text:
    Kaumagraph Company v. Thissen Silk Company, Appellant.

      Justice of the peace — Appeals—Nunc pro tunc — Negligence of counsel.

    The neglect of counsel in reading only part of a notice intended to guide attorneys as to the dates of terms, and the placing of a wrongful construction on such reading, will not entitle a defendant represented by the attorney, to an appeal nunc pro tunc from the judgment of a justice of the peace after the time for appeal has expired.
    Argued Dec. 9, 1909.
    Appeal, No. 172, Oct. T., 1909, by defendant, from order of C. P. Northampton Co., Dec. T., 1909, No. 25, discharging rule for allowance of ah appeal nunc pro tunc in case of Kaumagraph Company v. Thissen Silk Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Rule for allowance of an appeal nunc pro tunc.
    Stewart, J,, filed the following opinion:
    This was a rule on the plaintiff to show cause why the defendant should not be permitted to file an appeal from the judgment of a justice of the peace with the same force and effect as if it had been filed at or before November last, and staying an execution issued. The petition stated that judgment was entered on October 20,1908, against the defendant; that on November 4, an appeal was taken from the judgment; that defendant’s attorney did not tender the appeal to the prothonotary until November 14, when the prothonotary refused to enter it on the ground that November Term commenced on November 9, and that he was too late; that defendant’s attorney was misled by the calendar printed on the first page of the Northampton County Law Reporter, which did not refer to the second Monday of November as a regular term. It also set forth that defendant’s attorney did not appear before the justice, and did not at once enter the appeal on account of ill-health, and it set forth that it had a full and complete defense to the entire claim of the plaintiff without, however, mentioning the particulars of the defense. An answer was filed, denying that the defendant’s counsel was prevented from attending “to his ordinary and usual duties as a practitioner at law” between November 4 and November 9, and denying the fact that November Term was omitted from the regular term of court in the Northampton County Reporter, and denying that the defendant had any defense to the plaintiff’s claim. We do not propose to decide the question at this time whether the petition ought not to set forth the particulars of the defense. In Shrope v. Cauley, 3 North. 281, Judge Schuyler held as follows: “A defendant seeking an appeal from a judgment of a justice of the peace, who offers to do everything required of him by law to perfect his appeal and fails in his purpose through a mistake of the justice, will be allowed to enter his appeal nunc pro tunc, without reference to the question whether he has any defense or not.” In Anderson v. Mergelkamp, 8 Del. 586, it was held: “An appeal nunc pro tunc will be refused where the petition and affidavit aver a direct defense but fail to state the nature of it and the plaintiff denies that defendant has any defense, nor will mistake of counsel in construing the statute justify such appeal.” In Zeigler’s Petition, 207 Pa. 131, Mr. Justice Potter, after discussing the cases relating to appeals nunc pro tunc, said: “Where a petition for an appeal nunc pro tunc from report of county auditors avers fraud in procuring the report, the question raised should not be summarily disposed of on petition and demurrer. In such a case the demurrer should be overruled with leave to the county treasurer and his sureties to answer; and on answer, or in default thereof, the court should be informed by depositions ..as to the real facts in connection with appellants’ allegations of fraud, and, if then satisfied that relief ought to be granted the judgment should be opened and the appeal allowed.” It is not necessary for us to decide this matter at the present time, but we think that the view indicated in this last case-should apply to cases like the present, because appeals should not be granted unless the court is satisfied that the defendant has a defense. It is unnecessary to cite authorities to show that the negligence or forgetfulness or sickness or absence of counsel will not avail parties in applications to enter appeals nunc pro tunc. We lately examined the general subject in Matta v. Sacchetti, 11 North. 210, also reported in 17 Pa. Dist. Rep. 797, and the matter has been several times before this court in the past few years under varying circumstances. It is, however, insisted that the Northampton County Reporter is the official reporter of this court, and that defendant’s counsel was misled by the court calendar. As a matter of fact'in the court calendar following the names of the cases, the expression “Regular Term,” is not used at all. Under the words February, April, June, September and December, the words are “Regular, Criminal,” and under July the word is simply “Regular.” Immediately below the calendar, it is set forth: “There shall be held annually seven regular terms of the several courts of Northampton county, beginning respectively on the second Monday of February, April, June, July, September, November and December.” We do not think that it can fairly be said that the calendar is misleading, as it must be supposed that the whole of a subject-matter will be read, and that a party will not rely upon a partial reading of a notice. Lawyers must be presumed to be familiar with the order of court, fixing the terms of court. In the present case the forgetfulness of counsel is precisely the same as the forgetfulness of counsel in Ward v. Letzkus, 152 Pa. 318. In the syllabus of that case it is said “the court has no jurisdiction to permit the appeal to be filed nunc pro tunc.” These exact words are-no't found in the opinion, but the statement is a correct one. After referring to the act of assembly, requiring that appeals should be filed on or before the next monthly return day, Mr. Justice Paxson said: “This is the command of the act of assembly, and without saying that under no circumstances could the court of common pleas allow an appeal nunc pro tunc, we are quite sure it should not have been done in this case. No reason is given beyond the neglect of counsel.” This same doctrine is referred to in Harris v. Mercur (No. 1), 202 Pa. 313, where it was held: “ When a statute fixes the time within which an act must be done, the courts have no power to enlarge it, although it relates to a mere question of practice.” It was contended that the doctrine of the first case was changed by Schrenkeisen et al. v. Eushbaugh, Coslett, et ah, 162 Pa. 45. We do not so understand the case. It reaffirms the doctrine of the first case by name, and Judge Mitchell goes on to say: “But where in due and regular course the case comes before the court for its .action, whether interlocutory or final, the court has an inherent and necessary power to stay all proceedings, including the running of the statutory period of appeal, while the matter is resting sub judice. Otherwise no motion could be made, or relief in any form asked, without risk that time occupied by the court in necessary deliberation or in more urgent business, might deprive the party of his rights without fault of his own, and without remedy.” It was contended that the entire matter was one depending on judicial discretion, and Kutz v. Skinner, 7 Pa. Superior .Ct. 346, and Patterson v. Gallitzin Building & Loan Association, 23 Pa. Superior Ct. 54, were cited in support of this view. While it is true that there is always ap exercise of judicial discretion in this class of cases, yet it must be based upon something which gives the judiciary a right to set aside the provisions of a statute. Mr. Justice Mitchell speaks of it as an “inherent and necessary power.” The question remains, when shall it be exercised? In Kerr v. Rodgers, 9 Phila. 525, Judge Paxson said: “The frequency of these applications admonishes us that we ought not to relax the rules of law applicable to such cases. Nothing short of an act of assembly can give a man an appeal when he last lost his right thereto by neglect. There is a class of cases, the number of which we do not feel disposed to increase, in which it has been held that a defendant may be allowed to file his appeal nunc pro tunc. Thus, where a defendant made an effort to appeal; had exercised due diligence, and had been prevented from taking his appeal by the absence from the county, or sickness of the alderman; or by a refusal of the latter to take the bail or give the defendant a transcript, the latter has been allowed to enter his appeal after the twenty days have expired.” That is a mere classification. In Zeigler’s Petition, 207 Pa. 131, Mr. Justice Potter examined a number of cases to discover the underlying principle, and he sums up the matter as follows: “In the exercise of its equitable powers, the court will reach far to prevent the triumph of fraud. As was said by this court in Cochran v. Eldridge, 49 Pa. 365 (370), ‘when it is alleged on adequate proofs that a judgment in whole or in part has been obtained by a suppression of the truth which it was the duty of the party to disclose or by the suggestion of a falsehood or by any of the infinite and therefore undefinable means by which fraud may be practiced, no court will allow itself, its records, and the process of law to be used as instruments of fraud.’ ” This it seems to us, is a correct statement of the principle upon which a court ought to act in applications of this kind. The present case is not a case where the defendant’s attorney was, in any way, fraudulently misled or deceived by anything on which he had a right to rely. He simply read part of a notice printed for the convenience of members of the bar, placed his own construction on that which he read, and neglected to read that which would have given him the information he desired. The ground of the application is negligence, and not deception. Ofir discretion can only be exercised in the latter case.
    And now, January 11,1909, rule to show cause is discharged.

      Error assigned was the order of the court.

      H. M. Hagerman, for appellant.

      J. W. Faff, of Smith, Paff & Laub, for appellee.

      March 3, 1910:
   Per Curiam,

This is an appeal from the discharge of a rule to show cause why the transcript of appeal from a justice of the peace should not be permitted to be filed nunc pro tunc, the transcript not having been filed on or before the first day of the next term after the appeal was taken.

Upon the most liberal view that may be taken of the power of the court in such cases, the learned judge has shown quite clearly in the opinion filed by him, that the application was properly refused. We can add nothing profitable to what he has said.

The order is affirmed at the costs of the appellant.


source: Caselaw Access Project

author: Head, J.,

license: Public Domain

text:
    Commonwealth v. Bolger, Appellant.

      Evidence — Self-incriminating testimony — Grand jury.

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

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

    5. A trial judge cannot be convicted of reversible error because, in answer to a request made by the jury, he permits their recollection to be refreshed by reading a portion of the testimony actually delivered on the trial, concerning which some misapprehension had arisen in the minds of the jury after they had retired.
    Argued Oct. 27, 1909.
    Appeal, No. 25, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., March T., 1909, No. 533, on verdict of guilty in case of Commonwealth v. H. M. Bolger.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Indictment for bribery. Before Kennedy, J.
    The facts appear by the opinion of the Superior Court.
    Verdict of guilty upon which judgment of sentence was passed.

