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no inquiries to ascertain facts which were easily obtainable, and which would have disclosed the death of the testator. If this had been done there was ample time to have suggested his death before the statute of limitations had run. It is true it was not until March, 1924, that the plaintiffs knew of it, yet during the preceding seventeen months they seemingly remained inactive, and let the action drift. They now urge that Ewing v. King, 169 Mass. 97, 47 N. E. 597, entitles them to relief. But in that case as pointed out in Leach v. Leach, the plaintiff had been misled by the conduct of the representatives of his debtor which was tantamount to representations that his debtor had not died but was still alive.

The ruling, "that the plaintiffs have not made out a case," was right, and a decree is to be entered dismissing the bill with costs. Ordered accordingly.

COMMONWEALTH v. VONA.

(Supreme Judicial Court of Massachusetts. Middlesex. Jan. 10, 1925.)

BRALEY, J. The defendant, although indicted and tried for murder in the first degree, was convicted of murder in the second degree. During the trial the defendant saved exceptions to the admission of evidence, which he contends should be sustained. The indictment charged that on February 19, 1922, the defendant at Malden did assault and beat one Luigi Seibelli with intent to kill and murder him, and by such assaulting and beating did kill and murder said Luigi Seibelli. The evidence for the Commonwealth in substance showed, that on the night of February 19, 1922, the defendant met Seibelli on the street and said to him, "To you, you must die," and approaching Seibelli he fired point blank, when Seibelli fell to the ground. It further appeared and could be found by the jury on the medical testimony, that of the two bullets which entered the body of Seibelli, one passed through the kneecap, and the other through the stomach lodging in the back below the shoulder blade, and that the last wound caused Seibelli's death, which occurred February 20, 1922.

[1, 2] While Seibelli was at the Malden Hospital, to which he was removed and where he died February 20, 1922, he signed and made oath on that day to a statement of what took place at the time of the homicide.

1. Homicide 204-Essentials to admission The admission of this statement is the first of dying declarations, stated.

Before dying declarations may be admitted, it must appear that declarant was conscious of his condition and had abandoned all hope of recovery; but proof of immediate dissolution is not required.

2. Homicide 203 (4)—Decedent's statement held to have been made under sense of Impending death.

Preliminary statement of decedent that he could not live long and wanted statement to be his last statement concerning the shooting held to show that declarant was conscious he was nearing his end and that declarations were made under sense of impending death.

3. Witnesses 297-Witness not compelled to give incriminating testimony.

In prosecution for murder, witness indicted as accessory before fact could not be compelled to give evidence which might tend to incriminate him in trial of his own case or subject him to punishment.

Exceptions from Superior Court, Middlesex County; Frederick W. Fosdick, Judge. Salvatore Vona was convicted of murder in the second degree, and he excepts. Exceptions overruled.

A. K. Reading, Dist. Atty., and R. T. Bushnell, First Asst. Dist. Atty., both of Boston, for the Commonwealth.

J. M. Graham, of Boston, and C. J. Muldoon, Jr., of Somerville, for defendant.

exception. The judge was to pass upon the preliminary conditions which were necessary for its admissibility. Commonwealth v. Bishop, 165 Mass. 148, 152, 42 N. E. 560. It must appear that the declarant was conscious of his condition and had abandoned all hope of recovery; but proof of an immediate dissolution is not required. Commonwealth v. Cooper, 5 Allen, 495, 81 Am. Dec. 762; Commonwealth v. Roberts, 108 Mass. 298, 301. The opening sentences of the statement, "My name is Luigi Seibelli, 2 Malden street. I Luigi Seibelli decide to make this my last statement. From what the doctors have told me and the way I now feel that I cannot live very long, I want this to be my last statement concerning the shooting on February 19," sufficiently shows that the declarant was conscious he was nearing his end, and that the declarations which followed were made under a sense of impending death. Commonwealth v. Cooper, 5 Allen, 495, 497. The statement was admitted rightly. The jury, to whom under our practice the judge left the question, could reject it if they were of opinion that Seibelli still had hopes of recovery, and they also were to pass upon the weight to be given to it. Commonwealth v. Brewer, 164 Mass. 577, 582, 42 N. E. 92.

