text:
    Barclay S. Smith v. The Phila. Traction Co., Appellant.

      Streets — Railways and travelers — Respective rights of.

    The right of railway companies to the surface of streets covered by tracks is superior to that of the public, but this higher right in no way absolves the company from the greater care east upon it because of the increased speed of trolley cars on crowded thoroughfares.
    All have a right to use the streets for passage, with a reasonable concession to the rights, needs and conveniences of each other and regardful of the restrictions, facilities and purposes of the modes of travel employed.
    So long as the right of common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons, who, without negligence upon their own part, may not at the moment be able to get out of the way of a passing ear. The degree of care to be exercised must necessarily vary with the circumstances and therefore no unbending rule can be laid down.

      Street railways — Exacting duties of motorman.

    Very much depends upon the care of the motorman. He should always be on the alert to avoid danger, and his attention never should be diverted from his duties. He should keep his eye constantly on the track before him. If he is permitted to gaze at the houses or other objects while the car is in motion and an accident occurs by reason of such conduct, the company employing him must expect to be held responsible.

      Street railways — Negligence—Conduct of motorman — Question for jury.

    Where, under the evidence, the jury might have found that the driver did all in his power to leave the track upon seeing the car approach, and that the motorman was looking to the side of the street instead of in front, while the car was running very fast, the case was one for the jury under proper instructions.
    Argued Oct. 15, 1896.
    Appeal, No. 117, Nov. T., 1896, by-defendant, from judgment of C. P. No. 1, Phila. Co., March T., 1894, No. 118, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for alleged negligent collision. Before Beitler, J.
    The following facts appear from the opinion of the Superior Court:
    “ On January 1,1894, the plaintiff’s team, hitched to a heavily laden wagon in charge of John Search, the driver, was going northward on Front street, between Bainbridge and Catharine streets, in the city.of Philadelphia, and when about midway of a long square, collided with the defendant’s electric car going south. The horses and wagon were injured in the collision, and this action was brought to recover the loss thus occasioned. It appeared from the testimony that at the time of the collision there were ‘New Year’s Shooters’ in the street noisily celebrating the advent of the new year, and that there were other teams and wagons standing, and passing along in both directions, Front street being at that point a much traveled thoroughfare.
    “ The testimony as to the conduct of the motorman and the plaintiff’s driver immediately before and at the time of the collision was conflicting. It was alleged on behalf of the plaintiff that it was usual for teamsters to drive' on the track in both directions, and that hi view of the crowded condition of the street at the time of the accident the driver turned into the car track in order to pass toward his destination with less interruption ; and that he turned out at once upon seeing the car approach, and endeavored to get off as quickly as possible, but was necessarily delayed by other wagons on the street on either side of the track. It was further testified that the motorman, instead of looking ahead, was looking to the westerly side, attracted by the ‘ Shooters,’ and was watching them; that had he looked in the direction the car was running he could have seen the plaintiff’s team in time to stop the car, and avoided the collision; that the car was then running very fast, without any warning of its approach, and it was not slowed up until it struck the wagon; that the driver called to the motorman to stop the car but no attention was paid to the request, and that if the motorman had looked and attended to his business he must have seen the plaintiff’s team some hundreds of feet above the place of collision and could have avoided the accident; that the driver had his team and fore part of the wagon off the track, and that the car struck the hind wheels; and that by the collision the horses were knocked down and cut and the wagon broken.
    “ On the part of the defendant it was testified that the car was not going very fast, and that there was a carriage or a phaeton just in front of the car going south which turned off the track near the place of the accident; that though the brakes were applied, the car slid along nearly as fast as with the brakes off, that the wagon slid along the track for some distance after the driver turned out — ‘ both were sliding at the same time; the ’wagon couldn’t get out and the car could’t stop; ’ that the car gong was sounded, and as soon as the motorman saw the wagon he put on his brake as tight as he could, and that the wagon was struck on the side near the front.
    “With the testimony supporting these allegations, the learned trial judge submitted the case to the jury under instructions relative to the rights and duties of the railway company and those using vehicles along the street. He told them that the adoption of electricity as a motor power for street cars, and the modern requirements of more rapid transit had led to the adoption of more stringent rules regulating the rights of street cars and of private vehicles. That although railway companies .have not the exclusive right to the streets they occupy, as a steam railway has to its right of way, their rights are superior to those of the traveling public; that their cars have the right of way on their lines, and that it is the duty of other vehicles to give them unobstructed passage; because the cars cannot turn off the tracks, and should have the right of way for the convenience and accommodation of the public using them. That the substitution of electric cars for horse cars renders impracticable and dangerous certain uses of the streets which were once permissible and comparatively safe, and introduced new conditions, the nonobservance of which constitute negligence. These instructions were, in part, read from the opinions of the Supreme Court in Ehrisman v. Railway Co., 150 Pa. 180, and Winter v. Railway Co., 153 Pa. 28. The jury were further told that when the plaintiff’s driver went upon the track he assumed more risk and a higher degree of care on his part with reference to the approach of cars than if he had kept to the side of the street. He left it to the jury to find whether the driver was guilty of carelessness in going upon the track at all, in view of the fact that he knew there was a driveway on either side and also knew the condition of the track and the course of the cars. They were further instructed that if the plaintiff’s teamster in any degree contributed, by his negligence, to the collision; or if the accident happened because of the miscalculation of the driver as to control of his vehicle ; or because o£ the miscalculation of both driver and motorman in this respect and therefore not attributable exclusively to the negligence of either; or if the collision was a mere accident; or if the collision was not the result solely of the defendant’s negligence, in either event the plaintiff could not recover. But that in the absence of these conditions, or of negligence on the part of the driver, and if the collision was caused solely by the defendant’s negligence, a recovery might be had for such amount as would compensate the plaintiff for the actual loss he sustained in the premises.
    “ Under these instructions the jury found a verdict for the plaintiff for #1,000.” Defendant appealed.

      Errors assigned were, (1-4) refusing defendant’s points, which points were as follows: “1. The plaintiff was bound to the exercise of more than ordinary care and caution since he voluntarily placed himself in a dangerous position when he drove his team upon the tracks in an opposite direction from that in which he knew the cars of the defendant company were propelled. His failure to turn out of the track in time to avoid the accident was, negligence, and the verdict should be for the defendant.
    “ 2. It is. the duty of drivers of private vehicles to give unobstructed passage to electric cars, and the plaintiff being unnecessarily upon the track, took the risk of a collision and was guilty of contributory negligence.
    “ 3. If the jury believe the motorman did all in his power to avert the accident, and failed to do so because he did not see the team in time, there can be no recovery, and the verdict should be for the defendant.
    “ 4. Under all the evidence the verdict should be for the defendant.”

      J. Howard Gendell, for appellant.
    He who drives his wagon along a railroad track towards an approaching car, and thus meets with a head-end collision, has a difficult task to maintain his right to damages. Every presumption is against him. Nothing but urgent necessity and an obviously clear track will justify him in putting himself in this position. He cannot expect the car to remove from the track for his accommodation; and it is unreasonable to require a public conveyance, containing many passengers, to await his pleasure. The motorman of tlie approaching car may therefore reasonably assume that he will remove in time to permit the car to pass upon an unobstructed track, and may acton the assumption. No negligence short of recklessness on the part of the motorman should subject him or the railway company to damages. To justify a recovery several elements should concur; the necessity and urgency for driving longitudinally on the track towards the approaching car must be manifest; he should exercise the greatest vigilance and precaution while there; and the negligence of the motorman must be equally manifest and great. If any of these elements be wanting, the action should be barred: Winter v. Railway Co., 158 Pa. 26 ; Ehrisman v. Harrisburg Railway Co., 150 Pa. 180 ; Carroll v. R. R. Co., 12 W. N. C. 348 ; Thomas v. Pass. Railway Co., 132 Pa. 504; Carson v. Railway Co., 147 Pa. 219; R. R. Co. v. Bell, 122 Pa. 58; Moore v. R. R., 108 Pa. 349; Wheelahan v. Traction Co., 150 Pa. 187; Omslaer v. Traction Co., 168 Pa. 519; Warner v. Railway Co., 141 Pa. 615.

      Edgar N. Blade and R. J. Monaghan, for appellee.
    It is believed that none of the assignments of error admit of argument, except the fourth: “ Under all the evidence the verdict should be for the defendant.”
    The defendant’s first point was not entitled to an unqualified affirmance. The facts on which it is predicated and the inferences to be drawn from them were certainly for the jury, and to the jury in his general charge the learned trial judge submitted them. The proposition asserted in the first point is certainly not the law, without regard to the surrounding circumstances of the case.
    Nor was the defendant’s second point entitled to an unqualified affirmance. It assumes the disputed fact that the plaintiff was unnecessarily upon the track, that he took the risk of a collision and was therefore guilty of contributory negligence. Whether this was true or not was certainly for the jury, and to the jury it was referred with proper instructions.
    It can hardly be seriously argued that the third point is sound. Whether the motorman saw the plaintiff’s team in time or not was a disputed fact in the case. Whether he should have seen it earlier if he had been looking in front of him, instead of watching the paraders on the street, was the very pinch of the case. If lie did not see the team in time because of his negligence in looking in another direction, in place of in front of him (and the jury so found), we confidently submit that would be ground for recovery, unless prevented by some other circumstances of the case.. The learned trial judge submitted this, as well as all of the other disputed questions, to the jury, and the jury decided all of them against the appellant.
    The presumption of the common law is that every one does his duty until the contrary is proved, and in the absence of evidence on the subject it will be assumed that a person driving on a railway track exercised all the precautions that a due regard for his own safety and that of others required.
    As to the exacting care and vigilance required of a motorman, see Schnur v. Traction Co., 153 Pa. 30; Harkins v. Traction Co., 173 Pa. 146; Reilley v. Traction Co., 176 Pa. 335; Evers v. Traction Co., 176 Pa. 376; Henne v. Railway Co., 1 Pa. Superior Ct. 311; Booth’s Street Railway Law, secs. 306, 307.
    Where the gripman'or motorman of a street railway company recklessly runs on at a high rate of speed when the probable consequence is a collision, that is negligence for which a railway company is answerable: Thatcher v. Traction Co., 166 Pa. 68; Haney v. Traction Co., 159 Pa. 398; Harkins v. Traction Co., 173 Pa. 149.
    December 7, 1896
   Opinion by

Smith, J.,

(after stating the facts as above):

Was the driver’s failure to get off the track in time to avoid the collision, under the circumstances negligence per se ? If it was, then the defendant’s fourth point should have been affirmed and a verdict directed for the defendant. If, however, it was not, then the questions of negligence and contributory negligence were for the jury.

