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ular series of conveyances, the plaintiff in cluded deeds from the commonwealth, as this suit became the owner. The plaintiff | instruments requiring acknowledgment to enoffered to read from the record this deed, title them to record. Why the commonas proof of title. Defendant objected be wealth should appear before a justice of the cause it was not acknowledged before an peace, and acknowledge her deed, with her officer having authority to take acknowledg great seal affixed, to be her act and deed, ments of deeds. The court sustained the when the only evidence of her subordinate's objection, and excluded the deed. Was this authority was her deed (his commission), ruling correct? Unquestionably, the deed with her seal affixed, is not clear. Why go was executed and delivered by the common to the creature, that he may certify to the wealth to Dorothea Brien, plaintiff's prede identity of and genuineness of the act of his cessor in title. If accepted, for what on its creator? But the act of 1846 so provides. face it purports to be, it put in the purchaser This deed, however, was recorded June 8, whatever title the commonwealth bad ac 1844, and the first section of the act of 1846 quired by the commissioner's sale. By the (P. L. 124) expressly validates the record by second section of the act of 1807, the secre enacting that "where any of the deeds aforetary of the commonwealth, on certificate of said have heretofore been recorded in the the state treasurer that the purchase money office for recording deeds in the county of the John Nicholson land, as fixed by the where the lands lie

the records sale and report of the commissioners, had thereof, or duly certified copies thereof, shall been paid, was directed to make and deliver be as good evidence as if the same had been to the purchaser a deed for such estate as recorded under the provisions of this act.” Nicholson had in the land. Therefore, by We think the deed was properly recorded the authority of the supreme law of the land, when presented for record, although not forthe sovereign, with the great seal of the com mally acknowledged, and the validity of its monwealth affixed, executed and delivered record is expressly ratified by the saving prothe deed. In the very nature of our govern vision of the act of 1846. The record should ment, there could be no higher civil author have been admitted as an evidence of title ity. A patent from the commonwealth is on the part of plaintiff, for it tended to show simply a deed of land by her to a purchaser an express recognition by the commonwealth from her. The term, although seldom used, of at least an equitable title in John Nicholexcept in grants from the state to individual son at the date of the sale of this tract by purchasers, under the land laws, is just as the commissioners directed to be appointed applicable to any grant of land by the com by the acts of 1806 and 1807. Appellant's monwealth under any other laws. This in first and second assignments of error are also strument is a deed or a patent, just as one sustained. chooses to call it. The act of 1781 prescribes The judgment is reversed, and a v. f. d. the form of a patent or deed issued under n. awarded the general laws regulating the grant of vacant lands by the state. The acts of 1806 and 1807 prescribe the form of the deeds to

(204 Pa. 288) be executed for a grant of the "Nicholson

DAVIS et al. v. BEERS et al. court" lands. The latter are, to all intents

(Supreme Court of Pennsylvania. Jan. 5, and purposes, just as much patents as the

1903.) former. There is not a word in any of the

TAXATION-COLLECTOR'S RETURN-INSUFFI.

CIENCY OF PERSONALTY. acts of assembly, or in any of the cases

1. Under Tax Acts 1834, 1860, 1869, the duconstruing them, that restricts the word "pat ties of tax collector in Cambria county devolve ent” alone to grants of unappropriated va on three different collectors-one for the state, cant land purchased by warrant and survey.

county, and poor tax; another for the school

tax; and another for the road tax. Acts 1844, Our recording acts were intended to pro $ 41 (P. L. 501), provides that where personal vide for the proper authentication of deeds, property cannot be found, sufficient to pay the that they might be placed of record within

taxes assessed, the collectors shall return the the county where the land lay. The record

same to the commissioners of the several coun

ties, and the lands of the delinquent shall be then, or an exemplification of it, became evi sold in satisfaction thereof. The evidence dence, the same as the original. The record showed that there was on the land of a de preserved by authorized copy the original

linquent a considerable amount of property, suf:

ficient to pay either of the collectors, though not instrument. Prior to the act of March 14,

all. Each collector returned that he could not 1846, no law required that patents or deeds find sufficient property by levy on which the from the commonwealth, to entitle them to taxes could have been collected. Held erronerecord in the counties where the land lay,

ous, in that, if there was sufficient personal

property on the premises to pay any one tax, it should be acknowledged before any officer.

