Page images

attention of the court is not called and request made is not error. "The law of Pennsylvania as to the weight of good character is more favorable to the accused than the common law, or the law of most other states, but it has not gone so far as to give it any special prominence or superiority to the other facts in evidence in the case.” Commonwealth v. Beingo, 217 Pa. 60, 66 Atl. 153. In the present case the good character of the prisoner was a very subordinate fact, and the learned judge below in refusing a new trial was justified in saying, “The evidence was so meager that the mention of it would have but emphasized its meagerness."

Judgment affirmed, and record remitted for purpose of execution.

(222 Pa 302)

COMMONWEALTH v. LEWIS. (Supreme Court of Pennsylvania. Oct. 12,


An instruction, in a trial for murder, that if the prisoner, though he labored under partial insanity or delusion, understood the nature of his act, and knew it was wrong, and had mental power sufficient to apply that knowledge to his own case, and knew that if he did the act, he would do wrong and receive punishment, and that, if the act was contrary to the dictates of justice and right and injurious to others, he would be responsible, and that the law is that, whether insanity be general or partial, the degree must be so great as to have taken from accused the freedom of moral action, was proper.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1825 ; Dec. Dig. $ 773.*] 2. CRIMINAL LAW (8 834*)-INSTRUCTIONS.

A judge is not bound to adopt the language of points, but may choose his own form of expression, and if it expresses the law fully and accurately, nothing further is necessary.

(Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2014; Dec. Dig. $ 834.*]

Appeal from Court of Oyer and Terminer, Chester County.'

Irwin A. Lewis was convicted of murder in the first degree, and appeals. Affirmed.


Wm. S. Windle and Thomas W. Pierce, for appellant. Robert S. Gawthrop, for the Commonwealth.

he stood to others, and others stood to him, and that the act in question was contrary to the plain dictates of justice and right, injurious to others, and in violation of the dictates of duty, he would be responsible; or, putting it in briefer shape, the law is that whether the insanity be general or partial the degree of it must be so great as to have controlled the will of its subject, and to have taken from him the freedom of moral action. These are the guides as to the insanity that will excuse the commission of the crime, if you find that such a crime has been committed.” This is the language of Ludlow, P. J., in Sayres v. Commonwealth, affirmed in 88 Pa. 291, 299, and repeatedly cited by this court as a correct and adequate definition of the law of insanity in trials for murder. Com. v. Wireback, 190 Pa. 138, 42 Atl. 542, 70 Am. St. Rep. 625; Com. v. Barner, 199 Pa. 335, 49 Atl. 60. Counsel for the prisoner presented five points for charge on the subject of insanity, dealing with more detailed reference to the prisoner's actions and the rule of responsibility in regard to them. All of them were declined by the judge, on the ground that they were sufficiently covered by the general charge above quoted. Notwithstanding the earnest argument of counsel, and our careful examination of these points, we have not found, in any or all of them, any substantial element or principle of law not exactly covered and answered in the passage quoted. They are only variations and expansions of phraseology.

It has been repeatedly held that the judge is not bound to adopt the language of points, but may choose his own form of expression; and, if it expresses the law fully, and with substantial accuracy, nothing further is necessary.

The judge's charge is not made to a technical and critical audience, scanning closely every phrase capable of a construction which would be error, but is addressed to a jury of plain men of various ages, education, intelligence, and experience, and is intended to inform them as to the law, and to guide them in its application to the facts as they may find them from the evidence. Having given them one plain, full, and adequate statement of the law, it need not do more.

Judgment affirmed, and record remitted for purpose of execution.

