author: Reed, P. J., O. C.,

text:
    Commonwealth v. Rivera.

      V. A. Carroll, for Commonwealth; John R. K. Scott, for defendant.
    Sept. 22, 1930.
   Reed, P. J., O. C.,

47th judicial district, specially presiding, The defendant, Raymond Rivera, was indicted and charged with the crime of burglary, entering in the night without breaking with intent to commit a felony, and receiving stolen goods. The case came on for trial in Room 453 City Hall on April 25,1930, at which time the Commonwealth adduced its evidence and the defendant, with his witnesses, was heard, after which the court charged the jury and the defendant was found guilty of all the charges set forth in the indictment; whereupon counsel for the defendant made a motion for a new trial and filed several reasons therefor.

The evidence discloses that the home of Mr. and Mrs. Mertz, at No. 29 Pelham Road, in the City of Philadelphia,v was entered on Feb. 5,1930, at about a quarter past four in the morning; that the room entered was occupied by Mr. and Mrs. Mertz and “is on the corner of Pelham and Cresheim Roads, a corner room facing the side, and has the full light of the arc light on the corner.” The property was located on the corner, having a lawn surrounding it. Three windows were in the room that was entered; two of these windows opened on the Pelham Road side and one on the Cresheim Road side. These windows were located about fifteen feet from the level of the ground, and there is a rain-spout that reaches from below to the window, by which it is alleged the party entered the room occupied by Mr. and Mrs. Mertz. The undisputed testimony on the part of the Commonwealth was convincing beyond a doubt that some one had entered this room occupied by the Mertzes through this second story bedroom window, at or about the time testified to, and had stolen therefrom six articles of valuable jewelry, and there was quite sufficient evidence adduced at the time of the hearing by the Commonwealth to warrant the jury in finding beyond a reasonable doubt that the defendant, Raymond Rivera, was the man who entered the room of the Mertzes and purloined this jewelry. However, counsel for the defendant complains that the Commonwealth adduced no evidence that warranted the jury in finding that a burglary had been committed, inasmuch as the Commonwealth’s witnesses testified that the room had been entered through an open window, and that in order to constitute burglary there must be a breaking and entering.

The Act of March 31, 1860 [P. L. 382, § 135], provides as follows:

“If any person shall, by night, willfully and maliciously, break or enter into . . . any church, meeting-house or dwelling-house, or out-house, parcel of said dwelling-house, with an intent to kill, rob, steal, or commit a rape, or any felony whatever, whether the felonious intent be executed or not, the person so offending shall, on conviction, be adjudged guilty of felonious burglary,” etc.

It has been held that one who obtains an entry into a dwelling house by any fraud or artifice with the intent to commit a felony may be convicted of burglary, as the gaining entrance by such means is a constructive breaking: Rolland v. Com., 82 Pa. 306; Rolland v. Com., 85 Pa. 66; Johnston v. Com., 85 Pa. 54. And the mere opening of a door after entering, if in pursuance of the felonious intent, is a sufficient breaking, though in a different part of the house than that which was entered or from that in which the felony was to be committed: Rolland v. Com., supra.

Counsel for defendant has cited certain sections of Corpus Juris which he relies upon to sustain him in his contention that in the instant case there was no breaking and entering such as contemplated by the common law and the act of assembly, and, also, quotes the greater part of the opinion in Rolland v. Com., 82 Pa. 306, supra. These authorities would fully sustain the position taken by counsel for the defendant had the evidence not revealed the fact that there was an unusual entrance to the sleeping room by the intruder, who entered and stole the jewelry from the Mertzes. A review of the cases cited discloses the fact that the entries were usually through an open door or an open window on the ground floor, and the principle upon which these cases were decided is that it was negligence on the part of the owners to leave their doors and windows open, thus inviting any one who might be disposed to commit a felony to enter the building; but no cases have been cited by counsel for the defendant that relieved an intruder who had secured entrance through an open bedroom window, located fifteen feet from the ground, for the purpose of committing a felony, from the charge of burglary.

As before indicated, the courts have recognized a constructive breaking and entering, and in 9 Corpus Juris, 1062, under Constructive Breaking, § 116, it is said:

“As a rule an indictment alleging a breaking and entering is sustained by proof of an entry under such circumstances as to constitute a constructive breaking. In some jurisdictions, by statute, an actual breaking must be proved.”

Sharswood’s Blackstone, Book 4, page 226, in commenting upon the manner in which burglary may be committed, states:

“There must in general be an actual breaking; not a mere legal clausum fregit (by leaping over invisible ideal boundaries, which may constitute a civil trespass), but a substantial and forcible irruption. As at least by breaking or taking out the glass of, or otherwise opening, a window; picking a lock or opening it with a key; nay, by lifting up the latch of a door, or unloosing any other fastening which the owner has provided. But if a person leaves his doors or windows open, it is his own folly and negligence, and if a man enters therein it is no burglary; yet, if he afterwards unlocks an inner or chamber door, it is so. But to come down a chimney is held a burglarious entry, for that is as much closed as the nature of things will permit.”

We do not believe that it is going too far to hold that one who in the nighttime enters an open bedroom window located fifteen feet from the ground by means of a water-spout has made an entrance in such an unusual way as to constitute a constructive breaking and entry. If we were to hold otherwise, then the inference would be that one who opens a bedchamber Window, located fifteen feet or more from the ground, on the second story, or in fact any story of a house or sleeping apartment above the first floor, and leaves it open during the night-time for the purpose of ventilating his room, would be giving an invitation to night prowlers to enter and commit a felony; or, in other words, as Blackstone has said, “It is his own folly and negligence and if a man enters therein it is no burglary.” We believe, therefore, after considering all of the evidence in the ease, the manner in which the evidence indicates that the intruder entered the room and the unusual place of gaining entrance and the manner in which it was accomplished, evidently by climbing up the rain-spout, that the defendant was guilty of constructive breaking and entering, and that a new trial should not be granted on the ground that the Commonwealth failed to show that there was a breaking and entering with the intent to commit a felony.

Counsel for the Commonwealth has cited the case of Murmutt v. State, 67 S. W. Repr. 508, wherein it is said, on page 511, that “there must be some force, but slight force was sufficient; it may be by raising a window, or the entry at a chimney or other unusual place, or climbing through a window that is an unusual place of entry.” It is true that this case was reversed, but the appellate court apparently approved the statement of the lower court, for further on in the opinion it stated: “To say the least of it, these charges are confusing and antagonistic. In the second paragraph the jury are instructed that climbing through a window that is an unusual place of entry is a sufficient breaking or force. In paragraph 5 they are instructed that merely passing into or through an open window is not sufficient force; that a window must be raised higher, etc. Now, if the jury had been told that, in the latter contingency, the window must be a usual place of entry, they might have been able to reconcile the two charges. But in the absence of such instruction they were liable to be confused.” This was a Texas case, and counsel for the defendant in his reply brief cites the cases of Winkler v. State, 126 S. W. Repr. 1134, and Smith v. State, 153 S. W. Repr. 851, and insists that these later Texas cases hold otherwise than the case of Murmutt v. State, supra, but an examination of these cases does not warrant the conclusion that such is the ease. It is true they define burglary and also refer to the Texas statute that defines what is meant by breaking, as follows: “That the entry must be made by actual force; the slightest force, however, is suificient to constitute breaking.” But notwithstanding the above cases, it is still the law that the entering into a house in an unusual place, such as through a chimney and, as held in Murmutt v. State, “climbing through a window that is an unusual place of entry is constructive breaking and entering.”

In the case of People v. White, 117 N. W. Repr. 161, 162, it was said by the appellate court: “We think the rule adopted in the instance above quoted a reasonable one. It is, in effect, that if any force at all is necessary to effect an entrance into a building, through any place of ingress, usual or unusual, whether open, partly open or closed, such entrance is a breaking suificient in law to constitute burglary, if the other elements of the offense are present.”

In the case of Com. v. Stephenson et al., 25 Mass. 354, 355, Parker, C. J., in discussing what constitutes burglary, states the law as follows:

“The question in this case is whether there was a breaking or not. The lifting a latch and opening the door, though not bolted or locked; the shoving up a window, though not fastened; the getting down a chimney, and various other acts done to effect an entry, are held to be a breaking. The offense consists in violating the common security of a dwelling house, in the night-time, for the purpose of committing a felony. It makes no difference whether the door is barred and bolted or the window secured or not; it is enough that the house is secured in the ordinary way; so that by the carelessness of the owner in leaving the door or window open, the party accused of burglary be not tempted to enter. Shutting the window-blinds and leaving the window open for air is a common mode of closing a house in the warm season; if the blinds are forced, it is a breaking.”

It appears to the court that the Mertzes who were robbed had secured their house in the ordinary way; that is to say, that the ordinary way to ventilate sleeping rooms which are located above the first story is by leaving the windows open, and if an intruder enters a window under such circumstances, either by means of climbing up a rain-spout, or by climbing up in some other way, and enters the room, he is guilty of breaking and entering, and in case he enters for the purpose of committing a felony, he is guilty of the crime of burglary.

