the murder Donnelly declared in Tony Munley's! He testified that on February 23, 1876, the cellar in Dean's Patch that he had brought the day of the hearing upon the writ of habeas cormen to Raven Run who killed Sanger. On the pus, shortly after the arrest of Thomas Munley part of the defendant Mrs. Margaret O'Rourke and Charles McAllister for complicity in the was called to prove an alibi, who testified that murder of Sanger, he had a conversation with she lived in the same house with the prisoner, Donnelly in Danny Hughes' saloon in Pottsville, that she saw him about the house on the evening in which Donnelly said that it did not make any of the day of the murder some time after supper, difference about this habeas corpus hearing, that which was about six o'clock, and that she after- they had got the wrong man in the arrest of wards saw him several times during the same Charles McAllister, that as far as Munley was evening. John Donnelly, the defendant's bro-concerned that he was going to swear that he was ther, was also called, who said that the prisoner well acquainted with him, and that he was not was in his house about nine o'clock on the night there. Donnelly said, "Of course I know difafter the murder. The Commonwealth offered ferent, as I know all about it ;" and further said to prove by Dennis F. Canning, a member of the that he was well acquainted with the whole party Molly Maguire association, who had attended a at the murder. meeting of the order at Mahanoy City, on June 1, 1875, that after the adjournment of the meeting John Kehoe, county delegate of the order for Schuylkill County, had applied to Canning, as county delegate of the order for Northumberland County, to furnish men to Dennis Donnelly to kill Thomas Sanger. Objection. Objection overruled. The Court (PERSHING, P. J.), in the general charge to the jury, said, inter alia: John Donnelly, a brother of the defendant, was also called. This appeared to be for the purpose of proving an alibi upon the part of the prisoner as to one of the places where Butler said he met him. I may say here that an alibi, when clearly made out, is as good a defence as a defendant can have, and perhaps the best. Sometimes it is the only defence that an innocent man can set up. But it must include proof of absence during the whole period of time, covered by the evidence, from the place where the Commonwealth alleges that he was. John Donnelly testifies that he (defendant) was at his house on the evening of the murder, when Butler alleges he met him at Tony Munley's, though without stating any time— [Mr. Kaercher. Between six and seven o'clock The witness testified as follows: "After the adjournment of the meeting I asked John Kehoe what he sent for me for, and was it merely to come to the meeting, and he said yes;' he said he wanted some men off from me, and there was a man they wanted men to shoot, and I said he could not have men; and he said, being as I had nothing to do with the other cases, the cases of Majors and Thomas, that he wanted me to send men, and good men, and to the best of my opinion he meant I was to send them to Dennis Don-he said on cross-examination.] nelly, and the man to be shot was Sanger." The defendant submitted the following point: That the testimony of Canning of the alleged conversations of Jack Kehoe, not in the presence It is from the necessity of the case that the acof the prisoner, but referring to him, is not evi- complice's testimony is admitted as I have read dence against the prisoner in this case, and should to you. In 1 Greenleaf on Evidence, sec. 380, be rejected by the jury as irrelevant and preju- the rule is thus laid down: "The degree of dicial. Answer. We have already stated, vir- credit which ought to be given to the testimony tually, our position upon that. It appears from of an accomplice is a matter exclusively within the evidence that Canning, Kehoe, and this de- the province of the jury. It has sometimes been fendant were all members of the same organiza- said that they ought not to believe him, unless tion, and this conversation took place in the ab- his testimony is corroborated by other evidence; sence of Donnelly. By itself it would not be and without doubt great caution in weighing such evidence against him, but it is for you to deter- testimony is dictated by prudence and good reamine whether it is connected in such a way as to son. But there is no such rule of law, it being exmake it applicable to the charge against this de-pressly conceded that the jury may, if they please, fendant, Donnelly. (Sixth Assignment of Error.) act upon the evidence of the accomplice without The Commonwealth then called James McPar- any confirmation of his statement. But, on the lan, who, at the time of the commission of the other hand, Judges in their discretion will advis: murder of Sanger, was in the employment of the a jury not to convict of a felony upon the