      Errors assigned were as follows:
    1. The court erred in refusing to quash the indictment upon motion of defendant’s counsel.
    2. The court erred in refusing defendant’s offer to show by defendant that upon March 15, 1909, having been subpoenaed by the commonwealth he appeared before the grand jury in the course of its investigation which led to the indictment; that upon March 19, following his appearance the presentment in this case was handed to the court; that said presentment recommended the indictment of the defendant who had testified before the same grand jury on March 15; that the deliberations of said grand jury extended from March 15 up to and including March 22, 1909, upon which date a true bill was found against the defendant, and that the examination of the defendant when he appeared before the grand jury was confined to the circumstances involving the charge upon which the indictment was founded.
    3. The court erred in recalling the jury upon April 24, 1909, and having recalled the same, in entering upon a review of part of the testimony.
    4. The court erred in recalling the jury in answer to its note and in reading to it only the testimony of the witness Ramsey, omitting contradictory testimony of witness Vilsack and defendant Bolger.
    5. The court erred in not confining its instructions to the particular matter indicated by the jury in its note to the court.

      George M. Hartón, with him John S. Robb, Jr., for appellant.
    — It has beeii repeatedly ruled that a defendant cannot be compelled by a subpoena to-attend before a grand jury and give material testimony without knowing that his own conduct was under investigation: Counselman v. Hitchcock, 142 U. S. 547 (12 Sup. Ct. Repr. 195); United States v. Edgerton, 80 Fed. Repr. 374; State v. Froiseth, 16 Minn. 296; People v. Spencer, 66 Hun, 149.
    Appellant contends that a person who has testified before a grand jury cannot be indicted before the same grand jury: United States v. Bell, 81 Fed. Repr. 830; People v. Singer, 5 N. Y. Crim. 1; Ex parte Sauls, 78 S. W. Repr. 1073; Com. v. Bradney, 126 Pa. 199.
    It is contended that when the jury requests further instructions it will' be presumed, unless the contrary prominently appears, that the judge in recharging covered the inquiries submitted by the jury and it is not necessary in so doing for him to repeat what he has already charged as to other matters: Fordham v. State, 112 Ga. 228 (37 S. E. Repr. 391); Gravett v. State, 74 Ga. 191; Goersen v. Com., 99 Pa. 388.

      Warren V. Seymour, with him William A. Blakeley, for appellee.
    — We would emphasize the distinction between the rights of a defendant and the rights of a witness; (a) historically, prior to the time when a defendant became competent to testify in criminal proceedings, a witness had the right to refuse to answer an incriminating question. Hence • the rights of a witness antedate those of a defendant; (b) the rights of a defendant are broader than the rights of a witness in some respects — a witness may be compelled to take the witness stand but in Pennsylvania it is doubtful if a defendant can be so compelled. Com. v. David, 8 Phila. 611, holds that he can and must assert his right not to incriminate himself. In some respects the rights of a witness are broader than the rights of a defendant — a witness who takes the stand does not waive his right to refuse to answer an incriminating question, whereas a defendant who takes the stand in his owh behalf, waives this right: Com. v. House, 6 Pa. Superior Ct. 92; United States v. Kimball, 117 Fed. Repr. 156; United States v. Price, 163 Fed. Repr. 904; United States v. Brown, 1 Sawy. 531; People v. Steinhardt, 47 Misc. 252 (93 N. Y. Supp. 1026); Com. v. Mosier, 135 Pa. 221.
    Upon the main proposition involved in this case, the following case is directly in point: State v. Hawks, 56 Minn. 129 (57 N. W. Repr. 455); see also State v. Comer, 157 Ind. 611 (62 N. E. Repr. 452); State v. Frizell, 111 N. C. 722 (16 S. E. Repr. 409); People v. Northey, 77 Cal. 618 (19 Pac. Repr. 865).
    The court’s recharge to the jury was proper: People v. Foy, 138 N. Y. 664 (34 N. E. Repr. 396); State v. Manning (Vt.), 54 Atl. Repr. 181; Mormon v. State, 110 Ga. 311 (35 S. E. Repr. 152); Jameson v. State, 25 Neb. 185 (41 N. W. Repr. 138).
    March 3, 1910:
   Opinion by

Head, J.,

The defendant, Bolger, was tried and convicted upon a bill of indictment which charged him with the offense of bribery or corrupt solicitation. The indictment was not preceded by an information before a magistrate, a hearing before him, and a binding over for trial in the usual and customary manner.

It appears that the grand jury of Allegheny county, in the spring of 1909, began a general inquiry into the subject of bribery of members of city councils of Pittsburg, after such an investigation had been duly given them in charge by the court of quarter sessions thén sitting. At the conclusion of their inquiry they made a 'lengthy presentment reciting that they'had investigated a number of separate and distinct transactions and had summoned, and presumably heard, “ fifty-three witnesses, including all persons publicly stated to have special information relating to such matters.” One of these witnesses was Bolger, the defendant. As to some of the matters inquired into, the grand jury reported that, owing to the unsatisfactory character of the evidence produced, they were unable to make any presentment, but recommended that “further investigation be made from time to time by the district attorney under the direction of the court.” As to several other independent transactions investigated, the grand. jury found evidence sufficient to warrant them in presenting for indictment a number of persons. In each case the report sets forth with precision the nature and character of the alleged criminal act and gives the names of the witnesses to be summoned by the district attorney to support the several indictments suggested.

Following this presentment recommending the indictment of the present defendant, among others, the district attorney prepared, and by direction of the court, sent up a bill indorsing on it, as the witnesses for the commonwealth, the names of the two persons mentioned in the grand jury’s report. It was returned a true bill. The defendant was brought to trial, was again confronted by the testimony of the same two witnesses and was found guilty.

The appellant does not allege that the bill of indictment on which he was tried lacked any legal requirement of form or substance. Nor does he complain of any error in the rulings of the learned trial court upon questions of evidence, or of the manner in which the evidence was summed up and submitted in the general charge, or that the evidence, if believed by the jury, was insufficient to support the verdict they rendered.

At the very opening of the trial the defendant moved to quash the bill, not because of any irregularity exhibited by the record as it then existed, but because of certain alleged facts dehors the record, the existence of which he offered to establish by his own testimony. The learned judge sustained the objection made to this offer and the refusal of the motion to quash followed.

“It cannot now be doubted that an indictment may be quashed for matters not apparent upon the face of the record: ” Commonwealth v. Bradney, 126 Pa. 199. In Commonwealth v. Green, 126 Pa. 531, the grand jury, in the course of their ordinary investigation of a bill charging a person with an assault, incidentally heard evidence tending to show that the house in which the assault occurred was a disorderly house kept by one Lizzie Green. They then made a presentment recommending her indictment, and the court directed the district attorney to send up a bill which was found. A motion to quash was made on the ground that the presentment originated in the manner above described, and in support of the motion the court permitted a grand juror to be called and to testify to the facts. The bill was quashed and the Supreme Court held that the practice was correct and affirmed the order. It may not be unimportant to note that, in the course of the opinion, Mr. Justice Clark says: “If the court, in the exercise of its discretion, had sustained this indictment and brought the defendant to trial and conviction upon it, it is quite improbable that this court, on a writ of error, would have disturbed the judgment; it is only for a flagrant abuse of this discretion, as we have said, this court would interfere.” From these cases it would follow, we think, that if the matters of fact offered to be proven would have furnished a legal reason for quashing the bill, the learned trial judge would have been wrong in denying to the defendant the opportunity to bring them on the record by his testimony.

What then was the offer? We quote it in full. “Counsel for defendant offer to-show by the proposed witness, Mr. Bolger, that upon the 15th day of March, 1909, having been subpoenaed by the commonwealth, he appeared before the grand jury in the course of its investigation which led to the indictments in this and other cases; that upon the 19th day of March following the appearance of Mr. Bolger, the presentment in this case was handed to the court; that the presentment filed upon the 19th of March recommended the indictment of the defendant here who had testified before the same grand jury on the 15th of March; that the deliberations of said grand jury extended from the 15th of March up to and including the 22d of March, upon which day a true bill was then found against the defendant in this case; and further that the examination of the defendant when he appeared before the grand jury was confined to the circumstances involving the charge upon which this indictment is founded.”

The learned counsel for appellant argues from the existence of the facts, in the offer stated, the conclusion clearly follows that the defendant was robbed of the privilege secured to every citizen by the constitutional declaration that “in all criminal prosecutions the accused .... cannot be compelled to give evidence against himself.”

The literature of the law contained in our reports, federal and state, is exceeding rich in discussions by eminent jurists covering almost every conceivable case in which this general constitutional privilege could require judicial interpretation. Professor Wigmore, in the fourth volume of his work on Evidence, has given us a complete history of the origin, rise and development of the doctrine. But the solution of the question before us does not in our judgment take us so far afield. In turning to a more particular examination of that question we may, we think, quote with profit one general proposition announced by the author last named as resting both on reason and authority, viz.: “In preserving the privilege, however, we must resolve not to give it more than its due significance. We are to respect it rationally for its merits, not worship it blindly as a fetish.”