should have been collected, and a return of The deed of the sovereign, with the seal of "No property found," because there was not the commonwealth, was considered sufficient sufficient to pay all the taxes, was bad. authentication to entitle them to record, and Appeal from court of common pleas, Camthere are thousands of patents throughout bria county. the state issued and recorded before the act Action by S. W. Davis and another against of 1846 without acknowledgment. Nor is the W. M. Beers and others. Judgment for reason very obvious why the act of 1846 in- | plaintiffs, and defendants appeal. Reversaal.

Defendants presented these points:

of law: "That the plaintiffs have not shown “(2) The court is respectfully requested to any title to the land described in the writ in instruct the jury that the tax sale is null this case, for the reason that it is admitted and void, if there had been sufficient per that the county commissioners did not petisonal property on the premises at the time tion the court of common pleas of Cambria of the return of taxes from which the colo county, setting forth a description of the proplector of school tax could have made the erty to be sold, and the reasons therefor, and amount on his duplicate, or from which the the court did not fix a day for a hearing, collector of county tax could have collected and give notice in at least two newspapers the amount on his duplicate, or from which in Cambria county once a week for three the collector of road tax could have made consecutive weeks, and that the court did the amount on his duplicate. It is not nec not have a hearing and did not make an essary that there should be personal prop order and decree in the premises, and that erty on the premises sufficient to have paid no return to the commissioners' sales was the sum total of all the taxes assessed made to the court, the same as returns to against this land for that year. Answer. orphans' court sales are now returned, and This point is denied.

the court did not confirm the said sale." “(3) That the collector of school tax did Verdict for plaintiffs, upon which judgment not make a proper return if there was suffi was entered. Errors assigned were above cient personal property on the premises instructions, quoting them; in entering judgfrom which the school tax could have been ment for plaintiffs on the verdict. collected, and therefore a sale for school Argued before McCOLLUM, C. J., and tax would be void. Answer. So far as the MITCHELL, DEAN, FELL, BROWN, first part of the proposition is concerned, MESTREZAT, and POTTER, JJ. it is probably true that the return was not

P. J. Little, A. V. Dively, and M. D. a proper return, but, as already instructed

Kittell, for appellants. Alvin Evans, J. W. in our general cbarge, that would not be

Leech, and John E. Evans, for appellees. conclusive on the question, and warrant us in declaring that a tax sale for school, road, and county taxes for that year would be DEAN, J. The case below was an ejectvoid.

ment brought by plaintiffs against defend"(4) That the supervisors did not make a ants to recover possession of a tract of land, proper return if there was sufficient personal containing about 79 acres, in Reade townproperty on the premises from which the ship, Cambria county. Plaintiffs claimed tiroad tax could have been collected, and tle by a county commissioners' sale, and therefore a sale for such tax is void. An deed in pursuance thereof. The commissionswer.

We make the same answer to this ers took their title by deed of the county as to the third point, with the substitution treasurer on a sale for unpaid taxes; deed of the word 'road' for 'school.'

being dated December 28, 1894. The land “(5) That the collector of county tax did had belonged to F. A. Shoemaker, who mort. not make a proper return if there was suffi gaged it to the Equitable Loan & Building cient personal property on the premises from Association of Altoona to secure a loan. which the county tax could have been col The lender foreclosed the mortgage, and, on lected, and therefore the sale for such tax the judgment obtained, the property was is void. Answer. We make the same an advertised for sale by the sheriff and sold, swer to this point, with the substitution of but before delivery of his deed the sale was the word 'county' for 'school.'

