text:
    Commonwealth v. Evans.

      Criminal law—Fornication and bastardy—Single conviction.

    The conviction of a man of fornication prevents a subsequent prosecution for bastardy growing out of the same illicit act of carnal intercourse.
    Argued Oct. 5, 1910.
    Appeal, No. 112, Oct. T., 1910, by defendant, from judgment of Q. S. Lancaster Co., Sept. T., 1909, No. 56, on verdict of guilty in case of Commonwealth v. Evans.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for bastardy. Before Landis, P. J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which judgment of sentence was passed.

      Error assigned was in refusing binding instructions in favor of the defendant.

      B. F. Davis, for appellant.
    There was no appearance or paper-book filed for appellee.
    March 3, 1911:
   Opinion by

Henderson, J.,

The appellant was indicted for rape in the court of oyer and terminer of Lancaster county at No. 34, January Term, 1909. The indictment contained a single count. At the trial of the case the evidence was not deemed sufficient by the court to justify a conviction of the defendant of the felony but the jury was instructed that he might be convicted of fornication and bastardy if they believed the evidence of the commonwealth, and the defendant was so convicted. On a rule for a new trial and in arrest of judgment the court set aside as much of the verdict as convicted the defendant of bastardy and sentenced him for fornication. At the September sessions, 1909, of the court of quarter sessions of that county the appellant was indicted for fornication and bastardy arising out of the same single act of carnal intercourse on which the prosecution for rape was based. An amendment of the indictment was subsequently made striking out the charge of fornication. To this indictment the defendant pleaded “not guilty,” “autrefois convict” and “autrefois acquit” which latter plea was overruled by the court. The jury returned a verdict of guilty of bastardy on which verdict the judgment was entered from which the pending appeal was taken. It is now contended that the defendant was not liable to be tried on a separate indictment for bastardy after a conviction and sentence for fornication at a preceding term of the court of oyer and terminer and that the court erred in proceeding to trial and in pronouncing judgment on the verdict on the general issue without first having submitted to the jury the issue raised by the plea of a former conviction. The regularity of the conviction and sentence on the indictment in the court of oyer and terminer is not questioned and the subject for consideration now is whether the offense of fornication and bastardy may be divided and prosecuted under separate indictments where the foundation for the prosecutions arises in a single act of illicit carnal intercourse. It has been repeatedly held in this state that in cases involving illicit carnal connection the essential fact which constitutes the crime is fornication. Where the act is unaccompanied by aggravating circumstances it is fornication simply. When the birth of an illicit child is a- consequence it is fornication and bastardy. Where it is committed with a woman of good repute under twenty-one years of age under promise of marriage it is seduction. When committed by a married man or woman it is adultery. But as was said in Dinkey v. Com., 17 Pa. 126, “the body of all these offenses is the illicit connection.” In like manner in Gorman v. Com., 124 Pa. 536, the court said, “Whether the charge be fornication and bastardy, adultery or seduction the essential fact which constitutes the crime is fornieation; these several offenses exist by reason of the several peculiar aggravations which in each case accompany the perpetration of the crime.” In Com. v. Lewis, 140 Pa. 561,'the indictment against the defendant contained three counts. The first charged assault and battery; the second assault and battery with intent to ravish and the third that the defendant “feloniously, unlawfully and carnally did know and abuse and a male bastard child on the body of one Lizzie Kimmel did beget, said Lizzie Kimmel then and there being a woman child under the age of sixteen years.” The jury acquitted the defendant of the offenses charged in the several counts but convicted him of fornication and bastardy. The case came up on the point that a verdict of bastardy could not be found under the indictment, and in considering that question it was .said in the opinion of the Supreme Court that there was no error in charging bastardy in the same count with rape; that fornication and bastardy are almost invariably charged in the same count and that adultery and bastardy may be. “In either case the bastardy is but an aggravation of the offense charged. Why may not a count for rape include a charge of bastardy? Both adultery and rape include the offense of fornication; it is necessarily involved in them; bastardy is not necessarily involved, but it may be. Here, the offense was rape; it involved fornication, and bastardy resulted as an incident. There was but the one act charged in the. indictment although it is called by different names to meet the exigencies of the proofs on the part of the commonwealth.” So, too, in Com. v. Ruffner, 28 Pa. 259, Chief Justice Lewis thus expressed the same view: "It is unnecessary to cite authority to show that in an indictment for fornication and bastardy, fornication is regarded as the offense charged. The bastardy is only one of its usual consequences.” It was accordingly held that where the offense of fornication was committed more than two years before the commencement of the prosecution it was barred by the statute of limitations although the birth of the illegitimate child took place within two years from the date of the prosecution. The case of Com. v. Lloyd, 141 Pa. 28, is perhaps more directly to the point and controls the question in our view of the case. There the defendant was charged with having had illicit intercourse with the prosecuting witness in Luzerne county. The woman subsequently went to Lackawanna county where a child which was the issue of the intercourse in Luzerne county was born. A prosecution was instituted against the defendant for fornication and bastardy in the latter county, the result of which was that he was convicted of fornication. Subsequently he was indicted for bastardy in Lackawanna county where the child was born; whereupon, he filed a plea to the last indictment setting up the fact of the former conviction and sentence for fornication in Luzerne county, on which plea issue was joined and the case submitted to the court on the pleadings. After argument judgment was entered for the defendant and the commonwealth appealed. It was conceded that under the act of 1860 the defendant could not have been convicted of bastardy in Luzerne county, for that act prescribes that the prosecution of the reputed father shall be in the county where the child is born. It was- contended, therefore, that because the charge of bastardy could only be prosecuted in Lackawanna county the proceeding in Luzerne county was not a bar. But the court held on the appeal that the defendant having been convicted of one of the offenses charged, to wit, fornication, could not afterward be held in Lackawanna county on an indictment .for bastardy. In the course of the discussion the court said: “While it is true that this offense may be so far separated as to charge fornication in one count of the indictment and bastardy in another yet bastardy is but an incident of the fornication, the result of a single act. Hence, we do not think the commonwealth can prosecute for the one offense in one county and for the other in a different county. In other words, there may be two counts but not two prosecutions.” And this reasoning applies equally well to prosecutions in the same county. The charge of bastardy necessarily involves the act of fornication, and where the defendant has been convicted of the latter crime under one indictment it would be unjust to permit a second prosecution involving the same act under a different name because of the aggravated consequences attending it. The commonwealth put the defendant on trial on an indictment involving the charge of fornication. It might also have been made to cover the consequent bastardy. Having elected to proceed in the manner adopted we regard it as contrary to precedent and prejudicial to the rights of the defendant to subject him to the second trial on a charge which is incidental to that for which he was formerly convicted. We are confirmed in this view by a consideration of the provisions of sec. 37 of the Act of March 31,1860, P. L. 382, prescribing the penalty for fornication. Under the provisions of that section a part of the penalty on a conviction of fornication where a bastard child has been born as the result of such act is that the defendant pay in addition to the fine imposed the expenses incurred at the birth of such child and that he give security in such sum as the court shall direct to perform such order for the maintenance of the child as the court shall direct. The act of fornication is here regarded as the misdemeanor and the bastardy as an incident of the act. We are led to the conclusion that the conviction of the defendant of fornication prevents a subsequent prosecution for bastardy growing out of the same act of illicit carnal intercourse and, therefore, feel constrained to reverse the judgment of the court of quarter sessions. As this conclusion disposes of the whole case it is unnecessary to consider the objection that the plea of the former conviction was not submitted to the jury by the learned trial judge.

The judgment is reversed and the defendant discharged.


source: Caselaw Access Project

author: Beavek, J.,

license: Public Domain

text:
    Commonwealth v. Kleckner, Appellant.

      Criminal law—Indictment—Embezzlement—Act of March SI, 1860, sec. 114, P• A. 882, 410.

    1. An indictment for embezzlement which charges the offense in the very words of sec. 114 of the Act of March 31, 1860, P. L. 382, 410, is good and sufficient.
    2. On the trial of an indictment for embezzlement against a real estate broker who was charged with retaining moneys of his principal realized from the sale of real estate, evidence as to later sales on which commissions were claimed by the defendant, is inadmissible where the issue is clearly defined as to the appropriation of the specific sum stated in the indictment, and the sales upon which the commissions were claimed were not made until after the appropriation aforesaid.
    Argued Oct. 5, 1910.
    Appeal, No. 116, Oct. T., 1910, by defendant, from judgment of Q. S. Lehigh Co., April Term, 1910, No. 37, on verdict of guilty in case of Commonwealth v. Levi H. Kleckner.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for embezzlement. Before Trexler, P. J.
    The opinion of the Superior Court states the case.
    Verdict of guilty, upon which the defendant was sentenced to pay a fine of $260, restore property due, pay the cost of prosecution, and undergo imprisonment in the county prison for the term of one year and six months.