[3] The defendant and a witness in his behalf having testified that one Amato Russo was with them on the night of the alleged i murder, the defendant called Russo, who re

(146 N.E.)

Jas. H. Vahey, Philip Mansfield, and Bernard Beerman, all of Boston, for plaintiff. Curtin, Poole & Allen and Asa S. Allen, all of Boston, for defendant.

PIERCE, J. This is an action of tort for

personal injuries, sustained by the plaintiff while engaged in the employment of the defendant. The defendant was not insured under the Workmen's Compensation Act (St. 1011, c. 751, amended by St. 1912, c. 571). At the close of the evidence, the defendant mov

fused to testify, because he might incrimi- | injury while engaged in defendant's employnate himself. If the statements of defend- ment as a baker. Verdict for plaintiff, and ant's counsel are treated as an offer of proof defendant excepts. Exceptions sustained. it appears, that "in December, 1923, Russo was indicted as accessory before the fact on a secret indictment, and that he lived in Malden from that time until April 21, 1924, when he came to testify in behalf of the defendant," the present case being then on the trial list, "and on that day he was placed under arrest on the indictment." The court having asked, "The purpose of that testimony being to base an argument of what?" counsel replied, "That after having told his story he was indicted, an indictment was caused to be brought by the district attorney's office, the story which he told the dis-ed that a verdict be directed for him upon trict attorney's office being favorable to the defendant and for the purpose of stopping him from testifying for the defendant." The indictment on which Russo had been arrested was still pending, and it is too plain for discussion that he could not be compelled to give evidence which might tend to criminate him in the trial of his own case, or subject him to punishment. Commonwealth v. Trider, 143 Mass 180, 9 N. E. 510; People v. Forbes, 143 N. Y. 219, 38 N. E. 303. The offer of proof was properly excluded. Exceptions overruled.

GARBER v. LEVINE.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 10, 1925.)

1. Master and servant 356-Assumption of risk no defense under Compensation Act. Servant's assumption of risk was no defense to employer who was not insured under Workmen's Compensation Act.

2. Master and servant 286 (10)-Whether employer was negligent in maintaining slippery platform of dough mixer held for jury.

Whether employer was negligent in permitting floor to platform of dough mixer to become slippery, so that baker slipped thereon and injured hand in mixer, held, under evidence, for jury.

3. Evidence 213(1)—Evidence of plaintiff's statement and defendant's silence at meeting to compromise held incompetent.

Where parties met to settle and compromise in faith that what was said could not be used as admissions against either, evidence of plaintiff's material statements as to cause of his injury and defendant's silence thereon was incompetent, and its admission erroneous.

Exceptions from Superior Court, Suffolk County; Frederick W. Fosdick, Judge.

Action of tort by Abraham D. Garber against Isaac Levine, to recover for personal

all the evidence. This motion was denied by the court and the defendant duly excepted.

Putting to one side all testimony unfavorable to the alleged cause of action, the remaining testimony in support of the contention of the plaintiff that there was on his part no contractual assumption of risk, and that the negligence of the defendant in failing to furnish and maintain a reasonably safe place for the plaintiff to work was the direct cause of the personal physical injury for which he seeks damage of the defendant, the jury warrantably could find the facts which follow. On November 14, 1920, the plaintiff was in the employment of the defendant as a baker, at 84 Arlington street, Chelsea. He worked upon a dough mixing machine, standing upon a platform in front of the machine. He had worked at the same

Occupation and in the same place for about one year, the last two months for the defendant, before then for one Rose. When he worked for Rose he did the same kind of work in the same dough mixing machine and on the same platform as when he worked for the defendant. When the defendant bought out Rose, the same dough mixing machine that had been used by Rose was afterward used by the defendant and the machine was at the same place in the shop when Rose was there as it was when the defendant was there. The platform was used in just the same way while Rose was there as while Levine was there. The bakery is in a basement and the oven opens into the basement. The floor was always clean when Rose was

the owner of the shop. The defendant did

not keep the shop clean, the floor was frequently slippery due to moisture and dirt, and the platform became slippery frequently from the wet soles of the shoes of the plaintiff as he went back and forth carrying water from the sink to the machine. About 7 o'clock on Saturday night, before the accident, which occurred on Sunday morning at three o'clock, he told the defendant that the floor was wet and that the defendant "should spill sawdust to make it right." The defendant replied: "Go ahead, I must