It must be admitted that he who drives a team across or along an electric railway track is held to a higher measure of duty than if it were a track for horse cars. One purpose of the greater motor power is to increase the speed of the cars, and the right to run more rapidly necessarily follows from the nature and purpose of the power and the grant of the right to use it. But a corresponding obligation arises. He whose agencies increase the danger of travel on the highway assumes the duty of increased care and vigilance. The measure of care is thus increased on both sides; and the responsibility of each to the other is to be determined in the light of their relative rights and duties thus established.

It is not contended that the driver was a trespasser while on the track, nor that he had no right to be there under any circumstances. But it is earnestly and ably argued that the driver having gone upon the track knowing the cars were running toward him, it was his duty to be constantly on the lookout, and to clear the track for their passage; that nothing but an urgent necessity could justify him in being on the track, and that no such necessity was shown.

Duties 'and responsibilities grow out of rights and the circumstances accompanying their exercise, and vary with their scope and the dangers attending them. It is true the right of a railway company to the surface of the streets covered by the trades is superior to that of the public; the cars have the right of way thereon over private vehicles and pedestrians, and the latter must yield to this paramount right. But this higher right in no way absolves the company from the greater care cast upon it because of the increased speed of its cars on crowded thoroughfares. It is also true that the streets are common to all who desire to pass over them, including the surface covered by the tramways; but this does not mean that travelers by carriage or on foot may obstruct the passage of street cars.

All have a right to use the streets for passage, with a reasonable concession to the rights, needs and conveniences of each other, and regardful of the restrictions, facilities and purposes of the modes of travel employed. No one has an absolute, exclusive right to any part of the streets. As was said in Gilmore v. Railway Co., 153 Pa. 31, “ Street railway companies have not an exclusive right to the highways upon which they are permitted to run their cars, or even to the use of their own tracks. The public have a right to use these tracks in common with the railway companies, and therefore, while the rights of the latter are in some respects superior to those of the former, as was said in Ehrisman v. East Harrisburg City Passenger Railway Co., 150 Pa. 180, it is not negligence per se for a citizen to be anywhere upon such tracks. So long as the right of a common user of the tracks exists in the public, it is the duty of passenger railway companies to exercise such watchful care as will prevent accidents or injuries to persons who, without negligence upon their own part, may not at the moment be able to get out of the way of a passing car. The degree of care to be exercised must necessarily vary with the circumstances, and therefore no unbending rule can be laid down.” This statement of the law has been expressly adopted and applied in Gibbons v. Railway, 155 Pa. 279; Kestner v. Traction Co., 158 Pa. 422; Lott v. Railroad, 159 Pa. 471; Thatcher v. Traction Co., 166 Pa. 66.

The argument of appellant’s counsel that “no negligence short of recklessness on the part of the motorman should subject him or the railway company to damages,” because the driver was traveling in an opposite direction and must meet coming cars, is not well founded. While no doubt there is more reason to apprehend danger in traveling in an opposite direction to that of the cars, and therefore a greater degree of care is demanded, yet this is not unlawful in itself; it but furnishes an additional element for consideration in determining the question of the driver’s negligence. In Thatcher v. Traction Co., supra, the court said: “ The construction of the track and the form of the rail are with a view to a user in common. The right of the wagon, in certain particulars, is subordinate to that of the railway ; the street car has, because of the convenience and exigencies of that greater public which patronizes it, the right of way; whether going in the same direction ahead of the car, or in an opposite one to meet it, the driver of the wagon must yield the track promptly on sight or notice of the approaching car; but he is not a trespasser because upon the track; he only becomes one if, after notice, he negligently remains there.”

Under the evidence the jury might very properly have found that the driver did all in his power to leave the track upon seeing the car approach, and that the motorman was looking to the side of the street instead of in front, while the car was running very fast. The conductor of the car testified that, standing on the rear platform, he could see from Bainbridge to Catharine streets — the entire distance the cars travel on Front street. If that be true, there would seem to be no reason why the motorman could not have seen equally far, and also have seen the approaching wagon, had he been attending to his duties. The responsibilities of the motormen, and the high degree of care they must exercise while operating electric cars, is a very important matter for consideration in these cases, involving so largely the public safety. In Schnur v. Traction Co., 153 Pa. 29, the Supreme Court said: “Very much depends upon the care of the gripman. He should always be on the alert to avoid danger, and his attention never should be diverted from his duties. He should keep his eye constantly on the track before him. If he is permitted to gaze at houses or other objects' while the car is in motion, and an accident occurs by reason of such conduct, the company employing him must expect to be held responsible.” This has been repeated, substantively, in many other Supreme Court cases, and also by this court: Henne v. Railway Co., 1 Pa. Superior Ct. 311. The fourth assignment is overruled.

The points made the subject of the first and second assignments asked the court, by implication at least, to determine questions of fact, while the third, also, could not be affirmed without assuming as true an important matter of fact in dispute. The case was well tried, and the learned judge carefully guarded the rights of the appellant in his instructions to the jury, and we find no reason for disturbing their verdict.

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


source: Caselaw Access Project

author: Wickham, J.,

license: Public Domain

text:
    William W. Shoe, Appellant, v. Nether Providence Township.

      Road law — Township liability for damages for change of grade — Constitution of Pennsylvania.

    A township is not liable in damages to property owners along the line of a public road for change in the grade of the road for the improvement of public travel. At common law there could be no recovery for such an injury and none is given by art. XYI. sec. 8 of the constitution. A township is not such a corporation as falls within this clause of the constitution.
    Argued Nov. 16, 1896.
    Appeal, No. 64, Nov. T., 1895, by plaintiff, from judgment of C. P. Delaware County, Dec. T., 1894, No. 146, directing a nonsuit.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.,
    Affirmed.
    Trespass for change of grade of road in township of Nether Providence, Delaware county. Before Clayton, P. J.
    The plaintiff made the following offer of evidence.
    That the public road front of plaintiff’s lands was laid out in 1855.
    That in June, 1893, the township of Nether Providence changed the grade opposite plaintiff’s lands by cutting down the public road, greatest depth about four feet, running down to nothing in a distance of two hundred and fifty feet.
    That the lands are in a village and that the property is suitable for store and residence.
    That the ingress and egress to plaintiff’s land was made more difficult.
    That the whole property was damaged by reason of the change of grade.
    That the plaintiff purchased this property before the change of grade was made.
    The court refused the plaintiff’s offer and directed a nonsuit which it subsequently on motion refused to take off.
    The court below filed the following opinion :
    December 2, 1895. The Court: This is an action for damages against a township for a change of grade in a public road. There seems to be no doubt but that the plaintiff has been seriously injured by the change in the grade of the road in front of his property. It is not alleged that the act of the supervisor was wanton or malicious. For such conduct under color of his office, he would be personally responsible. The case is that of a change of grade for the purpose of making a better road. The question in the case is, whether the township is liable in damages to property owners along the line of a public road for a change in the grade of the road for the improvement of public-travel ?
    At common law there could be no recovery for such an injury. The roads belong to the state and not to the township. The burden of keeping them in repair is cast by the law upon the township.

