author: Head, J.,

text:
    Commonwealth v. Leyshon, Appellant
    (No. 1).

      Criminal law — Charge—Expression of opinion by trial judge — Conspiracy — Evidence—Cross-examination.
    1. Where on the trial of an indictment for conspiracy* there is a radical contradiction in the testimony, the trial judge cannot be convicted of error in expressing an opinion on the evidence in a proper attempt to aid the jury, if he leaves the case to the jury to decide it according to their intelligence and conscience.
    2. On the trial of an indictment for conspiracy where the evidence shows that at a particular time the conspiracy had been entirely executed and its fruits gathered, the court commits no error in refusing to permit a witness to be questioned on cross-examination as to events occurring several days thereafter, where there is no offer of anything further to indicate why the witness should be so questioned.

      Criminal law — Evidence—Res gestee — Bribery—Conspiracy.
    3. Where a witness in a criminal prosecution for conspiracy to violate the election laws testifies that he saw what he believed to be money, pass from the defendant to an election officer, he may be permitted to testify that within five minutes afterwards the officer exhibited money that he had received.
    Argued Oct. 18, 1910.
    Appeal Nos. 5 and 6, March T., 1911, by defendants, from judgment of Q. S. Lackawanna County, Dec. Sessions, 1908, No. 211, on verdict of guilty in case of Commonwealth v. Thomas Leyshon and Abram Howells.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for conspiracy. Before Heydt, P. J., specially presiding.
    The facts are stated in the opinion of the Superior Court.
    At the trial John Mishler was asked this question: •
    “Q. Do you know how much money that was? A. After George showed me it was $10.00.”
    Judge Vosburg: We object to what George did after-wards in the absence of Thomas Leyshon.
    The Court: Objection overruled. Exception noted for defendants, at whose request a bill is sealed. [11]
    Mr. Donahoe: “Q. Go on and tell us what George did with the money. A. He showed me $10.00. Q. Paper money? A. Yes. Q. Where was that, where were you then? A. In the dining room. Q. In the dining room of the same hotel? A. Yes. Q. How long after. A. About five minutes.”
    CROSS-EXAMINATION.
    Mr. Balentine: “Q. You saw Mr. Leyshon hand George something under the table at which you were drinking beer; is that correct? You saw Leyshon’s hand go under the table? A. Yes. Q. You didn’t see what he had in his hand? A. No, it was on the other side of the table. Q. It was a table about four feet in diameter, a round table, wasn’t it? A. No. I guess about two feet and a half. Q. You were on one side? A. Yes. Q. Leyshon on one side? A. Yes, sir. Q. And George on one side? A. George was on the same side I was. Q. Leyshon puts his hand under the table? A. Yes, sir. Q. And George puts his hand under the table? A. Yes, sir. Q. There is not a word said between you and George or George and Tom? A. No, George just talked easy with Leyshon. Q. You heard nothing? A. No. Q. And about ten minutes later when you were in the dining room George showed you a ten dollar bill? A. Yes, sir. Q. That is all he said? A. Yes. Q. Just showed you a ten dollar bill? A. Yes. Q. He might have got that ten dollar bill before he came out of jail for all you know? A. I can’t tell. Q. You don’t know where he got it? A. I don’t know.”
    A. B. Rutherford, a witness for the commonwealth, was asked this question:
    “Q. Do you remember when this matter arose Mr. Nowyokot was brought down here and asked to make an affidavit that there was a change in the matter, of his saying at that time that there hadn’t been any change and that he refused to make any affidavit?”
    Mr. O’Brien: I object to that as immaterial and incompetent.
    The Court: When was that?
    Judge Yosburg: About the Saturday of election week.
    The Court: Objection sustained. Exception noted for defendants at whose request a bill is sealed. [13]
    The court charged in part as follows:
    [I will now say something that perhaps would not go to the credibility of the witnesses for the defense. The question often arises why there is so much contrariety and contradiction in the testimony of witnesses to the same transaction. There are different ways of accounting for it, and no hard and fast rules can be laid down. There are some persons corrupt enough to be willing to swear to anything; that number, fortunately, I believe to be few; I believe that most people when they go upon the witness stand mean to tell the truth; I am charitable enough to believe that; and my observation has been to that effect. But to go upon the witness stand and narrate and describe occurrences as they actually happened is a gift possessed by few persons. They either magnify certain parts which to them seem important and which, in fact, are not very important, or they distort or minimize others until their real significance is either totally or partially obscured. Then there is another element enters into the credibility of witnesses or for accounting for the differences, a matter which when I state it' to you will seem familiar to you — you may never have heard it stated empirically or didactically — and that is this fact, the part that imagination plays in giving testimony. The average man thinks and is of the opinion that the imagination spends itself in writing poetry and writing fiction. That is a great mistake. In the order of time of development imagination precedes that of memory. When the average person sees the occurrence of a particular thing he sees the fact. What else does he do? He walks away and thinks about it, and he imagines what could have happened. He pays no more attention to it. In course of time that incident comes up, what happened at that particular time, and he remembers not only what he saw, but he remembers in the same connection what he imagines he saw or heard, and the average person cannot for the life of him tell what he actually heard or what he imagined he heard or what he- heard somebody else say. And in the course of time that fixes itself upon his mind, and when he goes upon the witness stand and tries to narrate what took place he tells what he saw, and a great many tell what they imagine they saw, what they imagine they heard, with the same confidence as what they actually saw. They do not mean to lie, they do not mean to perjure themselves. This, perhaps, is a psychological discussion of a matter which I did not intend to go into when I started. It may be more interesting than profitable, but it can do no harm.
    November 21, 1910:
    In the same way a person’s recollection at times is refreshed about an occurrence afterwards, and in time to come parties imagine that they themselves saw and heard certain things.] [4]
    • Verdict of guilty, upon which judgment of sentence was passed. Defendant appealed.

      Errors assigned were (4) portion of charge, quoting it; (11, 13) rulings on evidence, quoting the bill of exceptions.

      A. A. Vosburg and John F. Scragg, with them C. Balentine, for appellants.

      Joseph O’Brien, district attorney, with him T. A. Donahoe, assistant district attorney, for appellee.
   Opinion by

Head, J.,

The testimony upon which the commonwealth relied for the conviction of the defendants was chiefly circumstantial. The defendant, Leyshon, produced a number of witnesses whose evidence tended to establish for him an alibi. This testimony answered the legal requirements of evidence in such a case. That is to say, it accounted for the presence of the defendant elsewhere at the very time when, according to the testimony of the commonwealth, he was actively engaged in the execution of the alleged conspiracy. Had this evidence been accepted by the jury as credible in all of its details, it would have warranted the acquittal of the defendant.

There appeared then to be such a radical contradiction in the two lines of testimony that at first blush it might have seemed useless for the jury to try to reconcile them. The learned trial judge in his charge first adverted to the fact that as this testimony was delivered many months after the happening of the occurrences, it might seem strange that the defendants' witnesses could so accurately recall the many details which appeared to give weight to their evidence. He suggested, however, that this might be explained in harmony with the truthfulness of the witnesses by the fact that informations leading to the arrest of the defendants had been made within a few days after the alleged occurrences and that this might naturally result in permanently lodging in the recollection of the witnesses matters then entirely recent and fresh in their memory.

This suggestion was certainly favorable to the defendant and it was offered by the learned trial judge as an aid to help the jury in accepting testimony which might otherwise arouse some suspicion in their minds because of its wealth of detail. He then proceeded to discuss this testimony generally from another standpoint and this portion of the charge constitutes the fourth assignment of error. In this discussion the learned judge pointed out, in an abstract way, the fact that even truthful witnesses do not see and describe alike an occurrence which they have actually witnessed. The nature of his discussion is well illustrated by the language with which he ends it, viz.: “This, perhaps, is a psychological discussion of a matter which I did not intend to go into when I started. It may be more interesting than profitable, but it can do no harm.” The bur-then of these remarks was again manifestly an effort on the part of the learned trial judge to give the jury still another viewpoint of the testimony with which they had to deal, in the hope that it also might be of aid in enabling them to reach a conclusion which would not necessarily involve the idea that witnesses, had testified to what they knew to be false.

Concerning the propriety or good taste of introducing such discussions into a charge to the jury in the trial of a criminal case we have no criticism to make. That is not our province. It is clear from a perusal of the entire charge that almost every line of it manifests the desire of the learned judge to submit the testimony on both sides with the utmost fairness and in no way to invade the province of the jury in dealing with that evidence and determining for themselves the facts established by it. The language complained of, even regarded in its most unfavorable aspect, could hardly be considered more than an expression of opinion by the learned trial judge on the kind of evidence with which he was dealing. It has often been held that where, as the result of the whole charge, the evidence was fairly submitted to the jury and they were left free to deal with it according to their own intelligence and conscience, an expression of opinion by the trial judge is not reversible error. We are not convinced, after a careful examination of the entire charge, that any harm was done to the defendants by the use of the language complained of. The fourth assignment is overruled.

