text:
    Commonwealth v. Cameron, Appellant.

      Criminal law — Evidence—Compulsory self-incrimination — Constitution of Pennsylvania, art. Ill, sec. 32.
    1. Exemption from compulsory self-incrimination is not a natural right, nor is it a right secured by the federal constitution which a state constitution can neither take away nor abridge.
    2. The words of sec. 32 of art III of the constitution: “Such testimony shall not afterwards be used against him in any judicial proceeding,” do not confer on the witness an immunity from prosecution for an offense relative to which he has been compelled to testify.

      Criminal law — Bribery—Penalty—Act of May 23, 1874, sec. 9, P. L. 230. '
    3. The legislature intended that the punishment to be imposed upon conviction under an indictment laid under sec. 9 of the Act of May 23, 1874, P. L. 230, is the same as that prescribed by sec. 48, of the penal code of March 31,1860, P. L. 382, for the offense of offering, giving or promising a bribe. The punishment is not that provided by sec. 8 of the act of May 23, 1874, for the crime of accepting the bribe.
    Argued Oct. 27, 1909.
    Appeal, No. 36, April T., 1910, by defendant, from judgment of Q. S. Allegheny Co., Dec. T., 1906, No. 585, on verdict of guilty in case of Commonwealth v. Charles S. Cameron.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Sentence reversed.
    Indictment under sec. 9 of the Act of May 23, 1874, P. L. 230, for offering a bribe to a councilman.
    At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.
    The court subsequently overruled a motion in arrest of judgment, Van Swearingen, J., specially presiding, filing an opinion in which he stated the facts to be as follows:
    In the summer of 1906 an ordinance was introduced into the select branch of councils of the city of Pittsburg, providing for the granting of a franchise to the Pittsburg & Tube City Railroad Company to build its line of steam railroad through portions of the city of Pittsburg, beginning at Fourth avenue and Try street and extending thence eastwardly in Allegheny county to the city of McKeesport. Upon the ordinance being introduced into councils it was referred in the ordinary course of business to the joint committee of councils on corporations. This joint committee was composed of twenty-three members, including the chairman of each branch of councils. One of the members of the common branch of councils and a member of the joint committee on corporations was W. A. Martin. About the time this ordinance was introduced into councils and referred to the joint committee on corporations, a meeting was brought about between the said W. A. Martin and the president of the said railroad company, Charles S. Cameron. At that meeting Martin was asked his opinion relative to said ordinance, and as a result of the conference, Cameron suggested that he would give Martin the sum of $50,000 if Martin would use his influence in helping to get the ordinance passed through councils. Martin did not accept that proposition at that time, but asked for a week in which to consider it. Later, Martin went back to Cameron and told him he would take $60,000, and use his influence to secure the passage of the ordinance. This proposition was accepted by Cameron, who agreed to give Martin the $60,000 when the ordinance should have passed councils and been approved by the mayor of the city. Negotiations were had from time to time, and some dissatisfaction arose relative to the matter, and in the course of these negotiations Cameron offered to give Martin $70,000 for his influence in securing the passage and approval of the ordinance, and agreed that if councils passed the ordinance and it was vetoed by the mayor and Martin then secured the passage of the ordinance over the veto of the mayor, Cameron would give him $80,000 for his efforts in that behalf. All these facts were established at the trial.
    Cameron was indicted under the ninth section of the Act of May 23, 1874, P. L. 230, relative to cities in this state, which reads as follows: “Any person who shall, directly or indirectly, offer, give or promise, any money or thing of value, testimonial, privilege or personal advantage, to any member of councils to influence him in the performance of any of his public or official duties, shall be guilty of bribery and be punished in such manner as that offense is by law punishable.”
    When the case was called for trial the defendant entered the following plea in bar of the prosecution: “And Now, January 11, 1909, comes Charles S. Cameron, a citizen of the United States and of the Commonwealth of Pennsylvania, in his own proper person, into court here, and having heard the said indictment read, and protesting that he is not guilty, says, that the said Commonwealth ought not further to prosecute the said indictment against him, Charles S. Cameron, because he says that heretofore, to wit, on the sixteenth day of December, 1906, in a certain prosecution by the Commonwealth of Pennsylvania, against W. A. Martin, on a charge of corrupt solicitation of members of the Councils of the city of Pittsburg, which said charge was being heard by Police Magistrate Prank J. Brady, this defendant was duly subpoenaed by the Commonwealth, and was called as a witness to testify in the said case; that upon being sworn and interrogated, this defendant declined to answer the questions put to him, because said answers would tend to incriminate himself, and in this refusal defendant persisted; whereupon the Commonwealth caused information to be made against this defendant for contempt and obstructing public justice, by reason of his said refusal to testify; that an indictment was found on said information at No. 49, December Sessions, 1906, of this Honorable Court; that this defendant was tried on said indictment and found guilty thereof, the trial court ruling that by reason Of the character of the charge in which he was called to testify being bribery, and the constitutional provisions of this Commonwealth relating thereto, this defendant was not exempt from giving evidence tending to incriminate himself; that thereafter, and by reason of the judgment so rendered against this defendant, he was called again as a witness in the case of the Commonwealth v. Flaherty and Millholland, before said Police Magistrate Frank J. Brady, on a charge of conspiracy to bribe, and so thereupon was again asked by the Commonwealth certain questions tending to incriminate himself, and this defendant then and there asserted and claimed his privilege under the bill of rights and the Constitution of this Commonwealth, by refusing to give evidence incriminating himself, but defendant was then and there compelled to answer and did answer certain questions which incriminated himself in the criminal charges then and there being heard. Wherefore this defendant saith, that, because of the aforesaid action of the Commonwealth in compelling him to so testify as aforesaid to matters and things incriminating himself in the present charge of which he stands indicted, he thereby, under the Constitution of this Commonwealth and the Constitution of the United States, became then and there immune and exempt from indictment and prosecution for the corrupt solicitation charged in this present indictment, which is the same charge whereof he was compelled to incriminate himself. For a further special plea defendant saith, that section 32, article III, of the Constitution of Pennsylvania, unless it be held and construed to grant and secure to this defendant full and absolute immunity from prosecution for the matters and things whereof the defendant was compelled to incriminate himself under-said constitutional provision, is in conflict with and violative of defendant’s rights as a citizen of the United States and a citizen of this Commonwealth, under the Fourteenth Amendment of the Constitution of the United States, as not being due process of law as therein secured and guaranteed. Wherefore defendant prays judgment that he may be discharged.”
    To this plea of the defendant the commonwealth demurred. We sustained the demurrer, and the defendant was convicted by the jury. None of the testimony given by the defendant before the police magistrate was used against him, and no reference thereto was made in any manner whatever upon the trial. The conviction of the defendant was had upon testimony wholly distinct and apart therefrom. The matter is now before us on motions for a new trial and in arrest of judgment, both motions being grounded in substance on the refusal of the court to sustain the defendant’s plea in bar.

      Errors assigned, among others were in sustaining the commonwealth’s demurrer to the special plea in denying motion in arrest of judgment and in imposing the sentence quoted in the opinion of the Superior Court.

      A. S. L. Shields and C. A. O’Brien, of O’Brien & Ashley, for appellant.
    — The constitution of Pennsylvania, as properly understood and. interpreted, protects the appellant from prosecution for any matter, thing or alleged crime disclosed by him under the compulsory requirement of art. Ill, sec. 32.
    A constitutional provision stands on a different footing from a statute. The constitution is a sublimated kind of common law, universal in its application and to be liberally construed. A statute, according to our theory, is an intrusion upon common law; a modification of, or exception to it; and unless it clearly and unmistakably alters the common law, the broad general principle of the common law must prevail: Cooley on Const. Limitations (6th ed.), 311, 313; 2 Story on Const. (5th ed.), 623, 627; State v. Height, 117 Iowa, 650 (91 N. W. Repr. 935); Brown v. Walker, 161 U. S. 591 (16 Sup. Ct. Repr. 644).

