text:
    Helenthal v. Geller.

      George T. Hambright and John E. Malone, for plaintiff.

      K. L. Shirk, for defendant.
    July 13, 1929.
   Groff, J.,

— This is an action of trespass, wherein plaintiffs seek to recover from defendant certain items of damage which defendant caused through the negligent operation of his automobile on Feb. 18, 1928.

In paragraphs 7, 8 and 9 of plaintiffs’ statement they set out the items of damage suffered by reason of defendant’s negligence. Defendant raises a question of law by .filing a motion and securing a rule to show cause why a more specific statement should not be filed, and gives five reasons why his rule should be made absolute. His second assignment of insufficiency is as follows:

“2. The statement in paragraph 7 avers damage to a number of flowers and plants, lumping a valuation therefor without any valuation on the specific articles or plants, so that the defendant is unable to determine the value placed by the plaintiff on any of the flowers, plants or articles claimed to have been destroyed.”

This is the only assignment that has virtue.

Paragraph 7 of plaintiffs’ statement reads as follows:

“7. By reason of said injuries to the plaintiffs’ greenhouse, the following plants therein were frozen, killed and destroyed before the plaintiffs, in the exercise of reasonable diligence, were able to repair said greenhouse and the heating plant thereof, viz.: 15,000 geraniums, 300 primroses, 220 cineranians, 1500 tulips, 175 ferns, 125 cigar plants, 25 lilies, 300 asparagus ferns, 200 sprengeri, 50 coleus, 60 begonias, 10 aspidistra, 25 English ivy, 7 flats early asters, 12 Rambler roses and other miscellaneous plants, and, in addition thereto, 3000 tulip bulbs contained in the bed between said greenhouse and the south side of said public road were ruined and destroyed, all of which were of the fair market value of Five Thousand Four Hundred and Ninety-six Dollars and Seventy-five Cents ($5496.75).”

Does that give defendant proper information to enable him to defend?

The Practice Act of May 14, 1915, § 5, P. L. 483, reads: “Every pleading shall contain, and contain only, a statement in a concise and summary form of the material facts on which the party pleading relies for his claim. . . .”

Section 9 of the same act says: “The statement of claim shall be as brief as the nature of the case will admit. . . .”

Section 20 of said act provides: “The defendant in the affidavit of defense may raise any question of law without answering the averments of fact in the statement of claim; and any question of law so raised may be set down for hearing, and disposed of by the court.”

We find that Monaghan, J., in Ellsworth v. O’Keefe, 26 Dist. R. 277, in construing the Practice Act above quoted, says: “The statement need not aver the value of each particular item of goods alleged to be lost, destroyed or withheld. The Practice Act of May 14, 1915, P. L. 483, does not change the practice in this respect previously existing, which was that in actions for damages for injuries caused by negligence, the plaintiff was not required to give a particular statement of the amount claimed for each separate item of damages.”

In Bilger v. Pennsylvania R. R. Co., 5 D. & C. 762, it was held that “the statement need not aver the value of each particular item alleged to have been destroyed, if it shows substantially the injuries done and the damage sustained.”

The above we believe to be a correct interpretation of the statute as ordinarily applied to claims for damages, and it applies to all damages claimed in the present case except those claimed in paragraph seven of the statement.

In that paragraph, plaintiffs claim for sixteen different varieties of plants and bulbs, giving the number of each kind destroyed, and then lump the value at $5496.75. It seems to us that it is an easy matter for plaintiffs to tell what each variety of plant and bulb mentioned in paragraph 7 is worth. We, therefore, decide the question of law raised in assignment No. 2, so far as paragraph 7 of plaintiffs’ statement is concerned, in favor of the defendant, and so far as all other assignments of insufficiency are concerned, the question of law is decided in favor of the plaintiffs.

The defendant is given fifteen days from the filing of this opinion to file an amended statement in accordance with this opinion.

Prom George Ross Eshleman, Lancaster, Pa.


source: Caselaw Access Project

author: Per Curiam,

license: Public Domain

text:
    Dobbins’s Estate.

      R. M. Remick (of Saul, Ewing, Remick & Saul), for trustee, and H. Edgar Barnes, for Kensington Hospital for Women, exceptants.

      Joseph P. Gaffney, contra.
    March 20, 1930.
   Per Curiam,

— A careful study of the adjudication and briefs of counsel leads us to the conclusion that the Auditing Judge has properly disposed of the question of law raised by these exceptions and for the reasons given by him,

The exceptions are dismissed and the adjudication confirmed absolutely.


author: Gordon, Jr., J.,

text:
    Commonwealth v. Roller.

      John H. Maurer, Assistant District Attorney, for Commonwealth.

      John Whitaker Lord, for defendant.
    March 28, 1930.
   Gordon, Jr., J.,

This is a motion for a new trial, in which a single but rather novel question is presented for our determination. During the summer of 1929, the defendant, who is a milkman, entered and robbed upwards of seventeen temporarily vacant houses on or in the neighborhood of his milk route. He was apprehended while attempting to enter one of the houses with a pass-key, and in his milk wagon was found the proceeds of a similar robbery which he had committed just before being arrested. The police, in searching his home later, discovered a large quantity of articles which he had stolen from the houses mentioned in the course of his systematic depredations, and subsequently relatives or friends produced articles given to them by him which had been similarly stolen from the houses robbed. After his arrest, he confessed to Captain Connolly, the head the Detective Bureau, to the various burglaries that he had committed. His confession was taken and recorded by a talking motion-picture machine, and the record thus made, which was offered in evidence and admitted over the objection of the defendant, was exhibited to the jury upon a sereen.

The admission of this talking motion picture, or “movietone,” as it technically known, is the only reason assigned for a new trial in the motion now before us for consideration. This raises the question of the admissibility of such evidence in a judicial proceeding. In determining that question there are two principal lines of consideration to be borne in mind — first, the adequacy of the authentication of the evidence offered; and, second, its general relevancy and admissibility.

Upon the first of these questions the Commonwealth presented the testimony not only of the photographers who took the pictures, but also that of expert witnesses, respecting the method by which such pictures are made and reproduced, and their reproductive accuracy upon the screen. This was shown to be fundamentally that of ordinary photography, both as to the pictures themselves and the sound-recording feature of the instruments used. Both the pictures and the sound are recorded on a long strip of film, the sound portion of the record being impressed photographically and synchronously along a narrow strip on one side of the film. The entire film may be several hundred feet in length, depending upon the length of time consumed in the making of the record, and for developing purposes it is necessary at times to cut the film. This results in the removal and loss of one picture or “frame,” the severed film being then respliced with that picture missing. This was done in the present case, in one instance, in the middle of the film. The loss of one picture in the developing process, however, does not interfere with the completeness or accuracy of the record made, because, in taking motion pictures, the successive photographs of which the motion picture consists are taken at the rate of sixteen a second, and the loss of one picture or frame would be unnoticeable and negligible in the visual reproduction and completeness of the record. The moving picture was shown to be, as already indicated, merely a series of distinct and separate photographs, each one complete in itself, and exhibiting the scene and relative postures and positions of objects in it at the instant of taking. As they are taken and reproduced, however, at the rate of sixteen frames per second, the exhibition upon the sereen in succession of the different positions of the subject results, because of the optical phenomenon of the persistence of vision, in an accurate and perfect reproduction of the motion of the subject during the time in which the exposures are made. The entire production thus possesses the same accuracy as the individual photographs comprising the film, with the added advantage of the resultant visualization of motion. The evidence overwhelmingly, and without contradiction, therefore, established the fact that the movietone offered in evidence scientifically reproduces the progressive actions and sounds that transpired within the range of the recording machine when the record was made with the same accuracy as the individual photographs reproduce the scene existing at the instant they were being taken.

With respect to the question of a successful tampering with such a film, it was shown that a moving picture contains advantages in regard to the ability to detect elisions or insertions of scenes or pictures — that is to say, to detect alterations in the continuity of the film — beyond that possessed by a single still photograph. The film has stamped upon it, at regular distances, letters or numbers indicating the sequence of the pictures, and any removal or insertion of sections of the film could readily be detected by a careful inspection and check of the sequence of the numbers. In addition, the removal from, or insertion of pictures in, such a film by the process technically known as cutting and splicing is easily detectable by visual and manual examination of the film itself, since the process of resplicing requires the superposition and cementing of one edge of the film upon the other, with a resultant thickening of it at that point. The danger of imposture from deliberate manipulation of the film is thus practically eliminated.

So far as the particular film offered in evidence in this case is concerned, the defendant’s own expert conceded, after thorough examination of it, that there had been no eliminations or insertions in the record, and that the film, in his judgment, accurately reproduced the scene taken. This scientific demonstration of the correctness of the film which was received in evidence, together with the testimony of witnesses, who were present when the scene was taken, and who participated in the mechanical work of taking it, that the film did truly and accurately represent the scene taken, sufficiently authenticated the film to make it admissible in evidence, if otherwise it was relevant and admissible.

This leads us to a consideration of the second line of inquiry involved in the admission of such evidence. What has already been said fully discloses the fundamental nature of movietone pictures and demonstrates that they are, in basic characteristics, no different, on the one hand, from ordinary photography, in regard to the visual picture reproduced, and, on the other hand, from phonographic records, in regard to the auditory recording of sound. The principles that underlie their admissibility into evidence, therefore, differ in no way from those governing the admissibility of still pictures and phonographic records.

