transcript was admitted in evidence. The record does not show that it was subsequently withdrawn or struck out. It was part of the commonwealth’s evidence in chief which the appellant had to meet in the presentation of his testimony. For, even though it had not been actually read to the jury at the time the commonwealth rested, there was nothing to prevent it being referred to and commented on in the final argument. This condition of the record of the evidence had to be taken into consideration by the defendant in the presentation of his defense, and, for aught we know, may have influenced his course therein. We, therefore, conclude that the assignments cannot be overruled upon the ground that the testimony he gave in the Martin case was not used against him in the trial of his own case.
    In general, proof of his voluntary admissions of relevant facts is competent against a person charged with a crime, and ordinarily such proof is not rendered incompetent by the mere fact that the voluntary admissions were made in the course of his testimony as a witness in another case: Williams v. Com., 29 Pa. 102; Com. v. Doughty, 139 Pa. 383; Com. v. House, 6 Pa. Superior Ct. 92; Com. v. Ensign, 40 Pa. Superior Ct. 157; 12 Cyc. of Law and Procedure, 474, 480. This still remains the general rule notwithstanding the section of the constitution under consideration. The question is whether this case is taken out of the general rule by that section. The first essential to an affirmative answer to that question is that the charge against the accused in the case in which the former testimony was given was bribery, corrupt solicitation or. practice of solicitation, and it was suggested in the oral argument that this does not appear in the record. The record furnishes very slight evidence of that essential, it is true, although we do find in the caption to the stenographer’s transcript as printed in the appellant’s paper-book, the following: “Testimony of Charles R. Richardson, defendant in this case, given in the case of Com. v. William A. Martin (bribery) at No. 586, Dec. Sessions, 1906,” etc. It could be argued with much force that the best evidence of the nature of the charge in the Martin case would be the indictment itself. But in view of the foregoing reference to the charge in the caption of the transcript we are not disposed to put our decision upon the ground that it does not appear with technical certainty that the testimony was given in one of the classes of cases specified in sec. 32, art. 3; particularly, as the words, “offense of bribery” employed in that section have been construed to mean all bribery, whether bribery at common law or under the constitution itself, or any kind of statutory bribery (Com. v. Bell, 145 Pa. 374), and as it is virtually conceded by counsel for the commonwealth in his history of the case that the indictment against Martin was for accepting a bribe as councilman.
    The next question to be considered is, whether the mere fact that testimony was given by a witness in a judicial proceeding against a person charged with the offense of bribery is a conclusive bar against the use of that testimony against the witness in a subsequent judicial proceeding against him. After delibérate consideration of the wording of the constitutional provision, in the light of the mischief to be remedied and the object to be accomplished by it, we are of opinion that it is not. To be more explicit, to prevent the use of the testimony after-wards in a judicial proceeding against the witness, it must have been given under some sort of compulsion. The words are not “any testimony” that a witness may give in such a proceeding shall not be used against him, but “such testimony.” It is argued with much force that the purpose of the constitutional provision was not to compel testimony of a noncriminating character or tendency — for that could always be done — but to compel testimony that might conceivably criminate or tend to criminate, and that the words "such testimony” properly may and should be construed to relate to that kind of testimony; further that to prevent the use of the testimony afterwards against the witness his claim of the .privilege to withhold it must have been made and overruled by the judge. Be that as it may, we think there can be no escape from the conclusion that the words "such testimony” relate to testimony that has been compelled.
    The remaining inquiry is, whether the testimony given by the witness in the Martin case was of that character. As in the consideration of the question as to the use that was made of the testimony we have felt constrained to confine our attention strictly to what the record shows, so we feel constrained to do in the consideration of the present question. The argument of appellant’s counsel is based, to some extent, on the assumption that the appellant appeared and testified in the Martin case in obedience to a subpoena. It is argued that this brings the case within the principle of People v. Sharp, 107 N. Y. 427. The commonwealth’s counsel does not concede this fact, and insists that it does not appear anywhere in the.record.
    It is true the opinion of the learned judge overruling the motion in arrest of judgment assumes it to be a fact, but it is important to notice that he did not try the Martin case in which the evidence was given. A careful examination of the record, including the official report of the evidence given on the trial of the appellant as well as the transcript of the testimony given by him in the Martin case fails to show that he appeared and testified in that case in obedience to a subpoena, or under the compulsion of threats Or any compulsion whatever. Again, the transcript of the evidence he gave fails to show that he demurred to answering any question that was put to him upon the ground that the answer might criminate him or upon any ground whatever. It gives no indication, and there is no extraneous evidence tending to show, that he did not testify freely and voluntarily, or that he became a witness under compulsion of law or of legal process. The extraneous evidence as to his willingness to testify in the various proceedings against Martin growing out of this same transaction tends to rebut any inference that he was compelled to testify in the bribery case. But apart from this consideration, we conclude from the testimony relating exclusively to the circumstances under which he testified in the trial of the indictment against Martin above referred to, that the case is not excepted from the general rule above stated by sec. 32, art. Ill, of the constitution.
    The judgment is affirmed and the record is remitted to the court of quarter sessions of Allegheny county with direction that the judgment be fully carried into effect, and to that end it is ordered that the defendant forthwith appear in that court and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.

