"And your petitioner cannot but feel that he is entitled as a matter of courtesy, if not of right, to be put upon the record as a party, and be heard in any proceeding affecting him personally and officially in so large a degree.

"Your petitioner, therefore, prays that he be made a party in this proceeding, that a reargument be granted, and a rule to show cause why the mandamus heretofore issued shall not be vacated."

226.) The power to create new counties is clear | That he organized the several Courts of said new under the 1st section of the 2d article. The pro- county of Lackawanna, fixed and determined hibitions in the 13th article do not touch this the number of terms and return days, and did question, while they imply all other unexcepted all things necessary in the premises. necessary powers. We have, therefore, a case within the general powers of legislation, not forbidden by any special provisions and necessary for temporary organization to comply with the mandate of the 11th section of the Declaration of Rights, that all Courts shall be open, and all persons shall have remedy by due course of law and justice administered without denial or delay. Now in substance this is nothing more than to hold that the effect of the 13th section of the Act of 1878, is to suspend the erection of the new county, as to judicial purposes, until a proper November 21, 1878. THE COURT. constitutional provision can be made for the or- the opinion was written in this case, and before ganization of the new county in the mode the filing it, Mr. Bentley has petitioned us to be perConstitution provides for such a county. mitted to become a party, and to be heard against If this cannot be done, then a constitutional | the mandamus heretofore ordered to be issued, anomaly has arisen for which there is no remedy, and a single county constituting a separate judicial district cannot be divided; a consequence we cannot admit, in view of the general legislative power over the subjects of the courts and new counties.

We are of opinion, therefore, that the temporary organization of the Courts of Lackawanna County, under the 13th section of the Act of 1878, is constitutional and proper, and that the rule for a mandamus as to the Judges of the Court of Common Pleas of Luzerne County must be made absolute, but must be discharged as to the Judge of the Orphans' Court.

Opinion by AGNEW, C. J.


and under which the Judges of Luzerne County have already acted. We fail to perceive any mode by which he can become a party to the legal proceeding against the Judges of Luzerne County. Yet we have examined the reasons set forth in his application with care to see whether we ought to have arrived at a different conclusion in the mandamus case and find none.

Nevertheless we look upon his case as one of hardship, deserving legislative relief for the injury he has suffered by accepting a commission not asked for, and erroneously issued without fault on his part.

The prayer of his petition is refused.


[See next case.]

Shortly before the filing of the opinion, the
Hon. Benj. S. Bentley presented to the Supreme Oct. & Nov. '78, 330.
Court a petition setting forth:-

Livingston's Appeal.

Nov. 22, 1878.

Orphans' Court-Special Courts-Act of 4
March, 1875-Permits only Judges of separate
Orphans' Court to exchange-Inapplicable to
Common Pleas Judge sitting as Orphans' Court
Judge.-Acts of 14 April, 1834, and 4 April,

The Judge of a separate Orphans' Court has no power to hold the Orphans' Court of a county in which a Judge commission. The Act of 4 March, 1875, does not in such of the Court of Common Pleas presides by virtue of his case apply, but has relation only to the Judges of the separate Orphans' Courts.

"That he is President Judge of the several Courts in and for the county of Lackawanna; that in accordance with the Act of Assembly, said county was erected, containing a population of more than forty thousand. That thereby its judicial connection with the county of Luzerne was severed, and a vacancy created in the office of President Judge of the several Courts of record. That on the petition of members of the bar and many citizens of Lackawanna County, Governor Hartranft appointed and commissioned petitioner to be President Judge of the several Courts of record in and for the county of Lackawanna. That the petitioner accepted the same, took the oath of office, and changed his residence in obedience to the requirements of the Constitution, by removing from the city of This case was heard in the Court below on exWilliamsport, Lycoming County, Pa., to the city ceptions to the report of an Auditor, appointed of Scranton, in the county of Lackawanna. to hear and determine exceptions to the account That he relinquished the practice of the law and of Samuel Livingston, executor of Thomas Livplaced his business permanently in other hands. | ingston, deceased.

Appeal from the Orphans' Court of Washington County.

The decree of the Court, HAWKINS, J., specially presiding, was "that the proceedings in said matter be vacated and set aside." Samuel Livingston appealed, assigning for error this decree.

Nov. 22, 1878.