When thus analyzed, the difficulty in admitting talking motion pictures largely vanishes, and the objections that are frequently advanced to their admissibility are seen to rest principally upon either a mistaken understanding of their nature, or, through a naturally conservative hesitation to adopt that which is new and untried, upon the fear, for which the evidence shows there is little ground, of being misled by imposture and fraud in the manufacture of so-called “fake” pictures. The latter feature of the objection to motion pictures is the one most frequently suggested and, it seems to us, the least worthy of consideration. It appertains to all forms of evidence, whether oral or physical. It is easier for a wicked man to lie under oath as to what he saw or did or heard, than for him to manufacture or alter a scientifically made moving-picture photograph. Even still photography is notoriously subject to faking. All material things which may have evidential value, from an ancient painting to a forged will, can, in the hands of a master craftsman, be faked as successfully as the motion picture. Yet all such evidence is admissible in a judicial proceeding, if witnesses, whose credibility is unimpeached, testify to its identity and correctness. The possibility of imposture by motion picture is not in itself, therefore, a ground for rejecting one which is adequately authenticated. The novelty of this form of evidence, together with the familiarity of the public with commercial exhibitions of moving pictures, in which, by trick photography and skillful cutting and splicing, impressions of acts seemingly impossible of performance are presented, seems to be the underlying reasons for the hesitation to receive such pictures in evidence. It must not be forgotten, however, that, although the scenes recorded in commercial moving pictures are created for the purposes of the picture, the picture itself faithfully records the reality of what occurred; it is merely the deliberate manipulation of the scene or film which produces the misleading impression. Of course, the novelty of the motion picture is no reason for rejecting it. The courts have always been hospitable to new inventions or discoveries of science, when their accuracy and reliability -as aids in the determination of truth are established. All knowledge purveys to the law, and from the domains of every art and science it draws the weapons by which it discovers truth and confounds error. The still photograph, the X-ray, the dictograph, the fingerprint, the phonograph, the microscope, and even the bloodhound, have all been used and received by judicial tribunals in the proof of matters depending upon evidence; and, in all such cases, the preliminary investigation was directed to the proper authentication of the evidence, and not merely to the question whether imposture might be successful.

Thus, in Moncur v. Western Life Indemnity Co., 269 Pa. 213, photostatic copies were admitted for comparison with admittedly genuine signatures. In Beardslee v. Columbia Township, the court said: “Photographs are competent evidence, and, when properly taken, are judicially recognized as of a high order of accuracy. See Udderzook v. Com., 76 Pa. 340. But in careless, or inexpert, or interested hands they are capable of very serious misrepresentation of the original. Before they are permitted to be used in the trial, therefore, there should always be preliminary proof of care and accuracy in the taking of them, and of their relevancy to the issue before the jury;” in C. & J. Electric Ry. Co. v. Spence, 213 Ill. 220, and Miller v. Mintun, 73 Ark. 183, X-ray photographs taken by an expert were held admissible; in People v. Jennings, 252 Ill. 534, the use of photographs of fingerprints discovered at the scene of the crime, by comparing them with enlarged photographs of fingerprints of the defendant, were permitted; so, also, upon the general admissibility of photographs, see United States v. Ortiz, 176 U. S. 422; Marcy v. Barnes, 16 Gray, 161; Kurzrok v. United States, 1 Fed. Repr. (2nd) 209. Again, in State v. Knight, 43 Me. 131, enlarged diagrams made by an expert of the appearance of blood in various conditions through the microscope were permitted to be used for the purpose of illuminating the witness’s testimony. Telephone conversations have been freely received in evidence upon a proper identification of the voice: Pennsylvania Trust Co. v. Ghriest, 86 Pa. Superior Ct. 71; Dunham v. McMichael, 214 Pa. 485; Olmstead v. United States, 277 U. S. 438; and X-rays, skiographs and radiographs have also been accepted as a means for proving facts in dispute: C. & J. Electric Ry. Co. v. Spence, supra; Wallace v. Pennsylvania R. R. Co., 222 Pa. 556. In this connection, an interesting article appears in the Scientific American, of January, 1928, at page 57, where a murdered man was identified by means of X-ray photographs of a skull. The dictograph, with its advantages in reporting conversation, has also been recognized as a legitimate agency for the discovery of truth: State v. Minneapolis Milk Co., 124 Minn. 34; Com. v. Petrilli, 2 Western Law Jour. 1.

This very incomplete review of the scientific agencies that have been recognized and received as valuable in judicial investigation is sufficient to indicate the receptive attitude of the law toward any reliable mechanism which scientific knowledge has produced for the recording or discovery of facts.

Turning now to those mechanical contrivances most nearly associated with the movietone, we find that phonographic records have been received in evidence. Thus, in Boyne City v. Anderson, 146 Mich. 328, which was a condemnation proceeding, an objector to the laying of tracks along a certain street in Boyne City offered in evidence a phonographic record of sounds claimed to have been made by the operation of trains in proximity to a hotel. In affirming the admission of this record, the court said: “With proper proofs, such as were fully given in this case, to justify the introduction of the instrument as a substantially accurate and trustworthy reproducer of the sounds actually made and testified to, we think its use legitimate. Communications conducted through the medium of the telephone are held to be admissible, at least in eases where there is testimony that the voice was recognized. . . . The ground for receiving the testimony of the phonograph would seem to be stronger, since in its case there is not only proof of the human witnesses of the making of the sounds to be reproduced, but a reproduction by the mechanical witness of the sounds themselves.” See, also, Loring v. Boston Elevated R. R. Co., referred to in Wigmore on Evidence (supplement, section 795), 10 Am. & Eng. Ann. Cas. 285, 22 Corpus Juris, 766.

Photography and the mechanical reproduction of sound being both admissible in evidence, we see no reason for refusing to accept the combination of the two mediums, when the results are shown to be accurate and reliable. Up to the present time, there are very few reported decisions dealing with the admissibility of motion pictures. It may be well, however, to review briefly the few cases that exist, in order to note the trend of the modern judicial mind upon the subject. In Pandolfo v. United States, 286 Fed. Repr. 8, the trial court was sustained in refusing to admit a motion picture of a manufacturing plant in operation. That case was a prosecution for using the mails in furtherance of a scheme to defraud. The defendant offered in evidence a motion-picture photograph of a manufacturing plant in operation to rebut the contention of the Government that he had no plant in existence. It was testified that, in 1918, the picture was prepared for advertising purposes, and the photographer testified that the film reproduced conditions as he found them. On the trial, the defendant offered to exhibit this film to the jury. Although indicating that, if photographs were admissible, films should be also, the lower court refused to receive the one offered, upon the ground that it was not accurate. On review, the upper court said: “Under the circumstances disclosed, we cannot say that there was error in this ruling. . . . The fact of operation, and the manner thereof, were not at all in dispute, and the question of permitting the moving picture to be displayed before the jury was so far within the discretion of the court that, while it might not have been error to have received it, it was not error to exclude it.”

In De Camp v. United States, 10 Fed. Repr. (2nd Series) 984, where a somewhat similar offer of evidence to that made in the Pandolfo case was rejected, the Court of Appeals of the District of Columbia approved the rejection, saying: “Testimony was produced on behalf of the defendants, tending to show the process of manufacture of glass caskets of different sizes and in all stages, and with this evidence before the jury it was for the trial court to determine whether a photograph or moving picture, such as was offered, was sufficiently verified as a proper representation of the process of manufacture as it actually existed. This court will not assume, on this record, to determine this question, and if, as contended by counsel for appellant, the testimony relative to the process of manufacture completely verifies the picture, then he cannot successfully claim injury from the refusal of the court to repeat this testimony to the jury by a moving-picture display of the facts already in evidence. This is not the case of a photograph used to show the relative positions of different objects or to reconcile disputed issues of fact. The proofs as to conditions of manufacture at the Oklahoma plant lyere testified to by witnesses presumed to be familiar with existing conditions; hence the admission of the motion pictures would have amounted to nothing more than a spectacular display of a situation based upon facts in evidence.”

In Feeney v. Young, 191 N. Y. (App. Div.) 501, which was a suit to recover damages for the public exhibition of a moving picture of a patient while being operated upon, the trial court rejected the picture, apparently holding that the evidence of eye-witnesses who had seen the production and identified the individual being operated upon in the picture as the plaintiff was the best evidence. The reasoning by which this conclusion was reached seems to us to lose sight of many of the fundamental principles underlying the admission of photographs and evidence of this character, and it is probable that, since the small sije of the pictures on the film itself rendered them practically valueless for identification purposes, the controlling reason for the court’s action was a want of mechanical means at the time to reproduce the enlarged picture on a screen.

In a short article in 2 N. Y. Law Rev. 96, 160, it is reported that in the Mooney bomb outrage in San Francisco a moving picture of the progress of a parade was admitted in evidence, although the appellate court did not pass upon the point of its admissibility.

In Gibson v. Gunn, 206 N. Y. (App. Div.) 464, the plaintiff was permitted to offer in evidence a motion picture of his vaudeville performance prior to the occurrence of the accident which was the basis of the suit, it being his contention that his possession of an artificial limb before the accident did not impair his earning capacity as an actor. The reviewing court held the admission of the evidence to be error, because it was hearsay and incompetent and tended to make a farce of the trial, the plaintiff’s ability as a vaudeville performer not being the issue.

In connection with these authorities, it may be well to note that the question under consideration has not escaped the attention of writers on legal subjects. In an article in 15 Ill. Law Rev., at page 123, Professor Wigmore discussed the evidential value of motion pictures and suggested an addition to his treatise on Evidence. After discussing the admissibility of moving pictures of reconstructed scenes, he says: “But where the moving picture is taken without artificial reconstruction, i. e., at the time and place of the original event (a possibility not infrequent), it lacks the above element of weakness and is entitled to be admitted on the same principles as still photographs. The only circumstance then to be considered is that in a few matters, such as speed and direction of human movement, or relative size in the focus, the multiple nature of the films requires sjpecial allowances of error to be made; but these allowances are no different in kind from the elements of error inherent under certain conditions in still photographs.”

See, also, the valuable and exhaustive reference to authorities upon this and analogous subjects by William B. Rudenko in the University of Pennsylvania Law Review of February, 1930, page 566, to which the writer acknowledges indebtedness for much of the material here used.