      Suppose, however, for a moment that the bill of rights and the rest of the constitution stand on an exact equality, we have here then the provision, bill of rights, sec. 9: “In all criminal prosecutions the accused hath a right to be heard by himself and counsel, to demand the nature and cause of the accusation against him, to meet the witnesses face to face, to have compulsory process for obtaining witnesses in his favor. He cannot be compelled to give evidence against himself, nor can he be deprived of his life, liberty or property, unless by the judgment of his peers or by the law of the land.”
    The meaning of this article is perfectly plain. It sets the commonwealth on one side and the accused person on the other, and it declares that the commonwealth must prove its case before the jury without assistance from the accused.
    No doubt the theoretical objections to these constitutional provisions have considerable weight. The same objections also apply to the doctrine that penal and criminal statutes must be construed strictly, that in criminal cases the defendant is entitled to the benefit of the doubt, and that good character is a substantial element of defense against a specific criminal charge: Com. v. Smith, 185 Pa. 553.
    Indeed, the theory that underlies all these provisions favorable to the accused is that mere conviction of an accused person, however guilty, is of less importance than the preservation of certain individual rights which make for the building up of individual character and for strengthening a nation. It is not to be supposed that the masters of the law in the past did not know as well as we that criminals ought to be convicted and punished, and yet they preserved what they considered safeguards of the constitution as being preferable to the supposed theoretical advantage of conviction.
    With the principles of the bill of rights firmly fixed in our minds, let us read the thirty-second section of the third article, which modifies it by saying that in bribery cases aman must testify, though it may criminate him, but such testimony shall not afterwards be used against him in any judicial proceeding, except for perjury in giving such testimony.
    The word “testimony” must be held to be synonymous with the word “evidence” (Com. v. Gibbons, 9 Pa. Superior Ct. 527) in the ninth section of the bill of rights, and when that is so held, the unanswerable reasoning of Counselman v. Hitchcock, 142 U. S. 547 (12 Sup. Ct. Repr. 195), disposes of the question. The thirty-second section must not be read in the narrow spirit in which a statute is read, but in the broad spirit in which the bill of rights is read, and if the interpretation is to be fairly made, in general subordination to the bill of rights. All trifling with words is prohibited in interpreting the constitution.
    Upon the constitutional question involved we submit that the lower court in sustaining the demurrer to defendant’s plea and in its elaborate opinion discharging the rule in arrest of judgment, etc., misapplied and reversed the proper rule of constitutional construction: Boyd v. U. S., 116 U. S. 616 (6 Sup. Ct. Repr. 524); Twining v. New Jersey, 211 U. S. 78 (29 Sup. Ct. Repr. 14); Com. v. Bell, 145 Pa. 374; Com. v. Gaige, 94 Pa. 193; Guldin v. Schuylkill County, 149 Pa. 210; Com. v. Griest, 196 Pa. 396; Sugar Notch Borough, 192 Pa. 349; Emery’s Case, 107 Mass. 172; Com. v. Smith, 185 Pa. 553; Kelly’s Contested Election, 200 Pa. 430; Com. v. Gibbons, 9 Pa. Superior Ct. 527; Horstman v. Kaufman, 97 Pa. 147; Krug v. Behringer, 20 Pa. C. C. Rep. 81; Boyle v. Smithman, 146 Pa. 255; Com. v. Meads, 11 Pa. Dist. Rep. 10; Hazlett’s Est., 8 Pa. Dist. Rep. 201; Brannon v. Ruddy, 8 Pa. C. C. Rep. 176; McFadden v. Reynolds, 20 W. N. C. 312; Osborne v. Bank, 154 Pa. 134; People v. Forbes, 143 N. Y. 219 (38 N. E. Repr. 303); People v. O’Brien, 176 N. Y. 253 (68 N. E. Repr. 353); Ex parte Cohen, 104 Cal. 524 (38 Pac. Repr. 364).
    A prosecution based upon disclosures made under the compulsory requirement of art. Ill, sec. 32, of the constitution is invalid, unlawful and in contravention of the act of March 31, 1860, sec. 49: Allegheny County v. Gibson, 90 Pa. 397; Lehigh Iron Co. v. Lower Macungie, 81 Pa. 482; Gas Co. v. Chester County, 97 Pa. 476; Erie County v. Erie City, 113 Pa. 360.
    The sentence imposed by the lower court was excessive.

      Warren I. Seymour, with him William A. Blakeley, for appellee.
    — The constitution of Pennsylvania authorizes the compulsion of testimony in bribery cases and permits the conviction of the witness provided such testimony be not used against him: Kelly’s Contested Election Case, 200 Pa. 430; Com. v. Gibbons, 9 Pa. Superior Ct. 527; Counselman v. Hitchcock, 142 U. S. 547 (12 Sup. Ct. Repr. 195).
    The sentence of the court below was proper: Com. v. Brown, 23 Pa. Superior Ct. 470; Rex v. Pitt, 3 Burr. 1335.
    March 3, 1910:
   Opinion by

Rice, P. J.,

If sec. 32, art. Ill, of the constitution were merely an act of the legislature, and not a constitutional provision, a question open to discussion would be, whether it supplied a complete protection from all the consequences against which the constitutional prohibition of compulsory self-incrimination was designed to guard, and, therefore, whether the appellant could have been compelled to give the incriminating testimony referred to in his special plea in bar. The question of the sufficiency of a statutory immunity to save the statute from conflict with the constitutional prohibition has been learnedly and elaborately discussed in many cases cited and reviewed in the opinion of the learned judge below and in the briefs of counsel, but it is not the precise question upon which this case turns. No one pretends that sec. 32, art. Ill, is not valid and enforceable, and could not do so without ignoring or denying effect to the decisions in Commonwealth v. Gibbons, 9 Pa. Superior Ct. 527, affirmed on appeal in Kelly’s Contested Election, 200 Pa. 430, and without asserting also that exemption from compulsory self-incrimination is a natural right, or a right secured by the federal constitution, which a state constitution can neither take away nor abridge —a position which is not sustained by principle or authority. In the celebrated case of Counselman v. Hitchcock, 142 U. S. 547, the distinction between a legislative and a constitutional impairment of the privilege was distinctly recognized, for the court said: “ Legislation cannot detract from the privilege afforded by the constitution. It would be quite another thing if the constitution had provided that no person shall be compelled in any criminal case to be a witness against himself, unless it should be provided by statute that criminal evidence extracted from a witness against his will should not be used against him. But a mere act of congress cannot amend the constitution, even if it should engraft thereon such a proviso.” Still more emphatic is the utterance of the supreme court of the United States in Twining v. New Jersey, 211 U. S. 78: “Even if the historical meaning of due process of law and the decisions of this court did not exclude the privilege from it, it would be going far to rate it as an immutable principle of justice which’is the inalienable possession of every citizen of a free government. Salutary as the principle may seem to the great majority, it cannot be ranked with the right to hearing before condemnation, the immunity from abitrary power not acting by general laws, and the inviolability of private property. The wisdom of the exemption has never been universally assented to since the days of Bentham; many doubt it to-day, and it is best defended not as an unchangeable principle of universal justice, but as a law proved by experience to be expedient. It has no place in the jurisdiction of civilized and free countries outside the domain of the common law, and it is nowhere observed among our own people in the search for truth outside the administration of the law. It should, must, and will be rigidly observed where it is secured by specific eonstutitional safeguards, but there is nothing in it which gives it a sanctity above and before constitutions themselves.” As there is nothing in the right or privilege which gives it sanctity above and before constitutions themselves, the question before us must turn on the construction of the constitutional provisions contained in sec. 9, art. I, and sec. 32, art. III. We are not disposed to accept unqualifiedly the construction of the former which would restrict the words “the accused cannot be compelled to give evidence against himself,” to the accused then upon trial. See Horstman v. Kaufman, 97 Pa. 147; Counselman v. Hitchcock, 142 U. S. 547. Without entering into an elaborate discussion of the scope of that section, we assume that were it not for sec. 32, art. III, sec. 9, art. I, without the aid of sec. 10 of the Act of May 23, 1887, P. L. 158, would have protected the appellant from being compelled to give self-incriminating evidence in the prosecution against Martin and the prosecution against Flaherty and Millholland. Sec. 32, art. Ill, takes away the privilege in the class of cases to which those prosecutions belong, but couples with the deprivation of it a provision protecting the witness, who has been compelled to give self-incriminating testimony, against the use, afterwards, of such testimony against him in any judicial proceeding, except for perjury in giving it. This being a matter subject to constitutional regulation the provision cannot be rejected upon the ground that it is in conflict with sec. 9, art. I, as already pointed out; nor is it permissible to enlarge it by construction, so as to give immunity which was not intended. It is not to be treated as a subordinate and less important provision, to be warped this way or that in order to make the rule in bribery cases conform as nearly as possible to the rule in other cases. It is rather to be construed as an exception to the general rule against compulsory self-incrimination, and as expressing the extent to which the framers of the constitution and the people adopting it deemed it wise, in that instrument, to give the witness immunity in exchange for the privilege of which he has been deprived. Thus viewing it, it is impossible to conclude that the words, “such testimony shall not afterwards be used against him in any judicial proceeding” are the equivalent, or intended to be, of declaring “that the person so compelled to testify shall be exempt from punishment for the offense concerning which he is so required to testify, and of which he may be guilty.” Certainly the clause would not be given that effect in the construction of a statute. This the learned counsel for the appellant expressly concede when they say in their able and comprehensive brief, it cannot be doubted that if the section were a statutory instead of a constitutional provision it would be held ineffective. This may not be conclusive of the construction that ought to be given to the section of the constitution, but it is a very pertinent consideration: for while great liberality of construction is allowed to bring constitutional provisions into harmony, so also is it permissible in order to bring a statute into harmony with the constitution. If it were permissible to refer to the proceedings of the constitutional convention in order to arrive at the intent of the section, it could be shown beyond doubt that a provision to give the witness complete immunity from prosecution was proposed, fully debated by able lawyers of the convention and rejected as inexpedient. In view of some of the later utterances of the Supreme Court upon the subject of referring to the proceedings and debates of the convention in construing a constitutional provision, we make no point of the extraneous fact above referred to and rest our conclusion exclusively upon principles of construction which are well settled. Great stress is laid by appellant’s counsel on these remarks of Justice Dean in Kelly’s Contested Election: “The argument that sec. 10 is fatally repugnant to sec. 9 of the bill of rights, and that the latter must prevail, is without force; assuming that the witness’s answer would disclose the fact that he used money to purchase the votes of certain electors, his answer could not be used against him in any legal proceeding, therefore he would be subject to no penalty or fine involving deprivation of liberty or forfeiture of land or goods. The most that he could suffer would be that odium which attaches to moral turpitude.” We think the learned counsel press these remarks beyond the real meaning of them when they cite them as supporting their contention that the witness could not afterwards be prosecuted. We hesitate to believe that Justice Dean intended that meaning to be taken from what he said. The utmost that can be claimed is that as the answer could not be used against him in any legal proceeding, he would not be subjected thereby, that is, by his answers, to any penalty or fine involving deprivation of liberty or forfeiture of lands and goods.