There is no law, natural, civil or moral, which forbids to a criminal the right to divulge his guilty secret, and thus perhaps best begin the work of his own reformation. But out of our knowledge that innocent men are sometimes accused, and our conception of the dignity and self-respect which ought to characterize the conduct of the government of a great people, even in the detection and punishment of crime, have been born the principle that one accused must not be compelled to help in bringing about his own conviction. The constitution then confers upon every citizen the personal privilege of remaining silent whenever it reasonably appears that his testimony or declaration might result in self-incrimination. “The privilege is merely an option of refusal, not a prohibition of inquiry:” Wigmore, sec. 2268. If a privilege, it may be asserted or waived at the choice of him who possesses it. If asserted, it must be when the time has arrived, when the conditions are present that make the exercise of the privilege reasonably necessary to secure the protection intended to be conferred. And of those matters the witness is not the only and final judge. “The relator was not the final arbiter of the question whether his answers to the interrogatories propounded would tend to criminate him. It was the plain duty of the trial judge to decide that question. . . . The trial judge, and not the witness, is therefore the proper person to decide such questions:” Commonwealth v. Bell, 145 Pa. 374. The general rule was thus formulated by Chief Justice Cock-burn in R. v. Boyes, 1 B. & S. 311: “To entitle a party called as a witness to the privilege of silence the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable ground to apprehend danger to the witness from his being compelled to answer; although if the fact of the witness being in danger be once made to appear, great latitude should be allowed to him in judging for himself of the effect of any particular question.” This, in no substantial way, differs from the statement of the same rule declared by Chief Justice Marshall in Burr’s trial, and it has since been so generally adopted that it may now be said to be as universal as the privilege, the nature and scope of which it defines.

Manifestly, then, no possible infringement of the privilege can be predicated of the facts that one is summoned to appear’ as a witness before a lawful tribunal and examined upon oath. There is no room yet. for any assumption by such person that his constitutional privilege will be impaired or denied. It is not the object of the privilege to exempt any citizen, not a defendant, from the obligation to appear as a witness when duly summoned, and the only purpose and effect of the subpoena are to enforce the performance of this duty and procure the desired attendance.

The offer next asserts the fact that the grand jury, before whom the defendant appeared during the general investigation in which that body was engaged, was the same grand jury which later found a true bill against him. From this fact the learned counsel for appellant draws the legal conclusion which he thus states: “Appellant contends that a person who has testified before a grand jury cannot be indicted before the same grand jury.” Cross-prosecutions are familiar features of the ordinary business of our courts of quarter sessions. They usually arise concerning the same transaction. In one case A is prosecuting witness and B the defendant, in the other the positions are reversed. As prosecuting witnesses, both A and B are compelled by the subpoena of the commonwealth to be in attendance. It is usual for each of them, in his character of prosecuting witness, to appear before the grand jury.. If the proposition just quoted were sound, that grand jury, having heard both of them as witnesses, could indict neither. We know of neither reason or authority that would fairly support such a contention, and we must therefore regard it as untenable. The grand jury was conducting a general investigation covering a wide range of subjects. The defendant, although a witness before that body, may have testified as to one or more of many things in no way connected with the question of his own guilt or innocence of the offense charged in the indictment. Or he may have testified that he had no knowledge of any of the matters then before the grand jury, and thus his testimony would have been entirely valueless for any purpose. To say, that because a grand jury in such an investigation examined a witness, such person could not thereafter be indicted even upon the most satisfactory proof of guilt from sources outside himself, would be to limit and restrain the power and usefulness of a grand jury, at the instance of a defendant, who can show no constitutional or other right in himself to demand such an exercise of judicial power.

But a single additional fact is contained in the offer, viz.: “And further that the examination of the defendant when he appeared before the grand jury was confined to the circumstances involving the charge upon which this indictment is founded.” From this carefully guarded and somewhat obscure statement as to the character of the testimony elicited from the witness before the grand jury, we are asked to draw the inference that such testimony was in some degree-selfcriminating. The entire argument of the appellant on the subject of his constitutional privilege seems to us to rest solely upon this inference, which at the best is an extremely remote and doubtful one. If in point of fact the defendant gave no self-criminating testimony before the grand jury, then the whole argument on this branch of the case is without a foundation upon which it can rest. If he did give such testimony, and now seeks to build upon that fact a barrier to shield him from indictment by the tribunal that heard the testimony, why does he not assert the fact? As already stated, his motion to quash rests upon alleged facts dehors the record. As to the character of the testimony he gave, it is his right to be silent if he choose to remain so, but it seems anomalous to say that he may predicate immunity from indictment by the grand jury on a fact, the existence of which he is unwilling to assert. It was open to him, as it was to the defendant, in the case of Com. v. Green, 126 Pa. 531, to call a grand juror to prove, if he could, that he had asserted his constitutional privilege at a time when its assertion was proper and should have been effective, and that the protection secured to him by the constitution was denied. Or if it be his theory that the investigation, during which he testified, was of such a character that he could not claim the privilege of withholding his testimony, and that his protection then rested on the other constitutional provision that such testimony could not thereafter be rightfully used against him, again the burden was on him to furnish proof of the crucial fact.

Further, the inference we are asked to draw not only finds no support in the record of the grand jury, but is practically contradicted- by that record. The presentment of the grand jury declares in substance at least, if not in so many words, that the testimony, which in their judgment called for the indictment of this defendant, was that of Ramsey and Vilsack, the bank officers, because they gave to the district attorney the names of these two witnesses as those whose testimony would support the indictment he was invited to prepare. When the bill went up it contained but the names of these two witnesses, and the return of a true bill, under these circumstances, is again a practical declaration by the grand jury that the bill was found upon their testimony. On what theory shall we infer that it was not so found, especially in the light of what the record now exhibits, viz.: that this testimony was not only sufficient to warrant the indictment, but was actually found to be potent enough to secure the conviction of the defendant on his trial.

The record further shows that the presentment against one Charles Stewart, a member of select council, was rested on some of the same circumstances out of which grew the indictment of this defendant. Why should we undertake to assume that the testimony of the defendant before the grand jury, even if “confined to the circumstances involving the charge upon which this indictment is founded,” was not directed towards a discovery of the connection of that municipal officer with the transaction then the subject of investigation? In Com. v. Mosier, 135 Pa. 221, Mr. Justice Paxson said: “The second assignment alleges that the court below erred in refusing to quash the indictment because the wife of the defendant was examined before the grand jury as a witness, and testified against her husband contrary to law. It nowhere appears that she testified against her husband contrary to law. The defendant was indicted for the crime of adultery. The Act of May 23, 1887, P. L. 158, expressly authorizes the wife to testify to the marriage, upon a charge of adultery against the husband. We have nothing here but the indorsement of the wife’s name as a witness on the back of the bill of indictment; and, in the absence of any information as to what she testified to, we must presume she was examined only as to matters to which she was a competent witness.”

So we say here. The fair presumptions that flow from the record, as it existed at the time the motion to quash was made, point to the conclusion that this defendant was deprived of no constitutional right. It was his right to place upon the record, if he could, the facts which would properly raise the conclusion he now asks us to reach. We are satisfied he has not done this, and therefore, even if we assume that due proof had been made of every fact contained in his offer, we would still be unable to find a legal reason that would have necessarily compelled the learned judge below to quash the bill, or would warrant us in reversing this judgment because he refused to do so.

The view we have thus taken renders it unnecessary to discuss several interesting phases of the question carefully argued in the able briefs submitted or to attempt to review and analyze many cases therein cited. As we have stated, from the moment the bill was returned by the grand jury to that when sentence was pronounced, we have a record singularly free from even the allegation of substantial trial errors. The main claim of the appellant is that in the fact that the grand jury — at a time when no indictment was pending, and when that body was engaged in a general investigation of the manner in which the municipal business of a great city had been conducted, — called him as a witness along with fifty-two other citizens, and-then subsequently, on abundant testimony from sources outside himself, presented him for indictment and found a true bill against him, there is wrapped up the legal conclusion that he was deprived of his constitutional privilege. When we come to measure his claim by the rule of the practical, the substantial and the tangible, it seems to elude our grasp. To the writer it appears to be rather an appeal to the hypercritical eye of the casuist than to that broad sense of justice which ought to keep the judicial mind alert to see that no man, accused of or tried for crime, is deprived of any substantial, right secured to him by the constitution and laws of the commonwealth.

After the jury had retired and begun to deliberate upon their verdict they sent to the trial judge a request for further instruction or information. The jury was brought back to the court room and the learned trial judge then read aloud their note of inquiry. This seemed to indicate to him that there was an impression in the minds of the jury, or some of them, that there was no testimony of any direct payment of money. to Bolger, and in such event they inquired if they could lawfully infer the fact of such payment from the circumstances detailed by the witnesses, who were then present, as to where the money was placed, and when it disappeared. The learned trial judge first proceeded to correct what he believed to be a misapprehension of the fact upon the part of the jury and had the stenographer read to them the notes of the testimony tending to show a direct payment to Bolger. He further answered the question contained in the note in the following language:“.... I answer that it would be sufficient if the inference was such as to convince you beyond a reasonable doubt that Bolger got the money.” The objection made to' the supplemental instructions thus given is as follows: “Counsel for defendant object to the court entering upon a review of the testimony before the jury by reading of the notes inasmuch as the recollection of the testimony in this case is entirely for the jury, and such review of it by the court is an improper reopening of the case.”

We are unable to see wherein the learned trial judge in any way overstepped the boundaries of judicial propriety in giving such instructions. We know of no precedent in Pennsylvania holding that any reversible error would be committed by a trial judge when, in answer to a request made by the jury, he permits their recollection to be refreshed by reading a portion of the testimony actually delivered on the trial, concerning which some misapprehension had arisen in the minds of the jury. It was upon the evidence as actually delivered that the defendant was to be tried, and we do not deem it necessary to collate the precedents, all of which tend to show that no reversible error can be found in the action of the trial court thus complained of.

The judgment is affirmed and the record is remitted to the court of quarter sessions of Allegheny county with direction that the judgment be fully carried into effect, and to that end it is ordered that the defendant appear in that court and that he be by that court committed to serve and comply with such part of his sentence as had not been performed at the time this appeal was made a supersedeas.


author: Beaver, J.,

text:
    Hinderman v. Fisher, Appellant.