      The state’s right of eminent domain is paramount to all other rights and all titles are held subject to it. If the plaintiff, therefore, has any remedy it must arise under the constitution of the state.
    The plaintiff relies upon art. XVI. sec. 8 of the constitution of 1874, which reads as follows:
    “ Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such taking, injury Or destruction.”
    This clause of our constitution has restricted or modified the common law powers of the state. It has been held that a county is such a corporation, but it has not yet been held that a township is such a corporation. A careful reading of the article of the constitution relied upon will clearly show that it cannot be classed as a corporation invested with the privilege of taking property for the construction of its works, highways or improvements. The highways are not its improvements or works; they belong to the state and all the interest of the township in them is the burden of keeping them in repair. It is only such municipal corporations as have control over their streets or highways, and can lay them out, vacate and improve them, such as boroughs and cities, that are included in this clause of the constitution.
    It will be seen that the corporation must not only have the right to take the property of a private individual, but the property must be taken for the improvement or enlargement of the highways or works of the corporation taking the same. If the townships of the states owned the highways within their limits, and had the power to collect tolls, vacate, widen or enlarge them, they would be within the constitutional requirements and would have to pay or secure the amount of injury, etc.
    The argumentan ad absurdum will make the case still more clear. If it should be decided that township supervisors cannot interfere with the grades of the county roads which they are required to keep in good traveling order, then, for every change in grade, though only an inch, they must adjust the damages before they do the work. If a freshet should fill a hollow or wash down a Mil, they could not repair the road without either lowering or filling it up to the old grade. In repairing the road every spring, they would have to employ a surveyor to locate its old grade lines and see that the repairs did not interfere with them. At the crossing of streams, or in hilly districts, it would be impossible for the supervisor to repair the road without interfering, more or less, with the old grade.
    Again, while townships are, to a certain extent, corporations invested with the privilege of taking private property for public use, the use to wlfich they put the property so taken is to the state and its citizens and not to the improvement or enlargement of the township’s own works.
    Again the law has already provided for a settlement of damages caused by taking private property for the repairs of a public road, and no new constitutional provision was necessary upon this subject. Damages for property taken for a public road are to be paid by the county. The constitutional provision, probably, only applies0to corporations empowered to take land for public use. Supervisors have no such power. They may take stone, timber, soil, etc., in other words they may injure adjoining land, but they have no power to take land. The act of 1836 provides how the injury shall be compensated. We may also add that under the law, which required all roads to be kept at an easy grade of not more than five degrees, the original viewers to assess damage are supposed to award full damages for all future improvements in the grade.
    For the reasons above given we are of opinion that the township is not liable for the Mjury complained of in this case.

      Error assigned was refusal to hear plaintiff’s offer and take off nonsuit.

      Isaac Johnson, for appellant.

      E. H. Hall, for appellee.
    December 7, 1896:
   Opinion by

Wickham, J.,

The only question presenting itself for decision in this case is whether a township is liable to adjoining property owners, under section 8 of article 16 of the constitution of 1874, for injuries resulting from a change made by the supervisors in the grade of a county road.

The matter has been so fully and ably discussed in the opinion of the learned judge of the court below, that little remains to be said.

The constitutional provision, relied on by the plaintiff, reads as follows : “ Municipal and other corporations and individuals invested with the privilege of taking private property for public use, shall make just compensation for the property taken, injured or destroyed by the construction or enlargement of their works, highways or improvements, which compensation shall be paid or secured before such talcing, injury or destruction.”

We are satisfied that townships are not within the meaning of this provision, and that they are liable only to the same extent that they were before the adoption of the constitution, unless some statute extends their liability.

The view here taken is sustained by the decision in Wagner v. Salzburg Township, 132 Pa. 636.

Judgment affirmed.


text:
    Commonwealth of Pennsylvania v. William H. Clark et al. Appellants.

      Practice, Q. S. — Gutting down trees — Proceedings on appeal from justice.

    On an appeal from proceedings instituted before a justice, for wrongfully cutting down ornamental trees, under the act of June 8, 1881, P. L. 82, the proper method of procedure is followed when the defendants are indicted and the case tried de novo.
    The question of the insufficiency of the justice’s record in such an action is immaterial, — the only conviction revievvable is that in the quarter sessions. If defendants had wished to test the regularity of the justice’s record they should have proceeded by certiorari or motion to quash.

      Practice, Q. S. — Refusal to read points — General charge.

    In a trial in the quarter sessions it is not error to refuse specifically to read and discuss before a juiy all the points, when the only point which could have been affirmed was fully and emphatically covered by the general charge.
    If the law applicable to the case is plainly, fully and accurately stated, the party has no cause of complaint should the judge choose to express it in his own words.

      Statutes — Repeal—Cutting down trees — Acts 0/I88I and 1891.
    The act of 1881, P. L. 82, is not repealed by the act of June 2, 1891, P. L. 170. The latter act provides for a method of recovery of damages for cutting trees along a public highway whether exercised regularly or irregularly under the right of eminent domain. The act of 1881 was intended to punish wrongdoers. There is no inconsistency between these statutes.

      Criminal law — Destruction of trees — Question for jury.

    The question whether trees alleged to have been wantonly destroyed were ornamental within the meaning of the act of 1881, P. L. 82, is properly for the jury, as also whether the cutting was “ wanton, reckless and useless.”

      Constitutional law — Statutes—Title—Acts of 1881 and 1895.
    The title need not schedule nor index.the contents of the act; it is enough that in a general way attention is called to the matters contained therein.
    The words “ et cetera ” in the title of the acts of June 8,1881, P. L. 82, and June 18, 1895,'P. L. 196, refer to things generally the same as those specifically specified, and therefore embrace trees, plants, flowers and the like.
    Argued Nov. 9, 1896.
    Appeal, No. 54, Nov. T., 1896, by defendants, from judgment and sentence of Q. S. Berks Co., December Term, 1895, No. 199, on verdict of guilty.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Indictment for wrongfully cutting ornamental trees contrary to the act of June 8, 1881.
    The defendants were the servants and employees of the American Telephone & Telegraph Company, and were at work on the 23d day of November, 1895, along a public road repairing the lines in pursuit of their employment, in stringing additional wires and strengthening their line and repairing said line in general.
    Along this public road and over a small strip of land lying between said road and the river Schuylkill belonging to Dr. Marshall the prosecutor, extended the poles and wires of the defendant company which had been erected in September, 1889, under and by virtue of an agreement with a prior owner of the land by virtue of which compensation was received “for cutting and removing all trees along my property in Union Township Pennsylvania that will interfere with the wires of the American T. & T. Co.” On tills strip of land was a thick growth of parar dise trees and a few locust trees. It was alleged by the commonwealth that these trees were cut and the defendants were charged with willfully and wrongfully cutting down ornamental trees. The defendants were accorded a hearing before a justice of the peace, refused to pay the fine, and after conviction of said offense before the justice, entered bail to answer the said charge before the court of quarter sessions. The grand jury found a true bill. The case being tried before a jury, defendants were convicted and sentenced by the court to pay a penalty of 150.00 each or in default of payment thereof to undergo imprisonment of fifty days each in the county prison of Berks county. Defendants appealed.
    The defendants submitted the following points, which the court refused either to affirm or to charge the jury on any or all of them.
    POINTS.
    (1) There cannot be a conviction of the defendants in this case because the remedy of the prosecution, if any, is under the act of June 2, 1891.
    (2) There cannot be a- conviction of the defendants in this case, because the act of June 8,1881, under which this prosecution is brought, was repealed by the act of June 2, 1891, so far as it relates to the offense charged in the bill of indictment, and the act of June 18, 1895, does not apply.
    (3) There cannot be a conviction of the defendants in this case, because the acts of June 8, 1881, and June 18, 1895, are unconstitutional, so far as they relate to the offense charged in this case in that the titles to said acts are defective, because they do not include the word “ trees.”
    ■ (4) If you believe the evidence of the defendants in this case, it is your duty to acquit, because the trees alleged to have been destroyed, were not ornamental trees within the meaning of the acts of June 8, 1881, and June 18, 1895.
    (5) It is the duty of the jury to acquit in this case because the evidence shows the acts complained of were not done willfully and maliciously but under an honest belief in title and under a claim of right.
    (6) The evidence in this case shows that the acts done by the defendants were done under and by virtue of an agreement or permission granted by John B. Wilson, the former owner, to the defendants’ company, of which permission or agreement or the rights of the defendant thereunder, the prosecutor, Marshall, had actual notice in law, and by which agreement he is bound, and therefore the jury should acquit.
    (7) Under all the evidence in this case, it is the duty of the jury to acquit.
    (8) There can be no conviction in this case, because the proceedings of the justice are on their face irregular and void.
    The court charged the jury as follows :
    The question of defendants’ guilt depends upon proof beyond a reasonable doubt that their acts amounted to willful trespass upon the prosecutor’s land and wrongful cutting of ornamental trees belonging to him. If the trees cut are not shown to have been ornamental defendants are entitled to acquittal; and so, if their acts were not willful and wrongful. The American Telephone & Telegraph Company had the right to put up additional cross-bars and string additional wires if in its judgment desirable, and to enter upon the prosecutor’s land and cut or trim away from time to time as much of aDy trees interfering with its line as was reasonably necessary to keep even the lower wires clear of such interference, and to that extent the right of the company was a protection to the defendants, its employees.
    But an unnecessary cutting of trees not interfering, or a cutting of any to an extent palpably unnecessary to prevent interference, and any wanton, reckless and useless destruction of trees would be in excess of the company’s rights; and if the jury are satisfied that the trees injured were ornamental, and that the injury done to them was in excess of the company’s rights as explained, and wanton, reckless and useless, then defendants may be found guilty.
    Before verdict, counsel for defendants excepted to the charge of the court and the refusal of the points submitted, whereupon bill sealed.-
    Motion for a new trial in arrest of judgment was refused by the court.

      Errors assigned were, (1-8) refusal to charge the jury on defendants’ points, reciting same.

      Henry D. Saylor of Gotwalts Saylor, with him Reber & O'Reilly, for appellants.
    There can be no conviction in this case, because the acts of June 8,1881, and June 18, 1895, so far as the acts of the defendants complained of are concerned, have been repealed by the act of June 2, 1891, P. L. 170.
    The act complained of was not willful and malicious: See Chapman v. Comn., 5 Whart. 427; Bouvier’s Law Dictionary, 91; 12 Whart. Criminal Law, sec. 1070, 1073.
    The record of the justice in this case is insufficient in law to sustain the conviction, because the record of summary convictions must contain an information or charge; a summons or warrant; the appearance or nonappearance; the defendant’s confession or defense; the evidence if he does not confess, etc.: Reed v. Wood, 1 Chester, 346; Com. v. Kinter, 1 Wilcox, 3; Hoffman v. Comm., 123 Pa. 75.