THE COURT. The proceeding in this case before Judge HAWKINS, the Judge of the separate Orphans' Court of Allegheny County, was coram non judice. He had no power to hold the Orphans' Court of a county Washington County is a separate judicial dis-in which a Judge of the Court of Common Pleas trict, but has no separate Orphans' Court, the Judge of the Court of Common Pleas being Judge of the Orphans' Court in accordance with Act of May 19, 1874 (P. L. 206, § 2; Purd. Dig. 1933, § 2).

Hon. GEO. L. HART, President Judge of the Court of Common Pleas of Washington County, called in the Hon. W. G. HAWKINS, President Judge of the separate Orphans' Court of Allegheny County to preside and determine the matters involved. Judge HAWKINS, after an examination of the record, and after argument, filed an opinion and decree as above.

presides by virtue of his commission. The Act of 4th March, 1875 (P. L. 5), does not apply to this case. It has relation to the Judges of the separate Orphans' Courts. This case is fully provided for by the Act of 4th April, 1843, § 8 (2d Purd. Dig., 1105, pl. 14).

The decree is reversed, and all proceedings had before Judge HAWKINS are set aside, and the record is ordered to be remitted with a procedendo as to the matters occurring in the Orphans' Court before he presided, the costs to abide the final result.

[See preceding case.

May 8, 1877.

Duffy v. Commonwealth.

The Act of 14 April, 1834 (Purd. Dig. pp. 230, 231, §§ 121 to 125 inclusive), authorizes the holding special Common Pleas Courts in any county by calling in the President Judge who Jan, '77, 202. may reside nearest, for the trial of those cases wherein the President Judge of the Court in which the suit is brought is incapacitated for trying (1) through interest in the cause; (2) where title in dispute is derived through him; (3) through kinship to parties; or (4) through having been concerned as counsel. By the Act of 4 April, 1843 (Purd. Dig. 1105, § 14), the provisions of the above Act are extended to the Orphans' Court, Register's Court, Quarter Sessions, and Oyer and


The Act of 4 March, 1875 (P. L. 5, § 1; Purd. Dig. 2050), provides as follows, viz:

"Whenever, by reason of sickness, absence, interest, or other cause, a Judge of the Orphans' Court, in any judicial district of this Commonwealth, may be unable to sit in any matter depending in such Court, it shall be law. ful for him to call upon any other Orphans' Court Judge, or Judge of any other Court of Common Pleas, in this Commonwealth, to preside in and determine such matter, with the same force and effect as though he, the regular commissioned Judge of such district, if presiding, might do."

The question of jurisdiction was not raised in the Court below, nor is it anywhere referred to in the paper-books. It was first suggested at the opening of the argument before the Supreme Court, by AGNEW, C. J. In answer to a question by SHARSWOOD, J., counsel for appellant stated that there had been no agreement to give Judge HAWKINS jurisdiction, and if he did not have it, he (counsel) had nothing to say. The Court, however, concluded to hear the case on its merits.

D. S. Wilson (with him Dougan), for appellant.

Miller (with him Braden, and Brady, Jr.),


Criminal law-Murder in the first degree-Accessory before the fact-Evidence-Declarations-Impeaching credibility of witness.

Evidence of declarations made prior to a murder in the presence of a prisoner charged as accessory, which tend admissible without express evidence of assent on the part to show a conspiracy in which the prisoner was a party, is of the prisoner. So also is evidence of similar declara

tions after the murder.

Corroborating testimony to prove particular events, themselves unimportant, in a chain showing a deep conspiracy, is admissible.

The Commonwealth may show that a witness called by it was drunk at the time concerning which he testified. Such evidence does not impeach his general credibility, but only shows that his recollection of the events is confused.

Carroll v. Commonwealth, 4 WEEKLY NOTES, 109, and

Campbell v. Commonwealth, Id. 115, followed.

Error to the Oyer and Terminer of Schuylkill County.

Thomas Duffy, James Carroll, James Boyle, Hugh McGeehan, and James Roarity were jointly indicted for the murder of Benjamin F. Yost. Duffy elected to be tried separately. The others were tried jointly. (For a report of their case see Carroll et al. v. Commonwealth, 4 WEEkly Notes, 109.)