      Execution — Sheriff’s sale — Life estate — Practice, C: P. — Act of January 24, 1849, P. L. 676.
    1. Under the fourth section of the act of January 24, 1849, a venditioni exponas for the sale of a life estate can only issue by the order of the proper court, on ten days’ previous notice of the application for such writ, to the tenant for life, as directed in the proviso to the fourth section. A sheriff’s sale of a life estate, under a venditioni exponas, issued without such order and notice, is void, and confers no title upon the purchaser. The sheriff’s deed in such a case does not cure the irregularities in the process.
    2. Where the record of a sheriff’s sale of a life estate does not show that notices of inquisition and of the extension required by the act of January 24, 1849, had been given, parol evidence as to these notices is inadmissible unless their former existence and loss are first established by competent proof.
    3. In an action by a life tenant to recover possession of the life estate taken from the plaintiff by an invalid sheriff’s sale, the defendant cannot show that the property was dilapidated, and that he had been compelled to make certain repairs of a value stated.
    4. In such a case the defendant will not be permitted to offer in evidence a petition to set aside the sheriff’s sale, and a prior bill in equity praying for the reconveyance of the property to the plaintiff. As the plaintiff in bringing the ejectment is pursuing the proper remedy her previous attempts to establish her right by wrong remedies cannot be set up against her.
    Argued Oct. 28, 1909.
    Appeal, No. 245, Oct. T., 1908, by defendants, from judgment of C. P. Blair Co., Oct. T., 1908, No. 283, on verdict for plaintiff in case of Pauline Hinderman v. Andrew S. Fisher and Lillie L. Fisher.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Ejectment for a lot of land in the city of Altoona. Before Bell, P. J.
    The facts are stated in the opinion of the Superior Court.
    The court gave binding instructions for plaintiff.
    Verdict and judgment for plaintiff. Defendants appealed.

      Errors assigned were (1-7) various rulings on evidence set forth in the opinion of the Superior Court, and (8) in giving binding instructions for plaintiff.

      J. D. Hicks, with him D. J. Neff, for appellants.
    — Parol evidence was admissible to prove the lost records: Clark v. Trindle, 52 Pa. 492; Braden’s Est., 165 Pa. 184; Baskin v. Seechrist, 6 Pa. 154; Farmers’ Bank v. Gilson, 6 Pa. 51; Clark v. Trindle, 52 Pa. 492; Boyer v. Webber, 22 Pa. Superior Ct. 35; Jackson v. Gunton, 26 Pa. Superior Ct. 203;, Mencke v. Rosenberg, 202 Pa. 131; Gibson v. Winslow, 38 Pa. 49; Kelly v. Green, 53 Pa. 302.

      Harry A. McFadden, with him O. H. Hewitt, for appellee.—
    An inquisition cannot be supported unless there has been notice of the fact to the defendant, either of the levy, or of the time and place of holding the inquest: The Act of Assembly of October 13, 1840, sec. 2, P. L. (1841) 1; 2 Purdon’s Digest (13th ed.), p. 1565; Heydrick v. Eaton, 2 Binney, 215.
    The sales must be made in the manner provided by law, in the cases of estates of inheritance, and only under a venditioni exponas: Com. ex rel. Knight v. Allen et al., 30 Pa. 49; Kintz v. Long, 30 Pa. 501; Snyder v. Christ, 39 Pa. 499; Kunselman v. Stine, 183 Pa. 10; Conrad v. Edwards, 7 Pa. C. C. Rep. 342; Conrad v. Edwards (No. 2), 7 Pa. C. C. Rep. 344.
    There must first be a record, before there can be parol testimony received to make a new record or supply a lost record: Loughry v. McCullough, 1 Pa. 503; Baskin v. Seechrist, 6 Pa. 154; Black v. Aber, 2 Grant, 206.
    March 3, 1910:
   Opinion by

Beaver, J.,

The plaintiff seeks, by an action of ejectment, to recover from the defendants a life estate in certain land sold by the sheriff of Blair county to the defendants. That the plaintiff had a life estate under the will of a former husband is not denied. The question is whether or not that .estate passed by a sale by the sheriff to the defendants. That such a sale was made, and a deed in accordance therewith was executed and delivered by the sheriff to the defendants, is not denied. Did the sale so made divest the title of the plaintiff and did the deed thereunder convey to the defendants said title?

The record of the judgment upon which a venditioni ex-ponas was issued, in pursuance of which the sale was made by the sheriff, fails to show that the provisions of the Act of January 24,1849, P. L. 676, entitled, “An act relating to judgments, and the acknowledgment of deeds, and sequestration of life estates, and relative to the high constable of the borough of Wilkes-Barre,” were complied with. The fourth section of said act provides:

“Be it further enacted by the authority aforesaid, That from and after the first day of July next, it shall be the duty of every sheriff or coroner holding inquisitions on lands yielding rents, issues, or profits taken in execution, wherein the defendant has only a life estate, where the same shall be condemned, upon request made, and notice given to the plaintiff in the writ, his agent or attorney, at least three days before the holding of such inquisition by the defendant, his agent or attorney, or the occupant of the land, to cause the inquest to make an appraisement of the yearly value of such lands, and to return the same with or as part of the inquisition and condemnation, and thereupon, before any writ of venditioni exponas shall issue, the plaintiff shall wait thirty days from the date of such inquisition for the defendant, his agent, attorney, or occupant of the land, to elect by notice in writing to the sheriff or coroner, to pay the plaintiff the annual valuation in half yearly payments; and on failure of the defendant so to elect to pay,- or on neglect or failure to pay for thirty days after any half yearly payment shall be due and payable, the like proceedings may be had as are now directed by law in cases wherein estates of inheritance taken in execution are extended on a sheriff’s inquest: Provided, That nothing herein contained shall prevent the appointment of a sequestrator on application of any lien creditor under the provisions of the third section of this act, and of the act therein referred to: Provided further, That the writ of venditioni exponas, as authorized by the third section, shall not be issued in any case wherein the annual rent, found by the jury aforesaid, shall be sufficient to pay the interest on the debts entered of record: And provided also, That no such writ shall be issued unless by the direction of the proper court; and on the application of any lien creditor for a writ of venditioni exponas, the tenant for life shall have at least ten days’ notice of the application for such writ.”

At the trial of the case, the plaintiff offered the writ, proved the marriage of the plaintiff and the will of her husband under which she was devised a life estate in all of his property, real, personal and mixed, and rested.

The defendant then offered a judgment of Kerr & Barclay against Pauline Hinderman as defendant and record of fi. fa. returned unexecuted, and an alias fi. fa. upon which there was a return of a levy upon the real estate in controversy. To this writ was attached a notice by the defendant’s attorney claiming the benefit of the act of assembly approved April 9, 1849, known as the exemption act, and that an appraisement, in compliance with said act, was requested. A later notice requested an “inquest to make an appraisement of the yearly value of such lands as are taken in execution under above writ.” Later the defendant’s attorney notified the sheriff that “Mrs. Pauline Hinderman, the above named defendant, has only a life interest in the property you have levied upon, and under the act of assembly of January 24, 1849, you are 'to cause the inquest to 'make an appraisement of the yearly value of said lands, and to return the same with or as part of the inquisition and condemnation,’ this for the purpose of giving the defendant the opportunity to pay the plaintiff the annual valuation in half yearly payments.” An inquisition duly held was attached to the writ, fixing the yearly rental at the sum of $50.00, and a return by the sheriff to that effect, which inquisition was approved. The defendant then offered the writ of venditioni exponas, with levy upon the real estate in dispute, advertisement of the sheriff’s sale attached thereto and a return by the sheriff: “ Defendants’ real estate sold to Lillie L. Fisher for the sum of $41.00, said sum applied to Sheriff Beegle’s costs.” This was followed by an offer of the sheriff’s deed, the description therein covering the lot in dispute.

The plaintiff objected to the offers of the foregoing papers, first, as immaterial, irrelevant, and incompetent, and, second: “We object to the writs of fi. fa., alias fi. fa. and venditioni exponas for the reason that no prtecipes have been offered in evidence upon which they are based.” These were then duly offered. The objection was then made: “The plaintiff objects to the offer of the prsecipe for vend. ex. for the reason that the inquisition having extended the defendants’ property at a rental sufficient to pay the claims of record, and no notice having been served upon the plaintiff requiring her to elect whether she will retain the property and pay the rental and the claim, and the vend. ex. having been issued prior to her default, therefore the same must be issued upon petition and special order of the court.”

The further objection was made, “That, under the law, the sheriff was required to give the defendant written notice, five days’ notice, of the time and place of holding the inquisition, and there is no record or proof of such notice;” also that “the sheriff failed to notify the defendant of the holding of the inquisition and of her right of election to take the property or retain possession thereof at the appraisement.” Also that “the notices required by the second section of the Act of October 13,1840, P. L. (1841) 1, and 24th'January, 1849, P. L. 676, requisite to the selling of lands of a defendant extended upon inquisition upon venditioni exponas were not given.” Also: “ There is no proof on the record showing that the defendant was in default of the payment of the rental at which the lands were extended.” And further, “ For the reason that the interest of the defendant in the land in question was a life estate, acquired under the will of her deceased husband, and that the proper and primary remedy in the present case for collection of the claim of the plaintiff in the writ under which the lands were sold was a sequestration of the life estate, and not any attempted sale of the life estate as was done in this case.” The objection was sustained and the evidence rejected.

The defendants then undertook to show by parole that the several notices required to be given, as contained in the objections of the plaintiff, had been given, which were severally-objected to. These offers were all rejected by the court in a lengthy opinion which is summed up as follows: “As I have already indicated, it does seem to me that there is a fundamental prerequisite wanting in the record in this case, and I think it would be much better to rule this matter squarely, and rule as I have indicated that the purchaser of a life interest must look over the record and see that it is correct before he undertakes to take advantage of the exceptional remedy by a sale on a venditioni exponas. Choosing between two evils, it does seem to me it is much better, even if that purchaser suffers some loss, to stand by the legislation on the subject than to rely on the uncertain recollection of persons seven years afterwards who naturally are prone to think they did something which they ought to have done at the time, and as there is no record found on the dockets or among the papers of this court, or of any permission being granted by the court to Messrs. Kerr & Barclay to issue a venditioni exponas, I think that sheriff’s sale to Mrs. Fisher was void, and gave Mrs. Fisher no title to the property, and we, therefore, sustain the objection, and seal a bill for the defendant.”