The thirteenth assignment complains of the action of the court in sustaining an objection made by the district attorney to a question asked of the witness Rutherford whilst being cross-examined by the defendants’ counsel. The witness was the deputy prothonotary of the county who seems to have had special charge of election returns. His testimony in chief had tended to prove the time when the particular return alleged to have been falsified was delivered to him by the judge of election; and where and how this return had been kept in his office until it became an' item of evidence in the courts. The cross-examination down to the point where the objection referred to was interposed had been germane to the direct one. The witness was then asked as to what was said or done in his presence or hearing on the Saturday following the counting of the votes when the judge of election was brought to the office of the witness. An objection to this was interposed and sustained and this constitutes the thirteenth assignment of error.

It is not apparent to us in the first place that this was proper cross-examination. If the question was relevant for the purpose of laying ground for contradiction of the witness, the record should so show. At the time referred to in the question the conspiracy, if one ever existed, had been entirely executed and its fruits gathered. Without the offer of something further indicating why the witness should be permitted to answer the question, we are led to the conclusion that the learned judge was right in sustaining the objection. The thirteenth assignment is ' overruled.

The eleventh assignment complains of the action of the court in permitting the witness John Mishler to answer a question to which we shall advert. The district attorney had elicited from the witness that just after George Nowyokot, the judge of the election whose return was altered, had been convicted and sentenced, he, the witness, was in court or at the judges’ chambers when bail was furnished for him pending an appeal. Trom there the witness, Leyshon, the defendant, and the convicted judge of election, went to a hotel together and sat at the same table. The witness testified that he there saw Leyshon, the defendant, hand to Nowyokot what he believed to be money or bills. The defendant then left and the witness was asked if Nowyokot then and there within a period, as he described it, of five minutes, exhibited what he received. Objection was interposed by the defendants’ counsel, and it is the overruling of this objection and the admission of the witness’s answer that constitute this eleventh assignment. His testimony as to the fact of something resembling money being handed over was admitted without objection. If that testimony was competent and relevant, the question objected to was certainly admissible as part of the res gestae. The whole transaction occupied but a few moments. It certainly tended to show that some relation existed between the defendant and the convicted election officer, and in the absence of a satisfactory explanation would be a circumstance which the jury had a right to consider with all the other facts in the case. The assignment is overruled.

We have attentively considered all of the remaining sixteen assignments of error, but no possible good could re-suit from a discussion of them separately. Whether we regard them singly, or in their proper relation to the entire record, we must conclude that they exhibit no reversible error. A review of the whole case satisfies us that the defendants had a fair and impartial trial, had the benefit of the assistance of able and most industrious counsel, and were accorded every substantial right guaranteed to them by the constitution and laws of the state. All of the assignments are therefore overruled.

The judgment is affirmed and’ the record remitted to the court below to the end that the sentence may be carried into execution. The costs of this appeal to be paid by the appellees.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. Leyshon et al., Appellant
    November 21, 1910:
    (No. 2).
   Opinion by

Head, J.,

The questions raised by this appeal grow out of the same transaction and are identical with those considered in the companion appeal of the same parties in which an opinion has this day been filed, ante, p. 507. For the reasons there given all of the assignments of error are overruled.

The judgment is affirmed and the record is remitted to • the court below to the end that the sentence may be carried into effect. The costs of this appeal to be paid by the appellees.


text:
    Montgomery v. Lindsay, Appellant.
    November 21, 1910:

      Brokers — Contract—Sale of stock — Delay in delivery of certificate— Dividend.

    Where an owner of stock directs a broker to sell it, but after the sale refuses to deliver the certificate until a dividend is declared and has accrued to him, and the broker is obliged under the rules of the stock exchange to make good the dividend to the purchaser out of his own pocket, the broker may recover the amount thus paid, from his customer.
    Submitted Oct. 21, 1910.
    Appeal, No. 185, Oct. T., 1910, by defendant, from order of C. P. No. 1, Phila. Co., Sept. T., 1909, No. 2,690, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Robert L. Montgomery et ah, trading as Montgomery, Clothier & Tyler, v. James G. Lindsay.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule for judgment for want of a sufficient affidavit of defense. ■ '
    The facts are stated in the opinion of the Superior Court.

      Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.

      Clarence Loeb, for appellant,
    cited: Cope v. Dodd, 13 Pa. 33; Evans v. Waln, 71 Pa. 69.

      W. W. Montgomery, Jr., for appellee,
    cited: Horton v. Morgan, 19 N. Y. 170; Whitehouse v. Moore, 13 Abb. Pr. (N. Y.) 142; Taylor v. Bailey, 169 Ill. 181 (48 N. E. Repr. 200); Boyle v. Henning, 121 Fed. Repr. 376.
   Opinion by

Head, J.,

It is conceded that the defendant gave to the plaintiffs, who were regular brokers on the stock exchange at Philadelphia, an unconditional order to sell certain shares of stock when the market price of the stock would reach $10.00 per share. It is further agreed that on August 30, 1909, for the first time after the receipt of said order, the market price of the stock rose to the price designated, to wit, $10.00 per share. The plaintiffs, in obedience to the order of the defendant, promptly sold the stock at the price named and have accounted for the proceeds of that sale.

It further appears that on the day of the sale a dividend had been declared by the directors of the company which was to be payable on the fifteenth of the following September to the stockholders of record on August 31. Whether actual notice of the declaration of such dividend came to the plaintiffs before or after they had made the sale is a question that may be said to be in issue between the parties, but we regard it as immaterial.

When the defendant gave the order to sell he did not turn over his stock certificate to the plaintiffs. As a consequence, when they sold the stock on August 30, they were unable to make an actual delivery of the certificate duly assigned to the purchaser. But under, the rules of the stock exchange, as well as under the obligations of good faith in the transaction, the sale was out and out and transferred to the purchaser every right of the holder of the stock. It is not material that the defendant did not know these rules and regulations, if such be the fact. He did know that the agents he had selected to sell his property were regular brokers on the stock exchange, and he must have known that they would be advised of the regulations of the body of which they were members and would be bound by them. Their knowledge in this respect was his knowledge.

As the defendant declined to deliver the stock until after August 31,1909, he continued to appear on the books of the company as the owner of the stock on that date and entitled to receive the dividend. It was therefore paid to him and he has since retained it.

The plaintiffs, however, in order to make good to their purchaser their contract of sale, and to retain their status as members in good standing of the stock exchange, were obliged to pay over to their purchaser out of their own pockets the amount of this dividend, and they now sue the defendant to recover this sum.

There is no averment in the affidavit of defense to show that the stock ever rose to any price above $10.00 per share, nor to rebut the natural inference that it was because of the public expectation of such dividend that the rise in price from $8.00 to $10.00 per share occurred. There is nothing to impugn in any way the good faith of the plaintiffs in following the orders they received. Had they failed to sell the stock at that price, they might have rendered themselves liable to an action by the defendant had the price subsequently fallen.

We are of the opinion that the learned court below was right in holding that the affidavit disclosed no legal defense to the meritorious claim of the plaintiffs, and there is no general principle of law involved in the case that would warrant any further discussion of it here.

Judgment affirmed.


author: Rice, P. J.,

text:
    Frick & Lindsay Company v. Maryland, Pennsylvania, Etc., Company, Appellant.

      Action — Cause of action — Place of business — Sale—Vendor and vendee.

    1. Where a vendee of goods agrees to pay for them thirty days after delivery, and no place is mentioned for the payment it is the duty of the vendee to go to the vendor’s place of business and tender payment, and if he fails to do so a cause of action arises in the county of the vendor’s domicile. Interest on the principal debt must be regarded as of the same nature in so far as the cause of action is concerned.

      Actions — Courts—Jurisdiction—Cause of action.

    2. The scope of the Act of July 9, 1901, P. L. 614, is limited to a regulation of service only, and applies not only to domestic but to foreign corporations. .
    3. In the act of 1901, the words “county wherein it (the writ) was issued,” and “ county where the cause of action arose,” mean county wherein the writ was legally issued and county where the location of property or business gave jurisdiction to the courts under the existing law.
    4. A writ issued in one county and served upon a foreign corporation in another county will be quashed, where it appears that the defendant company transacted no business in the county in which the writ was issued, and had no property, agent or place of business in that county.