PER CURIAM. The defense being insani. ty, the learned judge below charged the jury that: “If the prisoner, although he labors under partial insanity, hallucination, or delusion, did understand the nature and character of his act, had a knowledge that it was wrong and criminal, and mental power sufficient to apply that knowledge to his own case, and he knew if he did the act he would do wrong and would receive punishment, and if, further, he had sufficient power of memory to recall the relation in which

(222 Pa. 307) In re HENDERSON. (Supreme Court of Pennsylvania. Oct. 12,


Under Primary Election Law, Feb. 17, 1906 (P. L. 37, S. 4), prescribing the form of a ballot and providing for the making of a cross in the square to the right of each candidate for whom the voter wishes to vote, where no name of a candidate of one party is printed on the

primary ballot, and a number of electors write ballot, they would leave a blank space as in the blank space on the ballot the name of the

above provided. In this space the law excandidate of the other party, and no other person is voted for, such candidate is entitled to

pressly authorized any Democratic elector to have his name printed on the ballot as the can- vote for any person whose name was not on didate of such party.

the ballot. As Harry B. Henderson's name (Ed. Note.-For other cases, see Elections, was not on the ballot, 20 electors, being a Cent. Dig. $ 118; Dec. Dig. § 126.*]

plurality of the votes cast for the office of Appeal from Court of Common Pleas, Arm- register and recorder, following the letter of strong County.

the law, voted for him. The vote so cast was From an order dismissing objections to

counted by the election board, returned by nomination of Harry B. Henderson, Harry

them to the county commissioners, and comC. Golden appeals. Affirmed.

puted by them, and a certificate granted to

said Harry B. Henderson that he was the The following is the opinion of Patton, P.

legal nominee for register and recorder on J., of the court below:

the Democratic ticket. It is apparent that "The act of Assembly, approved February the letter of the law was strictly complied 17, 1906 (P. L. 36), providing a uniform meth

with, and that on the face of the proceedings od of electing party officers, made a radical he is entitled to the certificate given him. change in the manner of conducting primary “The petitioner assigns seven reasons why elections. Section 4 of said act prescribes said nomination should be declared illegal the form of said ballot, and directs, inter and void. The first, second, fifth, and sevalia, 'make a cross (X) in the square to the enth reasons are in effect that it was not right of each candidate for whom you wish intended or allowed by the ‘Uniform Primary to vote. If you desire to vote for a person Act that the Democratic party should be alwhose name is not on the ballot, write or lowed to place on nomination a recognized paste his name on the blank space provided Republican as its candidate for the said offor that purpose.' At the spring primary fice. We remark that there is no such proviheld in Armstrong county on April 11, 1908, sion in the act of Assembly. If the Legislaone person was to be chosen by the electors

ture had intended any such limitations of of said county for the office of register and the right of franchise, it would have been recorder. If the provisions of this act were very easy to have written in the act after carried out (and in the absence of allega- the word 'person,' the words, ‘of the same tions to the contrary we must presume that political affiliation. In the absence of any they were), the chairman of the county com- such qualification we must presume that the mittee would give notice to the county com- Legislature meant just what it said. It is missioners of the names of the party officers argued that by so construing the law it will to be filled, and the commissioners in turn permit one political party to interfere with would advertise this fact in at least two the nominations of the other. Not so. No newspapers of general circulation. If any Republican interfered in any manner with person desired to become a candidate for the the Democratic electors. But a plurality of nomination for register and recorder in any the latter, not having an avowed candidate party, it became his duty, if he desired to of their own, thinking that Mr. Henderson was have his name printed upon the official ballot, the man best qualified to fill the office, exto prepare and circulate a petition for that pressed their desire to have him fill it, by the purpose, have it signed by 50 qualified elect- way pointed out by the law, viz., by writing ors, and file it with the county commissioners his name in the blank space provided for at least three weeks prior to the primary. that purpose. We see nothing in the letter Harry B. Henderson, as the Republican can- or spirit of the law to prevent them from didate for the office of register and recorder, indicating by their votes whom they desired strictly complied with this act of Assembly, to have placed on their ballot as their candiand was duly nominated for said office by date. It is argued that the nomination of that party. No person desired to become a Mr. Henderson is against the spirit of the act. candidate for the office of register and re- But no authority has been cited, nor can any corder on the Democratic ticket. At least no be found, to sustain this contention. On the person expressed any such desire by circulat- contrary, in Magee's Nomination, 18 Pa. Co. ing and filing a petition, as required by the Ct. R. 225, it is said by Judge McPherson: act of Assembly. It then became the duty 'At least in the absence of a rule to the conof the county commissioners to prepare the trary, a nominating convention of one party official ballot for the primary election, and in is certainly at liberty to choose a candidate doing so the law requires that they should of a different political faith. This power has provide a blank space, in which any elector, been exercised repeatedly without challenge, who desires to vote for a person whose name and indeed its existence is not denied. We was not on the ballot, might write or paste all know that it is of frequent occurrence for bis name. If the commissioners complied one party to indorse the candidate of another. with the law (and we are bound to presume In our own county last year Thos. W. Wilthat they did) in preparing the Democratic liams, the Republican candidate for county