made to plaintiffs by the commissioners. “(6) The uncontradicted testimony of the Both parties therefore claim under the same defendants showing that there was personal source of title-F. A. Shoemaker. If the tax property on the premises during the year sale by the county treasurer, under the law for which taxes were unpaid, and the super and facts, vested a good title in the comvisors and the collector of school tax and missioners, then Shoemaker had no estate county tax not having exhausted said per in the land which passed by the sheriff's sonal property by a sale of the same prior sale on the mortgage. The taxes for which to making his return, the returns of these the land was sold by the treasurer were asofficers are invalid, and your verdict must sessed for the years 1891 and 1892. The be for the defendants. Answer. This point property was assessed, as 80 acres and 7 is denied. While we find no decision on the houses, to Shoemaker. The tax assessed for subject, we cannot conceive it to be the law

1891 was: County, $15.75; school, $18. For in a given case, where the jury find from 1902: County, $8.51; road, $7.20; school, $14.the evidence that there was not sufficient 40. personal property on the land to pay the The defendants offered considerable evi. taxes assessed, that a sale made for non dence going to show that there was perpayment of those taxes would be void be sonal property on the premises out of which cause the collector did not exhaust such the taxes could have been made if the colpersonal property as there was on the land lector bad levied upon and sold it. The before making his return.”

duties of tax collector devolve upon three The court reserved the following question different collectors in Cambria county, under

the acts of 1834, 1860, and 1869. One col the act of 1879 (P. L. 55), which enacts that lects county, state, and poor tax; another, “it shall not be so construed as to prevent school tax; and still another, road tax. To the original owner or owners from showing subject this land to sale by the county treas that there was sufficient personal property on urer for unpaid taxes, each collector made the real estate sold to pay all taxes assessed affidavit, and filed the same with the county thereon which might have been seized by the commissioners: “That after a proper effort collector if he had used due diligence," addat the proper time, he could not find suffi ed nothing to the scope or force of the act cient personal property, by a legal sale of of 1814. But the palpable meaning of the which the taxes on the land, or any portion answer to the point, taken in connection of said taxes, could have been collected.” with the general charge, is that if there was On this return of the collectors the land was not sufficient personal property on the land turned over to the county treasurer for sale. to pay the whole of the taxes assessed, The defendants averred that these affidavits adding together the taxes in the three duand the returns were false, and this made up plicates in the hands of the three collectors, the first issue of fact for the jury, and the then there was not sufficient personal propprincipal one of law for the court. The in erty to pay the taxes assessed on the land, structions of the court on the evidence bear within the meaning of the act. Such is not ing on this fact are the subject of complaint our interpretation. Here was a small farm; in appellants' third assignment of error, a farmhouse, with a tenant; a small barn; which specifies as erroneous the court's an seven houses, some of them occupied. The swer to appellants' second written prayer different kinds of taxes were small in for instructions, as follows: “That the col. amount. The owner was a nonresident of lector of school tax did not make a proper the township. It cannot be doubted, from return, if there was sufficient personal prop the evidence, that there was considerable erty on the premises from which the school personal property on the premises in the year tax could have been collected, and therefore it was the collector's duty to collect. It bea sale for school tax w

void." To longed to the tenants who were in possesthis the court answered: “So far as the sion. Every tenant knows that while in posfirst part of the proposition is concerned, session his personal property is subject to it is probably true that the return was not seizure for taxes. Payment by him may a proper return, but, as already instructed have been part of his rent. It is the duty in our general charge, that would not be of the collector, in case the owner be a nonconclusive on the question, and warrant us resident, to make demand upon the tenant in declaring that a tax sale for school, road, for the taxes in his duplicate to which is and county taxes for that year would be appended his warrant, and, on his refusal void." The only instruction on this subject to pay, to seize and sell the personal propin the general charge is as follows: "If suf erty subject to seizure and sale for taxes. ficient property could have been found there He has no authority to make demand for on to pay the taxes assessed thereon for that taxes for which other collectors have waryear (meaning 1891), the sale for taxes that rants. He is not responsible for them, and year would be void.” In view of the evi is not presumed to know the amount. If he dence and the substance of the written point, makes demand, with an exhibition of his we think this answer was error, because it warrant to seize and sell, the tenant may did not clearly declare to the jury the law pay. If he do not, it is the duty of the colbearing on the evidence. As we read the lector to seize and sell. So far as the evievidence, it pretty plainly showed that there dence shows, there was here no demand nor was personal property on the premises in threat of seizure. If the tenant paid the first both of the years to answer the demand collector, who can say he would not have of either one of the collectors for that year. paid the others? The kind and value of ne

