text:
    Commonwealth v. Pascoe, Appellant.

      Sheriffs — Summoning jury — Disqualification of sheriff — Sheriff as prosecutor.

    1. The rule of the common law is that if the sheriff be a party to the suit, or be related by blood or affinity to either of the parties, he is not to summon the jury, but the venire shall be directed to the coroner. If the sheriff is a prosecutor in a criminal case, he is not a party within this rule. The commonwealth and the defendant are the parties in a criminal proceeding.
    2. Where the sheriff’s duty in summoning jurors is purely ministerial all presumptions are in favor of the regularity of his conduct.

      Dibel — Criminal libel — Malice—Inference of malice.

    3. The offense of publishing a malicious and defamatory libel is committed whenever any person shall write, print or publish any malicious or defamatory libel tending either to blacken the memory of one who is dead, or the reputation of one who is living, and thereby expose him to public hatred, contempt and ridicule. The malice involved in the offense is not necessarily actual ill will entertained by the accused toward the subject of the libel. The law imputes to one who does such a wrongful act a malicious intent. Every responsible person is presumed to intend the natural consequences of his act and is not permitted to deny that he intended them. If the publication be defamatory an inference of malice arises which it is the duty of the jury to find from the character of the publication.
    4. Where the interest of the public to know the facts is of more importance than a possible breach of the peace, and these facts are published with good motive and only for the information of individuals or the public who have a right to be informed, a prosecution for libel cannot be maintained provided the publication speaks the truth or is made upon reasonable grounds of belief in its truth. Only those publications are privileged, however, which are made on proper occasion from a proper motive, in a proper manner and based on reasonable and probable cause. And even where the occasion is proper the privilege may be lost if the manner be improper.
    5. A newspaper article is libelous which under the title of “Arnold and Andre” charges the prosecutor with being “A Benedict Arnold to the Twenty-second Ward,” and “ a man distrusted and detested by all parties and all factions;” “a Benedict Arnold to this community.”
    6. A publication may be privileged in part and libelous in part, and a conviction may be sustained for publishing the libelous part.
    Argued Dec. 14, 1908.
    Appeal, No. 141, Oct. T., 1908, by defendant, from judgment of Q. S. Phila. Co., MayT., 1908, No. 164, on verdict of guilty in case of Commonwealth v. David M. Pascoe.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for criminal libel.
    At the trial the prosecution offered in evidence a copy of the “ Germantown Telegraph,” published under date of February 7, 1908. The article is as follows: “Arnold and Andre. Two figures stood out in the great struggle of the colonies for liberty, and whenever a cause is betrayed, even to this day, the name of Benedict Arnold rises to the lips of every American citizen as a type of all that is dark, reproachful and villainous. For Andre there is, and always has been, a feeling of sympathy, and even regard — regard for the bright qualities of his mind and person, and sympathy that he should have been enmeshed in the toils of the traitor Arnold. And this is the feeling to-day in the Twenty-second Ward. An undercurrent of sympathy for John W. Davidson, but a bitter detestation for the course of Sheriff Wilson H. Brown. Elected triumphantly on the City Party ticket, on a platform of hostility to the ring, pledging himself over and over again to the best interests of the city, he has now gone boots, saddle and bridle into the camp of the bosses. The pledges that he made have been broken, the regard of his friends is shattered and his own self-respect must be grovelling in the dust. Cold and inscrutable, even his best friends cannot explain his course, and have no apologies for it. Snivelling at the feet of the now dominant bosses, he asks admittance to their councils, and so persistent and pressing are his attentions that a well-known city leader is declared to have said: ' Sheriff Brown would now give his guts to the Organization if he could.’ This despicable desertion of the reform movement by the present sheriff of the county is intensified and magnified by reverting to his letter of acceptance when that nomination was tendered him. 'Lest we forget,’ the following extracts will serve to demonstrate, in the light of recent events, how thoroughly and suddenly convinced Wilson H. Brown seems to have become of the 'sterling honesty’ and the 'filial devotion to public interests’ of the men whom he so roundly, denounced when asking the people for their suffrage. Here is a portion of his letter:

      “ 'The people of Philadelphia have witnessed a great uprising against the corrupt political machine which has defied the people’s wih, plundered the public treasury, seized valuable franchises without compensation and plunged the city into a great burden of debt to pay enormous profits to political contractors. Extravagance, corruption and graft have penetrated almost every municipal department. The platform adopted by the convention contains a masterly statement of the great principles upon which the City Party is founded, and forms the basis of a creed upon which all good citizens can unite for the honor of Philadelphia. I give that platform of principles my earnest and hearty approval and indorsement. I pledge myself to regard this public office as a public trust, to be exercised in strict accordance with the high standard of principles set forth in the platform of the City Party, and by every act within my power to advance and enforce those principles. Let us all renew our devotion to the great cause of redeeming the city of Philadelphia from the evils which have disgraced it and uplift every department and office of its government to the highest standard of excellence, and to establish it firmly and forever as the greatest and best of American cities.’
    “ Can any honest voter, desiring to serve the interests of the people of this community, cast his ballot for a candidate whose chief sponsor is a man of such flexible principles? A traitor to his party, a traitor to the reform cause, a Benedict Arnold to this community, Wilson H. Brown’s active advocacy of any man or measure will bring nothing but defeat and disaster upon both. We have as a candidate for Select Council in this ward a man of the highest type. A Republican in national politics, a man of large public experience — in fact, the type of a man who truly represents the highest character and citizenship of the community. He would have been the nominee to-day of the Republican Party had he been willing to have pledged himself to do certain things inconsistent with his dignity. But Bayard Henry would make no pledges of any kind. His duty was to his ward and city, and he declined the shackles which were offered him. A big man, he took his part for four years in the Senate of Pennsylvania, and Germantown was never more worthily represented there. He knows the ward, he knows its people. Identified with our institutions, his hand and purse have ever been ready to help along any good cause. The issue of the present campaign is plain. Our candidate is a man of the highest type, who is making a sacrifice to accept the office, a man who is actuated by a high sense of civic duty, a man strong enough to procure what the ward needs in the way of improvements, and to get them, not by subserviently praying and dickering with the bosses, but a man who will demand them as a right and see that we get them. The candidate of the opposition is a man who has always 'gone along,’ and he can be depended upon to still go along, and do the bidding of the bosses. Unfortunately, across his candidacy is cast the shadow of the man who is a traitor to himself, his cause and his party — a man who knows better but does not dare defy his masters; a man who has done many things vitally injurious to the cause of good government by his vacillating course; a man distrusted and detested by all parties and factions — the Benedict Arnold of the Twenty-second Ward.”
    Verdict of guilty, upon which the prisoner was sentenced to pay a fine of $200 and undergo an imprisonment for the term of six months.

      Errors assigned were refusal of motion to quash the array of petit jurors, and various instructions.

      Owen B. Jenkins, with him John A. McCarthy, for appellant. —
    The prosecutor should not have had a trial by a jury which he summoned himself: Munshower v. Patton, 10 S. & R. 334; People v. Tweed, 50 Howard’s Pr. 26; People v. Felker, 61 Mich. 114 (28 N. W. Repr. 83); Van Auken v. Beemer, 4 N. J. L. 364; Baylis v. Lucas, 1 Cowper, 112.
    The publication was privileged: Com. v. McClure, 1 Pa. C. C. Rep. 207; Charest v. Hurtubis, 2 Quebec Super. Ct. 93; Crane v. Waters, 10 Fed. Repr. 619; Odger v. Mortimer, 28 Law Times (N. S.) 472; Klos v. Zahorik, 113 Iowa, 161 (84 N. W. Repr. 1046).
    William A. Gray, assistant district attorney, with him Samuel P. Botan, district attorney, for appellee. —
    The court fell into no error in refusing to quash the array of jurors because the sheriff had summoned them: Com. v. Salter, 2 Pearson, 461; Wallace v. Jameson, 179 Pa. 98; Com. v. Zillafrow, 207 Pa. 274.
    The article published by the defendant was defamatory of Brown and therefore a criminal libel unless it was privileged.
    If the article published by the defendant was not privileged, truth, absence of actual malice, absence of negligence, and presence of probable cause, separately or taken together, constitute no defense: Com. v. Murphy, 8 Pa. C. C. Rep. 399; Pittock v. O’Niell, 63 Pa. 253; Com. v. Brown, 30 W. N. C. 320; Barr v. Moore, 87 Pa. 385; Com v. Costello, 1 Pa. Dist. Rep. 745; Com. v. Blanding, 20 Mass. 304.