Another reason advanced by counsel for the defendant is that the court erred in refusing to withdraw a juror and continue the case on account of remarks that were made by the district attorney during the trial. It is true that there were some things said and done during the trial of this case that were not strictly ethical, both on the part of counsel for the Commonwealth and counsel for the defendant, but the remarks made by the district attorney were usually drawn by reason of something that was said or done by counsel for the defendant, and while there might have been some remarks made that reflected to a certain extent on counsel for the defendant, we do not see how these remarks could affect the defendant and do not believe that they did, and, therefore, we see no reason for granting a new trial because of any remarks made by the district attorney at the time of the trial.

Counsel for the defendant further complains that the trial judge in his charge had stated that it was admitted that a robbery had been committed in the home of the Mertzes. This was only said in view of the fact that counsel for the defendant in his argument said that it was admitted that Mr. and Mrs. Mertz had their jewelry stolen but denied that his client had anything to do with the larceny of the same; however, after the court’s attention was called to this statement, he said to the jury that the burden was on the Commonwealth to prove beyond a reasonable doubt that a burglary had been committed and the property stolen, or words to that effect.

Counsel also complains that the trial judge had not properly instructed the jury as to the third count in the bill; however, the record shows that what was said by the court is as follows: “By Mr. Scott: I desire to note an exception to that part of your Honor’s charge. The third point that I asked your Honor to charge upon is on the third count, that the alleged possession of stolen property in New York City would not raise a presumption of possession of the alleged stolen property in the County of Philadelphia. The Court: I think that is true. It may have been received in New York City. Mr. Scott: I ask for binding instructions on the third count, and ask your Honor to so direct the jury as far as the third count is concerned. The Court: As far as the third count is concerned, members of the jury, if you find the goods were stolen in Philadelphia County, you will also have to find, before you can convict on that count, that the defendant, if you find him guilty of receiving stolen goods, received them in Philadelphia County and didn’t receive them in New York City.”

We think that that fully covered the request of counsel for the defendant and that there is no just cause for complaint as far as that part of the charge is concerned.

Counsel for defendant also complained that the court refused to charge as follows: “I also have called your Honor’s attention to the point that if the jury should find that Rose Garcia and Mrs. Garcia are accomplices they cannot corroborate each other. The Court: There is no evidence in this case to the effect that they were accomplices, and, therefore, I refuse to charge along that line.”

I think a careful, honest study of the entire record will fail to disclose any evidence that would warrant the court in submitting that question to the jury, and charging along that line would only have tended to confuse the jury as to the real questions of facts involved in the case.

Another question which the court'believes has been unduly emphasized by counsel for the defendant is the fact that the trial judge erred in permitting the district attorney to offer in evidence bills of indictment of November Sessions, 1925, Nos. 462, 463 and 464, for the purpose of attacking defendant’s credibility as a witness. It was held in the case of Com. v. Pezzner, 78 Pa. Superior Ct. 286, that the Act of 1911 does not forbid the discrediting of defendant’s testimony by producing a record of a former conviction, and the defendant having admitted that he was the party named in the bills, and counsel for the defendant in his argument to the jury emphasizing the fact that the Commonwealth had attempted to drag in other bills of indictment and the court warning the jury that it should not consider these bills for any purpose other than to affect the credibility of the defendant, we believe that the admission of these bills for the purposes for which they were admitted with a careful explanation to the jury was not error, and that the admission came within the ruling as laid down in the above stated case.

There were other reasons advanced by counsel for the defendant as to why a new trial should be granted, but after carefully considering all of them and reading and considering all of the evidence which was given in the case, both on the part of the Commonwealth and on the part of the defendant, and the able briefs of the respective counsel, we are not convinced of error in the admission of evidence, the charge of the court or remarks of the district attorney under the circumstances in which they were made; therefore, we deem it proper to overrule all of the reasons filed in the case and deny the defendant a new trial.

Order.

And now, Sept. 22, 1930, for the reasons above stated, all of the reasons for a new trial are overruled and a new trial is denied.


source: Caselaw Access Project

author: Martin, P. J.,

license: Public Domain

text:
    Bulger v. Wilderman et al.

      Barnes, Biddle & Myers, for plaintiff; Parris & Limhin, for defendants.
    July 21, 1930.
   Martin, P. J.,

Plaintiff was tenant of apartments in a building, No. 803 West 66th Avenue, Philadelphia, under a lease dated Oct. 1, 1929, at a monthly rental of $90. The property was subject to a mortgage, dated July 1, 1924. Default occurred, and the assignee of the mortgage, on Oct. 29, 1929, notified the tenant in writing that possession had been taken by the owner of the mortgage on account of default in the payment of the principal and interest due Sept. 1st, and demand was made that rent falling due thereafter be paid to the owner of the mortgage.

On Nov. 13, 1929, the tenant paid the owner of the mortgage the rent due in November, and, subsequently, also paid the rent due in December, 1929, and January, 1930.

On Nov. 12, 1929, a levy was made on the household goods belonging to the tenant by a constable acting under authority of a warrant executed by the agent of the landlord. The tenant issued a writ of replevin, in which the landlord’s agent and the constable were made defendants, and the goods levied upon were delivered by the sheriff to plaintiff.

A statement of claim was filed, reciting the mortgage, the lease, the notice that possession had been taken by the assignee of the mortgage after default in the terms of the mortgage, the payment of the rent due in November to the holder of the mortgage, the distraint for rent, the writ of replevin, and the return of the goods seized by the sheriff to the tenant.

An affidavit of defense was filed by defendants. The material allegations of the statement of claim were admitted or not sufficiently denied. Defendants admit that a written notice, dated Oct. 29, 1929, informed the tenant that the holder of the mortgage had taken possession of the premises and demanded the rent. It is alleged in the affidavit that the owner of the mortgage did not take possession of the premises until Jan. 13, 1930, and that the defendant, as assignee of the lease, was in possession of the premises until Sept.. 18, 1929, at the time of the levy, and until Jan. 13, 1930. A copy of a letter is attached to the affidavit, which it is averred was sent to the tenant on Sept. 18, 1929, stating that the defendant had been appointed agent by the assignee of the lease to collect the rents, and demanding that payment be made to him.

The legal question involved in this case has recently been carefully considered by Finletter, P. J., in Miles et al. v. Kolsky & Co., 13 D. & C. 579, in which the conflict of decisions is analyzed. The court said: “There are many cases in which the mortgagee is merely a lien holder. And if this is his position, the plaintiffs would have no right of entry or possession. Nor would they have any right to ejectment against the mortgagor. Yet both of these rights exist, without dispute. Even in the cases where the lien theory is adopted, the right to ejectment has not been denied. . . .

“The strongest case for the estate theory is Tryon v. Munson, 77 Pa. 250, in which Mr. Justice Agnew said: ‘The mortgage passes to the mortgagee the title and right of possession to hold till payment shall be made. He may, therefore, enter at pleasure and take actual possession — use the land and reap its profits. Now, this title or lawful right to possession, and actual pedis possessio, are not ideal or contemplative merely, but real and tangible..... Thus we perceive an interest or estate in the land itself capable of enjoyment and enabling the mortgagee to grasp and hold it actually, and not a mere lien or potentiality. . .

“In the instant case, the mortgagor is in possession (it is argued) through the possession of the tenants, under lease from him, and while the mortgagee may bring ejectment, he has not yet done so, he has not yet entered; and until, by some legal method, he obtains possession, the perception of the rents belongs to the mortgagor.

“Assuming all that has been said, it is, nevertheless, true that the mortgagee has the right of entry, and when he has exercised it, may collect the rents. They are expressly conveyed to him by the mortgage. If the mortgagor is personally in possession and denies admittance to the mortgagee, the latter may be obliged to resort to ejectment; but in such an action he would be entitled to mesne profits, that is, to the rents.

“If, however, the land is in the physical possession of tenants under lease from the mortgagor, their possession is, originally, that of the mortgagor. At common law, before they became tenants of the grantee (mortgagee), even after grant, it was necessary that they attorn to the grantee and thereby become his tenant. But this was rendered unnecessary by the Statute of 4 Anne, ch. 16, § 9, which is in force in Pennsylvania: Roberts’ Digest, pages *45 and *46. See Mitchell on Real Estate in Pennsylvania, page 164, where it is said: ‘The effect of this is to pass to the grantee of leased lands all the rights of the grantor as landlord.’ See, also, Tilford v. Fleming, 64 Pa. 300.

“That is, upon conveyance by deed or mortgage, the possession of the tenants becomes that of the mortgagee. He may insist upon the resulting right to receive the rents whenever he pleases. Until he does so, the mortgagor may receive them. But as a consequence of the right of the mortgagee to enter and because they are expressly granted in the mortgage, he has the right to demand the payment of the rent to him. Indeed, it is the only way in which he can at once enforce or obtain the benefit of the express grant contained in the mortgage of the ‘rents, issues and profits’ and the only way in which the ■ primary intent of the parties to give full security to the mortgagee can be fully enforced.