      Error assigned was the judgment of Superior Court.

      Clarence Burleigh, for appellant,
    cited: U. S. v. Armour & Co., 142 Fed. Repr. 808; Counselman v. Hitchcock, 142 U. S. 547.

      Warren I. Seymour, for appellee.
    “Such testimony”, within the provisions of art. Ill, sec. 32 of the constitution of Pennsylvania refers to testimony given under compulsion: U. S. v. Kinball, 117 Fed. Repr. 156; Horstman v. Kaufman, 97 Pa. 147.
    The word “such” refers to incriminating testimony: Kelly’s Election, 200 Pa. 430; Com. v. Gibbons, 9 Pa. Superior Ct. 527; Com. v. Bell, 145 Pa. 374; State v. Murphy, 128 Wis. 201.

      January 3, 1911:
   Per Curiam,

The judgment is affirmed on the opinion of the learned president of the Superior Court.


author: Mr. Justice Mesteezat,

text:
    Elliott v. Monongahela City, Appellant.

      Municipal corpoi'ations — Charter—Contracts—Councils—Administrar tive and legislative acts- — Joint sessions.

    1. Where the charter of a municipality provides that “the corporate powers of the city shall be vested in a mayor and city council; .... that the councils shall be composed of two branches, viz: the select and common council; .... that a majority of each council shall be a quorum.....They may, when convenient, hold joint sessions for the transaction of business as if the same were but one council; .... that no appropriation of moneys, revenues or property of said city, no contract for the borrowing of money, no assessment or levy of taxes for city purposes, and no ordinance, by-law or regulation of said city shall be of any force or validity, unless the same has been concurred in or approved by said councils,” an ordinance authorizing the city officials to enter into a contract for lighting and fixing the price to be paid for such service, passed at a joint session by a majority of the collective body, but failing to receive the approval of a majority of one of the branches separately, is of no force or validity.
    2. Such a charter empowers and authorizes the councils in joint session to transact only ministerial or administrative business; but when they attempt by ordinance or resolution to enact permanent regulations for the government of the city or do any other act of a legislative character, the charter contemplates that such action shall be taken with full consideration by each branch of the municipal legislature sitting separately and apart from each other.
    Argued Oct. 18, 1910.
    Appeal, No. 121, Oct. T., 1910, by defendants, from decree of C. P. Washington Co., in Equity, No. 1874, on bill in equity in case of Henry Elliott v. Monongahela City, the West Penn Electric Company et al.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.
    Bill in equity to have a municipal ordinance declared null and void, and to enjoin the performance of a contract entered into in pursuance thereof. Before Taylor, J.
    The facts appear in the opinion of the Supreme Court.
    The court entered the following decree:
    And now, to wit, May 4, 1910, this cause came on to be further heard at this term and was argued by counsel, and upon consideration thereof it is ordered, adjudged and decreed as follows:
    1. That the ordinance authorizing the city of Monongahela, Washington county, Pa., to enter into a contract with the West Penn Electric Company, providing for the lighting of the city by electricity, which was declared to be passed at a meeting of council on June 22, 1909, is void, not having been passed by a majority of each branch of said council.
    2. That the agreement between the West Penn Electric Company and Monongahela city, dated July 12, 1909, made in pursuance of said ordinance, and executed on behalf of Monongahela city by the president of council and the city clerk, is void, there being no valid ordinance authorizing such agreement.
    3. That the defendants be perpetually enjoined and restrained from carrying into effect the said agreement of July 12, 1909.
    4. That the treasurer of Monongahela be perpetually enjoined and restrained from paying any money to the West Penn Electric Company under or by reason of any of the provisions of said agreement of July 12, 1910.
    That the costs of this action be paid by the losing party. [8]