It is not necessary to define with exact precision what use of the testimony of the witness is prohibited; it is enough for present purposes to say that it is not impossible that a person who has been compelled to give evidence tending to criminate him may be convicted without any use whatever of that testimony. Nor is it to be implied from what is averred in a special pica in bar that it would be impossible to convict the defendant without the use, directly or indirectly, of the testimony he had given in the prosecutions above referred to. This, as well as the fact that the present prosecution was not under sec. 49 of the penal code, is an answer to the suggestion that that section barred the prosecution.

Upon the question of the effect of the provisions of the federal constitution it is sufficient to refer to Twining v. New Jersey.

We have prolonged the discussion of sec. 32, art. Ill, further than was necessary, for the question is very fully and satisfactorily considered in the able opinion of the learned judge below, and we all concur in his conclusion that that section is restrictive only of the use of the testimony actually given by the witness under compulsion and that it does not confer on the witness an immunity from prosecution for an offense relative to which he has been compelled to testify.

The remaining question relates to the punishment. The defendant was sentenced to pay a fine of $500 and to undergo an imprisonment in the Western Penitentiary for the term of two years. Section 9 of the Act of May 23, 1874, P. L. 230, for a violation of which the defendant was indicted and convicted, declares that any person who shall, directly or indirectly, offer, give or promise any money or thing of value, testimonial, privilege or personal advantage to any member of councils to influence him in the performance of any of his public or official duties, “shall be guilty of bribery and be punished in such manner as that offense is by law punishable.” In common speech, in dictionaries, in statutes and in judicial decisions, bribery is the name given to the offense of the giver of the bribe, as well as that of the receiver. It is so in the act of 1874. In sec. 8, which relates to the taking of bribes by members of city councils, the name given to the offense is bribery, and it is declared that the offender “shall upon conviction thereof be punished by fine not exceeding $10,000, and by separate and solitary confinement at labor for a period not exceeding five years, and shall be forever incapable of holding any place of profit or trust in this commonwealth.” It is argued by the commonwealth’s counsel that if the language of sec. 9, “punished in such manner as that offense is by law punishable,” means as statutory bribery is punishable, we must look to sec. 8 to ascertain the punishment, and if the language does not mean that, then it must mean as common law bribery is punishable. On the other hand counsel for appellant contend that the language means that the offense is punishable as that kind of bribery is punishable under the penal code. No other legislation relating to the question has been called to our attention. If the legislature intended to make the punishment of a councilman accepting a bribe and of the person giving the bribe the same, it seems remarkable, at least, that it did not say so in clear and unmistakable language. Particularly is this so, when it is remembered that in enacting the penal code (Act of March 31,1860, P. L. 382) the legislature approved the policy recommended by the commissioners of making a broad distinction, in respect of punishment, between the bribe giver and the public functionary accepting the bribe. Speaking of sec. 48 of the code, the commissioners say: “A distinction, however, has been made between the party offering or attempting to bribe any public functionary mentioned in the act, and the public functionary receiving or agreeing to receive such bribe; the breach of his oath and the betrayal of the public trust in such public functionary, rendering his crime of much deeper malignity and worthy of more marked and severe punishment:” Rep. on Penal Code, 20; 1 Stewart’s Purdon, 913. Unquestionably, it was within the power of the legislature of 1874, when legislating as to bribery of and bribery by city councilmen to ignore this distinction and to make both offenses punishable in precisely the same way, while leaving the distinction in full force as to bribery of and bribery by the other public functionaries mentioned in sec. 48 of the penal code. The result of so doing would be to make the offense of offering, giving or promising a bribe to a member of city councils punishable by fine not exceeding $10,000, and by separate or solitary confinement at labor for a period not exceeding five years — to say nothing of the provision rendering the offender incapable of holding any place of profit or trust in this commonwealth — while the offense of giving, offering or promising a bribe to a member of the general assembly, state officer, judge, juror, justice, referee or arbitrator is punishable by a maximum fine of $500 and a maximum term of imprisonment of one year. This anomaly furnishes no reason for departing from the plain meaning of the words used in the act of 1874, but it is a potent reason for not adopting the construction of them suggested in the argument.of commonwealth’s counsel if they are susceptible of another construction that does not involve such a gross anomaly. I think they are susceptible of such construction. If there were but one kind of bribery punishable by statute law, namely, the offense of accepting a bribe, it might be argued with much force that the legislature of 1874 intended the punishment attached to “that offense” to be attached to the offense prescribed against by sec. 9 of the act of 1874. But where there are two different kinds of statutory offenses falling under the general name bribery, one of these being the offense of giving, offering or promising a bribe, and the other being the acceptance of a bribe, it would seem clear that the legislature in the use of the words “that offense” did not mean the offense of accepting a bribe bu.t did mean the offense of giving, offering or promising a bribe. It is true the word “bribery” is not used in sec. 48 of the penal code, but the word “bribe” is used, and, what is more to the purpose, the offenses prescribed against contain all the essential elements of bribery. The writer cannot escape the conclusion that the legislature intended that the punishment to be imposed upon conviction under an indictment laid under sec. 9 of the act of 1874 should be the same as that prescribed by sec. 48 of the penal code for the offense of offering, giving or promising a bribe. If this be the correct conclusion, the maximum term of imprisonment to which the defendant could be sentenced was one year. The first four assignments of error are overruled, and the fifth is sustained. ■

The sentence is reversed and the record is remitted to the court of quarter sessions of Allegheny County with direction that the court proceed and sentence the defendant afresh in due order and according to law, and it is ordered that the defendant forthwith appear in that court for purpose of sentence aS aforesaid.


source: Caselaw Access Project

author: Porter, J.,

license: Public Domain

text:
    Commonwealth v. Keuhne, Appellant.

      Criminal law — Embezzlement—Corporations—Act of June 12, 1878, P. L. 196.
    1. The Act of June 12, 1878, P. L. 196, providing for the punishment of embezzlement by any officer or employee “of any bank or other body corporate, or public company, municipal or quasi municipal corporation,” applies not only to banks and public corporations, but also to private corporations organized under Act of April 29, 1874, P. L. 73, and its amendments.