testiNational Detective Agency, having been sent mony of an accomplice alone, and without corinto the county of Schuylkill by the agency to roboration; and it is now so generally the practice investigate the Molly Maguire Association, and to give them such advice, that its omission would who, for that purpose, became a member of the be regarded as an omission of duty on the part of order in April, 1874, under the assumed name the Judge, and, considering the respect always of James McKenna. That may be so: John Donnelly said Dennis was in his (John's) house about nine o'clock, or towards ten-going on ten. paid by the jury to this advice from the bench, it | Kaercher, and Guy E. Farquhar (with whom may be regarded as the settled course of prac- were Franklin B. Gowen and Frank W. tice, not to convict a prisoner in any case of Hughes), contra. felony, upon the sole and uncorroborated testimony of an accomplice." Verdict, guilty of murder in the first degree. Judgment thereon. The prisoner took this writ, assigning for error, inter alia, the answer to his point, and that part of the charge of the Court quoted. It is a well-settled rule of law in relation to the defence of an alibi, that where it is shown on the part of the prosecution that the crime was committed or must have been committed during a space of time embracing several hours, as during a night or part of a night, or during a forenoon, the evidence reiied upon to establish the alibi must cover the whole of such period. A. Campbell, S. A. Garrett, and M. M. L' Velle (with whom was W. J. Whitehouse), for the plaintiff in error. Briceland v. The Commonwealth, 24 Sm. 469. An alibi is a defence and not a plea. The defendant is not held to any greater proof than in any other defence he may set up. If the evidence for an alibi is insufficient in itself to make it complete, but if, taken in connection with other proofs in the case, is sufficient to raise a reasonable doubt in the minds of the jury, the accused is entitled to an acquittal. The existence of the conspiracy, and the fact that Donnelly was a party to it, and the originator of it, is fully shown by the evidence. The acts and declarations of Kehoe, as a party to the conspiracy, are evidence against all the parties concerned in it. Pollard. The State, 53 Miss. 410. The evidence in this case does not cover "the whole period," but it should have been left to the jury to say whether it raised a reasonable doubt as to the prisoner's presence at Munley's. Kehoe's declarations to Canning, on which it is sought to implicate the prisoner in a criminal conspiracy, as far as the evidence goes, were made without his knowledge or concurrence. If the evidence was offered to charge them with being co-conspirators in the commission of a crime, there must be testimony of a conspiracy before Kehoe's declarations could be evidence against Donnelly. The Commonwealth v. Eberle, 3 S. & R. 9. Kehoe's statements in the conversation with Canning are too vague to be admitted as evidence against the prisoner. It was for the jury to determine what was meant by the language used. In practice it is not usual to convict on the testimony of an accomplice, unless such testhe testimony of an accomplice, unless such testimony is confirmed in some material part by the testimony of other credible witnesses. I Archbold's Criminal Practice and Pleading, 477. The failure of the Court to instruct the jury against conviction upon the testimony of an accomplice alone was an omission of duty. Undoubtedly it is law that a jury may so convict, yet practice and usage warrant the Court in instructing them that it is dangerous to convict on the uncorroborated testimony of an accomplice. Reading the law to the jury without explanation or comment is calculated to embarrass and confuse their minds, untrained in its technicalities and intricacies. It was the undoubted duty of the Court to have clearly explained the rule and principle of practice. Dimes Savings Institution v. Allentown Bank, 11 I American Criminal Law, 3 702. That an accomplice is a competent witness, whose testimony may be admitted in the discretion of the Court, is too well settled to admit of argument. April 1, 1878. THE COURT. The assignments of error in this case require no discussion: not one can be sustained. The fifth, which was most strenuously urged, is made in a misunderstanding of the charge. When the fact proved by the Commonwealth is not defined distinctly in point of time, but may have taken place within or between certain periods, the alibi must cover the entire period in its proof, otherwise the evidence given in proof of the alibi may be true, and the fact proved by the Commonwealth may also be true. Unless the evidence supporting the alibi covers the whole period, it is plain there is no of by the proof of the fact that Kehoe was a contradiction. The sixth assignment is disposed member of the same organization, called Mollie Maguires, to which the prisoner belonged, and that this organization was directly implicated in these murders. The question, therefore, was one for the jury as to the conspiracy, and Kehoe's privity along with the prisoner. The seventh assignment is unfounded in fact. The Court said to the jury expressly as a rule of practice, "that the jury should not convict upon the unsupported testimony of an accomplice." The quotation from Greenleaf's Evidence went in support Sm. 391. A. W. Schaick, District Attorney, George R.