      Error assigned among others was (8) in entering this decree, quoting it.

      George C. Bradshaw, with him Irwin & Wiley, for appellant.
    The charter of Monongahela city, which is entirely sui generis, empowers the select and common councils in joint session to enact ordinances by a majority of both bodies collectively: Barnes v. District of Columbia, 91 U. S. 540; Com. v. Moir, 199 Pa. 534; Phila. v. Fox, 64 Pa. 169; Gas Co. of Downingtown v. Downingtown Boro., 175 Pa. 341.
    January 3, 1911:

      G. K. Wright, of McKee, Mitchell & Alter, with him George P. Baker, for appellee,
    cited: Shaub v. Lancaster City, 156 Pa. 362; Howard v. Olyphant Boro., 181 Pa. 191; Jones v. Light, Heat, etc., Co., 202 Pa. 164; Kolb v. Tamaqua Boro., 218 Pa. 126.
   Opinion by

Mr. Justice Mesteezat,

The important and controlling question in this case is a narrow one, and is easily determined. It involves the interpretation of the charter of Monongahela city, which was incorporated by an act of the legislature, approved March 24, 1873.

The select and common councils of Monongahela city, assembled in joint session on June 22, 1909, passed an ordinance authorizing and directing the proper officers of the city to enter into a contract with the West Penn Electric Company providing for the lighting of the streets, highways and public places of the city, for a period of five years from May 1, 1909. The ordinance fixed the price to be paid for the service. Pursuant to this ordinance and to carry the same into effect, an agreement was entered into, dated July 12, 1909, between the company and the president of councils in behalf of the city. The bill in this case was filed July 31, 1909, by the. plaintiff, a taxpayer, to restrain action by the city under the ordinance and contract, and prayed that the ordinance be declared null and void, and that an injunction issue restraining the defendants from carrying into effect the writing purporting to be a contract between the city and the defendant company, and restraining the treasurer of the city from paying out any money on account of the contract. Answers were filed by the defendants and the case was put at issue. The court granted the prayer of the bill, declared the ordinance and the contract made in pursuance thereof void, and directed an injunction to issue restraining the defendants from carrying the contract into effect and the city treasurer from paying any money to the defendant company by reason of the provisions of the contract.

It is familiar law that a municipal corporation can exercise only such powers and perform such functions as are granted it by the state. It is the creature of the legislature, and invested with subordinate governmental functions by its charter, to be exercised and performed within certain territorial limits. It must exercise its authority in the manner prescribed in the charter or the act of the legislature creating it.

The court below declared the ordinance in question void, because it had not been enacted in conformity with the charter powers of the municipality. The charter declares that “the corporate powers of said city shall be vested in a mayor and city councils.” Section 62 of the charter provides that the councils shall be composed of two branches, viz.: “the select and the common councils” and by sec. 67, it is provided “that a majority of each council shall be a quorum.” In sec. 68, it is enacted as follows: “They may, when convenient, hold joint sessions for the transaction of business as if the same were but one council.” The next or 69th sec. provides that “no appropriation of moneys, revenues or property of said city, no contract for the borrowing of money, no assessment or levy of taxes for city purposes, and no ordinance, by law or regulation of said city shall be of any force or validity, unless the same has been concurred in or approved by the said councils.”