      April 12, 1909:
    The nature and character of the article published by the defendant was such that it was not privileged in law: Briggs v. Garrett, 111 Pa. 404; Com. v. Brown, 30 W. N. C. 320; Conroy v. Pittsburg Times, 139 Pa. 334; Com. v. Little, 12 Pa. Superior Ct. 636.
   Opinion by

Henderson, J.,

There was a challenge to the array of petit jurors which the court overruled and this refusal is made the subject of the first assignment of error. The motion was based on the averment that the jury was summoned by the prosecutor, who was the sheriff of the county and who was therefore disqualified to discharge that part of his official duty. The case of Munshower et al. v. Patton, 10 S. & B. 334, is relied on to sustain the position. In that case the sheriff was a brother of one of the parties, and the subject of litigation was a tract of land. The motion to quash was sustained because of the relation of the sheriff to one of the parties. It was held that he might unite with the commissioners in drawing a jury, but that the power to summon the jury gave him an opportunity to select from the panel and for that reason he had an advantage which the other party did not have, which at common law created a disqualification. The rule of the common law is that if the sheriff be a party to the suit or be related by blood or affinity to either of the parties he is not to summon the jury, but the venire shall be directed to the coroner.' If the prosecutor in a criminal case is to be considered a party' within this rule the appellant’s application should have prevailed, but we are not persuaded that the rule applies in such cases. The commonwealth and the defendant are the parties in a criminal proceeding. It was not to the prosecutor’s personal advantage that the defendant be convicted, and the presumption is that his interest was not more than that of any other citizen. The fifth section of the Act of April 20, 1858, P. L. 354, establishing a mode of selecting jurors for the city of Philadelphia, makes it the duty of the sheriff to summon each of the jurors to appear in the court for which he may be drawn to serve as a juror during the ensuing term, of which several notices the sheriff is required to make return under oath to the proper court, stating the time- and manner of such service. The duty so imposed is purely ministerial. The sheriff has no discretion and is required to avouch the fidelity of his acts by an oath. The service may also be performed by a deputy. All presumptions are in favor of the regularity of the sheriff’s conduct. It is not alleged now that the sheriff omitted to summon any juror named in the venire or that there was any irregularity, prejudice or favor practiced by him. The case, we think, resembles that of Clark v. Com., 123 Pa. 555, in which the defendant was convicted of murder in the first degree on a complaint made by the sheriff of the county where there was a reward offered for the arrest and conviction of the perpetrator of the crime. There was a motion to quash the array of petit jurors on the ground that the prosecutor was the sheriff of the county and by virtue of his office had the custody of the jury wheel and assisted in drawing the jury for the court of oyer and terminer at the term at which the defendant was called for trial. The motion to quash was overruled and on appeal it was held that the sheriff was not a party to the issue, that he was not disqualified from discharging his official duties as they were merely ministerial, and that in the absence of any charge of misconduct on the part of the sheriff in drawing the jury the court below was not in error in refusing the defendant’s application. We think the reasoning of that case should control the one before us. There is not the slightest intimation that the defendant’s case was in any way influenced or prejudiced by anything done in summoning the jurors, and the appellant has no just ground for complaint from this aspect of the case.

The defendant was indicted for publishing a malicious and defamatory libel. This offense is committed when any person shall write, print or publish any malicious or defamatory libel tending either to blacken the memory of one who is dead or the reputation of one who is living and thereby expose him to public hatred, contempt and ridicule. This statutory definition only incorporates into the body of the laws of the state a declaration of that which was a misdemeanor at common law. The malice involved in the offense is not necessarily actual ill-will entertained by the accused toward the subject of the libel. The law imputes to one who does such a wrongful act a malicious intent. Every responsible person is presumed to intend the natural consequences of his act and is not permitted to deny that he intended them. If the publication be defamatory an inference of malice arises which it is the duty of the jury to find from the character of the publication: Pittock v. O’Niell, 63 Pa. 253; Barr v. Moore, 87 Pa. 385. That the article complained of is defamatory is apparent on the face of the paper. Its title is “Arnold and Andre.” The prosecutor is declared to be “A Benedict Arnold to the twenty-second Ward,” and “a man distrusted and detested by all parties and all factions;” “a Benedict Arnold to this community.” He is also characterized by other defamatory expressions. The popular estimate of Benedict Arnold in this country is that he was the embodiment of treachery and baseness; his name is a synonym for infamy. The obvious tendency of such publication would be to subject the person referred to to public contempt, hatred and degradation of character. The defendant, indeed, does not contend that the article is not libelous, but defends the publication on the ground that it is privileged under the seventh section of article I of the constitution and also under section one of the Act of April 11, 1901, P. L. 74. If the publication is privileged it matters not that it affects the reputation of Mr. Brown. Conditions may exist where a newspaper may publish that which is defamatory of an individual without liability to the commonwealth or the person injured. Where the interest of the public to know the facts is of more importance than a possible breach of the peace and these facts are published with good motive and only for the information of individuals or the public who have a right to be informed a prosecution for libel cannot be maintained provided the publication speaks the truth or is made upon reasonable grounds of belief in its truth. Only those publications are privileged, however, which are made on proper occasion from a proper motive, in a proper manner and based on reasonable and probable cause: Briggs v. Garrett, 111 Pa. 404; Conroy v. Pittsburg Times, 139 Pa. 334. And even where the occasion is proper the privilege may be lost if the manner be improper. The question whether the publication is privileged is one of law for the court: Barr v. Moore, 87 Pa. 385; Com. v. Little, 12 Pa. Superior Ct. 636. The learned trial judge instructed the jury that the publication set forth in the indictment was not privileged, and of this instruction the appellant complains. The criticisms of Mr. Brown do not relate to his official conduct as an officer or man in public capacity, and the constitutional protection which the defendant seeks cannot avail him unless the paper relates to “matter proper for public investigation or information.” The defendant claims that the article treats of a public man about a public matter. If this were the only subject there would be much force in the appellant’s argument, but an examination of the publication shows that a large part of it has no reference to a public matter in a legal sense. It contains no reference to the official conduct of Sheriff Brown, nor does it set forth any fact which would justify adverse comments upon his conduct rather than that of any other person who saw fit to exercise his rights as an elector in accordance with his own judgment. The article is not primarily in support of one candidate nor in antagonism to another. Its title and much of the text is devoted to the private character of Mr. Brown and evidently intended to bring him into disrepute in the community. It is conceded in the argument of the learned counsel for the appellant that the public would not have the slightest concern in the exercise of his right by a citizen to change his politics and vote for whom he pleased, and this must be evident to all. But a perusal of the publication shows, we think, conclusively, that it had its origin in the exercise of this very right by Sheriff Brown. So far as the article was a fair and candid statement of the claims-of candidates for the support of their constituents or the reasons why one rather than another of opposing candidates should be supported it could not be the occasion for a successful prosecution for libel. But a large part of it has no reference to the candidates whose names appear, but is an extreme and unwarranted attack on the private character of a citizen who had a legal and moral right to support any candidate whom he considered most entitled to his suffrage. The case of Com. v. Little, 12 Pa. Superior Ct. 636, is not unlike this ease. It was there held that while portions of the article in question which dealt with facts might be privileged, those portions which characterized the prosecutor were libelous and not privileged. The same process of reasoning is exhibited in Barr v. Moore, 87 Pa. 385. In that case the plaintiff was chairman of a political party and the article published related to his actions in connection with that office, but the court said the defendant went far beyond answering, refuting and denying everything averred or intimated in his address issued by the plaintiff as chairman of his party and it was accordingly decided that the article published by the defendant was not privileged. The liberty of the press is a subject of great importance. It is a safeguard against tyranny and corruption and worthy of constant care; but the security of one’s reputation is also guaranteed by the constitution as an inherent and indefeasible right. It is for personal security that governments are organized and maintained, and an individual has a right to lawfully resist the encroachment of unauthorized attacks on his character. Without such right the pursuit of happiness would be impossible.

The court having properly charged, as we conclude, that the publication was not privileged, the evidence offered by the plaintiff was irrelevant. If the article were privileged it would have been competent for the defendant to have proved the truth of the charge or that it was published with a reasonable ground for belief in its truth and that he was not animated by malice, but evidence of this character is only admissible by way of defense where the libelous article is privileged and is not admissible where as in this case the constitution and the statute do not permit the claim of privilege. The offers of evidence separately or collectively do not in our opinion present a state of facts which would have justified the submission of the case to the jury on the question of privilege.

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


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Commonwealth v. Radzinowicz, Appellant.

      Criminal law — Assault and battery — Felonious assault — Cutting and wounding — Indictment—Charge.
    1. An indictment contained three counts, one charging felonious assault and battery, a second, cutting, stabbing and wounding, and a third, assault and battery. At the trial the defendant denied that he used a knife, and claimed that a cut in the arm of the prosecutor had been made by the breaking of a beer glass. His testimony was not in any way corroborated, and he would not say whether the glass which he said that he held had been broken. No other witness saw a glass in his hand. The court instructed the jury that they should disregard the first count “leaving the other two counts, namely, aggravated assault and battery and simple assault and battery.” The court also charged “the theory has been suggested, but it is proper that I should state to you that I am unable to discover from the testimony in this case, any substantial support of that theory, that this wound was inflicted by a glass. You have seen the wound and you can draw your own conclusions from the appearance of it, whether it was inflicted with a knife, or with a glass. ... Of course it is for you to say.” Held (1), that the jury must have understood the words “aggravated assault and battery,” as meaning the offense charged in the second count, and that therefore their use could not have harmed the prisoner, and (2) that the court’s expression of opinion on the evidence was not improper.

      Criminal law — Assault and battery — Settlement of case by licensed saloon keeper.

