text:
    Kurtz, Appellant, v. Campbell.

      Building and loan associations — Dues—Credits on bond and mortgage.

      - A borrower from a building and loan association has the right to elect to treat all past and future payments of dues on the stock as credits on the bond and mortgage, and to direct the officers of the association so to appropriate and credit the same. In such a case it is immaterial that the appropriation was made in the assignment of the stock rather than on the bond and mortgage, when the assignment of the stock was concurrent with the delivery of the bond and mortgage, and the whole constituted one transaction. The insolvency of the association does not affect an appropriation made prior thereto.
    Argued May 8, 1906.
    Appeal, No. 94, April T., 1906, by plaintiff, from judgment of C. P. Jefferson Co., Aug. T., 1904, for plaintiffs on ease tried by the court without a jury in suit of T. M. Kurtz, S. Keltonik and G. L. Glenn, assignees of the Punxsutawney Mutual Building and Loan Association, v. Ira J. Campbell, S. K. Livingood and Rebecca M. Livingood, his wife.
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Scire facias sur mortgage.
    The case was tiled by Reed, P. J., without a jury, under the act of April 22, 1874.
    The court found, inter alia, the following facts :
    The defendants, March 25, 1895, subscribed for and became the owners of twenty shares of the capital stock of the nineteenth series of said association, of the par value of $200 each, represented by certificate No. 598.
    On April 23, 1895, the defendants borrowed from said association the par value of their said stock, to wit: On five shares thereof the sum of $1,000, subject to a deduction of fifteen per cent premium bid therefor, and on fifteen shares thereof the sum of $3,000, subject to a deduction of twelve and three-fourths per cent premium bid therefor. The amount received by the defendants, less premiums as stated, was $3,467.50. The premiums, amounting to $532.50, the association retained.
    In accordance with the by-laws of said association, and as the security required thereby, the defendants made, executed and delivered to the association, and the said association accepted, their judgment bond and mortgage on real estate in the sum of 18,000'respectively conditioned for the payment of said sum of 14,000, etc., as hereinafter stated. Said bond and mortgage are in the form provided by said association and required of its borrowers. The defendants also, by indorsement on the back of the bond, assigned their stock to the association as collateral security for the payment of said debt, which indorsement is in the form provided by said association and required of its borrowers.
    The association became insolvent on February 1, 1904.
    The conclusions of law were as follows:
    1. That by virtue of the following clause contained in the assignment of the defendants’ stock as collateral security for the payment of the loan obtained thereon, viz., “ And further, we do hereby elect to treat all past and future payments of dues on said stock as credits on the within bond and mortgage accompanying the same, and authorize and direct the officers of said association to so appropriate and credit the same,” there was an appropriation, at the inception of the contract of .loan, of all payments on stock to the extinguishment of the debt created by said loan, which cannot be questioned by either of the parties to said contract.
    2. That this Clause in said assignment must be interpreted in accordance with the intent of the parties as plainly and unequivocally expressed at the time of the execution of the contract, and there is nothing in the testimony, or in the-findings of fact deduced therefrom," that can be held to be a waiver of the appropriation of payments on stock to the mortgage debt as then made, or that would estop the defendants from standing on said agreement of appropriation in the present action to enforce payment of the balance due on said mortgage.
    3. The doctrine of appropriation as applicable to building and loan associations is so firmly embedded in the law of this state that the question must be considered as settled in favor of the right of either the stockholder or the association to make such appropriation save in exceptional instances, none of which exist in this case.
    4. The Punxsutawney Mutual Building and Loan Association having become insolvent, the contract between it and the defendants is so far abrogated that the defendants can only be held for the repayment of the actual amount received as a loan on their stock, with interest from the date of the loan, and they are further absolved from the payment of dues on said stock from the time of such insolvency. They are entitled to credit as of the date of the insolvency of said association, for all sums paid as dues on stock and for all sums paid as interest on the loan, to wit: Paid on dues, $2,140, and paid on interest, $2,100, or to a total credit of $4,240.
    5. The rights and obligations of the defendants in this case are to be settled and determined on the principles of law as declared in the case of York Trust, etc., Co. v. Gallatin, 186 Pa. 150, and kindred cases.

      Errors assigned were various findings of the court.

      C. Z. Gordon and W. W. Winslow, with them J. L. Fisher and W. M. Gillespie, for appellant,
    cited: Freemansburg B. & L. Assn. v. Watts, 199 Pa. 221; Strohen v. Franklin Saving Fund & Loan Assn., 115 Pa. 273; McGrath v. Hamilton Savings & Loan Assn., 44 Pa. 383.

      A. L. Cole, with him Jeff. G. Wingert and Carmalt ¿f Strong, for appellees,
    cited: Spring Garden Assn v. Tradesman’s Loan Assn., 46 Pa. 493; Erthal v. Glueck, 10 Pa. Superior Ct. 402; York Trust, etc., Co. v. Gallatin, 186 Pa. 150.
    October 5, 1906 :
   Opinion by

Henderson, J.,

At the time when the defendants' executed their bond and mortgage to the building and loan association, they also assigned their stock in the association as collateral security for the payment of the debt. Attached to this assignment was an election to treat all past and future payments of dues on the stock as credits on the bond and mortgage, and a direction to the officers of the association to so appropriate and credit the same.

The right of a borrower from a building and loan association to make such election has been recognized in many cases, beginning with North American Building Association v. Sutton, 35 Pa. 463. In Spring Garden Association v. Tradesmen’s Loan Association, 46 Pa. 493, the right of a mortgagor to apply his payments on the stock to the mortgage debt was distinctly declared; the license to make such application being implied in the nature of building-association loans. It was there stated, however, that an act of appropriation by one of the parties is necessary in order to effect an application of the stock payments to the loan. Such is also the doctrine of Economy Building Association v. Hungerbuehler, 93 Pa. 258.

In Hemperley v. Tyson et al., 170 Pa. 385, the right to a lien on shares of stock of a building and loan association, by an attaching creditor, was denied for the reason that the owner of the stock had elected to apply her stock payments on her bond and mortgage for money borrowed, and the court said with reference thereto, “ This election shows that it was her purpose to make the stock fund primarily liable for the loan, and the acceptance by jbhe association of the assignment, subject to the election, involved an agreement on its part to so regard it.”

The cases relating to the question are reviewed in York Trust, etc., Co. v. Gallatin, 186 Pa. 150, in which the right of appropriation is reaffirmed. In the' course of his opinion Chief Justice Sterrett says: “Bearing in mind these principles in which all the cases substantially agree, it clearly follows that where the appropriation is made at the inception of the contract of loan, it cannot thereafter be successfully questioned.” A convincing opinion by Judge Porter in Erthal v. Glueck, 10 Pa. Superior Ct. 402, discusses the same subject and reaches the same conclusion.

The case of Freemansburg B. & L. Association v. Watts, 199 Pa. 221, is not in conflict with the cases cited. There was no express appropriation of payments in that case before the insolvency of the company, nor any notice given that payments were to be applied in a particular manner. The obligor’s right of appropriation is recognized, however.

We do not deem it a controlling fact that the appropriation is made in the assignment of the stock rather than on the bond or mortgage. The assignment of the stock was concurrent with the delivery of the bond and mortgage, and its acceptance by the association made it a part of the contract under which the loan was effected. No objection was made to the appropriation by the borrower, and as it was made when the loan was obtained and the association was solvent, it cannot now be avoided. The insolvency of the company does not affect an appropriation made prior thereto : Strohen v. Franklin Saving Fund & Loan Association, 115 Pa. 273 ; York Trust, etc., Co. v. Gallatin, 186 Pa. 150.

The condition in the bond for the payment of monthly dues on the stock does not distinguish the case from that of York Trust, etc., Co. v. Gallatin. The right of appropriation is not controlled by the condition of the bond, but arises out of the obligor’s control of the fund at the time of payment.

Our attention has been called to Globe Mutual B. & L. Association v. Schutte, 29 Pa. Superior Ct. 265, as an authority in support of the appellant’s position. The controlling fact in that case was, however, that the conduct of the association and the borrower showed that, notwithstanding the election to apply the payments, they were not so applied by the parties. The payments were credited on the books of the association and also on the pass book of the debtor as payments upon account of dues and premiums, and the debtor was credited on his stock with the profit accruing to his shares. The pass book of the debtor in the stockholder’s possession, showed weekly credits and also profits realized on his stock, and his conduct in permitting payments to he so appropriated and credited, and in receiving his dividend, was deemed to be a ratification of the appropriation of his payments made by the association, and notice to him that the association did not recognize his election. It was not intended to be a decision that a right of election did not exist.

In view of the foregoing authorities, and in the light of the facts found by the trial judge, the appellees were entitled to the defense set up.

The judgment is affirmed.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Kness v. Anchor Fire Insurance Company, Appellant.