[ of this statement. We find no error in the matters assigned, and therefore must affirm the judgment of the Court of Oyer and Terminer. The sentence of the said Court is therefore affirmed, and it is ordered that the record be remitted to the Court of Oyer and Terminer of Schuylkill County for the purpose of having the sentence carried into execution in due course of law. PER CURIAM. May, '78, 51. May 24, 1878. for clamps, according to Birkenbine's drawing, Saylor v. City of Harrisburg. was simply soldered in place by a plumber engaged by the company. In this manner the Liability of municipal corporations-Unauthor-city was supplied with water from November 28, ized acts of city officers-Negligence-Concur- 1874, to the 17th of the following December, rent negligence. when it was determined to pump into the new reservoir also. The engine, according to all the testimony, was run very rapidly and carelessly! · by the superintendent of the Foundry and Machine Company in person, the last instalment on the engine not having been paid nor the engine accepted by the city. On account of the increased pressure, and the neglect to fasten it by clamps, the "Y" casting was blown off, into an excavation in front of it, which Saylor and others in the employ of Heikel, Opperman & Co. were making for the foundation of a second engine; by which Saylor was so injured that he died in a The question of contributory negligence is a mixed few days. Just before the explosion the work question of law and fact. When the facts are undisputed, the Court should declare the law thereon. men were notified that there was danger, and all started to leave, but when part or altogether out, Saylor and several others went back for their coats and were struck by the casting. How far Saylor had proceeded out of the pit, and whether his return contributed to his death, was disputed. Case, by Mary A. Saylor against the city of Harrisburg, to recover damages for the death of her husband, caused by the defective construc-The evidence was conflicting also as to whether tion of the city water-works, on which the de- the connection was made under the supervision ceased was working at the time of his death. of Engineer Birkenbine, or whether the company Plea, not guilty. There was no dispute about was exercising an independent employment in the negligence in this particular, and the only respect thereto. The workmen were paid by the material questions were, whether the city was company, who charged their wages in its account liable therefor, and whether the deceased had with the city. been guilty of contributory negligence. A city ordinance directed the construction of new waterworks, and provided for the appointment of a committee whose duties were to advertise for proposals and make contracts, subject to the approval of Council, and to employ an engineer for the purpose of preparing necessary plans and specifications. The engineer, under the authority of this committee, and without the approval of Council, made a parol contract with a company to make a certain connection in the pipes by means of a casting. The work being negligently done, S. was injured by an explosion, and died: Held, that the city was responsible. Error to the Common Pleas of Dauphin County. The Court charged the jury that the engineer It appeared on the trial, before HENDERSON, had ample power to make arrangements about J., that a city ordinance, passed March 8, 1871, the work; that if the company was employed to directed new water-works and a reservoir to be make the connection under the direction of the constructed, and provided for the appointment engineer, the city was liable for the injury resultof a special committee, whose duties were to ing from defective work; but that if it undertook advertise for proposals and make contracts (sub-it as a work of its own, the city was not responject, however, to the approval of Council), and sible; that if the city had control of the engine, to employ an engineer for the purpose of pre- the negligent running of it was its negligence, paring the necessary plans and specifications. and left to the jury the question whether, under One Birkenbine was employed as engineer, and the facts, the deceased had been guilty of concontracts were made for the whole work; among tributory negligence. The defendant excepted others, with the Harrisburg Foundry