“The right to give notice to tenants and receive the rents is generally admitted. See 19' Ruling Case Law, 315, where it is said: ‘The mortgagee may give notice to the tenant of his right to collect the rents, and thereupon becomes entitled to them because the mortgage transfers the reversions, rents, issues and profits of the mortgaged premises.’ [Citing cases.]

“Chief Justice Shaw said in Burden v. Thayer, 44 Mass. 76: ‘The rents and profits of the mortgaged premises constitute a part of the funds pledged for the payment of principal and interest of the debt to be secured. ... As the mortgage transfers the reversions to which the rent is incident, as it binds the whole of the realty of which the rents after accruing are part, he (the mortgagee) may give notice of his right to the lessee and of his election to take the rents, and then the lessee becomes bound to pay the rent to him as mortgagee.’ ”

The mortgage of the property No. 803 West 66th Avenue conveyed to the mortgagee the “rents, issues and profits” thereof.

The affidavit of defense is insufficient to prevent the entry of judgment.

And now, July 21, 1930, the rule entered in the above entitled case, to show cause why judgment should not be entered for want of a sufficient affidavit of defense, is made absolute; and judgment is entered in favor of plaintiff and against the defendants.


author: Lewis, J.,

text:
    Rouleau v. P. Hughes & Son et al.

      John E. Kehoe, for plaintiff; Georye H. Detweiler, for defendant.
    Aug. 4, 1930.
   Lewis, J.,

This is an appeal from a decision of the Workmen’s Compensation Board awarding compensation to the claimant, Rouleau. The referee refused to award any compensation, but this finding was reversed by the board.

The facts of this case are as follows:

The claimant, Rouleau, in apparent good health, was, on June 27, 1928, pursuing his usual course of employment with P. Hughes & Son as chauffeur and piano mover, at which employment the claimant had worked for periods totaling five years. On this day claimant, with two other men, was delivering a piano. While the empty piano case was being taken through a window, claimant was jammed against the wall, and immediately thereafter experienced pain in the stomach. He went to a drug store for some medicine, and upon examining himself found a lump. The same afternoon claimant visited a doctor, and upon the pain becoming more severe, that night he was taken to a hospital, where very early the next morning he was operated upon for strangulated hernia. It further appears that claimant informed defendant’s foreman twice by telephone within an hour after his injury that he had severe pains, and talked with the foreman about them around noon of the day of the accident, the pains having begun about 9.30 or 10 in the morning. After a hearing, the referee found:

X That the claimant while in the act of delivering a piano at a home in Philadelphia was “jammed” (which the referee finds was a “severe strain”);

2. That the descent of the hernia immediately followed the severe strain;

3. That the claimant suffered actual pain in the hernial region of such severity that he was unable to continue his work, and, further, that the pain manifestations were of such severity that the same were immediately noticed by the claimant.

The referee found that the claimant had not communicated to his employer or a representative of his employer the manifestations of the injury within forty-eight hours after the occurrence of the accident, as required by section 306 (g) of the Act of June 2, 19*15, P. L. 736, as amended by the Act of April 13, 1927, P. L. 186.

The defendant company filed certain exceptions to the findings of fact of the referee, while the claimant appealed to the Workmen’s Compensation Board from the refusal of the referee to recommend an award. The Workmen’s Compensation Board dismissed the exceptions of the defendant and reversed the conclusion of the referee that the notice required by section 306 (g) had not been given, and allowed an award to the claimant.

From this award the defendant appealed, filing exceptions, alleging that the Workmen’s Compensation Board erred in sustaining the findings of fact of the referee and in reversing the disallowance of the award by the referee.

Section 306 (g), as added to the Workmen’s Compensation Act by the Act of April 13, 1927, P. L. 186, reads as follows:

“Hernia shall be considered as a physical weakness or ailment, which ordinarily develops gradually, and shall not be compensable, unless conclusive proof is offered that the hernia was immediately precipitated by such sudden effort or severe strain that: first, the descent of the hernia immediately followed the cause; second, there was actual pain in the hernial region; third, the above manifestations were of such severity that the same were immediately noticed by the claimant and communicated to the employer, or a representative of the employer, within forty-eight hours after the occurrence of the accident.”

It will be noted that the referee found the testimony to comply with all the requirements of the act except the notice within forty-eight hours after the occurrence of the accident. The exceptions by the defendant raise the question whether these findings of the referee which were sustained by the Workmen’s Compensation Board can be upheld. The purpose of this section of the act is to protect employers from- unfounded claims for injuries sustained resulting in hernia. It is clear that the burden of proof is upon the claimant to show that hernia was the immediate result of the injury, and this burden has been further increased by the requirement of conclusive proof. The defendant company claims that the testimony of the surgeon who examined the claimant permits a conclusion that the injury might have started a year ago. We have examined the record, and we believe that the conclusion of the referee as sustained by the Workmen’s Compensation Board is correct. We believe the facts present conclusive proof of the findings of the referee. The exceptions of the defendant company to the findings of fact of the referee and of the Workmen’s Compensation Board are overruled.

The next question concerns itself with a difference of opinion between the referee and the Workmen’s Compensation Board as to proper construction of the requirement of the act that “the manifestations were of such severity that the same were immediately noticed by the claimant and communicated to the employer, or a representative of the employer, within forty-eight hours after the occurrence of the accident.” The referee stated that this section of the act requires a claimant to bring home to the employer within forty-eight hours not only the fact of the immediate descent of the hernia and actual pain, but he must also advise his employer of the cause, the act or acts of employment from which the sudden effort or severe strain resulted. “If this were not true,” the referee states, “the very purpose of prompt communication to the employer would be defeated. . . . Surely the manifestations to be communicated to the employer should include the cause which is alleged to have immediately preceded the descent of hernia and produced it.” The opinion of the Workmen’s Compensation Board holds this is a reading into the act of something which is not there. “All that the act requires is that the manifestations be reported to the employer. It does not require the employee to detail the exact manner in which the accident happened.” The Workmen’s Compensation Board concludes that by notifying the defendant company’s foreman of his sudden illness and of the lump which appeared, the claimant satisfied the requirements of the act.

The views of the referee in his interpretation of this section would require that for a claimant to obtain compensation he must not only communicate that he has had an injury, but the exact nature of the injury and the circumstances which gave rise thereto within forty-eight hours after it has occurred.

The testimony in this case shows that the claimant informed the foreman that he was ill almost immediately after he first felt the pains; that later the further manifestations of the injury, the appearance of the lump and sickness, were orally described to the foreman, but the evidence does not show that the claimant was able accurately to describe the cause which gave rise to the injury.

In our opinion, the manifestations referred to in the act do not include a description of the cause which gave rise to the injury. The word “manifestations” can only refer to the effects of the injury. The act merely prescribes certain necessary evidences which must appear before hernia will be compensable. It requires as the first evidence an immediate descent of the hernia; second, actual pain in the hernial region; and, third, that the claimant must have immediately observed and felt the first and second evidences and given •notice thereof to his employer. We believe that it is sufficient compliance with the act that the claimant communicated to the foreman notice of the pain immediately following his perception of it, and that he exhibited the “lump” to the foreman. It must be remembered, also, that there is evidence that the foreman was informed the morning after the injury that the claimant had been operated on for strangulated hernia.

The purpose of the act is to give employers immediate notice of any injury in order to protect them from false claims for compensation. In the present case, the employer had ample notice that the claimant was injured during the time of his employment and that this injury resulted in hernia. Not only have the specific requirements of the act been complied with, but the spirit of the act and its purpose will be sustained by the allowing of this award.

All defendants’ exceptions to the award of the Workmen’s Compensation Board are dismissed, the award affirmed, and judgment- is entered in favor of the plaintiff and against the defendant for $135, representing total disability of $15 per week for nine, weeks to Sept. 7, 1928, and for $15 per week dating from Sept. 7, 1928, and continuing during the claimant’s partial disability and until such disability changes in extent or entirely ceases, in accordance with the award of the board.


author: Fleming, P. J.,

text:
    Bowers v. Smith, County Treasurer.

      John G. Love, for plaintiff; S. D. Gettig, for defendant.
    Sept. 18, 1930.
   Fleming, P. J.,

The bill filed herein raises the question of the constitutionality of the Act of May 9, 1929, P. L. 1684. At the time of the filing of the bill, to wit, Aug. 2, 1930, the county treasurer had, pursuant to the provisions of said act, advertised for sale the real estate of the plaintiff, together with real estate of numberous other taxpayers, within the county. This sale was advertised to be held on Aug. 4, 1930.

The questions raised were of such vital importance to the taxpayers and to the county that we felt that the act should be carefully considered before an injunction was granted or refused. We, accordingly, directed the county treasurer to adjourn such sale to a day certain, issued a rule upon him to show cause why an injunction should not be granted, and fixed a date for hearing on such rule. The county treasurer, fully recognizing the importance of the matter, has cooperated most fully, adjourning his sale to a date certain, the matter has been argued, and is now before us for final disposition.

The plaintiff, in his argument, has asserted three main reasons why the county treasurer should be restrained from making sale as aforesaid, to wit:

1. That the Act of May 9, 1929, P. L. 1684, offends against article ill, section 3, of the Constitution of the Commonwealth of Pennsylvania.