      Appeals — Final order — Interlocutory order — Quashing writ.

    5. Where the court discharges a rule to quash a writ against a foreign corporation, the defendant does not lose its right to appeal from such order because it permits a final judgment to be entered against it for want of an affidavit of defense.
    Argued April 25, 1910.
    Appeal, No. 116, April T., 1910, by defendant, from order of C. P. No. 4, Allegheny County, Second Term, 1908, No. 1,007, discharging rule to quash writ in case of Frick & Lindsay Company v. Maryland, Pennsylvania & West Virginia Telephone & Telegraph Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Rule to quash writ.
    The opinion of the Superior Court states the case.

      Error assigned was the order discharging the rule to quash the writ.

      M. J. Hosacle, with him Geo. M. Hosack, for appellant.
    The company is not engaged in business in the county of Allegheny, and has no property located in the' county of Allegheny. That this is sufficient cause for setting aside the service is clearly shown in the case of Park Brothers & Co. v. Oil City Boiler Works, 204 Pa. 453.
    Section two, clause h of the Act of April 23, 1903, P. L. 261, has not extended the jurisdiction over corporations: Ludlow v. Valley Coal & S. Co., 13 Pa. Dist. Rep. 691; Chester v. Phila. & D. St. Ry. Co., 9 Del. Co. 352.
    On the question of service we also refer to Western Pennsylvania Fuel Co. v. Rogers, 14 Pa. Dist. Rep. 310; Matthews v. Morris Glass Co., 14 Pa. Dist. Rep. 399; Larzelere Machine Co. v. Younken-Merriman Co., 12 Pa. Dist. Rep. 593; White v. Heyl & Patterson, 15 Pa. Dist. Rep. 634; O’Neill v. Phila. Rapid Transit Co., 14 Pa. Dist. Rep. 502; Edelstein v. Del. Co. & Phila. Elec. Ry. Co., 19 Pa. C. C. Rep. 95; Elk Flint Bottle Co. v. Lockwood, 34 Pa. C. C. Rep. 56.
    We do not find that the phrase “where the cause of action arose” has been passed upon in Pennsylvania, except as quoted in Park Brothers & Co. v. Oil City Boiler Works, 204 Pa. 453. The following, however, are cited: Durham v. Spence, L. R. 6 Ex. Cas. 46; Jackson v. Spittall, L. R. 5 C. P. 542; Hibernia Nat. Bank v. Lacombe, 84 N. Y. 367.

      W. K. Jennings, with him D. C. Jennings, for appellee.
    The case of Park Brothers refers to the second section of the act of 1901, which evidently applies to Pennsylvania corporations, but does not construe sec. 5 of the act of 1901.
    Defendant’s petition avers that it is a foreign corporation doing business in the state of Pennsylvania, and we contend the service was therefore proper: Sattler & Co. v. Machinery Co., 6 Pa. Dist. Rep. 419; Kennedy v. Ins. Co., 165 Pa. 179.
    The right of action of the appellant accrued as soon as payment became due, not because the appellee had failed to pay, but because it owed the money to the appellant: Ivey v. Kern County Land Co., 115 Cal. 196; Fidelity Mut. Life Assn. v. Harris, 94 Texas, 25; Commonwealth Mutual Fire Ins. Co. v. Knabe, etc., Mfg. Co., 171 Mass. 265; Ludlow v. Valley Coal & Stone Co., 30 Pa. C. C. Rep. 389.

      November 21, 1910:
   Opinion by

Rice, P. J.,

This is an appeal from an order discharging defendant’s rule to show cause why service of summons should not be set aside and writ quashed. As shown by the return, the writ was served by the sheriff of Fayette county (who was deputized by the sheriff of Allegheny county for the purpose) in the manner provided by sec. 5 of the Act of July 9, 1901, P. L. 614. The defendant’s petition upon which the rule to show cause was granted alleged that the defendant is a corporation chartered under the laws of the state of West Virginia, duly licensed to do business in Pennsylvania and having its principal office and place of business in the borough of Uniontown, county of Fayette, state of Pennsylvania; that all of the business of the corporation is transacted and all its property is situated in the counties of Fayette and Westmoreland; that it transacts no business in the county of Allegheny and has no property, agent or place of business in that county; and that the cause of action did not arise in that county. The only conflict' between the petition and the answer is as to the county where the cause of action arose, and as to that the averment of the answer is that it arose in Allegheny county, “as shown by plaintiff’s statement of claim and the depositions on file.” From the statement of claim and the depositions it appears that the plaintiff is a corporation organized under the laws of the state of New Jersey and duly qualified to do business in Pennsylvania; that its principal place of business was in Pitts-burg and its principal business was the selling of Roebling wire products; that the action was brought to recover interest on several invoices of goods, orders for which, with one exception, were given by the defendant to the plaintiff at the latter’s place of business in Pittsburg; that the plaintiff bought the goods to fill the orders from the manufacturers in New Jersey and had them shipped direct from the place of manufacture to the defendant at divers places in Fayette county designated by it; and that the terms of payment upon which the several invoices of goods were ordered and delivery thereof was accepted were thirty days net.

So far as concerns the question as to where the cause of action arose, the interest upon each invoice after the principal sum became due, must be regarded as being of the same nature as the principal debt. Thus viewing the case, it will be noticed that the cause of action was not the breach of an obligation to accept goods at the place agreed upon for delivery or to. pay for the same at the time and place of delivery. The defendant’s duty to pay did not become complete until the expiration of thirty days, and, as no place for payment was expressly agreed upon, it was not the plaintiff’s duty to go to the defendant’s place of business to receive payment, but the defendant was in default in not making payment at the plaintiff’s place of business. As to contracts the view has been expressed that the cause of action arises or .originates in the contract itself, and not merely in a breach of the obligation which it creates; while another view that has been maintained in well considered cases is, that whatever be the form of action, the breach of duty is substantially the cause of action. Whichever view be adopted, we think it could not be said, if the defendant were a natural person, that upon the defendant’s default a cause of action did not arise in Allegheny county, wherein the contract was made and the plaintiff’s place of business was situated, of which the courts of that county would have jurisdiction.