As pointed out by Professor Wigmore in the article quoted above, much can be said against the reception of a motion picture of a reconstructed scene. Such a picture is no more than an argument or visual statement of the contention of the party offering it, as to what actually occurred at a time and perhaps a place different from the act under consideration, and by its apparent verisimilitude is likely to confuse the minds of jurors and lead them to view the reconstructed scene as the reality, notwithstanding cautions by court or counsel to the contrary. Such a picture would thus receive more weight than it would be entitled to. Where, however, the picture presented is not that of a reconstructed scene, but of the occurrence under investigation, there seems to be nothing in reason or authority which would prevent its acceptance in evidence. If true, its very impressiveness would give to it an .inherent weight that its accuracy would justify; and, in our judgment, it would go far, in the case of the photographing of confessions, to negative the contention, so often falsely made, that a confession was secured by force and coercion, or to disclose circumstances indicating the presence of such impropriety, if it existed. The written and oral confession is constantly attacked by charges that it was improperly procured by violence and intimidation. When that is the case, the jury has nothing, in the absence of evidence of the kind under consideration, but the word of the witnesses on the one side, and the other as to the dispute. While it may be conceded that violence may precede a confession without appearing in the motion picture, its absence, at least at the time the confession is actually made, can be definitely established by such a picture. The talking motion picture also furnishes a visual and auditory record of those natural gestures, mannerisms and tones of voice that so graphically illuminate the import and sincerity of a confession. These are the elements of strength which the mere production of a paper or the oral testimony of witnesses lack, and in honest and responsible hands would, it seems to us, lend strength and confidence to confessions of all kinds.

In conclusion, it may be noted that, apart from the confession offered in evidence in this case, the testimony overwhelmingly established the guilt of the defendant. Stolen property from each of the houses burglarized was found either in the defendant’s possession or that of others who derived possession of it from him, or from places where he had disposed of it, and to which he directed the authorities in their search. This alone would have required his conviction, and, although a jury may not consider his failure to take the witness-stand and deny his guilt, a reviewing court cannot entirely overlook the implication arising from his failure to answer the charges against him. We, therefore, conclude that the trial court did not err in admitting the movie-tone confession offered in evidence in the case. Accordingly, the motion for a new trial is overruled.


author: Houck, J.,

text:
    Murphy v. Lehigh Coal and Navigation Company.

      Roger Dever, for plaintiff.

      George M. Roads and P. B. Roads, for defendant.
    Dec. 23, 1929.
   Houck, J.,

— The referee awarded the claimant compensation for disability resulting from injuries sustained on Sept. 10, 1928. The defendant appealed to the Workmen’s Compensation Board, which reversed the award on the ground that the claimant was not in the course of his employment at the time of the accident. Thereupon the claimant appealed to this court, assigning three exceptions to the action of the compensation board. As we view it, the appeal involves a question of law only. When reversing the referee, the board affirmed his findings of fact, but set aside his second conclusion of law. As the record now stands, the referee’s findings of fact are unchallenged.

The claimant was employed as a coal miner and was injured by a premature explosion of dynamite. The referee found, inter alia, as follows: “(2) The claimant had drilled a hole near the roof of the tunnel in which he was working, had charged it with dynamite and had taken the wire connected with the exploder in this charge and hooked it onto the trolley wire that ran along the roof of the tunnel, with the thought of thus discharging the shot. There was no explosion, however. He then hung the wire on a nail driven into the rib and went back to the hole, took the ground wire there attached to the exploder, scraped it off with his finger and placed the wire down again. About this time the explosion occurred, injuring him on the back. It is not known what set off the shot.” And “(6) It was a standing rule of the defendant company that no shots should be fired through the instrumentality of a trolley wire. Exploding of a shot by battery was the rule in this mine.” There is no finding of fact that the accident was caused by a violation of law by the claimant. It is admitted by him, however, that the explosion occurred while he was attempting to fire a shot in violation of the rules of the company. From the referee’s findings of fact, unchallenged, and hence binding upon us, it may be conceded that at the time of the accident the claimant was violating a rule of his employer. The question is then presented whether this violation took him out of the course of his employment. If it did, he is not entitled to compensation. If it did not, he is.

The claimant’s contention is that his act did not constitute a violation of law, and, at most, was wilful misconduct which did not break the continuity of his employment. The defendant contends that the rule violated by the claimant was promulgated by the employer in obedience to the provisions of section 4 of the Act approved June 1, 1915, P. L. 712; that this rule is further authorized by section 17 of the Act approved June 8, 1901, P. L. 535, and section 15 of the Act approved May 3, 1905, P. L. 363; and that since the rule was one enacted for the safety of employees and under direct statutory authority, the case falls within the rule of disobedience of a direct statutory requirement.

We are thoroughly satisfied that the rule in question, prohibiting the firing of shots from a trolley wire, is a proper rule adopted for the protection of employees and authorized by statute, but we are not convinced that the rule has the same force and effect as a statutory prohibition, the violation of which is made a misdemeanor. The Anthracite Mine Law, unlike the Bituminous Act, does not make the violation of a rule of the employer a misdemeanor (see Kubes v. Hillman Coal and Coke Co., 96 Pa. Superior Ct. 340, where the pertinent sections of the Bituminous Act are discussed). The statutes referred to above, relied upon by the defendant to give the rule in question the effect of a statutory enactment, do not accomplish that result. Section 17 of the Act of 1901 simply gives the mine inspector the right to make suggestions providing for the safety of persons employed in a mine. Even had it been found as a fact that the mine inspector suggested that firing be by battery only, there is nothing in the act to give the suggestion the force and effect of a statute. The same comment applies to the Act of 1905. This act makes it the duty of the mine inspector to see that every necessary precaution is taken to secure the safety of workmen and that the provisions of the Anthracite Mine Law are observed and obeyed. The Act of 1915 provides that the owner, operator and superintendent of a mine shall use every precaution to insure the safety of the workmen in all cases, whether provided for in the Anthracite Mine Act of June 2, 1891, P. L. 176, or not. Consequently, since the rule does not have the effect of a statutory requirement, the violation of which is a misdemeanor, this case does not involve the question of the commission of an illegal act, and cases holding that such an act takes the employee out of the course of his employment are inapplicable.

The case must rest upon the bare proposition that the employee’s violation of a rule took him out of the course of his employment. The board, in reversing the referee, relied upon Shoffler v. Lehigh Valley Coal Co., 290 Pa. 480. In that case, by way of dictum, the Supreme Court said “ ‘course of employment’ does not include ... (c) an act contrary to the positive orders of the employer. . . . The employee, by his own act, breaks the continuity of employment, and becomes, for that time, a trespasser.” Under this pronouncement, of course, the claimant in the present case would not be entitled to compensation. Exactly what the Supreme Court meant, however, has been indicated in Dickey v. Pittsburgh & Lake Erie R. R. Co., 297 Pa. 172. Justice Kephart, referring to the excerpt from the Shoffler case quoted above, said: "It was not our intention to deny recovery under the Workmen’s Compensation Act for all violations of positive orders, and the cause mentioned in clause (c) as taking the employee out of the course of employment must be considered in connection with the facts in the cases to which it relates. . . . Care must be taken not to confuse the principle enunciated with negligent acts (Gurski v. Susquehanna Coal Co., 262 Pa. 1), wilful misconduct (Waite v. Pittsburgh Limestone Co., 78 Pa. Superior Ct. 7), or those acts in disregard of positive orders of the employer, where the employee’s duties included the doing of the act that caused the injury, or where his duties were so connected with the act that caused the injury that, as to it, he was not in the position of a stranger or trespasser. The violation of positive orders under these circumstances does not prohibit compensation for injuries sustained therefrom.” The opinion proceeds to point out that the violation of rules declared against are those concerning instrumentalities, places or things about or on which the employee has no duty to perform, and with which his employment does not connect him. Illustrating the different classes, the Supreme Court says that an engineer running through a red signal, while guilty of wilful misconduct, is, nevertheless, in the course of his employment. But a brakeman, who has no duty to perform on the engine, who gets upon it and starts it, contrary to the rules of the company, is not in the course of his employment. It seems, therefore, that a violation of positive orders does not break the continuity of employment unless the violation of the rule or order involves stepping aside from the employment and doing something foreign thereto. In other words, in the absence of a criminal act, wilful misconduct or disobedience of rules does not break the continuity of employment if the employee is actually performing the duties he was engaged to perform. Such an employee is entitled to compensation because he is in the course of his employment, and his right to recover is expressly given in the Compensation Act.

In order to determine the legal question involved in this appeal, it is only necessary to refer to the referee’s unchallenged findings of fact to ascertain whether the employee’s act, in the doing of which he was injured, was so connected with his duties that, as to that act, he was not in the position of a stranger or trespasser. A coal miner is required to fire shots, and the claimant in this case was attempting to fire a shot when injured. The manner in which he did the act may have been negligent, and certainly it was done in disobedience of positive orders, but it was not a criminal act. Hence, although the claimant was guilty of wilful misconduct, nevertheless, he was in the course of his employment when injured. He was not in the position of a stranger or trespasser. His duties included the doing of the act that caused the injury. It follows that he is entitled to compensation.

The action of the Workmen’s Compensation Board is reversed, the award of the referee is reinstated and affirmed, and the prothonotary is directed to enter judgment in favor of the claimant and against the defendant in the sum of $231.11, covering compensation to Jan. 9, 1929, compensation thereafter to be paid in accordance with the referee’s award.

From M. M. Burke, Shenandoah, Pa.


author: Schnader, Special Dep. Att’yGen.,

text:
    Settlement of Taxes.

      Jan. 27, 1930.
   Schnader, Special Dep. Att’yGen.,

— We have your request to be advised regarding the procedure subsequent to the settlement of taxes in cases in which the settlements were made prior to July 1, 1929.

Your inquiry arises out of the following fact situation:

The Fiscal Code (Act of April 9, 1929, P. L. 343) became effective in part on June 1, 1929, and in part on July 1, 1929. Article v became effective on the former date and the remainder of the act on the latter.