    2. A settlement with a prosecutor by a licensed saloon keeper in whose saloon the assault occurred is not a valid settlement authorized by the Act of March 31, 1860, sec. 9, P. L. 4 7.
    Argued Feb. 23, 1909.
    Appeal, No. 41, March T., 1909, by defendant, from judgment of Q. S. Luzerne Co., Nov. T., 1908, No. 230, on verdict of guilty in case of Commonwealth v. Stanis Radzinowicz.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Indictment for assault and battery.
    The court charged in part as follows:
    [In order to convict of a felonious assault and battery, or assault and battery with intent to commit murder, the evidence must be such as would justify a jury, had the wounds proved fatal, in returning a verdict of murder, either of the first or second degree. I do not think the testimony justifies any such verdict, and therefore I withdraw from you the consideration of the first count, leaving the other two counts, namely, aggravated assault and battery and simple assault and battery. I may say, however, that you may well disregard the third count as well as the first, because if there was perpetrated upon this prosecutor, at that time, an assault and battery, and if the defendant should be convicted upon this indictment at all, he should be convicted of aggravated assault and battery under the testimony here, because the assault was undoubtedly of an aggravated character.] [1]
    [This prosecutor was undoubtedly stabbed, cut by somebody with something that night — there is no doubt about that — either with a knife, or, as has been suggested by the theory of the defendant, although not proved, with a glass. It will be difficult, indeed, gentlemen of the jury, to reach a conclusion that that wound was inflicted by a glass in the hand of this defendant. I shall not withdraw that question from your consideration. Of course, it is for you to say. The theory has been suggested, but it is proper that I should state to you that I am unable to discover from the testimony in this case any substantial support of that theory that this wound was inflicted by a glass. You have seen the wound, and you can draw your own conclusions from the appearance of it, whether it was inflicted with a knife or with a glass. Now, by whom? That is the question, as the commonwealth’s attorney has suggested. We have no hesitation at all in saying to you that if that wound was inflicted with a knife in the hands of this defendant he ought to be convicted on this indictment. There cannot be any question about that, because there is no justification for such a performance disclosed in this testimony. No justification by words, for two reasons: Undoubtedly the prosecutor used improper, if not vile language. It may be questionable, however, whether or not he had any real reference to this defendant’s mother. That expression which we so often hear which was used according to the testimony here, and with which you are perfectly familiar, as we are all familiar, while it does bear a literal stigma against the mother of the person to whom it was addressed, yet we all know very well that the mother is not in the mind of the speaker at all in ninety-nine cases out of a hundred. It is simply an insult to the individual, and no insult intended for the mother, as I say. But it is bad language, and it should not be used, there is no question about that. If this were the prosecutor’s case, and if he used language of that kind, I would say, let him take care of himself. But it is the commonwealth’s case. These words, whatever he may have said, are no justification, because in the first place, under the defendant’s own testimony, the words did not aggravate him to inflict this wound or to commit an assault and battery upon the prosecutor. You heard his testimony that he was perfectly quiet, and that he simply suggested to the prosecutor that he must not use such language, and it appears distinctly from the testimony of the defendant himself that the words used by the prosecutor did not aggravate him to make the assault, if he made it. So that is one reason why those words are no justification. Another reason is because mere words are not in law a justification for an assault and battery. On a charge of murder, on a charge of homicide, on a charge of killing, if the first count was before you for consideration, the words might be material in order to establish that state of passion or provocation and absence of time to cool which would reduce the grade of the killing, or the death, if there had been a killing, from murder to manslaughter. But in the case as it is now presented to you words have absolutely no bearing whatever, and you will dismiss them from your mind. Neither is there in this case disclosed on the part of the defendant anything which would justify an attack or an assault by him, either under guise of self-defense or otherwise, with a knife. That is where the importance of that question comes in for you to consider, whether or not the assault was with a knife or with a glass. If it was with a knife, as I say, there is absolutely nothing in the case which would justify self-defense with such a weapon. Of course, a man when attacked by another has a right to defend himself, he has a right to repel force with force. But the force with which he repels must bear some proportion, some reasonable proportion to that with which he is attacked. If he is attacked with the fist he cannot draw a knife. If he is afraid of his life, and is driven to the wall, he may use a weapon in self-defense, and even take life in self-defense; but under such an attack as was made here by the prosecutor, if one was made by the prosecutor, and it is for you to say, the defendant would not be justified in drawing a knife. He might be justified in raising a glass, if you believe his testimony, and even in striking the prosecutor with a glass. But he would not be justified in drawing a knife. So that I say if you find this assault was perpetrated with a knife, then there could be no alternative in this case but conviction. It appears that the prosecutor did throw a glass, a small whisky glass he had in his hand, but you could easily find from the testimony in this case, the barkeeper and other testimony, that that was thrown some appreciable time at least before the wound was inflicted upon the prosecutor. And that is an important thing for you to bear in mind.]
    [Do you believe, gentlemen of the jury, beyond a reasonable doubt, from all the testimony in this case, that this defendant stabbed this prosecutor with a knife? That is a question which you are to answer from the testimony. You have on the one side the testimony of the prosecutor, who has a certain interest, as has been suggested, although not as vital an interest as the defendant, in the result of this prosecution. Then you have the testimony of Telejszo, or whatever the name is, you will recall him, who seems to have been a friend of the prosecutor, although not an enemy of the defendant, so far as we can discover. He testifies that the defendant stabbed the prosecutor with a knife. The weight of his testimony is for you. Then you have, finally, on the part of the commonwealth, another witness whose name I do not recall — Gombolovicz, or something of that kind — who did not see the actual stabbing, but he heard the blood dropping, and saw the defendant run out. This, in substance, was the testimony on behalf of the commonwealth. You will consider, in connection with the testimony of Telejszo, the theory suggested by counsel in argument to the jury of the probability of his being able to see a knife held down by the side, and used in the manner in which he described. His credibility is for you, the reasonableness of his story is for you. I repeat. If you believe from this testimony produced on behalf of the commonwealth, beyond a reasonable doubt, that the defendant used that knife upon this prosecutor, then he ought to be convicted. On the other hand, you have the testimony of the defendant, who denies positively that he used the knife, or that he had a knife. Then we have the testimony of the bartender, Delaney, who did not see the knife used. You will remember his testimony. It does not tend to substantiate to a material extent or corroborate the contradiction and denial of the defendant. Of course, in considering the weight of the defendant’s testimony, you are bound to consider his interest in the result of this prosecution. He is a competent witness under the law, as he ought to be, but his credibility is for you, and in determining whether or not you believe him you must consider the vital interest which he has in the result of this prosecution.] [2]
    [If the prosecutor, as an individual, were alone concerned in this case, I would say, let him go, but it is the commonwealth which is concerned in cases of this kind. This is not a private case. The man who was injured is called, by legal custom, the prosecutor in the case; he made the information; it was at his instance that the case came to court, that the prosecution was brought. But it is not his case, it is the commonwealth’s case, and you are to consider and dispose of it entirely separate and apart from any feeling or prejudice which you may have against the prosecutor for the condition that he was in or the language that he used upon that occasion. This prosecutor was undoubtedly stabbed, cut by somebody with something that night; there is no doubt about that, either with a knife, or, as has been suggested by the theory of the defendant, although not proved, with a glass. It will be difficult, indeed, gentlemen of the jury, to reach a conclusion that that wound was inflicted by a glass in the hand of this defendant. I shall not withdraw that question from your consideration. Of course, it is for you to say. The theory has been suggested, but it is proper that I should state to you that I am unable to discover from the testimony in this case, any substantial support of that theory, that this wound was inflicted by a glass. You have seen the wound and you can draw your own conclusions from the appearance of it, whether it was inflicted with a knife or with a glass. Neither is there in this case disclosed, on the part of the defendant, anything which .would justify an attack or an assault by him, either under guise of self-defense or otherwise, with a knife. That is where the importance of that question comes in for you to consider, whether or not the assault was with a knife or with a glass. We have no hesitation at all in saying to you that if that wound was inflicted with a knife, in the hands of this defendant, he ought to be convicted on this indictment. There cannot be any question about that, because there is no justification for such a performance disclosed in this testimony. So that I say, if you find this assault was perpetrated with a knife, then there could be no alternative in this case but conviction. If you believe, from this testimony produced on behalf of the commonwealth, beyond a reasonable doubt, that the defendant used that knife upon this prosecutor, then he ought to be convicted.] [3]
    [On the other hand, you have the testimony of the defendant who denies positively that he used the knife or that he had a knife. Then we have the testimony of the bartender, Delaney, who did not see the knife used. You will remember his testimony. It does not tend to substantiate to a material extent or corroborate the contradiction and denial of the defendant. Of course, in considering the weight of the defendant’s testimony you are bound to consider his interest in the result of this prosecution. He is a competent witness under the law, as he ought to be, but his credibility is for you, and in determining whether or not you believe him you must consider the vital interest which he has in the result of this prosecution.] [4]
    [We expect to prove by the witness on the stand that he is the keeper of the saloon in which this trouble took place. That shortly after the trouble, in company with one William Kuptian, a detective, and without any consent or knowledge of the defendant, he went to the Pittson Hospital and there made a settlement of the case with the prosecutor, George Kezemekatis, and paid the sum of $90.00, and that the prosecutor then and there being fully informed of the contents of the paper in his own language by the witness on the stand, and the detective, signed a complete and full release of all actions he might have against the defendant, and that the paper so signed was in the possession of the witness on the stand. Objected to as immaterial, irrelevant and improper. Objection sustained, exception noted, bill sealed for the defendant.] [5]
    Verdict of guilty, upon which the prisoner was sentenced to pay a fine of $50.00 and be imprisoned in the county prison for eleven calendar months and twenty-nine days.