These are the only provisions of the charter affecting the question for determination. The ordinance authorizing the contract for lighting the city, as we have seen, was passed at a joint session and not at separate sessions of the select and common councils of the city. There are six members of each branch of the councils, and at the joint meeting at which the ordinance was passed, each branch was fully represented. There were cast in its favor the votes of three members of select council and four members of the common council; and there were cast against it the votes of three members of select and two members of the common council. It will be observed that of the twelve members present and voting, seven votes were cast in its favor and five votes against it, but that a majority of the members of select council did not vote for the ordinance.

The plaintiff has attacked the validity of the ordinance on the ground that under the charter the councils could not enact it in joint session; that it was not "the transaction of business” within the meaning of sec. 68 of charter act; and that the ordinance was legislative in its character and required to "be concurred in or approved by said councils” at separate meetings of the two bodies, as provided by sec. 69 of the charter.

The defendants on the other hand, in support of the validity of the ordinance, claim that sec. 68 of the act authorized the passage of the ordinance at a joint session of the two bodies; that it was "the transaction of business” within the meaning and intent of the section; and that the ordinance was of equal validity as if it had been passed by both branches of councils by action in separate sessions.

We do not agree with the position taken by the defendants. In common with all legislative bodies, action of municipal councils may pertain or relate to questions or subjects of a permanent or general character, and those which are temporary or restricted in their operation and effect: 2 Abbott Mun. Corp., sec. 515. The ordinance in question empowers the city to enter into a contract for the lighting of its streets and highways which involves the expenditure of money. It, therefore, relates to the government, welfare and prosperity of the city: Kepner v. Com;, 40 Pa. 124, 130; and we have recently held that such an ordinance is the exercise of legislative power by councils: Jones v. Schuylkill Light, Heat & Power Co., 202 Pa. 164; Kolb v. Tamaqua Boro., 218 Pa. 126. It follows, therefore, that if the contention of the defendants be sustained, the councils may in joint session, and by a majority of either branch, not only transact the executive and ministerial business of the city, but may enact ordinances appropriating money, authorizing contracts involving the outlay of moneys, and legislating generally for the city. We do not so construe the act of assembly creating the city government. On the contrary we are satisfied that the intention of the legislature in the enactment of sec. 68 was to empower and authorize the councils in joint session to transact only ministerial or administrative business. When they attempt by ordinance or resolution to enact permanent regulations for the government of the city or do any other act of a legislative character, the charter contemplates that such action shall be taken with full consideration and deliberation by each branch of the municipal legislature sitting separately and apart from the other. This gives to such legislation as may be enacted the approval of both instead of one of the municipal bodies. The charter, as will be noted, provides that the councils shall be composed of two branches, and the purpose of this division is that in legislating for the city, one branch shall be a check upon the acts of the other. Under whatever name these branches may exist, in order that the purpose of their organization may be effective, concurrent action by the two is necessary in respect to all those questions or matters as are intended as general legislative measures, or that are to become operative on the community at large: 2 Abbott Mun. Corp., sec. 501. Section 68 of the charter in question does not change this general rule. The very purpose of creating two branches of the municipal government was that legislative measures may receive the separate consideration of both bodies, and the exception made by permitting joint sessions, under sec. 68, was simply for the purpose of authorizing the councils to do such routine work in the administration of municipal affairs as do not require the deliberative action of the two bodies in legislating for the city. We think it manifest that legislation will be better considered, and the interests of the city better protected by the action of the two branches of councils convened in separate sessions. Transacting temporary or ministerial business in joint session is more convenient, and is simply carrying into effect what has been duly authorized by the legislative action of the two branches of councils.