It is contended, however, that, notwithstanding the provisions of the act of 1901, no suit was authorized against the defendant corporation except in a county where the corporate property was in whole or in part situated, or where it transacted a substantial part of its business. If this were a domestic corporation, and the action had been instituted prior to the act of 1903, this contention would be sustained by Park Bros. Co. v. Oil City Boiler Works, 204 Pa. 453. After directing attention to the general common-law rule that a corporation could only be sued in the territorial jurisdiction where it had its legal domicile, and that was where it had its chief place of business, and declaring that any exceptions to it must rest on clear statutory authority, Justice Mitchell cited certain sections of the act of 1901 and said concerning them: ‘ ‘ These are the only portions of the act bearing upon the present inquiry, the others merely varying the allowable kinds of service under different circumstances. All of them relate solely to methods of service. No direct reference is made anywhere to the jurisdiction of the courts, nor is any such intent discoverable in the title. The only phrases from which such intent could be even remotely inferred are in sec. 2, above quoted, that the sheriff may serve the writ 'in the county wherein it is issued/ and the provision in clause (f) for service where the corporation has no office or place of business in actual operation 'in the county where the cause of action arose.’ Those are altogether insufficient to turn an act whose title and plain general purpose relate solely to methods of service, into one making substantial changes in the jurisdiction of courts and the liability of corporations to be sued. The words, 'county wherein it is issued/ and 'county where the cause of action arose/ mean county wherein it was legally issued, and county where the location of property or business gave jurisdiction to the courts under existing law.” It is true that the jurisdiction of the courts over actions against foreign corporations was not directly under consideration in that case, but it is also true that in the decision of the question there before the court the general scope of the act was necessarily involved. Therefore, the construction which defines and limits its scope to a regulation of service only, is of general application and must be regarded in every case where the same general question arises. This was the view taken in the later case of Excelsior Saving Fund v. Cochran, 220 Pa. 634, where Mr. Justice Stewart, speaking for the court, treats the case from which we have quoted as deciding “that the act of July 9, 1901, was without reference to the jurisdiction of the courts, and was a regulation of service only.” It becomes necessary then to inquire whether upon the facts heretofore referred to, the courts of Allegheny county would have had jurisdiction of the action under existing laws and independently of the act of 1901. Section 3 of the Act of March 21,1849, P. L. 216, declares, inter alia, that in the commencement of any suit against any foreign corporation, the process may be served upon any officer, agent or engineer of such corporation, either personally or by copy, or by leaving a certified copy thereof at the office, depot or usual place of business of the corporation. This section, it will be noticed, relates to the service of process only and does not clearly and unequivocally give the right to sue a foreign corporation in any county where an officer, agent or engineer thereof may be found, without regard to the county where the corporation transacts its business or its corporate property is situated. In other words, it does not abrogate the common-law rule referred to in Bailey v. Williamsport, etc., R. R. Co., 174 Pa. 114, and Park Bros. v. Oil City Boiler Works, 204 Pa. 453. We come then to sec. 6 of the Act of April 8, 1851, P. L. 353, which provided that “in any case where any insurance company or other corporation shall have an agency or transact any business in any county of this commonwealth, it shall and may be lawful to institute and commence an action against such insurance company or other corporation in such county” etc. In Cochran v. Library Company, 6 Phila. 492, Judge Sharswood, in a thoroughly considered opinion held that the section applied only to foreign corporations, and this we believe has been the generally accepted view. But as to a foreign corporation, it clearly gave jurisdiction to the court of the county wherein it transacted its business. A fortiori, the court would have jurisdiction of a cause of action that arose out of the transaction of its business in the county where suit was brought if proper service could be made. See Phillips v. Library Co., 141 Pa. 462, and Allentown v. Ackerman, 37 Pa. Superior Ct. 363. The difficulty in the way of applying this act to the case in hand is that it is undisputed that the defendant transacted no business within the meaning of the act in the county of Allegheny, and had no agency or place of business in that county: Parke v. Commonwealth Insurance Co., 44 Pa. 422. Nor does the Act of April 22, 1874, P. L. 108, which was enacted to carry into effect sec. 5, art. XVI of the constitution, help the case. That act provides that no foreign corporation shall do any business in this commonwealth until it shall have established an office or offices, and appointed an agent or agents for the transaction of its business therein, but it makes no declaration as to where action shall be brought against the corporation that has complied with these provisions. It is quite different from the Act of June 20, 1883, P. L. 134, requiring foreign insurance companies to .appoint a state agent upon whom process can be served, and hence, we are unable to conclude that the doctrine of Kennedy v. Agricultural Insurance Co. of Watertown, 165 Pa. 179, is applicable to the question before us. We have an authoritative declaration that the words "county where the cause of action arose” in sec. 2 of the act of 1901, are not to be taken in their broadest sense, but are to be interpreted in the light of existing laws relative to the place of bringing action against corporations. We are not convinced that a different interpretation is to be given to the same words as used in sec. 5, or that under existing law and the facts of this case the defendant would have been suable in Allegheny county independently of the act of 1901.

As to the propriety of the method of raising the question by motion to set aside the service and quash the writ, we refer to Park Bros. & Co. v. Oil City Boiler Works, 204 Pa. 453. It is suggested that the defendant is concluded because after its rule was discharged it interposed no further obstacle to final judgment. We are unable to adopt this view. If the defendant had brought the case here before final judgment, the objection might perhaps have been made, that the appeal was from an interlocutory order. At any rate, we cannot see that the defendant waived any of its rights by permitting the case to go to final judgment before appealing.

The order discharging the defendant’s rule is reversed; the rule is made absolute; the writ is quashed, and the service and all proceedings subsequent thereto are reversed and set aside.


text:
    Sharon Borough v. Pennsylvania Company, Appellant.

      Road law — Street—Public street — Evidence.
    1. A finding that a street was in fact a public street is sufficiently sustained by evidence which shows that it had so appeared on all the official maps and plans of the borough in which it was situated from the earliest times; that it was so designated in conveyances by property holders along its line; that it had been used continuously for fifty years as a street, and that public water plugs or fire hydrants had been located within its lines.

      Road law — Street—Obstruction of street — Boroughs.
    2. Where a street in a borough has been dedicated and accepted as a public street, it cannot subsequently be obstructed either by the borough itself, or by anyone acting with the consent of the borough. It may be vacated by proper legal proceedings but it cannot be obstructed.

      Road law — Boroughs—Railroads—Crossing streets — Laches.

      . 3. Section 12 of the general railroad Act of February 19, 1849, P. L. 79, relating to the crossing of public highways by railroads, is not restricted to rural highways, but applies to public streets in boroughs and cities.
    4. Where a railroad has constructed an embankment across a public street of a borough so as to obstruct the street, laches cannot be imputed either to the commonwealth, or to the officers of the borough in which the street is situated, in permitting the obstruction to continue for a long period of time.
    Submitted May 9, 1910.
    Appeal, No. 138, April T., 1910, by defendant, from decree of C. P. Mercer Co., Jan. T., 1906, No. 3, on bill in equity in case of Sharon Borough v. Pennsylvania Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Bill in equity for an injunction. Before Williams, P. J.
    The opinion of the Superior Court states the facts.
    The court entered the following decree:
    And now, December 6, 1909, this cause came on to be further heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows:
    That the Pennsylvania Company shall, on or before February 1, 1910, submit plans and specifications to the plaintiff, the borough of Sharon, for the construction of a suitable undergrade passageway under the tracks of the defendant company where said tracks cross Franklin street in the borough of Sharon; which plans and specifications shall provide for a passageway fifty feet in width with sufficient clearance to permit of a thirty-four foot passage for wagons and other vehicles, with an eight-foot sidewalk on either side; said passageway to be suitably roofed, banked and paved for such distance as the same shall be below the present level of Franklin street, with drainage provided from the lowest part of the roadway.
    That upon approval by the borough of Sharon of plans and specifications as above decreed, the defendant company shall forthwith commence and pursue to completion as speedily as possible and in good and workmanlike manner, such undergrade crossings.
    And it is further ordered that the defendant, the Pennsylvania Company, pay the costs, including the master’s fee.

      Error assigned was the decree of the court.

      S. R. Mason, for appellant.
    We submit, therefore, that the plaintiff is forever barred by its laches, from maintaining a bill in equity, which is never of right, but solely of grace: Murray v. Playford, 192 Pa. 24; Kelly’s Est., 37 Pa. Superior Ct. 320; Keeling v. Ry. Co., 205 Pa. 31; Hinnershitz v. Traction Co., 206 Pa. 91.
    November 21, 1910:
    The case of Bradford v. New York & Pennsylvania Telephone & Telegraph Co., 206 Pa. 582, is so nearly on all fours with the case at bar, that we submit this case is governed by it. See also Maust v. Ry. Co., 219 Pa. 568; Juan F. Portundo Cigar Mfg. Co. v. Mfg. Co., 222 Pa. 116; Kelly’s Est., 37 Pa. Superior Ct. 320; Good v. Queens Run Fire Brick Co., 224 Pa. 496.
    The twelfth section of the general railroad law of 1849 has no application: Dubbs v. R. R. Co., 148 Pa. 66.

      Horace W. Davis and James A. McLaughry, for appellee.
    It is well settled that the statute of limitations runs not against the commonwealth: Com. v. McDonald, 16 S. & R. 390.
    We believe that the case of the City of Pittsburg v. Epping-Carpenter Co., 194 Pa. 318, rules the present case.
    A municipality holds the title of its streets in trust for the public: Callen v. Electric Light Co., 66 Ohio, 166.
    Public rights cannot be destroyed by long continued encroachment: Com. v. Baldwin, 1 Watts, 54; Com. v. Alburger, 1 Whart. 469; Kopf v. Utter, 101 Pa. 27; Del., L. & W. R. R. Co. v. Buffalo, 158 N. Y. 266; Cleveland v. Augusta, 102 Ga. 233; Kittanning Academy v. Brown, 41 Pa. 269; Platt v. Platt, 58 N. Y. 646.
   Opinion by

Head, J.,

The bill filed by the plaintiff borough complains that the defendant company has so constructed its line across one of the public streets of the said borough as to totally obstruct and impede the public travel thereon. -Against the relief prayed for the defendant interposes several distinct lines of defense.

1. It is first contended that Franklin street, referred to in the bill, never was a public street of the said borough. The report of the referee to whom the case was first sent, in this respect adopted by the learned trial court, effectually disposes of this contention adversely to the defendant. Whilst it is true that the evidence discloses no formal ordinance of the borough laying out or opening this street, it is ample to support the conclusion reached by the referee and the court. It appears that from the earliest days of the existence of the borough this street has been continuously shown on all of its official maps and plans. It was widely, if not universally, recognized during a long period of years as a public street in the conveyances of property holders whose land abutted on its lines. It has been continuously used for a half century by the public, save in so far as that use was impeded by the obstruction complained of. Public water plugs or fire hydrants were located within its lines. All of this evidence was, in our judgment, entirely sufficient to sustain the conclusion reached,, and the first line of defense was therefore unavailing.