      Insurance — Fire insurance — Proofs of loss — Waiver—Local agent — Act of June 27, 1883, P. L. 165.
    The Act of June 27, 1883, P. L. 165, does not authorize the local agent of a fire insurance company who has countersigned a policy to waive a covenant in the policy imposing upon the insured the duty of furnishing written proofs of loss within sixty days after the fire.
    Even if the local agent had such authority, its exercise would not be shown by proof that he told the insured that he had a letter from the company, that an adjuster would come, and that the insured should prepare proofs of loss, and hold them until the adjuster arrived.
    Argued May 9, 1906.
    Appeal, No. 74, April T., 1906, by defendant, from judgment of C. P. Somerset Co., Dec. T., 1903, No. 41, on verdict for plaintiff in case of Charles Kness v. Anchor Fire Insurance Company of Cincinnati, Ohio.
    Before Rice, P. J., Portee, Hendeeson, Morrison, Oelady, Head and Beavbe, JJ.
    Reversed.
    Assumpsit on a policy of fire insurance. Before Koosee, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court charged in part as follows :
    [Now we say to you, while it is true that is the contract between the company and the insured, yet,if facts occurred after the fire and before the lapse of the sixty days’ period, either by an express agreement of an authorized officer of the company, or by acts of the company or its authorized agent, from which the jury could conclude that the defendant company waived the conditions I have read, then the jury may find that, notwithstanding those terms in the contract, the defendant still is liable, if the defendant itself, either by direct expression of its officers or by acts warranting such conclusion — by such acts as misled the plaintiff into the belief that the company does not intend to enforce compliance with the terms of the policy— then it is no longer absolutely necessary that the terms should be complied with in the letter.
    [So the question that will come to 3ou is: Has this company, or an agent for said defendant with authority, said such things or done suck acts as have induced the plaintiff to neglect giving the notices, which in this case it is complained by the defendant were not given.] [1]
    [Under the provisions of the act of 1888, if Mr. Boyer, under the proofs we have as to the extent of his agency and his relations to this particular policy, told the plaintiff within twenty days after the fire that he need not produce to him any detailed, itemized proofs of loss, but that he should prepare the paper and have it ready until the adjuster would come, and if this plaintiff was misled into a neglect or failure' to produce the proofs by reason of a direct statement from the mouth of Mr. Boyer within the period of twenty days after the loss, or by any language or act of Mr. Boyer from which the plaintiff could reasonably and fairly infer that it was his direction to him that he could prepare it and hold it himself to lay before the adjuster when he came, we say Mr. Boyer could charge his company with such directions ; and from such facts, if they would impress you as proven in the case, you would have power to find that the company waived the necessity of compliance with the clause in the contract as to notice and proofs, and by reason of the waiver the plaintiff was not required to make the proofs, but could recover in this action without having made them.] [2]
    Verdict and judgment for plaintiff for $990. Defendant appealed.

      Errors assigned among others were (1, 2) above instructions, quoting them; and (9) in refusing binding directions for defendazit.
    . W. H. Rupp el, with him A. H. Qoffroth, for appellant.

      Joseph Levy, with him Harry Doerr, for appellee.
    October 5, 1906:
   Opinion by

Head, J.,

This- was an action on a policy of fire insurance of the usual standard forzn. It is admitted that the plaintiff entirely failed to comply with the stipulation in the policy requiz’ing hizn to furnish written proofs oE loss within sixty days after the fire. It is alleged that this stipulation was waived by one Boyer, the local agent of the company who countersigned the policy, and his authority to bind the company by such alleged waiver is based on the Act of June 27, 1888, P. L. 165. Conceding for the moment the authority of the local agent to waive an important provision in the written contract, we think the evidence that there was any intention to waive the requirement concerning proofs of loss can hardly be said to amount to more than a scintilla. The substance of the plaintiff’s testimony on this subject is the following: “ Q. When did you go to see Boyer again? A. It was about eighteen days after the fire I went again. Q. What happened then ? A. Then Boyer said, You make the proofs of loss. I got a letter from the company and the adjuster will come; then we will adjust the matter. After that we would show the paper to the adjuster of what I lost.” The other witness present on that occasion, one Mc-Closkey, thus states the substance of the interview between the plaintiff and Boyer: “Q. What did Mr. Boyer say? A. Pie said he sent a letter to the company and they said he should have ready fire proofs of loss. Q. Did he say what he should do with the paper ? A. He said to have it ready and keep it until they came to adjust the matter.” If waiver be a question of intention, we think it extremely difficult to discover in the declarations of the local agent quoted, any intention on the part of the company to release the insured from his obligation, under the policy, to furnish proofs of loss. On the contrary, according to the testimony of both the witnesses, the insured was told by the local agent that, in a letter from the company to him on the subject, the company demanded that the proofs of loss should be made. So far as the evidence discloses, nothing resembling formal proofs of loss was ever prepared by the insured until long after the expiration of the time limited in the policy. This is certainly a narrow foundation upon which to permit a jury to reach the conclusion that the company had waived a material requirement of its policy.

In Hottner v. Aachen and Munich Fire Insurance Co., ante, p. 461, in which an opinion has been this day handed down, ante, page 461, we held . that the act of 1883 did not confer upon the local agent of an insurance company the power to waive any of the important provisions of the policy. It was not the purpose of the act so to do. The legislature, by that act, simply provided a method by which the insured may with ease and certainty comply with two of the requirements of his policy. It was not the intention of the act to furnish a plan by which -he could be relieved from the performance of the obligations imposed on him by the policy. That case rules the principal question raised here, and in the opinion there filed we have fully given our reasons for our construction of the act. We think it was error on the part of the learned trial court to permit the jury, under the law and the evidence in this case, to find that the company had waived the requirement of the policy stipulating that the insured should furnish proofs of loss. Compliance with that requirement was a condition precedent to his right to maintain any action on his policy. Having failed to perform the covenants which, by his contract, he undertook to perform before any right of action could accrue to him, his case must fall.

■ Judgment reversed.


author: Oblady, J.,

text:
    Apollo Trust Company v. Safe Deposit & Title Guaranty Company, Appellant.

      Equity — Jurisdiction—Assignment—Mortgage.
    Jurisdiction in equity no longer depends solely upon the want of a common-law remedy. If upon consideration by the court the remedy by an action in assumpsit is inadequate, or is insufficient to effect complete justice between the contending litigants, the court may properly adjudge the proceeding by. a bill in equity to be the most convenient and effective in order to reach all the phases of the plaintiffs’ contention, so as to dispose of the whole matter by securing and protecting the present and future interests of all parties concerned in the controversy. This is particularly the rule when the facts are conceded by demurrer, and the accounts are complicated, or are all in the hands of one of the parties, or the situation involves a trust or confidential relation.
    Where the owner of a mortgage assigns it absolutely to secure a creditor, and subsequently assigns the balance of the mortgage to secure another creditor, and in the latter assignment directs his first assignee to collect the mortgage debt in full, and after deducting his own claim to pay the balance of the mortgage debt to the second assignee, the latter may maintain a bill in equity against the first assignee, the assignor and the mortgage creditor, as defendants, to compel the payment of the balance due upon the mortgage after the payment of the debt of the first assignee.

      Argued May 14, 1906.
    Appeal, No. 27, AprilT., 1906, by defendant, from decree of O. P. Armstrong Co., June T., 1904, No. 36, on bill in equity in case of The Apollo Trust Company v. Safe Deposit and Title Guaranty Company, Thomas Robertson and Godfrey G. Lunderstadt.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Bill in equity for an account.
    The averments of the bill appear by the opinion of the Superior Court.
    The decree was as follows :
    And now, to wit: May 1,1905, it appearing to the court that the original bill as amended has been duly served on G. G. Lunderstadt and the Safe Deposit & Title Guaranty Company of Kittanning, Pennsylvania, as required by order of this court May 9, 1904;
    And it further appearing that the time for filing an answer to said amended bill has fully expired and that Thomas Robertson, one of the defendants, admits all the facts as alleged in the plaintiff’s bill so far as he is conversant with the same, and that G. G. Lunderstadt and the Safe Deposit & Title Guaranty Company of Kittanning have neglected to file their answer to said bill as amended, it is now ordered, adjudged and decreed that said bill be taken pro confesso and that the facts therein alleged be deemed and taken as true and admitted.
    It is further ordered and decreed, 1That the Safe Deposit & Title Guaranty Company of Kittanning shall pay over to the Apollo Trust Company the sum of $500, with the interest received by it on said payment, being the amount paid by Thomas Robertson to said Safe Deposit and Title Guaranty Company on or about May 1, 1903, being the fourth payment of the moneys secured by the mortgage of Thomas Robertson to G. G. Lunderstadt mentioned in said bill.
    2. That Tilomas Robertson be directed to pay to the Apollo Trust Company the balance remaining unpaid of said Lunderstadt mortgage, to wit, $300 and interest, due May 1, 1904.

      Error assigned was the decree of the court.

      W. J..Christy, of McCain & Christy, for appellant,
    cited as to jurisdiction: Owens v. Goldie, 213 Pa. 579.

      Walter J. Guthrie, for appellee,
    cited: Kinports v. Boynton, 120 Pa. 306; Kutz’s App., 100 Pa. 75; Haskins’s App., 164 Pa. 109 ; Brush Electric Co.’s App., 114 Pa. 574; Blair v. Supreme Council, 308 Pa. 262; Steigerwalt v. Smeych, 9 Pa. Superior Ct. 363; McGinn v. Benner, 180 Pa. 396 ; Steinmeyer v. Siebert, 190 Pa. 471; Penna. Co. v. Franklin Fire Ins. Co., 181 Pa. 40 ; Johnston v. Price, 172 Pa. 427; Conemaugh Gas Co. v. Jackson Farm Gas Co., 186 Pa. 443 ; Mortland v. Mortland, 151 Pa. 593 ; Tully v. Felton, 177 Pa. 344; Adams’ App., 113 Pa. 449 ; Bierbower’s App., 107 Pa. 14; Simpson v. Summerville, 30 Pa. Superior Ct. 17.
    October 5, 1906:
   Opinion by

Oblady, J.,

It is now fully established by many authorities, that jurisdiction in equity no longer depends solely upon the want of a common-law remedy. If upon consideration'by the court the remedy by an action in assumpsit is inadequate, or is insufficient to effect complete justice between the contending litigants, 'the court maj' properly adjudge the proceeding by a bill in equity to be the most convenient and effective in order to reach all the phases of the plaintiff’s contention, so as to dispose of the whole matter by securing and protecting the present and future interests of all parties concerned in the controversy. This is particularly the rule when the facts are conceded by demurrer, and the accounts are complicated, or are all in the hands of one of the parties, or the situation involves a trust or confidential relation: Brush Electric Co.’s Appeal, 114 Pa. 574; Conemaugh Gas Co. v. Gas Co., 186 Pa. 443 ; Blair v. Supreme Council, 208 Pa. 262.