      Error assigned among others was in refusing binding instructions for defendant.

      James L. Schaadt, with him Lawrence Rupp ', for appellant.

      Fred B. Gernerd, district attorney, with him Fred E. Lewis, for appellee.
    March 3, 1911:
   Opinion by

Beavek, J.,

The defendant was charged in an indictment containing four counts, with:

First. Within the jurisdiction of the court, etc., “being then and there an agent and being then and there in the employment of and acting for one, Ida C. Seagreaves, and being then and there, by virtue of his said business as agent in the employment of and acting for the said Ida C. Seagreaves intrusted with for safe custody, certain property, to wit, two thousand dollars, which the said Levi H. Kleckner received into his possession, custody and control, for and on behalf of the said Ida C. Seagreaves, by reason of the sale of certain real estate which he, the said Levi H. Kleckner made as agent for and on behalf of the said Ida C. Seagreaves, of the value of two thousand dollars, of the goods and chattels, moneys and property of the said Ida C. Seagreaves, then and there being found, then and there with intent to defraud the said Ida C. Seagreaves, did sell, convert and appropriate the said goods and chattels, moneys and property of the said Ida C. Seagreaves to and for his own use, contrary to the form of the act of the General Assembly in such case made and provided,” etc.

Second. “That the said Levi H. Kleckner, . . . . being then and there a real estate broker, did receive, as such broker, a certain tract of real estate to sell for one, Ida C. Seagreaves, and he, the said Levi H. Kleckner, did sell a certain part of the aforesaid real estate given to him by the said Ida C. Seagreaves to sell, and he, the said Levi H. Kleckner, did receive, from the purchaser of the aforesaid tract of real estate, money of the United States of America for and on behalf of the said Ida C. Seagreaves; that he, the said Levi H. Kleckner, failed to turn over and deliver the money which he received for and on behalf of the said Ida C. Seagreaves as the result of the sale of the aforesaid tract of real estate and did convert and appropriate to his own use the purchase money, to wit, two thousand dollars, lawful money of the United States of America, with intent to defraud the said Ida C. Seagreaves, contrary to the form of the act of the General Assembly,” etc.

Third. That the defendant being “in the employ of Ida C. Seagreaves as clerk and servant did, by virtue of his said employment and whilst he was so employed as aforesaid, then and there receive and take into his custody, care and possession, for and in the name and on account of the said Ida C. Seagreaves, his employer as aforesaid, a large number of promissory notes, etc., of the value of two thousand dollars of the goods and chattels, moneys and property of the said Ida' C. Seagreaves, then and there being found, then and there fraudulently embezzled, and then and there feloniously did steal, take and carry away contrary to the form of the act of the General Assembly,” etc.

Fourth. That the defendant “with force and arms, etc., lawful money of the United States of America of the value of two thousand dollars of the goods and chattels, moneys and property of Ida C. Seagreaves, then and there being found, then and there feloniously did steal, take and carry away, contrary to the form of the act of the General Assembly,” etc.

A motion was made by the defendant to quash the second count of the indictment, for the reason that no offense is charged according to the criminal code, which was sustained by the court below. It is now claimed that there could be no conviction under the first count, because no misdemeanor under sec. 114 of the Act of March 31, 1860, P. L. 382, 410, was charged. The offense however, contained in the first count of the indictment, is charged in the very words of the act, and this has uniformly been held to constitute a good indictment.

It is unnecessary to cite authorities for this well-settled question. In Com. v. New Bethlehem Borough, 15 Pa. Superior Ct. 158, and in Com. v. Miller, 31 Pa. Superior Ct. 309, the question is well set forth and many authorities cited.

It is claimed by the appellant that he had a right under a written agreement with the prosecutrix to sell the real estate for which he received the purchase money, and this is true. So far as the conversion, therefore, is concerned, there was nothing illegal, much less criminal, in his making the sale, but the section is much broader than that and is: “Section 114. If any person, being a banker, broker, attorney, merchant or agent, and being intrusted, for safe custody with the property of any other person, shall, with intent to defraud, sell, negotiate, transfer, pledge, or in any manner convert or appropriate to or- for his own use, or the use of any other person, such property, or any part thereof, he shall be guilty of a misdemeanor.” Here there was not only a conversion charged, but an appropriation as well and, under the evidence, this was shown to the satisfaction of the jury, so that, in our opinion, the first count, independently of the third and fourth, would sustain the charge of the appropriation which is equivalent to embezzlement.

An effort is made by the appellant to confuse different transactions, alleged to have been had by the appellant with other parties than the one to whom he sold the particular property, the proceeds of which he is charged with appropriating to his own use. It is, therefore, necessary, in order to have a clear view of the relations of the parties, to refer specifically to certain dates. No bill of particulars was asked for, but it appeared clearly in the testimony, and the court confined the commonwealth in its evidence to the transaction with John J. Long, to whom the defendant, as the agent of the prosecutrix, sold certain lots for a price or sum aggregating $3,300, out of which $2,475 belonged to Mrs. Seagreaves. The defendant paid to the prosecutrix $475, leaving $2,000 due to her under their agreement. At the time the money was received from Long by the defendant, which was sometime in July, 1909, no other sales for which the defendant had not received his commission had been made, or, so far as appears by the evidence, were pending. In February, 1910, Mrs. Seagreaves made a deed to one Koch for certain parts of her real estate, in which the consideration was $9,000. Whether or not the defendant made this sale, as he claims, or it had been made by others who had been authorized by Mrs. Seagreaves to make it for her, does not seem to us to be material in this case. The civil rights of the defendant and Mrs. Seagreaves are not to be determined in this prosecution and the simple question at issue was whether or not the defendant had received from John J. Long $2,000 which belonged to Mrs. Seagreaves, and had appropriated that sum to his own use. This issue was clearly and fairly submitted to the jury and, under the facts, as they appeared in evidence, we are satisfied that their verdict of guilty was justified and sustainable.

The second, third and fourth assignments of error relate to the admission of evidence of other subsequent sales of the property of the prosecutrix to other parties, under which the defendant claims that his commission amounted to more than the money which he held in his hands from the John J. Long sale belonging to Mrs. Seagreaves. We think the offers of testimony relating to these subsequent sales, upon objection, were properly overruled.

There was evidence which, if .believed by the jury, clearly established the fact, that the defendant had used, according to his own admissions, the money referred to, in the payment of purchase money for a house for himself, and even if at the time he were negotiating other sales, he was not entitled to a commission thereon until they were consummated, and by the offers themselves it would appear that the deeds were not made until February, 1910, the testimony showing that the $2,000 due Mrs. Seagreaves from the John J. Long sale had been received and appropriated by the defendant prior to September 2,1909. Whether or not the defendant was entitled to any commission for these sales is a question which, of course, is not determined, and we are unable to see how it could be legally determined in this issue.

The fifth assignment of error relates to two several excerpts from the charge of the court, as to which we can see no reasonable objection. The rights of the defendant are fully guarded in the latter of the two paragraphs, in which the court said: “He was the custodian of this money and only waited the time to pay it over. He had no. right to use it for his own purposes. If the money belonged to him, by reason of the sales of other property, then "he could do with it as he pleased. If he did owe Mrs. Seagreaves $2,000, he could take it for his own purpose.” This was surely as far as the court could go in the defendant’s behalf, but, so far as we can see, there was no evidence upon which the jury could find the defendant entitled to appropriate the $2,000 belonging to the prosecutrix from the John J. Long sale.

From what has been said, it seems to us apparent that the sixth assignment, which relates to the refusal of the court to charge that “Under all the evidence and the indictment, the verdict should be for the defendant” cannot be sustained.

Upon a careful review of the whole case, we can see no legal or reasonable ground for a reversal.

Judgment affirmed and the record remitted to the court of quarter sessions of Lehigh county to the intent that the sentence imposed by the court may be fully carried into effect.


author: Rice, P. J.,

text:
    Commonwealth ex rel. v. Murphy
    (No. 1).

      Criminal law—Sentence—Terms of court—Adjourned court—Schuylkill county.