      Errors assigned were (1-5) above instructions, quoting them.

      Stanley Kuryloshi, with him Miner B. Schnerr, for appellant. —
    The duty of fixing degree of guilt belongs exclusively to the jury: Act of Assembly, March 31, 1860, sec. 99, P. L. 382; Rhodes v. Com., 48 Pa. 396; Lane v. Com., 59 Pa. 371; Pistorius v. Com., 84 Pa. 158; Com. v. McManus, 143 Pa. 64; Com. v. Sheets, 197 Pa. 69; Com. v. Deitrick, 221 Pa. 7.
    Giving undue prominence to the evidence on one side of a case, or of a fact in issue in a case, is error: Com. v. Goldberg, 4 Pa. Superior Ct. 142; Blank v. Barnhart, 17 Pa. Superior Ct. 214; Com. v. Penrose, 27 Pa. Superior Ct. 101; Phila. Trust, etc,, Co. v. Phila. R. R., 117 Pa. 38; Com. v. Silcox, 161 Pa. 484.

      Thomas Butievncz, Jr., assistant district attorney, with him Abram Salsburg, district attorney, for appellee. —
    It is always within the province of the court to point out the duty of a jury under the law and the evidence, leaving them free to act: Com. v. Sutton, 205 Pa. 605; Com. v. Sheets, 197 Pa. 69; Com. v. Curcio, 216 Pa. 380.
    Upon a careful reading of the whole of the charge of court it appears that the court considered as carefully the testimony of the defendant as that of the commonwealth; Com. v. Pipes, 158 Pa. 25,

      April 12,1909:
    It is well settled that an agreement in consideration of stifling or compounding a criminal prosecution or proceeding for a felony or a misdemeanor of a public nature is void: Riddle v. Hall, 99 Pa. 116; Pearce v. Wilson, 111 Pa. 14; Geier v. Shade, 109 Pa. 180; Com. v. Carr, 28 Pa. Superior Ct. 122.
   Opinion by

Porter, J.,

The appellant has not printed in his paper-book the indictment upon which he was tried in the court below, but we may gather from the charge of the court and the printed argument of the counsel that the indictment contained three counts, the first charging felonious assault and battery, the second count charging that the defendant did cut, stab and wound the prosecutor, being drawn under sec. 98 of the Act of March 31, 1860, P. L. 427; and the third count charging an assault and battery. That part of the charge of the court which is the subject of the first specification of error withdrew the first count of the indictment from the consideration of the jury, but it did not, as contended by counsel for the appellant, withdraw from the consideration of the jury the third count of the indictment, for the language of the court in withdrawing the first count and directing the jury what they were to consider was express and positive; “leaving the other two counts, namely, aggravated assault and battery and simple assault and battery.” While the court in designating the offense charged in the second count used the term “aggravated assault and battery,” which while well understood in common parlance is not strictly speaking a legal definition of any offense, the jury could not have understood it as referring to anything but the offense which was in legal language charged in the second count of the indictment. The appellant certainly was not injured by the action of the court in withdrawing from the consideration of the jury the first count which charged the act as a felony, a conviction under which would have been a matter more serious than was the charge upon which he was found guilty. We have examined the evidence and are by no means convinced that a conviction of the more serious offense might not have been sustained. The language of the court in submitting the second and third counts of the indictment left the jury free, under the evidence, to determine the offense of which the defendant was guilty, if guilty of any offense. In thus submitting these counts the court said: “ I may say, however, that you may well disregard the third count as well as the first, because if there was perpetrated upon this prosecutor, at that time, an assault and battery, and if the defendant should be convicted upon this indictment at all, he should be convicted of aggravated assault and battery under the testimony here.” This language still left the jury free to pass upon the offense, as charged in the second and third counts, and was nothing more than the expression of an opinion of the court as to the nature of the injury which had been inflicted upon the prosecutor. This language of the court is to be considered in the light of the issue of fact presented by the evidence. The commonwealth had called two witnesses who testified that they had seen a knife in the hand of the defendant and had seen him stab the prosecutor with that knife, and had also produced other witnesses who testified as to the character of the cut which had been made in the arm of the prosecutor. The defendant denied that he had used a knife and testified to circumstances from which his counsel at the trial contended that a jury might infer that the cut in the arm of the prosecutor had been made by the breaking of a beer glass, which the defendant held in his hand and interposed to ward off an attack by the prosecutor. The fact in dispute was whether the defendant had stabbed the prosecutor with a knife. If he had he was guilty of the offense charged in the second count of the indictment, if of any offense. If the jury believed the testimony of the defendant he was not guilty of an offense, but if they believed the testimony of the commonwealth the only offense of which he was guilty was stabbing the prosecutor with a knife. The evidence being of this character, it was proper for the court, while leaving the jury free to pass upon the second and third counts of the indictment, to indicate to the jury the opinion of the court as to which count of the indictment properly charged the offense, in case they found the defendant guilty: Commonwealth v. Sutton, 205 Pa. 605; Commonwealth v. Sheets, 197 Pa. 69; Commonwealth v. Curcio, 216 Pa. 380. The first specification of error is overruled.

The only question of fact upon which a direct and positive issue was raised by the evidence in the case was as to whether this defendant did with a knife stab the prosecutor. That question was in a fair, full and adequate charge submitted to the jury. The jury were, in effect, instructed that unless they found beyond a reasonable doubt that the defendant had with a knife stabbed the prosecutor, the verdict must be not guilty. The defendant had produced no evidence which, if believed, would have justified or excused the use of a knife or other deadly weapon. If he used a knife that use was, under thn evidence, unlawful, and the injury thereby inflicted was an unlawful cutting and wounding. The theory advanced at the trial by the defendant was that the prosecutor must have been cut by a glass, which the defendant held in his hand. This was theory almost exclusively, for the evidence to support it was' very slight. The defendant did testify that he held a beer glass in his hand, which he interposed when the prosecutor attempted to throw a small glass at him, but, although directly interrogated upon the point, he would not say whether the glass which he so held had been broken. No other witness testified that the defendant had even had a glass in his hand, or had attempted to shield himself with it from any attack. The court submitted this question to the jury, and fairly stated the contention of the defendant under the evidence. The defendant complains that in submitting the question to the jury the court made this comment upon the evidence: “The theory has been suggested, but it is proper that I should state to you that I am unable to discover from the testimony in this case, any substantial support of that theory, that this wound was inflicted by a glass. You have seen the wound and you can draw your own conclusions from the appearance of it, whether it was inflicted with a knife or with a glass.” While thus expressing an opinion upon this branch of the evidence, the court expressly instructed the jury that the weight and effect of this evidence was for them; “ Of course, it is for you to say. The extent to which a trial judge ought to go in reviewing, analyzing and commenting on testimony depends very largely upon the circumstances of the case, and to some extent, upon the line of argument pursued by counsel in addressing the jury. Generally it must be left to a sound discretion. It is only in exceptional cases, as, for example, where it plainly appears that a charge is so inadequate in this regard as to be misleading, or where its tendency as a whole is to unduly magnify the importance of the proofs introduced by one party and to belittle those introduced by the other party, that the court will be reversed upon a general exception of this nature:” Commonwealth v. Penrose, 27 Pa. Superior Ct. 101. We have examined the evidence and are of opinion that the comment of the learned judge of the court below upon the contention of the defendant, as to the probability of the injury to the prosecutor having been caused by a broken beer glass, was fully warranted by the testimony and within the line of his duty. The testimony of the defendant was fairly submitted to the jury, the comment of the court upon the testimony was fully warranted by its character, and the jury were left free to draw their own conclusion. The second, third and fourth specifications of error are dismissed.

The offer of the defendant to prove that the licensed saloon keeper, in whose barroom the prosecutor had been wounded, had shortly after the stabbing visited the prosecutor at the hospital and, without any consent or knowledge of the defendant, made a settlement of the case with the prosecutor and obtained a complete and full release of all actions he might have against the defendant, was properly rejected. The Act of March 31, 1860, P. L. 427, sec. 9, authorizes the settlement of certain classes of cases “ if the party complaining shall appear before the magistrate who may have taken recognizance or made the commitment, or before the court in which the indictment shall be, and acknowledge to have received satisfaction for such injury and damage,” and authorizes “the magistrate, in his discretion, to discharge the recognizance which may have been taken for the appearance of the defendant, or in case of committal to discharge the prisoner, or for the court also where such proceeding has been returned to the court in their discretion to order a nolle prosequi to be entered on the indictment, as the case may require, upon payment of costs.” This statute confers upon magistrates and courts a discretion to approve or disapprove of settlement of cases which come within its provisions: Commonwealth v. Carr, 28 Pa. Superior Ct. 122. We know of no statute which confers a like authority upon a barkeeper, even though he may be the holder of a license authorizing him to sell liquor. The very terms of this offer of evidence showed that the defendant charged was no party to the settlement and that it was made without his knowledge or consent. The fifth specification of error is dismissed.