surveyor, was placed upon the Democratic are dismissed at the cost of the petitioner." ticket, just in the same manner as Mr. Hen. Argued before MITCHELL, C. J., and derson is now placed, and his name was FELL, BROWN, MESTREZAT, POTTER, printed on the official Democratic ticket in ELKIN, and STEWART, JJ. the fall without challenge.

R. L. Ralston and C. E. Harrington, for “The third reason is that there is no peti appellant. H. N. Snyder, for appellee. tion filed by at least 50 electors to have Mr. Henderson's name placed upon the ballot,

PER CURIAM. The judgment is affirmed and the sixth reason is that there is no cer.

on the opinion of the court below. tificate of nomination filed. The respondent does not claim to have his name on the ballot by petition or certificate, but under that

(222 Pa. 304) provision of the act which allows an elector COMMONWEALTH P. GARRITO. to write his name in the blank space provided

(Supreme Court of Pennsylvania. Oct. 12, for that purpose. The fourth reason is that

1908.) the ‘Uniform Primary Act' does not author- 1. CRIMINAL LAW (8 1160*)-NEW TRIAL-APize the elector to vote for any person whose name is not printed on the ballot. This rea

The whole subject of new trial, including

misconduct of jurors, is within the discretion son is contradictory of the form of the bal.

of the trial court, and its judgment will not be lot above quoted, and also the provision in disturbed except for manifest error. the act that declares, 'The voter may desig- [Ed. Note.-For other cases, see Criminal nate his choice, as indicated by the instruc

Law, Cent. Dig. $ 3081; Dec. Dig. 1160.*] tions shown on the form of ballot above set 2. HOMICIDE (S 332*)-APPEAL-REVIEW. forth.' We are also of the opinion that the

The review in the Supreme Court, under

Act Feb. 15, 1870 (P. L. 15), providing for the complainant as an elector has entirely mis- determination of whether the ingredients necestaken his remedy in objecting to 'the nomina- sary to constitute murder in the first degree tion certificate or paper under Act April 21,

shall have been proved to exist, is limited to 1903 (P. L. 224) $ 1.' This act was passed

the inquiry whether competent evidence had

been given which, if believed, will sustain the prior to the 'Uniform Primary Act,' and its conviction. cumbersome methods are not applicable to [Ed. Note. For other cases, see Homicide, the present law. The objections before us Cent. Dig. $$ 699, 700; Dec. Dig. § 332.*] are not so much to the nomination papers as

Appeal from Court of Oyer and Terminer, to the counting of the votes. Section 11, Act Berks County. Feb. 17, 1906, provides: 'Any person aggriev

Salvatore Garrito was convicted of murder ed by any decision of the county commission

in the first degree, and appeals. Affirmed. ers relative to the counting of votes, may appeal therefrom to the court of common

One of the jurors had, before the case was pleas of the proper county, whose duty it

called for trial, formed and expressed an shall be to hear such appeal, and to make

opinion that the defendant was guilty and such order as right and justice shall require.'