Other offers were made by the defendant to show that the property, when purchased by Mrs. Fisher, was very much dilapidated and that a contractor was employed to make certain improvements and the value thereof, which were objected to and all objections sustained by the court, in which the court said: “ It may be that, if the appellate courts affirm us and if the record is returned with an affirmance, and Mr. Fisher applies for a sequestrator, that we can to a certain extent protect him about these things, but I do not see how we can protect him in this case.”

Other offers of evidence were made, tending to show that the plaintiff had filed no exceptions to the sheriff’s sale, had slept upon her rights and had failed to come into .court to assert these rights until over six months had elapsed after the sale, and to show that upon a petition to set aside the sale the court had refused to do so; also offering a bill in equity filed by the plaintiff against the defendants, asking that the defendants be required to convey the said property to the plaintiff, to pay the costs and furnish such other relief as-might be deemed proper and equitable. Both of these offers were rejected, the court intimating that upon the petition of the plaintiff to set aside the sheriff’s sale it was refused because the deed had been actually delivered and that the bill in equity had been dismissed, because it was an ejectment bill.

The first seven assignments of error relate to the refusal of the court to admit the several offers of evidence which have been referred to. Three of these relate to the attempt to build up á record which would support a sale of the premises in dispute by parol evidence as to facts concerning which the record is absolutely silent. Did the plaintiff have the notices of inquisition and of the extension of her real estate required by the act of 1849? Was the writ of venditioni exponas, upon which her property was sold, specially allowed by the court of common pleas? These were vital questions, for it has been held in numerous cases as early as Kintz v. Long, 30 Pa. 501, that, Under the third section-of the act 24th January, 1849, a venditioni exponas for the sale of a life estate can only issue by the order of the proper court, on ten days’ previous notice of the application for such writ, to the tenant for life, as directed in the proviso to the fourth section. A sheriff’s sale of a life estate, under a venditioni exponas, issued without such order and notice, is void, and confers no title upon the purchaser,” which case is referred to with approval in Kunselman v. Stine, 183 Pa. 1. See also DuFour v. Bubb, 199 Pa. 107.

The rulings of the court below, rejecting these offers, were in our opinion entirely correct. They all assumed the existence of a record which they proposed to prove lost and then supply them. It is competent, when a record is shown to have been in existence, the loss of which is satisfactorily explained, to prove its contents by parole, but this is a different question. The defendants here sought, first, to establish by mere implication the fact that a record did at one time exist, then prove the loss of it and finally show the contents thereof. This cannot be done. There is nothing in the offers by which it was proposed to show that the missing papers, the contents of which were to be shown, had ever been made a matter of record. “The records of our courts are the muniments of all we possess, and no particular grievance can bear comparison with the abuses that would creep in were they adulterated with anything so uncertain and unsafe as parol evidence:” Loughry v. McCullough, 1 Pa. 503. “ It is not to be doubted that a missing record may be proved by secondary evidence; but then its former existence and loss must be first established by competent proof:” Baskin v. Seechrist, 6 Pa. 154 (162). So in Black v. Aber, 2 Grant, 206: “After an inquisition and extension of real estate, a vend. exp. is irregular, until after a notice to defendant to accept the premises and pay the rent. Whatever ought to appear of record, and does not, must be presumed not to have occurred.”

The offers of the defendants to show the dilapidation of the property and the moneys expended by them in its repair were irrelevant and immaterial. What possible relevancy had the condition of the property to the validity of the title of the defendants? This is not a question as to whether or not the defendants should be reimbursed for moneys expended by them. It is a question as to whether they should surrender the property to the plaintiff, because of the invalidity of their title.

The petition to set aside the sale, and the bill in equity asking that the defendants reconvey the property to the plaintiff were alike properly rejected.i Their rejection was based upon the fact that the plaintiff was pursuing the wrong remedy, and particularly as to the bill in equity it was not allowed because it was an ejectment bill, but here she is pursuing her proper remedy and the fact that her bill was dismissed because it was an ejectment bill is in no sense an adjudication of the question.

It is alleged by the appellants that what are called by them irregularities in the process leading up to the sale were all cured by the sheriff’s deed, and numerous authorities are cited for this proposition. If they were mere irregularities, this would doubtless be so, but as a sale which was made after the return day, although continued by adjournment from a day prior, is void and vests no title in the purchaser, Cash v. Tozer, 1 W. & S. 519, so here, as already shown, the venditioni ex-ponas upon which the sale was made having been issued without special authority from the court below, the sale was absolutely void, being made without authority. In Shields v. Miltenberger, 14 Pa. 76, Mr. Justice Bell points out the distinction between irregularities in the proceedings leading up to the sale and the defects which are fundamental and rendered it void. So in Workingmen’s Protection & Bldg. Assn. v. Hausman, 8 W. N. C. 517, it was held: “Under act of 24th Jan. 1849, a vend. ex. for sale of a life estate cannot issue without order of court and notice to life tenant, and a sale under such execution is void.”

If the sale was void, as held in this later case, and also in the -cases previously cited, the court was, of course, justified in directing the verdict for the plaintiff.

Considered from every point of view, we are unable to say that the court below committed error in overruling the offers of evidence and in holding that the verdict should be for the plaintiff.

Judgment affirmed.


author: Henderson, J.,

text:
    Commonwealth v. Howe, Appellant.

      Criminal law — Rape—Felonious rape- — Girl under age of consent— Reputation — Charge.
    1. On the trial of an indictment for felonious rape on a girl under the age of consent, the defendant is entitled to an acquittal if he shows that the girl consented and that she was of bad repute.
    2. In such a case if the court in its charge dwells at length on the fact that the girl had no consent to give, and passes over or minimizes the evidence as to her bad repute and a conviction results, such conviction will be reversed by the appellate court.
    3. In such a case it is reversible error for the trial judge to charge that the defendant must prove that the bad repute of the girl existed before his unlawful relation with her.
    4. Evidence of good character is substantive evidence to be weighed and considered in connection with all the other evidence in the case; and it is to be regarded as a fact like any other tending to establish the defendant's innocence and ought to be so regarded by both court and jury.

      Practice, C. P. — Trial—Points—Answer to points.

    5. The trial judge in answering points should read each point and answer it separately in order that the jury may be able to apply the proper proposition to the answer. It is improper to read a number of points consecutively and affirm them altogether after reading the last point.
    Argued Nov. 8, 1909.
    Appeal, No. 14, March T., 1910, by defendant, from judgment of Q. S. Lackawanna Co., Oct. T., 1907, No. 19, on verdict of guilty in case of Commonwealth v. Carl Howe.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for rape. Before Newcomb, J.
    The facts appear by the opinion of the Superior Court, and by the previous reports in 35 Pa. Superior Ct. 554, and 38 Pa. Superior Ct. 208.
    The court charged in part as follows:
    ■ [It may be that the girl was enamored of the defendant; it may be she was fond of him and willing to practice deception on her father for the sake of meeting the defendant. Be that as it may, if he took advantage of such opportunity as her situation and willingness might afford-and had clandestine meetings with her, and thus gained her consent, and had connection with her between September 9, 1905, and December 2, 1907, he would be guilty, and if you are so satisfied beyond reasonable doubt he should be found guilty.
    Mr. O’Brien: You mean 1906, you said 1907.
    The Court (resuming): I said between September 9, 1905, and December 2, 1907. You will understand I made a mistake, and that is December, 1906. That is so because under the law a woman-child of that age has no consent to give. If you get the impression from the defendant’s argument that the girl is not within the protection of the statute under which the case arises, if she readily consented without resistance, it would be misleading. The mere fact that the girl readily yielded to the defendant’s advances does not in itself affect the question of his guilt. You can see how that is: The statute itsélf is based upon the presumption that a girl of that age is not capable of resisting such advances; and, therefore, is likely readily to yield consent. The infirm mind of a girl of that age is assumed by the people in enacting such a law, which is the very reason which underlies this statute.] [1]
    [The marked issue in the case is, who tells the truth. I apprehend your verdict will depend upon whether you believe the girl. It would seem to me you will have to determine as between her and the defendant which is to be believed. I can see no escape from that issue.] [15]
    [There is evidence, which if believed, would prove the unlawful intimacy earlier than September 9, 1905, and later than December 2, 1906. That, you will see, is a period of nearly fifteen months. That may be called the period covered by the indictment, as it is within that period that the defendant’s guilt is to be found if he be guilty. The evidence of his relations with the girl before and after that date is to be considered only as it may tend to show what their relations were during the fifteen months, or thereabouts, coyered by the indictment. You can see how that is: If there were a period of intimacy it must have had a beginning; if the commonwealth’s case is sound, if it is sustained by the evidence, it can be found that as early as May, 1905, the girl was led astray by the defendant when she was a few months past fourteen years of age, and from that time his unlawful relations continued with her until May, 1907, a period of two years, when they are claimed to have been discovered, except for interruptions such as occurred in midwinter and while the defendant was at Ocean Grove. If you find in favor of the commonwealth as to the beginning of the unlawful relations, it might tend to throw light on the question of their relations thereafter. So, too, if you should find that the defendant was criminally intimate with the girl in December, 1906, after she became sixteen years of age, and later, in 1907, it might under all the evidence aid you in determining what was going on between them during the fourteen to fifteen months before December, 1906.] [16]
    [In that connection the defendant has a right to have the evidence as to his previous good reputation for chastity considered. It is for you to say whether he has proven such previous good reputation by the testimony of these witnesses. If he has, if you are satisfied that he had that kind of a reputation before the time of his relations with this girl, then that is a fact that he is entitled to have considered by you, and it is for you to say whether that in itself operates to create a reasonable doubt, if you find that he had such reputation.] [17]
    [If there be no doubt in your mind you will convict the defendant. If guilty, he should be convicted as charged in the second count of the indictment, unless the girl is found by the jury to have been of bad repute. By that is meant bad repute prior to the time of any unlawful relations that she might have had with the defendant.] [18]
    [He must prove such repute before the time of any unlawful relations that he may have had with her. If the commonwealth’s case is true, the girl might well have become of bad repute by reason of her relations with him. If it became bad merely by reason of. that, the defendant could not avail himself of it, for it would be permitting him to take advantage of his own wrong.] [19]
    Verdict of guilty, upon which judgment of sentence was passed.