    1. In Schuylkill county where a person has been convicted at a regular term of the criminal court, he may be sentenced at an adjourned court, and the day to which the court was adjourned is to be treated for that purpose as part of the term. A subsequent day before the beginning of the next regular term, to which the court is again regularly adjourned may, with equal propriety, be treated as part of the term for the purpose of reconsidering, altering, or revoking the sentence.
    2. Where a person is convicted by a jury before one of the three judges of the court, and he is subsequently sentenced by the three judges sitting together, and thereafter the trial judge makes an order suspending the sentence until the matter should be considered by his associates and himself acting together, and finally the other two judges make an order refusing to modify the original sentence, and directing that it should not be further suspended, such order is a proper and legal one and will be upheld by the Superior Court against the prisoner in habeas corpus proceedings brought by him in that court.
    Argued Oct. 6, 1910.
    Petition for habeas corpus Nos. 126 and 127, Oct. T., 1910, in suits of Commonwealth ex rel. William J. Jones and William E. Grow v. Patrick J. Murphy, Sheriff of Schuylkill County, and James Walton, Warden of the Schuylkill County Prison.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Prisoner remanded.
    Petitions for writ of habeas corpus.
    The petition to the Superior Court for the writ of habeas corpus was as follows:
    “On September 2, 1909, your relator, and the four other election officers of the William Penn polling district of West Mahanoy Township, Schuylkill County, were arrested for making a false return and making a false list of voters at the primary election of June 5th, 1909. Your relator was indicted on November 8th, 1909, on two charges, in indictments Nos. 1409 and 1409-A of September Term, 1909. At the November Term of court each of the other four election officers were separately indicted, in two separate bills for each, for the same offenses, growing out of the same primary election. The cases of all five defendants were called for trial together on Friday, March 11th, 1910, in the Court of Quarter Sessions of the Peace, before Judge C. N. Brumm, one of the three Common Pleas Judges of Schuylkill County. Counsel for both the Commonwealth and for the defense asked for a separate trial for each defendant. But notwithstanding the fact that there were five defendants, each indicted for two offenses, making ten indictments in all, the application of both the Commonwealth and the defense for separate trials, was overruled, and the several defendants were compelled to go to trial together. They were all convicted on both indictments, respectively, on March 15th, 1910. The only substantial ¡reason presented in the motion in arrest of judgment and for a new trial, was the fact that the Court had refused the defendants separate trials. This motion was overruled on April 18th, 1910; and on the same day sentence was imposed on your relator under indictment and conviction No. 1409, for making a false return—which sentence was, one dollar fine, costs, three years’ imprisonment in the Schuylkill County Jail, and depriving him of the right of suffrage absolutely for a term of four years.”
    After his sentence, petitioner for the first time employed counsel, who prepared a petition for him, a copy of which is hereto attached (marked exhibit “A”), and presented the same to the trial judge, C. N. Brumm, on April 28, 1910, praying the court, inter alia, to permit him to establish the truth of all the allegations set out in the petition, and to revoke the sentence passed upon him on Monday, April 18, 1910. The trial judge fixed Saturday, April 30, 1910, at eleven a. m. for a hearing on said petition. At that hearing all the counsel representing the commonwealth and the defense at the trial, and the counsel who presented the petition, were present. The trial judge sat during the morning and afternoon sessions, until after four o’clock p. m., and then made the following order:
    “And now, April 30, 1910, the Court having heard the testimony of William Jones and William Grow and Mrs. Grow, taken under cross-examination in the presence of all the counsel concerned, both for the Commonwealth and the defense, and after argument of counsel, and the motion being made and action taken within the term in which they were convicted and sentenced, the Court now revoke the sentence passed upon the said Jones and Grow on April 18, 1910, and suspend sentence in the case in which they were sentenced, until I have an opportunity to consult with my colleagues on the matter, and that they each enter into bail to be approved of by Court, in the sum of five thousand dollars.
    “We wish to add to that, we do this because it is now fifteen minutes after four o’clock on Saturday, the thirtieth day of April, the last day of the term.”
    The same day bail was perfected in accordance with the said order, in the sum of $5,000; and on the following day your relator was released from custody.
    Judges Arthur L. Shay and H. O. Bechtel, the other two common pleas judges, on Monday, May 9, 1910— neither of whom had any part in the trial of petitioner, and neither of whom heard the testimony presented at the hearing on April 30—each handed down an opinion, copies of which are hereto attached (marked exhibits “B” and “C”), making the following order:
    “And now, May 9, 1910, the order of Judge Brumm of April 30th, 1910, revoking the sentence of William Jones and William Grow, passed and entered by this Court on Monday, April 18th, 1910, is set aside, the rule is discharged and the sentence is reinstated as though the above order were never made, and the High Sheriff of Schuylkill County is directed and ordered to take into his custody forthwith the said William Jones and William Grow and deliver them into the possession of the warden of the Schuylkill County Prison for the fulfillment of the sentence imposed. By the Court. Arthur L. Shay, P. J.; H. 0. Bechtel, A. L. J.”
    On the same day that Judges Shay and Bechtel made the order directing the sheriff to remand the prisoner to jail, in pursuance of that order the sheriff returned your relator to jail, where he is still detained unlawfully.
    The trial judge, C. N. Brumm, on Monday, May 16, 1910, handed down his opinion (hereto attached, marked exhibit “D”)> and made the following order theron:
    “I therefore insist that the order made by me to revoke these sentences, shall stand and that these defendants shall be released under bail until their cases are finally disposed of under said order. C. N. Brumm, J. C. P.”
    “Your petitioner is informed and believes that the trial judge who imposed the sentence and heard his petition for a revocation of sentence, and whose conscience was moved to revoke the sentence before the next succeeding term, acted within his legal prerogative and right, and that his order of April 30, 1910, and the reaffirmation of the same on May 16, 1910, entitles your petitioner to his liberty in accordance with the said orders and under the provisions thereof.
    “The other two common pleas judges, who had taken no part in the trial, had not heard any of the testimony at the trial or hearing on the petition for revocation of sentence, had no jurisdiction to direct the sheriff to seize your relator and return him to the county jail, where the sheriff unlawfully took him, and where he is now unlawfully detained, in the custody of the warden of the said jail. The said sheriff and warden refuse to obey the said order of the trial judge, directing them to admit your relator to bail as aforesaid.
    “Therefore, your relator prays the court to award a writ of habeas corpus against the said Patrick J. Murphy, sheriff of Schuylkill county, and James Walton, warden of the Schuylkill County Prison, returnable forthwith, that cause may be shown why your relator should not be discharged and set free, as per order of the said trial judge; and that your relator may be brought before your honors, to do, submit to, and receive what the laws may require.”
    On the above petition the writs of habeas corpus were awarded and the relators were released under bail.

      Wm. Wilhelm, with him E. J. Maginnis, for relators,
    cited: Greason’s Petition, 205 Pa. 630; Webster v. Coal & Coke Co., 201 Pa. 278; Com. v. Gabor, 209 Pa. 201; O’Donnell v. Flanigan, 9 Pa. Superior Ct. 136; Com. v. Leonard, 15 York, 25; Carroll v. Com., 84 Pa. 107; Com. v. Thompson, 18 Pa. C. C. Rep. 487; Com. v. Zimmerman, 19 Pa. Dist. Rep. 248.

      W. F. Lyons, district attorney, and G. E. Farquhar with him, for the commonwealth,
    cited: Williams v. Com., 29 Pa. 102; Briceland v. Com., 74 Pa. 463; Com. v. Mayloy, 57 Pa. 291; Horton v. Miller, 38 Pa. 270; Cherry Twp. Overseers v. Marion Twp. Overseers, 96 Pa. 528; Com. v. Dunleavy, 16 Pa. Superior Ct. 380; Cahill v. Benn, 6 Binn. 99; Madlem’s App., 103 Pa. 584; Butts v. Armor, 164 Pa. 73; Myers v. Coal Co., 212 Pa. 193; Zerbey v. Allan, 215 Pa. 383; Thomas v. Borden, 222 Pa. 184.
    March 3, 1911:
   Opinion by