2. That the Act of May 9, 1929, P. L. 1684, offends against the 14th Amendment to the Constitution of the United States.

3. That the Act of May 9,1929, P. L. 1684, in so far as 1929 taxes in Centre County are concerned, is not retroactive, and that its provisions, therefore, if constitutional, do not authorize the sale as advertised in this proceeding.

Section 3, article in, of the Constitution of the Commonwealth of Pennsylvania provides that “no bill, except géneral appropriation bills, shall be passed containing more than one subject, which shall be clearly expressed in its title.” The title of the Act of 1929 in question is as follows:

“An act authorizing and empowering the county treasurers of the several counties of this Commonwealth to sell at public sale all seated lands upon which taxes assessed on such seated lands by authority of any county, borough, town, township, school district, and poor district are delinquent and remain unpaid, and fixing penalties for such delinquency; authorizing county commissioners to purchase such lands under certain circumstances.”

It is contended that because section 1 of the act in question prescribes certain duties to be performed by tax collectors, by way of making returns of unpaid taxes, for which no liens have been filed, on or before a day certain named in the act, that this is introducing a matter not expressed in the title. We cannot assent to this contention. The title to the act gives ample notice of its intent to authorize and empower county treasurers to sell, at public sale, those seated lands upon which taxes have not been paid. Taxes levied and assessed by the several taxing authorities are collected by our tax collectors. They alone are in a position to know what taxes remain unpaid. Until that knowledge is imparted to those in whom our legislature has vested the power of sale for such delinquency, no such sales can be had. The subject of the return of unpaid taxes by the collector is fully connected with and wholly germane to the one general subject of the act, to wit, the sale of seated lands for non-payment of taxes.

Mr. Justice Mestrezat, in Booth & Flinn, Ltd., v. Miller, 237 Pa. 297, 303, in speaking of section 3, article III, of our Constitution, says, in part:

“The purpose of the section in question was, as we have frequently said, to strike down omnibus bills which unite in the same law subjects entirely foreign to and not connected with each other, thereby giving no notice of the greater part of the contents of the bill and affording opportunity for fraud and deception. It is, however, no infringement of the section, if there are several provisions in the bill, provided they are connected with and germane to the one general subject of the legislation. It is sufficient if they relate to andaré a means of carrying out the one general purpose of the act. As said by Sterrett, C. J., in Kelley v. Mayberry Township, 154 Pa. 440, 449, instead of containing more than one subject, the provisions are cognate, each, respectively, relating not to a separate and independent subject of legislation, but to branches of the same general subject.”

The title need not embody all the distinct provisions of the bill nor serve as an index or digest of its contents, but it is sufficient if the title fairly gives notice of the real subject of the bill so as to reasonably lead to an inquiry into what is contained in the body of the bill: Com. v. Lloyd, 2 Pa. Superior Ct. 6; Rose v. Beaver County, 204 Pa. 372; Buffalo B. M. F. C. v. Breitinger, 250 Pa. 225; Fedorowicz v. Brobst, 62 Pa. Superior Ct. 458, 254 Pa. 338. These and many other authorities show this to be the long established rule in such matters.

The act in question clearly states in its title that it is an act authorizing and empowering county treasurers to sell seated lands for non-payment of taxes and fixing penalties for such delinquency. Section 1 prescribes what such penalties shall be and provides that tax collectors shall return unpaid taxes on seated lands to the county commissioners of the county wherein such real estate lies, and for which no liens have been filed, not later than the first Monday of May, in the year succeeding the year in which the respective taxes were assessed and levied. The county commissioners and the several tax collectors are the basic and fundamental offices in our system of taxation and have long since been such. The former fix the millage for county purposes and cooperate with borough, township, school and poor authorities in embodying in the duplicate such taxes, other than county tax, as are levied and assessed upon seated lands. The latter receives or collects such taxes and is responsible personally or through his sureties for his failure so to do. The empowering of the county treasurer to sell seated lands upon which such taxes remain unpaid is but a further step in the furtherance of a common purpose, to wit, the levying and collection of taxes, embodied in one general subject of taxation. “Instead of containing moi’e than one subject, the provisions . . . are cognate, each respectively, relating not to a separate and independent subject of legislation, but to branches of the same general subject:” Kelley v. Mayberry Township, 154 Pa. 440, 449. Of this conclusion we have no doubt, but if such doubt existed it would be our duty to resolve such doubt in favor of the validity of the legislation: Com. ex rel. v. Benn, 284 Pa. 421. We, therefore, find no merit in plaintiff’s contention that the act is unconstitutional as being an infringement upon section 3, article m, of the Constitution of the Commonwealth of Pennsylvania.

The 14th Amendment to the Constitution of the United States, section 1, provides that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Plaintiff’s further contention is that section 9 of the Act of May 9, 1929, P. L. 1684, violates the 14th Amendment to the Constitution of the United States, in that it deprives persons of their property without due process of law. Section 9 of the act in question provides as follows:

“It shall be the duty of the county treasurer, at the first term of a court of common pleas of the proper county succeeding such sale, to make a report and return, wherein he shall set forth a brief description of the land or property sold, the name of the person (when known) in which the same is assessed, the amount of tax and the year for which the same is assessed, the time when and the newspapers in which the advertisement for sale was made, with a copy of said advertisement, the time of sale, the name of the purchaser, and the price for which each respective property was sold; and, upon the presentation of said report or return, if it shall appear to said court that such sale has been regularly conducted, under the provisions of this act, the said report and the sale so made shall be confirmed nisi; in case no objections or exceptions are filed to said sales within ten days, a decree of absolute confirmation may be entered as of course by the prothonotary. In case any objections or exceptions are filed, they shall be disposed of according to the practice of the court, and, when the same are overruled or set aside, a decree of absolute confirmation shall be entered as aforesaid, but all objections or exceptions shaRbe confined to the regularity of the proceedings of said treasurer.”

The specific objection to this section is that the objections and exceptions to be offered to the confirmation of sale are confined and restricted to such as pertain to the regularity of the proceedings of said treasurer.

“The guaranty of due process of law is one of the most important to be found in the federal constitution or any of the amendments; indeed, it has been said that without it the right of private property could not be said to exist, in the sense in which it is known to our laws. The right is of such importance that the people have never delegated to either the state or federal government the power to deprive a person of property except by observing its requirements. The provisions embodying this guaranty have received a very broad and liberal interpretation, and it has been said that the guaranty is always and everywhere present to protect the citizen against arbitrary interference with his rights. Its effect is to inhibit the taking of one person’s property and giving it to another, contrary to settled usages and modes of procedure, without notice and opportunity for a hearing. An attempt by statute to work such a change of ownership would be a glaring violation of this guaranty, and could not be defended as an exercise of the police power. The term ‘law’ as used in this guaranty, embraces all legal and equitable rules defining human rights and duties, and providing for their enforcement; not only as between man and man, but also between the state and its citizens. The term ‘due process of law’ includes all the steps essential to deprive a person of life, liberty, or property; it includes all the forms and acts essential to its application and to give effect to it. The means that may be employed to accomplish the purpose of the law is the process; in other words, ‘proccess’ is the mode by which the purpose of the law may be effected. The protection extends to rights, in the broadest sense of the term. In determining whether the requirement has been observed, regard must be had rather to substance than to form; for the mere form of the proceeding cannot convert the process used into due process of law, if the necessary result is illegally to deprive a person of his property without compensation:” 6 Ruling Case Law, § 433, page 436.

The requirements of due process of law extend to every case of the exercise of governmental power, and a state may not by any of its agencies— legislative, judicial or executive — disregard the constitutional prohibition: Abbott v. Tacoma Bank of Commerce, 175 U. S. 409.

“The essential elements of due process of law are notice, and an opportunity to be heard and to defend in an orderly proceeding adapted to the nature of the case. In fact, one of the most famous and perhaps the most often quoted definition of due process of law is that of Daniel Webster in his argument in the Dartmouth College case, in which he declared that by due process of law was meant ‘a law which hears before it condemns; which proceeds upon inquiry, and renders judgment only after trial.’ Somewhat similar is the statement that it is a rule as old as the law that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear, and has been afforded an opportunity to be heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be upheld where justice is fairly administered:” 6 Ruling Case Law, § 442, page 446.