2. It is further contended that the embankment complained of was at least authorized, if indeed it was not required, by certain ordinances of the borough offered in evidence. The learned trial court, after a careful examination of all of them, points out that in no one of them was Franklin street mentioned or referred to. He further finds that a compliance with the ordinances fixing the grade of the railroad at other streets mentioned therein would not necessarily result in the grade complained of at Franklin street, and there is testimony which, although controverted, would sustain this conclusion. And this apart from any application of the legal principle that when Franklin street became a public highway it was dedicated to the use, not merely of the citizens of the municipality, but of all of the people of the commonwealth, and as a consequence it would not be competent for the borough council to authorize its total obstruction. It is not denied, of course, that the legislature, representing all of the people, has invested the municipal authorities with the right to vacate an existing public highway in the manner prescribed by law, but it is sufficient to say that no effort to bring about such vacation was ever made by the defendant company and no steps to accomplish it were ever taken by the borough authorities. We are therefore of opinion that in this respect the conclusion reached by the learned court was right.

3. The proposition most seriously pressed upon us by the able counsel for the defendant is, that whatever rights the borough might have had at an earlier date to complain of this obstruction have been lost by the laches of its officers in filing this bill.

The charter powers of the defendant company are those conferred on like companies by the general Act of February 19,1849, P. L. 79. In sec. 12 of that act the legislature carefully qualified the general right given to companies organized under it to construct their lines across public highways. It provides, “That whenever in the construction of such road (railroad) it shall be necessary to cross or intersect any established road or way, it shall be the duty of the president and directors of the said company to so construct the said road (railroad) across such established road or way as not to impede the passage or transportation of persons or property along the same.”

Giving to this section the meaning its language plainly and naturally imports, it would seem clear enough that any railroad whose charter rights were conferred by this act would be acting beyond its. granted, powers and would be doing an unlawful and forbidden thing in attempting to so carry its line across a public highway as to totally obstruct the travel thereon. The able counsel for the appellant seeks to escape this conclusion by arguing that the provision of the act quoted was intended to apply only to rural highways. We are unable to agree with him in his contention that the case of Dubbs v. Philadelphia & Reading Railroad Co., 148 Pa. 66, furnishes authority to support his argument. It is true that in that case the Supreme Court used the following language: “The plain object of the act of February 19, 1849, was to compel railroad companies to give the owners of farms a convenient mode of access from one part to the other when divided by a railroad,” etc. It is to be remembered that in that case the court was dealing only with a rural highway and was construing the act with reference to the obligations of a railroad company in dealing with such a highway. To draw from this language the conclusion that it was therein determined that there was no such limitation upon a railroad company crossing a public street in a borough or city is, we think, a wholly unwarranted inference. It would be anomalous to suppose that the legislature was so careful to conserve the rights of the public in the highways of the state only where the population was sparse and the travel light, and at the same time to assume that it gave to railroad companies the unqualified right to obstruct other public highways where the population was dense and the public necessity for a highway was increasingly urgent and imperative. We conclude therefore that the act of the present defendant in so constructing its line across Franklin street in the plaintiff borough was an act outside of its charter rights.

As we have already seen, when Franklin street became a public street of the plaintiff borough, it was dedicated to the public use of the citizens of the commonwealth. The obstruction of such a street is a public nuisance. Had the defendant been indicted for maintaining such a nuisance, it is not easy to see how it could have successfully pleaded the fact that it had maintained such nuisance for a long period of years as a good foundation for its right to continue to maintain it indefinitely. It is a principle of law as old as the maxim, nullum tempus occurrit regi, that a public right, when established and in full being, cannot be lost by mere lapse of time.

In Commonwealth v. Erie & North-East Railroad Company, 27 Pa. 339, a case in many respects resembling the one before us, Mr. Chief Justice Black used the following language: “It cannot be that the defendants were misled by the people or their officers, for they must have known that a city ordinance could not authorize what an act of the legislature forbade. No laches can legally be imputed to the commonwealth, and in point of fact, she has been guilty of no unfairness. She spoke her will plainly in the act of incorporation, and gave it to the defendants to be a guide to their feet and a lamp to their path. They disregard it. The- attorney general proves the fact, and stands up for judgment. ' We cannot refuse what law and equity demand.”

In City of Pittsburg v. Epping-Carpenter Company, 194 Pa. 318, the Supreme Court quoted and approved the following language of the learned trial judge: “In Pennsylvania a highway is the property of the people, not of a particular district, but of the whole state. . . . When the public right has been acquired, it cannot be lost by nonuser or by municipal action not expressly authorized by law. Any occupation of the property inconsistent with the public right is a nuisance, and no length of time will legalize a public nuisance. ’ ’ The same principle is strongly stated by Mr. Justice Gordon in Kopf v. Utter, 101 Pa. 27, and is reiterated in a long line of cases familiar to the profession.

We are not to be understood as holding that, in a proceeding in equity, laches may not be imputed even to the commonwealth under certain circumstances; but that the cases where the commonwealth or its representatives should be denied relief on this ground are rare, is sufficiently indicated in the following quotation from the opinion of Mr. Justice Brown in Bradford v. Tel. & Teleg. Co., 206 Pa. 582: “While the authorities with us are not numerous in holding that laches may be imputed to the commonwealth and municipalities in denying them equitable relief which might otherwise be granted, the rule that it can be imputed to the public is clearly laid down in several cases,”' etc. An examination of the cases relied on by the appellant to support its conclusion that the present plaintiff should be denied relief will show that they are clearly distinguishable from the case before us, and the one last cited is well adapted to illustrate the distinction. In that case the erection of the poles and wires of the defendant company in the streets of the plaintiff borough was an act fully authorized by its charter. The legislature had conferred upon the municipality the express right to give its assent to such construction, and when that assent had been given and the company, on the faith of it, had invested large sums of money in the construction of its lines, its right to the possession and enjoyment of its property was as thoroughly and securely protected by the laws as the right of any private citizen to possess and enjoy the property he had bought and paid for. Moreover, had the claim of the borough in that case been sustained, it would have resulted in the absolute destruction of the defendant’s physical property, in greatly impairing, if not extinguishing the franchises conferred upon it by legislative grant, or, in a word, it would have been a confiscatory act, and this would have happened in the face of the fact that by repeated acts of the most significant character the municipality had assented to the construction of the defendant’s line, had derived benefit from it by taxation and otherwise, as pointed out by the court, and in doing so had but exercised a power expressly conferred upon it by the legislature.

In the present case the most that the defendant can urge is that municipal authority was given to it to build its line across Franklin street. In the light of its own charter it had no right to construe such a grant as conferring upon it the right to close and totally obstruct a public street of the borough.

But there is an additional reason why the present plaintiff should not be denied the relief prayed for merely on account of lapse of time. It is clear from the testimony that when the railroad was originally constructed it carried its tracks across Franklin street on an embankment. As to the height of this embankment, as originally constructed, the testimony is in some conflict. The defendant itself, by its own engineer and chief witness, who had before him what he declared to be the original drafts and plans of construction, testified that the embankment from the very outstart was nine feet above the level of the street. At the present time it is but ten feet. The decree of the court below requiring the defendant to carry the street under its right of way but compels it to do now what it should have done originally. It is not apparent that the expense of so doing will be proportionately greater now than it would have been then. Much less does it appear that the execution of this decree will destroy any property of the defendant, will in any way interfere with the use and enjoyment of its franchises, or that it could by any stretch of the imagination be declared to be confiscatory in its nature.

Without attempting to follow the learned trial court through every phase of the lengthy and able opinion with which he supports his conclusion, we think we have sufficiently indicated the reasons why his decree should stand.

Decree affirmed.


text:
    Oakdale Borough.

      Boroughs — Relocation of water course — Culvert—Damages—Benefits— Line of improvements — Act of April 28,1899, P. L. 74-

    Where a borough in proceedings under the Act of April 28, 1899, P. L. 74, vacates a portion of a stream in a borough, and substitutes for it a new channel, properties abutting on the stream above the line of the improvement, cannot be assessed for benefits, although they may have been indirectly benefited by the improvement.
    Argued May 10, 1910.
    Appeal, No. 147, April T., 1910, by Oakdale Borough, from order of C. P. No. 2, Allegheny Co., Oct. T., 1909, No. 628, sustaining exceptions to viewers’ report In re Petition of Oakdale Borough for the Appointment of Viewers.
    November 21, 1910:
    Before Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of viewers. Before Shaper, J.
    The facts are stated in the opinion of the Superior Court.

      Errors assigned were in sustaining exceptions to report of viewers.