Rice, P. J.,

During the same term in which it was given a judgment was amendable, at common law, in form or in substance, but after that term it was amendable no further than was allowed by the statute of amendments: 2 Tidd’s Pr. 942. The reason given for the distinction was that during the term the record was in the breast of the judges and not in the roll: Blackamore’s Case, 8 Coke’s Reports, *157 (a); Bac. Abr., Amendment and Jeofail. While the reason for the rule of the English courts, arising from the peculiar manner in which the record was there made up and kept, does not exist with us, the rule as to opening or vacating judgments obtained adversely has been recognized in many cases as existing here: Mather v. Patterson, 33 Pa. 485. A leading case, where its application to sentences upon indictments was elaborately considered, is Com. v. Mayloy, 57 Pa. 291. It was there held that the criminal courts of this state have not power, when sentence is passed, to enter a rule to reconsider their judgment and at a subsequent term alter the sentence. For a stronger reason the court cannot reconsider its judgment in a subsequent term, where no rule to reconsider was entered in the term when sentence was pronounced. There must come a time when this power to reconsider and alter or revoke a sentence must cease, and, by the great weight of authority, it ceases when a new term begins. But in many counties of the state the courts, by virtue of authority conferred upon them by statute, fix the length of their regular terms with reference to the time that will likely be required for the trial of jury cases, with the result that there is an interim between trial terms, and in that interim hold sessions pursuant to adjournments from day to day or from time to time. For some statutory purposes the term fixed by statute or rule of court is held not to comprise such adjourned courts, but' this is for the reason that the legislative intent requires the thing to be done at the regular fixed term. See Overseers of the Poor of Cherry Twp. v. Overseers of the Poor of. Marion Twp., 96 Pa. 528. It is well settled, however, that a person convicted by the jury at a regular term may be sentenced at one of these adjourned courts, Williams v. Com., 29 Pa. 102, but in such case, if the position of commonwealth’s counsel be correct, the court has not power to reconsider and alter or revoke the sentence at a subsequent adjourned court, even though it be prior to the beginning of the next term. It will be seen, upon a moment’s reflection, that, under this strict interpretation of the rule under consideration, the court has no power to revoke a sentence imposed at an adjourned court. No Pennsylvania case of binding authority has come to our notice in which this has been expressly decided, and, in the absence of such decision, we are unwilling to adopt the conclusion to which the argument of counsel leads. The better view seems to be that when sentence is imposed at an adjourned court, the. day to which the court was adjourned is to be treated for that purpose as part of the term. This is conceded by the commonwealth’s counsel, and we are not convinced that a subsequent day, before the beginning of the next term, to which the court is again regularly adjourned may not, with equal propriety, be treated as part of the term for the purpose of exercising the power under consideration. This view has some support in Leib v. Com., 9 Watts, 200, 221. We therefore do not sustain the first proposition of counsel for the commonwealth.

Their second proposition is that the order of April 30, 1910, even if made within the term, was made by a judge of the court, and not by the court, and, therefore, was invalid. We do not understand it to be claimed that the court had not been regularly adjourned to April 30; and while it is true that only the trial judge was present at that session, it seems to be undisputed that the other two judges of the court had notice of the application for reconsideration to be then presented. If counsel mean by their statement of the proposition that the presence of a majority of the judges of the court is invariably essential to the validity of a session at which an application for reconsideration of a sentence is to be presented and acted on, we cannot agree to the proposition. Section 2 of the Act of April 7,1876, P. L. 19, provides as follows: “In any county forming a separate judicial .district the president judge or additional law judge of the court of common pleas of such county, or either of them in the absence of the other, shall have power to hold courts of quarter sessions, and oyer and terminer and orphans’ court, and to hear and determine all causes, matters and things cognizable therein.” It is common practice for the trial judge, the court being regularly convened, to impose sentence although he be sitting alone. Such action is not the action of the judge, but of the court, and the same is ordinarily true where he is the only judge sitting at the time of an application to reconsider a sentence imposed by him. But here a somewhat different question is presented, which arose in this way. The relator was convicted by the jury before one of the judges of the court. The rule to show cause why a new trial should not be granted was considered by the three judges of the court, as is common practice where there is more than one judge, and all concurred, after consultation and deliberation, in discharging the rule and in the sentence imposed. If this were a case where one of these judges undertook, when sitting alone, though at a session of the court regularly convened, to substitute his discretion in the matter of the sentence for that of the three judges of the court exercised after deliberation and conference, it might well be questioned whether such action could be sustained: Butts v. Armor, 164 Pa. 73. But it seems, when the order of April 30 is considered as an entirety, that the judge presiding on that date did not undertake or assume the power unqualifiedly to overturn and set aside the deliberate action of the court in which all of the judges concurred. Apparently, his action was taken for the purpose of holding the defendant’s application open for consideration by all of the judges at a subsequent date notwithstanding the expiration of the term. He did not undertake to order an indefinite suspension of sentence, but to suspend sentence until the matter should be considered by his associates and himself acting together. This we believe to be a fair interpretation of his order. It certainly would have been within the power of the court to resentence the relator, since, upon consideration, the court was of opinion that the punishment imposed by the original sentence should not be modified and that sentence should not be further suspended. The difference between that action and the action of the court on May 9, in which a majority of the judges concurred, is one of form rather than of substance, and we are not prepared to hold that it is of sufficient importance to warrant us in discharging the relator from the operation of the latter order.

The petitioner, William J. Jones, is remanded to the custody of the warden of the Schuylkill county prison to serve out so much of his sentence as had not expired on May 25, 1910,.the date upon which he was released under bail pending the disposition of this writ of habeas corpus.


text:
    Commonwealth ex rel. v. Murphy
    (No. 2).
    March 3, 1911:
   Opinion bt

Rice, P. J.,

The questions raised in this case are precisely the same as those raised in the Jones case in which we herewith file an opinion, ante, p. 185.

The petitioner, William E. Grow, is remanded to the custody of the warden of the Schuylkill county prison To serve out so much of his sentence as had not expired on May 25, 1910, the date upon which he was released under bail pending the disposition of this writ of habeas corpus.


author: Pee Ctjeiam,

text:
    Fallon v. Safety Banking & Trust Company, Appellant.

      Ranks and banking—Certificate of deposit—“Current funds”—Negotiable paper.

    1. The holder of a certificate of deposit payable in “current funds/'. who is otherwise entitled to recover thereon, is entitled to judgment for the amount specified in the certificate, without proof of value.
    2. In an action upon a certificate of deposit, where the certificate shows an indorsement by the depositor and various other parties and the statement avers that the depositor had assigned and transferred the certificate and that similar assignments and transfers had been made by the other holders, until the instrument came into the hands of the plaintiff, and that suit was brought in the name of the depositor to the use of the intervening holders and the plaintiff, and the affidavit of defense does not deny the allegation of transfer and assignment, nor that the certificate when presented was indorsed, as required by its terms, the plaintiff will be held to be an assignee of such interest in the certificate as the depositor originally had.
    3. In an action on a certificate of deposit where it appears that the certificate by its terms was payable “in current funds on return of this certificate properly indorsed,” on a day stated, a mere averment in an affidavit of defense to the effect that before maturity the depositor had stopped payment of the certificate, is insufficient to prevent judgment; nor is an averment of the affidavit sufficient which states that the defendant had no current funds belonging to the depositor or any of the subsequent holders at the time of the maturity of the certificate, and that the defendant had received no notice of the assignment prior to the maturity of the certificate.
    Argued Oct. 7, 1910.
    Appeal, No. 274, Oct. T., 1909, by defendant, from order of C. P. No. 3, Phila. Co., June T., 1909, No. 1,826, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Peter F. Fallon to the use of Will Atkinson, to the use of Percy F. Smith, to the use of Mayfield Bank & Trust Company, to the use of American National Bank of San Francisco, California, v. Safety Banking & Trust Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Assumpsit upon a certificate of deposit.
    From the record it appeared that the certificate and its indorsements were as follows:
    “No. 1895. Philadelphia, June 22, 1908. $500.00/100.
    “Peter F. Fallon has deposited in the Safety Banking and Trust Company Five hundred 00/100 Dollars to the credit of himself, payable in current funds on return of this certificate properly endorsed, on June 22, 1909. Interest 4 per cent per annum.
    “(Signed) H. J. Colver,
    “Cashier.
    “(Signed) H. L. Rock,
    “Sec’t’y.

      “ (Endorsed)
    “Peter F. Fallon,
    “Will Atkinson,
    “Percy F. Smith.
    “Pay to the order of American National Bank, San Francisco. Mayfield Bank & Trust Co., Mayfield, Calif.
    “S. A. Crary,
    “Cashier.”
   Ferguson, J.,

filed the following opinion:

It is not necessary for us to determine in this case if the certificate of deposit was an instrument the title to which could be passed by negotiation. The Statement alleges that Fallon assigned and transferred the certificate and that similar assignments and transfers were made by the other holders, until the instrument came into the hands of the present plaintiff, and suit is brought in the name of Fallon to the use of the intervening holders and the present holder. The allegation of the transfer and assignment of the certificate is not denied in the affidavit of defense; neither is it denied that the certificate when presented for payment was indorsed as required by its terms. The present holder thereof must be held to be an assignee of such interest in the certificate as Fallon originally had.