The suggestion by the demurrer as to Lunderstadt not being a party to the bill was properly met by allowing the amendment, adding him as a defendant, the authority for such order being found in rule 36 of the equity rules. The important facts are not in dispute. On June 15,1899, the debt of Lunderstadt to the Safe Deposit and Title Guaranty Company was 11,500 and no more. On the same day, to secure this debt he assigned to the company his mortgage against Robertson in the sum of $2,300, payable in installments of $500 each, on May 1, 1900, 1901, 1902 and 1903, and $300 on May 1, 1904; which the company accepted and had duly recorded. Robertson paid to the company by virtue of the assignment each of the payments with interest as they became due to the date of filing the bill, and admitted that there remained unpaid the one installment due May 1, 1904.

It is distinctly averred in the fourth paragraph of the bill, and must be accepted as an admitted fact, that the mortgage of Robertson to Lunderstadt was assigned to the Safe Deposit and Title Guaranty Company as collateral security for the payment of his existing indebtedness to said company of $1,500, and upon the express agreement and understanding that after the payment of the first three payments the balance and remainder of said mortgage debt, to wit, $800, was to be reassigned and paid by the said Thomas Robertson to the said assignor.

Instead of keeping himself in position to demand personally the unpaid balance, on October 18, 1900, he assigned to the Apollo Savings Bank, the plaintiff herein, as a collateral security for an indebtedness to that bank “ his equitable interest, claim and demand of, in and to ” the Robertson mortgage, “ which may remain to me over and above the amount of my indebtedness to the Kittanning Safe Deposit and Title Guaranty Company,” and directed that company to ]3ay over to the second assignee “ all monies remaining in their hands from the collection of said mortgage.” The exact facts of the extent of the indebtedness of Lunderstadt being furnished by the secretary and treasurer of the guaranty compauj’- to the cashier of the plaintiff bank prior to the bank’s dealing with Lunderstadt for the balance due on the mortgage, and admitting that the assignment of the mortgage was as -collateral security for his indebtedness to the guaranty company, and for no other purpose whatever, it is difficult to understand why the guaranty company received the fourth installment of $500 and interest on May 1, 1903, after the debt of Lunderstadt had been fully paid to the company by Robertson ; and further, why the company refused on a proper demand to reassign the balance due on the mortgage to the plaintiff bank, inasmuch as he had a clear legal title to assign the unpaid balance of the mortgage. The fact that the first assignment was absolute on its face, was not conclusive in the light of the added proof. The demurrer deals exclusively with technical objections which were properly dismissed by the court, and after complying with the decree as entered, the satisfaction of the mortgage is a matter which may be easily disposed of by a subsequent decree of the court, so that the rights of all the parties will be fully conserved.

The decree is affirmed.


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

      Appeals — Criminal law — New trial — Discretion.
    Where on an appeal from a judgment of guilty in a criminal prosecution, no errors are assigned to any rulings on evidence or instructions, and the only assignment is that the court erred in refusing a new trial, the judgment will not be reversed in the absence of manifest abuse of discretion by the trial court in refusing a new trial.
    Argued May 22, 1906.
    Appeal, No. 108, April T., 1906, by defendant, from judgment of Q. S. Crawford Co., J3ept. T., 1904, No. 23, on verdict of guilty in case of Commonwealth v. Samuel Houghton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orbady, Head and Beater, JJ.
    Affirmed.
    Indictment for receiving stolen goods. Before Thomas, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was refusal of new trial.

      Wesley B. Best, for appellant.

      0. Victor Johnson, district attorney, for appellee.
    October 5, 1906:
   Opinion by

Head, J.,

A careful examination of the entire record in this case fails to disclose any ground upon which this court would be justified in reversing the judgment of the court below and sending the case back for another trial.' Nota single exception was taken to any ruling of the learned trial court, admitting or rejecting evidence, nor to the charge of the court to the jury. There is nothing, therefore, to bring either the testimony or the charge on the record, and they are not properly before us. No points, craving special instructions upon any feature of the case, were presented, and, of course, there can be no complaint that no such instructions were given. We have, therefore, nothing but the ordinai’y application for a new trial, supported by an argument seeking to prove that, under all the circumstances, the jury reached a wrong conclusion in finding the defendant guilty. That the power to grant a new trial on such grounds is properly lodged in the trial court, and is to be exercised or withheld as a sound judicial discretion may determine, is a proposition too elementary to require any discussion here." That we have the power and that it would be our duty to interfere, in case of a clear and manifest abuse of such discretion, may also be conceded. But no such question is before us. As the case was tried, there seemed to be nothing for the learned trial court to do but submit it to the jury. A verdict of guilty having been rendered and the application for a new trial refused, we cannot say, even after carefully reading all of the testimony as it appears in the paper-book, that there has been any abuse of discretion. If, in point of fact, a wrong conclusion was reached by the learned trial judge, or the jury, or both, as the learned counsel for the appellant so earnestly contends, relief can only properly be had by an appeal to the pardoning power.

The judgment is affirmed and the record remitted to the court below, with direction to have the sentence imposed carried into effect.


text:
    Commonwealth v. Houghton, Appellant
    (No. 2).
    Argued May 22,1906.-
    Appeal, No. 109, April T., 1906, by . defendant, from judgment of Q. S. Crawford Co., Sept. T., 1904, No. 24, on verdict of guilty in case of Commonwealth v. Samuel Houghton.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beayer, JJ.
    Affirmed.

      October 5, 1906:
   Opinion by

Head, J.,

For the reasons given in the case of Com. v. Houghton, ante, p. 528, in which an opinion has this day been filed, the judgment in this ease is affirmed and the record remitted to the court below, with direction to have, the sentence imposed carried into effect.


author: Porter, J.,

text:
    Harrisburg v. Harrisburg Gas Company, Appellant.

      Taxation — Cities of the third class — Corporations—Statutes—Repeal— Acts of March 19, 1860, P. L. 175, April 22, 1868, P. L. 1136, May 23, 1874, P. L. 230, and May 23, 1889, P. L. 277.
    The local Acts of March 19, 1860, P. L. 175, and April 22, 1868, P. L. 1136, authorizing the city of Harrisburg to impose taxation on corporations for city purposes, are repealed by the Acts of May 23,1874, P. L. 230, and May 23, 1889, P. L. 277, which provided for the creation of cities of the third class, and for a complete system of taxation therein.
    Argued March 12, 1905.
    Appeal, No. 11, March T., 1905, by defendant, from judgment of C. P. Dauphin Co., No. 171, Mechanics’ Lien Docket No. 1, for plaintiff on case stated in suit of City of Harrisburg' v. Harrisburg Gas Company.
    Before Rice, P. J., Portee., Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Case stated to determine the validity of a tax. Before Weiss, P. J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was in entering judgment for plaintiff on case stated.

      A. O. Stamm, with him M. E. Olmstead, for appellant
    — It is a general and well-understood principle that a statute is impliedly repealed by a subsequent one revising the subject-matter of the first; and this rule is applicable where the earlier law is local and the later general, or where the later act has to do with the classification of the subjects covered by it, or is a complete revision of an earlier classification act: Nusser v. Com., 25 Pa. 126; Quinn v. Cumberland County, 162 Pa. 55; Com. v. Macferron, 152 Pa. 244; Com. v. Wunch, 167 Pa. 186; Com. v. Brown, 210 Pa. 29; Bruce v. Pittsburg, 166 Pa. 152; Best v. Baumgardner, 122 Pa. 17; Johnston’s Est., 33 Pa. 511; Com. v. Lloyd, 2 Pa. Superior Ct. 6; Jadwin v. Hurley, 10 Pa. Superior Ct. 104; Bartlet v. King, 12 Mass. 536; Daviess v. Fairbairn, 44 U. S. 636.

      Daniel S. Seitz, city solicitor, for appellee.
    — To repeal a statute by implication there must be such a repugnancy between the provisions of the new law and the old that they cannot stand together or be consistently reconciled: City of Harrisburg v. Sheck, 104 Pa. 53; Brown v. Commissioners, 21 Pa. 37; Erie v. Bootz, 72 Pa. 196; Wright v. Vickers, 81 Pa. 122; Malloy v. Com., 115 Pa. 25; Murdock’s Petition, 149 Pa. 341; Commonwealth v. Railroad Co., 164 Pa. 252; Seaman v. Borough of Washington, 172 Pa. 467 ; In re Barber’s Election, 86 Pa. 392; Evans v. Phillipi, 117 Pa. 226; Bell v. Allegheny County, 149 Pa. 381; Frederick Street, 150 Pa. 202; Com. v. Brown, 210 Pa. 29; Nissley v. Lancaster County, 27 Pa. Superior Ct. 405.
    October 5, 1906:
   Opinion by

Porter, J.,

The case stated presents but one question : whether the city of Harrisburg, a city of the third class, has. the power to tax for general revenue purposes the real estate of the Harrisburg Gas Company, a duly organized public corporation, authorized under its charter to manufacture gas for heating and illuminating purposes, and supply the same to the public in said city; said property being used by the gas company exclusively in its business of manufacturing and supplying gas to the public in the city of Harrisburg, as authorized by its charter, and necessary and indispensable to the exercise by the company of its franchise and the discharge of the public duty imposed by its charter.