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

have my work, I am late. I must have my bread at 5 o'clock. I am busy, go ahead, do your work." The platform got wet from his going up and down upon it. As he stood on the platform the top of the dough mixing machine came about two or three inches above his waist line. The whole top of the machine is open, there is no covering at all over the top. He started and stopped the machine as he did the work and he could see anything inside the machine when it was running. There are two arms of an agitator inside the machine, and as they come up and revolve away from one standing in front of the machine they go within 15 to 16 inches of the top of the tank, and within three-eighths to one-half inch of the side walls of the inside of the tank.

It further appeared in evidence that just before the accident the platform and floor were more slippery than they were at 7 o'clock; that it was more difficult in walking from the dough mixing machine to the bench and back again at that time than at the beginning of the evening; that at the time of the accident the plaintiff was standing on the platform in front of the dough mixing machine; that there was a bag of flour standing near; that he took some flour in his hands from this bag and spread it over the dough; that he did this twice; that "then the third time," as the plaintiff described the sequence of events, "I took some flour from the bag in my hands and intended to spread it over that dough in the machine when I slipped, and when I slipped one of my hands fell in the side of the machine and cut my finger off." The defendant contradicted the statement of the plaintiff that he made complaint as to the condition of the floor, and testified that the floor "was never wet," that the "floor of the shop was dry," that "at the time the accident happened the floor was clean and dry," and that "the platform was dry."

[1, 2] It is evident it does not lie in the mouth of the defendant to contend that the plaintiff contractually assumed the risk of a physical condition of the premises which he denies existed when the plaintiff entered the employment of the defendant. The plaintiff's action in continuing to work in the shop of the defendant with full knowledge of the dangerous and unsafe condition of its floor and of the platform of the machine, after his complaint and the refusal of the defendant to do anything to make the floor reasonably safe, is not a defense to the defendant who was not insured under the Workmen's Compensation Act. We think the question of the defendant's negligence was for the jury, and that the refusal to direct a verdict was right. [3] In cross-examination the defendant testified that he knew a lawyer named Joseph Bearak; that he was in his office once; that

Bearak's office with Mr. Garber and Mr. Simon Bennett about four months after the accident; that Mr. Bearak was not the defendant's attorney; that a friend asked him to go to see Mr. Bearak and that he met Mr. Garber there. The defendant was then asked, "Did Mr. Garber say to you on that day that he had been injured by reason of his foot slipping on the platform near the dough mixing machine?" The defendant objected to this question on the ground that "they were talking over compromise with this plaintiff and therefore all matters considered then are not admissible." The objection was overruled and the defendant duly excepted. The defendant was then allowed to answer "No," and to testify further that nobody said anything to him in that office about how the accident happened. To all of this conversation the defendant duly excepted.

Joseph Bearak, after testifying that he had a talk with both of them in his office, was asked:

"At that time in the course of the conversation did you hear Garber say anything in reference to how the accident happened, in Levine's presence?"

The defendant duly objected upon the ground that the conference was for the purpose of talking over a compromise in this matter. The judge required the answer to be given, on the ground that the plaintiff might argue from the expected answer "that the to having the foot slip is not a new claim," claim that the plaintiff makes with reference and also on the ground that it would contradict the testimony of the defendant. The

witness then answered:

"Garber said, as near as I can remember, that the platform was wet and muddy with dough and it gave way from under him; I don't remember he said which foot gave way first, but he said he slipped."

On cross-examination the witness testified that the appointment at his office was arranged by Clarence Richmond; that he represented the defendant; that Richmond was present for the defendant; that they met in his office for the purpose of settling the case; that it was understood in advance, "and it was understood at that time what was said at that time was said without prejudice to either party." Thereupon the defendant moved that all the witness' testimony as to what was said in his office be stricken out and to the denial of this motion the defendant duly excepted. There was testimony of other witnesses as to what Garber said, to the same effect, and that Levine did not say anything, to which questions and answers the defendant duly excepted. The evidence admitted over the exception of the defendant was submitted to the jury on the theory that the jury from the silence of the defendant

(146 N.E.)