      Criminal law — Statute of limitations — Embezzlement—Acts of March 31, 1860, sec. 107, P. L. 382 and June 12, 1878, P. L. 196.
    2. Where an indictment charges embezzlement in the exact language of sec. 107 of the Act of March 31, 1860, P. L. 382, the offense charged is a felony, and the period of limitations against its prosecution is fixed by sec. 77 of the Act of March 31, 1860, P. L. 427, as two years next after the felony was committed. The limitation of four years as provided by the Act of June 12, 1878, P. L. 196 does not apply to such an indictment.
    3. The fact that an indictment charges the crime substantially in the language of one statute is sufficient to warrant the trial and sustain a conviction for the offense created by that statute, but it will not warrant a trial for and conviction of an entirely different offense created by some other statute.
    Argued Oct. 22, 1909.
    Appeal, No. 133, Oct. T., 1909, by defendant, from judgment of Q. S. Phila. Co., Nov. T., 1908, No. 12, on verdict of guilty in case of Commonwealth v. Albert E. Keuhne.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Reversed.
    Indictment for embezzlement.
    At the trial the jury returned a verdict of guilty, upon which judgment of sentence was passed.
    On motion to arrest judgment Martin, P. J., filed the following opinion:
    The defendant was indicted on November 2, 1908, for fraudulent embezzlement of money belonging to the “German Daily Gazette Publishing Company,” a body corporate, by whom he was employed.
    It was proved that he appropriated the money during the year 1905. The verdict was “Guilty.”
    A motion in arrest of judgment was made upon the ground that the prosecution was barred by the statute of limitations.
    Defendant was indicted under the Act of June 12, 1878, P. L. 196, which enacts that, “If, any person being an officer, director, superintendent, manager, receiver, employee, agent, attorney, broker, or member of any bank or other body corporate, or public company, municipal or quasi municipal corporation, shall fraudulently take, convert or apply to his own use, or the use of any other person, any of the money or other property of such bank, body corporate or company, municipal or quasi municipal corporation .... he shall be guilty of a misdemeanor.”
    Section 6 provides that indictments may be commenced and prosecuted at any time within four years from the time the alleged offense shall have been committed.
    It was claimed on behalf of defendant that this act is not sufficiently comprehensive to include an employee of a corporation other than one of a public, municipal or quasi municipal character, except a bank; that the words “or other body corporate” should be restricted under the doctrine of noscitur a sociis, or ejusdem generis, and that “public company,” “municipal or quasi municipal corporations” appearing in the act indicates the genus to which the legislature intended the act to apply.
    It was said by Coleridge, J., in Pocock v. Pickering, 21 L. J. Q. B. 365, 368, referring to the duty of the court in construing an act: “ Our first business, I conceive, is to examine the words themselves which are used; and if in these there be no ambiguity it is seldom desirable to go further.”
    “It is better always to adhere to a plain common sense interpretation of the words of a statute than to apply to them refined and technical rules of grammatical construction:” Gyger’s Est., 65 Pa. 311, 312, Sharswood, J.
    It has been held that the rule of construction which is called the ejusdem generis doctrine, or sometimes the doctrine of noscitur a sociis, is one which ought to be applied with great caution; because it implies a departure from the natural meaning of words in order to give them a meaning which may or may not be the intention of the legislature: Smelting Company v. Inland Revenue Commissioners, 66 L. J. Q. B. 137, 140.
    In Salomon v. Salomon, 66 L. J. Ch. 35, 44, the court said: “ 'Intention of the legislature’ is a common but very slippery phrase, which, popularly understood, may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.”
    It was further claimed that if the act of 1878 did not include the offense the indictment must rest upon sec. 107 of the Act of March 31, 1860, P. L. 382, which enacts that “if any clerk, servant, or other person in the employ of any other, shall by virtue of such employment receive and take into his possession any chattel, money, or valuable security, which is or may be the subject of larceny, for or in the name or on account of his master, or employer, and shall fraudulently embezzle the same or any part thereof, every such offended shall be deemed to have feloniously stolen the same from his master or employer;” and that the period of limitation provided by sec. 77 of the procedure Act of March 31, 1860, P. L. 427, applicable to the case is two years next after the misdemeanor was committed.
    It is provided, however, in this latter act that indictments for misdemeanors committed by any officer of a bank, or other corporation, may be commenced and prosecuted at any time within six years from the time the alleged offense shall have been committed.
    “When an act is expressed in clear and precise terms, when the sense is manifest and leads to nothing absurd, there can be no reason to refuse the sense which it naturally presents. To go elsewhere in search of conjecture in order to restrain or extinguish it, is to endeavor to elude it:” Jackson v. Lewis, 17 John. 475, 477.
    Neither is it true as it has been sometimes put, that the court, in the exposition of penal statutes are to narrow the construction. “We are to look to the words in the first instance,” said Buller, J., in R. v. Hodnett, 1 T. R. 96, “and where they are plain, we are to decide on them. If they be doubtful, we have then to have recourse to the subject-matter.”
    In construing penal statutes, we must not, by refining, defeat the obvious intention of the legislature: Potter’s Dwarris on Statutes, 247.
    While every provision affecting a criminal offense involving liberty is subject to the strictest interpretation, this principle is not to be so applied as to narrow the words of a statute to the exclusion of cases which those words in their ordinary acceptance, or in that sense in which the legislature has obviously used them, would comprehend: Potter’s Dwarris on Statutes, 964.
    In U. S. v. Goldenberg, 168 U. S. 95, 102, it was said: “The primary and general rule of statutory construction is that the intent of the lawmaker is to be found in the language that he has used. He is presumed to know the meaning of words and the rules of grammar. The courts have no function of legislation, and simply seek to ascertain the will of the legislator.
    “It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute.
    “In order properly to interpret any statute it is as necessary now as it was when Lord Coke reported Heydon’s case to consider how the law stood when the statute to be construed was passed, what the mischief was for which the old law did not provide, and the remedy provided by the statute to cure that mischief:” In re Mayfair Property Co., 67 L. J. Ch. 337, 340.
    Section 1 of the Act of June 12, 1878, P. L. 196, supra, is a transcript of sec. 110 of the Act of March 31, 1860, P. L. 382, which was in turn sec. 4 of the Act of April 15, 1858, P. L. 270. This clause of the act of 1858 reads: “If any person being an officer, director or member of any body corporate or public company, shall fraudulently take, convert, or apply to his own use, or the use of any other person, any of the money or other property of such body corporate or public company he shall be guilty of a misdemeanor.”
    Section 116 of the act of 1860 extends the act to “ any bank.”
    In 1876, it was decided that the provisions of the act of 1860 did not include a school district, as it is only a quasi corporation: Com. v. Beamish, 81 Pa. 389.
    In the act of 1878, there was added the words “superintendent, manager, receiver, employee, agent, attorney, broker,” —“member of any bank or other body corporate or public company,” and “municipal or quasi municipal corporation.”
    While “any body corporate” used in the act of 1858, may be comprehensive enough to include a public company, to hold that the words “any body corporate or public company” describe only a “public company” is to strike from the statute the words “any body corporate” as surplusage and decide that the legislature did not intend to employ terms as broad as it used.
    The subsequent legislation extended the provisions of the act to other subjects, and there is no indication of an intention to limit or restrict the scope of the original enactment.
    Defendant was an employee of a body corporate within the purview of the act of June 13, 1878; and the indictment was commenced and prosecuted within the statutory period.
    The motion in arrest of judgment is overruled.

      Errors assigned were in refusing binding instructions for defendant; in refusing arrest of judgment; in finding that the defendant was an employee of a body corporate within the meaning of the act of June 13, 1878; and that the indictment was commenced and prosecuted within the statutory period.

      Henry M. Stevenson, with him B. I. De Young and Maxivell Stevenson, for appellant.
    — The defendant could not be properly convicted and sentenced upon the indictment, under the provisions of the act of June 12, 1878: Com. v. Fox, 10 Phila. 204; Com. v. Witman, 217 Pa. 411; Com. v. DeCamp, 177 Pa. 112; Com. v. Baldwin, 5 Pa. C. C. Rep. 509; Keystone Surgical Supply Mfg. Co. v. Bate, 187 Pa. 460; Milford Boro. v. Milford Water Co., 124 Pa. 610; Butler’s App., 73 Pa. 448; Allen’s App., 81* Pa. 302; Pardee’s App., 100 Pa. 408; Renick v. Boyd, 99 Pa. 555; Monongahela Bridge Co. v. Ry. Co., 114 Pa. 478; Kime v. Crider, 6 Pa. Dist. Rep. 688; Com. v. Wetherill, 8 Pa. Dist. Rep. 653; Beechwood Imp. Co.’s App., 12 Pa. Dist. Rep. 430; Com. v. Mansfield, 12 Pa. Dist. Rep. 103; Com. v. Hill, 2 Pearson, 432.
    As the act of June 12, 1878, both increases the penalty in making the maximum imprisonment six years'as against the three years under sec. 107 of the act of March 31, 1860, and extends the time for beginning prosecution from two to four years, it must be construed strictly.

      Morris Wolf, asst, district attorney, with him Samuel P. Rotan, district attorney, for appellee.
    March 3, 1910:
   Opinion by

Porter, J.,

The defendant was convicted upon an indictment containing three counts, charging distinct acts of embezzlement, all charging the offense in the same language, except as to the amount and date of the several items alleged to have been misappropriated. The offense in each count charged was, that the defendant, “being then and there a person in the employ of a certain corporation named and called the -German Daily Gazette Publishing Company, as clerk and servant, did by virtue of his said employment, and while so employed as aforesaid, then and there receive and take into his custody, care and possession, for and in the name and on account of the said corporation . . . ., his employer as aforesaid, certain money, to wit: sixty-five dollars lawful money of the United States,..... of the goods and chattels, moneys and property of the said corporation named, etc., . . . ., then and there being found, and then and there did fraudulently embezzle and then and there feloniously did steal; take and carry away, contrary to the form of the act of the General Assembly in such case made and provided and against the peace and dignity of the Commonwealth of Pennsylvania.” The indictment was found on November 2, 1908, and in the first count charged the first act of embezzlement to have been committed on May 22, 1905, and the second act to have been “within the space of six calendar months from the time of committing the said felony and embezzlement hereinbefore in the first count of this indictment set forth, charged and stated, to wit: on the third day of July, in the year 1905”; and the third count, using the language above quoted from the second count, charged the date of the act on August 14, 1905. The evidence introduced at the trial in support of the indictment all tended to establish the unlawful appropriation of money, during the year 1905, at about the dates in the indictment charged, and all more than three years prior to the finding of the indictment. The jury having rendered a verdict of guilty as indicted the court sentenced the defendant, and from that judgment we have this appeal.