The Act of March 19, 1860, P. L. 175, incorporating the city of Harrisburg, in section 24 provides for the election of an assessor by the qualified voters of each ward of the city, the manner in which property subject to taxation shall be assessed, and “ That the assessors, in making such assessment of property in the City of Harrisburg, shall assess all the property which is now by law subject to taxation for borough purposes in the said’Borough of Harrisburg, and shall also assess for taxation, for city purposes, the real estate of all incorporated companies within the limits of the said city, except the real estate of the Pennslyvania Railroad Company, the Harrisburg & Lancaster Railroad Company, the Cumberland Valley Railroad Company, the Reading Railroad Company, and the several cemeteries, together with the buildings thereon erected.” The charter of the city was amended, and its taxing power increased by the Act of April 22, 1868, P. L. 1136, which contained the following provisions: “ That all real estate situated in said city, owned or possessed by any corporation, except religious and educational corporations, shall be and is hereby made subject to taxation for city purposes, the same as other property in said city; any law or laws contrary to or inconsistent with this section are hereby repealed. That the city councils are hereby empowered to levy, assess and collect for the use of the city, an annual tax, not exceeding one-third of one mill per dollar on the average quarterly business of all insurance companies, insurance agencies, express and telegraph companies, or other agencies or corporations doing business in said city, which do not now pay city tax.” The above-recited provisions of the statutes are very clear aild comprehensive, and, unless they have been repealed by later legislation, the real estate of the appellant company is by them rendered subject to taxation: Pennsylvania Railroad Company v. Pittsburg, 104 Pa. 522; Philadelphia v. Philadelphia Traction Company, 206 Pa. 35. The city of Harrisburg duly accepted the provisions of the Act of May 23, 1874, P. L. 230, entitled, “An act dividing cities of this state into three classes .... and providing for the incorporation and government of cities of the third class,” in the manner provided by section 57 of said statute; and the governor of the commonwealth, on August 25, 1874, duly certified the surrender of the former charter of the city and the acceptance of the provisions of the act of 1874. The city of Harrisburg is, therefore, a city of the third class, and subject to the provisions of the Act of May 23, 1874, P. L. 230, and the Act of May 23, 1889, P. L. 277, entitled, “ An act providing for the incorporation and government of cities of the third class.” The question is whether these statutes, relating to the classification of cities and the government of cities of the third class, repeal the local and special provisions relating to taxation contained in the act of 1860 and the act of 1868, above recited, conferring peculiar powers of taxation upon the city of Harrisburg.

The act of 1874, in dealing with the taxing power of cities of the third class, authorized such cities, in clause 1 of section 20, “ to levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar, in any one year, on all the real, personal and mixed property -within the limits of said cities, taxable according to the laws of the state of Pennsylvania, the valuation of such property to be taken from the assessed valuation of the taxable property therein made under the provisions of law regulating the same.” This statute did not designate the property which should be subject-to taxation, nor provide for the manner in which the valuation of that property should be assessed; the property subject to taxation, the mode in which the assessors should be chosen and the manner in which their duty should be discharged were left to be determined under the laws already in force in the several cities, respectively. This statute was, however, inconsistent with the acts of 1860 and 1868 in that it fixed the limit of the levy in any one year at ten mills, no such limitation being found in the earlier statutes, and further, in that, in section 36, it provided a new and entirely different manner of collecting taxes. The act of 1874 provided that the powers of cities of the third class “shall be and remain as now provided by law, except where otherwise provided by this act.” It is not asserted that the city has attempted to levy taxes to exceed tefi mills on the dollar in any one year upon the property of the’ appellant, and if the power of the city to levy a tax upon the real estate of the corporation has been taken away, it must be because of a later statute.

The Act of May 23, 1889, P. L. 277, provided a complete system of taxation for cities of the third class, designated the property and occupations which should be subject to tax, enacted that the assessors who should fix the valuation of such property should be chosen by the qualified electors of the city, not of the several wards, ordained the manner in which such assessors should discharge their duties, created a board to hear and determine appeals from such assessments, designated the officer to whom taxes should be paid, provided a manner for enforcing payment, and fixed penalties for failure to pay the tax after it became due. The system thus provided is from beginning to end inconsistent with that which was authorized by the local acts of 1860 and 1868, applicable to the city of Harrisburg alone. The provision -which is material to the present inquiry is that .which designates the property which shall be subject to tax. The act of 1889 authorized and empowered cities of the third class “ to levy and collect taxes for general revenue purposes, not to exceed ten mills on the dollar in any one year, on all persons, real, personal and mixed property within the limits of said city, taxable according to the laws of the state of Pennsylvania for county purposes; the valuation of such property to be assessed, as hereinafter provided.” The statute also authorized the collection of a tax, upon the same property, for the purpose of paying interest on bonded indebtedness and for the payment of loans to support the government and make the necessary improvements in said city, and it also authorized the imposition of a poll tax not to exceed $1.00 and a license tax not exceeding $100 annually upon certain businesses and occupations. The real estate which under this act is subject to be taxed for city purposes, by a city of the third class, is such as is taxable for county purposes. This provision is inconsistent with the provisions of the acts of 1860 and 1868, which authorized the city of Harrisburg to levy taxes upon property which had been subject to taxation “ for borough purposes in the borough of Harrisburg,” and upon the real estate of corporations located within said city. The act of 1889 provided that “ All acts or parts of acts inconsistent herewith, or supplied by the provisions hereof, be and the same are hereby repealed.”

The parties have expressly agreed in the case stated that the real estate of the Harrisburg Gas Company, which the city seeks to tax, is not taxable according to the laws of the state of Pennsylvania for county purposes ; that this agreement but states the law is well settled: Bridge Company v. Frailey, 13 S. & R. 422; Schuylkill Navigation Company v. Berks County, 11 Pa. 202; Wayne County v. Canal Company, 15 Pa. 351; West Chester Gas Company v. County of Chester, 30 Pa. 232; Coatesville Gas Company v. County of Chester, 97 Pa. 476 ; Southern Electric Light and Power Company v. Philadelphia, 191 Pa. 170; People’s Passenger Railway Company v. Taylor, 22 Pa. Superior Ct. 156 ; Philadelphia v. Electric Traction Company, 208 Pa. 157; Railway Company v. Venango County, 5 Pa. Superior Ct. 304. Real estate held and used as is that of the appellant would not be taxable for city purposes, under the provisions of the act of 1889, in any city of the third class in the commonwealth other than Harrisburg. The legislature of the commonwealth, in the act of 1889, defined and limited the powers of cities of the third class for purposes of taxation, and the special provisions of the acts of 1860 and 1868 are inconsistent with and repugnant to the provisions of the later statute.

Chief Justice Mitchell, in Commonwealth v. Brown, 210 Pa. 29, in dealing with the question of the repeal of a local-and special act by a later general statute, after a painstaking review of the authorities, thus summarizes his conclusion : “ First, the rule that a general statute does not repeal by implication a local act with different or inconsistent provisions, is still the prevailing rule. Secondly, but the rule being founded on a presumption of legislative intent, will not apply when a contrary intent is clearly apparent. Thirdly, where the clear general intent of the legislature is to establish a uniform and mandatory system as in the municipal classification acts, the presumption must be that the local acts are intended to be repealed. Fourthly, where an act is passed to carry into effect a mandatory general provision of the, constitution, the presumption must be that it was intended to repeal even local acts inconsistent with its terms.” The learned chief justice says, in the same opinion, “ What these cases decided and are authority for, is that as the legislative intent in the classification of municipalities is apparent, to make a uniform system and framework of government, public officers, powers and duties in each class, the presumption is that as to such matters, local acts must give way to the general act of classification whenever they conflict.” When the legislative intention to provide a uniform system for all subjects to which it relates clearly appears, no repealing' words are necessary: Chalfant v. Edwards, 176 Pa. 67; Quinn v. Cumberland County, 162 Pa. 55. This case is squarely ruled by Commonwealth ex rel. McKirdy v. Macferron, Treasurer of Allegheny County, 152 Pa. 244. The city of Allegheny had not accepted the provisions of the act of 1874 and had continued to be governed under its special charter and laws, until 1890, when because of increase in population it became a city of the second class, and it no longer had the option to continue its old form of government, but must pass into and be governed by the laws relating to cities of the second class. Among the local and special laws by which it had been governed under its old charter was a complete taxing system which, like that of the city of Harrisburg, was somewhat peculiar. The relator in that case attempted to pay his taxes in the old manner, the city treasurer refused to accept the tax, and McKirdy, the relator, proceeded by mandamus. The case reached the Supreme Court and is reported as above cited, and it was held, “ It is clear, therefore, that in order to adjust itself to the class into which it has come, this city must leave its old system behind it, and take on that which the law has prescribed for it as a member of the second class. This is rendered still more apparent when we remember that the power to levy and collect taxes is one of the ‘ corporate powers ’ which the classification acts have undertaken to regulate; and that the officers through whom such levy and collection are made, are ‘ corporate officers,’ whose powers and duties are defined and adjusted by the same acts. If no provision for the levy and collection of taxes in cities of the second class had been made, the system previously in existence in such cities would have remained undisturbed under the express declaration of the' first section of the act of 1874; but to the extent to which the law has regulated the exercise of the taxing power, or modified the powers and duties, of the officers through whom it is exercised, to that extent the old system is superseded by the new.” Mr. Justice Williams, who spoke for the Supreme Court in Commonwealth v. Macferron, thus states the rule: “ Whenever, therefore, any law regulating the municipal affairs of cities of a given class shall be found to conflict with a previous local statute applicable to any member of the class relating to the same subject, the latter must give way by reason of the nature and purposes of class legislation. In this manner existing diversities will gradually disappear, and uniformity throughout the class will be finally secured.”

Tire power to levy and collect taxes is one of the corporate powers of cities of the third class which the classification acts have undertaken to regulate; the act of 1889 provides a complete system for the levy and collection of taxes in cities of the third class, and as the local acts relating to the city of Harrisburg come into conflict with that statute, “ the latter must give way by reason of the nature and purposes of class legislation.” The local acts, authorizing the city to impose taxes upon the real estate in question, having been superseded by the classification acts, the city was without authority to impose the taxes which are the subject of this litigation.

The judgment of the court below is reversed and judgment is now entered for the defendant, with costs.


text:
    Commonwealth v. Di Silvestro, Appellant
    (No. 1).

      Libel — Malice—Foreign consul — Privilege—Act of April 11, 1901, P. L. 74 — Criminal law.