Error to Supreme Judicial Court, Suffolk County.

Morris Finer was convicted of larceny. Sentence was suspended, and defendant placed on probation. Sentence was revoked, and defendant committed, and he petitions for writ of error. Judgment affirmed.

M. Tobey, of Boston, for petitioner. J. R. Benton, Atty. Gen., and Lewis Goldberg, Asst. Atty. Gen., for the Commonwealth.

RUGG, C. J. This is a petition for a writ of error. Writ of error and scire facias have issued.

In the circumstances it is entirely clear cution thereof, on violation of probation, nor that the evidence of what Garber said and entitle defendant to discharge. that the defendant made no reply thereto should have been excluded on ground of public policy, the policy of encouraging peaceful out-door adjustment of cases and causes of litigation. Dickinson v. Dickinson, 9 Metc. 471, 474; Harrington v. Lincoln, 4 Gray, 563, 64 Am. Dec. 95; Johnson v. Trinity Church Society, 11 Allen, 123; Wigmore on Evidence (2d Ed.) § 1061; Molyneaux v. Collier, 13 Ga. 406, 415; White v. Old Dominion Steamship Co., 102 N. Y. 660, 662, 6 N. E. 289. It indisputably appears that the plaintiff and defendant met at the office of a disinterested attorney to settle and compromise their differences, in the faith that what was then said, could be said without prejudice and without fear that what was said might subsequently be introduced in evidence as admissions against the one party or the other. In the case at bar it is to be noted that the defendant made no statement of fact; and made no admission of fact, unless an admission of the truth of the statement of the plaintiff resulted from the fact that the defendant said nothing in reply thereto. It is further to be observed that the statement of the plaintiff concerned vital elements in the proof of his case, and in no wise could be said to relate to facts which were collateral to the subject matter of the conference. Exceptions sustained.

Petition of FINER.

(Supreme Judicial Court of Massachusetts. Suffolk. Jan. 10, 1925.)

1. Criminal law 615-Defendant may waive formal entry of continuance, and consent that case remain in court.

In view of St. 1916, c. 174, § 2 (G. L. c. 218, § 4), defendant in district court may waive formal entry of continuance, and consent that case remain in court without such entry until asked for by either party; abolition of stated terms of court, by St. 1897, c. 431 (G. L. c. 218, $38), and chapter 490 (G. L. c. 213, § 4), not affecting right.

The case is here upon the record of the district court of Chelsea duly returned and certified. It appears therefrom that the plaintiff in error was duly arrested and brought before that court on March 5, 1923, on a complaint charging him with having committed the crime of larceny, when he was arraigned and pleaded guilty; that by agreement the case was continued, first until March 12, 1923, and then until March 17, 1923, when he was adjudged guilty and ordered committed to the house of correction for the term of one year and

On

"Sentence was suspended and said Finer was placed in the care of the probation officer. December 8, 1923, a default warrant for vielation of probation was issued and said Finer was brought before said court April 2, 1924, and said sentence was revoked and Finer was committed."

Both sides assume that he was committed on a new sentence. The plaintiff in error in his petition and in his brief states that the new sentence was for a period of one year from April 2, 1924. The case is considered on that footing.

The question to be decided is whether the district court had power to make an indefinite suspension of sentence and to place the plaintiff in error on probation without, fixing a definite time for the period of probation, and then at a later time to reimpose the same sentence.

[1] District courts, since St. 1916, c. 174, § 2, and now, are

2. Criminal law 1001-Probation must be "courts of superior and general jurisdiction with for definite period.

Under G. L. c. 276, § 87, and chapter 279, 1, probation of convicted person by district court must be for definite and specified time. 3. Criminal law 1001-Failure to state period of probation held not to entitle defendant to discharge.

Failure, upon suspension of sentence, to conform to G. L. c. 279, § 1, with respect to stating period of probation, not affecting substantial right of defendant, held not to affect validity of sentence and commitment in exe

reference to all cases and matters in which they have jurisdiction * $sumption shall be made in favor of proceedings and the like preof such courts as would be made in favor of proceedings of other courts of superior and general jurisdiction." G. L. c. 218, § 4.