      T. C. Patterson, of Patterson, Sterrett & Acheson, with him J. F. Wallace, for appellant,
    cited: In re Morewood Ave., 159 Pa. 20; Park Ave. Sewers, 169 Pa. 433.

      Frank W. Stonecipher, with him John M. Ralston, for appellees,
    cited: Harriott Ave., 24 Pa. Superior Ct. 597; Orkney Street, 9 Pa. Superior Ct. 604; Grafius’s Run, 31 Pa. Superior Ct. 638.
   Opinion by

Head, J.,

The Act of April 28, 1899, P. L. 74, is one of a series of acts dealing with what has been generally termed municipal improvements. It is characteristic of this legislation that in the construction of such improvements the municipalities are authorized and empowered to charge the costs of all or an ascertained part of the improvement upon a certain class of real property as distinguished from the remaining taxable real estate in the community. The nature of this power and the extent of the class of property, as to which it might be lawfully exercised, were defined and declared by the Supreme Court in many well-known cases prior to the passage of the act of 1899 referred to.

In all of these acts prior to the one in question the properties to be charged were described by the legislature as those benefited or peculiarly benefited by the proposed improvement. In interpreting this legislative language the courts have declared that only the properties which actually abutted on the line of the improvement could be assessed with any portion of the costs thereof.

When the legislature in 1899 enacted the act now under consideration it used substantially the same language to describe the properties to be assessed as had been used in the earlier acts and had been interpreted by the courts. We must therefore conclude that it was the legislative intent that the properties to be assessed under the act of 1899 should be those, and those only, which actually abutted on the line of the improvement authorized by that act.

What then was the improvement in the present case which was made by the appellant borough under the authority of the act of 1899? This must be determined by an inspection of the ordinance authorizing and describing the work to be done. It appears from the record that an unnamed run or creek ran in its natural channel for a considerable distance along Union avenue, one of the streets of the borough of Oakdale. We are not informed as to the entire length of the stream nor the distance along Union avenue traversed by it beyond what is shown in the plot attached to the record. On both sides of the stream, so far as the plan shows, the land had been divided into lots, many of which were improved with dwellings. Union avenue as its northern termination had the railroad station of the P., C., C. & St. L. Railroad, which road at this point runs generally in an east and west line. A short distance north of the railroad and parallel with it is a stream of some size called Robinson’s run. When the small stream first mentioned reached a point on Union avenue farther north than the properties of any of the appellees it turns sharp to the right and for a distance of some hundreds of feet follows a meandering course eastward, with but little if any fall, until it finally empties into Robinson’s run aforesaid. From natural causes the flow of this stream near its mouth became easily obstructed, and this would result in more or less backwater farther up the stream.

Now the ordinance of the appellant borough conclusively shows that the improvement which was authorized by the borough councils, and which was actually constructed, consisted of two things: (a) the vacation of all that portion of the channel of the said stream between its mouth and the point on Union avenue where it turned sharply to the east, this point being accurately described in the ordinance; (b) in substituting therefor a new channel starting at the same point last described and extending almost due north along Union avenue to and under the railroad tracks and then into Robinson’s run.

The ordinance mentions no portion of the stream south of its turning point last described and provided for no work whatever to be done along the line of the stream where the properties of the appellees abut on it or on Union avenue in which its channel was located.

It seems clear enough to us, therefore, that if we are to follow the uniform decisions of the Supreme Court, we must conclude that the only properties which could be lawfully assessed with any portion of the cost of the improvement made by the appellant borough are those which abutted on the line of the improvement; that this improvement, as the ordinance declares, consisted of the vacation of the portion of the stream already described and the substitution for it of the new channel already adverted to; that the properties of the appellees which were sought to be charged with benefits by the report of the viewers did not abut on the line of the proposed improvement; that although they, like all other riparian owners above them, may find it to their advantage to have had the stream near its mouth traverse a straight and unobstructed channel rather than the tortuous and difficult one it had theretofore taken, such advantage did not bring these properties within the class of those peculiarly benefited by the improvement as that expression has been defined by the courts.

Were it competent for the legislature, unhampered by constitutional restrictions, to assess with benefits an}' property which a board of viewers might determine was even indirectly benefited by a municipal improvement, the argument of the able counsel for the appellant addressed to the legislative power would have much force. If, however, we were to adopt this reasoning it would result in giving to the act of 1899 a construction radically different from that given by the Supreme Court to the earlier acts, which are in pari materia and which use substantially the same language as the act in question describing the class of properties that could be assessed.

We are of opinion, therefore, that the learned court below was right in sustaining the exceptions of the appellees and in setting aside the report of the board of viewers to that extent.

Judgment affirmed.


author: Morrison, J.,

text:
    Commonwealth v. Simon, Appellant
    (No. 1).

      Appeals — Assignment of errors — Answer to point.

    1. An appellate court will not consider an assignment of error to an answer to a point, where the assignment, although containing the point, does not quote the answer totidem verbis.

      Criminal law — Accomplice—Evidence.
    2. On the trial of an indictment for crime the court is not bound to instruct the jury to acquit the defendant when the commonwealth relies on the testimony of accomplices alone; but it is proper for the jury to be advised that it is not safe to convict a defendant upon the uncorroborated testimony of accomplices.
    3. If two or more accomplices are produced as witnesses, they are not deemed to corroborate each other.

      Practice — Trial—Continuance—Selection of jury — Presence of defendant.

    4. A trial judge cannot be convicted of error in a criminal case on the ground that he refused to continue the case because of the absence of defendant when the jury was selected, where it appears that the defendant was present on the morning of the day of the trial, that he voluntarily left the court room, leaving his counsel in the room, that he returned before the jury was fully chosen or sworn, made no objection to any juror, and was not deprived of any right to challenge.

      Criminal law — Jury—Locking up jury — Discretion of court.

    5. The question of keeping the jury in a criminal case together and in charge of an officer of the court rests in the discretion of the trial judge, and in the absence of any abuse of discretion the action of the court in keeping the jury together is not error.

      Criminal law — Evidence—Cross-examination.
    6. On the trial of an indictment for crime, where the commonwealth relies largely upon the evidence of a particular witness, such witness may be asked on cross-examination for the purpose of showing motive and impeaching his credibility, whether he had not stated prior to the trial that he could make money by testifying as he had done.
    Argued Oct. 4, 1910.
    Appeal, No. 48, April T., 1911, by defendant, from judgment of Q. S. Allegheny Co., March Sessions, 1910, on verdict of guilty in case of Commonwealth v. A. V. Simon.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for bribery. Before MacFarlane, J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-10) various rulings and instructions which sufficiently appear by the opinion of the Superior Court.

      Edmond Englert, with him John N. Piatt, for appellant.
    From time immemorial, it has been held that the testimony of two or more accomplices should be corroborated by other material evidence: Com. v. Craig, 19 Pa. Superior Ct. 81; Com. v. Clemmer, 190 Pa. 202; People v. O’Farrell, 175 N. Y. 323.
    The court erred in compelling defendant’s case to be proceeded with as far as the exhausting of all challenges except one in the absence of the defendant: Com. v. House, 6 Pa. Superior Ct. 92; Prine v. Com., 18 Pa. 103;
    It was error to lock up the jury: McCreary v. Com., 29 Pa. 323.
    If Klein made a statement to James McCaig, ’Squire Kirby and defendant, Simon, it is certainly evidence for the jury to consider in connection with the truthfulness of Klein’s testimony: Batdorff v. Farmers’ National Bank, 61 Pa. 179.
    November 21, 1910:

      Richard W. Martin, with him W. A. Blakeley and Warren I. Seymour, for appellee.
   Opinion by

Morrison, J.,

The defendant was indicted in the quarter sessions of Allegheny county on a charge of corruptly soliciting and receiving from John F. Klein $81.10 for his influence and vote as a member of council of the city of Pittsburg in securing the passage of an ordinance vacating South Seventh street. The defendant was also indicted on a charge of corruptly soliciting and receiving from John F. Klein the sum of $325 for his influence and vote as a member of council of the city of Pittsburg in favor of the passage of a certain ordinance directing the mayor to enter into contracts with certain banks of the city of Pittsburg for the deposit therein of the funds of said city. These indictments were tried together under Nos. 370 and 460 of March sessions, 1910, and the defendant was convicted and sentenced on both indictments. The appeal in No. 47, April Term, 1911, relates to the indictment first above mentioned and the appeal in No. 48, April Term, 1911, refers to the other indictment.