Prior to the passage of The Fiscal Code, the procedure subsequent to the settlement of taxes was governed by certain sections of the Act of March 30, 1811, P. L. 145, and of The Administrative Code of 1925.

Section 11 of the Act of March 30, 1811, provided for the taking of appeals from settlements made by the Auditor General and State Treasurer, the appeal to be taken to the Court of Common Pleas of Dauphin County, but filed with the Auditor General and transmitted by him to the clerk of the court to he entered of record. With the appeal the act required that a specification of objections to the settlement be filed and that security be entered before one of the judges of the Court of Common Pleas “within ten days next after such appeal.”

Section 16 of the same act provided that “the Auditor General and State Treasurer, at the request of each other or of the party, shall revise any settlements made by them except such as have been appealed from or which by any other proceedings have been taken out of their offices, if such request be made within twelve' months of the date of settlement, but after that time no settlement on which a final discharge has been granted shall be opened, but the same shall be quieted and finally closed.”

The Act of June 9, 1911, P. L. 738, amending the Act of April 8, 1869, P. L. 19, authorized the Auditor General, the State Treasurer and the Attorney-General “to revise any settlement made with any person or body politic by the Auditor General, when it may appear from the accounts in his office, or from other information in his possession, that the same has been erroneously or illegally made.” The three officers named were authorized to resettle the account “according to law and to credit or charge, as the case may be, the amount resulting from such resettlement upon the current accounts of such person or body politic.”

Section 1102 of The Administrative Code of 1923 (Act of June 7, 1923, P. L. 498) transferred to the Board of Finance and Revenue, created by it, the powers which the Act of 1911 authorized the Auditor General, the State Treasurer and the Attorney-General to exercise, and re-enacted them without substantial change.

The Fiscal Code repealed, as of July 1, 1929, sections 11 and 16 of the Act of March 30, 1811, P. L. 145. The Administrative Code of 1929 (Act of April 9, 1929, P. L. 177) repealed, as of June 1, 1929, section 1102 of The Administrative Code of 1923.

In lieu of the repealed provisions, The Fiscal Code provided in section 1102 that within ninety days after the date of any settlement — “date of settlement” being defined in section 1 (a,) — a petition for resettlement may be filed with the department which made it; in section 1103, that within thirty days after notice by such department of the action taken in disposing of a petition for resettlement the party aggrieved may file a petition for review with the Board of Finance and Revenue; in section 1104, that within sixty days after the decision of the Board of Finance and Revenue, upon a petition for review, an appeal may be taken to the Court of Common Pleas of Dauphin County, the appeal to he lodged with the Department of Justice, which must transmit it to the clerk of the Court of Common Pleas of Dauphin County; in section 1105, that within one year after the date of settlement or date of resettlement of any account, except such as have been appealed from, the department which made the settlement may by petition request the Board of Finance and Revenue to authorize a resettlement thereof “upon the ground that it appears from the accounts or other information in the department’s possession that the settlement or resettlement was erroneously or illegally made;” in section 502, that “upon the presentation to it of a petition for review, as hereinafter provided,” the Board of Finance and Revenue shall have power “to revise any settlement made with any person, association, corporation, body politic or public officer by the Department of Revenue or by the Department of the Auditor General and the Treasury Department;” and in section 503, that within certain time limits, the Board of Finance and Revenue shall have power to hear petitions for the refund of taxes and other moneys paid to the Commonwealth “as the result of an error of law or of fact or of both law and fact,” and if the petition be allowed “to refund such taxes ... or other moneys out of any appropriation or appropriations made for the purpose, or to credit the account of the person, association, corporation, body politic or public officer entitled to the refund.”

Section 3 of The Fiscal Code provides that all rights, powers and duties transferred by the Code in whole or in part to a department, board, commission or officer not previously charged with the performance of such functions “shall be vested in, exercised by and imposed upon the départment, board, commission or officer to which or to whom the same are transferred by this act, and not otherwise.” It also provides that every such act shall have the same legal effect as if done by the agency formerly to perform it, and that “every person, association or corporation shall be subject to the same obligations and duties, but no others, and shall have the same rights” as if the rights or powers of the new administrative agency had been exercised by the predecessor agency.

Section 5 saves “all petitions, hearings and other proceedings pending before any department, board, commission or officer, and all prosecutions and other legal proceedings of every kind and description” begun by a department, board, commission or officer and not completed upon the effective date of The Fiscal Code, such proceedings to “continue and remain in full force and effect notwithstanding the passage of this act.” It also specifically provides that the Department of Revenue shall settle and collect taxes upon reports filed with the Department of the Auditor General prior to the effective date of the Code with the same force and effect as if such settlements and collections had been made by the Auditor General and State Treasurer under existing laws, “but, upon the settlement of any such tax, the procedure for resettlement, review, appeal and collection shall be that provided by this act.”

Section 201 provides that: “Except as otherwise in this act provided, the Department of Revenue shall exercise the powers and perform the duties heretofore exercised and performed by the Auditor General, the State Treasurer, the Insurance Commissioner and all other departments, boards and commissions ... in the settlement of taxes, and the collection of taxes, license fees and other moneys due the Commonwealth.”

Section 501 provides that, “subject to any inconsistent provisions in this act contained,” the Board of Finance and Revenue “shall continue as the successor to the board created by the Act approved the eighth day of April, one thousand eight hundred and sixty-nine, ... its amendments and supplements.”

Under section 1802, the provisions of The Fiscal Code, “as far as they are the same as existing laws, shall be construed as a continuation of such laws and not as new enactments.”

From this detailed recital of the statutory law relevant to a consideration of your inquiry, it is apparent that, as far as concerns jurisdiction to resettle taxes and to hear and determine appeals from settlements, The Fiscal Code has not effected any changes, except that the jurisdiction of the Auditor General and State Treasurer to settle and resettle taxes has been transferred to the Department of Revenue, subject to approval by the Department of the Auditor General; but the procedure to be followed in seeking a resettlement or taking an appeal has been modified radically.

Your board continues to have the power to resettle taxes, conferred upon it by the Acts of 1869, 1911 and 1923, but the power can be exercised only after petitions for resettlement or for review have been filed as provided in sections 1102 and 1103 of The Fiscal Code.

The Department of Revenue as the successor of the Auditor General continues to have the power to resettle taxes, but only if either (a) a petition for resettlement has been filed with it within ninety days, as provided in section 1102 of The Fiscal Code, or (b) if your board, acting under section 1105, has authorized a resettlement.

The Court of Common Pleas of Dauphin County continues to have jurisdiction to hear and determine appeals from tax settlements, but an appeal can be taken only after the appellant has filed a petition for resettlement under section 1102 and a petition for review under section 1103; and he must file his appeal through the Department of Justice instead of through the office of the Auditor General.

To what extent are these procedural changes applicable in the case of tax settlements made prior to July 1, 1929, when The Fiscal Code became effective, and sections 11 and 16 of the Act of March 30, 1811, were repealed; and what was the effect of the repeal on June 1, 1929, of section 1102 of The Administrative Code of 1923?

In considering these questions, there are several well-settled principles of statutory construction which must be kept in mind.

“Legislation which affects rights will not be construed to be retroactive unless it is declared so in the act. But where it concerns merely the mode of procedure, it is applied, as of course, to litigation existing at the time of its passage:” Kuca v. Lehigh Valley Coal Co., 268 Pa. 163, 166, citing Kille v. Reading Iron Works, 134 Pa. 225, 227; Lane v. White, 140 Pa. 99, 101; Laukhuff’s Estate, 39 Pa. Superior Ct. 117, 119; Long’s Appeal, 87 Pa. 114.

“When a proceeding founded upon one act of assembly is commenced and, while pending, another act is passed taking away the jurisdiction, the proceeding falls; but where the remedy only is changed, it continues under the forms directed by the new act, where it applies:” Bradford County v. Beardsley, 60 Pa. Superior Ct. 478, 483, citing Hickory Tree Road, 43 Pa. 139; Com. v. Robb, 14 Pa. Superior Ct. 597; Com. v. Mortgage Trust Co., 227 Pa. 163.

In the case last cited Mr. Justice Elkin said, at page 183: “We think the sound rule is, especially as to acts which provide for the assessment and collection of annual taxes, that a statute repealing former laws on the same subject does not abolish all rights and remedies under the repealed acts, if the legislative intent not to abolish them appeared.”

In Hickory Tree Road, 43 Pa. 139, 143, Chief Justice Lowrie said: “And the distinction adopted by us, that proceedings fall on the repeal of the jurisdiction, and continue on the repeal or change of the remedy, appears often in our books as one of undoubted validity.”

“The repeal of a statute will not operate to impair rights vested under it:” Keystone S. B. & L. A. v. Butterfield, 74 Pa. Superior Ct. 582, 585. See, also, Tiegel v. Love, 61 Pa. Superior Ct. 149, 157; Philadelphia v. Mason, 37 Pa. Superior Ct. 478, 487; Scranton v. Stokes, 28 Pa. Superior Ct. 434.

Before applying these principles, we desire to point out that:

(a) As to the procedure to be followed in settling taxes upon reports filed with the Auditor General, but not settled prior to July 1, 1929, section 5 of The Fiscal Code leaves no room for doubt. These settlements are to be made by the Department of Revenue, but “the procedure for resettlement, review, appeal and collection shall be that provided by this act.”

(b) As to all matters arising in connection with any tax settlement not concluded by payment, regardless of the date of the settlement, the Department of Revenue has displaced and been substituted for the former taxing officers, and has the right to take any steps and perform any acts which the former officers would have had the right to take if The Fiscal Code had merely modified procedure without transferring functions. (See sections 3, 5 and 201 of The Fiscal Code.) Accordingly, in our opinion, when the Legislature, in section 1102, provided that “within ninety (90) days . . . the party with whom . . . the settlement was made, may file, with the department which made it, a petition for resettlement,” and, in section 1105, that “the department which made the settlement may, by petition, request the Board of Finance and Revenue to authorize a resettlement,” it intended the underscored expressions to include the Department of Revenue, successor to the Auditor General, as far as settlements made prior to July 1, 1929, are concerned.