The defense in substance is that before maturity Fallon stopped payment of the certificate, and it is argued that the instrument is not a negotiable instrument, and hence the present holder takes it subject to such equities as exist between the defendant and the original holder. No equity that we can see has been averred as between the defendant and Fallon. The obligation was not Fallon’s obligation, but the obligation of the defendant, in which it certified that it held a certain amount payable, with interest, on a certain date. That Fallon notified the defendant not to pay the certificate is not an averment of any defense against the certificate had it been in the hands of Fallon. The instrument sued upon is an absolute promise by the defendant to pay the money upon a certain day, and a mere direction by Fallon to the company not to pay it, without other facts, would not amount to a defense to a suit upon the certificate in the hands of Fallon or anyone claiming under him. The affidavit is also disingenuous in its failure to state the character of the notice from Fallon, whether verbal or written, of the time when the same was given. For these reasons we think the allegation insufficient as a defense to the plaintiff’s claim.

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

John C. Gilpin, for appellant.

A bona fide holder for value takes no better title than the transferrer, and also takes subject to any equities which may be existing at the time of maturity, between the maker of the paper and the person to whom it was issued. The following decisions establish this principle: Patterson v. Poindexter, 6 W. & S. 227; Charnley v. Dulles, 8 W. & S. 353; Lebanon Bank v. Mangan, 28 Pa. 452; London Savings Fund Society v. Bank, 36 Pa. 498; Dempsey v. Harm, 20 W. N. C. 266; Bircleback v. Wilkins, 22 Pa. 26; Thompson v. McClelland, 29 Pa. 475.

The averment in the affidavit that the defendant had no current funds belonging to Fallon or any of the subsequent holders at the time of the maturity of the certificate is also without merit. The certificate on its face declared that the defendant had the funds upon the date of the certificate, and it was its business to have them at maturity. Who the particular funds might belong to is a matter entirely immaterial. The defendant does not essay to explain what became of the funds and in this respect the defense is most vague and evasive. The same may be said with regard to the allegation that the defendant did not receive notice prior to the maturity of the certificate. There was nothing in the certificate which required notice before maturity.

We are of opinion the affidavit is insufficient and that judgment should be entered for the plaintiff.

The certificates in suit being nonnegotiable, the present holder cannot have any better right to recover than had Fallon, the person to whom the certificates were issued. This clause, “current funds,” has been construed by the Supreme Court in' Wright v. Hart, 44 Pa. 454.

Edward L. Perkins, for appellee,

cited: McGough v. Jamison, 4 Penny. 154; Pittsburg v. Daly, 5 Superior Ct. 528; Nat. Bank of Ft. Edward v. Washington County Nat. Bank, 5 Hun (N. Y.), 605.

March 3, 1911:

Pee Ctjeiam,

However it may have been at the time the decision in Wright v. Hart, 44 Pa. 454, was rendered, we think it. must now be held that the holder of a certificate of deposit payable in “current funds,” who is otherwise entitled to recover thereon, is entitled to judgment for the amount specified in the certificate, without proof of value. In Bull v. First National Bank of Kasson, 123 U. S. 105, 8 Sup. Ct. Repr. 62, after stating that there were numerous cases where a designation of the payment of bills, promissory notes and checks, in notes of particular banks or associations, or in paper not. current as money, has been held to destroy their negotiability, Mr. Justice Field said: “But within a few years, commencing with the first issue in this country of notes declared to have the quality of legal tender, it has been a common practice of drawers of bills of exchange or checks, or makers of promissory notes, to indicate whether the same are to be paid in gold or silver-or in such notes; and the term 'current funds’ has been used to designate any of these, all being current and declared, by positive enactment, to be legal tender. It was intended to cover what was receivable and current by law as money, whether in the form of notes or coin.” Numerous other cases might be cited in which this interpretation of the words current funds ” has been approved. For a discussion of the other features of the affidavit of defense we refer to the opinion of the learned judge below, in which we all concur.

The judgment is affirmed.


author: Henderson, J.,

text:
    Lennig, Appellant, v. Dougherty.

      Negligence—Contractors—Party walls—Evidence—Act of May 5, 1899, sec. 24, P. L. 198.

    1. In an action of trespass against a contractor to recover damages for cracks in walls, bulging plaster, staining of wall, and water in cellar, alleged to have been caused by the defendant in erecting a dwelling house on an adjoining lot, the burden is upon the plaintiff to show that the defendant or his workmen were negligent in the performance of their work, and if there is no evidence to connect the defendant or his workmen with the particular injuries alleged, it is proper to withdraw the case from the jury.
    2. Section 24 of the Act of May 5, 1899, P. L. 193, regulating the construction of buildings and party walls in cities of the first class, applies to owners, and not to contractors.
    Argued Oct. 7, 1910.
    Appeal, No. 14, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 1, Phila. Co., Dec. T., 1906, No. 1,153, for defendant non obstante veredicto in case of Lucretia C. Lennig v. William R. Dougherty.
    Before Rice, P. J., Henderson, Morrison, Or-lady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a building. Before Brégy, P. J.
    The opinion of the Superior Court states the case.

      Error assigned was in entering judgment for defendant non obstante veredicto.

      James E.' Hood, for appellant.
    The defendant was liable: Buck v. Weeks, 194 Pa. 522; Brooks v. Curtis, 50 N. Y. 639; Schile v. Brokhahus, 80 N. Y. 614; Fowler v. Saks, 18 Dist. Columbia Rep. 570; Reynolds v. Fargo, Sheldon (N. Y.) 531; Fischer-Leaf Co. v. Caldwell, 15 Ky. Law Rep. 542; Fleming v. Cohen, 186 Mass. 323 (71 N. E. Repr. 563); Potter v. White, 6 Bosworth, 644; Nippert v. Warneke, 128 Cal. 501 (61 Pac. Repr. 96); Nash v. Kemp, 49 How. Pr. 522; Daly v. Grimley, 49 How. Pr. 520; Bright v. Bacon, 116 S. W. Repr. 268; Bradbee v. Christ’s Hospital, 2 Dowling’s Practice Cases (N. S.), 164.

      J. Washington Logue, for appellee.
    There were no relations existing between the appellant and the appellee) excepting the obligation resting upon him to perform his work in the usual and ordinary manner, free from negligence and free from carelessness: Stearns v. Spinning Co., 184 Pa. 519; Carson v. Bromley, 184 Pa. 549; Strawbridge v. Phila., 2 Penny. 419.
    In the present case there was no entry whatever upon the property of the plaintiff and what was done was in the exercise of a legal right and in the absence of any proof of negligence: Penna. R. R. Co. v. Lippincott, 116 Pa. 472; Penna. Coal Co. v. Sanderson, 113 Pa. 126; Matulys v. Coal Co., 201 Pa. 70; McGettigan v. Potts, 149 Pa. 155; Richart v. Scott, 7 Watts, 460; Huey v. Gahlenbeck, 121 Pa. 238; Easton S. E. & W. E. Pass. Ry. Co. v. Gibson, 96 Pa. 83; Gramlich v. Wurst, 86 Pa. 74; Stager v. Ry. Co., 119 Pa. 70; Alexander v. Water Co., 201 Pa. 252; Sandt v. Foundry Co., 214 Pa. 215; Ault v. Cowan, 20 Pa. Superior Ct. 616; Stringert v. Ross Twp., 179 Pa. 614; Reese v. Clark, 146 Pa. 465.
    March 3, 1911:
   Opinion by