Upon the trial of the indictment against Duffy, the Commonwealth proved that early on the morning of July 6, 1875, Yost, a policeman, at Tamaqua, was standing upon a ladder in the act of extinguishing the gas-light of one of the street lamps when he was approached by two men who discharged their pistols at him, inflicting a wound

from the effects of which he soon died. It was also shown that in the winter of 1874-5, a quarrel had taken place between Duffy and Yost, in which Duffy had suffered a beating, and the theory of the prosecution was, that Duffy had procured McGeehan and Boyle to come from Carbon County to kill Yost out of revenge, and was therefore guilty as an accessory before the fact, although not present at the killing.

James Kerrigan, a confessed accomplice in the murder, was called by the Commonwealth, and asked the following question :

"Ques. If you, Duffy, and Carroll had any conversation there in reference to the beating that Duffy had received from Yost, tell us what it was. Ans. We had a drink, and James Carroll said to Thomas Duffy, Tommy, never mind, for what Yost has done to you we will make his head as soft as his ass.'"

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mitted to discredit his own witness. Objection overruled. Exception.


The prosecution then offered to show sundry acts and declarations of the prisoner with reference to the society of Molly Maguires," made and committed subsequently to the period of the murder, for the purpose of showing his knowledge of the criminal character of the organization. This offer was objected to as irrelevant. Objection overruled. Exception.

The prisoner presented, inter alia, the following point: (8) If Kerrigan materially varied on the trial of this cause from the evidence he gave on the habeas corpus hearing, and the jury believe that he intentionally withheld facts and misrepresented the facts, they should disregard and reject his evidence as unworthy of belief. Ans. We affirm this point if the jury believe the facts therein stated, and that the facts were material to the issue. No exception was taken at the trial to this an

Objection was then made to the witness further stating what Carroll said unless it was accom-swer. panied by proof of what Duffy's response was. Objection overruled. Exception.

The witness then continued, “Carroll said to Duffy, Never mind, we will make Yost's head as soft as his ass for the money you gave, and for the beating he gave you.'' The witness was also asked the following question:

"Ques. Do you recollect being present at Carroll's when there was any conversation that took place in the presence of Duffy, McGeehan taking part, after the shooting of Yost, in reference to the murder of Jones being a trade for shooting of Yost. Ans. Yes, sir, that was the night.'

The Court in the general charge also said: "It is very certain if McGeehan and Boyle shot Yost in the manner testified to, and it is not denied here, they were guilty of murder in the first degree, and it is equally as certain, if Duffy was not connected with them in some way as aiding, abetting, or encouraging them, he should not be convicted. If he was there, he would be guilty, and you should say so. The conviction of McGeehan and Boyle for the murder of Yost has been offered in evidence, and is prima facie evidence of their guilt."

Verdict of guilty of murder in the first degree, upon which sentence was duly given. The prisoner took this writ of error, assigning for error the admission of the evidence objected to, the answer to the point, and the charge of the Court, as above given. There were numerous other assignments of error relating to questions discussed and settled in Carroll v. Commonwealth (4 WEEKLY NOTES, 109) and Campbell v. Commonwealth (Id. 115).

Counsel for the prisoner object to this testimony as incompetent to affect the prisoner, as it relates to subsequent declarations of other parties made after the murder. Objection overruled, because whatever was said in Duffy's presence or acquiesced in by him is admissible. Exception. Robert Breslin, a witness called for the Commonwealth, having testified to meeting Boyle and McGeehan at a certain time returning from the John W. Ryon and Lin Bartholomew, for the murder over the mountain, and that after meet-plaintiff in error. ing them, he went directly home, reaching home A prisoner cannot be bound by testimony of at a certain time, his parents were called to prove what another has said in his presence to which he that he reached home at that time. This testi- in no way gives assent. It may be true that when mony was objected to because simply confirma- one remains silent when a charge is preferred tory on a point not disputed. Objection over-against him, his silence may be construed into a ruled. Exception. tacit admission, so as to make the declaration adDavid Davis, having been called by the Com-missible as evidence against him, but where is the monwealth, and having testified in a certain way, the Commonwealth then asked him whether he was not drunk at the time of which he was testifying, for the purpose of discrediting him by showing that his recollection necessarily was bad, he having testified in a manner different from what was expected. This question was objected The testimony offered to corroborate Robert to by the prisoner because a party is not per-Bresla's testimony should not have been ad

rule of evidence which bound the prisoner either
to assent to or deny any allegation that Carroll
may have made in his presence about Yost. The
following authorities settle this question :—
Com'th v. Kenney, 12 Met. 235.
People v. Green, 1 Parker, 11.
Rex v. Appleby, 3 Stark. 33.


mitted since it simply went to strengthen what he | mitted to the Court of Oyer and Terminer for had said on an immaterial point which was not the purpose of execution according to law. disputed. Such corroboration is not admissible until an attack has been made upon the testimony of the principal witness.