and Ma- to this charge before verdict. chine Co., for two pumping engines and a stand-pipe, and with Heikel, Opperman & Co. for foundations for the engines, boiler-house, etc. One pumping engine and the stand-pipe having been placed in position, it became necessary to connect the old reservoir with the stand-pipe, in order to keep the city supplied with water. Accordingly Birkenbine, by authority of the water committee, but without the approval of Council, entered into a parol contract with the Harrisburg Foundry and Machine Co. to cast the pipe and to make the connection, the company furnishing the necessary labor and material. This connection was completed by a "Y" casting, which, although provided with projections Verdict for the plaintiff for $3850, and (after a remittitur of one-third its amount) judgment thereon. The defendant took a writ of error, assigning, inter alia, the charge of the Court. Thos. S. Hargest, City Solicitor, and L. W. Hall, for the plaintiff in error. The making of a contract with the company was beyond the authority of the engineer or of the water committee, without inviting proposals and obtaining the consent of Council. Therefore those doing the work were mere volunteers, and they, and not the city, were liable for the injury. City officials cannot bind the city by unauthorized acts. Mayor v. Eschbach, 18 Md. 276. Anthony v. Adams, I Metcalf, 284. Seibrecht v. New Orleans, 12 La. Ann. 496. The Court should have instructed the jury as matter of law that the engineer had no such authority as was claimed. June 17, 1878. THE COURT. Although our decision mentions and seem to relate to but one It was contributory negligence in the deceased assignment of error-that of contributory neglito go back into the pit. Where the fact is un-in the case, so fully and ably argued both in the gence-yet we considered all the questions raised disputed, as here, the Court should instruct the jury that such conduct constitutes contributory negligence in law. The deceased had warning according to the evidence, and his return was rash imprudence. paper-book and at the bar. Motion for re-argument overruled. The evidence was that the company was exercising an independent employment in making the connection, and had charge of the engine on the day of the accident. J. C. McAlarney and J. W. Simonton, contra. Whether the Harrisburg Foundry and Machine Co. were the servants of the city or not was a question of fact under the evidence, as the contract was by parol, and was properly submitted to the jury. What is negligence is always a question for the jury when the measure of duty is ordinary and reasonable care, and when the standard of the degree of care shifts with circumstances. principally, that only one assignment of error was noticed by the Court. Common Pleas—Law. C. P. No. 1. Railroad Co. v. McElwee, 17 Sm. 311. Where there is conflicting evidence, the jury affidavit of defence. must pass upon the question. Railroad Co. v. Ogier, 11 Casey, 60. June 14, 1878. Counsel for the plaintiff in error moved for a re-argument, on the ground, Rule for judgment for want of a sufficient Assumpsit on two promissory notes by the endorsee against the maker. The affidavit of defence set forth that the notes June 10, 1878. THE COURT. A careful ex-sued on were merely accommodation notes; amination of the record in this case discloses no that the defendant had refused to sign said notes sufficient ground for reversal. The question of at the solicitation of the payee alone, but was contributory negligence is a mixed question of induced to do so through the representations of law and fact. It is true, when the facts are un- the president and cashier of the bank, the present disputed the Court should declare the law plaintiffs, who showed the defendant a list of the thereon. Inasmuch, however, as the measure of assets and liabilities of the payee, and said they duty is generally ordinary and reasonable care, considered him good, and that the defendant the standard of the degree of care required shifts would run no risk in signing the notes. The with the circumstances. (McKee v. Bidwell, 24 P. affidavit also charged the officers of the plaintiff F. Smith, 218; Crissey v. Hestonville Railway with knowledge that the payee was a forger; that Company, 25 Id. 83.) When the evidence of he was in default to each of them and to many concurrent negligence is conflicting, or the facts, other persons; that the statement submitted by on which a right to recover is rested, are con- them to the defendant was false and intended to troverted, a jury should pass upon that evidence deceive the defendant and thereby enable them and upon those facts. The controlling facts in to raise money to make good certain losses, etc. this case were controverted; the evidence was T. J. Diehl, for the rule. conflicting. It was therefore right to submit A. J. Maloney, contra. them to the jury, as