(c) The repeal of section 1102 of The Administrative Code of 1923 by The Administrative Code of 1929 did not affect the continuous existence of the Board of Finance and Revenue (section 202 of The Administrative Code of 1929), and neither The Fiscal Code nor The Administrative Code of 1929 transferred to any other agency any function previously exercised by the Board of Finance and Revenue. The new legislation merely modified the procedure for bringing before the board requests for resettlement and (sections 503 and 1105 of The Fiscal Code) substantially enlarged the jurisdiction.

(d) All pending proceedings in connection with the settlement and collection of taxes are expressly saved by section 5 of The Fiscal Code. Specifically included are “legal proceedings of every kind and description.”

With these observations in mind, let us apply the principles of statutory construction previously stated.

We advise you that:

1. Appeals to the Court of Common Pleas, taken prior to July 1, 1929, are not affected by the passage of The Fiscal Code. The court has the same jurisdiction which it formerly enjoyed, and, in any event, section 5 clearly evidences the Legislature’s intention not to interfere with any such pending proceedings.

2. Petitions for resettlement filed with the Auditor General prior to July 1, 1929, may be concluded by the Department of Revenue, with the approval of the Department of the Auditor General, under section 5 of The Fiscal Code, as the function of acting upon such petitions has been transferred to the Department of Revenue, acting, however, with the approval of the Department of the Auditor General (section 1102). However, when a decision has been rendered upon any such petition, the taxpayer, if dissatisfied, must file a petition for review under section 1103. He cannot appeal to the court without this intermediate proceeding.

3. Petitions for resettlements filed with the Board of Finance and Revenue prior to June 1,1929, may be disposed of as formerly, but when the board has acted, there is no appeal from its decision, under section 1104. Such petitions were not petitions for review; and prior to the passage of The Fiscal Code, the law did not provide an appeal from the action of the board on a petition for resettlement.

4. The right to file petitions for resettlement with the Board of Finance and Revenue expired on June 1, 1929, after which date all such petitions were required to be filed with the department which made the settlement. (In another opinion rendered today, we are advising you fully as to the disposition of petitions for resettlement erroneously filed with your board since June 1, 1929.)

5. The Department of Revenue, acting as the successor to the Auditor General, does not have any jurisdiction to entertain a petition for resettlement filed after July 1, 1929, unless such petition was filed within ninety days after the date of settlement, as required by section 1102 of The Fiscal Code; but it may, acting ás successor to the former settling officers, petition the Board of Finance and Revenue, under section 1105, for permission! to make a resettlement, if the petition be filed within one year after the date of settlement or prior resettlement.

6. With respect to settlements made by the Auditor General and State Treasurer within ninety days of July 1, 1929, the procedure available to the taxpayer was as follows:

(a) He could appeal, under the Act of 1811, within sixty days of the. date of settlement, if the appeal was taken prior to July 1, 1929. Having appealed, the Court of Common Pleas of Dauphin County has the right to determine the ease as prior to the passage of The Fiscal Code. Having appealed, no other proceedings are permissible, as section 16 of the Act of 1811 was not, and section 1105 of The Fiscal Code is not, applicable if an appeal has been taken.

(b) Not having appealed, he could, prior to July 1, 1929, file a petition for resettlement with the Auditor General. In this case, if the Auditor General acted upon the petition prior to July 1, 1929, the taxpayer could appeal within sixty days of the date of resettlement (Com. v. Wyoming Valley Ice Co., 165 Fed. Repr. 789; Tax Settlement Rules, 43 Pa. C. C. Reps. 489), but unless the appeal was taken prior to July 1, 1929, it could be taken only after action of the Board of Finance and Revenue upon a petition for review, filed under section 1103 of The Fiscal Code.

(c) He could, after July 1, 1929, and within ninety days after the date of settlement, file a petition for resettlement with the Department of Revenue as successor to the settling departments, and thereafter the procedure would be by petition for review and appeal; or

(d) Having neither appealed nor filed a petition for resettlement within the periods mentioned in (a), (b) and (o), he could, prior to June 1, 1929, file a petition for resettlement with the Board of Finance and Revenue, or he could, after July 1, 1929, file a petition for refund, under section 503 of The Fiscal Code, after paying the tax, or, without paying the tax, he can seek to have the Department of Revenue, as successor to the settling departments, apply to your board within one year after the date of settlement for permission to make a resettlement, under section 1105 of The Fiscal Code.

7. With respect to settlements made by the Auditor General and State Treasurer more than ninety days prior to July 1, 1929, the procedure available to the taxpayer was as follows:

(a) He could appeal within sixty days after the date of settlement.

(b) Not having appealed, he could file a petition for resettlement with the Auditor General prior to July 1, 1929, but within one year of the date of settlement. As already stated, if the Auditor General resettled the tax prior to July 1, 1929, an appeal could be taken from the resettlement, provided it was taken prior to July 1, 1929.

(c) He could, prior to June 1, 1929, file a petition for resettlement with the Board of Finance and Revenue.

(d) Having pursued none of these courses, he could, after July 1, 1929, file a petition for a refund or seek to have the Department of Revenue obtain from your board permission to resettle the account as outlined in the case of settlements made within ninety days of July 1, 1929.

From C. P. Addams, Harrisburg, Pa.


author: Schaeffer, P. J.,

text:
    Rosenberg v. Metropolitan Life Insurance Company.

      Max Fisher, for plaintiff and rule; J. H. Jacobs, for defendant.
    Sept. 6, 1929.
   Schaeffer, P. J.,

— When twenty jurors had been summoned for selection in this case, the attorney for the plaintiff inquired whether any of them held policies issued by the defendant company. There was no answer. Each party thereupon struck four of the twenty, and the remaining twelve were sworn. They returned a verdict for the plaintiff for the sum of $110.20. It has since appeared that one of the twelve jurors who tried the case was the holder of a policy issued by defendant. Upon this ground the plaintiff has asked for a new trial.

It is unnecessary to consider whether or not the ownership of the policy would have constituted ground for challenge for cause. But the plaintiff, having rightfully asked for the information, was entitled to a correct answer which he could have used in determining how to employ his peremptory challenges. We cannot say that the fact of the ownership of the policy did or did not influence the decision of the juror in question; nor can his statement that it did or did not do so have much weight. “The general principle is laid down in our cases that no person should be permitted to serve on a jury who stands in any relation to a party to the cause that would ‘carry with it prima facie evident marks of suspicion of favor/ as where a litigant is in a position where ‘he might exercise a control over the juror/ such as the relation of master and servant:” Hufnagle v. Delaware & Hudson Co., 227 Pa. 476, 479. In Caldwell v. Kumerant, 20 Pa. C. C. Reps. 608, where a juror did not, upon inquiry by a party, disclose his relationship to one of the parties to the suit, a new trial was granted, and the court said: “A mistake was made, and it is enough for us to know that it may have prejudiced the defendant. It is not a question whether it did or did not prejudice him. That could not be determined by any investigation we could make. He was entitled to have his case tried before a jury composed of men not related to his adversary. Through no fault of his he was deified the right. It is our duty to see that it is accorded him.”

And now, Sept. 6, 1929, the rule for a new trial is made absolute.

From Charles K. Derr, Reading, Pa.


author: Potter, P. J.,

text:
    Roush v. Roush.

      Jay G. Weiser and Henry J. Sommer, for libellant.

      Harry A. Coryell, for respondent.
    Sept. 14, 1929.
   Potter, P. J.,

— This action for divorce is brought on the ground of cruelty and barbarous treatment, with which, at this stage of the proceedings, we have nothing to do.

We have an application to strike off the libel for the reason that in the affidavit the name of “Adolph Borrisen” was inadvertently typed as the respondent instead of “Noah Roush.” On motion, we allowed the affidavit to be amended by the insertion of the name of the respondent, which disposes of this rule.

We also have a rule for counsel fees, which is the main contention. We have no legal enactment allowing counsel fees in this State. The allowance of this item is simply a creature of general practice in divorce proceedings, adopted by the courts in the administration of justice to enable a destitute wife to procure counsel in order to defend, without which a miscarriage of justice might occur. The practice has been to direct the husband, who is the libellant, to pay to his destitute wife, the respondent, such sum as will enable her to procure legal counsel to defend her good name as well as her position in the family, the proceedings to stay till such payment is made. Or counsel fees may also be allowed to a destitute wife who is the libellant to enable her to prosecute her suit against an erring husband, but it is to be noted that the wife must be in destitute circumstances financially. If she has ample means of her own, we see no necessity for the allowance, and more so if the means of the husband are barely sufficient to sustain him when the wife is the libellant. In the case at bar, the wife is alleged to own real estate worth approximately $20,000, the rentals of which belong to her mother, aged approximately ninety-two years, whose business is handled and transacted by her daughter, the libellant hei'ein. It is alleged that when these parties were married, recently, both having been before married, the respondent had $4000 in investments which he was persuaded to turn over to his wife. Be he ever so foolish for so doing, the facts remain that he did so. He owns no real estate nor property of any kind, lives with his daughter by a former marriage, and draws $57 a month from the Pennsylvania Railroad Company as a pension. These facts are not disputed.

Which of these two is the more destitute? In these days of high living, $57 a month on which to pay boarding, buy clothing and small incidentals will be consumed in the support of this respondent and may not reach. Economy is necessary to make it do so.

The rule will not be applied where the wife is seeking a divorce for cruel treatment: Downing v. Downing, 7 Kulp, 138. A wife will not be allowed alimony pendente lite and counsel fees' where she has a sufficient estate, although the husband’s means may be greater: Bucher v. Bucher, 25 Pa. C. C. Reps. 513; Salsberg v. Salsberg, 10 Kulp, 378. It is the uniform practice to allow a wife, destitute of separate estate, counsel fees: Breinig v. Breinig, 26 Pa. 161; Kaufmann v. Kaufmann, 76 Pa. Superior Ct. 603.