The act of 1844, § 41 (P. L. 501) provides personal property on the premises would, to that "all real estate within this common some extent, have been ascertained by the wealth, on which personal property cannot seizure and sale of it. If a sale did not satbe found sufficient to pay the taxes assessed isfy the taxes, then a return of the amount thereon, and where the owner or owners not reached would have fixed the liability of thereof neglect or refuse to pay the said the land for that amount, and that the owntaxes, the collectors of the township in er would have been bound to pay to the which the said lands lie, shall return the county treasurer. In substance, the return same to the commissioners of the several of each collector is that there was not sufficounties; and the said lands shall be sold cient personal property on the premises to as unseated lands are now sold, in satisfac pay all the taxes (that is, $66.48); but one tion of the taxes due by the said owner or (the collector of road tax) admits that he saw owners: provided, that no sale shall be made property there worth twice the amount of of such lands for the purpose aforesaid, un road tax ($7.20) he had against the land. til the owner or owners thereof shall have It was not his duty to know that two other refused or neglected to pay the taxes afore collectors had each certain taxes to collect. said, for the space of two years.” As the It was his duty to collect the $7.20 road tax learned judge of the court below rightly said, which was intrusted to him to collect. Not

one of these three collectors made a correct return when he averred “that, after a proper effort at the proper time, he could not find sufficient personal property, by a legal sale of which the taxes on the land, or any portion of said taxes, could have been collected.” They could not ascertain the facts without the exercise of due diligence. In this, from their admissions and the undisputed testimony, they wholly failed, and the court should have so instructed the jury.

These acts of assembly and the duties of tax collectors were fully considered by Justice Mitchell in Kean v. Kinnear, 171 Pa. 039; and, although that was an action of trespass by the owner against the collector for a false return, the same questions arose as those before us. After noticing the different acts of assembly, he says: "From these statutory provisions, it is clear that the law has established the order for liabil. ity for taxes to be, first, the personal property on the premises; second, demand on the owner individually; and, lastly, the land itself; and it is only on failure to collect by the first two methods that resort can be had to the third, and the land be legally sold or returned for sale. The collector, proceeding directly against the land, except under the prescribed conditions, is without warrant of law, and he is liable as a trespasser.” The return of the collector in that case was precisely the same as in this one. Appellants' third assignment of error is therefore sustained.

What we have said, in effect, sustains appellants' second assignment, which is based on the court's denial of their second written prayer for instruction. It should have been affirmed.

We do not find any error in the court's opinion on the reserved points. Lest we be misunderstood, however, we say that the deed to the commissioners, while admissible as a properly authenticated instrument in plaintiffs' chain of title, the recitals in the body of it do not prove the facts set forth in such recitals. Whether the tax sale is void because of noncompliance by the collectors with the provisions of the tax laws still remains as a question of fact to be determined by a jury under correct instructions by the court.

The judgment is reversed, and a v. f. d. n. is awarded.

where the list was seasonably furnished, and that it omitted to tell the place of abode of each was known to defendant's counsel when the drawing of the jury began.

2. On a prosecution for murder, counsel for the state, in opening the case, stated that he thought that accused, in order to, escape the conclusion that he committed the deed, must show what he did with a certain pair of overalls, how human blood became spattered over his clothing, and where he was on the afternoon of the crime. Held, that such language did not involve a declaration that accused was bound to become a witness, but merely meant that the facts, unless met by a defense, would constitute proof of guilt.

3. Where counsel for the state, in opening the case, uses language which might, unexplained, be understood to mean that accused must become a witness, and answer certain evidence, or stand convicted, but the court immediately instructs the jury that such is not the case, there is no error.