    The publishers of a newspaper charged a foreign consul with being a bastard, ignorant of his duties, illiterate, weak, despised, the product of corruption and intrigue; that with phenomenal bestiality he preferred to give shyster legal consultations to whoever might innocently apply to him as the representative of his country, and concluded: “may, at least, the contempt of the conscious crowd mark on the hardened cheeks of these productions of the impertinent favoritism an indelible stamp of infamy.” In this and other issues the defendants wrote and published of the consul that he was a buffoon and imbecile, a swindler, a parasite, a blackmailer, a poltroon, an indirect descendant of royal loins, a man with a brainless head, dishonest, degenerate, an ass who had the good luck of clubbing instead of being clubbed. Some abuses were alleged relating to fees and relating to the expenditure of moneys furnished to the consul for home military purposes. These matters, however, were minor parts of the articles. Held, (1) that the articles were libelous in themselves, and therefore malicious and criminal; (2) that the facts being established by the personal testimony of the defendants, it became a question of law for the court to declare whether or not the communication was privileged; (3) that even if it should be conceded that a part of the articles could be deemed proper for public information, all immunity on that ground was lost to the defendants by the unfair and malevolent character of the publication.

      Libel — Evidence—Reputation—Good character — Criminal law.

    In a prosecution for criminal libel where the defendants avow the making and publication of a writing which the law declares to be a malicious libel, evidence of good reputation of the defendants is not material.

      Libel — Reasonable doubt — Criminal law.

    Where, in a prosecution for criminal libel, the defendants admit the publication, and that it applied to the prosecutor, and the court construes the publication as libelous per se, and therefore malicious and criminal, the court is not bound to charge that if the jury have a reasonable doubt of the guilt of the defendants, they may give the defendants the benefit of that doubt, and render a verdict of not guilty.
    Reasonable doubt to which a defendant is entitled is, not one raised by the juror’s personal information from hearsay or otherwise, or from his bias or prejudice, but must grow out of and be founded upon the evidence adduced on the trial.
    Argued April 18, 1906.
    Appeal, No. 257, Oct. T., 1905, by defendants, from judgment of Q. S. Philadelphia Co., Oct. T., 1905, No. 607, on verdict of guilty in case of Commonwealth v. Giovanni Di Silvestro and Joseph Di Silvestro.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    Indictment for libel. Before Wiltbank, J.
    The first of the publications upon which the prosecution was based was published in a newspaper called II Popolo. Both the original, in Italian, and a translation were set forth in the indictment.
    The translation is as follows :
    “ The Doings oe Naselli.
    “It should be the duty of the honest, incorruptible and healthy press, to exercise an attentive, constant and inexorable control on the doings of the Consuls.
    “ Italy, impoverished by a bureaucracy devouring millions, victim of the political cliques, inclosed as within an enormous iron circle by the plague of militarism, supports with secular resignation, and with amazing carelessness, the enormous weight of the diplomatic expenses, which are the greatest drain on the blood of a people almost dead, and oppressed by a barbarous tributary system.
    “In the early epoch of the new Italy, and also at the present time, although in smaller proportion, in homage to the Royal House, only those who were born in Piedmont, or the indirect descendants of the Savoyian loins, were appointed consuls and ambassadors. So that the court, or rather'the low and vulgar intrigues of the court ladies, determined the appointments to such high and delicate office, and .... having to take care of the sons of their majesties’ illicit relations, we have had and still have, consuls and ambassadors with sonorous names, but with empty heads'.
    “ Minister Tittoni continues this dishonest system of nepotism. Tittoni, the minister by the grade and will of the ladies, of handsome appearance and with extensive relations, not accustomed to be over-scrupulous in illicit affairs, not long ago appointed to take charge of two consulates one of his nephews and a favorite of ... . the Sporting Club of Rome. So that the political gang still, and always, finds in the public treasury an open field to satisfy its’ wishes. Italy, abroad, is represented by inept (sic), ignorant men, completely ignorant of their duties, derided because almost illiterate, not cared for because weak, despised because they are known to be the product of corruption and intrigue.
    “ This is precisely the case with Count Naselli; perhaps also himself a consul by the grace of the Savoyian loins. Let us examine him in his personal value: presumptuous, ignorant, impolite — he does not present any quality which might make of him an average consul of the lowest class.
    “ In the examination of his doings, the diagnosis is still worse, and this is not said through personal feeling, but as a real fact.
    “ The consul should live among the Italians ; study their needs ; their system of life ; their aspirations ; but Naselli prefers the American element, to the element which should be his first thought, because it is composed of fathers, brothers, mothers and wives of those who, at home, pay blood taxes to supply him, the consul, the salary which enables him to lead an idle and lazy life.
    “ He should be here among ourselves to watch over the Italians, to defend their rights, to protest and claim justice for any abuse, while he, with arrogance and phenomenal bestiality, prefers to give shyster legal consultations to whoever innocently may apply to him as the representative of his country; whereas, he does not hesitate to take the odious repugnant part of defender and justifier of those who commit abuses, violence and vexations against the Italians.
    “ Count Naselli, in his consular -work, should render less painful the condition of the emigrants subject to military service ; he should listen to their inquiries and give them advice, because .... he is well paid for this purpose; but being completely ignorant of the questions relating to the military service, to a frank and sincere declaration of his ignorance, he prefers an offending behavior really worthy of a consul dug out from the nullities of a presumptuous, stupid, weak and degenerate aristocracy.
    “ When requested and implored, he should provide for the removal of the causes which permit swindling and thievery, which are practiced against the emigrants at the landing station ; but having a weak and vile disposition, he prefers carelessness or a guilty acquiescence, only because in his servile bureaucratic soul he thinks that it is easier to take off his hat to prominent people enriched by crime, rather than ask for his countrymen the respect of the law.
    “ What does Count Naselli know of the emigration question ? What does he know of the relations between the Government, which he is called to represent, and the country which gives him hospitality? What does he know of what can and should be done, for a numerous colony, like the one of Philadelphia? Nothing, nothing. He is an ass, who has the good luck of clubbing instead of being clubbed. And Count Naselli gives good beating to the public Italian money.
    “ Our rebellious conscience imposes upon us the duty of denouncing to the public reprobation, as we brought before the public contempt, not long ago, the hideous mercenary figure of the Baron Mayor des Planches, a Piedmontese, always by the grace of the deplored favoritism, ambassador at Washington.
    “ The Baron des Planches, who having gone to examine the conditions offered by avaricious speculative companies, to Italian emigrants, traveled in trains deluxe, offered by the same companies, accompanied by a secretary of these insidious organizations of the American affarism, allowing the same companies to pay the bills for liis banquets, while for the defense and protection of the Italians he should have exercised a scrupulous and diligent investigation against them.
    “ Of such elements easy to be corrupted, inept through deficiency of education, and on account of their incapacity to fulfill their duties, Italy feeds a large quantity, to its shame, on account of having abroad, through its own representatives, a luminous proof of the degeneration of its ruling classes.
    “ May, at least, the contempt of the conscious crowd mark on the hardened cheeks of these productions of the impertinent favoritism, an indelible stamp of infamy.”
    At the trial the defendants admitted the publication and that it was aimed at the prosecutor.
    The court charged in part as follows :
    What does the article say? It is for you to determine. Primarily, you must consider the question of written translation, because we assume that you do not understand the Italian language. So far as you, or any of you, understand that language, you are at liberty to treat the article to which I refer, upon your examination of it, without reference to any translation. A written translation is what represents in another tongue the substance of a statement as that substance reaches the understanding of men of average intelligence, reading it in, and familiar with, the original language.
    There has arisen some dispute as to the correctness of the translations offered in evidence. On the part of the commonwealth, a native Italian has produced the various versions of the several articles appearing in II Popolo, including that which is the foundation of the indictment, and has informed us that these versions represent the spirit and expression of the papers. This testimony is corroborated by an expert in the Italian language, who has shown himself to possess an intimate familiarity therewith.
    On the part of the defendants, an eminently respectable witness has been produced, who has made a translation of the article of June 8, 1905, for you, and you have that before you.
    It appears that whilst there is a variance in these several versions, yet they all agree in producing to you an article which make charges against, and casts serious imputations upon, the prosecutor. I instruct you that you may take these several versions and the several originals (that is to say, the article referred to and the other articles which have been offered in evidence)) and from these it is your province to ascertain whfit actually was written and published by the defendants. Having thus ascertained the spirit and the expression of the paper, if you find these to be as contended for by the commonwealth and as indicated by the evidence, I instruct you that the article of June 3, 1905, is libelous in itself. Being thus libelous in itself, the law delares that article to be malicious and criminal.
    ********
    On the part of the defendants, it is contended that the presumption of malice in the case is rebutted when one considers the circumstances of the public station of the prosecutor as the representative in this city, to a certain degree, of a foreign government, and in view of his duties as consul. So far as these subjects are testified to, and you reach conclusions of fact upon the testimony, you are to ask yourselves : Was there a case for comment in the public prints ? I instruct you that in my opinion, which, however, is not to bind you, there is not adequate evidence of a case inviting or requiring fair comment. That question of fact I leave to you, as I do all questions of fact here presented.
    &#***#*#
    I instruct you that the law does not find in these particulars, or in any other particulars shown by the proofs, any rebuttal of the presumption of malice in the writing and publication of the article of June 3, 1905. But it is for you to consider, and if you find you may under your oaths determine otherwise under the facts and the law, then you would have to consider the circumstances of the comment and ascertain if the defendants had written and published only after seeking, with reasonable care, for information touching the conduct of the Italian consul and touching the truth or good faith of any reports on which they acted. On this head I am bound to instruct you that there is no evidence of their having proceeded in a just and even temper, with deliberation, industry and calmness to learn if there' was or was not warrant for their procedure, and I leave to you the determination of the question whether in fact that is correct.