      Herbert R. Green, with him Henry D. Green and Adam B. Rieser, district attorney, for appellee.
    December 7, 1896:
   Opinion by

Wickham, J.,

The appellants, who were the defendants in the ,court below, were convicted of willfully entering upon the land of Dr. John Marshall; and then and there wrongfully cutting down a number of ornamental trees, contrary to the act of June 8, 1881, P. L. 82 (amended by the act of June 18, 1895, P. L. 196). They claimed to be employees of the American Telephone and Telegraph Company, and acting under its instructions.

The proceedings were instituted before a justice of the peace, as provided by the act of 1881, and carried by the defendants, on appeal, into the court of quarter sessions. There they were indicted and the case tried de novo. The method of proceedure adopted in the quarter sessions, we think, was the correct one, looking at the peculiar phraseology of the statute. The act gives a defendant before the magistrate the right to an appeal, without a special allowance, and provides that he shall be held on bail to answer “ a charge of misdemeanor.” As a consequence, the right to have the grand jury pass on the charge and a traverse jury try it anew, if a true bill be found, cannot be denied. Where an offense is declared, by general words, a misdemeanor and made triable originally or on appeal in the quarter sessions without more, it must be assumed that it shall be tried as a misdemeanor, that is, disposed of according to the course of the common law, and not summarily before the judge or judges. This question was adverted to, but not decided in Hoffman v. Commonwealth, 123 Pa. 75.

The title to the act of 1881, which is repeated in the amending act of 1895, reads as follows: “ An act to protect fruit, gardens, growing crops, grass, et cetera, and punish trespass.” The body of the act makes it punishable to “ wilfully enter or break down through or over any field, orchard, garden or yard fence, hot-bed or green-house,” and “to wrongfully club, stone, cut, break, bark or otherwise mutilate or damage any field crop, nut, fruit or ornamental tree, shrub, bush, plant or vine, trellis, arbor, hot-bed, or green-house,” or to “ trample or anywise injure any grain, grass, vines, vegetables or other growing crop.”

It is contended in behalf of the defendants, that the acts of 1881 and 1895 are, as to them and others similarly situated, unconstitutional, because the titles do not include the word “ trees.” To tins we cannot assent. The title need not schedule nor index the contents of the act. It is enough that in a general way attention is called to the matters contained therein. The words “ et cetera ” in the titles under consideration refer to things generically the same as those particularly specified, and therefore embrace trees, plants, flowers and the like. Had the body of the act included mines or domestic animals or agricultural implements as subjects of the trespasses to be punished, it might well be said that as to these things, the titles gave no notice. But they suggest with sufficient clearness to every one who reads that, by reading on, he will likely find something relating to ornamental or useful trees, plants or shrubbery. This is enough: Allegheny County Home’s Appeal, 77 Pa. 77.

The objection that the trees were not ornamental was properly left to the jury, as was also the question whether the cutting was “ wanton, reckless and useless; ” and the defendants have no reason to complain of the charge in these respects.

Even if the receipt given by Dr. Marshall’s predecessor in title to the defendants’ employers, can be held as an agreement to permit other and subsequent cutting of trees, — a question not decided in the court below, nor necessary to be considered here, — it surely did not authorize the wanton and reckless destruction for which, alone the defendants were tried and convicted.

Nor can we agree to the position that the act of 1881 was repealed or made inapplicable as to the defendants and others similarly situated, by the act of June 2,1891, P. L. 170, entitled “ An act providing for the recovery of damages to trees along the public highways, by telegraph, telephone and electric light companies.” The latter act was intended to enable landowners to recover compensation for injuries caused by cutting of trees, under the right of eminent domain, whether exercised regularly or irregularly. The act under which the defendants were convicted was intended to punish wrongdoers and deter others from following their evil example. There is no inconsistency between these statutes. Each has its appropriate office and can and should stand.

It is further alleged that the record of the justice is insufficient to sustain the conviction. As the case stands, the only conviction we can look at is the one that was had in the quarter sessions. If the defendants had desired to test the sufficiency or regularity of the justice’s record, they should have proceeded by certiorari or motion to quash. By taking an appeal they got the benefit of a jury trial, and they cannot now deliver themselves through objections to the record of the proceedings superseded by their appeal and the proceedings thereon. The magistrate’s transcript, when brought into the quarter sessions, served merely as a foundation for the indictment. If it, or the indictment, were deemed insufficient, there should have been a motion'made to dismiss or quash.

Complaint is also made by the defendants that their points were not read to and discussed before the jury. Of the eight points only one — the fourth — could have been affirmed, and the law, as therein stated, was fully and emphatically given to the jury in the general charge. It was not necessary to repeat the instruction, and the defendants could not be harmed by the refusal of the point, as the jury did not know what it contained. If a defendant has the right to insist upon an instruction being given more than once, there is no reason why he should not be entitled to demand a dozen repetitions thereof. He cannot dictate the language of the court, or insist that his legal propositions shall be answered in any set form.

“ If the law applicable to his case is plainly, fully and accurately stated, he has no cause of complaint, though the judge choose to express it in his own words: ” Commonwealth v. McManus, 143 Pa. 64. Where a point must be answered adversely it is not error to refuse to answer it at all: Werkheiser v. Werkheiser, 6 W. & S. 184. The failure to affirm is equivalent to a denial. The rule sustained by the last citation seems to be yet applicable in criminal cases, except in trials for murder and voluntary manslaughter, where by section 58 of the act of March 31, 1860, P. L. 427, the court is required to answer every written point fully and file both point and answer. The meaning of this section is considered in Commonwealth v. McManus, supra. The act of March 24, 1877, P. L. 38, making it the duty of the judges to reduce the answers to the points to writing and read them to the jury, refers only to trials in the common pleas.

Ordinarily, it is fairer to the defendant to refrain from reading aloud the points refused, as the jury, seeing, perhaps, a half score of props knocked from under the defense, may conclude that it has little left to stand on.

The argument of the learned counsel for the appellants that the judge should read to the jury every mistaken proposition of law, offered in behalf of the defense, before refusing it, is not sound. It is enough to file the point and the answer where an exception is taken to the latter. Thus the defendant can obtain the benefit of the refusal on appeal. That the jury are, in a sense, the judges of the law and the fact in criminal cases, does not, as is contended, make it the duty of the judge to call the attention of - the jurors to legal propositions which, in his opinion, are clearly erroneous. It is his right, and as well his duty, to exclude not only from the consideration, but as well from the hearing of the jury, incompetent evidence, instead of admitting it and then telling the jurors to disregard it. And it is hard to see why he should read out, merely to refute, an utterly untenable statement as to the law. This view will hardly be seriously questioned, save by those who think that ex parte law, offered in behalf of a defendant, should be weighed by the jury against the judicial utterances of the court, and be held to primarily possess the same authority.

We do not mean to deny the right of a defendant, in a criminal trial, by bimself and his counsel, to state to the jury, in the presence of the court, what he believes to be the law of his case. That is not the question before us. We merely say that there is no error committed by the court in refusing, in a case like this, to read to the jury inadequate or misleading statements of the law, which should not be affirmed; nor in declining to make known to the jury and affirm even a correct legal proposition, where the latter is fully and fairly set forth in the general charge.

If, as was held in Commonwealth v. McManus, supra, — a case which came under the operation of section 58 of the act of March 31,1860, — • it is enough to state the law applicable to the defense “ plainly, fully and accurately ” in the general charge, then the defendants here have no cause for complaint. They were fairly tried and given the benefit of everything that could justly be invoked to relieve them. They admitted the cutting, and the jury were told that, in order to convict, they must find that the trees were ornamental and that the injury done to them was “ wanton, reckless and useless.” On sufficient evidence, the jury found all these matters in favor of the commonwealth.

The specifications of error are overruled, the judgment is affirmed, and it is ordered that the record be remitted to the court below, to the end that its sentence may be executed.


text:
    Joseph Ladley, Appellant, v. United States Express Company.

      Vendor and vendee — Conditional sale — Bailment.
    Where a person receives horses under an agreement purporting to be a lease and under whioh he agrees to pay for their use, such amount so paid to be credited as so much paid towards the purchase of the said horses and where the vendor virtually admits in his testimony that the installments of rent were really purchase money, such conditions disclose a conditional sale and not a bailment.

      Vendor and vendee — Rescission of contract — Question for jury.

    Where there is evidence tending to show that there has been a breach under a conditional sale and the vendor has retaken his goods prior to the service of an attachment execution against the vendee the question was for the jury, as the vendor was entitled to succeed if these facts were established and so found by the jury.

      Practice Superior Court — Assignments of Error.