The judgment is affirmed and it is ordered that the defendant appear in the court below at such time as he may be there called and that he be by said court committed to serve that portion of his term of imprisonment which had not expired at the time this appeal was made a supersedeas.


author: Henderson, J.,

text:
    Morrison, Appellant, v. Nipple.

      Trespass — Wrongful sale of goods — Sheriff’s sale — Replevin.
    1. Where a person is not only the purchaser of goods wrongfully sold at a sheriff’s sale, but has also incited and instigated the sale, and indemnified the sheriff against liability therefor, the owner of the goods may proceed against such purchaser by an action of trespass. He is not restricted to an action of replevin.

      Sheriff’s sale — Husband and wife — Cost of appraisement — Act of May 26, 1897, P. L. 95.
    2. Where a married woman’s goods are levied upon in the house in which she lives with her husband, and sold at sheriff’s sale for her husband’s debt, she is not required under the Act of May 26, 1897, P. L. 95, in making a claim for the goods to pay the cost of the appraisement.
    3. Under the Act of June 8, 1893, P. L. 344, a married woman is entitled to the proceeds of her separate property, and may engage in work outside of the ordinary duties of the family relation and receive compensation therefor. Money earned by her by keeping boarders with the consent of her husband is not liable for the latter’s debt.

      Argued Oct. 28, 1908.
    Appeal, No. 111, Oct. T., 1908, by plaintiff, from judgment of C. P. Huntingdon Co., Feb. T., 1906, No. 3, on verdict for defendant in case of Henrietta Morrison v. D. C. Nipple.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass for a wrongful sale of plaintiff’s goods.
    Shull, P. J., specially presiding, stated the facts to be as follows:
    The facts are, that a judgment was entered in the common pleas of Mifflin county in favor of Annie W. Hayes against B. E. Morrison, J. T. Caldwell and D. C. Nipple, upon which a fi. fa. was issued. The sheriff levied upon the personal property upon the premises occupied by B. E. Morrison and advertised the same for sale. Henrietta Morrison, the wife, claimed the household goods, notice of which she gave in writing to the sheriff. No rule was entered to show cause why an issue should not be framed to determime the ownership of the goods levied upon. D. C. Nipple, one of the sureties, gave bond of indemnity to the sheriff, to save and keep him harmless against suits, actions, etc., “on account of the levy upon and selling by the direction of the said Annie W. Hayes under said writ.” The property of claimant was sold by the sheriff on July 14, 1905, D. C. Nipple became the purchaser of the entirety, and the sheriff delivered possession of the same to the purchaser. The goods remained upon the premises, which were the lands of D. C. Nipple. The defendant in the execution and his wife, who were the tenants of the premises, retained possession of the premises until July 31, 1905, when they returned the key and removed from the premises, leaving the goods.
    Verdict for plaintiff for $712.50. Subsequently the court entered judgment for defendant non obstante veredicto.

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

      H. H. Waite, with him W. H. Woods and Jas. S. Woods, for appellant. —
    The action of trespass may be sustained under the facts: Welsh v. Cooper, 8 Pa. 217; McMurtrie v. Stewart, 21 Pa. 322; Deal v. Bogue, 20 Pa. 228; Gloss v. Black, 91 Pa. 418; Philadelphia v. Collins, 68 Pa. 106; Burk v. Howley, 179 Pa. 539; McGill v. Ash, 7 Pa. 397.
    April 19, 1909:
    The plaintiff in this case did not waive her right to sue in trespass because proceedings were not instituted under the sheriff’s interpleader act of May 26, 1897: Book v. Day, 189 Pa. 44.
    Under the law as it exists in Pennsylvania to-day, the plaintiff in this case was entitled to all the separate earnings to which she testified, and with which she testified she purchased all the articles of property mentioned: Martin v. Davis, 30 Pa. Superior Ct. 59; Frost v. Knapp, 10 Pa. Superior Ct. 296; Nuding v. UriCh, 169 Pa. 289; Standen v. Penna. R. R. Co., 214 Pa. 189.

      Thos. F. Bailey, with him W. W. Uttley, for appellee. —
    A purchaser at a sheriff’s or constable's sale who participates in the transaction only by purchasing the goods, although he knows of the illegality of the sale or that the goods do not belong to the defendant in the execution, is liable to the owner in replevin but not in trespass: Ward v. Taylor, 1 Pa. 238; Gloss v. Black, 91 Pa. 418; Book v. Sharpe, 189 Pa. 44.
    The law upon the quality of proof required where property is claimed by a married woman, is so well established that it would seem unnecessary to cite authorities; we may be pardoned, however, for calling the court’s attention to a few of them: Gamber v. Gamber, 18 Pa. 363; Auble v. Mason, 35 Pa. 261; Rhinesmith’s Case, 25 Pa. Superior Ct. 300.
    To sustain an action of trover and conversion there must be a demand for and refusal to deliver the article in suit: Taylor v. Hanlon, 103 Pa. 504; Clowes v. Hughes Bros., 3 Pa. Superior Ct. 561.
   Opinion by

Henderson, J.,

Two considerations influenced the learned trial judge in entering judgment for the defendant non obstante veredicto: (1) that an action of replevin would be the proper remedy and (2) that the plaintiff waived her claim of property by her failure to proceed in accordance with the provisions of the Act of May 26, 1897 P. L. 95. The conclusion that trespass could not be maintained was arrived at on the assumption that the defendant was proceeded against as a purchaser at sheriff’s sale only and that by such purchase he did not become a trespasser; and Ward v. Taylor, 1 Pa. 238; Talmadge v. Scudder, 38 Pa. 517, and other authorities are cited in the opinion of the court in support of that view. This is undoubtedly the law applicable to a case where the defendant merely purchased the property. In so doing no trespass was committed for although a good title may not have been acquired possession was obtained according to law and in such case the plaintiff’s remedy would be replevin or under the common law pleadings, trover. But the plaintiff’s action is not planted on a cause of that character. It is not only declared that the defendant was the purchaser of the property, but that he incited and instigated the sale and indemnified the sheriff against liability therefor, and that is one of the distinctions noted in the opinion in Ward v. Taylor, 1 Pa. 238. In that case the bidder was “neither aiding, advising or abetting” the constable. The same distinction is indicated in Talmadge v. Scudder, 38 Pa. 517. It is a well established rule that he who encourages, incites and induces another to commit a trespass or indemnifies him for doing it is equally liable with him who directly commits the act: McGill v. Ash, 7 Pa. 397; Welsh v. Cooper, 8 Pa. 217; Deal v. Bogue, 20 Pa. 228; McMurtrie v. Stewart, 21 Pa. 322; and an action may be maintained against all who participate in the trespass or against one or more of them: Burk v. Howley, 179 Pa. 539. If the plaintiff lost her right of action against the sheriff because of her failure to comply with the requirements of the act of May 26, 1897, that was a fact in relief of the sheriff, but does not exempt the defendant from his part in the wrongful sale of the plaintiff’s property. It will thus be seen that the receipt of the property from the sheriff at the sale is not the matter complained about. The plaintiff offered evidence to show that the defendant requested the plaintiff in the execution to issue the writ; that prior to the sale he gave the sheriff a bond indemnifying that officer from liability for selling the property levied on, which included that claimed by the plaintiff; that he was present at the sale, participating therein, and that when the plaintiff’s husband said to him immediately before the sale: “I do not see how you can sell her (the plaintiff’s) goods for my debt,” the defendant replied, “We will show you how we can sell them,” and that the defendant bought all the goods at the sale. This evidence was sufficient to sustain the action if the property claimed by the plaintiff belonged to her. If we accept the reasoning of the court below that under the procedure Act of May 25, 1887, P. L. 271, the action could only be maintained as in trover if there had been a demand for the property before the writ was issued we must, nevertheless, reach a different conclusion under the evidence for it was shown that two of the articles proved to have been the property of the plaintiff — framed pictures of her father and mother — were sold by the defendant, and a picture of her sister was torn from the frame. As to this property there was an actual conversion and in such case demand is not necessary. The plaintiff could not be put out of court, therefore, as to this much of the property in controversy if the action is to be considered in effect one of trover and conversion.

We are not persuaded that the plaintiff was required under the act of May 26, 1897, to pay the cost of making an appraisement of the goods levied on. The seventh section of that act provides that this shall be paid by the claimant at the time of making the claim if the defendant in the execution shall be found in possession of the goods, and by the plaintiff in the execution if some other person be found in possession thereof. The property claimed by Mrs. Morrison was in her own home. She had the only possession of it which she could have, taking into consideration her relation to her husband. If the property belonged to her she was not required to separate from her husband, nor to put her furniture in storage in order to save it from her husband’s creditors. The property was not, therefore, in the possession of the defendant in the execution within the meaning of this section of the statute. The record does not call for a consideration of the evidence supporting the plaintiff’s claim. Part of the property she got from her parents; part of it was acquired by money earned by her in keeping boarders on an arrangement with her husband by which she was to have the profits of that business; part of it was worn out and replaced; all of it was acquired long before thé indebtedness on which the execution was issued was created. The Act of June 8, 1893, P. L. 344, gives large liberty to a married woman. She is entitled to the proceeds of her separate property and may engage in work outside of the ordinary duties of the family relation and receive compensation therefor. Money earned by her by keeping boarders with the consent of her husband is not liable for the latter’s debts: Frost v. Knapp, 10 Pa. Superior Ct. 296; Martin v. Davis, 30 Pa. Superior Ct. 59; Nuding v. Urich, 169 Pa. 289; Standen v. Penna. R. R. Co. 214 Pa. 189. It was the duty of the plaintiff to show by clear and satisfactory evidence that the property which she claimed was not acquired from her husband. The credibility of the evidence was for the jury under the instructions of the trial judge. The verdict was for much less than the amount of the plaintiff’s claim from which we may infer that the evidence as to some of the items was not clear and satisfactory. Our conclusion is that an action of trespass was the appropriate remedy under the evidence.