Common experience and the admitted human tendency to err show clearly that there may be things other than the regularity of the proceedings of the treasurer which would vitally affect the title of the taxpayer under the act, and which, if not heard and determined, would cause him to be deprived of his property. Double assessments, moneys paid without proper credit having been given therefor, other errors in the duplicate or other records, or other causes, while vitally essential to the taxable and his right to retain his property, would not be reviewable under the section of the act now under consideration. Nor can it be said that the taxable has had, anywhere through the several steps leading up to the sale, the right to have such claims legally determined. The act in question does not provide such earlier opportunity, nor does any other legislation appear to afford such a remedy. The duplicates are prepared by the proper authorities — the taxable has nothing to do with or right to correct any error which may be made therein. The duplicate is placed with the collector, with a warrant requiring him to collect the several amounts shown thereby from the several parties named therein, and to pay over the same, plus penalties, to the proper parties, less allowable discounts, commissions and expenses, and such exonerations as the taxing authorities may see fit to allow. If an error occurs in the duplicate of any sort, the taxable may call the attention of the collector or of the taxing authorities to the same and they may correct such error, but if they arbitrarily refuse, the taxable has no opportunity to have the matter legally determined. Under the act, if the disputed item remains unpaid upon the duplicate upon the first Monday of May, in the year following the year in which such alleged taxes were assessed and levied, the collector mast return the same to the commissioners. These officials may consider the claim of the taxable and correct it or they may arbitrarily refuse it and, again, the taxable is without opportunity to have the matter legally determined. The commissioners must certify the same to the treasurer, where again, if those officials reject the claim, the taxable again is without opportunity to be properly heard. The treasurer must advertise and sell. The notice to the taxable of the sale affords no relief to him from the alleged error, as it is a notice of sale alone. And, finally, when the treasurer has sold and makes his return of sale, under the provisions of section 9 of the act under consideration, the taxable has no right to be heard, for the section restricts such objections or exceptions to matters pertaining to the regularity of the proceedings alone. Thus, nowhere has the taxable had an opportunity to be heard.

We grant that while it is the general rule that every one is entitled to a hearing as an essential part of due process of law, a statute is not unconstitutional merely because it authorizes a ministerial act by which possession of property is taken before the right to it1 has been judicially determined, as in attachment and replevin proceedings, but an opportunity to be heard must be given before final judgment is entered, as is done in attachment and replevin. The legislature can say when such a hearing is to be had, but it cannot eliminate such a hearing entirely without grossly infringing on the taxable’s constitutional right under the 14th Amendment. Nor does the' fact that the taxable is given a right to redeem, under section 13, cure this defect, as (1) such right does not amount to a hearing of the taxable’s claim and (2) is a right accruing after, and not before the final judgment provided for in section 9.

“It has been judicially stated that it is beyond the power of the legislature to restrain a defendant in any suit from setting up a defense to an action against him and that due process of law not only requires that a party shall be properly brought into court, but that he shall have the opportunity, when in court, to establish any fact, which according to the usages of common law or provisions of the constitution, would be a protection to his property or his liberty. Due process of law clearly implies the right of the person affected thereby to be present before the tribunal which pronounces judgment concerning his life, liberty or property, to be heard by testimony or otherwise, and to have the right of controverting by proof every material foot which bears upon the question or right in the matter involved: ” 6 Ruling Case Law, § 449, p. 453.

How, then, can the legislature, having failed to provide any opportunity for the taxable to be heard preliminarily as to every material fact which would tend to establish in him a right to retain his property, arbitrarily refuse him such right at the threshold of the entry of final judgment. This is certainly what is done when the act refuses him the right to object or except to anything other than the regularity of the proceedings of the treasurer. The taxable here is in the same status as a defendant in a regularly established suit. The Commonwealth is the plaintiff and is accorded every opportunity to assert its claim against the taxable. The taxable may be said to have been properly brought into court by the notice of sale, prescribed by section 4 of the act, but he has been deprived of that hearing required by the Constitution, where his lips are sealed as to many possible material facts by the prohibition that he shall object or except to nothing but the regularity of the proceedings of the treasurer. This makes it a law which condemns but does not hear; which renders judgment without trial and which does not proceed upon inquiry. We, therefore, assent to the contentions of the plaintiff and conclude that section 9 of the Act of May 9, 1929, P. L. 1684, infringes upon the provisions of the 14th Amendment to the Constitution of the United States, and cannot be enforced by reason of such infringement.

Consideration of plaintiff’s third point is unnecessary for the purposes of the bill.

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

1. That the rule heretofore issued herein upon the defendant to show cause why an injunction should not issue restraining the sale advertised to be held on Aug. 4, 1930, or the adjournment thereof, be and the same is hereby made absolute.

2. That counsel for plaintiff forthwith prepare, in compliance with Equity Rule No. 73, a proper decree in conformity with this opinion.


author: Schnader, Special Dep. Att’y-Gen.,

text:
    Patients in State Mental Hospitals.
    June 6, 1930.
   Schnader, Special Dep. Att’y-Gen.,

We have your request to be advised with respect to the rate which it is the duty of your department to collect from the counties for the maintenance of patients committed to state mental hospitals while awaiting trial for crime.

You call our attention to the fact that section 308 of the Mental Health Act of July 11, 1923, P. L. 998, expressly provides that the expense of maintaining insane prisoners who have been convicted of crime is payable in full by the county liable for the maintenance of the prisoner in the prison from which he was removed.

This same section of the Mental Health Act clearly applies also to cases in which persons are committed to state mental hospitals while awaiting trial and, therefore, before conviction.

The first words of the section are: “When any person detained in any prison, whether waiting trial or undergoing sentence, or detained for any other reason (e. ff-, as a witness),” shall require treatment in a mental hospital he shall be committed according to the procedure set forth in the section. Thus it will be seen that this section applies with equal force to prisoners awaiting trial and to those undergoing sentence.

The section continues :

“The expense of examination, including the fees of physicians or commissioners, and all costs incident to such removal, and of maintenance in the hospital previous to the expiration of sentence, shall be paid by the county liable for the maintenance of the patient in the prison from which he was removed, without recourse against any poor district."

The words “previous to the expiration of sentence” cannot possibly be construed to limit the application of the quoted paragraph to cases where persons accused of crime have been convicted and are removed to mental hospitals while undergoing sentence.

You call our attention to sections 502 and 507 of the Mental Health Act as relevant to the consideration of the question you ask.

Section 502 applies to the commitment of persons accused of crime, but who are out on bail awaiting trial, or of prisoners who before or during trial are found or thought to be insane. This section provides that the expense of commitment and removal to or from a hospital for mental diseases shall be paid by the county in which the person or prisoner is committed, and permits the county to recover the expense from the estate of the patient or the persons liable for his support, but not from any poor district. This section is not in any way inconsistent with section 308.

Section 507 expressly provides that “the expenses of the care and maintenance, including clothing, of insane prisoners shall be paid in the same manner as the costs of commitment of such prisoner, as provided in section five hundred and two of this act: Provided, That if the term of sentence of any prisoner shall expire while he is still a patient in any hospital, such expenses shall thereupon become chargeable as provided in section five hundred and three of this act.”

This section also is consistent with section 308, but it places a limitation upon the application of section 308 in the case of patients who have been convicted of crime and removed to state mental hospitals while undergoing sentence. The section expressly provides that after a sentenced prisoner’s term has expired, if he continues as a patient in a state mental hospital, the cost of maintenance shall be collected after the expiration of the term as in the case of patients committed while not awaiting trial or undergoing sentence for crime. Therefore, we advise you:

(1) That it is the duty of your department to collect from the counties the full cost of maintenance of patients committed to state mental hospitals while in custody because they are charged with crime or because they have been convicted of crime or because they are being held as material witnesses to crime. The only exception is that in the case of persons undergoing sentence the county’s liability for the full cost of maintenance expires when the term of sentence of the patient has come to an end. Thereafter it is your duty to collect the cost of maintaining the patient as in the case of patients committed while free from any charge of crime.

(2) That in the case of persons committed to state hospitals while out on bail awaiting trial for crime it is your duty to collect the full cost of maintenance from the counties as long as the patient remains in the institution.

Prom C. P. Addams, Harrisburg', Pa.


author: Windle, J.,

text:
    Henry et ux. v. Miller.
    No. 1.

      T. D. Wade, for plaintiffs; Walter S. Talbot, for defendant.
    Feb. 17, 1930.
   Windle, J.,

In this action in trespass plaintiffs sought to recover damages for injuries received by plaintiff, Ethel F. Henry, when the automobile in which she was riding, and which was being operated by defendant, left the road and hit a telegraph pole. At the trial, after plaintiffs’ ease was in, defendant made a motion for a nonsuit, on the ground that the evidence established contributory negligence on the part of said Ethel F. Henry. The motion was granted and plaintiffs now move to strike it off.

Plaintiff, Ethel F. Henry, and Lois Henry, her daughter, were passengers in the car driven by defendant on the way from Downingtown, in this county, to Philadelphia. They proceeded eastwardly on the Lincoln Highway to Frazer, thence southwardly to the Philadelphia-West Chester Pike, and on the latter road eastwardly toward Philadelphia. It was or had been raining, and the road was wet and slippery, according to Mrs. Henry’s testimony. Shortly after turning on to the Philadelphia-West Chester road defendant attained a speed of about forty miles per hour, which she maintained until the accident happened, “quite a few miles” away. While so traveling, as Mrs. Henry herself testified, defendant cut around cars, when she “should not have,” causing two other drivers on the road to hold up their hands and one to shake his fist at her. Mrs. Henry also stated that defendant was running “too fast for slippery roads.” Twice Mrs. Henry admonished defendant about her operation of the car, telling her “she had better take it a little easy,” but, she testified, defendant paid no attention to the admonition at either time and did not slacken her speed. Shortly after the second warning, the car skidded, swung across the road and hit a telegraph pole on the south side of the pike, as a result of which the plaintiff, Ethel F. Henry, received the injuries complained of. No other car was passing at the time of the accident and there was no cause therefor — as far as Mrs. Henry could see.