should be hung, and stated that he hoped he Uriah H. Cook is the party aggrieved, and

would get on the jury, and that if he would, could have taken an appeal as above provid

he would hang him. This was not known to ed. Or Cook might have proceeded by writ

the prisoners or their counsel until after the

verdict was rendered. of mandamus against the county commissioners to compel them to have his name printed

Argued before MITCHELL, C. J., and on the ballot, and thus raised the legal ques


ELKIN, and STEWART, JJ. tions involved. However, we place our decision upon the broad ground that, no Demo- George D. Humbert, for appellant. cratic elector having sought to have his name placed upon the official ballot as his PER CURIAM. The first assignment of party's candidate for register and recorder, error is to the overruling of the appellant's any member of his party had the right to reason for new trial that a juror had before write the name of any elector, be he Demo- the trial expressed the opinion that defendant crat, Prohibitionist, Socialist, or Republican, was guilty and should be hanged. It appears in the blank space provided for that purpose, that the juror on his voir dire, when first and that it was the duty of the election offi- called, admitted that he had formed an opincers to count said votes, and the commission- ion, but testified that he could disregard such ers to compute and canvass the returns, and opinion and render a verdict on the evidence. that, Harry B. Henderson having received the This made him a competent juror under all plurality of votes cast by the Democratic par- the cases. On the motion for a new trial, howty at the primary election, he is the legal ever, an affidavit was presented, averring not candidate of that party for the office of regis- only the expression by the juror of an opinter and recorder, and it is the duty of the ion of the prisoner's guilt, but an intention proper officers to print his name on the offi- to hang bim if he could get on the jury. The cial ballot as such candidate.

learned judge investigated this charge, and “And now, August 22, 1908, the objections found it not sustained. It is sufficient to

[ocr errors]

say that the whole subject of new trial including alleged misconduct of jurors is large. ly within the discretion of the trial judge, and his conclusions upon disputed facts will not be disturbed except for serious and manifest error.

The second assignment is that the evidence does not warrant a conviction of murder of the first degree. This assignment seems to be founded on the provision of Act Feb. 15, 1870 (P. L. 15), requiring the Supreme Court to review the law and the evidence, and "to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist.” But this review is limited to the inquiry whether competent evidence has been given which, if believed, will sustain the conviction. Whether it shall be believed or not is exclusively for the jury. Com. v. Morrison, 193 Pa. 613, 44 Atl. 913. The objection on which the assignment is based in the present case is that the witness furnishing the testimony which established the degree of the crime was not worthy of belief. But the credibility was for the jury, and is not within our province.

Judgment affirmed, and record remitted for purpose of execufion.

(75 N. H. 40)

STEARNS v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Merri

mack. Oct. 6, 1908.) 1. NEGLIGENCE (8 68*)–CONTRIBUTORY NEGLIGENCE.

The conduct of the parties resulting in injury to one of them is to be judged, not by the fact that injury has resulted from the course pursued, but in the light of the circumstances known or discoverable by ordinary care when the course followed was decided upon.

(Ed. Note. For other cases, see Negligence, Cent. Dig. $ 92; Dec. Dig. $ 68.*] 2. RAJLROADS (8 350*)-ACCIDENTS AT CROSSINGS-CONTRIBUTOBY NEGLIGENCE.

That a person killed in a railroad crossing collision drove upon the track knowing the train was approaching does not conclusively establish his negligence.

[Ed. Note.--For other cases, see Railroads, Cent, Dig. § 1171 ; Dec. Dig. $ 350.*] 3. RAILROADS ($ 343*)-ACCIDENTS AT CrossINGS-CONTRIBUTORY NEGLIGENCE.

Though, in an action for the death of a person at a railroad crossing, there was no direct evidence that decedent was acquainted with the rule of the railroad company prohibiting the running of freight trains over 25 miles an hour, or that he had seen the particular freight train pass at about that hour, yet it did appear that he had been driving to the depot with milk for four years, and that occasionally a freight train would pass ahead of the milk train, it might reasonably be found, in the absence of evidence that the railroad company's employés were accustomed to run freight trains, or the particular train, at that place in violation of its rules, that decedent knew the time it took the train, as it should be and was customarily run, to reach the crossing, even if he was not led to believe by the absence of the station whistle that it would

slow down for a stop, and, being aware of the speed of his team, judged that there was time to cross.