Henderson, J.,

This action was brought to recover damages which the plaintiff alleges she sustained by reason of injuries to which her house was subjected during the erection by the defendant of a dwelling house on an adjoining lot. The defendant was not the owner of the new house but a contractor for its construction. The building formerly occupying the lot was torn down and a new house erected It became necessary to underpin the party wall on the dividing line between the plaintiff’s lot and the lot on which the house was built and the party wall was used for the new house. The injuries of which the appellant specially complains were a crack in the party wall extending from the vestibule into the third story; the bulging of the burlap wall-covering in different parts of her house; the staining of the wall in places; the perforation of the wall in one place on the fourth story; the cracking of plaster; water in the cellar and dust which penetrated the house and injured the furniture, all of which conditions created a necessity for repairs. The action was based on the alleged negligence of the defendant as is indicated by the statement of claim filed, wherein it is averred that it “became the duty of the said William R. Dougherty to construct the said building in such a manner as to inflict as little inconvenience and damage to other persons as possible but the said building was so negligently erected by the said defendant and by his employees and the work thereon so wrongfully and unskillfully conducted that the premises belonging to the plaintiff have been greatly racked and strained and depreciated in value and the plaintiff has been deprived of the use of the same.” This negligence was said to consist in the want of care in underpinning the party wall as a result of which it settled and became cracked and broken, and impaired the strength and lines of the plaintiff’s house. Negligence is also charged in the cutting of the wall for the admission of the ends of joists used in the new house and in the admission of water so that the wall decorations on the entire west side of the house were spoiled, the plastering was loosened and bricks caused to protrude into the plaintiff’s house. The case was submitted to the jury on the theory suggested in the declaration although the plaintiff’s counsel contended at the trial that a right of action existed whether the damage resulted from the negligence of the defendant or was an incident of the construction of the new building without negligence, and the able argument of the learned counsel for the appellant is principally devoted to the support of the proposition that the defendant rendered himself liable to the plaintiff because he had altered a party wall and thereby placed himself in the position of an insurer. After a careful examination of the evidence we are not satisfied that the court was in error in holding that the plaintiff had failed to show that the defendant was chargeable with negligence in the performance of the work involved in the use of the party wall. No presumption of negligence arises and we do not find in the evidence testimony of witnesses which, would warrant the conclusion that the injury complained of was caused by a lack of care on the part of the defendant’s workmen. None of the witnesses testified to acts of the defendant or his servants accounting for any of the particular injuries alleged. It was perfectly lawful for the defendant to underpin the party wall and to connect the joists of the building he was constructing with that wall, for one-half of it belonged to his employer. He was not a trespasser, therefore, in carrying on the work in connection with the plaintiff’s house. To successfully charge him with negligence it is necessary that evidence be offered tending to show that want of due care occasioned the plaintiff’s damage. Whether the burlap became loose because of the dampness of the exposed party wall or by the projecting of the joists so far into the wall as to displace bricks on the plaintiff’s side of the line or whether from some other cause is not shown by any witness. Neither does it appear that any lack of care and attention was chargeable to the defendant because of the crack extending up the wall near the front of the plaintiff’s house. Indeed, the only evidence as to the cause of the crack shows that it was the result of the method adopted in building the front wall of the plaintiff’s house long before the defendant had anything to do with the premises. One item of evidence seems at first observation to support the plaintiff’s case; that is the testimony relating to a brick knocked from the wall on the fourth floor or attic. But there was no testimony showing when that was done, how it was done nor by whom, and the jury would have been compelled to guess at the defendant’s responsibility if they took the testimony on that subject into consideration. That the work done on the new house would produce inconvenience, discomfort and more or less damage to the plaintiff seems very probable, but it does not necessarily follow that this was the result of negligence and the defendant ought not to be charged with.such misconduct except when the testimony shows the acts of his employees which produced the injury.

The appellant contends, however, that even if negligence were not shown the defendant is liable under the provision of sec. 24 of the Act of May 5, 1899, P. L. 193, regulating the construction, etc., of buildings and party walls in cities of the first class. This section provides among other things that in every case where an owner of a lot is about to erect a new building thereon and where any party wall is defective, out of repair or insufficient for the purpose of the buildings there existing upon the adjoining premises the cost or expense of the repair or removal of the party wall with the expense of any new walls to be erected in lieu thereof shall be borne and paid by the owner of the buildings upon the adjoining premises and the party erecting the new building in proportion to the amount of such wall as shall be used respectively for their buildings, and in every case where such walls are defective or insufficient only for the purpose of the new buildings the cost and expense of such repair or removal together with the expense of the new wall to be erected in lieu thereof shall be borne and paid exclusively by the parties erecting the new building and they shall also make good all damages occasioned thereby to the adjoining premises. It is under the latter clause of the section that the plaintiff claims to hold the defendant liable. Whether under this section an action can be maintained for injuries not resulting from negligence we do not consider it necessary to determine in disposing of this case for we regard the section as applicable to the owner of the premises and not to a contractor who is engaged in the erection of the building for him. It is true that the words used in the statute are “shall then be borne and paid exclusively by the parties erecting the new buildings and they shall also in such case make good all damages occasioned thereby to the adjoining premises,” but when this clause is read in connection with the preceding parts of the section it becomes evident that reference is here had to the owner or other person at whose instance and on whose account the building is erected and that the section was not intended to include an employee or servant or agent of the owner or other person causing the building to be erected, who may be engaged in its construction. The very same period in the section which contains the provision on which the appellant relies also provides that where the party wall is adjudged insufficient for the use of the contiguous buildings the cost for the removal of the old wall together with the expense of the new one “shall be borne and paid by the owner of said buildings upon the adjoining premises and the party erecting the new buildings in proportion to the amount of such wall which is or shall be respectively used by their said buildings.” This cannot by any sort of construction be made to relate to the carpenter or bricklayer who is engaged in doing the work on the house. And as the terms are identical in the two clauses—“the party erecting the new buildings”—it is evident that the owner or lessee, or other person having the right to occupy the premises with the building, is referred to rather than the mechanic charged with its construction. It is true that under some circumstances a contractor or mechanic might become liable for the cost of the reconstructed party wall. His contract with his employer might involve as much, but in any attitude he is acting as the agent of the owner or other person for whom the building is erected and it is the latter who in our interpretation of the act is primarily liable for the cost of the proportionate part of the wall. As the defendant was not the owner of the lot and was acting only for the owner in building the house he was not liable under the statute for injuries to the plaintiff arising out of the repair or use of the party wall where such injuries did not result from his negligence or that of his servants. He had no contractual relation with the plaintiff; he was rightfully engaged in the prosecution of the work which he had undertaken and owed no duty to the plaintiff except to exercise due care in the execution of his work.

The judgment is affirmed.


author: Head, J.,

text:
    Bader, Appellant, v. Philadelphia.

      Municipalities—School district—City of Philadelphia—Trespass— Appropriation of strip of land.

    1. No action will lie against the city of Philadelphia for entering upon a strip of ground belonging to a citizen and in his quiet possession, and erecting thereon a public school building. In such a case the action, if any, lies against the board of public education.
    2. The city of Philadelphia takes title to all real property designed for school purposes, but it holds such title only as a dry trustee. This doctrine is recognized by the legislation on this subject, and particularly by the Act of April 22,1905, P. L. 267.
    Argued Oct. 7, 1910.
    Appeal, No. 40, Oct. T., 1910, by plaintiff, from judgment of C. P. No. 1, Phila. Co., March T., 1907, No. 2,799, for defendant non obstante veredicto in case of Daniel S. Bader v. City of Philadelphia.
    Before Rice, • P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass for taking land at Fifty-eighth street and Willow’s avenue in the city of Philadelphia. Before Brégy, J.
    The facts are stated in the opinion of the Superior Court. •

      Error assigned was in entering judgment for defendant non obstante veredicto.

      Frederick J.Knaus, with him James P. Fogarty, for appellant.
    The city of Philadelphia was the proper party defendant: Mayer’s App., 73 Pa. 164.
    The plaintiff, not being entitled to have a restoration of his taken premises, either by action in ejectment or by bill in equity, his only remedy was by action in trespass, so framing his verdict that it was in effect a decree in equity. And for this procedure he found ample authority in Hauberger v. Root, 5 Pa. 108.

      Thomas D. Finletter, assistant city solicitor, with him J. Howard Gendell, city solicitor, for appellee.
    The case is ruled by Rosenblit v. Phila., 28 Pa. Superior Ct. 587; Board of Public Education of First Sch. Dist. of Pa. v. Ransley, 209 Pa. 51.
    March 3, 1911:
   Opinion by

Head, J.,

In this common-law action of trespass the plaintiff rests his right to recover upon the allegation in his statement of claim “that on or about the 2d day of November a. d. 1905 (the defendant city) with force and arms entered upon” a certain strip of ground belonging to the plaintiff “while the plaintiff was enjoying quiet possession of the same and erected a certain public school building and sidewalk on a part or portion of the said lot or piece of ground.” The evidence to support this allegation was brief and undisputed and disclosed the following facts: In November, 1904, there was conveyed to the city a lot of ground on the southeast corner of Fifty-eighth street and Willows avenue. Fifty-eighth street was an open public street running nearly north and south. Willows avenue was, at the time said conveyance was made, a plotted street on the said plan running east and west but had never been opened. The plaintiff contends that under the terms of said conveyance the city’s title extended no farther than the southern line of said Willows avenue, the title to the bed of said avenue remaining in the city’s grantor, which title subsequently became vested in the plaintiff. There is not only an entire absence of evidence that the municipality had any connection whatever with the alleged act of trespass complained of, but it clearly appears in the record, by an admission or stipulation to that effect, that the board of education of the city of Philadelphia built the schoolhouse and put down the pavement, or, in other words, committed the tort which is the foundation of the action.