Sections 68 and 69 of the city charter must be construed together, and’ in doing so there need be no conflict. The contention of the defendants results in conferring upon the councils authority to pass all legislation at joint sessions, if they so determine. The language of the two sections, however, excludes that construction of the charter. Section 68 does not in terms authorize the transaction of business by a majority of the joint session, and the authority, if conferred, is only inferential. Whether it should be transacted by a majority of each branch or by a majority of the two branches acting collectively, the section does not declare. If, however, we hold that the latter is the correct interpretation of the section, we must also hold that the two branches are acting as “one council.” The business is to be transacted when- the two branches meet in joint session, the charter declares, “as if the same were but one council.” It follows, therefore, that they can only transact such business in joint session as may be transacted by them acting collectively. As the ordinance in question authorizes a contract for the expenditure of money, it is clearly within sec. 69 of the charter, which provides that “no appropriation of the moneys .... of the city, no contract for the borrowing of money .... no ordinance, by law or regulation of said city shall be of any force or validity, unless the same has been concurred in or approved by the said councils.” It is manifest therefore, that the validity of an ordinance depends upon the action of the two branches of councils, whether it be taken in joint or in separate sessions. Hence, aside from the question whether under sec. 68, the two branches of councils are “one council” when sitting in joint session, it is clear that an ordinance can be passed only by the concurrence of the two bodies. The ordinance in question did not receive the approval of the select council, either in joint or separate sessions. That branch of councils consisted of six members, and in the joint session three favored and three opposed the ordinance. It, therefore, failed to receive the approval of the select body, and hence it is of no force or validity.

Something was said in the argument in regard to the franchise ordinance of 1890, authorizing the defendant company to occupy the streets of the city with its pipes, etc. The company has been acting under this ordinance for twenty years and its validity is not attacked here. It will be time enough to consider the action of councils in passing the ordinance, when the question is properly before us.

The decree is affirmed.


text:
    Woods v. Heron, Appellant.

      Broker — Real Estate Broker — Commissions—Licenses.
    A person, suing for commissions on a sale of real estate will not be barred from recovery by reason of not having had a broker’s license where there is no evidence that he was doing business as a real estate broker at the date of the contract set up by him, and it appears that the contract was a special one for the sale of a particular piece of real estate.
    Argued Oct. 18, 1910.
    Appeal, No. 41, Oct. T., 1909, by defendant, from judgment of C. P. No. 4, Allegheny Co., Third T., 1907, No. 133, on verdict for plaintiff in case of William L. Woods v. John B. Heron, Jr.
    Before Fell, C. J., Brown, Mestrezat, Potter, Stewart and Moschzisker, JJ.
    Affirmed.

      January 3, 1911:
    Assumpsit to recover commissions for sale of real estate. Before Carnahan, J.
    The facts appear in the opinion of the Supreme Court.

      Errors assigned were various rulings and instructions of the court.

      John S. Ferguson, for appellant.

      John P. Hunter, with him Walter Lyon, for appellee.
   Per Curiam,

The subject of the controversy at the trial was the plaintiff’s right to commissions for the sale of real estate. The grounds of defense to the action were that the plaintiff was a real estate broker and had not obtained a license, that he was not employed to make the sale, but was acting for a trust company in whose real estate department he was employed and that tjie sale was not effected through his agency or that of the company. The first ground of defense was eliminated by the court’s instruction to the jury that there was not sufficient evidence to sustain a finding that the plaintiff was engaged in the business of a real estate broker, and that he could recover if he effected the sale as alleged by him. We find' no evidence that he was doing business as a real estate broker at the date of the contract set up by him. The contract was a special one for the sale of a particular piece of real estate and a license was not necessary to give it validity: Chadwick v. Collins, 26 Pa. 138; Black v. Snook, 204 Pa. 119. The remaining grounds of defense gave rise to questions of fact only, and they were properly submitted. We find no merit in any of the assignments.

The judgment is affirmed.