The judgment is reversed and judgment is now entered for the plaintiff against the defendant on the verdict.


text:
    Lefever’s Estate.

      Wills — Devise—Legacy—Advancement—Adem/ption—Codicil.
    1. Although there is no technical advancement in cases of testacy yet a testator may provide the same equality and equity in his will which is accomplished by the technical advancement in cases of intestacy.
    2. The conveyance of land by a father to a son at a stated valuation at the same time that a codicil bequeathing to the son a legacy of like amount, is executed, and without payment of any consideration whatever for the land, gives rise to the presumption that the advancement was intended as an ademption of the legacy; and if the son admits that the advancement was intended as an ademption, the court will so decree in distributing the estate.
    3. Where there is nothing on the face of the will, and no proof of an intention to give a double portion, an advancement will be deemed a satisfaction, or an ademption of the legacy.
    Argued Nov. 13, 1908.
    Appeal, No. 179, Oct. T., 1908, by Mary Lefever et al., from decree of O. C. Lancaster Co., March Term, 1907, No. 9, dismissing exceptions to adjudication in Estate of John Lefever, deceased.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Exceptions to adjudication.
    The facts are stated in the opinion of the Superior Court.

      Error assigned was decree dismissing exceptions to adjudication.

      H. R. Fulton, with him IF M. Houser, for appellants. —
    The first taker under the will is presumed to be the favorite of the testator, and in doubtful cases the construction leans in favor of making the gift to him as effectual as possible: Middleswarth v. Collins, 1 Phila. 139; Grim’s Appeal, 89 Pa. 333; Mickley’s App., 92 Pa. 514; Oller v. Bonebrake, 65 Pa. 338.
    If there be nothing on the face of the will and no circumstances in proof to indicate an intention to give a double portion, the advancement will be a satisfaction or ademption of the legacy: Swoope’s App., 27 Pa. 58; Miner v. Atherton, 35 Pa. 528; Garrett’s App., 15 Pa. 212; Alsop’s App., 9 Pa. 374; Hoke v. Herman, 21 Pa. 301; Weaver’s App., 63 Pa. 309; Schneider’s App., 16 Pa. 407.

      W. H. Kready with him F. B. Donisthorpe for appellee. —
    The testator conveyed in his lifetime the farm of 160 acres in Nebraska to his son Daniel D. Lefever for a consideration of 84,000, equal to the full value of the land, and, therefore, we must assume the transaction to be a sale for a valuable consideration: Miller’s Appeal, 107 Pa. 221; Greenfield’s Est., 14 Pa. 489; Campbell v. Brown, 183 Pa. 112.
    April 19, 1909:
   Opinion by

Porter, J.,

The learned judge of the court below was undoubtedly right in holding that Mary Lefever, the widow, was under the provisions of the will, entitled to the income, during her life, of one-third of the net proceeds of the estate of the testator not otherwise disposed of by the will. The fund for distribution amounted to $7,099.85. The sum of $1,131.40 was distributed to claims against the estate and the payment of specific legacies, and no objection is made to this part of the distribution. This left for distribution the sum of $5,968.45. The court below, in proceeding to ascertain the amount to be decreed to the widow during her lifetime, deducted a legacy of $4,000 bequeathed by the will to Daniel D. Lefever, from the amount for distribution; leaving the sum of $1,968.45. One-third of this amount, or $656.15, was decreed to the People’s Trust Company, trustee of Mary Lefever. The only question raised by the specifications of error goes to the correctness of this action of the court in deducting the amount of $4,000 as a legacy to Daniel D. Lefever, from the fund in the hands of the executor for distribution, before ascertaining the amount of the one-third of the fund to which the widow was entitled during life. The court below held that this $4,000 was disposed of by the will and must be deducted from the fund, under the terms of the bequest to the widow; who was entitled, only, to the one-third of the income of the net proceeds of the estate not otherwise disposed of. Should this sum of $4,000 have been deducted from the actual amount for distribution before ascertaining the interest of the widow in the fund, under the provisions of the will and the undisputed facts in the case?

The will of John Lefever was dated October 6, 1902, and contained this devise: “ I give, devise and bequeath the southeast quarter of Section 31, Township 6, Range 2, containing one hundred and sixty acres, to my son Daniel D. Lefever and to his heirs and assigns forever. If, however, I execute a deed to him, a deed for said land in my lifetime then I direct that the value thereof of four thousand dollars ($4,000) either charged against him or a mortgage taken for the same, be cancelled; and I do hereby give and bequeath unto him, the said Daniel D., the said sum of four thousand dollars charged for said land.” The testator, on October 16, 1903, executed a codicil to the said will which contained the following material provision: “And whereas, in my last will I did give, devise and bequeath the southeast quarter of Section 31, Town 6, Range 2, containing one hundred and sixty acres, to my son Daniel D. Lefever, and whereas I have since conveyed the same to him by deed of this date for a consideration of $4,000.00,1 now give and bequeath the said sum of $4,000.00 to him, my said son Daniel D. Le-fever. ’' Daniel D. Lefever presented his petition to the court below averring that the quarter section of land aforesaid had been conveyed to him for the consideration of $4,000, as mentioned in the will and codicil, that he never paid his father, the testator, the said sum of $4,000 in his lifetime, “ but that his understanding was that it was in the nature of an advancement to him to be accounted for in the settlement of his father’s estate.” The court below in ascertaining the interest of the widow deducted this $4,000 legacy from the fund' for distribution, paying no attention to the solemn admission of Daniel D. Lefever that a like sum of $4,000 was to be charged against him in the settlement of the estate. Yet when the court came to distribute the other two-thirds of the fund, to Daniel D. Lefever and the other parties thereto entitled under the provisions of the will, Daniel D. Lefever, while still credited with the legacy of $4,000, was charged, inter alia, with $4,000 as an advancement, because of the admission in his petition that he had never paid the consideration for the land and that his understanding had been that it was to be by him accounted for in the settlement of his father’s estate. This was in effect holding that the widow was to be dealt with as if Daniel D. Lefever were to be paid a legacy of $4,000 out of the fund for distribution, while at the same time holding that Daniel D. Lefever was not entitled to be paid this legacy out of the fund, upon the ground that the legacy had been adeemed, or its payment anticipated by the testator during his lifetime. The result was that, although the widow was deprived of any share in this $4,000, that amount was distributed to the parties who were entitled to the other two-thirds of the “net proceeds of the estate,” and not to the payment of the $4,000 legacy to Daniel D. Lefever.