In Board of Public Education v. Ransley, 209 Pa. 51, and Rosenblit v. Philadelphia, 28 Pa. Superior Ct. 587, the legal relations of the city of Philadelphia and the board of public education have been clearly and authoritatively defined. It is there pointed out that the said board is not a creature of the city but an independent agency established by the state for the purpose of carrying out, in the first school district, the legislative will in all matters affecting the common or public schools. The officers' of that board are in no sense the agents of the municipality, and consequently, as between them, there is no room for the application of the doctrine respondeat superior. Under the legislation on this subject, as interpreted by the courts, the city it is true takes the title to all real property designed for school purposes, but it holds such title only as a dry trustee. The erection of school buildings, and the management and control of them after they are built are matters within the exclusive jurisdiction and control of the board of education.

By the very latest legislative enactment on this subject, to wit, the Act of April 22, 1905, P. L. 267, in force at the time of the commission of the alleged trespass, this doctrine is recognized and has received full legislative sanction. The act declares, inter alia, “The title to all property now held or that may hereafter be acquired for school or educational purposes in the said school district of the first class shall be vested in said city of the first class; but all such property shall be under the exclusive care and control of the Board of Public Education.”

It would serve no good purpose to lengthen this opinion by excerpts from the cases already referred to or to attempt to restate in our own language the reasons which so plainly led to the conclusions there reached by both of the appellate courts. It is sufficient to say that under the facts in evidence we are all of the opinion that this case is ruled by Board of Education v. Ransley, 209 Pa. 51 and Rosenblit v. Philadelphia, 28 Pa. Superior Ct. 587. The learned trial judge was therefore right in entering judgment for the defendant.

This Anew of the case renders it unnecessary that we should enter upon a discussion as to whether or not the city under its conveyance took title to the middle of the unopened avenue, or whether it acquired an easement to a right of passage along the side of said avenue from Fifty-eighth street to the entrance to the building. Nor are we able to reach the conclusion drawn from an argument ab inconvenienti urged on us by the able counsel for appellant, to wit, that the verdict in this case should be regarded partly as a decree in equity and partly as an award of Adewers in a condemnation proceeding. It is not for us to determine in this common-law action whether or not the plaintiff has sustained any damages, and if he has what may be his legal remedy, when it clearly appears, as in our opinion it does, that he has shown no legal right to recover in this action against this defendant.

Judgment affirmed.


author: Orlady, J., Rice, P. J.,

text:
    Commonwealth, Appellant, v. Weible.
    , Criminal law—Abortion—Abortion by woman upon herself.

    Under the Act of March 31, 1860, sec. 88, P. L. 382, 404, a woman cannot be convicted of committing an abortion upon herself.
    Argued Oct. 4, 1910,
    Appeal, No. 44, April T., 1911, by plaintiff, from order of Q. S. Cambria Co., Dec. T., 1909, No. 148, sustaining motion in arrest of judgment in case of Commonwealth v. May Weible.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for abortion. Before O’Connor, P. J.
    At the trial the jury returned a verdict of guilty, but subsequently the court arrested judgment on the ground that a woman could not be convicted in Pennsylvania either under the common law or under the statute law of administering drugs to herself with intent to procure a miscarriage.

      Error assigned was in arresting the judgment.

      J. W. Leech, with him D. P. Weimer, for appellant,
    cited: Com. v. W., 3 Pitts. 462; Wells v. Ins. Co., 191 Pa. 207.
    There was no appearance or paper-book filed for appellee.
    March 1, 1911:
   Opinion by

Orlady, J.,

This defendant was convicted, under sec. 88 of the Act of March 31,1860, P. L. 382, 404, of unlawfully administering to herself a poison, drug or substance with intent to procure the miscarriage of a child with which she, at that time, was pregnant.

The court sustained a motion in arrest of judgment, for the reason that the act does not apply to the case of a woman who procures an abortion on herself, and that it is not an offense at common law in this state.

At common law in England the destruction of an unborn infant is a misdemeanor, and at an earlier period it seems to have been deemed homicide: 1 Russ, on Crimes, 671. It has also been held to be a misdemeanor in this state: Mills v. Commonwealth, 13 Pa. 627, in which case it was said, “It is a flagrant crime, at common law, to attempt to procure the miscarriage or abortion of a woman; because it interferes with and violates the mysteries of nature, in that process by which the human race is propagated and continued. It is a crime against nature which obstructs the formation of life, and therefore it is punished.” But that was a case in which the mother of the child was not indicted. The woman on whom the abortion has been performed is a competent witness against the defendant, even though she be regarded as an accomplice: 1 Whar. Crim. Ev., sec. 440.

In all cases the indictment must conform to the statute limiting and defining the offense: 1 Whar. Crim. Law, 597, and unless the offense is defined by statute, the mother who commits it on herself cannot be punished in this state, however heinous and unnatural it may be, and in order to secure her conviction the necessity for such a statutory declaration has been regarded as essential.

In England by 24 and 25 Vict., c. 100, sec. 58, a person who commits an abortion on herself is equally guilty with the person who commits an abortion on another and in most of the United States there is a provision made by statute for such a crime, but without such the woman who commits an abortion on herself is regarded rather as the victim than the perpetrator of the crime: Com. v. Wood, 77 Mass. 85; State v. Murphy, 27 N. J. L. 112; State v. Hyer, 39 N. J. L. 598; Com. v. Boynton, 116 Mass. 343; Solander v. People, 2 Colo. 48; Smith v. Gaffard, 31 Ala. 45; Hatfield v. Gano, 15 Iowa, 177; Dunn v. People, 29 N. Y. 523, 86 Am. Dec. 319. By a statute in New York, sec. 295 of the Penal Code of 1891, it was made a crime: People v. Meyers, 5 N. Y. Crim. Reports. 120. A similar statute is operative in California, sec. 275, Penal Code. It seems that such legislation was deemed necessary in each of these states in order to convict the mother of the crime of abortion on herself.

In State v. Cooper, 22 N. J. L. 52, 51 Am. Dec. 248, Judge Green says: “We are of the opinion that the procuring of an abortion by the mother, or by another with her consent, is not an indictable offense at common-law. There is neither precedent nor authority for it. If the good of society requires that the evil should be suppressed by penal infliction, it is far better that it should be done by legislative enactment than that the courts should by judicial construction extend the penal code or multiply the object of criminal punishment.” See also Abrams v. Fooshee, 3 Iowa 273, 66 Am. Dec. 77.

The words used in sec. 88 of the code under which this indictment is framed, reasonably imply that the actor in the crime is intended to be some person other than the mother, and they must be given a strained and artificial construction to include her. This is the more apparent by sec. 89 which makes it an offense for any woman either by herself, or the procurement of others, to conceal the death of a bastard child. The omission of like apt words indicates that the codifiers did not mean to make the mother liable under sec. 88.

The conclusion reached by the trial judge is in accord with the great weight of authority, and the judgment is affirmed.

Rice, P. J.,

dissenting:

In Mills v. Com., 13 Pa. 627, the court said: “It is a flagrant crime at common law to attempt to procure the miscarriage or abortion of a woman, because it interferes with and violates the mysteries of nature in that process by which the human race is propagated. It is a crime against nature which obstructs the fountain of life and therefore it is punished.” In Wells v. New England Mutual Life Ins. Co., 191 Pa. 207, the court quoted the above language and followed it by this statement from 1 Whart. on Criminal Law, sec. 599: “All parties concerned in the offense are responsible, whatever may be the part they take.” The court then went on to say: “We do not think it can be questioned that the woman who solicits the commission of the offense, and submits her body for its perpetration, can be regarded as other than a participant in its commission, and is therefore criminally responsible. Viewed in that light in the present instance, the deceased comes directly within the operation of the prohibitory clause of the policy, for she was actually engaged in the violation of the criminal law of Massachusetts, where the contract was made, and of Pennsylvania, where she was at the time the offense was committed.” The indictment under consideration in the present case is broad enough to cover the offense, whether it be regarded as a statutory or common-law offense. The order arresting the judgment cannot be sustained, unless it be held that the act charged in the indictment is not an indictable offense either at common law or under the statute. I am unable to reconcile that conclusion with the authoritative declaration of the Supreme Court in the case last cited, and therefore cannot concur in the affirmation of the order appealed from.