4. On a prosecution for murder, deceased having been struck on the head with a blunt instrument, the force of one blow on the side of the head in comparison with the other blows, and the number of blows necessary to cause the cuts on the top of the head, being only deterininable by the appearance of the wounds, viewed with a knowledge of the structure of the skull, it was proper to permit a physician, called as an expert, to testify that the blow on the side of the skull was light in comparison with the others, and that the appearance of the wounds in the tissues indicated that the fractures resulted from more than one blow.

5. It was a question whether fractures on the top of deceased's skull were caused by blows inflicted by accused or by contact with a stone while accidentally falling from her carriage. The state claimed that, if the impact had been the result of a fall, it would not have crushed the skull at the top, and that the fracture would have been at the base of the skull. Ileld, that it was competent for the state's medical expert to illustrate the relative thickness of the different parts, and to testify that from his experience and observation in many hospitals, when a body falls from a height, and strikes on the head, the fracture is generally at the base of the skull.

6. On a criminal prosecution, a remark of the solicitor for the state, after one of his ques. tions had been objected to and ruled out, that he thought the witness “had made that sufficiently clear,” if open to any objection, was an irregularity not warranting a new trial.

7. Gen. Laws, c. 282, § 7, provided that man. slaughter without a design to effect death, not being murder nor excusable or justifiable homicide, should be of the first degree when perpetrated by one engaged in the commission of any offense, or by persons bearing a deadly weapon, etc. Pub. St. c. 278, § 7, amended the former by removing the clause "without a design to effect death," and inserting "wheu perpetrated with a design to effect death." Before the amendment manslaughter "with design,” if provided for at all, was included in the classification of manslaughter in the second degree, and punished less severely than manslaughter without design. Held, that the amendment did not abolish the distinction between murder and manslaughter, inasmuch as homicide with design does not necessarily imply murder.

8. Pub. St. c, 278, § 1, enacts that murder in the first degree cousists of homicide by poison, starving, torture, or other deliberate and premeditated killing, or committed in perpetrating or attempting to perpetrate certain felonies, and that other murder is in the second degree. Held, that the distinction between the degrees does not consist in the presence or absence of malice, but depends on whether the killing is deliberate, or done in the perpetration of any of the felonies.

(71 N. H. 606)

STATE y. GREENLEAF. (Supreme Court of New Hampshire. Belknap.

Dec. 30, 1902.) CRIMINAL LAW-TRIAL-LIST OF WITNESSES -FURNISHING TO DEFENDANT-OBJECTION --MURDER-MANSLAUGHTER-ELEMENTS OF OFFENSES VALICE - PREMEDITATION EVIDENCE-EXPERT TESTIMONY - REMARKS OF COUNSEL.

1. A motion for a discharge on the ground that defendant had not been furnished with a • list of the state's witnesses and the abode of each 24 hours before the trial was untenable

20. Ou a prosecution for murder, counsel for the state, in closing, said, “This statement was taken right off the very next day after the affair happened,” referring to a portion of the testimony of a state's witness. There was no evidence that such witness had ever given a statement prior to his testimony. Held that, as the assertion was unsupported by evidence, and calculated to prejudice accused by securing for a vital statement a higher degree of credit than authorized, it was reversible error.

21. An objection that the exception taken to such remark was too general to warrant its review was untenable where the purpose and application of the exception were obvious from the conuection in which it was made.

9. In order to convict of murder in the first degree, the state must show not only malice. but a deliberate killing, unless the crime was committed in an attempt to perpetrate one of the felonies enumerated in the statute. 10. The malice requisite to the crime of murder is not an inference of law from the act of killing, but must be found by the jury on competent evidence. 11. Pub. St, c. 278, § 1, enacts that murder in the first degree consists of homicide by de. liberate and premeditated killing, or committed in perpetrating or attempting to perpetrate certa in felonies, and that other murder is in the second degree. Held that, in order to constitute murder in the first degree, the design to kill must precede the killing by some appreciable space of time, and, if it be not done with design, though the killing was done purposely, it is murder in the second degree.