    An assignment of error is defective and offends against RuleXY. wbich assigns error as follows “ in refusing to charge the jury as requested by plaintiff in all his points.”
    Argued Oct 5, 1896.
    Appeal, No. 43, Nov. T., 1895, by plaintiff, from judgment of C. P. No. 2, Phila. Co., March T., 1893, No. 176, on verdict for defendant.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Reversed.
    Sheriff’s interpleader to determine title to certain horses.
    Joseph Ladley transferred possession of certain horses to George Cramer under an agreement in writing which is as follows :
    “ Articles of agreement made and concluded this Fifteenth day of October, 1892, between Joseph Ladley, of Germantown, Philadelphia, Pennsylvania, of the first part, and George Cramer, of the same place, of the other part, witnesseth, that the said party of the first part hath demised, leased and to farm let, unto the said party of the second part, four horses, described as follows : — -One dapple gray horse ten years old, 16 hands high; one dark gray horse about ten years old, 16 hands high; one bay mare about seven years old, about 15^ hands high, and one black horse about six years old, and about 16 hands high, for the term of five months from the date hereof, fully to be complete and ended, at the rate of seventy-five dollars for the first month, and one hundred dollars for each month thereafter to the end of the term.
    “And the said party of the second part leases said horses and agrees to pay said Ladley rent of four hundred and seventy-five dollars, at the days and times herein stipulated for the payment thereof, and to deliver up peaceable possession of the same at the expiration of said term in as good condition as they now are, reasonable wear and tear excepted, and the said rent is to be paid in the portions stated, on the fifteenth day of each and every month, and when the sum of $475 is paid, at or by the end of the said term, then the amount paid as rent shall be credited to the said George Cramer as so much paid towards the purchase of said horses. And said party of the second part further agrees not to assign this Agreement, or sub-let or under-lease the said horses or any part thereof.
    “ And said party of the second part further agrees that upon breach of any condition of this Agreement, upon five days’ notice in writing for that purpose, to be given by the said party of the first part, he will quit and give up peaceable possession of said horses to said party of the first part, any law, usage or custom of the State of Pennsylvania, requiring longer notice, to the contrary notwithstanding.
    “ And said party of the second part hereby authorizes and empowers any attorney of any court of record in Pennsylvania, upon such breach of any condition hereof, to appear for him, the said party of the second part, in an action and therein confess a judgment, and authorizes the immediate issuing of Fi. Fa. for costs and debt, without asking leave of the court, and waiving all laws of said State of Pennsylvania exempting property from levy and sale on execution or distress for rent.
    “ In witness whereof the said parties have hereunto set their hands and seals the day and year first above written.
    “ Joseph Ladley, [l. s.]
    “ G. H. Cramer. [l. s.]
    “ Sealed and delivered in the presence of H. W. Amerling.
    “ Witness, Oswald M. Boyer.”
    Cramer paid certain of the installments called for by the agreement, but on the 15th of January, 1893, failed to make the monthly payment covered by said agreement-and from that time on a breach continued until the 7th of February, 1893, when Ladley served the written notice on Cramer by leaving it with his wife at his home and by virtue of the terms of the agreement took into his own possession the property. Some days after Ladley as is alleged had taken the horses into his own possession, the United States Express Company by writ of attachment issued against Cramer seized the horses of Ladley for claims alleged to be due the company from Cramer. The affidavit for the attachment was filed February 18, 1893. Under cross-examination Joseph Ladley on the stand testified as follows:
    “ Q. He was to pay the whole price of them in three or four months ? A. That is the way I got the agreement wrote. Mr. Cramer in the first place wanted to buy them, and he had nothing to pay me with, or nothing to give me, and Mr. Boyer said I had better go back and see Mr. Amerling. Q. What did you and Mr. Cramer do ? A. I thought I had such a strict agreement that he wouldn’t sign it. Q. The rent in the agreement was the prices of the horses. A. I thought he couldn’t make out that long. Q. What was the price he was to pay for the horses ? ”
    Objected to.
    By the Court: The objection is overruled.
    • By Mr. Freeman: “ Q. What was the price Cramer was to pay for these horses at the time he got them? A. Well, $475, I guess. Q. That was the whole price of the horses that Cramer was to pay? A. Yes, sir. Q. He was to pay on account of that price how much the first month? A. $75.00. Q. And during the- other four months was he to pay, $100 a month ? A. Yes, sir. Q. And at the end of the four months, if he paid the price, the horses were to be his ? A. Yes, sir. Q. Then you expected to get at the end of the five months the full value of the horses? A. Yes, sir. Q. And in that way you fixed the price, which was called ‘rental’ in the lease ? A. Yes, sir.”
    The court below charged the jury as follows:
    In this cause, the horses which are in suit were seized as the property of a man named Cramer. The claimant then came forward and said that they did not belong to Gramer, but were his property, and that is the issue which is to be determined in this cause — as to whether or not the horses in question are the property of the claimant.
    It seems that at one time the claimant owned the four horses. Now, a man who was in that possession might make a contract for hiring- the horses if he chooses to do so and can find somebody to hire them to, or he may make a contract of sale if he can find a purchaser, but he cannot do both of those two things at the same time.
    That was the effort which apparently was made in this cause, and somebody has taken a lease, applicable in its terms to real estate, but entirely unsuited to a contract for horses, and has filled into that lease in the blanks what purports to be an agreement. As would naturally result under such circumstances, we have a sort of legal monstrosity, but, such as it is, we must endeavor to get at what is the meaning of the parties, and that, it seems to me, under the testimony as it has been presented here, is entirely a question of law for the court to determine.
    The provisions here inserted into the lease with respect to real estate (because there is no such thing as the rental of horses), provide that certain monthly payments shall be made, [but if a man were hiring horses it would naturally be expected that there would be some arrangement for the care of the horses, — some arrangement for the kind of work to be done by them, and then some provision for the return of them when the time is over.] [3]
    [This paper contains no such provisions, but it does contain a provision that the “ amount shall be credited to the said George Cramer as so much paid towards the purchase of said horses.” There is nothing said in the paper itself as to any purchase, so that that would be incomprehensible, although it seems to indicate the thought in the minds of the parties that there was to be a purchase, were it not for the statement of the plaintiff who has very frankly told us that he was to be paid $475.] [4]
    My construction of this agreement or paper (or whatever it may be) is, that it was intended between the parties to constitute a sale. I therefore instruct you that your verdict in this case ought to be for the defendant.
    I will give an exception to the plaintiff.
    Verdict for defendant. Claimant appealed.

      Errors assigned were, (1) withdrawing the case from the jury and instructing them to find for the defendant; (2) in refusing to charge the jury as requested by the plaintiff in all his points submitted to the court; (3, 4) portions of the judge’s charge, reciting same.

      H. Wharton Amerling, with him Harmon B. Amerling for appellant.

      J. S. Freemann, with him John F. Keator and Owen B. Jenkins, for appellee.
    December 7, 1896 :
   Opinion by

Wickham, J.,

Taking the written contract between the appellant and George H. Cramer, in connection with the testimony of tl e former to the effect that he had sold the horses mentioned in the contract to Cramer, we agree with the learned judge of the court below that the arrangement whereby Cramer got and held the horses in dispute was a conditional sale, rather than a bailment; and if there were nothing more in the case, we would have to affirm the judgment.

The evidence, as printed and submitted to us, is somewhat confused and confusing; but we are satisfied, after a careful examination thereof, that enough appeared at the trial to make it the duty of the learned judge to submit to the jury the question whether the appellant, taking advantage of a breach by Cramer of a condition of the contract between them, had not repossessed himself of the horses before the service of the attachment issued by the appellee company against Cramer. There is evidence (see testimony of Samuel Ladley) that, before the attachment was executed, the agent of the express company, who had charge of the legal proceedings, directed the appellant to take his horses home; that the latter did so and, later, hired them to the express company, after which they were attached by the company for Cramer’s debt. If these are the facts, and the jury had so found, then the appellant was entitled to succeed. This branch of the case, however, was entirely ignored or overlooked by the learned trial judge.

The first assignment of error, so far, and only so far, as it relates to the binding instruction to the jury to find for the defendant, is sustained. No exception was taken to the alleged refusal of the court below to hear the appellant’s counsel. The second assignment is not considered. It offends against rule 15 of this court, which provides that “ Every error relied on must be assigned particularly and by itself. If any assignment of error embrace more than one point, or refer to more than one bill of exception, or raise more than one distinct question, it shall be considered a waiver of all the errors assigned.”

„ The view we take of the transaction between Ladley and Cramer, namely, that under all the evidence it was not a bailment, but a conditional sale, makes it unnecessary to pass directly on the other assignments of error.

Judgment reversed and venire facias de novo awarded.


author: Smith, J.,

text:
    John C. Held v. Howard T. McBride, Appellant.

      Easements — Appurtenant to dominant estates — Conveyance thereof.