From the facts presented to us, we are led to the conclusion that this wife, the libellant, has far more means and estate than the husband, the respondent, and that she is far more able, financially, to prosecute her suit than he is to defend, for which reason we do not think counsel fees should be allowed. Let us again say that it is only where the wife is without means to employ counsel that counsel fees are allowed, without which injustice may be done her.

And now, to wit, Sept. 14, 1929, the rule to strike off the libel and the rule for counsel fees are both discharged.

From A. Francis Gilbert, Middleburg, Pa.


text:
    Kelley v. McGurl.

      H. O. Bechtel and B. J. Duffy, for plaintiff.

      C. E. Berger and John B. McGurl, for defendant.
    Oct. 28, 1929.
   Houck, J.,

— On Sept. 7, 1929, Patrick J. Kelley, plaintiff, filed a bill of complaint against John B. McGurl, defendant, as executor of the estate of Bridget Kelley, late of Cass Township, Schuylkill County, who' died on June 12, 1928. It appears from the bill that the Register of Wills of Schuylkill County, on June 27, 1928, admitted to probate, as the last will and testament of said decedent, a certain will purporting to have been executed on June 2, 1928, and that letters testamentary thereon were granted to John B. McGurl, defendant. It is alleged in the bill that Patrick J. Kelley, plaintiff, on Nov. 22, 1928, appealed from the decree of the register, and that the record of the register’s proceedings has been duly certified “To your Honorable Court.” It is obvious that it was meant to allege that the record was certified to the Orphans’ Court of Schuylkill County. It is further alleged that tKe decedent executed 'a will on Nov. 11, 1916, devising her entire estate to Patrick J. Kelley and naming him as executor. Further allegations in the bill are to the effect that on March 9, 1928,, a judgment was entered in favor of Bridget Kelley, the decedent, and against Joseph Conlin, in the sum of $16,000 on a bond dated Feb. 7, 1905, conditioned for the payment of $8000 within ten days from the date thereof; that John B. McGurl, executor of the last will and testament of the said Bridget Kelley, was substituted as plaintiff in this judgment on Nov. 1, 1928; that on Dec. 17, 1928, an alias fi. fa. was issued on said judgment and that Conlin’s property was advertised for sale by the sheriff on Sept. 7, 1929; that there are judgments which are prior liens on the property of Joseph Conlin in favor of the First National Bank of Miners-ville, amounting to $7025.07, and a judgment, which is also a prior lien, in favor of the Miners State Bank, amounting to $1005.30. It is then alleged in the bill that if the property of Joseph Conlin is sold, it will be necessary to pay these prior liens in order to protect the mortgage owned by the estate of Bridget Kelley; that at present it will be impossible to secure a fair value for the property because of depression in the value of real estate; that should the appeal of Patrick J. Kelley from the register of wills prevail, he will be the executor and sole legatee of the estate of Bridget J. Kelley and will be injured if the sale is permitted to proceed; and that John B. McGurl, executor, has no power or authority under the will of Bridget Kelley, which was admitted to probate, to pay off the prior liens and to buy in the property on the mortgage on which execution has been issued. On this bill a preliminary injunction was granted, restraining the defendant from proceeding with the sale until such time as it is legally determined who may be the rightful executor of the estate of Bridget Kelley. On the hearing of the rule to continue or dissolve the preliminary injunction, the plaintiff amended the bill by adding Gordon Nagle, Sheriff, as a party defendant, and thereupon the preliminary injunction was dissolved. In the meantime, pursuant to Equity Rule No. 48, the defendant filed an answer raising preliminary objections to the bill, the objections being that the bill is defective for want of proper parties; that the plaintiff does not allege any facts entitling him to equitable relief; that he has a complete and adequate remedy at law; and that this court is without jurisdiction of the subject-matter of the bill of complaint.

We are met at the threshold of the case with the question of jurisdiction. On this point, the defendant contends that the exclusive jurisdiction to determine the matters here in dispute is in the Orphans’ Court. On the other hand, the plaintiff contends that equity has jurisdiction; that it affords the most convenient remedy; that the plaintiff has no adequate remedy at law; and that the Orphans’ Court is without power to restrain the execution of a writ issued out of the Court of Common Pleas.

Section 9 of the Orphans’ Court Act of June 7, 1917, P. L. 363, 371, provides in part as follows: “The jurisdiction of the several Orphans’ Courts, whether separate or otherwise, shall extend to and embrace: ... (d) The control, removal and discharge of executors and administrators deriving their authority from the register of the respective county, and the settlement of their accounts; . . . (1) All cases within their respective counties, wherein executors, administrators, guardians or trustees may be possessed of, or are in any way accountable for, any real or personal estate of the decedent.” The bill here in question was filed against the defendant as executor of the estate of Bridget Kelley, and the plaintiff argued that he represents the estate and is the only necessary party defendant. As such executor, he has come into possession of an asset of the estate, and the plaintiff asks us, in effect, to control his action relative to that asset, and to retain the status quo until it is legally determined in the Orphans’ Court, on the plaintiff’s appeal from the register of wills, whether or not John B. McGurl is the rightful executor of this estate. In our opinion, the subject-matter of this bill is peculiarly within the jurisdiction of the Orphans’ Court. “The Orphans’ Court is sometimes called a court of limited jurisdiction. This is true, if regard be had to the derivation of its powers, for it possesses none inherently, and exercises such only as are conferred by or implied from legislation; and it is true also as to the subjects of its jurisdiction, for these are set down in the statutes; but within its appointed orbit its jurisdiction is exclusive, and, therefore, necessarily as extensive as the demands of justice:” Shollenberger’s Appeal, 21 Pa. 337, 341. Hence, even prior to the Act of 1917, it was held that the Orphans’ Court had exclusive jurisdiction over the property of a decedent that comes into the hands of an executor or administrator by virtue of his office, and exclusive control of the executor in his disposition of such property: Miskimins’s Appeal, 114 Pa. 530'; Odd Fellows Savings Bank’s Appeal, 123 Pa. 356; Tyson v. Rittenhouse, 186 Pa. 137, 143; Williams’ Estate, 236 Pa. 259. But, whatever may have been the situation prior to 1917, it cannot now be doubted that the Orphans’ Court has full jurisdiction to control an executor. “The word ‘control’ in clause (d), section 9, is new; it was not in statutes relating to or defining the jurisdiction of the Orphans’ Court in force prior to 1917, and if, prior to 1917, there was any doubt as to the power of that court, that doubt is now completely removed. And, since it is a word conferring jurisdiction, it must be given its widest meaning, embracing not only the power to restrain but also the power to direct acts:” Mauser v. Lerch et al., 7 D. & C. 242. See, also, Schadt’s Estate, 282 Pa. 523, and Orr’s Estate, 283 Pa. 476. Since the bill in this case seeks to control the action of an executor, it seems quite clear that the Orphans’ Court has exclusive jurisdiction: Divine et al. v. Skrotsky et al., 8 D. & C. 717, 23 Schuyl. Legal Rec. 106.

That the Orphans’ Court has the power to provide a complete remedy in this case appears further from section 16 of the Orphans’ Court Act of 1917, providing that the said courts shall have power to prevent, by orders in the nature of writs of injunction, acts contrary to law or equity, prejudicial to property over which they shall have jurisdiction. This section is substantially a re-enactment of section 7 of the Act of May 19, 1874, P. L. 207. That the plaintiff’s remedy is under section 16 appears clearly from Gilkeson v. Thompson, 210 Pa. 355. Referring to the Act of 1874, the Supreme Court said: “Though this jurisdiction for the protection and preservation of property may be concurrent and not exclusive, it is the one to which the appellant ought to have resorted, for there his appeal from the probate of the will was pending, and there, if he was entitled to .any relief, it could have been given him by a proper order during the pendency of his appeal, intelligently made by the same court that was to dispose of the appeal.” The plaintiff’s appeal to the Orphans’ Court does not operate to suspend the powers or prejudice the acts of the defendant executor (section 21 (b), Register of Wills Act of June 7, 1917, P. L. 415), and the Orphans’ Court is the proper tribunal to determine whether or not the status quo should be retained pending disposition of the appeal.

It cannot be doubted that the Orphans’ Court possesses the requisite power to control every act of the executor relating to property of the estate, and the contention that the Orphans’ Court could not restrain the execution of a writ issued to the sheriff out of the Court of Common Pleas is without merit: Hobbs’s Estate, 1 W. N. C. 302; Klein’s Estate, 11 W. N. C. 354; Turner’s Estate, 7 Kulp, 481.

It appearing that the Orphans’ Court has exclusive jurisdiction of the subject-matter of this bill of complaint, and that it possesses the necessary power to afford to the plaintiff any remedy to which he may be entitled, it follows that the bill must be dismissed for want of jurisdiction. This makes it unnecessary to decide the other objections to the bill of complaint.

The bill is dismissed, at the cost of the plaintiff.

And now, Oct. 28, 1929, an exception is allowed plaintiff and bill is sealed.

Prom M. M. Burke, Shenandoah, Pa.


author: Martin, P. J.,

text:
    C. O. Struse & Sons Company v. Reading Company.

      Robert Mair (of Rambo, Rambo & Mair*), for exceptions.

      W. J. Graham, contra.
    March 3, 1930.
   Martin, P. J.,

— The plaintiff has filed forty exceptions to the adjudication in this case, covering every finding and conclusion of the Chancellor adverse to the contentions of the plaintiff.

The testimony establishes the facts found by the adjudication.

The real question raised by the exceptions is whether the land of plaintiff which defendant proposes to condemn is to be used for a branch of defendant’s railroad or for a private siding.

It clearly appears that the proposed extension will serve only the plant of Sears, Roebuck & Company and the remaining land of plaintiff or of those who may purchase the land; but it is not to be built for a mere private use; it will be used in conjunction with the operation of the railroad of defendant and the accommodation of the public shipping goods to and receiving goods from Sears, Roebuck & Company.