The devise, in the will, of the tract of land to Daniel D. Lefever, very clearly expressed the intention of the testator as to what should be done in case he, the testator, during his lifetime made a deed for the land to Daniel. He directed that the value of the land, which he fixed at $4,000, either charged against Daniel or a mortgage taken for the same, be canceled; and out of abundance of caution he added, “and I do hereby give and bequeath unto him, the said Daniel D., the said sum of four thousand dollars charged for said land.” The intention here clearly expressed was that, in case he conveyed the land to Daniel, the latter should not be charged with the value thereof either as an advancement or a debt. The concluding clause did not constitute an independent general legacy of $4,000; it was manifestly intended as a cancellation of any charge against Daniel for the value of the land and a bequest of any amount which Daniel might owe, whether evidenced by mortgage or otherwise, on account of any conveyance of the tract made by the testator during his lifetime. The codicil recited that the testator had done that which his will made clear that he had contemplated doing, conveyed the land to Daniel, for a consideration of $4,000. It is important to observe that the codicil does not state that Daniel had paid the $4,000. The concluding sentence in the codicil: “I now give and bequeath the said sum of $4,000.00 to my said son Daniel D. Lefever,” is to be construed in the light of this fact, as well as of the language of the will, to which the codicil expressly refers. “The said sum of $4,000.00” refers and can only refer, to the consideration mentioned in the conveyance, and is not a bequest of a general legacy of $4,000. It is reaffirmance of the purpose declared by the testator in his original will, that the valuation of the farm, $4,000, should not be charged against Daniel, either as an advancement or a debt. This was a bequest to Daniel of the consideration for the farm. But even if it were held that this was a general legacy of $4,000 to Daniel, still Daniel was not entitled to be paid this sum out of the fund for distribution. The codicil was executed, as the testator declares, upon the same day he executed the deed conveying the land to Daniel for a consideration of $4,000. The execution of the deed and of this codicil were contemporaneous. The consideration mentioned in the deed was the same in amount as the supposed legacy. The consideration was not paid, this Daniel D. Lef ever, candidly admits and asserts that his understanding was that he was to account for the consideration in the settlement of his father’s estate. Although there is no technical advancement in cases of testacy, yet a testator may provide the same equality and equity in his will which is accomplished by the technical advancement in cases of intestacy: Schneider’s Appeal, 16 Pa. 407. The conveyance of the land at the valuation of $4,000, at the same time that the codicil bequeathing a legacy of like amount was executed, and without payment of any consideration whatever, gave rise to the presumption that the advancement was intended as an ademption of the legacy. This was a presumption that might be rebutted or confirmed by parol evidence of a different intention by the testator: Miner v. Atherton’s Executor, 35 Pa. 528. Where there is nothing on the face of the will and no proof of an intention to give a double portion, an advancement will be a satisfaction or an ademption, of the legacy: Garrett’s Appeal, 15 Pa. 212; Hoke v. Herman, 21 Pa. 301; Swoope’s Appeal, 27 Pa. 58. There was in this case no conflict of evidence as to the intention of the testator to give a double portion; Daniel D. Lefever admitted not only that the consideration for the tract of land had not been paid but that his understanding was that it was to be charged against him in the settlement of the estate. This was an ademption of so much of his portion as was certain and definite, and in relation to which it could be applied. We are, therefore, constrained to hold that the general pecuniary legacy of $4,000 to Daniel D. Lefever, even if there was such a legacy, had been satisfied and adeemed, and that no part of the fund for distribution should have been thereto applied. There should, therefore, be decreed to the trustee for the widow, for her use during life, the one-third of $5,968.45. This will necessarily cut down the amount to be distributed to the other legatees. When it comes to the distribution of the other two-thirds, the basis heretofore adopted by the court below will reach the correct result, but the amount to which each of the distributees will be entitled must necessarily be decreased. If Daniel D. Lefever is still credited by the amount of the legacy of $4,000 he would still have to be charged with advancements to the amount of $4,300 ; but if the credit of $4,000 for the legacy is omitted, then the amount of the advancements to him would have to be correspondingly reduced. In the former distribution the court gave him credit for the $4,000 legacy, but it also charged him with the amount of the unpaid consideration for the farm, which worked the ademption of the legacy and was of equal amount, as the one exactly counterbalanced the other the result arrived at, as betweén him and the other distributees of the two-thirds remaining after the deduction of the interest of the widow, was the same as if neither the legacy nor the consideration money for the farm had been included.

The decree is reversed and the record is remitted to the court below with direction to make distribution in accordance with the foregoing opinion.


author: Head, J.,

text:
    Kinney’s Election Expenses.

      Election law — Election expenses — Audit of candidate’s account — Findings of fact.

    Where an auditor appointed to audit the account of a candidate’s election expenses, finds as a fact that certain expenditures alleged to have been made by him and not included in the account, were not so made, and such finding is adopted by the lower court, the appellate court will not reverse the decree made on such findings, in the absence of manifest error or abuse of discretion.
    Argued Dec. 10, 1908.
    Appeal, No. 216, Oct. T., 1908, by George M. Cosier et al., from order of Q. S. Monroe Co., dismissing exceptions to auditor’s report In the Matter of the Nomination Account of Eugene Kinney, a candidate for office.

      April 19,1909:
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Affirmed.
    Exceptions to report of A. R. Brittain Esq., auditor.
    The opinion of the Superior Court states the case.

      Error assigned was order dismissing exceptions to auditor’s report.

      F. B. Holmes, for appellant.

      Rogers L. Burnett, with him Cicero 'Gearhart and Stewart S. Shafer, for appellee.
   Opinion by

Head, J.,

Eugene Kinney was a candidate at the spring primaries for nomination to the office of representative in the general assembly of Pennsylvania from Monroe county. In due time he filed his account of moneys expended for election expenses under the act of March 5,1906. On the application of the appellants this account was audited in the first instance by an auditor appointed by the court to which the petition was addressed. He heard a mass of testimony and filed a detailed report finding: “That the candidate’s campaign for nomination was conducted in a lawful manner and that substantially all of his nomination expenses are comprehended in his account, and that the costs of the audit be paid by the petitioners.” To this report the appellants filed eighty-eight exceptions, complaining almost exclusively of the refusal of the auditor to find certain facts which the exceptants alleged were established by the testimony. The learned court below, however, dismissed all of these exceptions and confirmed the report of the auditor. From that order of confirmation this appeal was taken.

No complaint was made by the petitioners as to the form of the account, nor was there any allegation that the accountant had not in detail set out the manner in which he expended the money accounted for. The total amount of cash actually expended by the candidate, as shown by his account, was 1170.90. This aggregate was made up of forty-eight items. Only four of these were in excess of $10.00. These included a printing bill of $22.85, a subscription to the county committee of $15.00, a counsel fee of $20.00, and the traveling expenses of one John Welter, $15.00. The remaining forty-four items were small sums ranging from twenty-five cents to about $6.00. The unpaid debts and obligations aggregated a further sum of $66.00, about one-half of which was counsel fees, and the remainder, bills for the transportation of voters.

There was not, therefore, either in the total amount expended or in the manner in which the account was stated, anything to invite criticism or make necessary an audit of the account. The effort of the petitioners throughout the audit was to show that the candidate had expended on different occasions small sums of money for liquor or cigars, which sums it was contended should have been embraced in his account. Considerable testimony of a conflicting character was introduced on this subject. The auditor saw and heard the witnesses, and in his report gives his reasons for his conclusion that the weight of the testimony was with the accountant and that the petitioners had failed to show any substantial defect in the account as filed. As already stated, the court upon a review of the testimony, adopted the findings of fact of the auditor and confirmed his report, and thus the record stands in this court.

In an opinion this day filed, In Re Audit of the Account of H. O. Bechtel, post, p. 292, we expressed at some length our views as to the true construction of those portions of the act of 1906 which provide for the filing and auditing of the accounts of candidates. For the reasons there given we must accept as established the facts found by the auditor and adopted by the learned court below. With the questions of fact thus disposed of, nothing is left of the case of the petitioners. As already stated, they have no complaint to make as to the character of the account, but relying upon their ability to establish the facts, dehors the record, necessary to show that the candidate had failed to include in his account a substantial portion of his election expenses, the auditing proceedings were instituted. The legislature in its wisdom has declared that if the petitioners fail upon the audit to show that the accountant has in some way fallen short in the performance of the duties imposed upon him by the law, they shall pay the costs of the proceeding.

We can see nothing in this record that would warrant us in reversing the decree made by the learned court below, and the appeal is therefore dismissed at the costs of the appellants.

Decree affirmed.


text:
    Ambler v. Philadelphia & Reading Railway Company, Appellant.

      Negligence — Railroads—Stations—Passenger—Trespasser.
    Where a mere licensee or loiterer who uses the station of a railroad company as a waiting room for a street railway car, operated by a company with which the railroad company had no connection, is killed while proceeding along a defective platform of the station to the street car, a parent of such person is not entitled to recover damages for the death; and even if the deceased had been a passenger alighting from a train on the other side of the station, and had crossed the tracks at a highway crossing at the end of the station platform, and had used the waiting room until the arrival of the street car, no recovery could be had for her death.
    Argued Nov. 17, 1908.
    Appeal, No. 225, Oct. T., 1907, by defendant, from judgment of C. P. Bucks Co., May T., 1906, No. 13, on verdict for plaintiff in case of Eliza C. Ambler v. Philadelphia & Reading Railway Company.
    Before Rice, P. J., Porter, Henderson, Morrison, Orlady, Head and Beaver, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s daughter. Before Stout, P. J.
    The facts appear by the opinion of the Superior Court. See also Powell v. Philadelphia & Reading Railway Company, 220 Pa. 638, which involved injuries to another person at the same time and place.
    Verdict and judgment for plaintiff for $1,195. Defendant appealed.

      April 12, 1909:

      Error assigned was in refusing binding instructions for defendant.

      William C. Ryan, with him Henry D. Paxson, for appellant.—
    There was no evidence that Mary A. Ambler had been a passenger on a train of the defendant company, on the night of the accident, when she appeared at the station.
    It was clearly her purpose in coming to the station to wait for the trolley. She was, therefore, a mere licensee at the time of the accident: Gillis v. Penna. R. R. Co., 59 Pa. 129; Baltimore & Ohio R. R. Co. v. Schwindling, 101 Pa. 258.