      It may be a proper caution in me to proceed further and to state to you that even were there some ground for fair comment, it would be necessary that you should take into consideration the extravagance of expression and the persistence of repetition on the part of the defendants in order to ascertain whether or not these did not exceed the limits of proper public discussion. In regard to this, it is my duty, as in the other instances, to instruct you that the law finds the comments unreasonable and extravagant and beyond the sphere of the protection of the principle of fair comment.
    * * ***** * *
    No community, I am bound to add as an officer of the law, could subsist in peace and good order if such conduct as that of the defendants (always assuming you should find as a fact that they acted as charged in the indictment, and this is for you) were allowed and sanctioned. It must be conceded on the part of right-minded citizens, it would seem, although with regard to that it is merely an expression of opinion which is not to bind you in any way, that the prosecutor owed it to himself to institute this proceeding.
    ****** * * *
    The case has been ably presented to you on the part of the defendants, and, so far as I have been able to gather that there is a defense, it is founded upon the suggestion that there were reasons which were adequate for the publication of these papers. I must leave to you that argument, that it may have the weight that you consider it to deserve.
    ******* * *
    [Having thus ascertained the spirit and the expression of the paper, if you find these to be as contended for by the commonwealth and as indicated by the evidence, I instruct you that the article of June 3, 1905, is libelous in itself. Being thus libelous in itself, the law declares that article to be malicious and criminal.] [18]
    [It may be a proper caution in me to proceed further and to state to you that even were there some ground for fair comment, it would be necessary that you should take into consideration the extravagance of expression and the persistence of repetition on the part of the defendants in order to ascertain whether or not these did not exceed the limits of proper public' discussion. In regard to this, it is my duty, as in the other instance, to instruct you that the law finds the comments unreasonable and extravagant and beyond the sphere of the protection of the principle of fair comment.] [19]
    [There has been evidence offered as to the character of the defendants, but I am bound to say to you that as they admit they published these articles, it would be difficult, assuming that you reached the conclusion that they were otherwise guilty, to ascertain from the evidence of character that they were not guilty.] [20]
    Defendant presented these points:
    4. If the jury find that the matter contained in the said article is true, and the matter was proper for public information, and the publication was not maliciously or negligently made, then your verdict should be “ Not guilty.” Answer: That I decline to charge, on the ground that you have nothing to do with the truth or falsity of such averments of fact as there may be in the articles, and also.on other grounds which I have indicated by my general charge. [21]
    5. If the jury believe that the article in question admits of two constructions, one that it is libelous and the other that it is not libelous, you are bound by law to put upon it that construction which renders the article not libelous, and to acquit the defendants. This in pursuance of the principle of law that where one of two constructions may be put upon an act, the one which is consistent with innocence must prevail. Answer : I decline so to charge. [22]
    6. The jury must take into consideration the evidence of the good reputation of the defendants in considering the question as to whether they are guilty of the crime of libel in this case. Answer: I decline so to charge, referring to my general charge for such answer thereto as I consider sufficient. [23]
    8. If upon the evidence in the case the jury have a reasonable doubt as to the guilt of the defendants, they must give the defendants the benefit of that reasonable doubt and render a verdict of “Notguilty.” Answer : That I decline to charge, because there is no evidence in the case on which ycm can found anj-r reasonable doubt, such as is indicated in the point itself. [24]

      Verdict of guilty, upon which judgment of sentence was passed.
    On the rule for a new trial Wiltbank, J., filed the following opinion:
    This was a trial of the defendants on four indictments for writing and publishing a libel of and concerning the prosecutor, who was the consul representing the Italian government in this city. The libel laid in the indictment was dated June 3, 1905, and appeared in a publication of that date called “ II Popolo.” This article had been preceded by a publication somewhat of the same character on May 27, 1905, and it was followed by numerous publications at different times, on June 17, 24, July 1, 8,15, 29, August 5, 12, 19, 26, of the same year. The writing and publication of these several articles was admitted by the defendants in the course of the development of the case for the commonwealth. The defendants were called in their own behalf to show that the prosecutor was a public official within the provisions of the 8th section of the first article of the constitution, and that the subject-matter of the libel was merely fair comment, and- therefore within the protection of that section. A reference to the article must dispose of the question of fair comment.
    It is opened by stating that it should be the duty of the honest, incorruptible and healthy press to exercise an attentive, constant and inexorable control on the doings of the consuls. It refers to the early epoch of the new Italy, and to a similar condition at the present time, when, in homage to the royal house, only those who were born in Piedmont, or the indirect descendants of the Savoyian loins, were appointed consuls and ambassadors; “So that the court,or rather the low and vulgar intrigues of the court ladies, determined the appointments to such high and delicate an office, and .... having to take care of the sons of their majesties’ illicit relations, we have had, and still have, consuls and ambassadors with sonorous names, but with empty heads.” It declares that Italy abroad is represented by inept, ignorant men, completely ignorant of their duties, derided because almost illiterate, not cared for because weak, despised because they are known to be the product of corruption and intrigue. And it adds, “ This is precisely the case with Count Naselli; perhaps also himself a consul by the grace of the Savoyian loins. Presumptuous, ignorant, impolite — he does not present any quality which might make of him an average consul of the lowest class.”
    We need not reproduce the volume of criticism which the article contains. It says of the prosecutor that he, with arrogance and phenomenal bestiality, prefers to give shyster legal consultations to whoever, innocently, may apply to him as the representative of his country; where he does not hesitate to take the odious, repugnant part of defender and justifier of those who commit abuses, violence and vexations against the Italians. It states how the duties of the consul should be performed with respect to the condition of the emigrants subject to military service, and declares that he prefers an offending behavior really worthy of a consul dug out from the nullities of a presumptuous, stupid, weak and degenerate aristocracy. It declares that he should provide a remedy for the swindling and thievery which are practiced against the emigrants at the landing station; but that having a weak and vile disposition, he prefers carelessness or a guilty acquiescence, only because, in his servile bureaucratic soul, he thinks that it is easier to take off his hat to prominent people enriched by crime, rather than ask for his countrymen the respect of the law. It pronounces him an ass, who has the good luck of clubbing instead of being clubbed. It concludes thus : “May, at least, the contempt of the conscious crowd mark on the hardened cheeks of these productions of the impertinent favoritism an indelible stamp of infamy.”
    This article was followed by a note: “ In future issues interesting articles, with documents, upon Nasellism. In the subsequent .... we shall contemplate how Count Naselli pockets money that should be expended in the better execution of the draft.”
    There does not appear to be in the article any statement of fact which might be made the subject of comment with a view to the enlightenment of the public.
    The other publications of the series were even more violent. They impute to the prosecutor that he was a buffoon, an imbecile, a swindler, a parasite, a blackmailer, a poltroon, an indirect descendant of the royal loins, a man with a brainless head, dishonest, degenerate.

      Independently of this question, however, the trial judge was of the opinion that the prosecutor was not a public officer within the meaning of the constitution. This left the case to be one of admitted guilt in the writing and publication of a malicious libel, and, accordingly, but one question presented itself : There being at bar a bald admission of the commission of the crime of what in law must be called a malicious libel, was it the duty of the trial judge to leave to the jury any question of doubt ?
    This subject claimed the closest attention on the argument of the rule for a new trial, and was raised by the answer of the court to the eighth point presented on the part of the defendants. That point was as follows : If, upon the evidence in the case, the jury have a reasonable doubt as to the guilt of the defendants, they must give the defendants the benefit of that reasonable doubt and render a verdict of not guilty.
    The answer of the court was: That I decline to charge because there is no evidence in the case on which you can found any reasonable doubt such as is indicated in the point itself.
    It was not necessary to refer to the technical defect in the point which, precluded, its affirmance. The claim that, upon the fair conception of a doubt, the verdict must be for the defendant, was too broad. In criminal procedure such a doubt might fall short of involving an acquittal, while supporting a recommendation to mercy, and a peremptory instruction upon the hypothesis presented would have been error. But the reason assigned at the trial was adequate.
    The subject appears free from difficulty upon the ascertainment of the issue and'the relation of the proofs to it. The facts as to which alone the jury might have had a doubt were facts sought to be set up in defense to rebut the presumption of malice. The facts of the indictment were all admitted by the defendants : the (1) writing and (2) publishing (3) of and concerning the prosecutor. The writing was in law libelous per se. Hence, as to the crime of criminal libel, it was fully made out, under the law, and there was no room for doubt; indeed, there was no issue of fact in any stage of the development of the case of the commonwealth.
    In a criminal trial the benefit of the doubt must be of a doubt as to the facts; and even in libel, where the jury are judges of the law as well as of the facts, the principle is the same. Some inaccuracy lurks in our familiar declaration that they judge of the law; but for our present purpose we need not enlarge upon this. It cannot be questioned that a jury’s doubt as to the law was never contemplated. If they have a reasonable doubt as to the law, it is their duty to resolve it by instructions of the court, or upon praying further direction, not by a verdict of acquittal. Their best evidence of the law is the judge’s declaration of it. Their doubt may be, not as to the law, but as to the application of it; but this is a doubt as to the facts, as to whether the facts make in all a case to which that law extends. In the case at bar, as we have seen, the defendants admitted the writing and publishing, and the truth of the innuendo that the prosecutor was intended. The court could under no circumstances permit the jury to doubt this. Then, nothing remained from which a doubt could arise in the defendants’ favor.
    The only issue of fact arose upon the presentation of the de-' fense, and if we assume for the purpose of the argument that an issue thus arose, two considerations present themselves: first, it is clear that ordinarily to have doubt as .to the facts would be to discredit the defense, upon whom the burden lay. To charge that the defendants should have the benefit of such doubt would be insensible. It would be a doubt against them, and an instruction to the jury to exclude the facts claimed, if they saw fit, would be to direct them to find the semblance of justification obliterated, and the criminal responsibility to remain as already established. If facts to rebut the presumption of malice are swept aside by the jury upon reasonable doubt, nothing remains but the malice. The defendants cannot complain that the court prejudiced them by not placing them in this situation.
    The second consideration arises upon the presumption of malice. A jury may hear evidence in defense in rebuttal of this presumption, and may consider that whilst this evidence is not conclusive, it affords ground for doubt of the evil intent of the defendants. Of this, of course, the defendants should have the benefit. In the case at bar, however, no facts were shown which could justify such a doubt. It was not a case in which proof was produced of any significance, but a case in which there was no proof. It was asserted in argument that the defendants were privileged to offer fair comment to the public touching the conduct of his office by the Italian consul; yet the assumption that a representative of a foreign government was a public officer in contemplation of the 8th section of the first article of the constitution was not fortified by authority, and the recital of his actions showed nothing in which the public had concern. With respect to these he is responsible only to his own government. He does not owe his office to the suffrages of our people.
    If, upon a-practical confession of guilt, the court is to charge the jury in the mode requested, it would, in effect, be an intimation to the jury that they had the power in violation of their sworn duty to find a verdict contrary to the truth.
    That the jury has the power to abuse its function is true, but that a court should be held to charge it to that effect on the ground that it is the defendants’ right is, in our opinion, a proposition not only untenable, but shocking to the moral sense.
    The rule for a new trial is discharged.