the Court did, with a clear and correct statement of the law. Judgment affirmed. [BIDDLE, J. The defendant seems to swear to a fraudulent conspiracy between the payee and the plaintiffs, showing that they did not purchase PER CURIAM. SHARSWOOD, J., and AGNEW, the note in good faith.] C. J., absent. Rule discharged. C. P. No. 3. June 13, 1878. Bradley v. Dubois. Set-off-In an action upon a note given for a joint interest in a patent right, the defendant cannot set off damages arising from the plaintiff's interference with a proposed sale by defendant of part of such joint interest. Rule for a new trial. Assumpsit on a promissory note for $2000, given by defendant to plaintiff, being a part of the consideration for one-fourth interest in a patent right assigned to the defendant. It was stipulated in the assignment that the defendant should hold and enjoy the interest assigned as fully and entirely as the same would have been enjoyed by the assignor if the assignment had not been made. Subsequently the defendant contracted to sell to one Collings a fraction of his one-fourth interest for $5000, but the plaintiff, claiming that the defendant was indebted to him in an open account, threatened to warn the purchaser not to buy, and the proposed sale was thereby defeated. The defendant claimed to set-off in this action the damages thus caused to him. At the trial LUDLOW, P. J. charged the jury inter alia, that if the note in question formed a part of the consideration for the assignment, and the plaintiff's notice to defendant prevented the sale to Collings, defendant was entitled to a setoff, and to recover whatever damages he incurred by the prevention of such sale. The jury allowed the amount of note with interest, and gave a certificate for the difference between that amount and the $5000 Collings would have pai Hampton cause. McHose v. Fulmer, 23 Sm. 365. The mere fact of joint ownership in a patent creates no contract relation between the parties. Bank v. Reese, 2 C. 143. Rhey v. Plank Road Co., 3 C. 261. Vose v. Singer, 4 Allen, 226. Hence the defence amounts to an allegation of slander of title sounding in tort, and the damages arising therefrom being unliquidated, no right of set-off exists in the present suit. Kachlein v. Ralston, I Y. 571. C. A. V. June 19. THE COURT. Rule discharged upon a remittitur by defendant of his certificate of set-off. A State bank, naving solicited accounts from banks and bankers in other cities, received from the latter checks, drafts, etc., which were credited as cash immediately upon their receipt or collection. Cash was also frequently sent to the State bank, and interest was allowed upon all daily balances over one thousand dollars. These balances were used by the bank in the ordinary course of its business, and were not remitted to the creditor banks and bankers except upon their check or draft, which checks or drafts were debited upon presentation. The main object in opening these accounts was that of convenience in matters of ex Carson and R. C. Dale, showed Plaintiff's nterference was a breach of contract, not a tort. change and collection; no pass-books were issued, but Hochster v. De la Tour, 2 Ellis & Blackburn, *609. Held, that the above course of dealing constituted the banks and bankers" depositors" within the meaning of the Act of 16 April, 1850, % 39, P. L. 492 (Purd. Dig. 145), Ford v. Filey, B. & Cress. 325. The damages thus arising can therefore be used and entitled them to the preference thereby given. as a set-off. C. P. No. 4. March 14, 15, 1878. Foulker v. The Union Banking Co. State bank-What constitutes a deposit account— Act of 16 April, 1850. Hunt v. Gilmore, 9 Sm. 450. Sur exceptions to auditor's report. Halfpenny v. Bell, 1 N. 128. of Pennsylvania, executed a voluntary assignment for the benefit of its creditors. On May 1, 1877, The Union Banking ComDomestic Sewing Machine Company v. Saylor, 5 pany, a State bank incorporated under the laws WEEKLY NOTES, 286. Speers v. Sterrett, 5 C. 192. The measure of damages was correct. The general rule is that defendant could obtain the difference between the contract price and the market value at the time of sale, but where the chattel, as in the present case, has no market value, not being subject to the daily fluctuations of trade, the owner can show that it has value, or if it be worthless, recover the whole contract price. Court, as required by the 27th and 29th sections This assignment was not approved by the of the Act of 16 April, 1850 (Purdon, 145), and upon a bill filed by stockholders of the company from further proceeding under the above assignan injunction was issued restraining the assignees ment, and The Fidelity Insurance, Trust, and Safe Deposit Company was appointed receiver of the assets of the corporation until assignees should be appointed in accordance with the above Act. Such assignees were subsequently duly appointed, |