Counsel for appellant states in his history of the case, "But from the time of the calling of the jury, including verdict, until the appeal, both cases were treated as one, but one opinion being filed, and it being impossible to separate the charge of the court relating to one count and that relating to another, so that but one set of assignments of error is made to the rulings of the court.” Manifestly the counsel means indictment instead of count. This opinion will be filed in No. 48, April Term, 1911, but it is intended to apply to both, except as to the eighth and ninth assignments of errnr.

The first three assignments of error are based on three points presented by the defendant’s counsel after the court had finished charging the jury. Because the points were not presented before the charge, as provided by the rule of court in Allegheny county, the learned court declined to read them to the jury, but marked them refused and allowed them to be filed. We think the court was justified in declining the points and under the rule they might have been refused and not filed. In addition to this, the first point does not correctly state the law and the court could well refuse it on the merits. It is not the law that the court must instruct the jury to acquit' the defendant when the commonwealth relies on the testimony of accomplices alone: Com. v. Craig, 19 Pa. Superior Ct. 81. But there is still another reason why the first three assignments are not good. Not one of them quotes totidem verbis what the court said in refusing the same. The Supreme Court will not consider an assignment of error to an answer to a point where the assignment, although containing the point, does not quote the answer totidem verbis: Hall et al. v. Phillips, 164 Pa. 494. This court held the same in Dotterer v. Scott, 29 Pa. Superior Ct. 553. The first three assignments of error are dismissed.

The fourth assignment, as presented to us, contains two paragraphs, purporting to be taken from the charge of the court. The first paragraph evidently relates to the indictment against Klein in regard to South Seventh street. Referring to the charge we think the court sufficiently advised the jury of the rule that it is not considered safe to convict a defendant upon the uncorroborated testimony of accomplices, and that the court also correctly instructed the jury that they had the power to convict on the uncorroborated testimony of' an accomplice, if his testimony satisfied them beyond a reasonable doubt of the defendant’s guilt. Therefore, we do not sustain the fourth assignment in so far as it relates to the indictment in regard to South Seventh street.

The second paragraph is as follows: “As to the second ordinance, there of course, was the testimony of Stewart that he had talked to Mr. Simon before; that he had told him that there would be money in this for him, and he would get more than the others. I think he said he had arranged with him as to the amount, or told him the amount. At any rate, he says he knew that Simon came to his place for the purpose of getting money, and the money had been put in an envelope there, and that is the last he knew of it. He said whether he got the money he could not positively say, but he knew that he had gone, and that the envelope was gone. That, of course, is very positive corroboration, if you believe it.”

It is a conceded fact in the argument that the Stewart above referred to was an accomplice of Klein and the above quotation from the charge raises the very important question of whether one accomplice corroborates another, or, in other words, where two accomplices testify in support of a criminal charge against a third person, can the court say to the jury that one accomplice corroborates the other. We find that many of the text-writers, as well as the authorities in this state, and in several of our sister states, are strongly against the charge of the court to the effect that Stewart’s testimony corroborated Klein.

In 1 Greenleaf on Evidence, sec. 381, it is said: “If two or more accomplices are produced as witnesses, they are not deemed to corroborate each other; but the same rule is applied and the same confirmation is required as if there were but one.” In 3 Wigmore on Evidence, sec. 2059, note A: “It is clear, as to testimonial source of the corroboration, that it must be independent of the accomplice himself; it must rest on other than his credit. It is usually said that the testimony of another accomplice is not sufficient; yet the circumstances may sometimes render it sufficiently trustworthy.” See also Taylor on Evidence, sec. 970; Underhill on Criminal Evidence, sec. 75. In Com. v. Clemmer, 190 Pa. 202, the same doctrine seems to have been recognized by our Supreme Court. In that case the defendant’s thirteenth point was, “The testimony of Elizabeth DeKalb and Charles C. Kaiser, Jr., both being self-confessed accomplices, cannot be considered by the jury as corroborating each other; the testimony of each must stand alone, and it would be unsafe to convict the prisoner on such testimony unless such testimony is corroborated by other facts and circumstances independent of the testimony of both.” The court below so instructed the jury and the opinion of the Supreme Court appears to approve the same.

Our own case of Com. v. Craig, 19 Pa. Superior Ct. 81, clearly recognizes that the testimony of accomplices should be corroborated and if not, then the jury should be advised that it is unsafe to convict on such uncorroborated testimony. In Cox v. Com., 125 Pa. 94, Mr. Justice Paxson, for the Supreme Court, said: “The learned judge below did his full duty, under all the authorities, in cautioning the jury as to the danger of convicting upon the uncorroborated evidence of an accomplice.- He was not bound to instruct them to acquit in the absence of corroboration.” Many additional cases might be cited from other states to the effect that if two or more accomplices are produced as witnesses, they are not deemed to corroborate each other. We, therefore, conclude that the learned judge erred in his instruction to the jury as set forth in the paragraph above quoted from the fourth assignment to the effect that the testimony of Stewart was, of course, very positive corroboration, if you believe it. So much of the fourth assignment as is above quoted is sustained.

’ There is no merit in the fifth assignment. It does not appear that the court compelled the case to be proceeded with in the absence of the defendant. It appears that the defendant was in court in the morning of the day that the jury was selected; that he voluntarily went away and that his counsel was present and assisted in the selection of the jury. Moreover, it does not appear that the defendant or his counsel made known to the court any special objection to any juror. Nor does it appear that the'defendant was deprived of the right to challenge any juror. The defendant came into court before the jury was fully chosen, and before they were sworn. The fifth assignment is dismissed.

The language quoted in the sixth assignment, considered in connection with the whole charge, does not present reversible error and that assignment is dismissed.

The seventh assignment complains that “the court erred in locking up the jury during the entire trial and keeping them under the surveillance of the tipstaff.” The question of keeping the jury together and in charge of an officer of the court during the trial, rested in the discretion of the trial judge, and the record discloses no abuse of discretion in that respect, nor is it made to appear that the defendant was in any manner harmed by the matter complained of in that assignment. The seventh assignment is dismissed.

We think the eighth assignment raises serious error on the part of the court. John F. Klein, witness for the commonwealth, was on the stand. He was a confessed bribe-giver and accomplice of the defendant, if the defendant was guilty of the crimes charged against him. On cross-examination defendant’s counsel asked Klein the following: “I will ask you again if you did not state to ’Squire Kirby and Al. Simon, on a date one week or ten days prior to your confession at the Hotel Fort Pitt, that you could make a bunch of money out of the banks that were turned down if you could, by your testimony or by other means, in this case and others, have the bank ordinance declared illegal?”

“Objected to by the Commonwealth as not cross-examination and already ruled upon.

“By Mr. Piatt: It is asked in a different way now, and for the purpose of contradiction.

“Objection sustained and bill of exceptions sealed to the defendant.

“By Mr. Piatt: I offer it for the purpose of showing motive for the giving of his testimony here, and for the purpose of impeaching his credibility, and for the purpose of contradicting him.

"By the Court: The objection is sustained and bill of exceptions sealed to the defendant.”

When we consider the position occupied by the witness Klein and the circumstances surrounding the case, and the fact that the commonwealth relied on Klein’s testimony to prove that the appellant received the bribe, it is so manifest that the above question was proper and that the court should have overruled the objection and allowed it to be answered for the reasons stated by Mr. Piatt that we feel compelled to sustain the eighth assignment.

The ninth assignment raises substantially the same question as the eighth, the witness on the stand in this instance, however, being ’Squire Kirby. In our opinion, there was manifest error in the court sustaining the objection and excluding the evidence proposed to be offered as set forth in the ninth assignment. Upon a careful examination of the whole record and the arguments of counsel, we find ourselves entirely unable to justify the court in the ruling complained of in the eighth and ninth assignments of error. The ninth assignment is sustained.

We do not discover any merit in the tenth assignment and it is dismissed without discussion.

The judgment in Appeal, No. 48, April Term, 1911, is reversed with a venire facias de novo.


text:
    Commonwealth v. Simon, Appellant
    November 21, 1910:
    (No. 2).
   Opinion by

Morrison, J.,

For the reasons given in the opinion this day filed in Commonwealth v. A. V. Simon, ante, p. 538, we dismiss all of the assignments of error as to this appeal except the eighth and ninth, and they are now dismissed for the reason that they raise no reversible error as to this appeal which relates to the Seventh street ordinance.

It is manifest from an examination of the eighth and ninth assignments of error that the matters therein complained of referred exclusively to the bank ordinance on which the indictment was based, which gave rise to the case appealed to, No. 48, April Term, 1911.

The judgment is affirmed, and it is now ordered that the appellant, A. V. Simon, appear in the court below at such time as he may be there called, and that he be, by that court, committed to serve that part of the sentence which had not been performed at the time this appeal was made a supersedeas.


text:
    Commonwealth v. Swift, Appellant
    (No. 1).