      Errors assigned, among others, were (18-24) above instructions, quoting them.

      Joseph Gilfillan, with him Willard E. Barms and George S. Graham, for appellants.
    — Evidence of good reputation was admissible: Heine v. Com., 91 Pa. 145; Com. v. Cleary, 135 Pa. 64.
    If there is one thing that is imbedded fundamentally in the administration of criminal justice, it is. the principle that the defendant must be proven guilty of the crime with which lie stands charged, beyond a reasonable doubt: Rudy v. Com., 128 Pa. 500; Com. v. Swallow, 8 Pa. Superior Ct. 539 ; Com. v. Devine, 18 Pa. Superior Ct. 431; Com. v. Rider, 29 Pa. Superior Ct. 621.

      William A. Gray, assistant district attorney, with him John C. Bell, district attorney, for the commonwealth.
    — Malice is inferred from the publication of the article itself: Neeb v. Hope, 111 Pa. 145; Com. v. Sanderson, 2 Clark, 54; Com. v. Brown, 1 Pa. Dist. Rep. 565; Barr v. Moore, 87 Pa. 385.

      When the publication is not privileged, truth cannot be received in evidence: Com. v. Brown, 1 Pa. Dist. Rep. 565; Com. v. Costello, 1 Pa. Dist. Rep. 745 ; Com. v. Odell, 3 Pittsburg, 449; Com. v. Murphy, 8 Pa. C. C. Rep. 399.
    Evidence of good reputation was inadmissible: Theel v. Com., 22 W. N. C. 58; Powell v. Com., 114 Pa. 265; Commonwealth v. Greybill, 17 Pa. Superior Ct. 514; Commonwealth v. Magee, 10 Phila. 201; Commonwealth v. Ridgeway, 2 Pa. Dist. Rep. 59; Commonwealth v. Duff, 7 Pa. Dist. Rep. 370; United States v. Susan B. Anthony, 11 Blatchf. 200.
    Though evidence of good character is to be- considered in determining the question of guilt or innocence, yet if the proof of guilt is clear and convincing, proof of previous good character cannot be looked to as ground of acquittal, and the jury may be so instructed: Edmonds v. State, 34 Ark. 720 ; State v. McMurphy, 52 Mo. 251; State v. Porter, 32 Oreg. 135 (49 Pac. Repr. 964) ; Jackson v. State, 76 Ga. 551; State v. Vansant, 80 Mo. 67; McQueen v. State, 82 Ind. 72; People v. Sweeney, 133 N. Y. 609 (30 N. E. Repr. 1005); People v. Hammill, 2 Park. Cr. Rep. (N. Y.) 223 ; People v. Mitchell, 129 Cal. 584 (62 Pac. Repr. 187) ; Wesley v. State, 37 Miss. 327.
    Where the evidence does not suggest a doubt, and guilt is clearly proved, the failure of the court to instruct on reasonable doubt upon being requested so to do is not ground for reversal: Pilkinton v. State, 19 Tex. 214; Van Brown v. State, 34 Tex. 186; Nicholas v. State, 6 Mo. 6 ; State v. Schoenwald, 31 Mo. 147 ; McGuire v. State, 37 Miss. 369 ; Rideus v. State, 41 Tex, 199; Com. v. Gibson, 211 Pa. 546 ; People v. Neumann, 85 Mich. 98 (48 N. W. Repr. 290).
    ' Albert B. Weimer filed a special brief for the commonwealth on the question of reasonable doubt:
    The doctrine of reasonable doubt in criminal cases had its origin in England, during the period when the penal code of England imposed the death penalty for slight offenses. When a man was to be hung for stealing a chicken, or a loaf of bread, the courts became astute to find ways of saving the prisoner. It had its earliest application some time in the latter part of the eighteenth century, and was probably based upon Sir Matthew Hale’s maxim: “ It is better that five guilty persons should escaped unpunished than one innocent person should die.” Sir William Blackstone in writing his commentaries over a bottle of port saw double and reproduced the maxim in the following form : “ The law holds that it is better that ten guilty persons escape, than that one innocent suffer.” Further exaggeration of the maxim is found in Starkie’s Evidence, first published in 1824, in which it appears in the following form: “ The maxim of the law is that it is better that forty-nine offenders shall escape, than one innocent man be condemned.” Mr. Starkie took up the subject of the doctrine of reasonable doubt, and enlarged its scope by saying that the result of the evidence must be a “ moral certainty, to the exclusion of all reasonable doubt.” It must be remembered, however, that the first edition of his work, which was long the leading, and for a time the only, treatise on the subject of evidence; was published at a period when there was a strong reaction against the atrocities of the penal code. When these atrocities were subsequently removed by the beneficent legislation procured by the efforts of Sir Samuel Romilly, the reasons for the doctrine lost much of their weight. There is no reason why it should ever have been applied in Pennsylvania, where the criminal code has always been mild and humane. The doctrine has been applied in all manner of extreme and absurd ways, and has led to innumerable miscarriages of justice. It should not be considered a property right of the defendant, and should only be applied in a case where the evidence is so evenly balanced that the jury finds it impossiblé to decide one way or the other as to the guilt of the defendant. In such a case, and only in such a case, is it proper for the jury to apply the rule, and give the prisoner the benefit of the doubt.
    An historical account of this subject may be found in an article entitled “Some Rules of Evidence, Reasonable Doubt in Civil and Criminal Cases,” in Yol. X, Am. Law Rev., p. 642.
    October 5, 1906 :
   Opinion by

Oblady, J.,

The defendants were convicted of criminal libel on a charge preferred by Count Nassilli, the Italian consul at Philadelphia. John and Joseph Di Silvestre were the owners of a newspaper (II Popolo), published in the Italian language, and Carlo Fresco was the writer of the article set out in the indictment. There were indictments against each of the defendants individually, and one against John and Joseph Di Silvestro jointly. The charge in each indictment was the same libel, and all four cases were tried together, a verdict of guilty being rendered in each case. This libel was dated June 3, 1905, and appeared in II Popolo on that date. It had been preceded by a publication of the same character in the same newspaper on May 27th, and was followed by others of like import in ten subsequent issues of the newspaper of the same year. The ownership of the newspaper, the writing and publication of the different articles, and that the prosecutor was the person referred to therein were admitted on the trial by each of the defendants. While there was some slight controversy as to the technical meaning of some of the words used in the publication, the interpreters called by the commonwealth and the defendants agreed that the translations of the article as it appears in the indictment, as well as in the exhibits offered in evidence, are materially and substantially true and correct.

The article charged Count Nassilli with being a bastard, ignorant of his duties, illiterate, weak, despised, the product of corruption and intrigue; that with phenomenal bestiality he preferred to give shyster legal consultations to whoever might innocently apply to him as the representative of his country, and concludes : “ May, at least, the contempt of the conscious crowd mark on the hardened cheeks of these productions of the impertinent favoritism, an indelible stamp of infamy.” Taken with the other issues'of II Popolo there can be no question but that these defendants wrote and published of the prosecutor that he was a buffoon, an imbecile, a swindler, a parasite, a blackmailer, a poltroon, an indirect descendant of royal loins, a man with a brainless head, dishonest, degenerate, an ass who had the good luck of clubbing instead of being clubbed.

The trial judge instructed the jury that the article of June 3, 1905, is libelous in itself, and being thus libelous in itself, the law declares that article to be malicious and criminal. The defendants contended on the trial that the articles were privileged under article I., section 7, of our state constitution, as follows: ‘‘ No conviction shall be had in any prosecution for the publication of papers relating to the official conduct of officers or men in public capacity, or for any other matter proper for public investigation or information, where the fact that such publication was not maliciously or negligently made shall be established to the satisfaction of the jury;” and the Act of April 11, 1901, P. L. 74, as follows: “ That in all criminal prosecutions no convictions shall be allowed if the subject-matter of the publication relates to candidates for public office and is found, to the satisfaction of the jury, to be proper information or investigation and not to have been maliciously or negligently made. In all such cases the truth may be given in evidence to the jury.”

There was nothing in any of the offers of evidence, which was excluded, to show the duty, character or tenure of the office of consul of Italy at Philadelphia. The articles were not addressed to any functionary having authority to redress grievances, and in many particulars related to matters not of public interest, but were clearly personal and defamatory of the prosecutor as an individual. In every way of reading the publication it is plainly and grossN libelous in itself; vile and opprobrious epithets were repeated even after an action in the civil court had been instituted by this prosecutor against these defendants, and they necessarily tended to degrade him in the opinion of the public: Wood v. Boyle, 177 Pa. 620.

Though some abuses were-alleged relating to fees to be charged in conducting the affairs of the office of consul, they relate to possible rights of persons having business relations with a foreign official and in regard to which none of our citizens could be concerned. Nor would our public be interested in the expending of the moneys furnished by the Italian government to its consul for its home military purposes. The redress for such grievances would be effected through channels over which our laws would not have any control. However, such references represented but a minor part pf the articles, and even if such part could be deemed proper for public information or investigation, which we do not concede, all immunity on that ground is lost to the defendants by the unfair and malevolent character of the publication. The occasion was not privileged, nor the prosecutor a public officer within the meaning of our law. Tiie facts being clearly established by the personal testimony of the defendants, it became a question of law for the court to declare whether or not the communieation was privileged: Neeb v. Hope, 111 Pa. 145; Briggs v. Garrett, 111 Pa. 404 ; Conroy v. Pittsburg Times, 139 Pa. 334; Jackson v. Pittsburg Times, 152 Pa. 406.