[Ed. Note.-For other cases, see Railroads, Dec. Dig. & 348.*] 4. RAILROADS (8 333*)-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE.

That one of the horses of a person killed

railroad crossing was somewhat afraid of the cars is to be considered with the other facts upon the question whether a man of ordinary prudence would have done as decedent did.

[Ed. Note.-For other cases, see Railroads, Dec. Dig. $ 333.*] 5. RAILROADS (8 350*)—ACCIDENTS AT CROSS


Whether a person of ordinary prudence, having reached the conclusion that his prudent course was to drive over the track ahead of a train, would then have given his whole attention to carrying out the course he had decided upon and not have again looked toward the train, or would have diverted his attention from his team and again looked, is a question of fact.

(Ed. Note.-For other cases, see Railroads, Cent, Dig. 88 1169–1176; Dec. Dig. $ 350.*] 6. RAILROADS ($ 350*)-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE.

An assumption by a traveler on the highway that railroad employés are not approaching the crossing with a reckless disregard of its dangers is not conclusive evidence of negligence in the traveler.

(Ed. Note. For other cases, see Railroads, Cent. Dig. $ 1187; Dec. Dig. $ 350.*] 7. RAILROADS (8 338*)-ACCIDENTS AT CROSS


Where trainmen after they discover, or ought to discover, the danger of a traveler at a crossing, can, with the facilities at their command, prevent injury by due care and fail to do so, the railroad company is liable.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. $$ 1096, 1097; Dec. Dig. $ 338.*] 8. RAILROADS ($ 337*)-ACCIDENTS AT Cross


A failure to stop a train after the danger of a traveler on the highway became apparent cannot be held to be the cause of a collision with him where the only situation in which the train could have been stopped must have been one from which no injury woud have resulted.

[Ed. Note. For other cases, see Railroads, Dec. Dig. $ 337.*] 9. RAILROADS (8 337*)-ACCIDENTS AT CROSS


Where, if trainmen ought to have recognize ed the danger of a traveler on the highway when they were at a certain point, they could not have stopped the train by applying the brakes, it is immaterial that they did not do so until the train was nearer the crossing.

(Ed. Note. For other cases, see Railroads, Dec. Dig. § 337.*] 10. TRIAL (252*)-INSTRUCTIONS--EVIDENCE.

The action of a train under application of brakes is not a matter of common knowledge, and, there being no evidence tending to show that the trainmen could have checked the speed of the train sufficiently to have permitted a person killed at a crossing to cross, that question was improperly submitted to the jury.

[Ed. Note.-For other cases, see Trial, Cent. Dig. $8 596–612; Dec. Dig. & 252.*]

11. RAILROADS ($ 338*)-ACCIDENTS AT CROSS- track occupied by the train for the purpose of


shouted to him with a like motive. Other Where, if an engineer was negligent, it was

facts are stated in the opinion. The debefore a traveler imprudently attempted to cross, and at a time when, if he had seen the traveler, fendants excepted to the denial of their mohe might have properly assumed that he would tions for a nonsuit and the direction of a stop and permit the train to go by, the railroad

verdict in their favor and also to the subcompany cannot be held liable on the ground that, after discovery of the traveler's danger,

mission to the jury of the question wheththe engineer might by the exercise of due care er the defendants could have prevented the have avoided the collision with him.

collision by ordinary care after they knew (Ed. Note.-For other cases, see Railroads, or ought to have known of the danger. Cent. Dig. 88 1096, 1097; Dec. Dig. § 338.* ]

Martin & Howe, for plaintiff. Mitchell, 12. RAILROADS ($ 337*)-ACCIDENTS AT CrossINGS-FAILURE TO WHISTLE.