Therefore, the statement in Commonwealth v. Maloney, 145 Mass. 205, at page 211, 13 N. E. 482, 485, is now applicable to the case at bar:

"When a case is pending in a permanent court of general jurisdiction, with stated terms, in

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

which continuances are from term to term, a defendant may waive the formal entries of continuance, and consent that the case may remain in court without such entries until asked for by either party."

The abolition of stated terms of court (St. 1897, c. 490 [G. L. c. 213, § 4]; St. 1897, c. 431 [G. L. c. 218, § 38]) does not affect the pertinency to the case at bar of the general principle here declared.

[2] The establishment of the probation system and the limitations upon its exercise are set forth in the statutes. The

bounds imposed by the statute must be observed when the machinery provided by the probation system is invoked. It is provided by G. L. c. 279, § 1, that after suspension of sentence a district court may order that the person convicted "be placed on probation for such time and on such terms and conditions as it shall fix." These words are in substance the same as those empowering the superior court to place upon probation a person convicted before it. G. L. c. 276, § 87. These words import definiteness and specification as to the time of the probationary period. There is reason for such definiteness and specification when a person has been convicted and sentenced. The general safety of society may require more stringent supervision of such a person than of one merely charged with crime but not even convicted. These words are different from the words of said section 87 authorizing the probation before conviction of those charged with crime. This difference of phraseology cannot be regarded as immaterial or wanting in signification.

[3] Failure to conform to the statute with respect to stating the period of probation does not affect the substantial rights of the plaintiff in error in his present plight. He

is not entitled to be discharged from custody. It does not affect the validity of his sentence or his commitment in execution thereof. His original sentence was valid. If he was dissatisfied with it, he had opportunity for appeal before the suspension of his sentence. After accepting the advantage extended to him by the law solely for his benefit, he

could no longer ask for revision of it or

complain of its terms. Mariano v. Judge of

District Court, 243 Mass. 90, 137 N. E. 369. The plaintiff in error has never served his sentence. It was suspended indefinitely. There was no infraction of the statute in such extension. Gabis, Petitioner, 240 Mass. 465, 134 N. E. 267. He accepted without objection the benefit thus afforded. He took advantage of the probation. Simply because there was an informality with respect to an incidental aspect of the probation following that suspension, the convict is not enabled to escape punishment. Commonwealth v. McGovern, 183 Mass. 238, 66

N. E. 805. Whatever may be said about the probation, the conviction and sentence stood unaffected. It was lawful for the

plaintiff in error to be brought before the court for execution of that sentence pursuant to that conviction. The case stands no differently in these circumstances with respect to execution of sentence than a comappropriate time it may be brought forward plaint or indictment placed on file. At any Commonwealth

for execution of sentence. v. Dowdican's Bail, 115 Mass. 133, 136; King v. Commonwealth, 246 Mass. 57, 140 N. E. 253; Marks v. Wentworth, 199 Mass. 44, 85 N. E. 81.

No error of law of which the plaintiff in error can complain is disclosed on this recJudgment affirmed.

ord.

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Pedestrian 12 years of age held, under evidence, not to have exercised care for his own safety as against perils of street car, which was in plain view at time he ran from sidewalk to catch another car.

2. Street railroads 117(7)-Evidence held not to warrant submission of negligence in striking minor pedestrian, attempting to board car.

Evidence held not to warrant submission of

defendant's negligence for failure of motorman to observe situation and peril of minor pedestrian, who ran from sidewalk to catch a car and

was struck by car on another track.

Report from Superior Court, Suffolk County; J. F. Brown, Judge.

Action of tort by Francis Sullivan, p. p. a., against the Boston Elevated Railway Company, to recover for personal injuries from collision with defendant's car. finding for plaintiff, verdict was directed for After jury's defendant, and case reported. Judgment for

defendant.

S. C. Brackett, of Boston, for plaintiff.
H. F. Hathaway, of Boston, for defendant.

PIERCE, J. This is an action of tort for personal injuries received by a minor pedestrian, 12 years of age, by reason of a collision with a car of the defendant while the plaintiff was crossing Bowdoin street in the Dorchester section of Boston. At the conclusion of all the evidence the plaintiff waived the second and third counts of the declaration, and the defendant moved that

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