Under the record as the defendants made it the question of their good reputation was not material as an item of evidence, and could not have any bearing on the question of their guilt or innocence. Of what avail would it be, to show that the defendants were honest, truthful and law-abiding citizens, when they avow the making and publication of a writing which the law declares to be a malicious libel? Their past conduct as citizens could not change the legal conclusion flowing from their admitted acts.

An earnest argument is urged by the appellants in regard to the answer of the court to their eighth point (twenty-fourth assignment of error) as follows : “ If upon the evidence in the case the jury have a reasonable doubt of the guilt of the defendants, they must give the defendants the benefit of that reasonable doubt and render a verdict of Not guilty; ” the answer being, That I decline to charge because there is no evidence in the case on which.you can found any reasonable doubt, such as is indicated in the point itself.” In the general charge the trial judge fairly and fully submitted to the jury to find the correctness of the translation from Italian to English; the general meaning of the words used; the versions representing the spirit and expression of the papers; whether the presumption of malice arising from the character of the publication had been rebutted; the intent and purpose as shown by the repeated publications ; whether the defendants had exercised reasonable care in securing information touching the conduct of the consul, and the good faith of the reports on which they acted; and in answer to the defendants’ seventh point as follows, “ The jury is the sole judge of the law and the facts in all criminal prosecutions for libel,” replied: “ That I affirm, without going into any consideration of the modification of the principle winch may be stated here. It is according to the • tenor of our general charge.” The trial judge held more favorably in the defendants’ favor than recent decisions require.

The question raised by the seventh point is not before us on this appeal and we are not bound by the court’s answer to it. The answer to the eighth point (24th assignment of error) was in strict accord, with many decided cases. The vital facts, solely as facts, were made by the defendants’ personal testimony. The writing of the articles, the publishing of them in their paper, II Popolo, and that they concerned the prosecutor were distinctly and unqualifiedly admitted by the defendants on the witness stand, as well as by their counsel in argument. To what evidence in the case, as evidence, that the jury might possibly have any doubt in regard to, did this point refer? Surely, not the facts which the defendants furnished. They would not invite a doubt as to their own declarations or veracity, and to instruct the jury to have a reasonable doubt “ upon the evidence ” so given would be a mere play on words. The point carefully refrained from asking instructions upon questions of law, or mixed questions of law or fact, as that ground had been covered in the seventh point, and its answer was in their favor. Taking the facts so made, the writing, publication and innuendo as fixed by the defendants, the only remaining elements were purely questions of law, concerning privilege and malice, and these would not be included within the point as stated. The reasonable doubt to which a defendant is entitled is not one raised by the juror’s personal information, from hearsay or otherwise or from his bias or prejudice, but must grow out of and be founded upon the evidence adduced on the trial. There was no question of credibility of witnesses, conflict of construction of the article, or doubt as to identit}*- of the person meant.

In Theel v. Commonwealth, 22 W. N. C. 58, the defendant was indicted and convicted for distributing a book in violation of a statute. It was a question of law whether it',was published and distributed in violation of law, and the court instructed the jury that as the defendant had admitted the publication, and the advertisements of medicines, drugs, nostrums or apparatus for the cure of secret or venereal diseases, as set out in the indictment, as contrary to the statute, they should find him guilty. On which instruction the defendant was convicted and the Supreme Court affirmed the judgment. In Powell v. Commonwealth, 114 Pa. 265, the court below said: “ As the record now stands, the commission of the offense charged in the indictment is admitted, and it is therefore your duty to render a verdict of guilty.” On appeal this judgment was affirmed. The proper construction is put on the point in the opinion refusing-a new trial: “ If upon a practical confession of guilt the court is to charge the jury in the mode requested, it would, in effect, be an intimation to the jury that they had the power in violation of their sworn duty to find a verdict contrary to the truth. That the jury has the power to abuse its function is true, but that a court should be held to charge it to that effect on the ground that it is the defendants’ right, is in our opinion a proposition not only untenable, but shocking to the moral sense.” In the light of the defendants’ testimony the answer to this point was correct.

The assignments of error are overruled, the judgment is affirmed, and the record remitted to the court below that the sentencé of the court may be carried into effect-


author: Orlady, J.,

text:
    Commonwealth v. Di Silvestro, Appellant
    (No. 2).
    Argued April 18, 1906.
    Appeal, No. 254, Oct. T., 1905, by defendant, from judgment of Q. S. Phila. Co., Oct. T., 1905, No. 410, on verdict of guilty in case of Commonwealth v. Joseph Di Silvestro.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    October 5, 1906:
   Opinion by

Orlady, J.,

For reasons given in an opinion filed herewith in Commonwealth v. Giovanni Di Silvestro and Joseph Di Silvestro, ante, p. 537, the assignments of error are overruled and the judgment affirmed, the record to be remitted to the court below that the sentence of the court may be carried into effect.


text:
    Commonwealth v. Di Silvestro, Appellant
    (No. 3).
    Argued April 18, 1906.
    Appeal, No. 255, Oct. T., 1905, by defendant, from judgment of Q. S. Phila. Co., Oct. T., 1905, No. 413, on verdict of guilty in case of Commonwealth v. Giovanni Di Silvestro.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, J.J.
    Affirmed.

      October 5, 1906 :
   Opinion by

Orlady, J.,

For reasons given in an opinion filed herewith in Commonwealth v. Giovanni Di Silvestro and Joseph Di Silvestro, ante, p. 537, the assignments of error are overruled and the judgment is affirmed, the record to be remitted to the court below in order that the sentence of the court may be carried into effect.


text:
    Commonwealth v. Tresca, Appellant.
    Argued April 18, 1906.
    Appeal, No. 256, Oct. T., 1905, by defendant, from judgment of Q. S. Phila. Co., Oct. T., 1905, No. 417, on verdict of guilty in case of Commonwealth v. Carlo Tresca.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady and Head, JJ.
    Affirmed.
    October 5, 1906 :
   Opinion by

Orlady, J.,

For reasons given in an opinion filed herewith in Commonwealth v. Giovanni Di Silvestro and Joseph Di Silvestro, ante, p. 537, the assignments of error are overruled and the judgment is affirmed, the record to he remitted to the court below in order that the sentence of the court may be carried ..into effect.


author: Beaver, J.,

text:
    McCullough v. Kinnan, Appellant.

      Judgment — Opening judgment — Discretion of court — Review.
    On an application to open a judgment, it is proper for the court below to weigh the evidence and to decide according to the preponderance thereof, and the appellate court will not reverse for the exercise of a sound discretion. .
    Argued May 8, 1906.
    Appeal, No. 82, April T., 1906, by defendant, from order of C. P. Indiana Co., Dec. T., 1904, ' No. 268, refusing to open a judgment in case of S. I. McCullongh. v. H. M. Kinnan and J. W. Kinnan..
    Before Rice, P. J., Porter, Henderson, Morrison, Head and Beaver, JJ.
    Affirmed.
    Rule to open judgment.
    The opinion of the Superior Court states the case.

      jError assigned was in not opening the judgment.

      E. Walker Smith, for appellant.

      E. B. Taylor, with him S. M. Jack, for appellee.
    October 5, 1906:
   Opinion by

Beaver, J.,

Applications were made to the court below for the opening of nine several judgments, purporting to be signed by H. M. Kin-nan and his father, J. W. Kinnan, who is the appellant here. After testimony taken, and hearing, all of the judgments were opened, except the one now before us, which the court in an opinion filed refused to open. This of itself shows discrimination on the part of the court and the exercise of discretion. The opinion filed by the court gives the reasons upon which that exercise of discretion is based, and states as a final conr elusion:

“ In our opinion the testimony submitted to the court in this case would not justify a jury in finding that the note in question is a forgery. It is not so clear and indisputable as would warrant the court in setting it aside. The date, the amount and the payee of the note corresponding with the numerous admissions of the defendant, we regard the preponderance of the testimony to be in favor of the genuineness of the obligation.”

It is undoubtedly true that this is a case in which the minds of different persons might be led to different conclusions. The appellant swore positively that the signature to the note in question was not his signature and in this he is corroborated by the testimony of several persons who were familiar with his signature. On the other hand, it was testified by several witnesses that he had admitted the giving of a note which corresponded in' date, amount and name of pajme with the note in question. The court had the witnesses before it, could judge of their credibility much better than we, and we are, therefore, not prepared to say that the court failed to exercise a sound legal discretion in the disposition of the case.

In Augustine v. Wolf, 215 Pa. 558, in the discussion of a case somewhat similar, it was said, quoting from' Blauvelt v. Kemon, 196 Pa. 128: “ on an application to open a judgment, it is proper for the court below to weigh the evidence and to decide according to the preponderance thereof, and we will not reverse for the exercise of a sound discretion: Wernet’s Appeal, 91 Pa. 819. An application to. open a judgment, entered on warrant of attorney or on a judgment note, is addressed to the equitable powers of the court below, and upon an appeal to the Supreme Court, under the Act of April 4, 1877, P. L. 53, the question is whether the court below rightly exercised its discretion on the evidence. It is a mistake to suppose that the court to which the application is made cannot judge of the weight of the evidence and the credibility of the witnesses, but in every case where there is a conflict of testimony must send the case to a jury: Jenkintown National Bank’s Appeal, 124 Pa. 337. Applying these well-settled principles to the case at bar, we cannot convict the court of error in refusing to open the judgment.”

Whilst it is possible that some of those who heard the case here on appeal might have reached a different conclusion from that reached by the court below, we are not prepared to say, under the circumstances, that the discretion of the court below was not wisely exercised.

Judgment affirmed and appeal dismissed at the costs of the appellant.