Under the above circumstances, plaintiff, Ethel F. Henry, was guilty of contributory negligence. The accident was caused by the negligent operation of the car by defendant, who was evidently driving- too fast for the slippery condition of the wet road, and was taking chances in passing cars overtaken by her. No other reason for the skidding appears than the high speed of the automobile and the obvious condition of the highway. Plaintiff realized that defendant was driving too fast and negligently and cautioned her twice in regard thereto. After the second warning, however, when defendant did not change her manner of driving, plaintiff did nothing. Because of that, she is guilty of contributory negligence and may not recover. “If there be threatened danger which is known to the passenger and unobserved by the driver, the passenger would be guilty of negligence if he failed to notify and warn the driver; also, if the driver be careless or reckless in his conduct and this is known to the passenger, and there be reasonable opportunity to do so, it would be the passenger’s duty to caution the driver and remonstrate with him, and if the latter persisted in his improper conduct, to leave the vehicle; but, manifestly, that would not be possible nor could it be required in every ease:” Vocca v. Pennsylvania R. R. Co., 259 Pa. 42, quoting, with approval, from Hermann v. Rhode Island Co., 36 R. I. 447. Mrs. Henry, according to her own testimony, was clearly aware that defendant was driving negligently. She very properly warned defendant, but the latter did not heed the warnings. Plaintiff was aware that, after the second warning, defendant still was driving improperly, but did nothing further. She should have endeavored to avoid harm to herself, and her daughter, by demanding that defendant stop the machine and allow them to leave it — when they could very readily have continued their journey to Philadelphia by the trolley that ran alongside of the road upon which they were traveling. This she did not do, although there was sufficient opportunity therefor after the last warning and before the happening of the accident. Because she did not, she was herself guilty of negligence and may not be permitted to recover damages against defendant. The nonsuit was properly granted. Motion overruled.


text:
    Henry et al. v. Miller.
    No. 2.

      T. D. Wade, for plaintiffs; Walter S. Talbot, for defendant.
    March 17, 1930.
   Windle, J.,

This case was tried with that of Floyd E. Henry and Ethel F. Henry, his wife, v. Blanche Miller, No. 95, April Term, 1929, and a nonsuit was granted in both cases, on the ground of contributory negligence. For the reasons given in the opinion this day filed in the above mentioned case, overruling a motion to strike off the nonsuit therein, we overrule the like motion in this suit. Plaintiff, Lois Henry, a passenger in defendant’s car along with her mother, Ethel F. Henry, testified that defendant was driving forty miles per hour, and faster going down hill, that she, plaintiff, knew it was a dangerous rate of speed, but that she made no protest. She is sixteen years of age, old enough to be chargeable with contributory negligence. She was guilty thereof on the day in question and may not recover.

Motion overruled.


text:
    Commonwealth v. Kolsky et al.

      Charles F. Kelley, Assistant District Attorney, for Commonwealth.

      Morris Wolf and David S. Malis, for defendant.
    Aug. 2, 1930.
   Lewis, J.,

The defendant, Louis Kolsky, was indicted with four others on a charge of conspiracy. The first of the two counts of the bill charged that the defendant with the others conspired, by false and fraudulent representation, to cheat and defraud the Denckla Building and Loan Association of $10,000 in a transaction whereby the association was led to make a second mortgage loan in that sum on a garage property located in the City of Philadelphia. The second count was a general charge of conspiracy to cheat and defraud the building and loan association of $10,000 in connection with the garage transaction.

At the conclusion of the presentation of the Commonwealth’s evidence, defendant’s counsel entered a demurrer, and we have had before us, therefore, since the day of trial a plain question of law. Our duty in the premises is succinctly defined by the Superior Court in Com. v. Williams, 71 Pa. Superior Ct. 311, as follows:

“In criminal cases demurrer to the evidence of the Commonwealth admits all the facts which the evidence tends to prove and all inferences reasonably deducible therefrom: Com. v. Parr, 5 W. & S. 345; Golden v. Knowles, 120 Mass. 336; Wharton’s Crim. Ev., § 616; McKowen v. McDonald, 43 Pa. 441. The court in such case is not the trier of the facts. The admissions implied in the demurrer leave for consideration the single inquiry whether the evidence introduced presents such a state of facts, with the inferences fairly arising therefrom, as would support a verdict of guilty.”

And in the later case of Com. v. Smith, 97 Pa. Superior Ct. 157, where it is additionally said:

“On a demurrer to the evidence, every fact which the jury could infer in favor of the party offering it from the evidence demurred to is to be considered as admitted.”

We have sought, therefore, by most careful reading and re-reading of the testimony and the briefs of able counsel to determine what facts and possible inferences favorable to the Commonwealth are disclosed by the record.

We must bear in mind that “when a crime charged is sought to be sustained wholly by circumstantial evidence, the hypothesis of guilt or delinquency should flow naturally from the facts and circumstances proved, and be consistent with them all.” And that “the evidence of facts and circumstances must be such as to exclude to a moral certainty every hypothesis but that of guilt of the offense imputed, or, in other words, the facts and circumstances cannot only all he consistent with and point to the guilt of the accused, but they must be inconsistent with his innocence:” Com. v. Byers, 45 Pa. Superior Ct. 37.

We must have regard, also, as we are reminded in this last cited case, to the fact that there is a presumption of innocence and that it is “our duty to determine as a matter of law whether the proof has been sufficient in volume and quality to overcome that presumption;” and that “in favor of the liberty of the citizen the court may, and in a proper case should, declare the evidence insufficient to convict.”

In analyzing the testimony, we have had no difficulty in concluding that there was not sufficient proof to establish the guilt of the defendant of a conspiracy to make a false pretense and representation with regard to the circumstances under which the Hubert Building and Loan Association granted a mortgage loan on the garage building and then failed to consummate the transaction. Hence, that portion of the first count of the conspiracy indictment may be disregarded.

The remainder of the first count is to the effect that the defendant and others conspired to cheat and defraud the Denckla Association of $10,000 by falsely and fraudulently representing, both prior to and at the time of settlement, March 5, 1926, that the garage property on which the second mortgage loan was to be made was being purchased by Silverman and Mahoney for a price or consideration of $72,000, $17,000 of which was to be, or was being, paid in cash, including $8000 already alleged to have been deposited as down money — in brief, that the buyers of the garage property were contributing as an equity over and above the mortgages $17,000 in cash to complete the purchase price.

No evidence appears to question the payment by the purchasers of the $8000 alleged deposit in cash; the controversy relates entirely to an additional sum somewhat in excess of $10,000 required to make up the balance of the $17,000 and the settlement charges.

The evidence was ample to justify the jury in finding as facts that the representation was made by Satz and Yaskin, two of the co-defendants; that the purpose of the representation was to induce the Denckla Association to make the second mortgage loan of $10,000; that the association relied upon the representation in agreeing to make the loan; that a settlement hour was fixed on March 1, 1926, at which time the association was not prepared to complete the transaction and a further meeting was arranged for March 5, 1926, in the settlement rooms of the Peoples Bank and Trust Company of Philadelphia; and on that day all of the defendants were present in person around the settlement table, together with the conveyancer and another representative of the Denckla Association; that Kolsky and Company, in which the defendant, Kolsky, was substantially interested as co-owner and manager, was virtually the real owner of the garage property, title to which was held in the name of Kolsky and Company’s straw-representative, Ida Abramson; that Silverman, one of the supposed purchasers of the garage property, signed a check in blank and handed it to Kolsky, who filled in the check for an amount approximating $10,000, representing the balance of the purchase price payable by the buyers, and that Kolsky then handed this check to Mercer, the settlement clerk; that thereupon a settlement sheet was made up by Mercer containing an entry of a credit to the buyers for a payment corresponding to the balance shown to be due by them to complete the settlement, and distribution checks were drawn, or at least some of them were, and two cheeks were delivered to the representatives of the Denckla Association, who thereupon left the settlement room; that at this moment of time there remained around the settlement table the settlement clerk, Mercer, Kolsky, Yaskin and Satz, the supposed actual vendors, and Silverman, one of the supposed buyers; that at some time subsequent to the departure of the loan association’s representatives, the 'settlement sheet figures were changed, so that instead of there being exhibited thereon an entry representing actual payment by the buyers of this balance of purchase price and expenses in excess of $10,000, a “credit,” without explanation or detail, was given to the buyers in the exact sum necessary to make up the settlement funds, and Silverman’s check was not retained by the settlement clerk and did not pass through the Peoples Bank and Trust Company as part of the settlement transaction; that Kolsky and Company obtained, directly or indirectly, a substantial part of the money passing at the settlement after the deduction of the customary charges and disbursements; that the transaction was finally recorded on a settlement sheet of the trust company and on its records as including no payment in cash to the trust company as settlement agent on the part of the purchasers, Silverman and Mahoney, “credits” being given to them not only for $8000 down money as having already been paid and for the $10,810.69 additional required, but a further unexplained “credit” of $5750. The settlement clerk testified, and it is not disputed, that the only cash that did pass through the trust company as settlement agent was $10,000 paid by the Denckla Association to complete its mortgage loan and $1759.95 deposited by Kolsky and Company as agents for the new first mortgagee to complete the fund of $45,000 to be secured by a first mortgage. The jury could clearly find that of this $11,759.95 so paid in, $4750 was disbursed to Abe Kolsky and Company for services, apparently commissions, and $788 for fire insurance, and the net balance remaining after all charges, $3089.95, was represented by a settlement check payable to Ida Abramson, which was found to have been endorsed by her and to have been deposited to the credit of Kolsky and Company’s bank account.