      Errors assigned among others were (15-19) above instructions, quoting them; (23) in answering and affirming a number of points together, instead of reading and answering them one by one.

      R. H. Holgate, with him Taylor & Lewis, for appellant.

      Joseph O’Brien, district attorney, with him Clarence Ba'lentine, for appellee.
    March 3, 1910:
   Opinion by

Henderson, J.,

The second count of the indictment on which the appellant was tried was drawn under the Act of May 19,1887, P. L. 128. It was conceded by the commonwealth that a conviction could not be had under the other counts, and the court instructed the jury to that effect. The defendant denied that he had had illicit relations with the prosecuting witness and also offered evidence to show that she was not of good repute at the time the offense was charged to have been committed. That the intercourse shown by the commonwealth was with the consent of the girl appeared from her own testimony, and the contrary was not alleged. It was a material branch of the defense, therefore, under the proviso of the act that the woman-child was not of good repute and that the carnal knowledge was had with her consent, for under facts so found by the jury the law directs that the defendant be acquitted of felonious rape and convicted of fornication only. In the course of the charge after a discussion at some length of the evidence the court said, “ Be that as it may, if he took advantage of such opportunity as her situation and willingness might afford and had clandestine meetings with her, and thus gained her consent, and had connection with her between September 9, 1905, and December 2, 1906, he would be guilty, and if you are so satisfied beyond reasonable doubt he should be found guilty. . . . That is so because under the law a woman-child of that age has no consent to give. If you get the impression from the defendant's argument that the girl is not within the protection of the statute under which the case arises, if she readily consented without resistance, it would be misleading. The mere fact that the girl readily yielded to the defendant’s advances does not in itself affect the question of his guilt.” In a subsequent part of the charge the court instructed the jury that if the defendant was guilty he should be convicted as charged in the second count of the indictment unless the girl should be found by the jury to have been of bad repute. This is followed by a consideration of the evidence offered on that subject, and this branch of the charge is closed with the following instruction: “Are you satisfied that the presumption in the girl’s favor has been overcome? If so, you will only convict the defendant of fornication.” We think the complaint that the bearing of the proviso of the act of 1887 was not adequately brought to the attention of the jury by the portions of the charge referred to, is well founded. The jury was told in very clear language that if the defendant gained the consent of Madeline Patterson and had connection with her between September 9, 1905, and December 2, 1906, he would be guilty and that was so because under the law a woman-child of that age had no consent to give and that the mere fact that the girl yielded to the defendant’s advances did not affect the question of his guilt. The jury must have been impressed by the instructions of the court and the reasons stated and would be probably led to conclude that the only available defense was the denial of the commission of the act. It was important, therefore, that the bearing of the proviso of the statute be brought to the attention of the jury in such a way that they could understand that what would otherwise amount to the felony charged in the second count would become a very different offense in the eye of the law if when the act was committed two facts existed; that the woman-child was not of good repute and that she consented to the connection. The only explicit instruction which we find on this subject is, “Are you satisfied that the presumption in the girl’s favor is overcome? If so, you will only convict the defendant of fornication.” In view of the magnitude of the crime alleged and the effect of bad repute and consent in changing the legal nature of the offense we think the jury should have been more clearly informed of the bearing of the proviso on the character of the charge against the defendant, especially because of the previous instructions as to the immateriality of consent by the girl. As the consent was admitted by the commonwealth and the testimony of several witnesses was offered on the subject of the repute of the girl the question on these points was clearly before the court and jury. The obvious purpose of the statute is to guard the innocence of youth, but there is an equally apparent purpose not to visit an offender with punishment for a felony if the conditions exist to which the proviso has reference. We are constrained, therefore, to sustain the first assignment.

The fifteenth assignment excepts to the following language of the charge: “The marked issue in the case is, Who tells the truth? I apprehend your verdict will depend upon whether you believe the girl. It would seem to me you will have to determine as between her and the defendant which is to be believed. I can see no escape from that issue.” If the question were simply whether the defendant was guilty of the offense expressly charged in the indictment this instruction would not be objectionable, but there were two distinct issues in the case, (1) Was the defendant guilty of the acts charged and proved by the commonwealth? (2) if the acts were committed by the defendant, was the person with whom they were committed of good repute, and did she consent? This instruction overlooks the defense set up under the proviso of the act. That could be made out without reference to the credit to be given by the jury to the testimony of the defendant, and on that branch of the case the question was not whether they believed the girl or the defendant, but whether crediting the former with truthfulness she nevertheless was not of good repute and had consented. The issue was thus made narrower than the evidence allowed, and the jury may have been led to believe that 'if they accepted the testimony of the girl it was their duty to convict. The fifteenth assignment is sustained.

The indictment related to acts of the defendant committed between September 9, 1905, and December 2, 1906,' at which latter date Madeline Patterson was sixteen years of age. The commonwealth offered evidence tending to show illicit relations between the parties beginning in May, 1905. This was admitted by the court not for the purpose of proving the crime charged, but to show the relation between the parties prior to the period covered by the indictment. In the latter part of the charge in considering the subject of repute the court instructed the jury that the defendant should be convicted as charged in the second count of the indictment unless the girl is found by the jury to have been of bad repute: “By that is meant bad repute prior to the time of any unlawful relations that she might have had with the defendant.” A little further along in the charge the same instruction was repeated in these words: “He must prove such repute before the time of any unlawful relations that he may have had with her. If the Commonwealth’s case is true, the girl might well have become of bad repute by reason of her relations with him. If it became bad merely by reason of that, the defendant could not avail himself of it, for it would be permitting him to take advantage of his own wrong.” This portion of the charge raised an issue on which no evidence was presented. The defendant had produced testimony tending to show that at the time the alleged crime was committed the reputation for chastity of Madeline Patterson was not good, and the only issue on that point was whether the fact existed. The language of the statute is, “If the jury shall find that such woman-child was not of good repute and that the carnal knowledge was with her consent the defendant shall be acquitted of the felonious rape,” etc. The period referred to in the statute as the time when the woman-child was not of good repute is the time when the act was committed which constitutes the crime. If at that time the person injured was not of good repute the law declares the crime was of a different and much less serious character. To permit an inquiry as to how this repute became established would introduce an issue in the case entirely apart from the charge in the indictment and one not warranted by the statute. The same reasoning would exclude the reputation for bad repute if in the opinion of the jury the defendant had contributed in part to its creation, and we might have the case of one whose reputation was bad because of general misconduct in which the defendant had participated and where such repute could not be set up by way of defense because of the supposed contribution to that reputation by the accused. The guilty act creates the liability. The mitigation of the offense results from the provision of the statute where there is bad repute and consent. The history of the repute is not the subject of inquiry except as it might incidentally arise on the examination of the witnesses who testify as to reputation. Under the charge the jury could have been satisfied that the girl was not a person of good repute and still have convicted the defendant, because they inferred or believed that her reputation grew out of her relation with the defendant before the crime set forth in the indictment was committed. This is not in accordance with the statute on which the commonwealth relies for a conviction. The eighteenth and nineteenth assignments must, therefore, be sustained.

The defendant introduced evidence to show that he bore a good general reputation for chastity. The court in calling the attention of the jury to that portion of the evidence said, It is for you to say whether he has proven such previous good reputation by the testimony of these witnesses. If he has, if you are satisfied that he had that kind of a reputation before the time of his relations with this girl, then that is a fact that he is entitled to have considered by you, and it is for you to say whether that in itself operates to create a reasonable doubt, if you find that he had such reputation.” In a subsequent part of the charge the same subject is referred to as “a fact to be taken into consideration and weighed in the scales in his favor, and as viewed by you to see whether in itself it operates to create a reasonable doubt.” It is undoubtedly true that in some cases the evidence of good character may have the effect to create a reasonable doubt where without it there might be a conviction. Such was the view expressed in Heine v. Com., 91 Pa. 145. But it is not the only office of evidence of good character to create a reasonable doubt. It has frequently been said that it is substantive evidence to be weighed and considered in connection with all the other evidence in the case. "The evidence of good character is to be considered with the other evidence in the case and if it all combined creates a reasonable doubt the defendant is to be acquitted:” Com. v. Cleary, 135 Pa. 64. Such evidence is offered not simply to raise a reasonable doubt but to establish the innocence of the defendant and is to be regarded as a fact like any other tending to establish the defendant’s innocence and ought to be so regarded by both the court and jury: Hanney v. Com., 116 Pa. 322. Such evidence does not raise a distinct issue; nor is it brought into the case as a mere makeweight.' It is to be taken into account with all the other evidence in the case, and if the whole of that evidence is sufficient in the judgment of the jury to show that the defendant is not guilty or to create a reasonable doubt on that point the defendant is entitled to an acquittal: Com. v. Cate, 220 Pa. 138.