Foster & Lake (Fred C. Demond, on the Where a traveler was aware of the ap

brief), for defendant. proach of a train in time to protect himself notwithstanding it did not whistle, and it does PARSONS, C. J. Stearns, the plaintiff's not appear that whistling, after he attempted to

intestate, was killed by a collision between cross, would have prevented the collision, the railroad company cannot be held liable for fail

the team which he was driving and the deure to whistle.

fendants' train upon a crossing provided by [Ed. Note.-For other cases, see Railroads, them for his use. He drove upon the crossCent. Dig. $ 1094; Dec. Dig. $ 337.*]

ing, knowing that a train was approaching. Transferred from Superior Court, Merri

Does this fact, with the subsequent collision, mack County.

conclusively establish that his attempt to Case for negligent death by Wyman D.

cross was negligent? The contrary was held Stearns, administrator of the estate of

in Davis v. Railroad, 68 N. H. 247, 44 Atl.

388, and Folsom v. Railroad, 68 N. H. 454, Charles C. Stearns, deceased, against the Boston & Maine Railroad. Verdict for

38 Atl. 209. The conduct of the parties replaintiff, and case transferred from the trial

sulting in injury to one of them is to be term. Verdict set aside, and new trial

judged, not by the fact that injury has re

sulted from the course pursued, but in the granted.

light of the circumstances known or disThe plaintiff's evidence tended to prove coverable by ordinary care when the course the following facts: The defendants' tracks followed was decided upon. In the former at South Danbury run nearly north and of the cases cited the colliding train was south. A station and milk platform, situ- running “at a rate of speed three times as ated on the west side of the tracks, are great as that allowed by the defendants' reached by a private way which the rail- rules.” It was said: “It must be presumed road has provided over its land for the that the rules were made to be enforced, use of patrons, and which furnishes a means and that they were generally obeyed. Alof access to the station from the main street though the deceased may not have known of of the village, which is located about 10 the existence of the rule, yet he was familrods east of the railroad. The milk train, iar with the crossing, frequently traveled so called, is due at the station from the over it, and might reasonably act on the north at 8:31 a. m. About 20 minutes past belief that the train would be run at the 8 on the morning of November 1, 1905, usual speed in passing the station. There Charles C. Stearns, the plaintiff's intestate, was at least fair room for argument that, who had delivered milk at the station for if the rule had been obeyed, he would have four years, drove a pair of horses attached had sufficient time for crossing without into a wagon loaded with milk into the private jury or unreasonable risk, and that it would way leading to the station, with the inten- not have been an imprudent act.” Davis v. tion of taking his load to the milk train. Railroad, 68 N. H. 247, 251, 44 Atl. 388; When he reached a point 57 feet east of the Nutter v. Railroad, 60 N. H. 483, 485. In westerly track, he could see in a northerly Folsom v. Railroad, 68 N. H. 454, 38 Atl. direction up the tracks. A heavily loaded 209, the person injured having been placed freight train, about two hours late and not in a position of danger without fault on scheduled to stop at South Danbury, was his part, his error of judgment in attempting approaching from the north. The plaintiff to escape by crossing the track in advance continued on his way, attempted to pass of the train was held not necessarily negliover the tracks before the approaching train, gence. These positions have not been overand was killed by the collision which re- ruled in the later cases upon which the desulted. The place of collision was not a fendants rely. Gahagan v. Railroad, 70 N. highway crossing, and was not provided with H. 441, 50 Atl. 146, 55 L. R. A. 426; Waldron bars, gates, or flagmen. As Stearns drove V. Railroad, 71 N. H. 362, 52 Atl. 443; toward the tracks and the train approached Wright v. Railroad, 74 N. H. 128, 65 Atl. the station, a man who stood upon the plat- 687, 8 L. R. A. (N. S.) 832. The first two form waved his hand up and down over the cases hold that one approaching a railroad

« PreviousContinue »