      Henry A. James, with him Howard Cooper Johnson, for appellee. —
    There was evidence that Mary A. Ambler had been a passenger on a train of the defendant company.
    She was not a mere licensee, but a passenger, and thus entitled to all the rights and protections as such: Girton v. R. R. Co., 17 Pa. Superior Ct. 143; Penna. R. R. Co. v. Green, 140 U. S. 49 (11 Sup. Ct. Repr. 650); Longmore v. Ry. Co., 115 E. C. L. 183; Texas, etc., Ry. Co. v. Brown, 78 Texas, 397 (14 S. W. Repr. 1034); Louisville & Nashville R. R. Co. v. Keller, 47 S. W. Repr. 1072; Harris v. Stevens, 31 Vt. 79; Burnham v. Ry. Co., 91 Mich. 523 (52 N. W. Repr. 14); Keefe v. R. R. Co., 142 Mass. 251 (7 N. E. Repr. 874); Gillis v. Penna. R. R. Co., 59 Pa. 129; Baltimore & Ohio R. R. Co. v. Schwindling, 101 Pa. 258.
   Opinion by

Porter, J.,

The plaintiff brought this action against the defendant company to recover damages for the death of her daughter, which resulted from injuries received while upon the premises of the defendant at Langhorne, a station upon the line of the company between Philadelphia and New York. The company, at the time of the accident, operated at this locality two tracks and maintained a small station house, inclosed at the sides but open in front, on the south side of the south track, for east-bound passengers, and a platform upon the same side of that track extending from the station house eastward to a public highway named Bellevue Avenue. The main station house was on the north side of the track and the platform upon that side extended along the north side of the north track from Bellevue Avenue westward to a point some distance west of the station house. Passengers alighting from or departing by west-bound trains did so from the platform on the north side of the north track, while those arriving or departing by east-bound trains did so from the platform on the south side of the south track. Direct access from one platform or station house to that on the opposite side of the line was prevented by an iron picket fence between the tracks and passengers who desired to pass from one platform to the other could only do so by proceeding along the platform to Bellevue Avenue and there, upon said public highway, crossing the line of the railroad and arriving at the end of the platform upon the other side. The station house had recently been moved a short distance, the railroad company being about to construct two additional tracks, and the platform upon the north side had recently been torn out and a temporary substitute provided by filling in with cinders. During the progress of making these changes and constructing the new platform upon the north side temporary expedients for those using the station were provided, but the evidence tended to establish that the platform upon the north side west of the north side station house was composed of loose cinders and more or less obstructed and that it was not well lighted. The daughter of the plaintiff had appeared at the north side station house of the defendant on the evening of the accident, about or very shortly after seven o’clock, and had remained there about twenty minutes when a trolley car of a street railway company which had no connection with this defendant appeared in sight and she with several other persons left the station house to take the car. They passed from the station house to the north platform and passed along it to the westward, while so passing along this cinder platform Miss Ambler was struck by a westbound express train and received injuries which shortly after-wards caused her death. The contention of the appellee, in the court below, was that the platform was maintained in such a condition that persons passing from the north side station house westward upon the same were forced to walk close to the track and that it was so insufficiently lighted that they could not see where the track was and that in maintaining the platform in this condition the defendant company was guilty of negligence. The defendant company asked for binding instructions in its favor, under the evidence, in the court below and, such instructions having been refused, subsequently moved the court for judgment in favor of the defendant non obstante veredicto, which motion the court overruled and ordered judgment to be entered upon the verdict. The refusal of binding instructions is the subject of the first specification of error, and the second specification of error is founded on the refusal of the court below to enter judgment in favor of the defendant non obstante veredicto. The only question is, therefore, should the case, under the evidence, have been submitted to the jury.

The burden was upon the plaintiff to prove the facts upon which she would become entitled to recover, or to .prove facts and circumstances from which a jury might be permitted to infer the existence of the facts upon which that right depended. If Miss Ambler was a mere licensee or loiterer, using the station house of the defendant company as a waiting room for a street railway car, operated by a company with which this defendant had no connection, then the plaintiff was not entitled to recover. The plaintiff was only entitled to recover in case her daughter was a passenger of this defendant company and stood in that relation at the time the injury was sustained.

The plaintiff in her statement averred that her daughter “was lawfully upon the platform of said station,” but did not aver that she was or had been a passenger. We have carefully considered the evidence and are not satisfied that it contains anything from which the jury ought to have been permitted to infer that Miss Ambler had been a passenger upon any train of the defendant company. It is true that a number of witnesses spoke of Miss Ambler’s arriving “on the next train” or “by a later train,” but reading the entire evidence of each of such witnesses clearly establishes that not one of them saw Miss Ambler that evening until she appeared at the west-bound station house on the north side of the railroad, or upon the north-side platform, immediately in front of that station house. Yet all of those witnesses assumed that Miss Ambler had arrived by an east-bound train, had alighted at the platform on the south side of the railroad, proceeded along that platform to Bellevue Avenue, crossed the railroad upon the public highway and then walked along the railroad platform upon the north side and so reached the north-side station house. No witness had seen Miss Ambler upon the south platform, no one had seen her upon any train, or taking any train or leaving any train. The testimony of no witness better illustrates this than that of Caroline H. Engle, upon which the appellee so confidently relies. This witness testified, no doubt honestly, as to the time the train by which Miss Ambler arrived left the Reading Terminal, in Philadelphia, and the time of its arrival at Langhorne Station. But it is an undisputed fact that if Miss Ambler arrived by that train she must have alighted on the south platform, yet the witness explicitly states that she first saw Miss Ambler that evening coming along the cinder platform to the door of the station on the north side of the track, that is the west-bound station. These witnesses all evidently assumed that Miss Ambler had come by a train because of the time at which she arrived, yet the end of the platform on the north side at Bellevue Avenue was accessible to all persons who chose to enter, whether they came upon foot, alighted from a carriage or street car. Another witness, Edward Palmer, testified, at first, that Miss Ambler had arrived on an east-bound train, but in replying to the very next question he qualified this by saying, “Understand, I did not see her alight from the train.” This witness explained why he thought the deceased had arrived on an east-bound train by saying “I heard her say she came from the city.” It should here be observed that this witness did not pretend to testify that she had said what city she came from or in what manner she had traveled. Had the appellee even offered to prove that the deceased had declared, in the absence of any representative of the appellant, that she had that evening arrived on an east-bound train, the admissibility of such evidence for the purpose of charging the defendant with liability, would certainly be doubtful.

Let it be assumed, however, that there was sufficient evidence to warrant a finding that Miss Ambler had that evening arrived at Langhorne Station as a passenger on an east-bound train of the defendant company; then the only inference as to what followed which a jury should be permitted to draw from the evidence is properly and accurately narrated by the court below in the opinion overruling the motion of the defendant for judgment non obstante veredicto. The learned judge of the court below in his opinion thus impartially states what the deceased did, after alighting from the train, “She was well acquainted with the locality of the station and the uses of the waiting room, but she had not been at home for a period of about three months, during which the changes there in proggress had been made.' She had come home to visit her mother. She could not reach home without crossing the tracks. She could not cross where she got off the train to the waiting rooms on the north side because of an iron picket fence between the east and west bound tracks, extending from a point west of the station to the line of Bellevue Avenue, a public street crossing. She walked on the cinder walk to Bellevue Avenue and there crossed the railroad over the public street crossing to the north side of the railroad, at the end of the cinder walk that led to the station and waiting rooms about one hundred and ninety feet to the west of Bellevue Avenue. At this point she was as near to the trolley line as she was at the station. She could have proceeded directly home on the public highway, or could have gone aeross the street to a public licensed hotel to wait for the car. She, however, did not do so. She took the newly laid cinder walk or platform and went to the railroad station. She entered the waiting room and remained there about twenty minutes until the arrival of the next street car to Langhorne. During this time the waiting rooms were open for the use of passengers. Her only purpose, so far as disclosed by the testtimony, was to wait for the next street car to take her home, and to secure shelter from the rain and storm in the meantime. On the arrival of the street car she left the waiting room in company with five or six others who were waiting there for the same purpose.” While on the way from the station to the street car Miss Ambler was injured. Upon this state of facts did Miss Ambler continue to be a passenger of the defendant company after having arrived at Bellevue Avenue, a public street, and having selected the station house of the defendant company from among such places as were available for her use as a waiting place for the street car, when she left the public street and walked along the cinder platform of the defendant company one hundred and ninety feet westward and entered the station house, for the sole purpose of waiting for a street car?

The answer to this question is to be found in the opinion of Mr. Justice Elkin, who spoke for the Supreme Court, in Powell v. Philadelphia & Reading Railway Company, 220 Pa. 638. The fact which distinguishes that case from this one is, that in the Powell case there was evidence that the plaintiff had left the station on the south side of the track and gone to that on the north side of the track to meet her friend or await his arrival in order to accompany her to her place of destination. There was in the present case no such evidence, and the following extract from the opinion has, therefore, direct application. “In this connection we quite agree with the suggestion made by the learned counsel for appellant that it was no part of the duty of the railroad company to furnish a waiting room for the intending passengers of a street railway company with which the railroad company had no connection, and if it clearly appeared that the only purpose of the plaintiff after alighting from the train at the south side of the tracks was to go to the station on the north side, for the purpose of awaiting the arrival of a street railway car on which she intended to become a passenger, there could be no recovery because the relation of carrier and passenger would, under these circumstances, have ceased to exist before the injury occurred.” Applying this statement of the law to the facts on the present case, we must hold that Miss Ambler, at the time of the accident, had ceased to be a passenger and had become a mere licensee. This being the relation in which the deceased stood to the defendant company, the latter owed her no positive duty the mere neglect of which would render it liable for damages: Gillis v. Pennsylvania Railroad Company, 59 Pa. 129; Baltimore & Ohio Railroad Company v. Schwindling, 101 Pa. 258.

The judgment is reversed and judgment is now entered in favor of the defendant non obstante veredicto.

Henderson, J., dissents.