It is in evidence that during the year 1928, 3977 carloads of merchandise, embracing 226,540 invoices or waybills, were shipped over the Reading tracks to the plant of Sears, Roebuck & Company, and 2499 carloads, embracing 113,270 invoices or waybills, were shipped from the plant of Sears, Roebuck & Company, exclusive of goods handled by the United States parcel post. Under this state of facts it cannot be seriously contended that the public is not interested in the connection of the Reading tracks with the plant of Sears, Roebuck & Company.

In Getz’s Appeal, 10 W. N. C. 453, it was held that a proposed condemnation for a railroad siding or branch railroad to accommodate only one manufacturing plant was not a mere private siding, but was for public use. The court said: “We cannot assent to,the opposing contention which holds that a side track which leads only to a manufacturing or mining establishment, held in private ownership, is illegal because it does not subserve a public use. These establishments are very numerous, especially in Pennsylvania, along a near line of railroad. They serve to develop the resources of the State, they give employment to vast numbers of citizens and constitute a most important element in the general wealth and prosperity of the community. Convenience and consequent cheapness of transportation are in most eases essential and in many vital to their maintenance. Moreover, considerable portions of the general public are directly interested in the traffic which goes to them and in that which comes from them. Hence, in the connection in which we are now considering them, we cannot regard them as merely private interests and, therefore, without the pale of that public use for which private property may be taken in the construction of railroads lawfully established and actually used for publie purposes.”

This decision was cited with approval in Pioneer Coal Co. v. Cherrytree & Dixonville R. R. Co., 272 Pa. 43, where this question of publie or private use of land condemned for railroad purposes is discussed by Chief Justice von Moschzisker, and the authorities cited, holding that a condemnation for the building of a- branch railroad to a single coal mine is for a public use, the interest of the public in the output of the coal mine being a proper subject for consideration.

All the findings of fact are warranted by the evidence, and the conclusions of law followed from the findings.

The third and fourth exceptions refer to matter in the discussion of the case. This is not the subject of exception.

Plaintiff’s eleventh request for finding of fact was refused because of the use of the words “private siding” in referring to the old siding. The testimony does not warrant the assumption that the old siding was a “private siding.” It may have been as much of a branch railroad or branch of defendant's railroad in which the public has an interest as the one the defendant proposes to build.

Plaintiff’s twentieth request for finding of fact was refused because it involved a conclusion by the operating department of the defendant company based upon an expression of one witness that the suggested change was “too expensive.”

Gring v. Sinking Spring Water Co., 270 Pa. 232, was cited with approval in Pioneer Coal Co. v. Cherrytree & Dixonville R. R. Co., supra. It was stated that where “the power is found to exist in a corporation to do the act complained of in the manner it is being done, the authority of the court to interfere is at an end.”

The exceptions should be dismissed.

Final decree.

And now, March 3, 1930, upon consideration of the foregoing case, it is ordered, adjudged and decreed as follows:

1. The forty exceptions filed by plaintiff to the adjudication in this case are overruled and dismissed.

2. The bill of complaint is dismissed and plaintiff is directed to pay the costs.

3. The prothonotary is directed to give notice of the filing of this final decree to the parties to the suit or their counsel of record.


author: Van Dusen, J.,

text:
    Wasserman’s Estate.

      Morris Trasken, for exceptions.
    Feb. 21, 1930.
   Van Dusen, J.,

— The amount of the fee to be allowed for the services of counsel is peculiarly within the province of the Auditing Judge. This decision will not be disturbed in the absence of gross error, and we all feel that the allowance here made is not erroneous but proper.

The exceptions are dismissed and the adjudication is confirmed absolutely.

Henderson, J., did not sit.


text:
    Borie’s Estate.

      Charles C. Perkins and Joseph Carson, for petitioners.

      William M. Boenning, contra.
    Feb. 20, 1930.
   Per Curiam,

— In a comprehensive opinion which covers all questions raised by the exceptant, the Hearing Judge has properly applied the law to the given facts, and we, therefore, see no reason for further elaboration.

Accordingly, the exceptions are dismissed and the decree directed to be entered is made absolute.

Henderson, J., did not sit.


author: Biddle, P. J.,

text:
    Weiser v. Eshelman.

      J. P. McKeehan, for plaintiff; John E. Myers, for defendant.
    Sept. 16, 1929.
   Biddle, P. J.,

— The plaintiff’s action in this case was brought to recover the amount alleged to be due from the defendant on a quantum mendt for work and labor performed at the instance of the defendant. Without filing an affidavit of defense, the defendant, suggesting that the statement filed claimed for several lump sums instead of giving the items in detail, obtained a rule for a more specific statement.

Apparently, counsel for the plaintiff considered that some of the objections made were well taken, for an answer to the rule was filed which gave the basis of the plaintiff’s claim in much greater detail than was given in the formal statement filed. The plaintiff, however, has not asked that this answer should be regarded as an amendment to the statement, nor has he filed a new statement of claim to meet the objections of the defendant, as he might have done under Rule 29 of our Rules of Court; and, while the answer would meet some, if not all, of the objections of the defendant, we cannot, in the absence of proper action on the part of the plaintiff, treat this either as a new statement or as an amendment to the one filed; and there is nothing to do, therefore, but make the rule absolute, giving the plaintiff a chance to embody in such new or amended statement as he may see fit to file the details set out in the statement, with any additional ones that he may regard as proper or necessary.

And now, Sept. 16, 1929, the rule to show cause why a more specific statement should not be filed is made absolute.

From Francis B. Sellers, Carlisle, Pa.


author: MacDade, J.,

text:
    Commonwealth v. Buck et al.

      C. William Kraft, Jr., Assistant District Attorney (with him William J. MacCarter, District Attorney), for Commonwealth.

      John E. McDonough (with him James A. Cochrane), for defendants.
    Oct. 16, 1929.
   MacDade, J.,

— The defendants, Joseph Jacono, Anthony Sorgi and Patsy Di Santi, were convicted of larceny, receiving stolen goods and of violating the Act of May 1, 1919, P. L. 99, pertaining to a felonious taking and carrying away of an automobile, either as principal or as assessory thereto before or after the fact, or of receiving a stolen automobile with knowledge, while in other cases Joseph Jacono, Tony Olive and Patsy Di Santi were convicted of larceny and receiving stolen goods, while one James Buck in all of the said cases heretofore pleaded guilty.

In the former case the defendants moved for a new trial and assigned the following reasons therefor:

1. The learned trial judge erred in not requiring the Commonwealth to elect to try and prosecute between the charges of larceny and receiving stolen goods in one indictment and violation of the Act of 1919 in another indictment.

2. The defendants could not be convicted of violating both of these laws where the same act only was involved.

3. The learned trial judge erred in refusing to withdraw a juror on the motion of the defendants for reasons set forth in the transcript of the record as follows: (a) Because the assistant district attorney read to the jury the deposition or statement of one Tony Olive as affecting the defendants in this case.

' 4. The learned trial judge erred in refusing to withdraw a juror and admitting the evidence of Mullen respecting an alleged conversation between the defendant Sorgi and the said Mullen respecting an offense with which the defendant . . . did not here stand charged.

5. The learned trial judge erred in permitting the prosecutor to read to the jury all of the statements of all of the defendants without instructing the jury that such statements only affected the party making them.

6. The learned trial judge erred in not withdrawing a juror upon motion of the defendants because of statements made by the district attorney that the defendants were gangsters from Marcus Hook and pleading with the jury not to turn these gangsters from Marcus Hook loose.

7. The learned trial judge erred in not withdrawing a juror upon motion of the defendants because the district attorney said to the jury that the defendants had lied three times in their testimony.

8. The learned trial judge erred in refusing to withdraw a juror because the district attorney said to the jury, “Is it fair to James Buck and his mother to let these boys (the defendants) go scott free and punish Buck?”

9. The learned trial judge, erred in other respects, as admitting testimony of objection of the defendants, and their objections will appear from the record.

10. The learned trial judge erred in respect of the charge to the jury, (a) defining knowledge of prior theft as regards the offense of receiving stolen goods; (b) that the jury has to co-operate with the judge in administering justice — “we don’t want justice to fail in this county of ours;” (c) in charging the jury that the defendants could be convicted of larceny and receiving stolen goods and also violating the Act of 1919 as indicted; (d) other comments of the court respecting the execution of the statements offered in evidence and the statements that the defendants commenced to break and tell on each other; (e) the interrogation of the court to the jury as to how Di Santi escaped receiving stolen goods; and (f) can a jury be befuddled into acquitting him, and how can he escape conviction of the felony of which he stands charged; (g) to the argument of the character of the charge of the court as defined by the court’s own language, “All of this we are now ‘preaching’ to you, relating to you as persuasive of conviction.”

In the other cases, similar motions for new trials were filed and reasons given in support thereof are as follows:

“1. The learned trial judge erred in not continuing the cases of the defendants to try by a different panel, in view of the statements made by the court in the presence of this panel, respecting the defendants, Jacono and Di Santi.

“2. The learned trial judge erred in admitting the written statements that the alleged Jacono and Di Santi were guilty, in the absence of evidence as to corpus delicti.

“3. The learned judge erred in admitting the statements of the defendants, in the absence of any evidence showing the ownership of the property alleged to have been stolen.”

We summarize the reasons for new trials in the above cases to be in effect the following:

1. Remarks of the district attorney.

2. Charge of the court.

3. Admission of confessions.

4. District attorney not electing on what indictments he would prosecute when defendants were charged with offenses of larceny as well as felony under the Act of 1919, making it a felony to feloniously take and carry away an automobile belonging to another.

5. Attacking the credibility of the defendant, Anthony Sorgi.

6. Should an indictment be quashed because it fails to name definitely the owner of the property alleged to be stolen?

There were other reasons, but as we consider them as of little importance, we shall confine ourselves to what we believe to be the real reasons why the defendants ask for new trials, as thus summarized above.