    It is settled law in Pennsylvania that an owner of land may arrange it as he pleases, doing no injury to others, and that any ways or other privileges which he may provide for the necessary or convenient use'of the different parts of the land, or of structures on it, will remain as servitudes upon the parts subjected to them by him, in the hands of subsequent purchasers with notice, or when the easements are continuous and apparent. The easements thus created, being for the specific use of the lands for which they were provided, become appurtenances of those dominant estates, and require no deed or writing to support them; they pass by a conveyance of the estates to which they are appurtenant.
    Argued Oct. 5, 1896.
    Appeal, No. 66, Nov. T., 1895, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1894, No. 1014, on verdict for plaintiff.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    Trespass for determining right to use of alley.
    Tbe following facts appear from tbe opinion of tbe Superior Court.
    “ This action of trespass was brought for tbe purpose of having determined whether the plaintiff has a right to the use of an alley extending along the rear of his lot and its adjoining lots, situate in the Twenty-First ward of the city of Philadelphia.
    “It appears that in the year 1877, Nathan L. Jones was the owner of a tract of land in that ward, having a frontage of one hundred and thirty feet on Ridge avenue and a depth of about seven hundred feet. During that year he erected four houses, compactly built, fronting on Ridge avenue, and put up a fence along in the rear at a distance of about one hundred and ten feet from the front line. An alley ten feet wide, with this fence as its southwesterly boundary, was laid out and extended across the Jones land from its northerly boundary adjoining the Keely land, to its southerly boundary, now known as Cemetery avenue. Gates were hung in this fence making passageways from each houselot into tbe alley, and tbe waste water was drained into it through gutters made for that purpose.
    “Nathan L. Jones died in 1879, and soon thereafter all the land was sold, in separate lots, at an orphans’ court sale, to different purchasers. At this sale Charles Thompson Jones bought all of the tract in the rear of the Ridge avenue lots and his de'ed included the land covered by the alley. In 1882 he sold to the appellant a lot forty feet in front on Cemetery avenue and extending in depth, the entire width of the tract, to the Keely land. According to the description in the appellant’s deed his southwesterly line was parallel with and ten feet distant from the rear fence of the Ridge avenue lots, and was ‘bounded .... southwestwardly by a certain ten feet wide alley laid out by the said Charles Thompson Jones along the rear end of lots fronting on said Ridge avenue.’
    “ The appellant built a dwelling house on his lot in 1883 and put up a fence along the southeasterly side of the alley referred to in his deed. In 1891 the title to one of the four Ridge avenue lots became vested in the appellee. In 1894 the appellant acquired the fee to the land covered by the alley. No mention is made of the alley in the court proceedings, or in any deed except the appellant’s. In 1894, after securing the fee, the appellant shut up the gates leading from the Ridge avenue lots into the alley, and this action followed.”
    Verdict for plaintiff. Damages assessed at 1 cent. Defendant appealed.

      Errors assigned were, (1-9) in submitting to the jury the question whether an alley was laid out, and confining this question to whether Nathan L. Jones did lay out such alley; (10-12) in admitting evidence as to what was said by the auctioneer at the orphans’ court sale; (13) in sustaining plaintiff’s objection to the admission of the following notice, viz :
    “ Roxbouough, Phila., April 17, 1890.
    “ Dear Sir :
    “You are hereby notified to quit using the strip of ground fronting on Cemetery Avenue, at the rear end of your lot, as and for a passageway, water course and drain, as now used by you. It has become a nuisance by reason of the use it has been put to. You have no right to the use thereof for any purpose whatever.
    “Yours respectfully,
    “ Charles Thompson Jones, Jr., “Mary W. Cornman,
    “Adble Jones,
    “Eloise L. Jones.”
    (14) In sustaining plaintiff’s objection to the following offer made by the defendant, viz: I offer to prove that notice was received from the board of health to clean this alley only, and it was served on Charles Thompson Jones, Jr., and that it was cleaned by the estate of Charles Thompson Jones.

      Amos Briggs, Frederick A. Sobernheimer, for appellant.
    There was no testimony for such submission to the jury as is complained of in the first nine specifications of error.
    An examination of the cases will show that there must be no uncertainty about the establishment of an easement. It must be clear, beyond any dispute as to the facts, and so clear, as stated in some of the cases, that it must be palpable and notorious: Seibert v. Levan, 8 Pa. 383; Cope v. Grant, 7 Pa. 488; Phillips v. Phillips, 48 Pa. 178; Kieffer v. Imhoff, 26 Pa. 438; Cannon v. Boyd, 73 Pa. 179; Zell v. The Society, 119 Pa. 390; Ermentrout v. Stitzel, 170 Pa. 540.

      Francis S. Cantrell, with him Francis S. Cantrell, Jr., for appellee.
    In Railroad Company v. Jones, 50 Pa. 424, it was held: “It is the settled doctrine of this State that a permanent right established by the owner over his property, necessary for its convenient use, will not be destroyed by his sale or his incumbrance:” Phillips v. Phillips, 48 Pa. 178; Cope v. Grant, 7 Pa. 488; Overdeer v. Updegraff 69 Pa. 110; Ermentrout v. Stitzel, 170 Pa. 540.
    December 7, 1896
   Opinion by

Smith, J.,

(after stating the facts as above) :

It is claimed on behalf of the appellant that there was not sufficient evidence to warrant the verdict and that the court below erred in its charge and rulings on certain offers of evidence. The first nine of the fourteen assignments relate to the charge and answers to points, and may be considered together. No points were presented on behalf of the appellant.

Sylvester Yardley, a builder, testified that in 1877 or 1878 he erected four houses fronting on Ridge avenue for Nathan L. Jones; that he put up a fence along the rear of all of those house lots and built division fences between the back yards of each; that he hung four gates in the rear fence, one for each yard, and that they opened into the alley. He also says he put in a brick pavement so as to drain the hydrant water into a gutter, emptying into the alley. He further says that he laid out a ten foot alley with this rear fence forming its southwesterly side, and staked the opposite side, and extended the alley from what is now known as Cemetery avenue to Keely’s land on the north. He testifies that he did all of this at the request of Nathan L. Jones who employed him for that purpose. Mr. Yardley, and other witnesses, testify that Nathan L. Jones spoke of the land in dispute as an alley; and that it was used as such in connection with the Ridge avenue lots, by the occupants, from the erection of the houses in 1878 until it was closed up by the appellant in 1894. Other facts and circumstances were testified to in corroboration of the appellee’s contention.

That the defendant had actual knowledge of the existence of the alley is undoubted. His deed called for it as a boundary: gates open into it, and he saw the occupants of these adjoining lots use it. Furthermore he himself erected his fence along its southeasterly line (which was also his northwesterly line), and it remained thus inclosed on both sides from 1883 until 1894.

It is true there was evidence on behalf of the appellant from which it might be inferred that the alley was not wholly defined and fully established as an appurtenant to the Ridge avenue lots by Nathan L. Jones, but with this, we are not now concerned. The whole evidence was for the jury, and in the absence of any prayer by the appellant, for binding or other instructions, our inquiry is directed to the rulings and charge of the court below, as complained of in the assignments.

It is settled law in Pennsylvania that an owner of land may arrange it as he pleases, doing no injury to others, and that any ways or other privileges which he may provide for the necessary or convenient use of the different parts of the land, or of structures on it, will remain as servitudes upon the parts subjected to them by him, in the hands of subsequent purchasers with notice, or when the easements are continuous and apparent. The easements thus created, being for the specific use of the lands for which they were provided, become appurtenances of those dominant estates, and require no deed or writing to support them; they pass by a conveyance of the estates to which they are appurtenant.

These principles have frequently been applied in the reported cases. They are well illustrated in Overdeer v. Updegraff, 69 Pa. 110, and Cannon v. Boyd, 73 Pa. 179, cases in which the facts are quite similar to the facts of the one before us. In Overdeer v. Updegraff, William Hinney owned two lots and put up a building on each, with an alley on one of them covered by the second story of the building. This alley extended a few feet beyond the back wall of the buildings, with gates opening into it from each lot, and it was used by the occupants of both houses for fourteen years. Hinney died and the lot with the alley on it was sold by his administratrix under an order of the orphans’ court. The alley was not mentioned in the proceedings, though it was in the deed. It was held that the purchaser took subject to the rights of the adjoining lot owner in the easement. In this case the Supreme Court said: “ But if there had been no express reservation of the right to the use of the alley in the conditions of sale, and in the deed executed and delivered to the purchaser, the latter would have taken it subject to the servitude imposed upon it by the decedent for the use and enjoyment of the occupants of the adjoining lot. It was a continuous and apparent easement, and the law is well settled that in such a case the purchaser, whether at private or public sale, takes the property subject to the easement: Keefer v. Imhoff, 26 Pa. 438 ; McCarty v. Kitchenman, 47 Pa. 239; Phillips v. Phillips, 48 Pa. 178; Railroad Co. v. Jones, 60 Pa. 427. Whether the plaintiff, then, had constructive notice of the reservation of the easement or not, is wholly immaterial. If it was continuous and apparent, as it unquestionably was, he took the lot subject to it.” The case of Cannon v. Boyd is still closer in point. One McCabe bought a piece of land and gave a mortgage on it for part of the purchase money. He divided the land into three lots and built on two of them and laid out an alley on one for the use of both, and it was so used for more than ten years. The land was sold in three separate lots by the sheriff, under the mortgage, and no mention was made of the alley in the proceedings or in the sheriff’s deeds, but it was held that the purchasers of the two lots took subject to the easement, and that the defendant had no right to close the alley; the court saying: “Where a continuous and apparent easement or servitude is imposed by tbe owner on one portion of Ms real estate for the benefit of another, the law is well settled that a purchaser at private sale or judicial sale, in the absence of an express reservation or agreement on the subject, takes tbe property-subject to the easement or servitude: Seibert v. Levan, 8 Pa. 383 ; Overdeer v. Updegraff, 69 Pa. 110, and cases there cited. The sheriff sold and conveyed the lots to the parties in this case without reference to the existence of the alley on the lot purchased by the defendant; but the evidence shows that the alley was open and apparent at the time of the sale, and that there was a gate leading Mto it from the lot purchased by the plaintiff, clearly indicating that it was used in common by the tenants of both lots. It also appears from the evidence that the alley was laid out and opened by McCabe, the former owner of the lots, and that it was used in common by the occupants thereof for a period of more than ten years prior to the sheriff’s sale. The court below was, therefore, clearly right in declining to charge that the sheriff’s sale and deed vested the soil of the alleged alley M the defendant clear of the easement claimed by the plaintiff.”

In the present case it is quite evident from the charge that the learned judge of the court below had clearly in mind the ruling principles of the law of easements, and that he applied them correctly to the facts of this case. The matters complained of in the first nine assignments are, in themselves and when taken in connection with the other portions of the charge, a clear and correct presentation of the law as applicable to the facts, and require no further comment here. These assignments are overruled.