The only specifications of error which merit consideration are those relating to the period of limitation applicable to prosecutions for the offense of which the defendant stands convicted. The indictment charged and the evidence established that the offenses of the defendant, if any, had been committed more than three years before the bill was found, and there was no evidence of the absence of the defendant from the state which could operate to prevent the running of the statute of limitations. The first specification of error is based upon the motion of the defendant to quash the indictment, the defendant stating his motion to be based upon the ground, “that the Act of June 12th, 1878, P. L. 196, providing for the punishment of embezzlement by an employee .... or servant of a bank or other body corporate, municipal or quasi-municipal corporation, did not apply to the charge laid in the bill of indictment,” which motion the court overruled. The contention of the defendant in the court below, seems to have been that the second section of the act of June 12, 1878, providing for the punishment of officers, employees, etc., “of any bank or other body corporate, or public company, municipal or quasi-municipal corporation, who shall fraudulently take, convert or apply to his own use, or the use of any other person, any of the money or other property of such bank,” etc., must be construed to apply only to public corporations, in the nature of municipalities. This contention has been persisted in in the argument before this court, and we have it stated as one of the questions involved; “Whether section 1 of the Act of June 12th, 1878, P. L. 196, includes within the meaning of the words 'bank or other body corporate, or public company, municipal or quasi-municipal corporation’ a private corporation of the second class, organized under the Act of April 29th, 1874, P. L. 73, and its amendments.” The question being presented in this manner the court below was led to consider it as only involving the construction to be given to the words “body corporate,” in the first section of the act of 1878. The opinion of Judge Martin, which will appear in the report of this case, reviews the legislation relating to offenses of this character by the officers and employees of banks 'and other corporations, which culminated in the act of 1878, and vindicates his conclusion, that the words “body corporate” used in the first section of that statute must be held to include all corporations. The act of 1878 was a supplement to the Act of March 31,1860, P. L. 382, and in .its first section amended sec. 116 of the earlier statute. The Act of April 15, 1858, P. L. 270, sec. 4, had made that a criminal offense which had not previously been such, by enacting: “If any person being an officer, director or member of any body corporate or public company, shall fraudulently take, convert, or apply to his own use, or the use of any other person, any of the money or other property of such body corporate or public company he shall be guilty of a misdemeanor.” This provision was retained by the revisers of the penal code and embodied in sec. 116 of the act of 1860, but the provision was extended so as to include “an officer, director or member of any bank, or other body corporate or public company.” The purpose of this change was manifestly not to narrow the meaning of the words “body corporate,” as used in the act of 1858. The legislative intention was not to exclude from this section corporations which had come within the provisions of the act of 1858, but to extend those provisions so as to make the officers of banks subject to the penalty imposed. It was held in Com. v. Beamish, 81 Pa. 389, that a school district was not a “body corporate” within the meaning of sec. 118 of the act of 1860, which provided that certain acts of officers of any “body corporate” should constitute a misdemeanor; such school districts being only quasi corporations. While the construction of secs. 116, 117 and 119 of the act of 1860 was not, strictly speaking, before the court in that case, it was in the opinion said that those sections clearly did not apply to municipal corporations. And it may here be observed that while sec. 116 of act of 1860 provides for the punishment of offenses by officers of “any bank, or other body corporate or public company,” the subject of embezzlement by “state, county, township or municipal officers” is specifically dealt with in sec. 65 of the act of 1860, within the operation of which the acts of officers of school districts had been held to come: Com. v. Morrisey, 86 Pa. 416. The able argument submitted on behalf of the appellant has failed to convince the majority of the judges who were present at the argument of this appeal that the learned judge of the court below erred as to the construction to be given the act of 1878.

The period of limitation provided by the act of 1878 within which indictments “for misdemeanors committed by any officer, director, agent, employee, etc., of any bank, body corporate or public company, municipal or quasi-municipal corporation,” must be found is four years. The misdemeanors referred to have all been created by statute, and the indictments in such cases are to be adjudged sufficient when they charge the crime substantially in the language of the act of assembly prohibiting the crime, and prescribing the punishment. This relieves the prosecuting officer, to some extent, from the necessity for technical accuracy in pleading, but an indictment must still inform the defendant of the offense with which he stands charged. The fact that an indictment charges the crime substantially in the language of one statute is sufficient to warrant the trial and sustain a conviction for the offense created by that statute, but it will not warrant a trial for and conviction of an entirely different offense created by some other statute. The indictment in this case, in so far as the description of the character in which he acted is concerned, is drawn in the exact language of sec. 107 of the act of March 31,1860; it avers that he was a person in the employ of another, “as clerk and servant,” and that by virtue of his employment and while so employed, he received in the name and on account of his employer, certain money. We must, however, consider not only the character in which the defendant is charged to have acted, but also the offense with which he is charged, in determining upon what statute the prosecution was founded. This indictment charges that the defendant, having received the money, “did fraudulently embezzle and then and there feloniously did steal, take and carry away,” the same. The offense here charged is a felony, not a misdemeanor, and the second and third counts of the indictment accurately state the offense charged in the first count to be a felony. What statute authorizes the prosecution and punishment of a defendant, upon the facts in this indictment stated, for a felony? The 107th section of the act of 1860 enacts that, if any clerk, servant or other person in the employ of another, shall by virtue of such employment, receive and take into his possession any chattel, money or valuable security, which is or may be made the subject of larceny, for or in the name of his employer, “and shall fraudulently embezzle the same, or any part thereof, every such offender shall be deemed to have feloniously stolen the same from his master or employer.” This is the very language used in this indictment in describing the wrongful act of which the defendant was charged to be guilty. The offense created by this statute was not a misdemeanor. The wrongful act is the fraudulent embezzlement, the intentional misappropriation of his employer’s money. This section of the statute declared that he who had thus received and misappropriated money should be deemed, in law, to have feloniously stolen the same, “and shall be punished as is provided in cases of larceny of like property.” It is very clear that the offense for which this defendant was indicted was that created by sec. 107 of the act of March 31, 1860, which is a felony. That the statute of limitations for the prosecution of misdemeanors, by officers and employees of corporations, provided by the act of 1878, had no application to this case logically follows. The offense for which the defendant was indicted was not a misdemeanor. The period of limitation for the prosecution for this felony was that fixed by sec. 77 of the Act of March 31,1860, P. L; 427, two years next after such felony was committed. This question was properly raised by the request of the defendant for binding instructions, the refusal of which is the foundation of the thirteenth specification of error. This specification of error must, therefore, be sustained.

The judgment is reversed and the defendant is discharged without day.


author: Henderson, J.,

text:
    Boulevard from Second Street.

      Wills — Construction—Life estate.

    1. A testator devised to Ms grandnieces all the property of wMch he should die possessed, "and to their heirs and assigns, subject nevertheless to the following restrictions, . . . the real estate of which I may die seised shall be held and enjoyed by them during their lives, or, in case of the death of one of them, during the life of the survivor,” upon condition that they or one of them should make the testator’s homestead a place of permanent residence; upon the refusal of both to reside at the homestead, for two months, the real estate mentioned to go as directed in the next clause of the will, as if the devisees were dead. The “next clause” of the will directed that upon the death of the devisees for life, the real estate should go to “The Infidel Society in Philadelphia, hereafter to be mcorporated, and to be held and disposed of by them for the purpose of building a hall for the free discussion of religion, politics &c.” Held, that as the remainder to the Infidel Society was invalid, the grandmeces took an estate for fife only.
    2. If a testator in one part of his will devises an estate in fee simple and it appears from the language of subsequent parts of the will that he intended the devisee to take a smaller estate the first devise is limited accordingly. Where the subsequent provisions only affect qualities inseparable from the estate previously given they have no effect. Where, however, they show the nature of the estate and that what might be a fee under preceding terms of the will was intended to be an estate for life or for years they are to be given effect.
    Argued Dec. 14, 1909.
    Appeal, No. 281, Oct. T., 1909, by John T. Sinnott, executor and trustee under will of Mary A. Conover, deceased, from order of Q. S. Phila. Co., Aug. T., 1907, Docket No. 55, p. 208, sustaining exceptions to report of jury of view In re Boulevard from Second Street to Rhawn Street.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Exceptions to report of jury of view.
    The exceptions were, inter alia, as follows:
    The Land Title & Trust Company, substituted trustee under the will of Amanda James, deceased, excepts to the report of the jury of view in this case, filed April 17, 1909, for the following reasons:

      1. Because the jury failed to determine to whom the damages of $13,513, which they found had been caused to the “property marked on plan as belonging to Mary A. Conover and Annie E. James,” should be paid, as required by law.
    2. Because the jury reported that. said property was “claimed by Eli K. Price, Esq., on behalf of the Land Title & Trust Company, adm. c. t. a., substituted trustees under the will of Amanda James, deceased; also claimed by E. 0. Michener, Esq., and E. Spencer Miller, Esq., on behalf of John T. Sinnott, trustee under the will of Mary A. Conover, one-half, and the other half to Anna M. Cooper, M. Adelaide Jacoby and Henrietta Cooper, legatees and devisees under the will of Annie E. James,” without finding to which of the adverse claimants or their counsel the said damages should be paid.
    3. Because the jury did not award said damages to the Land Title & Trust Company, substituted trustee under the will of Amanda James, deceased, in accordance with the evidence of title presented to the jury, by which it appeared that the said property, which the jury found to have been damaged to the extent of $13,513, was vested in fee in Levi Nice by deed from Thomas Kimber, dated May 8, 1848, and recorded in Philadelphia in deed book A. W. M. No. 70, pp. Ill et seq., that the said Levi Nice died April 2, 1865, leaving a will proved in Philadelphia on March 12, 1866, and registered in will book No. 57, pp. 178 et seq., whereby he, inter alia, devised said property to his grandnieces, Mary A. Conover and Anna N. James, for their lives and the life of the survivor with remainder to the Infidel Society in Philadelphia, thereafter to be incorporated, in fee; that the Supreme Court of Pennsylvania in the case of Zeisweiss v. James, et ah, reported in 63 Pa. 465, decided that, the devise to the Infidel Society being void, the said remainder after the termination of the life estates of the said grandnieces, “descended t6 Amanda James, the niece of the testator,” as “his heir at law under the Intestate Act,” that the said Amanda James died December 23, 1889, leaving a will and codicils thereto proved in Philadelphia, December 27, 1889, and registered in will book No. 148, pp. 434 et seq., whereof she appointed Israel H. Johnson and Anson H. Hamilton executors and trustees, to whom letters testamentary were duly granted, and that upon their subsequent discharge the said the Land Title & Trust Company was on June 9, 1894, appointed by the orphans’ court for the county of Philadelphia substituted trustee under said will and codicils of Amanda James, deceased, whereupon the said property vested in it as such trustee in fee by the terms of said will and codicils.
    The court in an opinion by Magill, J., sustained the exceptions and awarded the fund to the Land Title & Trust Company, administrator d. b. n. c. t. a.