Henderson and Beaver, JJ., join in the foregoing conclusion.


author: Orlady, J.,

text:
    Commonwealth v. Cummings, Appellant.

      Appeals—Assignments of error—Evidence.

    1. An assignment of error to the admission of evidence will not be considered where it fails to set forth the offer, the objections thereto, the ruling of the court thereon, and the evidence admitted.

      Appeals—Paper-books—History of the case—Verdict and judgment.

    2. A paper-book is inadequate and violates rule 24, which does not contain a history of the case, and the verdict and judgment thereon.

      Criminal law—Jury—Separation of jury.

    3. A conviction, of making a false election return, will not be set aside simply because jurymen in the case heard or might have heard in another court room during a recess of the trial the offense of ballot box stuffing condemned in argument of counsel, where there is nothing to show that what was heard by the jurymen was in any way connected with the guilt or innocence of the prisoner.
    Argued Oct. 6, 1910.
    Appeal, No. 91, Oct. T., 1910, by T. J. Cummings, from judgment of Q. S. Schuylkill Co., Sept. T., 1910, No. 1,199, on verdict of guilty in case of Commonwealth v. T. J. Cummings.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for making of false election return. Before Brumm, J.
    The facts are stated in the opinion of the Superior Court.

      Error assigned among others was in refusing to withdraw a juror called.

      M. A. Kilker, with him M. M. Burke, for appellant.—
    The jury were influenced: Holden v. R. R. Co., 169 Pa. 1; Wagner v. Hazle Twp., 215 Pa. 219; Com. v. Stokes, 3 York, 220; United States v. Ogden, 10 Pa. Dist. Rep. 1; Hale v. Hale, 32 Pa. Superior Ct. 37; Com. v. Landis, 12 Phila. 576; Com. v. Johnson, 5 Pa. C. C. Rep. 236; Meyer v. Cadwalader, 49 Fed. Repr. 32; Wagner v. Hazle Twp., 215 Pa. 219; Com. v. Stokes, 3 York, 220.

      W. F. Lyons, district attorney, and G. E. Berger, with them G. E. Farguhar, for appellee.
    The case of Alexander v. Com., 105 Pa. 1, is directly against the contention of the defendant.
    March 3, 1911:
   Opinion by

Orlady, J.,

The first nineteen assignments of error so flagrantly ignore the rules of this court that we cannot condone such a procedure by considering them. In none of these assignments is there a statement of the offer, the objection made, or ruling of the court, or the evidence admitted.

Rule 14 requires that “Each error relied on must be separately assigned, and by itself. If any assignment embrace more than one point, or refer to more than one bill of exceptions, or raise more than one distinct question, it shall be considered a waiver of all the errors so alleged.” Where our rules are not complied with, the specifications will not be considered: DeRoy v. Richards, 8 Pa. Superior Ct. 119.

Rule 16 requires that “When the error assigned is to the admission or rejection of evidence, the specification must quote the questions or offers, the ruling of the court thereon, and the testimony or evidence admitted, if any, together with a reference to the page of the paper-book where the matter may be found in its regular order in the printed evidence or notes of trial.”

An assignment of error will not be considered when it fails to set forth the offer, the objections thereto, and the ruling of the court thereon: Gish v. Brown, 171 Pa. 479; Sopherstein v. Bertels, 178 Pa. 401; Commonwealth v. Hazlett, 14 Pa. Superior Ct. 352; Keystone Cycle Co. v. Jones, 12 Pa. Superior Ct. 134; Foringer v. New Kensington Stone Co., 223 Pa. 425; Henning v. Keiper, 37 Pa. Superior Ct. 488; Kalin v. Wehrle, 36 Pa. Superior Ct. 305.

Neither a history of the case or the verdict of the jury and the judgment thereon is printed in the paper-book. This omission is in violation of rule 24.

The defendant was indicted for making a false election return, at a primary election held June 5, 1909, in the fifth ward of Shenandoah.

Item “e” of the statement of the question involved is as follows: “Should a juror be withdrawn and the cause continued on the application of the defendant, where members of the trial jury were present in another court room, during a recess in the trial, listening to the delivery of forcible arguments, and to the reading of newspaper articles, referring to the particular offense for which the defendant is on trial?”

This question is fairly presented under the twentieth assignment of error. It appears that during a recess in the trial of this case, and while a case of criminal libel was being tried in another room in the same courthouse, one or more of the jurors impaneled in this case were in that room, and heard or might have heard the argument ,of counsel, and newspaper articles read to the jury. This occurred before the commonwealth’s side of this case had been closed. This defendant was not in any way identified with that trial, nor was his name mentioned. The argument of counsel and newspaper comments heard by these jurors related generally to the heinousness of the crime of ballot box stuffing, and this without reference to the guilt or innocence of any particular person.

A motion to withdraw a juror was made for the reason indicated, and in overruling the motion, the trial judge said: “In a case like this, a misdemeanor, all jurymen are permitted at intervals between the sessions of court to communicate with, and to be in company with the world at large, and there is hardly a time when they would not in some way come in contact, either through newspapers or declaration, with discussions of punishment that may or ought to be inflicted—not ought to be inflicted, but punishment prescribed by law; and we can hardly conceive how any case would ever be concluded if we were to permit this motion to prevail.” And in his charge to the jury, he said: “The reason assigned by the counsel is, that he fears you may possibly be prejudiced by what you may have heard in the court room (No. 1.) or what you may have read in the newspapers. We say to you here that in all of these allegations there was not a scintilla of expression, either written or verbal, that criticised or questioned the matter of the guilt or innocence of the prisoner at the bar. This jury has but one duty to perform, and you are sworn to perform that duty, and that only, and that duty is to ■find out the truth, and, when this jury has found out the truth in this case, to say in your verdict, what that truth is. That truth is only with reference to the guilt or innocence of the prisoner at the bar: not as to the heinous.ness of the crime, though horrible it may be, not as to the opinion of the trial'judge on that proposition: not as to any criticism on what the law is or ought to be made, not' in the trial of this case: not as to public sentiment: not as to public clamor: not as to what the result may be: but simply that one positive well defined duty to find the truth as to whether this defendant did make fraudulent voting lists or not, whether this defendant did make false returns of this election or not, whether this defendant did deposit fraudulent ballots or not.” We quote thus liberally to show the care taken by the trial judge to con-, fine the issue to the testimony adduced on this trial.

By the ancient common law jurors were kept together as prisoners of the court, until they had agreed upon a verdict. In later times the old rule has yielded to necessity, and in misdemeanors and civil cases, jurors are permitted,, during intermission of the sessions of the court, to mingle freely with the public and return to their homes at night after receiving an admonition from the bench to not converse with anyone, nor to receive communications from anyone, touching the cause on trial.

In Alexander v. Commonwealth, 105 Pa. 1, while the defendant was being tried for murder, the jury were allowed to separate, and part of them attended church, and heard a sermon on the text "thou shalt not kill.” The court below refused to grant a new trial for the reason that the sermon, not a fragment of it, neither had nor' tended to have the effect of biasing the minds of the jurors or of disqualifying them from the proper exercise of their functions, and this view was adopted by the Supreme Court in affirming a judgment of guilty of murder in the first degree.

It is not always possible, particularly in the limited accommodations of smaller towns during court sessions, to keép jurors segregated as completely as might be desirable. The day has gone by when jurors were kept without food or fire to coerce an unwilling agreement, and jurors are no longer regarded as wrongdoers, who want only a chance to violate their duty. Such situations are to be treated with common sense, and while the investigation should be full and searching yet a trial really fair and proper should not be set aside for the mere suspicion or appearance of irregularity shown to have done no actual injury. This is the uniform ruling in this state: Commonwealth v. Lombardi, 221 Pa. 31.

In the case before us, there is no intimation that any of the jurors spoke to anyone, nor that any person spoke to any one of them on any subject. Simply that they heard or might have heard the offense of ballot stuffing condemned in a trial in another court. This assignment is without merit.

That there had been a gross fraud perpetrated at this election, so much so that it was impossible to separate the honest from the illegal votes, is not only manifest but is conceded by the defendant, who was the clerk of the election board. The only contention he made was that the commonwealth had not connected him with the crime. He acted with the board and the returns made by him demonstrated his guilty participation in the crime of which he was found guilty.

The assignments are all overruled, the judgment is affirmed, and it is-ordered that the defendant appear in the court below and that he be by that court committed to serve such part of his sentence as had not been performed at the time this appeal was made a supersedeas.