12. Under Pub. St. c. 278, § 1, making murder committed in an attempt to commit rape murder in the first degree, that the attempt was Qot far advanced does not lessen the offense. 13. On a prosecution for murder in the first degree, the killing being alleged to have been done in an attempt to commit rape, such killing constituting murder in the first degree under Pub. St. c. 278, § 1, the state must establish the fact that accused attempted the felony, and that death occurred as a means or outcome of such attempt.

14. Under Pub. St. c. 278, § 1, making deliberate and premeditated killing murder in the first degree, on a prosecution for murder there can be no conviction in the first degree unless malice and deliberation be shown beyond a reasonable doubt.

13. Jalice and deliberation may be shown by circumstantial evidence, such as the character of the weapon employed, number of blows inflicted, place of the crime, previous conduct, ctc.

16. On a prosecution for murder, evidence held sufficient to warrant submission to the jury of the question whether accused killed deceased, whether it was done with malice and premeditation, and whether it was done in an attempt to commit rape.

17. On a prosecution for murder, the attorney zeneral. after a certain witness for defendant had testified, remarked that such testimony did not contradict the testimony of a certain witness for the state, but confirmed it, and in connection with the cross-examination of one of the defendant's witnesses he remarked: I don't know about this stump speech business. I object to his making a stump speech here to display his knowledge." Held, that such remarks, if objectionable, were irregularities, not warranting the granting of a new trial.

18. Where, on a criminal prosecution, medical experts had testified for the state and defense, respectively, and drawn opposite conclusions, it was competent for the state, on the crossexamination of the defendant's expert, to ask him if he had known the state's expert for some time, and if the latter was regarded as eminent authority, the questions being competent as cross-examination for the purpose of discrediting the defendant's expert on the points at issue between him and the other.

19. On a prosecution for murder, counsel for the state, in closing to the jury, said, “Why, it seems that for some reason or other, when this affair *

came out, everybody went down there to see about G.," naming defendant. The remark was not contradicted, nor did the court order it stricken out. Held, that. inasmuch as the remark was calculated to convey to the jury that defendant was such a character that all eres turned to him as the perpetrator of the crime, it was prejudicial er.

Exceptions from superior court; Wallace and Pike, Judges.

George H. Greenleaf was convicted of murder in the first degree, and excepts. Exceptions sustained.

Indictment charging the defendant with the murder of Nancy J. Folsom. The defendant was indicted in Merrimack county. On his motion the venue was changed to Belknap county, where the trial took place at the November term, 1901, of the superior court, Wallace, C. J., and Pike, J., presiding. The jury returned a verdict of guilty of murder in the first degree. Judgment was ordered on the verdict, and the defendant filed a bill of exceptions, which was allowed. After the jury were impa neled, and issue was joined, and as counsel was about to make an opening statement, the defendant moved for his discharge on the ground that he had not been furnished with a list of the state's witnesses, and the place of abode of each, 24 hours before the tria). A list of the witnesses had been seasonably furnished, but it omitted to state the place of abode of each, and this fact was known to the defendant's counsel when the drawing of the jury began. The motion was denied, and the defendant excepted. In opening, counsel detailed the facts wbich the state expected to prove, and said: “We think, if we show this array of facts, that Greenleaf, in order to escape the conclusion that he committed this deed, must show you what he did with that pair of overalls, how this human blood became spattered over his clothing, and where he was on the afternoon of the crime.” Exception, being taken to the language quoted, counsel expressed a willingness to withdraw any objectionable remark, and stated that he meant to say that, if the facts detailed were proved, there could be only one conclusion from them. The court thereupon stated to the jury that the defendant was not obliged to answer, nor to testify, nor to explain anything, and instructed them to disregard any remark of counsel conveying a contrary impression. Dr. Beaton, an expert witness called by the state, testified subject to exception that the blow which caused the fracture upon the side of the skull was light in comparison with the other blows inflicted, and that the appearance of the wounds in the soft and

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