      Error assigned was the order of the court.

      Preston K. Erdman and E. Spencer Miller, with them Edwin O. Michener, for appellant.
    — The devise to the grandnieces in fee simple was not cut down to a life estate by the void restriction or limitation in favor of the Infidel Society “to be incorporated”: Philadelphia v. Girard Heirs, 45 Pa. 9; Gramling v. Totheroh, 2 Woodward, 106; Arnold v. Congreve, 1 Russell & M. 209; Kampf v. Jones, 2 Keen, 756; Rea v. Bell, 147 Pa. 118.
    The fee to the devisee, was not cut down because no one was qualified to take under the defeasance: Carstensen’s Est., 196 Pa. 325.

      Eli Kirk Price, for appellee.
    — The opinion of the Supreme Court in Zeisweiss v. James, 63 Pa. 465, should control the disposition of this case.
    If, however, the opinion of the Supreme Court in Zeisweiss v. James, 63 Pa. 465, is not conclusive of this case, that court’s construction of the will was right in principle and may well 'be adopted by this court: Sheets Est., 52 Pa. 257; Urich v. Merkel, 81 Pa. 332.
    The devise in remainder to the Infidel Society having been held void, an intestacy as to the remainder was created and the fee, subject to the life estates previously created, passed to Amanda James, the testator's niece and heir at law, under whose will the appellee is trustee: Mitcheson’s Est., 5 Pa. C. C. Rep. 99; Yard v. Murray, 86 Pa. 113.
    March 3, 1910:
   Opinion by

Henderson, J.,

We feel constrained to hold that the judgment in this case should be controlled by the decision in Zeisweiss v. James, 63 Pa. 465. True it is, as contended by the appellant, that the issue in that case was not between the heir at law and the' grandnieces to determine their respective titles, but the stipulation of the case stated involved an inquiry into their titles. It was agreed “ that if the court should be of opinion that Amanda James, Anna N. James and Mary A. Conno ver were entitled to an estate in fee simple in said premises, judgment should be entered for the plaintiffs,” etc. The niece and her daughters alleged, therefore, that they were the sole and absolute owners of the land which they had contracted to sell and in submitting the case stated they appealed to the court for judgment on the character of their title. The foundation of fact presented for the consideration of the court was the will of Levi Nice and the agreement that Amanda James was the sole heir at law of the testator. The decision that the devise to the Infidel Society was void did not determine the relative interests of the plaintiffs in the land to be conveyed, and when they asserted their power to sell and their right to compel the defendant to pay the purchase money it was in the line of logical inquiry to ascertain what interest they had and upon what title they stood as vendors. The interpretation of the will by the court in that case should have great weight, therefore, in determining the question now before us which directly involves the title of Amanda James as an heir at law of the testator and her two daughters as devisees. The sole question here is whether these devisees took a title in fee or a life estate, and on this point the decision holds their interest to be a life estate only and that, as there was no residuary clause in the will, the remainder passed to the heir at law because the devise to the Infidel Society was void.

If we agree with the learned counsel for the appellant, however, that the opinion of the court in that case went beyond the necessary limits of the questions submitted we think the opinion correctly interprets the intention of the testator and correctly states the reasons which should control the decision in this case.

In the second paragraph of the will the testator gives and devises to Mary A. Connover and Anna N. James, “All the property of which I may die possessed of in fee simple, and to their heirs and assigns, subject nevertheless to the following restrictions that is to say that the Real Estate of which I may die seized shall be held and enjoyed by them during all the term of their natural lives, or in case of the death of one of them then during the life of the survivor, upon the express condition that they shall make the homestead property upon which I now reside, and known as Oxford Lodge, as their place of permanent residence, or the residence of one of them, and it is my will that should they both refuse to so reside at said homestead residence for the space of two months then said real estate is to go as directed in the next clause of this my will that is to say in the same manner as if both of said devisees were.dead.” The next paragraph provides as follows: “ Immediately after the death of both of my said grand nieces, then it is my will that my real estate aforesaid shall go to and be held in feel simple by the Infidel Society in Philadelphia hereafter to be incorporated,” etc. It would be admitted of course that if the second paragraph ended with the devise in fee simple and to the heirs and assigns of the devisees there would be nothing for consideration here, but a very important part of the paragraph immediately follows which declares that the devise'is subject to restrictions; that is, it is not the broad and general and absolute devise indicated by the words already used by the testator. The restrictions referred to are limitations on the estate devised in two respects, (1) the land is to be held and enjoyed by the devisees during all the term of their natural lives only or the life of the survivor of them; (2) if the devisees or one of them fail to make the homestead property their or her place of permanent residence and both refuse to so reside for a space of two months then their estate is to cease and be determined as if both said devisees were dead and all the real estate is to go as directed in the next clause of the will. The next clause contains the devise to the Infidel Society. We find here, then, words in the second paragraph which, as we read them, clearly express the intention of the testator that the estate to be acquired by the devisees under the will shall be a life estate only determinable sooner by their refusal to occupy the homestead. This is set forth in language which is not obscure and which the ingenious argument of the appellant’s counsel has not persuaded us is susceptible of another interpretation. This intention is further exhibited in the provision in the same paragraph that if the devisees refuse to occupy the homestead residence the “real estate is to go to as directed in the next clause of this my will, that is to say in the ■ same manner as if both of said devisees were dead.” These words show that the thought of the testator was that their interest was a life estate and that if they refused to comply with his request to occupy Oxford Lodge such refusal should have the like effect in terminating their estate as if they were dead. In the third paragraph there is a devise in remainder which becomes effective on the death of the survivor of the life tenants or at an earlier period if they fail to comply with the condition as to residence. If this devise had been good it would probably not be contended that the estate in the first takers was greater than a life estate. It is a well-recognized rule of construction that a limitation over after the death of the first devisee is evidence of an intention that the devisee of the prior estate in order of enjoyment was intended to have not more than a life estate. The estate is not cut down by the gift in remainder but the latter is evidence of the testator’s intention as expressed in the second paragraph of the will. In determining what interest the testator intended to give his grandnieces the clause devising in fee simple must be considered in connection with the other parts of the will having reference to the same subject. It has frequently been held that if a testator in one part of his will devises an estate in fee simple and it appears from the language of subsequent parts of the will that he intended the devisee to take a smaller estate the first devise is limited accordingly. Where the subsequent provisions only affect qualities inseparable from the estate previously given they have no effect. Where, however, they show the nature of the estate and that what might be a fee under preceding terms of the will was intended to be an estate for life or for years they are to be given effect: 1 Jarman on Wills, 416; Sheets’ Est., 52 Pa. 257; Urich v. Merkel, 81 Pa. 332. The testator in giving a fee “ cannot strip it of its nature and properties.” He cannot withhold from such an estate qualities which the law recognizes as inseparable from it, but he can restrict a devise expressed in general terms to a less estate. The authorities cited by the appellant are not contradictory of the conclusions herein expressed. In Rea v. Bell, 147 Pa. 118, the case turned on what the court held to be a restriction of the right of alienation. It was conceded that the devisee had a right to convey to Henry Rea, Jr., and that the title so conveyed would be a title absolute in fee simple in the grantee. That part of the will which restrained any other alienation was void. That was a condition relative to the use, management or disposal of property distinctly given and it is restraints or limitations of such use, management or disposal which are forbidden: Philadelphia v. Girard, 45 Pa. 9. In Gramling v. Totheroh, 2 Woodward, 106, there was a residuary devise which carried the void legacy. In Dobbins’s Est., 221 Pa. 249, also the void bequest passed under a codicil.

The decree is affirmed.


text:
    Fineman v. Philadelphia Rapid Transit Company, Appellant.

      Negligence — Infante—Care of parents — Contributory negligence — ■ Case for jury.

    1. Where a parent permits a child of tender age to go on to the street, he is bound to observe reasonable care in guarding the child, dependent on the circumstances. What is a reasonable care is a question for the jury, and in passing upon such question the jury may consider the occupation and financial ability of the parent, the place of residence, the size of the family and the conditions surrounding the home.
    2. The question of the contributory negligence of the parents is for the jury where the evidence shows that the father was a tailor working in an upstairs back room, that the mother was attending to a baby in another part of the house, that a daughter between four and five years of age was with the housemaid on the ground floor; that the little girl slipped out into the street without the knowledge of either parent to go to a candy shop, and on her return was struck by a street car, and that only about five minutes had elapsed after the mother last saw the child and the arrival to her of the news of the accident.
    Argued Dec. 14, 1909.
    Appeal, No. 114, Oct. T., 1909, by defendant, from judgment of C. P. No. 2, Phila. Co., June T., 1907, No. 3,912, on verdict for'plaintiff, in case of Cilly Fine-man, by her father and next friend David Fineman, and David Fineman v. Philadelphia Rapid Transit Company.
    Before Rice, P. J., Henderson, Morrison, Orlady, Head, Beaver and Porter, JJ.
    Affirmed.
    Trespass to recover damages for injuries to a child between four and five years of age. Before Wiltbank, J.
    The facts are stated in the opinion of the Superior Court.
    Verdict for Cilly Fineman for $5,000 and for David Fine-man for $1,600. Defendant appealed.