Craig v. Craig, 5 Rawle, 91.
Com'th v. Wilson, 1 Gray, 340.

Neither was it competent for the Commonwealth to discredit their own witness by showing that he was drunk at the time concerning which he testified.

Stockton v. Demuth, 7 Watts, 39.
Bank v. Davis, 6 W. & S. 285.

Cowden v. Reynolds, 12 S. & R. 281.

The passage in the general charge assigned for error assumed the guilt of the principals; in this the Court fell into the same error which was committed in Rhodes v. Com'th (12 Wright, 396).

Gee. R. Kaercher, Guy E. Farquhar, and F. W. Hughes (with whom were F. B. Gowen and Charles Albright) for the Commonwealth.

The declaration of Carroll in the presence of Duffy when taken with the other facts in evidence shows that the killing of Yost was out of revenge for the beating which Duffy had received, and that Duffy was one of the parties to the conspiracy to kill.

The right of the Commonwealth to corroborate the testimony of Breslin was settled in Carroll v. Com'th, supra.

The testimony to show the drunken condition of Davis was not offered to impeach his credibility as a witness or his character, but to show that his recollection of the events of which he spoke was necessarily confused.

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Under an indictment for forgery under the Act of March defraud any particular person, for 19 of the same Act es31, 1860, 169, it is unnecessary to prove an intent to pecially provides that proof of a general intent to defraud will be sufficient.

Error to the Quarter Sessions of Philadelphia County.

An indictment under the Act of March 31, 1860, § 169 (Purd. Dig. 364, pl. 253), was found against Robert McClure, charging him with (1) unlawfully making and signing, or being concerned in fraudulently making and signing, and (2) fraudulently uttering and publishing a diploma of the Veterinary College of Philadelphia. The defendant pleaded, Not guilty.

The evidence offered at the trial was to the following effect: The Veterinary College of Philadelphia was incorporated under an Act of Assembly of the State of Pennsylvania, but it has not been in operation since 1862. Early in 1877 it became known to the chief of police that diMay 21, 1877. THE COURT. We have care- plomas of the college had been received, and fully considered this case after a full argument by were being used by persons who had never atcounsel, and discover no substantial error in the tended the college as students, and were utterly record requiring a reversal of the sentence of the unfit to practise as veterinary surgeons. These Court of Oyer and Terminer. Many of the ques- diplomas were traced to the defendant McClure, tions have been passed upon in the case of James who had been one of the faculty of the college. Carroll et al. v. The Commonweath, and Alex. The chief of police detailed detective Yoder to Campbell v. The Commonwealth, heard at Phila- procure the proper evidence against McClure delphia in March last. The forty-second assign- and bring about his arrest and trial. Francis ment of error raised an important question, but Standin, a young man who had attended the colit is supported by no bill of exception and cannot lege, was selected to enter into negotiations with be considered. Much stress has been laid upon McClure and procure one of the fraudulent dithe alleged unreliability of James Kerrigan, an plomas. Standin followed the directions given accomplice, and the principal witness in the trial. him by Yoder, wrote to McClure several times, But histestimony having been corroborated to such making various inquiries and propositions, and an extent in material points tending to implicate finally offered to give him one hundred and Thomas Duffy in the commission of the murder twenty dollars for a diploma. The offer was as an accessory before the fact, the credibility of accepted, and on April 21, 1877, as arranged Kerrigan became a question for the jury, whose between Standin and the detective, marked verdict cannot now be reached. His credibility money was paid to McClure, the diploma was was fairly left to the jury under instructions which handed by him to Standin, and he was immewe cannot say were erroneous. Upon the whole diately arrested by Yoder. Along with the dicase we cannot say any substantial error occurred ploma McClure gave Standin three books, sayin the trial. The sentence of the Court is, there-ing, "These will help you in your practice. fore, affirmed, and the record is ordered to be re- You are now a full-fledged doctor, and as much

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entitled to write M.D. after your name as any | such an intent should be proven. This enactdoctor in the land." The diploma, put in evi- ment is derived from the English statute, 14 dence, read as follows:Vict. c. 100, which has been so interpreted in several cases.