What was said a.t the orphans’ court sale about the alley, and made the subject of the tenth, eleventh and twelfth assignments, was properly admitted. It is difficult to understand how the admission of this testimony injured the appellant. It is the want of notice that is usualiy complained of, and not that it has been given. It is quite evident that the appellant’s grantor recognized the alley mentioned at the orphans’ court sale, and defined its southeasterly line in the deed of the appellant’s lot.

The offer to show that the heirs of Charles Thompson Jones served a written notice on the occupants and owners of the Ridge avenue lots in 1890, directing that they should no longer use the alley as a passageway, was properly rejected. The right to use the alley, as an appurtenant to the lots fronting on Ridge avenue, originating in the dedication or appropriation by Nathan L. Jones some twelve years before, and followed during that period by apparent and continuous use, had then become a vested right, which could not be divested or impaired by the notice which the defendant offered to prove. Furthermore, this notice was given before the plaintiff’s acquisition of title, and the offer did not propose to connect him with it. The action of the board of health, or the view taken by that body of the ownership of the alley, was wholly beyond the issue being tried. The last five assignments are also overruled, and the judgment is affirmed.


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    Commonwealth, of Pennsylvania v. John Mills and John Adams, Appellants.

      Criminal law — Larceny from the person — Indictment.
    Larceny from the person consists in the felonious taking of property from the person of another without violence or putting him in fear.
    A count in an indictment which charges the felonious taking of property from the person but which does not allege violence or putting in fear, cannot be sustained as a count charging robbery by reason of the use of the words with “ force and arms.”

      Practice, Q. S. — Formulation of verdict.

    A writing prepared in the jury room and presented to the court forms no part of the record; the finding delivered in open court decides the issue and what is recorded by the court is the only proper verdict.
    Argued Nov. 9, 1896.
    Appeal, No. 13, March Term, 1897, by defendants, from judgment and sentence of Q. S. Lebanon County, June Sess., 1896, No. 36, on verdict of guilty.
    Before Rice, P J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.

      Indictment charging larceny; receiving stolen goods; larceny from the person. Before Ehbgood, P. J.
    The following facts appear from the opinion of the Superior Court:
    “ These defendants were tried upon an indictment containing three counts; the first charging simple larceny, the second the offense of receiving stolen goods-; and the third is in the following . language: ‘ And the grand inquest aforesaid upon their oaths and affirmations aforesaid, respectfully represent, that the said John Mills and John Adams, to wit, on the day and year aforesaid, in the county aforesaid, and within the jurisdiction of this court, with force and arms, etc., the goods, chattels, property aforesaid, of the said S. S. Gibble, did feloniously steal, take and carry away from the person of the said S. S. Gibble, contrary to the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania.’
    “ The verdict of the jury as officially recorded is, ‘ that they find the defendants guilty of larceny in the third count of the indictment, and not guilty as to the other counts.’ Upon this verdict the court below sentenced each of the defendants to pay a fine of one hundred dollars and the costs of prosecution, and to undergo imprisonment by separate and solitary confinment at labor, in the penitentiary for the term of five years.”

      Errors assigned were, (1) the offense of robbery being triable exclusively in the court of oyer and terminer, and the defendants having been tried, convicted and sentenced for said offense in the court of quarter sessions, said judgment and sentence should be reversed for want of jurisdiction: (2) The verdict as returned by the jury is so unintelligible and uncertain that judgment upon the same cannot be sustained: (3) The verdict as amended by the court is so vague and uncertain that the judgment and sentence thereon should be reversed: (4) The defendants, at most having been convicted of larceny only, could not properly be sentenced to an imprisoment for five years. Said sentence being excessive, the same should be reversed.

      J. Marshall Funck, with him C. M. Zerbe, for appellants.
    The court is without power so to mold a verdict in accordance with what he may regard as logical necessity as in effect to make a new verdict: Clouser v. Patterson, 122 Pa. 373.
    Assuming that the verdict of the jury had reference to the three counts of the indictment, our position is that the crime charged against the defendant is that of robbery. The court of oyer ánd terminer has exclusive jurisdiction in such a case.

      J. E. Reinoahl, with him J. M. Shindel, district attorney, for appellee.
    The fundamental issue raised by the above assignments of error is simply this : Does the act of March 31, 1860, sec. 102, create the statutory offense of “Larceny from the person,” as charged in the third count of the indictment in this case?
    The sentence'of the court is justified by a verdict of guilty under the third count of the indictment. The maximum penalty for “Larceny from the person” under the act March 31, 1860, sec. 102, is five years. The circumstances surrounding the case, including the attempt of the defendants to escape from custody, appear to have warranted severe punishment. The power of a judge to put a verdict into form so as to make it express the real finding of the jury is well settled. It has been exercised in many cases, among which are Keen v. Hopkins, 48 Pa. 445; Beates v. Retallick, 23 Pa. 288; Roddy v. Harah, 62 Pa. 129; Watkins v. B. & L. Association of Hyde Park, 97 Pa. 514; Clouser v. Patterson, 122 Pa. 376.
    December 7,1896
   Opinion by

Smith, J.,

(after stating the facts as above) :

The sentence was imposed under section 102 of the act of March 31, 1860, which provides that: “If any person shall rob another, or shall steal any property from the person of another, or shall assault any person with intent to rob him, or shall, by menace or by force, demand any property of another, with intent to steal the same, such person shall be guilty of felony, and, being convicted thereof, shall be sentenced to pay a fine not exceeding one thousand dollars, and to undergo an imprisonment, by separate or solitary confinement, not exceeding five years.”

The leading objactions to the proceedings are: (1) That the indictment charges the crime of robbery, and, therefore, the court of quarter sessions had no jurisdiction to try the defendants upon it; and (2) that the verdict is a finding of simple larceny, and therefore the sentence is erroneous because it exceeds the maximum penalty for that offense.

The indictment, though not framed with the technical accuracy required under the common law, sets out, in substance, a larceny from the person. It contains all the necessary averments of simple larceny, to which is added that the property was stolen “from the person of the said S. S. Gibble, contrary to the act of assembly in such case made and provided.” The only statute relating to larceny from the person is the section already quoted; it provides for the punishment of robbery and of other offenses, all of which are akin to robbery, and contain some, though not all of its essential common law elements. But these offenses are plainly distinguished from one another in terms and subject-matter, and it is designed by the statute to meet and punish criminality under the differing conditions of each.

Robbery is defined to be “ the felonious and forcible taking, from the person of another, of goods or money to any value, by violence or putting him in fear: ” 4 Bl. Com. 242. It will be seen from this definition that the crime pf robbery, at common law, is larceny from the person accompanied by violence or putting in fear; and an indictment for robbery must allege the forcible taking from the person, by violence or by putting in fear, in addition to the averments necessary in a count for larceny. The felonious taking of property from the person of another without violence or putting him in fear is larceny under the statute, not robbery; when not taken from the person it is larceny at common law; and if the other elements of robbery are not proven the defendant may be convicted of this constituent offense upon an indictment charging both based on the same act: Com. v. Shutte, 130 Pa. 272. See also Com. v. Boyer, 1 Binn. 201; Com. v. Snelling, 4 Binn. 379.

This indictment does not charge a robbery in terms or by description. It is not alleged that the property was taken “ forcibly and against the will” of the prosecutor or “by violence ” or “ by putting him in fear,” — averments common and necessary in indictments for robbery; nor is the word “rob ” or any equivalents of these terms used. It is argued, however, by the appellants’ counsel, that the words “ with force and arms ” supply and take the place of the terms “ by violence or putting in fear,” and that, therefore, the element of force essential to constitute robbery is sufficiently averred in the count.

To the professional mind this would be a new and extended application of the words “ with force and arms.” It is at variance with precedent and legal history. Before the statute 37 Henry VIII. ch. 8, the words “ with force and arms ” and also other words declaring the manner of the force and arms; that is to say: “ with force and arms (to wit) with clubs, knives, bows and arrows,” were employed and regarded as indispensable in indictments and informations in all cases involving force or trespass; and their absence was deemed a fatal defect. By that statute, however, the necessity for those terms was dispensed with in England; and they were never held to be necessary here: Roberts’ Digest, 334; Com. v. Martin, 2 Pa. 244. Their continued use in indictments for over three hundred and fifty years after it was declared by statute that they were unnecessary illustrates the lasting influence of precedent with careful pleaders. But these words have not been regarded as descriptive of any of the essentials of crimes, and it is said by Mr. Bishop in his work on Directions and Forms, that there is no American case in which the use of these words in an indictment is held necessary. That they have not been regarded as describing the force necessary to be averred in indictments for robbery is shown by the fact that they are to be found in those indictments where the element of force is also specifically set out with the other essentials of the crime: Com. v. Boyer, 1 Binney, 201; Acker v. Com., 94 Pa. 284. There is no necessity or warrant for the revival of that phrase, or for clothing it with greater legal effect than it possessed before the enactment declaring it useless.

The distinction between robbery and larceny from the person is an important one, and should not be lost sight of because they are included with other allied offenses in the 102d section of the penal code. Robbery is of a more serious and aggravated character, involving the person as well as the property; and is triable exclusively in the court of oyer and terminer. If in its perpetration murder is committed, it fixes the grade of that crime in the first degree; and one indicted for robbery is still liable to outlawry and attainder, if he becomes a fugitive from justice; with the consequent punishment and forfeiture of his estate. It is important, therefore, that the distinction between these crimes be maintained in judicial proceedings. While the rigor of the common law in criminal pleadings is greatly modified by statute, yet on a charge so grave as that of robbery the essentials of the crime, in substance at least, should be set forth in the indictment. This has not been done in the present instance.