      Error assigned was in refusing binding instructions for defendant.

      Thomas Learning, with him Bernard J. O’Connell, for appellant.
    — The general principle of law is well settled that a father cannot recover for loss of services of an infant child who is injured when allowed to be at large without a caretaker in the public streets: Sullenberger v. Traction Co., 33 Pa. Superior Ct. 12; Murray v. Ry. Co., 36 Pa. Superior Ct. 576.
    The presence of an unprotected child of tender years in the public streets is presumptive evidence of entire neglect, which stands unexplained in the present case. The law of agency as applied to master and servant makes the attribution of the nurse’s negligence to the father clear on general principles: North Penna. R. R. Co. v. Mahoney, 57 Pa. 187; Moore v. Logan Iron & Steel Co., 7 Atl. Repr. 198; Johnson v. Ry. Co., 160 Pa. 647; Faust v. P. & R. Ry. Co., 191 Pa. 420; Dryden v. R. R. Co., 211 Pa. 620.

      Harry A. Mackey, for appellees.
    — The case was for the jury: Lederman v. R. R. Co., 165 Pa. 118; Pittsburg, etc., Ry. Co. v. Pearson, 72 Pa. 169; Smith v. Ry. Co., 92 Pa. 450; Kay v. R. R. Co., 65 Pa. 269; Buente v. Traction Co., 2 Pa. Superior Ct. 185; Distasio v. United Traction Co., 35 Pa. Superior Ct. 406; Corpies v. Sand Co., 31 Pa. Superior Ct. 107; Weida v. Hanover Twp., 30 Pa. Superior Ct. 424; Addis v. Hess, 29 Pa. Superior Ct. 505.
    March 3, 1910:
   Opinion by

Henderson, J.,

The two assignments of error raise the same question and may be considered together. That question is, Does the contributory negligence of the plaintiff preclude a recovery for him in this action? The position taken by the appellant is that the plaintiff did not exercise care in preventing his child from going onto the street and that he was, therefore, guilty of contributory negligence. In support of this position the rule is invoked that when a parent perínits a child of tender years to run at large without a protector in a street traversed by cars and other vehicles he cannot recover because of his contributory negligence if his child be injured. This doctrine is firmly established in this state as is shown by numerous cases. The contributory negligence which relieves the defendant involves permission or inattention. Where a child is allowed by a parent to go at large in a place of known danger or is permitted to be there without care and supervision such conduct is negligence. The parent owes a duty to the child and to the public to exercise care. But what is the measure of this care? The burden resting upon the parent is thus stated in Sherman & Redfield on Negligence (5th ed.), sec. 72, “In an action by the parent or master, however, it is to be remembered that he must be actually in fault, in order to bar his recovery on the ground of his contributory fault. Where a parent or guardian has done all which can reasonably be expected of one in his circumstances, he is not debarred from recovery by the mere fact that he has not thrown as many restraints around his child for its protection as would be reasonably expected from parents having more means at their command.” There must be reasonable care dependent on the circumstances: Phila. & Reading R. R. Co. v. Long, 75 Pa. 257; Dunseath v. Traction Co., 161 Pa. 124; Johnson v. Railway Co., 160 Pa. 647. The care required is only such as persons of reasonable prudence of the same class and with the same means ordinarily exercise and deem adequate to protect their children from danger: Del Rossi v. Cooney, 208 Pa. 233. Who shall determine what is the reasonable prudence ordinarily exercised by parents in the same class with the plaintiff? Undoubtedly the jury, except in a very plain case. The occupation and financial ability of the parent, the place of residence, the size of the family and the general conditions surrounding the home may materially affect the question. Consider, then, the facts of this case: The plaintiff was a tailor carrying on a shop in a back room in the second story of the house in which he lived. The child which was hurt was between 'four and five years of age. In addition to her there was a baby in the house. A young girl was employed as a housemaid and to assist with the children. The accident occurred between twelve and one o’clock. The father was at work in his shop and had seen the little girl about ten minutes before the accident. The mother was upstairs giving attention to the youngest child. The little girl was downstairs with the maid. About five minutes after the mother last saw her word was brought to the house that the accident had occurred. Neither the father nor mother knew that she was out of the house. The evidence does not show where the maid was during the five minutes after the child left her mother and went downstairs, but it is not unreasonable to presume that she was engaged in duties connected with the kitchen at that hour of the day. The case is wholly destitute of evidence of any permission of the parents to their child to be on the street. She had gone a short distance from home to a candy store and was struck by the car as she was returning. On such a state of facts it cannot be declared as a matter of law that the father was guilty of contributory negligence. Must the child be every moment in the grasp or under the observation of the parent? And is his failure to notice for five minutes that she was out of the house to be charged against him as conclusive evidence of the want of the exercise of reasonable care? Nothing but the employment of a caretaker whose time should be wholly devoted to the children could meet this requirement when we consider the other necessary obligations resting on the parents, and such attention is out of the question in a great majority of cases. Sullenberger v. Chester Traction Co., 33 Pa. Superior Ct. 12, upon which the appellant relies grew out of an entirely different state of facts. The child in that case was sent by the parent on an errand to a store across the street and in returning was injured by a passing car. There was permission, therefore, for the child to be in a place of danger. In Johnson v. Railway Co., 160 Pa. 647, another of the cases cited, the mother was standing on the front porch when the child passed her and went onto the street, across one railway track and onto another where it was killed in the immediate view of its mother. Here there was knowledge by the mother of the absence of the child from the house and the conclusion would be irresistible that it was on the street with her permission. She knew the danger and that the child was exposed to it or at least ought to have known it as the whole occurrence was within the range of her vision. The distinction is clear between this class of cases and those in which a child escapes from the observation of the parent and from the premises. In Railway Co. v. Pearson, 72 Pa. 169, a child left the house and went into an alley to play with a little girl. The parents were informed of the fact and were satisfied that he was safe with her. The little boy ran away from his companion, however, went onto a street car track and was run over. It was held to be a question for the jury whether the parents should have been satisfied to leave the child at large with the little girl. Lederman v. R. R. Co., 165 Pa. 118, is a case where there was permission given by the mother to the child to go to a near neighbor’s on the same street to help his playmates sell shooting crackers. He was soon after killed at a street crossing. It was there held that it was a question for the jury whether the conduct of the mother constituted negligence. Our own cases are of like import. Henne v. Ry. Co., 1 Pa. Superior Ct. 311, was a case where a child passed out of the house through the kitchen where a servant was at work, out into the yard and through a gate onto the railroad track, and it was determined that the question was properly submitted to the jury. Buente v. Traction Co., 2 Pa. Superior Ct. 185, is another case where a child three years of age was left by the parent in the kitchen with other children in charge of a servant, who left them to go to a grocery. During the absence of the servant the child wandered out to the street and was killed. The question of contributory negligence was held to be one for the jury. The same conclusion was reached in Corpies v. Sand Co., 31 Pa. Superior Ct. 107, where the mother left the child in the house playing while she went across the street on an errand. These authorities are consistent with reason and experience and control the case we are considering. To hold that, if a father and mother occupied with the numerous daily cares of life neglect to observe for a few moments that .a child of tender years has got out of the house and to a place of danger, such conduct is conclusive evidence of negligence would be a hard rule and one which ought not to be established. Justice will be more satisfactorily administered by referring the question to a jury except in very clear cases. The able argument of the learned counsel for the appellant has not persuaded us that the court was in error in submitting the question of contributory negligence to the jury;

The judgment is affirmed.


author: Head, J.,

text:
    Keystone Wrapping Machine Company v. Bromeier, Appellant.

      Corporations — Subscription contracts — Evidence—Parol evidence.

    1. A subscriber to a subscription contract cannot change the character and effect of the paper by his own xmcorroborated oral testimony.
    2. A subscription to the stock of a corporation is not only an undertaking with the company, but with all the other subscribers. Such a contract is trilateral and even if fraudulent as between two of the parties it may be enforced for the benefit of the third.
    3. A person who subscribes to the stock of a corporation becomes a stockholder as soon as the company has accepted his offer, and it is immaterial that no certificate representing the shares subscribed for has been made out or delivered to him.

      Corporations — Foreign corporations — Registration.
    4. Where a foreign corporation brings an action of assumpsit in the coxmty of Allegheny, and in its statement of claim avers that it is a foreign corporation, and that it has duly registered in Pennsylvania, and this averment has not been denied in the affidavit of defense, the corporation is not boxmd at the trial affirmatively to prove its registration.