      Practice — Trial—Harmless error.

    1. A conviction in a criminal case will not be reversed because of a slight inaccuracy in the trial judge’s statement of the testimony, where counsel does not call the judge’s attention to the mistake at the time, and the judge in express terms tells the jury to take all the testimony and consider it as they remember it.

      Criminal law — Bribery—Evidence.
    2. On the trial of an indictment for bribery where the commonwealth shows that the defendant received a sum of money from one of the witnesses, such witness may be permitted to testify from what source he received the money.
    3. Where, in such a case, an accomplice testifies that he received the money at a certain house, another witness may testify that he saw the accomplice coming from the house designated with a package.

      Trial — Practice—Keeping jury together.

    4. On the trial of a public officer for bribery it is within the sound discretion of the trial judge to keep the jury together, and such discretion will not be reviewed by the appellate court where there is nothing to show that it was abused.

      Criminal law — Trial—Bill of particulars.

      5. Where a bill of particulars is furnished to a defendant at his request in a criminal prosecution, and the case is then put at issue to be tried on the merits, it is too late at the trial to object to the insufficiency of the bill of particulars.
    Argued Oct. 4, 1910.
    Appeal, No. 51, April T., 1911, by defendant, from judgment of Q. S. Allegheny Co., March Sessions, 1910, No. 463, on verdict of guilty in case of Commonwealth v. M. L. Swift, Jr.
    November 21, 1910:
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for bribery. Before Frazer, J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned were (1-6) various rulings and instructions which sufficiently appear by the opinion of the Superior Court.

      E. Englert, with him Thos. M. and Rody P. Marshall, for appellant.
    In misdemeanors, it is the general practice to permit the jury to separate during the trial: McCreary v. Com., 29 Pa. 323.
    It has been universally held that the bill of particulars must set forth the dates upon which the alleged crime was committed, or evidence relating thereto will not be received: Ledbetter v. United States, 170 U. S. 606; United States v. Adams Express Co., 119 Fed. Repr. 240; Williams v. Com., 91 Pa. 493; Com. v. Bartilson, 85 Pa. 482.

      Warren I. Seymour, with him W. A. Blakeley, for appellee.
   Opinion by

Morrison, J.,

On March 21, 1910, M. L. Swift, Jr., appellant, was indicted at No. 365, March sessions, 1910, for unlawfully and corruptly soliciting, demanding and receiving from John F. Klein the sum of $81.10 for the promise of his vote and official influence, as a member of the common council of the city of Pittsburg, in favor of the passage of a certain ordinance for the vacation of South Seventh street, in the south side of the city of Pittsburg. On' March28,1910, the same appellant was indicted at No.463, March sessions, 1910, for unlawfully and corruptly soliciting, demanding and receiving from John F. Klein the sum of $100 for the promise of his vote and official influence as a member of the common council of the city of Pittsburg, in favor of the passage of a certain ordinance authorizing and directing the mayor to enter into contracts and agreements with certain banks of the city of Pittsburg.

Counsel for appellant say that, “Both of these indictments were treated as one indictment with two counts and were tried at one time at Nos. 365 and 463, March sessions, 1910, and from the time of the calling of the jury until the appeal both cases were treated as one. It is impossible to separate the charge of the court or the opinion with relation to the different indictments or counts, so that but one set of assignments of error is made to the ruling of the court.”

We remark that these appeals grow out of indictments based upon the same ordinances referred to in Commonwealth of Pennsylvania v. A. V. Simon, ante, p. 538, in which appeals to Nos. 47 and 48, April Term, 1911, have been argued at the same term at which the present appeals were argued. A notable distinction between the cases, however, arises from the fact that in the present appeals the commonwealth was able to offer some testimony in each case in corroboration of the principal witness, John F. Klein, and, therefore, we do not have the same question to deal with as to corroboration which was before us in the Simon appeals.

At the trial of the present case the defendant’s counsel presented no points and they asked for no specific instructions, except a request made at or near the close of the charge in regard to the testimony of the transaction at the Monongahela house and upon which the court immediately charged the jury in substance as requested by the counsel.

The six assignments of error found in the record have been examined with care, and we have carefully read and considered the charge of the court, and we are not able to reach the conclusion that the assignments of error, or any of them, call for a reversal of the judgment in either appeal.

The first assignment consists of an excerpt from the charge. But we regard the charge as adequate and full and we cannot agree that the portion of it quoted in the assignment calls for a reversal of the judgment. The first assignment is dismissed.

It seems that the excerpt from the charge quoted in the second assignment is not precisely what the witness Hamilton said in regard to seeing the money connected with the South Seventh street matter. But the trial judge plainly told the jury, at the close of the charge, "You will take all the testimony on the part of the commonwealth and on the part of the defendant, and consider it as you remember it and arrive at a conclusion according to your own memory or recollection of the testimony.” We think this sufficient to correct the slight inaccuracy contained in the second assignment. Moreover, it is apparent that the court endeavored to state Hamilton’s testimony correctly and if the counsel was not’satisfied with the charge, the court’s attention ought to have been called to the inaccurate statement, and if that had been done, no doubt it would have been corrected. The second assignment is dismissed.

The third assignment relates to the examination of John Klein, the witness for the commonwealth, in regard to where a sum of money came from. This was objected to as irrelevant and incompetent as against the defendant on trial. The objection was overruled and the witness was permitted to state, in substance, that he got 16,000 from Dr. Weber for the members of common council for their vote on the vacation of South Seventh street. Now when the commonwealth followed this up with evidence tending to show that the appellant received some of this money, we fail to see that the testimony was either irrelevant or incompetent. The commonwealth alleging that Klein received money for the purpose of bribing members of common council, and especially the defendant, surely had a right to show that Klein received the money and who from. The third assignment is dismissed.

The fourth assignment relates to the examination of Ollie Hamilton, a witness for the commonwealth. This testimony was manifestly offered to corroborate Klein and it did so, because it shows that when Klein came out of Dr. Weber’s house he had a package. We think this testimony was competent and relevant, not only as to that portion of it already referred to, but also the remainder of it in regard to the witness going to a bank and then to a drug store and finding Klein there and that Klein had the money with him in the drug store. The fourth assignment is dismissed.

The fifth assignment raises the question of the power of the court to keep the jury together during the trial or as the assignment states it, “The court erred in imprisoning the jury during the entire trial and keeping them under the custody of an officer.” Under the conditions evidently existing in Allegheny county at the time of the trial it was probably a wise precaution for the court to keep the jury together, under the charge of an officer, during the trial. In our opinion this matter was within the discretion of the court and we discover nothing in the record showing any abuse of discretion in that respect. Moreover, it is not made to appear that the defendant was in any way injured or his case prejudiced by this action of the court. The fifth assignment is dismissed.

We discover no merit in the sixth assignment. It relates to the information furnished or not furnished by the district attorney in the bill of particulars. The defendant’s counsel called for a bill of particulars which was furnished by the district attorney; the cases were put at issue and tried on their merits, and we think it irrelevant to attempt to inquire into the merits of the bill of particulars at the trial. But in any view of this assignment, we do not think it raises reversible error. The sixth assignment is dismissed.

The general charge was so full, impartial and adequate that at its close the able and experienced counsel for the appellant did not specify any error therein and they did not.request any additional instruction to the jury, but contented themselves with having a general exception noted to the charge. Although not so requested the trial judge carefully charged the jury upon all of the important legal questions arising in the case, including reasonable doubt, credibility of witnesses, effect of evidence of good character, and cautioned the jury as to the danger of convicting a defendant on the uncorroborated evidence of an accomplice. In our opinion the appellant has no just cause of complaint as to the charge of the court or the rulings upon the admission and rejection of evidence.

The judgment at No. 51, April Term, 1911, is affirmed and it is ordered that the appellant, M. L. Swift, Jr., appear in the court below at such time as he may be there called and that he be by that court committed to serve that part of the sentence which had not been performed at the time this appeal was made a supersedeas.


text:
    Commonwealth v. Swift, Appellant
    November 21, 1910:
    (No. 2).
   Opinion by

Morrison, J.,

For the reasons given in the opinion filed this day in Commonwealth of Pennsylvania v. M. L. Swift, Jr., ante, p. 546, the assignments of error are all dismissed and the judgment is affirmed, and it is ordered that the appellant, M. L. Swift, Jr., appear in the court below at such time as he be there called and that he be by that court committed to serve that part of the sentence which had not been performed at the time this appeal was made a supersedeas.