Notwithstanding the foregoing, no direct evidence appears that the defendant, Kolsky, conspired or agreed with the others to make any false representation to the building and loan association with regard to the purchase price or to the character of payments. The Commonwealth asserts that it has proved the overt act — a false and fraudulent representation by Satz and Yaskin, relied upon by the victim, and the beneficiaries of which were Kolsky and his co-defendants. The district attorney contends the facts raise an inference of an unlawful concert or conspiracy by the participants. The Commonwealth argues that a false credit was given to the supposed buyers; that the use of Silverman’s check, filled in by Kolsky and delivered to Mercer, was a trick which kept alive and renewed the false pretense and was calculated to and did lead the loan association to fall a victim to the conspiracy to cheat and defraud it; that Kolsky was the chief beneficiary; that all this was not possible without Kolsky’s knowledge and consent, and that he, therefore, must have been a party to the fraud.

It is conceded, however, the real proof of conspiracy as to Kolsky depends upon whether a false representation has been proven. The gist of the entire case will be found, therefore, in the question: “The evidence being sufficient to show a representation that the purchasers were paying $72,000 for the property, of which $17,000 was being paid in cash, could the jury from the evidence before it lawfully find that the sum of $17,000 was not paid in cash?”

No direct evidence was offered to the effect that the purchasers did not pay to the sellers the $17,000 in cash; that is, no one in a position to know testified that it was not paid except the settlement clerk, Mercer, who (page 84, notes of testimony) was examined and answered as follows:

“By Mr. Kelley: How much money was actually put up to make this settlement? A. $11,759.95. Q. And who put up that $11,759.95? A. That was in two items, one an item of $10,000 from the Denckla Building and Loan Association, and an item of $1759.95 from the Tri-County Building and Loan Association. Q. And that is all the money that was put up to make this settlement? A. Yes, sir. Q. That’s all.”

That is direct evidence of the most positive character that the $17,000 was not paid in cash at and as part of the settlement. Is this sufficient proof of non-payment in a criminal prosecution? Must not the possibility of payment outside of the settlement routine be negatived by the Commonwealth, especially in view of the fact that the credit for apparent payment was allowed by the sellers, and this may be said to constitute prima, facie evidence of payment? There is no evidence of any kind as to what disposition was made of the Silverman check alleged to have been handed to Mercer, which Mercer denied having received; nor is there any direct evidence that Kolsky remained in the settlement room during the time when any arrangement was made for the return or destruction of the check, nor during the time when the settlement sheet was altered and the credit given the purchasers in lieu of cash.

Hence, the evidence relied upon by the Commonwealth to sustain a conviction of the defendant on the conspiracy charge is purely circumstantial; first, that no money passed from buyers to sellers as part of the settlement, where it would ordinarily have been paid; that Kolsky “filled in” the check; that Kolsky remained in the settlement room when the representatives of the building and loan association departed after seeing the check delivered to Mercer and after having examined Mercer’s settlement sheet; that the disposition of the check is not accounted for; that Kolsky, through his part ownership of Abe Kolsky and Company, was the recipient of the larger part of the money obtained from the Denckla Association, in the guise of commissions, credits for services, or as the principal of- Ida Abramson, the straw-woman; that Kolsky was the dominant factor in the entire transaction of financing the garage property and wrote a letter of instruction to the trust company which evidences his complete control of the settlement; that the trust company could not have allowed the “credit” to the buyers without authority from the sellers, and Kolsky. controlled and actéd for Ida Abramson, who held title, and Kolsky must, therefore, have been the one to give consent to the withdrawal of the check and to the allowance of the credit in lieu of money, and this happened after the association’s conveyancer had left the settlement room.

The Commonwealth’s case is strong, but being circumstantial, to justify conviction, the “evidence as to the fact of a crime committed, and its author, should be such as to exclude all rational theories but that the crime existed and the accused was its author:” Com. v. Exler, 61 Pa. Superior Ct. 423.

As we have said, also, the evidence of facts and circumstances “must be such as to exclude to a moral certainty every hypothesis but that of guilt of the offense imputed:” Com. v. Byers, supra, Com. v. Bone, 64 Pa. Superior Ct. 44.

We have taken great care to be sure that our conclusion in this case should be legally the right one. We have had great difficulty in excluding from our mind assertions which were presented to us at the trial informally and are, hence, not upon the record and form no proper part of the case. We think it extremely unlikely that the transaction was bona fide; our own opinion is quite strong that Silverman and Mahoney did not pay the $8000 down money nor the $10,810.69 balance of the purchase money either in cash or in property or in any other thing of value. We are strongly convinced by the circumstances that the check signed by Silverman and alleged to have been filled in by Kolsky was later withdrawn from the settlement clerk and destroyed with the consent of Kolsky. But the defendant is not to be convicted upon the opinion of the trial judge, not based entirely upon evidence duly presented, nor upon probabilities where the evidence relied upon consists of a chain of events entirely circumstantial.

To find the defendant guilty, we must first conclude a false representation has been proved — i. e., that the evidence establishes that the $17,000 was not paid by Silverman and Mahoney and excludes any hypothesis that it was paid. This conclusion we cannot lawfully and conscientiously reach from the evidence. It is true the evidence is amply sufficient to justify a jury in concluding that the balance of the purchase money was not paid either in cash or in any other form through the title company at the time and place fixed for the settlement; but conceivably may the check not have been deposited and collected by Ida Abramson apart from the settlement? The weak link in the Commonwealth’s chain is the very failure to account for the disposition of the check. May it not be that for purposes of their own the parties elected not to pass the money represented by the cheeks through the trust company’s books? It is conceivable, when regard is had only to the record, that if we should overrule the demurrer and adjudge this defendant guilty, evidence might be forthcoming from the missing witness, Abramson, and from Silverman to establish that, apart from the trust company, the check as drawn was paid or that money was substituted for the check, and that, hence, the credit was not a trick or subterfuge, but represented money eventually received. In other words, the Commonwealth has failed to exclude the hypothesis that payment may have been made despite the strongly suspicious circumstances surrounding the transactions at the Peoples Bank and Trust Company. Silverman was not called as a witness, and neither he nor any one else gave evidence that' the check was not paid; the Commonwealth endeavored to locate Ida Abramson, presumably to have her testify that the consideration was not received either in cash or otherwise, but she was not to be found. Regardless of whatever reluctance we may feel, the evidence being circumstantial and being consistent with the hypothesis of innocence of participation in any conspiracy to cheat and defraud by false representation, the demurrer must be sustained and the defendant discharged without day, and we so order.

From our decision the Commonwealth may appeal, and if we have erred the error will be corrected by the Superior Court. We are not now disposing of the motions for a new trial filed on behalf of Satz and Yaskin, for the reason that one question there involved is identical with that which we have herein discussed, and we will await the judgment of the appellate court.


author: Henderson, J.,

text:
    Hornstine’s Estate.

      Joseph Gross, for exceptions; Blumberg & Sork, contra.
    Oct. 28, 1930.
   Henderson, J.,

The decedent had been convicted of fornication and bastardy, and under the Act of March 31, 1860, § 37, P. L. 382, was sentenced, inter alia, to pay $7 per week for the maintenance of the child until it reached the age of sixteen years. The decedent signed a bond to assure these payments; binding his heirs and executors to the performance thereof. The inclusion of the latter clause was beyond the terms of the penal statute. Notwithstanding that fact, can the claimant recover?

The obligation is to pay the sentence of $7 per week — the bond did not enlarge the sentence. The sentence ceased with the death of the defendant— this decedent: Com. v. Moran, 23 Dist. R. 418; 58 Pa. Superior Ct. 362; 251 Pa. 477.

The sentence to pay $7 per week having expired by the death of the decedent, the obligation of the bond is determined.

The exceptions are dismissed and the adjudication is confirmed absolutely.


author: Alessandroni, J.,

text:
    Block v. Har Nebo Cemetery Company.

      Earl Jay Gratz, for plaintiff.

      Wecht, Schwartz & Wecht and Saul, Ewing, Remich & Saul, for defendant.
    July 18, 1930.
   Alessandroni, J.,

The plaintiff’s statement of claim sets forth the following cause of action: The plaintiff is the widow of Harry Block. Harry Block died Jan. 20, 1929, and the defendant corporation was ordered to open a grave for him in Section 151 E. By virtue of the negligence of the defendant, the body was interred in Section 251 G. and remained there until Feb. 21, 1929, when the defendant, without the knowledge or consent of the plaintiff, removed the body and interred it in the proper grave. This removal was carried out without compliance with the rites demanded by the deceased’s religion. The plaintiff claims damages for the negligence and wrongful acts of the defendant.