Know ye, That we, the Officers and Professors of the VETERINARY COLLEGE OF PHILADELPHIA, Do, by the authority vested in us by the Sovereign Power of the State

Regina v. Hodgson, D. & B.'s Crown Cases, 3.
Regina v. Mills, Id. 205.

H. S. Hagert, District Attorney, and W. W.
Ker, Assistant District Attorney, contra.
The evidence shows clearly an intent on the

of Pennsylvania, confer the degree of Doctor of Veterinary part of the plaintiff in error to defraud Standin.

Medicine and Surgery, with all the attending immunities consequent thereon, upon Francis Standin, he having attended the curriculum of Studies, and complied with all the requirements imposed by the laws of our Institution. And we hereby certify his entire ability to treat in a scientific manner, all kinds of diseases peculiar to Veterinary Practice.

In testimony whereof, we have granted him this Diploma, on this first day of March, Anno Domini 1877, in the Hall of our College, at Philadelphia, affixing our signatures, and the Seal of the College thereto.


ALFRED L. ELWYN, M.D., Pres't. GEO. W. ORLESS, V.S., Secretary. ROBT. MCCLURE, M. D., V.S. JOHN H. GOULD, V.S.

It was shown at the trial that the names of Dr. Alfred L. Elwyn, the former President of the College, and John H. Gould, which were appended to the diploma, were forgeries, written at McClure's request, by J. H. Warren, a Professor of Penmanship, McClure having given him genuine signatures of Elwyn and Gould to imi


The defendant offered the following points: (1) In order to convict the defendant the Commonwealth must prove, beyond a reasonable doubt, that there was an intent to defraud, and there has been no evidence whatever of an intent to defraud. Answer. I will affirm the first, and, as to the latter, it is the jury's right to determine if there was an intent to defraud any one. (2) There is no evidence before the jury to convict the defendant under the bill of indictment before them. Refused.

The Judge said, in his charge: "If you find that the defendant intended to defraud any one, when he procured the names to be signed to the diploma, he is guilty."

The jury brought in a verdict of guilty, and the defendant took this writ, assigning for error the admission of the diploma in evidence, the answers to points, and the portion of the charge quoted.

Wm. B. Mann (with him F. F. Brightly and G. Haldorn), for the plaintiff in error.

Although under the Act of March 31, 1860, § 19 (Br. Purd. Dig. 379, pl. 20), it is sufficient in an indictment for forgery to allege that the act was done with an intent to defraud, without alleging an intent to defraud any particular person, yet it is still essential to a conviction that

March 11, 1878. THE COURT. Foreign cases cannot override the express words of a Pennsylvania statute.

The 19th section of the Criminal Procedure Act of March 31, 1860 (Purd. Dig. 379-80, pl. 20), is in these words: "It shall be sufficient in any indictment for forging, altering, offering, disposing of, or putting off, any instrument whatsoever, or for obtaining, or attempting to obtain, any property, by false pretences, to allege that the defendant did the act with intent to defraud; without alleging the intent of the defendant to be to defraud any particular person; and on the trial of any of the offences in this section mentioned, it shall not be necessary to prove any intent on the part of the defendant to defraud any particular person, but it shall be sufficient to prove that the defendant did the act charged with an intent to defraud.”

Here is a positive statute which says you need not charge or prove an intent to defraud any particular person, but it shall be sufficient to charge and prove a general intent to defraud.

Did the Legislature mean what it said in this Act? Who can doubt it? What was the pur pose? Clearly to meet those frauds which affect the public at large. If a man, forge bank notes, bonds to bearer, or other documents, intended to deceive the public, and make money out of the imposture, on what principle is this a less offence than if he intended to cheat a single individual? He often does not circulate them himself, but sells them, at a percentage on their face, to accomplices who circulate them to the injury of the public.

Such a counterfeiter is far more dangerous to society than the "shover," as he is called, of the bills or counterfeit papers. Now that any foreign case should control a Pennsylvania statute so plain in its intent and beneficial in its purpose, would itself be almost a fraud upon the public. We cannot recognize any such authority.

The case before us is a clear one. The detendant procured a certain diploma to be fraudu lently and falsely signed with the names of certain persons as the officers of a once existing institution authorized to grant degrees.

He sold this diploma to a person named Standin for $120, after a correspondence on the sub

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