Objection is made to the manner in which the learned trial judge answered the points presented by the defendant, and particularly to the fact that these points from the seventh to the seventeenth, inclusive, were read consecutively and affirmed at the conclusion of the reading of the seventeenth. These points contained a variety of propositions, and some of them included recitals of evidence and arguments which might have been properly refused. But as to those which were pertinent the answers should have been given in connection with the reading of the point in order that the jury might have been able to apply the particular proposition to the answer. The proper mode of answering points is thus stated in Everhart v. Searle, 71 Pa. 256: “Points should be read and answered seriatim, and explained to the jury if necessary, and distinctly affirmed, negatived or answered, so that the jury •may know that that which has been asserted is or is not the law.” We are not persuaded, however, that the method adopted by a trial judge in answering points is a subject of review. The case just cited indicates that it is not. There are numerous assignments to which we think it not necessary to refer. Several of them are not set forth in accordance with the rules of court and cannot be noticed; others relate to occurrences at the trial not likely to recur at the next trial, and others are without merit.

The judgment is reversed with a venire facias de novo.


text:
    Coleman v. Towanda Township, Appellant.

      Negligence — Townships—Defective bridge — Contributory negligence— Question for jury.

    1. In an action against a township to recover damages for personal injuries caused by a fall through a bridge, the case is for the jury where the evidence tends to show that although the bridge was properly planned, it was negligently constructed.
    2. In an action to recover damages for personal injuries, where the plaintiff’s own testimony is to some extent contradictory, it is the province of the jury to reconcile the conflicting statements.
    Argued'Nov. 15, 1909.
    Appeal, No. 227, Oct. T., 1908, by defendant, from judgment of C. P. Bradford Co., Dec. T., 1906, No. 119, on verdict for plaintiff in case of Ellen Coleman v. Towanda Township.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver, and Porter, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries.
    At the trial the jury returned a verdict for plaintiff for $300.
    On a rule for judgment non obstante veredicto, Fanning, P. J., filed the following opinion:
    The plaintiff, Ellen Coleman, instituted an action of trespass against Towanda township to recover damages sustained by the tipping of an unfastened plank on a bridge which she was crossing. The bridge in question was constructed by Henry Huyleman, path master, assisted by James Johnson, Wallace Yanderpool and John Ackley, under the directions and in accordance with instructions from the road commissioners. Mr. Huyleman states that this was the only bridge he ever helped build. The floor of the bridge was constructed of three tiers of plank laid end to end; the two lower or eastern sections were spiked down; also the outside planks on the upper or western tier, leaving five of the inside planks unfastened. Mr. Place, one of the commissioners, directed Huyleman how to build it, and saw how the plank were laid. The end of the bridge where the unspiked plank were laid was slightly higher, and sloping towards the lower end. These plank were laid on stringers six feet long, flatted on two sides, and five or six inches wide. The lower sections were covered with dirt. The upper or western section, where the accident occurred, was bare. The main traveled portion of the highway, which was extensively used, was over the two lower sections, but the upper was also a portion of the bridge and used for public travel. The upper end of the second tier of plank and the lower end of the western tier abutted together upon the same stringer — the former spiked, and five of the latter unfastened and having a support or projecting over or on the stringer a short distance. The one about a foot wide which gave way rested on the stringer, we think one witness states about two inches. One witness in his testimony conveyed the idea and perhaps others that it was thought the loose plank would retain their position because the eastern end of the same was slightly lower than the western end. One of these loose plank had worked off the stringer upon which it rested or became in some way detached therefrom so that a person stepping on the eastern end, there being no support underneath, would naturally go down. The plaintiff in crossing the bridge stepped on this end of the plank, which gave way beneath her feet, and went through the bridge. The evidence does not indicate that there was anything in the appearance of the plank to call attention to its dangerous condition. It is undoubtedly the duty of municipalities to so construct their bridges and highways that they are reasonably safe for ordinary travel. It is not contended in this case that a defect in the bridge arose subsequently to its construction, to which the attention of the road authorities was called, or to which they had constructive notice from the lapse of time after the defect arose, nor that it was a latent defect, but on the contrary that the bridge as originally constructed and with their knowledge was faulty, defective, improperly built and unsafe or liable to become so by reason of the omission to nail or fasten five of the plank constituting a part of the flooring of said bridge. That the lower tiers of plank were spiked down is admitted, also the outside plank of the upper tier. The five inside plank could not work down because those against which they abutted were fastened. They could work or be moved in the other direction and off the sleeper. Whether the construction and maintenance of this bridge by the township authorities with five loose or unspiked plank was negligence; whether the bridge as so constructed was reasonably safe for public travel, we think were questions for the jury. They had the evidence before them as to the situation and surroundings, the character of the stringers, and extent of the support of the eastern end of the plank. They also visited the place of the accident by consent of the parties and permission of the court. Their finding was adverse to the township.
    It is contended that even though the negligence of the township was established, that the plaintiff was barred by contributory negligence from a recovery. We think the court could not under the testimony have properly taken the.case from the jury on this ground. It is the law of Pennsylvania that pedestrians in crossing streets and bridges are required to use their senses, to be alert, watchful and vigilant; to look where they are going, and their failure to exercise care according to the circumstances will defeat a recovery, if injured. This principle is clearly enunciated in Robb v.- Connellsville Borough, 137 Pa. 42; Mcllhenney v. Philadelphia, 214 Pa. 44, and a long line of cases. It is true that upon a rigid cross-examination the plaintiff in answer to this question, “If you had looked, you could have seen that plank, could you?” said, “If I had looked, but I did not look. Q. If that plank had been moved then as you looked, you could have seen it, could you? A. Yes, if I was looking for any danger, but I wasn’t.” And one or two similar answers were given. If it was clear from plaintiff’s testimony that she walked into an opening in the bridge, which she could have seen by exercising ordinary care, by looking, the duty of the court would have been clear. But all the evidence must be taken together; She explains the accident in part as follows:
      “I stepped right in; as I stepped right in on the plank it tipped. I stepped from the road right in on the plank and when I got on the plank it dropped in with me. Q. You were not looking where you were walking, were you? A. Yes, I was looking where I walked.” Had the lower end of the plank been down, the other end would necessarily have been tipped up and its condition easily discernible. There is no testimony in the case that at the time the accident occurred such was the situation or that the working of the end of the plank off from the stringer sufficiently to let it down would leave a hole that could with ordinary care be observed. Mr. Place, one of the commissioners, passed over this bridge that day and observed nothing wrong. The testimony is not before us, but no witnesses as we remember testified that there was anything to call attention of travelers to the dangerous condition of the plank when she stepped on it. Mr. Place was there shortly after the accident and while the plaintiff was on the bridge. At that time, after the plank had gone down with the plaintiff one end was tipped down and the other end raised. Mrs. Coleman states that when she stepped on the plank it dropped in with her; that she watched and picked her way out of the mud. She also states that there was no hole there that she could see, nor anything indicating that the plank had slipped off. These statements, though to some extent conflicting, must we think be taken as a whole and in the light of the surrounding circumstances as disclosed by the testimony.
    And now, October 15, 1908, rule for judgment non obstante veredicto discharged, and judgment directed to be entered on the verdict of the jury.

      Error assigned among others was in overruling motion for judgment n. o. v.

      M. E. Lilley, of Lilley & Wilson, for appellant,
    cited as to the negligence of the defendant: Graham v. Pennsylvania Co., 139 Pa. 149; Platz v. McKean Twp., 178 Pa. 601; Shieb v. Collier Twp., 11 Atl. Repr. 366; McGuire v. R. R. Co., 215

      Pa. 618; Collins v. Philadelphia, 93 Pa. 272; Childs v. Crawford County, 176 Pa. 139; Rotsell v. Warren Borough, 10 Pa. Superior Ct. 283.
    Cited as to the contributory negligence of plaintiff: Robb v. Connellsville Boro., 137 Pa. 42; Stackhouse v. Vendig & Co., 166 Pa. 582;’Shallcross v. Philadelphia, 187 Pa. 143; Seigler v. Mellinger, ,203 Pa. 256; Martin v. Williamsport, 208 Pa. 590.

      Wm. Maxwell, with him R. A. Mercur, for appellee.
    — The case was for the jury: Easton Borough v. Neff, 102 Pa. 474; Kennedy v. Williamsport, 11 Pa. Superior Ct. 91; Fowler v. Jersey Shore Borough, 17 Pa. Superior Ct. 366; Zimmerman v. Conemaugh Twp., 2 Cent. Repr. 361; Riddle v. Delaware County, 156 Pa. 643.
    The plaintiff had the right to assume that the bridge was reasonably safe, and that she, by the ordinary use of her eyes, at an ordinary pace, could safely walk upon the bridge: Bruch v. Phila., 181 Pa. 588; Allen v. DuBois Borough, 181 Pa. 184; Butcher v. Phila., 202 Pa. 1; Easton Borough v. Neff, 102 Pa. 474; Merriman v. Phillipsburg Borough, 158 Pa. 78; Ryan v. Ardis, 190 Pa. 66; Rick v. Wilkes-Barre, 9 Pa. Superior Ct. 399; Stokes v. Ralpho Township, 187 Pa. 333; Sheridan v. Palmyra Township, 180 Pa. 439; Dormer v. Alcatraz Paving Co., 16 Pa. Superior Ct. 407; Chambers v. Braddock Borough, 34 Pa. Superior Ct. 407; Shaffer v. Harmony Borough, 204 Pa. 339; Wall v. Pittsburg, 205 Pa. 48.
    March 3, 1910:
   Opinion by

Beaver, J.,

The opinion of the court below, discharging the rule for judgment non obstante veredicto, which is the principal assignment of error, so clearly and concisely states the facts that, if it be included in the report of this case, it will be unnecessary to restate them here..