The defendant filed an affidavit of defense in lieu of demurrer, averring that the plaintiff had not set forth a valid cause of action, as the plaintiff had no title or possessive right in the lot in which the remains were originally interred; and in that there is no recovery for mental suffering or nervous shock unaccompanied by physical injury.

After due consideration of the respective contentions of both the plaintiff and defendant, this court is of the opinion that the affidavit of defense raising-questions of law should not be sustained. The respective rights of parties relating to the custody and disposal of the remains of the dead rest upon principles of law distinct and peculiar unto themselves. As was stated in Fox v. Gordon, 16 Phila. 185: “Questions which relate to the custody and disposal of the remains of the dead do not depend upon the principles which regulate the possession and ownership of property, but upon considerations arising partly out of the domestic relations, the duties and obligations which spring from family relationship and the ties of blood; partly out of the sentiment so universal among all civilized nations, ancient and modern, that the dead should repose in some spot where they will be secure from profanation; partly out of what is demanded by society for the preservation of the public health, morality and decency, and partly often out of what is required by a proper respect for and observance of the wishes of the departed themselves.” Thayer, P. J., also added: “So, also, the executor or other person who supplies the shroud and coffin may have an action for damages against any one who takes them away or unlawfully interfers with them.”

The tendency of the courts to break away from a common law distinction between property and personal rights, especially regarding the question involved in this case, is recognized in Pettigrew v. Pettigrew, 207 Pa. 313, where the court stated: “But inasmuch as there is a legally recognized right of custody, control and disposition, the essential attribute of ownership, I apprehend that it would be more accurate to say that the law recognizes property in a corpse, but property subject to a trust and limited in its rights to such exercise as shall be in conformity with the duty out of which the rights arise. Whether, however, the rights be called property or not is manifestly a question of words rather than of substance.” That case also established the right and the duty of the wife to have proper custody and control regarding the disposition of the remains of her husband.

In 17 Corpus Juris, 1143, it is stated: “An action will lie for the breach of a contract as to the care and burial of a dead body. Accordingly, where a person agrees to bury a corpse properly, a right of action lies if he negligently allows the body to be taken from his custody, or suffers indignities co be offered it while in his possession, or gives it an improper burial.” In 17 Corpus Juris, 1144, the following principle is enunciated: “It is now well settled that an unlawful invasion or violation of the right to bury a corpse and preserve the remains is a tort, and is the subject of an action for damages. . . . An unlawful and unwarranted interference with the exercise of the right of burial is a tort which gives right to a cause of action. So the withholding of the body of the deceased human being from those who have a right to the possession of the body for the purpose of proper interment is an injury which will give a cause of action against the person holding such body.”

The gravamen of plaintiff’s complaint consists in the defendant’s act of removing the remains without notice to her. It is presumed that the defendant knew that a rite or ceremonial sacred to the religious belief and tradition of the plaintiff and the deceased must accompany the disinterment. To avoid the disclosure of the mistaken burial, without notice to plaintiff, the defendant moved the body to another lot. How the defendant imagined this would escape her notice is hard to conceive.

The plaintiff avers that in so doing defendant committed an act of profanation grievously affecting her religious sensibilities. So long as humanity shall live in the domain of the spirit as well as of the flesh and endow mortal remains of dear ones with a reverance approaching sanctity, it must follow that the law will come to the aid of him who has suffered mental anguish by the carelessness or wantonness of another.

We, therefore, conclude that the statement of claim sets forth a valid cause of action.

And now, to wit, July 18, 1930, the affidavit of defense raising questions of law is dismissed, with leave to the defendant to file an affidavit of defense within fifteen days from the date hereof.


author: Gray, J.

text:
    Wilson’s Estate.

      Thorp, Bostwick, Stewart & Reed and C. C. Moreland, for petitioner.

      Ralph L. Smith, Bruce Harrison and Morris, Walker & Boyle, for respondent.
   Gray, J.

The petitioner prays this court to issue a subpoena duces tecum to Mabel P. Rankin, executrix of the estate of George H. Rankin, Esq., deceased, to produce certain letters or carbon copies of letters, being communications between said George H. Rankin, deceased, and Louisa W. Wilson, deceased, late of California.

George H. Rankin, Esq., was attorney for Louisa W. Wilson for many years and was executor of her will, which was probated in Allegheny County, Pennsylvania, and the assets of said estate within the jurisdiction of the Orphans’ Court of Alleghney County were duly distributed by that tribunal.

The Probate Court of California, where Louisa W. Wilson died, refused to admit her will to probate, and granted letters of administration on her estate there.

In the California court there is a contest between the heirs-at-law of Louisa W. Wilson, deceased, and the heirs-at-law of Joseph Wilson, deceased, the late husband of said Louisa W. Wilson, as to the right to certain property in California of which Louisa W. Wilson died possessed. The commission to take the testimony of Mrs. Rankin here is for the purpose of developing testimony to trace the transmission of funds from Pennsylvania to Louisa W. Wilson in California. George H. Rankin, Esq., collected the principal and interest of certain mortgages, which he transmitted to Louisa W. Wilson, and while it is not a matter of record, from the discussion of counsel it appears that the record of the collection of the principal of certain mortgages by Mr. Rankin as attorney-in-fact for Mrs. Louisa W. Wilson is available for use in the suit in California. The purpose of taking the deposition of Mrs. Rankin is to bring on the record the evidence of the correspondence between Mr. Rankin and Louisa W. Wilson to connect with the records available showing the collection of the funds by Mr. Rankin.

Mrs. Rankin has answered the petition praying for the subpoena and objects to testifying chiefly on the ground that the communications between her late husband and Louisa W. Wilson are privileged communications between attorney and client. She also objects that carbon copies of letters would not be competent evidence, and that, therefore, it is futile to compel her to produce these copies, and she makes the further objection that, since the California courts refused to admit the will of Louisa W. Wilson to probate there after it was admitted here, no help should be given the California court in securing the desired testimony.

Briefs were submitted by counsel for petitioner and respondent which have been carefully examined. We are inclined to the opinion that the communications between Mr. Rankin and Mrs. Wilson are not privileged. As we understand it, they are letters or copies of letters showing the remittance of money from Mr. Rankin to Mrs. Wilson, being the principal and interest on mortgages which he collected and transmitted to her as her attorney-in-fact or business agent. Under such circumstances, we do not think the communications should be held to be privileged: 40 Cyc., 2365.

But even if the communications were privileged, we are of opinion that neither Mrs. Rankin nor any of the parties to the controversy in California, some of whom are represented by counsel who appear here for Mrs. Rankin, have any right to object to the testimony on the ground that it would reveal confidential professional communications. It has been held that the rule which excluded proof of communications made by a client to his counsel is confined to cases in which the client is interested: Hamilton v. Neel, 7 Watts, 517.

And it has been held also that the right to object to the testimony of an attorney to confidential communications is in the client only; that, though the client is dead, third parties have no right of objection: Dowie’s Estate, 135 Pa. 210; Padelford’s Estate, 190 Pa. 35; Boyd v. Kilmer, 285 Pa. 533; 40 Cyc., 2380.

We must assume, and can very properly assume, that the California court is competent and will make a proper use of any evidence which is produced in depositions taken here. We cannot see how there is any disrespect of our Orphans’ Court involved in this matter. There is no effort made to interfere with the administration of the estate over which our Orphans’ Court had jurisdiction. The fact that the California courts took a different attitude in reference to the will of Louisa W. Wilson is a matter entirely for their jurisdiction. No interest of Louisa W. Wilson or her representatives is involved, nor is the estate of George H. Rankin, Esq., in anywise involved. The contest in California is between heirs-at-law of Louisa W. Wilson and heirs-at-law of her late husband. The question is apparently to be determined by proof of the source from which came the funds in the hands of Louisa W. Wilson at the time of her decease. The effort to obstruct the court in California from obtaining the testimony desired is being made by parties to the controversy in California who seek to promote their interests there by having Mrs. Rankin claim the privilege to refuse to produce the desired evidence on the ground that the correspondence was a confidential communication between her late husband and Louisa W. Wilson. Mrs. Rankin has no interest in the controversy, neither individually nor as executrix of the estate of her late husband. The parties who are using her are seeking to obtain what seems to us to be an unfair advantage over other parties to the case by suppressing her testimony. None of these parties has any right to claim a privilege nor any right to object to the testimony of Mrs. Rankin on the ground that it will reveal confidential communications between her late husband and Mrs. Louisa W. Wilson. We think justice requires that this evidence be revealed. Whether it can be made competent is for the California court to determine. This evidence will only be a link in the claim of proof. We have no means of knowing whether the rest of the chain will be supplied or not.

We feel we would be playing a very poor part to deny the California court the evidence available here, thus perhaps making what other evidence is available of no effect. We are satisfied the evidence here should be put at the disposal of the California court, and will order the subpoena to issue.

From William J. Aiken, Pittsburgh, Pa.