      Conflict of laws — Evidence—Stock subscription — Corporations.
    5. Where a foreign corporation sues in Pennsylvania on a stock subscription and the paper on its face shows that the agreement is to sell the stock for less than its par value, the burden is upon the plaintiff to show affirmatively that the law of the state in which the plaintiff was organized permitted a sale of stock on such terms. If no proof of foreign law is offered the court -will assume that the foreign law is the same as the Pennsylvania law, and that the contract is an illegal one.
    6. The law of another state -will be presumed to be the same as that of the forum, in the absence of evidence of the contrary.
    Argued April 15, 1909.
    Appeal, No. 43, April T., 1909, by defendant, from judgment of C. P. No. 2, Allegheny Co., Oct. T., 1904, No. 1,764, on verdict for plaintiff in case of Keystone Wrapping Machine Company v. Charles H. Bromeier.
    Before Rice, P. J./ Henderson, Morrison, Orlady, Head and Porter, JJ.
    Reversed.
    Assumpsit on stock subscription. Before Sharer, J.
    At the trial the plaintiff offered in evidence the stock subscription which was as follows:
    “Keystone Wrapping Machine Company.
    “Incorporated
    “ Capital Stock $500,000.00. Par Value of Shares $25.00 Each
    “Main Office, 32-33 Schmidt Building, Pittsburg, Pa.
    “J. H. Felmlee, President, Order No...........
    “J. C. Thoburn, Secretary, Shares 50.
    “U. G. Vogan, Treasurer. Amount 937.50
    “June 30th, 1903.
    “I, C. H. Bromeier hereby subscribe for fifty shares of the fully paid and non-assessable capital stock of the Keystone Wrapping Machine Company, at the price of eighteen and seventy-five 100 Bollara per share, for which I agree to pay as follows: Dollars being fifty per cent with this subscription, and the balance in two equal installments, two and four months from date.
    “Name C. H. Bromeier.
    “Address 204 Fifth Ave.
    “Lawrence, Johnson & Co.,
    “Financial Agents,
    “32-33 Schmidt Bldg., Pittsburg, Pa.
    “Note — Make all checks payable to Keystone Wrapping Machine Co.”
    Objected to as incompetent, irrelevant and immaterial, for the following reasons: First, because it does not show to whom it was made. Second, because it does not show what amount of money, if any, was to be paid, nor the terms of payment. Third, because if it is a subscription, it must be completely in writing, and cannot be added to by parole evidence. Fourth, because it does not agree with the copy sued on and attached to the statement. Fifth, because it is an illegal and ultra vires contract, being a sale of the original stock of the corporation for less than par value.
    Objection overruled.
    To which ruling defendant’s counsel excepts, and at his request exception is noted, and bill sealed. [4]
    Verdict and judgment for plaintiff for $1,176.55. Defendant appealed.

      Errors assigned amongst others were (1) binding instructions for plaintiff and (4) ruling on evidence, quoting the bill of exceptions.

      James G. Hays, for appellant.
    — Proper registration in this state was a condition precedent to plaintiff’s right to recover, and it was bound to prove it as a part of its case: Phoenix Silk Mfg. Co. v. Reilly, 187 Pa. 526; Steel Tube Co. v. Riehl, 9 Pa. Superior Ct. 220; Delaware River Quarry, etc., Co. v. Pass. Ry. Co., 204 Pa. 25; West Jersey Ice Mfg. Co. v. Armour & Co., 12 Pa. Superior Ct. 443; Chicago Bldg. & Mfg. Co. v. Myton, 24 Pa. Superior Ct. 16; Galena Mining, etc., Co. v. Frazier, 20 Pa. Superior Ct. 394.
    If the facts were such as to bring into the case the law of another state, the statutes should have been specially pleaded, and full compliance alleged: Spellier Electric Time Co. v. Geiger, 147 Pa. 399; Hanley v. Donoghue, 116 U. S. 1 (6 Sup. Ct. Repr. 242); Burnett v. R. R. Co., 176 Pa. 45.

      Charles A. Woods, for appellee.
    March 3, 1910:
   Opinion by

Head, J.,

The defendant having admitted the genuineness of the signature attached to the instrument sued on, it is clear he could not successfully assail the integrity of the paper by his own testimony alone. "It has been many times decided in cases of actions upon subscription contracts, that it is not competent to defeat such a written contract by 'setting up agreements made in parol with the agents who procure the subscriptions:” Railroad Co. v. Conway, 177 Pa. 364. As the defendant was not able to come up to the standard of the proof required by law in this respect, his effort by his testimony to change the character and effect of the paper he had signed was unavailing. It remained, therefore, as a binding obligation according to its tenor and effect. His failure in this respect destroyed the only defense on the merits disclosed in the several affidavits of defense filed. There remain to be considered several legal propositions urged upon us by the learned counsel for the appellant.

The agreement was written on a blank prepared for that purpose. It plainly in terms purports to be a subscription by the defendant for fifty shares‘of the capital stock of the plaintiff company. The objection that the paper does not disclose the amount of money which the defendant agreed to pay for the stock subscribed for we pass by without further comment than to say that no court, construing the writing, could fairly reach any other conclusion than that the defendant had subscribed for fifty shares of the capital stock at the rate of $18.75 per share, maldng the aggregate amount of his subscription $937.50.

The nature of such an agreement has been well settled. “A subscription to a joint stock is not only an undertaking to the company, but with all other subscribers. Such contracts are trilateral, and even if fraudulent as between two of the parties, they are to be enforced for the benefit of the third:” Graff v. Railroad Co., 31 Pa. 489; Railway Co. v. Bily, 11 Pa. Superior Ct. 144. We need not we think stop to consider the proposition that a subscriber to the stock of a company may withdraw his offer before it has been accepted, because in this case there was ample evidence, and it was uncontradicted, that the company had accepted the offer in a manner recognized by the law, so that the defendant had become in law and in fact a stockholder of the plaintiff company although no certificate representing the shares subscribed for had been made out or delivered to him. The certificate was not the thing subscribed for. It is but the convenient and usual evidence of the relation created by the act of subscription and its acceptance by the corporation: Cook on Stockholders (3d ed.), sec. 192.

This brings us to a consideration of the two questions more particularly relied on by the appellant. It is first argued that it having appeared that the plaintiff was a corporation organized under the laws of the state of West Virginia, it could not maintain an action on the contract in suit because it did not affirmatively prove as part of its case in chief that it had complied with the requirements of the law of this commonwealth permitting foreign corporations to do business in this state. The answer to this is twofold. The plaintiff had averred in its statement that it was "a corporation duly organized under the laws of the state of West Virginia and lawfully doing business in the state of Pennsylvania after having registered,” etc. This averment there was no attempt to deny in any one of the three affidavits filed. At the opening of the trial therefore the plaintiff offered in evidence certain averments in the statement not denied, and after the offer as originally made had been modified to meet a formal objection, it was admitted in this form without objection or exception, to wit, “The plaintiff is a duly organized corporation under the laws of the state of West Virginia and lawfully doing business in the state of Pennsylvania after having registered and complied with all the laws respecting foreign corporations.” With the record in that condition, there was nothing left for the plaintiff to support by evidence because it already had a record admission, for the purposes of trial, of the truth of the facts thus averred. We need not therefore even consider whether the mere act of taking the subscription, upon which the suit is founded, was doing business in the state of Pennsylvania within the meaning of our act so as to require a foreign corporation to register.

The last position taken by the plaintiff is that the paper sued on itself discloses that the plaintiff corporation had therein agreed to sell the shares of its stock mentioned at less than the par value of the stock, and that as a consequence the contract was illegal and cannot be enforced by the corporation. We think it would be true that a Pennsylvania corporation, contracting to sell its original capital stock, by-subscription, could not lawfully agree to sell and issue such stock at a price less than its par value. Such a plan would furnish an easy method of making a fictitious issue of stock forbidden by our constitution and statutes, and our courts could not lend their aid to a corporation seeking to enforce such an executory contract. But our general corporation laws are made for the government and control of Pennsylvania corporations, not those of other states or foreign countries. The record, as we have seen, discloses the fact that the present plaintiff is a corporation of the state of West Virginia. That being so it follows that its rights and restrictions in the sale of its stock are to be properly ascertained and measured by an examination of the laws of the state which issued the charter: Ball v. Anderson, 196 Pa. 86; First Nat. Bank of Pittsburg, Kansas, v. Darlington, 30 Pa. Superior Ct. 302.

If the laws of West Virginia permit such sales, under prescribed conditions, and the present plaintiff relied on them to validate its contract, it was incumbent on it to affirmatively prove, as part of its case, the existence of the laws and the performance of the necessary conditions. In the absence of such proof, our courts cannot take judicial notice of all of the different laws obtaining in jurisdictions outside our own. “The law of another state will be presumed to be the same as that of the forum, in the absence of evidence to the contrary:” Musser v. Stauffer, 178 Pa. 99; Musser v. Stauffer, 192 Pa. 398; Bollinger v. Gallagher, 144 Pa. 205.

Nor can we discover anything in the state of the pleadings to relieve the plaintiff of the burden of making such proof before it could ask a Pennsylvania court to administer the law of another state different from our own. Had it specially pleaded the existence of such a law and the due performance of any conditions prescribed by it, the operation of rules of court in force in many sections of the state, would have imposed on the defendant the necessity of making a specific denial, or accepting the facts so averred as established. But the plaintiff having failed to plead the foreign law we are unable to see how the defendant could be denied the right to avail himself of the legal defense he sets up. There is much in the printed briefs of counsel to warrant the belief that further litigation will produce no substantial benefit to the defendant who failed to make good the only defense on the merits set up in his affidavits. But we do not think it would be wise to permit such a consideration to lead us to establish a precedent that might hereafter be productive of much harm.

Judgment reversed and a venire facias de novo awarded.