The defendant is charged with negligence in the construction of a simple plank bridge across a run seven feet wide, or thereabouts, which crosses the ordinarily traveled roadway. There was no special plan for the construction of this bridge, requiring the employment or design of an engineer. It is not alleged, as we understand it, that any special design was furnished. The road commissioners directed the pathmaster in general terms how to place the stringers and lay the plank thereon, which together constituted the bridge. There is no allegation that the bridge was not sufficiently strong, nor that it failed to vent the waters which were expected to pass thereunder. The case, therefore, does not raise the questions argued by the appellant in the cases cited, where there has been an honest mistake as to plan, strength, scope, capacity, etc., of a municipal improvement constructed in accordance with a definite plan. There is no allegation that the plan was faulty, but that the construction was negligent. This question was for the jury, and was fairly submitted to it by the court below.

The other question in the case was that of contributory negligence, in that the plaintiff failed to give proper heed to her footsteps; in other words, that she failed to look where she was going. It is true that her testimony is somewhat contradictory in this respect. When, however, her attention was called specifically to the manner in which she approached and stepped upon the bridge and the question was asked, “You were not looking where you were walking, were you? ” she replied, “Yes, I was looking where I walked.”

In Ely v. Railway Co., 158 Pa. 233, at p. 238, Mr. Justice Mitchell, in his opinion, says: “This testimony was contradictory, and the net result of it by no means clear.' On part of it he was plainly entitled to go to the jury, on the other part equally plainly he was not. Under these circumstances, the case must go to the jury whose province it is to reconcile conflicting statements, whether of the same or different witnesses, or to draw the line between them and say which shall prevail.”

Even if the plaintiff’s testimony in this case admitted of the interpretation placed upon it by the appellant, it was clearly for the jury. Both the question of the negligence of the defendants and the contributory negligence of the plaintiff wei¡e for the jury. As to the manner in which they were submitted, there is no complaint.

.The refusal of the court to give binding instructions for the defendant and to enter judgment non obstante veredicto are practically the only questions raised by the several assignments of error. The court below correctly disposed of both.

Judgment affirmed.


text:
    Miller v. Philadelphia & West Chester Traction Company, Appellant
    (No. 1).

      Negligence — Street railways — Infant—Foot wedged in track — Case for jury.

    In an action against an electric railway company to recover damages for personal injuries to a boy eleven years old, the case is for the jury as to defendant’s negligence, where the evidence shows that the plaintiff caught his foot between the planking and the rail at a crossing; that one or two of his brothers came to his assistance but failed to extricate him; that at the time a car was in sight about 500 feet away, from which point the motorman could see the boy; that one of the brothers ran along the track for a distance of from fifty-one to sixty-three feet endeavoring by motions and cries to attract the attention, of the motorman; that the latter without paying any attention waved the brother off the track; that he then almost immediately seemed to comprehend that the plaintiff was caught, and thereupon attempted to stop the car, but was unable to do so in time to prevent the accident.
    Argued Nov. 16, 1909.
    Appeal, No. 92, Oct. T., 1909, by defendants, from judgment of C. P. Delaware Co., Dec. T., 1907, No. 213, on verdict for plaintiffs in case of Charles H. Miller and Charles Horace Miller, by his next friend, Charles H. Miller, v. Philadelphia & West Chester Traction Company.
    Before Rice, P. J., Henderson, Morrison, Head, Beaver and Porter, JJ.
    Affirmed.
    . Trespass to recover damages for personal injuries to a boy eleven years old. Before Broomall, J.
    . The facts are stated in the opinion of the Superior Court.
    .. Yerdict and judgment for Charles H. Miller for $210, and for Charles Horace Miller for $750. Defendants appealed.

      Errors assigned were (1) refusal of binding instructions for defendants and (2) refusal to enter judgment for defendants n. o. v.

      William I. Schaffer, for appellants.
    — The motorman was in the same situation he would have been if he had suddenly turned a corner and come upon the plaintiff fast in the track. He could not be negligent, because he had no knowledge of the situation around the corner. His mind would be blank as to the danger. Until informed he could not be expected to take precaution. Until he knew he could not be guilty of an absence of care: Custer v. R. R. Co., 19 Pa. Superior Ct. 365; s. c., 206 Pa. 529; Fink v. Traction Co., 224 Pa. 618.

      ,W. Roger Fronefield, for appellees.
    — The duty of the motorman, the instant he saw the boy upon the track, or, if exercising proper care and caution, he ought to have seen him, is to stop, or, to so absolutely control his car, as to avoid the risk before him. The motorman must constantly be on the alert, see what is ahead of him and heed what he sees: Railway Co. v. Dunn, 56 Pa. 280; Railway Co. v. Schuster, 113 Pa. 412; Jones v. Traction Co., 201 Pa. 344; Davidson v. Traction Co., 4 Pa. Superior Ct. 86; Schnur v. Traction Co., 153 Pa. 29; Evans v. Traction Co., 176 Pa. 376; Johnson v. Ry. Co., 160 Pa. 647; Reilley v. Traction Co., 176 Pa. 335; Conner v. Ry. Co., 216 Pa. 609; Lenkner v. Traction Co., 179 Pa. 486; Railroad Co. v. Morgan, 82 Pa. 134; Wilson v. Traction Co., 10 Pa. Superior Ct. 325; Hanlon v. Traction Co., 28 Pa. Superior Ct. 223; Thompson v. Traction Co., 193 Pa. 555.
    March 3, 1910:
   Opinion by

Beaver, J.,

A father and son, by his father as next friend, brought suit against the defendant company for an injury caused the latter by one of its cars upon its roadway. There was a single suit, in which verdicts for father and son were separately rendered and judgments entered thereon. There were two appeals, but they were argued together here upon one paper-book.

The plaintiffs, in their statement of claim, alleged a negligent construction of the defendant’s traction roadway, by reason of which the son, aged eleven, had his foot wedged between one of the rails and the plank adjacent to it which formed part of a road crossing from the father’s house to the other side of the track. At the trial, the court below eliminated from the attention of the jury all consideration of this allegation of negligence, inasmuch as the plaintiffs had not shown that the defendant had constructed, or was liable to construct, the said crossing. The consideration of the jury was, therefore, confined solely to the other allegation of negligence, which was that the motorman in charge of the car which caused an injury to the boy, in running him down when his foot was wedged between one of the rails and an adjacent plank in such a way that he could not extricate himself, although in plain sight, failed to so control his car as to avoid an accident.

The assignments of error relate solely to the refusal of the court below to give binding instructions for the defendant at the trial and after verdict to enter judgment for the defendant, non obstante veredicto.

From the evidence, it would appear that the boy could be seen from the track of the defendant company for 500 feet. When his foot became caught between the rail and the plank, he gave an alarm which brought to his assistance one, and perhaps two, of his brothers. The attempt was made to extricate him from his dilemma, upon failure of which one of his brothers ran up the track for a distance of what is variously stated to be fifty-one and sixty-three feet, endeavoring by motions and cries, to attract the attention of the motorman, and have him stop his car. Without paying attention to these efforts, however, the motorman waived the boy off the track and almost immediately seemed to comprehend that the boy upon the track below was held there by a force which he could not control, and he thereupon turned his attention to the effort to stop the car, and it would seem from the testimony that he had done everything in his power to accomplish this result. He was unable to do it, however, and ran against the body of the lad who was caught in the track in such a way as to force his foot forward between the rail and the plank, until it was loosened at the end of the latter.

The sole question in the case, as it was presented to the jury, was, Was the motorman negligent in failing to appreciate the predicament in which the lad was placed, so as to avoid running him down? It seems to us, from an examination of the testimony, that this was clearly a question for the jury and that the defendant received at the hands of the court all the consideration to„ which it was entitled in the charge to the jury upon this subject. The lad, who was the victim of the accident, when he was caught, had the car in sight above the Line road. A florist’s driver, who was driving toward the lad, says that he saw the boy after the motorman had blown the whistle at the Line road to make the start after a stop. If then the car was between 500 and 600 feet, as the distance was estimated by the boy and his brother, the motorman had him in sight that entire distance. He does not seem to have checked his' speed even at the time the boy’s brother motioned and called to him. Was this care, according to the circumstances? That was the only question involved and it was for the jury.

Nothing occurring in the course of the trial seems to call for remark and, as the defendant makes no complaint of the form of the charge of the court, it is unnecessary for us to comment upon it.

The question as to the negligence of the defendant was clearly defined by the court and the measure of damages carefully guarded in the charge, which cast the burden of sustaining both questions by positive and adequate testimony upon the plaintiffs.

The verdict in favor of the father seems to have been confined almost exclusively to the compensation shown by the testimony to be due the surgeons and for other slight expenses, including medicine, and clothing destroyed. The amount- would seem to be reasonable and should not be interfered with upon that account.

Judgment affirmed.


author: Beaver,

text:
    Miller v. Philadelphia & West Chester Traction Company, Appellant
    (No. 2).
    March 3, 1910:
   Opinion by

Beaver,

We have this day filed an opinion in this case, affirming the judgment entered upon the verdict rendered by the jury in favor of Charles H. Miller, the father of Charles Horace Miller, who was injured in an accident caused, as is alleged by the plaintiffs, by the negligence of the defendant. A verdict was rendered in the same case for the son, who is the person upon whom the injury was inflicted.

The sole question submitted to the jury in the case was that of the negligence of the defendant and the compensation for the damages arising from the injury thereby occasioned.

For the reasons stated in the opinion filed in the appeal from the judgment of the father, ante, p. 152, the judgment in this case is also affirmed.

Judgment affirmed.