The argument that the verdict is for simple larceny requires but brief notice. Larceny from the person is now a well understood statutory offense, and it is to be found on the statute books of many sister states. It consists in the felonious taking of property from the person of another, without violence or putting him in fear. It is a less aggravated form of larceny than robbery, and the statute against it aims at the protection of the person (as well as the property) from interference, though without force. As has been said the third count of the indictment charges this offense, and we are clearly of the opinion that the 102d section of the criminal code sufficiently designates it as a distinct crime, and prescribes the penalty to be imposed for its commission.

The verdict as recorded is : “We find the defendants guilty of larceny in the third count of the indictment, and not guilty as to the other counts.” It is contended that this is not the verdict actually rendered by the jury. The jury wrote out and handed to the court the following as their verdict: “We find John Mills and John Adams guilty of larceny in the Bd indictment.” Whereupon it was molded and recorded by the court, as above given. It is evident that the jury meant “ count ” instead of “indictment,” and it was the duty of the court to so mold the verdict as to correctly express their finding. If the jury had desired to find the defendants guilty of simple larceny, they could have done so under the first count. Designating the third count as they did, plainly indicated their intention to convict the defendants of larceny from the person. The writing prepared in the jury room and presented to the court forms no part of the record; the finding delivered by the jury in open court decides the issue, and what is recorded by the court is the only proper verdict: Dornick v. Reichenbach, 10 S. & R. 84; Com. v. Breyessee, 160 Pa. 451.

Nothing has been shown calling for a modification of the sentences,, and, finding no error in the proceedings the assignments are overruled and the judgments affirmed.


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    Com. of Pennsylvania v. John Adams, Appellant.

      Criminal law — Words and phrases — Imprisonment—Escape.
    Imprisonment, in the legal sense, is not limited to the confinement of the person within prison walls. Any restraint of liberty, against the will of the person restrained, is in contemplation of law an imprisonment; and if such restraint is lawfully exercised, the person is lawfully imprisoned.
    The meaning of the term “ escape,” in law, is equally well settled. Any person, who, being lawfully confined or in 'custody, regains his freedom, with or without force, before being lawfully discharged, is guilty of an escape.

      Criminal law — Escape from prison.

    Where a prisoner, having been tried and convicted of larceny, escapes from the custody of an officer while on his way to jail, he is liable to the penalty imposed by see. 3, act of March 31, 1860, P. L. 385, upon those who “ break prison or escape.”
    Argued Nov. 9, 1896.
    Appeal, No. 14, March T., 1897, by defendant, from judgment and sentence of Q. S., Lebanon County, June Sess., 1896, No. 54, on plea of guilty.
    Before Rice, P. J., Will and, Wickham, Beavek, Reedek, Oklady and Smith, JJ.
    Affirmed.
    Indictment for escape.
    The defendant, John Adams, was convicted of larceny from the person.
    A motion in arrest of judgment was thereupon made.
    While the defendant was being conveyed from the courthouse to the county jail, pending said motion, he escaped from the custody of the sheriff, but was immediately recaptured and indicted for an escape, to which he pleaded guilty, and was sentenced to imprisonment in the Eastern Penitentiary, at labor, for a period of two years.

      Error assigned was in imposing the sentence of imprisonment and labor in the penitentiary for two years.

      J. Marshall Funck and C. M. Zerbe, for appellant.

      J. E. Reinoehl, with him J. M. Shindel, district attorney, for appellee.
    December 7, 1896:
   Opinion by

Smith, J.,

The defendant had been tried and convicted in the court of quarter sessions of Lebanon county of the crime of larceny from the person, and while a motion in arrest of judgment in that proceeding was pending, he escaped from the custody of the sheriff while being taken from the courthouse to the county jail.

Upon being arraigned he entered a plea of guilty to an indictment which, though inartistic and lacking in formal averments, in substance charges.an escape by the defendant from the jailer of the county, while lawfully in custody as a defendant in a criminal prosecution in a court of quarter sessions, where he stood convicted of a felony, and was remanded to jail pending a motion in arrest of judgment.

The defendant was sentenced to pay a fine of $10.00, the costs of prosecution, and to undergo imprisonment by separate and solitary confinement, at labor, in the penitentiary for the term of two years under the third section of the criminal code of 1860, P. L. 385, which is as follows: “ If any person arrested and imprisoned, charged with an indictable offense, shall break prison, or escape, or shall break prison, although no escape be actually made, such person shall be guilty of a misdemeanor, and on conviction be sentenced to undergo an imprisonment by separate or solitary confinement at labor, not exceeding two years, if the criminal charge on which such person stood com mitted, was a crime or misdemeanor punishable on conviction, by imprisonment by separate or solitary confinement at labor; or to imprisonment not exceeding one year, if such charge was a crime or misdemeanor punishable, on conviction, by simple imprisonment without labor.”

The single assignment of error is to the effect that the court erred in imposing a sentence of imprisonment in the penitentiary by separate and. solitary confinement, at labor, for two years. In support of this it is argued that the statute above quoted embraces but two classes of offenders: (1) those who being arrested and imprisoned, break jail and escape, and (2) those who, being arrested and imprisoned, break jail and do not escape; and that as the escape in the present case was not from a jail but from the custody of an officer while on the way to the jail, it is not within the purview of the act of assembly.

Was the defendant “imprisoned,” and did he “escape,” within the meaning of the statute ? . This depends on the legal import of the words quoted, and the sense in which they are employed in the statute.

Imprisonment, in the legal sense, is not limited to the confinement of' the person within prison walls. Any restraint of liberty, against the will of the person restrained, is in contemplation of law an imprisonment; and if such restraint is lawfully exercised, the person is lawfully imprisoned. This is among the elementary definitions for which it is needless to cite authorities.

The meaning of the term “ escape,” in law, is equally well settled. Any person who, being lawfully confined or in custody, regains his freedom, with or without force, before being lawfully discharged, is guilty of an escape: 6 Am. & Eng. Ency. of Law, p. 844.

The situation and act of the defendant, in this case, in relation to imprisonment and escape, must be determined by the language of the indictment. This sets forth, with sufficient clearness, that he was lawfully imprisoned, and that he escaped from that imprisonment. If this imprisonment and escape were within the statute, the statutory penalty may be lawfully imposed.

The third section, on which the indictment is based, is one of six in relation to escape and rescue, of which the revisers of the penal code, in their report, say: “ The provisions of these sections are new to our statute law, though punishable at common law. The common law punishments now attached to them, of fine and imprisonment, have no limits other than the discretion of the court. Those prescribed by these sections restrain this general power.” These sections practically cover every phase of an escape punishable at common law, including the unlawful acts of the prisoner, of his keepers, and of aiders and abettors, and substitute a statutory penalty for tbe common law punishment.

Escape by the act of the prisoner must be either by breaking prison or without brealdng. Section 3 of the statute provides for both: “If any person .... shall break prison, or escape.” The meaning of the term “ breaking prison,” like that of “ escape ” is well, settled. There must be an actual breach of prison, and the prisoner must escape: Bouvier’s Law Dictionary, title “ Prison Breaking,” and authorities there cited. Since the words “break prison” ex vi termini import an escape, it is unnecessary, in order to give them full effect in the passage quoted, to construe the word or as and. To do this - would indeed be tautological; it would be, in effect, to say “If he shall regain freedom by a breach of prison, and escape.” The statute further provides for a third aspect of the prisoner’s act: If he “ shall break prison, although no escape be actually made.” This expression may be objected to as paradoxical, in view of what is implied in brealdng prison; being literally equivalent to saying, “ If he shall escape from prison, although no escape be actually made.” The intent, however, is sufficiently clear, and could not well be expressed otherwise without considerable verbiage. It is designed as a qualification of the technical meaning of the term, to provide for an attempt at brealdng prison, falling short of the actual escape which the term implies. It may be classed with such expressions as “ fine or imprisonment, or both, or either,” frequently occurring in our penal legislation; or, indeed, with the language quoted from the revisers, that the provisions of these sections were “punishable” at common law, instead of the offenses for which the statutory penalty is provided.

The third section, by the construction thus given it, provides a symmetrical system for the punishment of every aspect of escape or attempted escape by the act of the prisoner; while the remaining sections provide for the punishment of others aiding in or permitting an escape or attempt to escape, or engaging in a rescue or attempt at rescue.

Under this interpretation of the section, the court below had clear authority to impose the sentence pronounced, and as nothing has been presented to us calling for its modification, it is our duty to affirm it.

The assignment is overruled and the judgment is affirmed.


text:
    Commonwealth of Pa. v. John Mills, Appellant.
    Argued. Nov. 9, 1896.
    Appeal, No. 15, March T., 1897, by defendant, from judgment and sentence of Q. S. Lebanon County, Jnne Session, 1896, No. 55, on plea of guilty.
    Before Rice, P. J., Willard, Wickham, Beaver, Reeder, Orlady and Smith, JJ.
    Affirmed.
    December 7,1896:
   Opinion by

Smith, J.,

The defendant in this case entered a plea of guilty to an indictment charging an escape from a jailer at the same time and in the same manner as the defendant in the case of the Commonwealth v. John Adams, decided at the present term. The cases involved the same questions and were argued together. For the reasons given in that case the assignment of error here is overruled and the judgment is affirmed.