It is our intention, however, to refuse these motions for new trials, as we did formally at bar, and this written opinion is prepared and filed of record to conform to our orders at bar when we dismissed the oral motions for new trials on the day when the defendants were convicted, and subsequently orally dismissed the motions for new trials when the defendants were sentenced after, the defendants, through counsel, had filed written motions for new trial and assigned reasons therefor.

Therefore, all the motions are refused, and we believe it is within our discretion to thus act: Com. v. Nelson, 294 Pa. 544.

We believe our conclusion is plainly justified by the evidence. A careful reading of the entire record and of the charges satisfies us that the case was fairly presented and that the criticism directed towards the rulings of the court and the charges are unwarranted. We see no error which justifies a new trial as to any of these defendants, and, therefore, the motions are dismissed.

To amplify our justification in refusing these motions, we take up the above summarization in order; for instance:

1. Remarks of the district attorney.

The motion for the withdrawal of a juror, based on the remarks of the trial judge to the jury or of the district'attorney, will not be allowed when the jury has been instructed to disregard the remarks complained of: Com. v. Taleff, 28 Dauphin Co. Reps. 64; Com. v. Jordanoff, 28 Dauphin Co. Reps. 71; Com. v. Cicere, 282 Pa. 492; Com. v. Dyminski, 79 Pa. Superior Ct. 500; Com. v. Legins, 285 Pa. 97.

Indeed, a conviction of a defendant for violation of the liquor law was not set aside because the trial judge had in another case lectured the jury for having acquitted the defendant: Com. v. Lowenburg, 86 Pa. Superior Ct. 202.

0. Charge of the court.

A judge may express his opinion regarding the evidence, and in some cases it may be his duty so to do, but this should be done so as not to withdraw the evidence from the consideration and decision of the jury: Com. v. Johnson, 89 Pa. Superior Ct. 439.

The extent to which a trial judge in charging the jury should go into reviewing, analyzing and commenting on the evidence in a criminal ease depends largely upon the circumstances and nature of the case: Com. v. Wilson, 76 Pa. Superior Ct. 147.

A conviction of murder will not be reversed because the judge in his charge impresses upon the jury the seriousness of their responsibility as a branch of the court with important duties'to perform: Com. v. Morrison, 266 Pa. 223.

When the charge of the court was fair, it will not vitiate a just verdict because the judge expressed his opinion upon features of the case: Com. v. Rose, 74 Pa. Superior Ct. 96.

3. Admission of confessions.

Ordinarily, proof of independent crimes, having no connection with the one on trial, cannot be received unless it tends to establish the guilt of the defendant of the particular offense under consideration by the jury, though, if such relation is shown, the proof is admissible: Com. v. Mellor, supra; Com. v. Luccitti, supra; Com. v. Quaranta, 295 Pa. 264.

It will be noted, however, that the statement complained of in the present case was a part of the voluntary confession to the police officer (Com. v. James, supra; see, also, Com. v. Parker, 294 Pa. 144), and was merely an introductory declaration of a fact made by the defendant preceding his description of what had occurred at the time of the killing of Mrs. Coles. The conversation as a whole with Inspector Connelly was admissible. It began with these sentences: “I warned him that anything he might say would be used as evidence against him at the time of his trial in court. He was remorseful, and said he was sorry for anything that he had done. It was not the first time he had done a thing of this kind. He had done the same thing in another town.” The entire narration of defendant, bearing upon the crime with which he was charged, was admissible, and the repetition of all that he said in reference thereto cannot be considered as an attempt on the part of the Commonwealth to prove an independent and distinct offense to his prejudice, which has met with condemnation in some of our cases: Com. v. Weston, 297 Pa. 382.

On the trial of the indictment for larceny and receiving stolen goods, while evidence of other crimes is not in general admissible, it may be received to establish a motive and guilty knowledge and purpose. Thus, the evidence of boys whose loot was purchased by the receivers to show the college of thievery may be established as a chain of crime: Com. v. Elias & Johns, 76 Pa. Superior Ct. 576.

4. District attorney not electing on what indictments he would prosecute when defendants were charged with offenses of larceny as well as felonff under the Act of 1919, making it a felony to feloniously take and carry away an automobile belonging to another.

An indictment for embezzlement, larceny and receiving stolen goods, in different counts, and a general verdict of guilty, with sentence thereon, was sustained: Com. v. Samson, 76 Pa. Superior Ct. 226.

Defendant was convicted of highway robbery. The court below refused to quash counts in the indictment, on which defendant was not sentenced, and, therefore, was not injured. A motion in arrest of judgment was denied and the conviction affirmed: Com. v. John Doe, alias Ross, 79 Pa. Superior Co. 162.

5. Attacking the credibility of the defendant, Anthony Sorgi.

The defendant’s credibility can be attacked, if he takes the witness-stand in his own behalf, by offering the record, or an exemplified copy of his previous conviction of felony or other crime affecting his credit as a witness. But his character cannot be attacked unless (1) he or his attorney have asked questions of the witness for the prosecution with a view to establish his own good reputation or character; or (2) he has given evidence tending to prove his own good character or reputation; or (3) he has testified at such trial against a co-defendant charged with the same offense: Com. v. Anthony, 91 Pa. Superior Ct. 518.

In the instant case the district attorney attacked Sorgi’s credibility because his counsel had put his reputation or character in evidence by asking him in chief whether he had ever been arrested before.

6. Should an indictment be quashed because it fails to name definitely the owner of the property alleged to be stolen?

In 17 Ruling Case Law, § 66, page 62, we find the following: “It may be laid in the indictment that the goods belonged to a person unknown, if that is actually the case; yet, if the owner be really known, the allegation will be improper, and the prisoners must be discharged from the indictment:” State v. Ryan, 4 McCord L. (S. C.) 16; 17 Am. Dec., 702.

In section 65 thereof, it also says that it is not essential that the thief should know who the owner is. It is sufficient if he knows that the property is not his own and takes it to deprive the true owner of it: 88 Am. St. Reps., 64, note.

Also, in 25 Cyc., 93, see the following: “But ownership may, if such is the case, be laid in a person unknown. Where ownership is averred as unknown but possession was in ‘A,’ the indictment was held sufficient. The indictment fails, however, if it is proved that the owner was in fact known, since there is a variance; and this is true even though the grand jury was in fact ignorant of the ownership, if by reasonable diligence they might have discovered the owner. ... It is not necessary to aver that the unknown person is not the defendant.”

Com. v. O’Brien, 2 Brewster, 566: “This was indictment for stealing the property of ‘X.’ The -witness could not say that the property belonged to ‘X.’ Motion to amend by inserting ‘of some person unknown.’ This was argued under secton 13, Act of March 31, 1860, and no continuance granted (i e., no prejudice or surprise).”

25 Cyc., 125: “Where the owner is alleged in the indictment as unknown, there can be no conviction unless it is proved that the grand jury did not know his name, and could not discover it by diligence. ... In the case of unknown ownership alleged, it is necessary to prove that the defendant is not the owner.”

Sharp v. State, 29 Texas Appeals, 211; 15 S. W. Repr. 176 (1890): “If an indictment for larceny avers ownership of property is unknown, it must be shown that the grand jury did not know the owner and used reasonable diligence to find out, otherwise the conviction cannot be sustained.”

People v. Kellogg, 94 N. Y. Supp. 617: “The indictment read: ‘With intent to deprive and defraud the said F. J. W.’ and said divers other unknown persons of the same.

“Under the Code of Criminal Procedure, section 281 provided that an erroneous allegation of an indictment as to the person injured is immaterial, evidence of larceny of money from an unnamed person is sufficient to support an indictment charging the larceny of the money from a certain individual and divers other persons to the grand jury unknown, although there is no evidence of a larceny from the individual named.” See State v. Logan et al., 119 Maine, 146 (109 Atl. Repr. 593), Judge Morrill.

“It is a familiar principle that in indictments for larceny, the ownership of the stolen articles must be stated, and must be proved as laid; it is equally familiar that ignorance by the grand jury of the name of the person having either general ownership of the stolen property or special interest therein, does not shelter the criminal, and ownership may be laid in persons to the grand jury unknown.”

Wharton — Forms—Page 20: 2 Hawk, ch. 25, § 71; 2 East P. C. 651, 781; Cro. C. C. 36; Plowd., 85 B; Dyer, 97, 286; 2 Hale, 181; Com. v. Tompson, 2 Cush. 551; Com. v. Hill, 11 Cush. 137; Com. v. Stoddard, 9 Allen, 280; Goodrich v. People, 3 Parker C. R. 622; Com. v. Sherman, 13 Allen, 248.

Wharton — Criminal Law: Section 1173. “The property of stolen goods must be averred to be in the right owner, general or special, if known, or in some person or persons unknown.”

Section 1188. “If the owner be unknown, the goods may be laid as, ‘the goods of a person to the jurors unknown,’ for otherwise it would be impossible for felonies of this class to be punished. So, if in an indictment for ‘receiving stolen goods,’ the principal felon be unknown, it may be described in like manner.”

McVey v. State, 23 Texas Appeals, 659; 5 S. W. Repr. 174 (1887), President Judge White: “It has been held repeatedly by this court that an indictment for theft of animals (two horses) is valid when the allegation is that the owner is a person whose name is to this grand jury unknown.”

Section 1220. “Ownership must be distinctly averred, either in a specific person or a person unknown to the grand jury. . . . The goods may be averred to be of a person unknown, and this sufficiently negatives ownership in the defendant:” State v. Hanks, 39 La. Ann. 234; 1 So. Repr. 458; Maddox v. State, 14 Texas Appeals, 447.

Therefore, we make the following formal

, Order.

And now, Oct. 16, 1929, the above matter coming on to be heard by the court in banc on motions for new trials, the court' doth order and decree that the motions for new trials in the above cases be and are hereby dismissed sec. rec. et sec. leg.

Prom William R. Toal, Media, Pa.