Foley v. Equitable Investment Co. a defense to the note to the amount of the usury paid upon the whole debt. It will be observed that the defendant was one of the parties to the original transaction as accommodation endorser and continued liable by renewal of the notes, including the note in suit, which note was between the same parties with the exception that Moyer, the principal debtor, had been droppen account of his insolvency. It also appears in the case of Mitchell vs. Emery, 4 Weekly Notes of Cases, that Emery, the defendant, was one of the parties to the original contract and was allowed to deduct the usurious interest included in the payments made by himself and Boyer, although Boyer had paid his half of the debt and had been released by Mitchell, the creditor, it being held that this did not change the legal character of Mitchell's claim against Emery so as to legalize that which was before illegal. In the case of Roth vs. Weisberger, 1st Weekly Notes of Cases, Page 4, it appears that the defendant had signed the note as surety and was allowed credit for the usury in the note. In the case of Wurtz vs. Potts, Wise and Co., 1st Weekly Notes of Cases, Page 375, the defendants were surety for a debtor who agreed to pay usurious interest and were allowed to set up in defense of the suit against them on the contract the usurious interest charged against the principal debtor. (Wurtz vs. The Porous Waterproofing Co., 1st Weekly Notes of Cases, 375.) In the case of Mylott vs. Skinner, 12 Superior Court, 137, the entire transaction from beginning to end was between the same parties and was a scheme on the part of the lender to secure interest on a loan at the rate of ten per cent per month and in the opinion of the Court it is said on Page 142 "It is too well settled to require the citation of authorities that the transaction between the parties, though made to assume the guise of the payment of one loan and the creation of another, was in reality the renewal of the original loan, at a usurious rate of interest; and that all payments in excess of legal interest are to be applied on the principal. Hence, when the last note was given the loan had been overpaid." In every one of these cases it appears that the defendant was a party to the original transaction and was liable as principal or surety to pay the debt in suit and was for that reason allowed credit for the excessive interest. In the case at bar, the defendant had nothing to do with the loans made by the plaintiff to the partnership and in fact it had no legal existence until the debt of Twenty-six Thousand Dollars had been contracted by the partnership. Foley v. Equitable Investment Co. The assumption of the debt by the defendant corporation was not, in vur opinion, a renewal of the old, but the substitution of a new security between the same parties as was in the case of Campbell vs. Sloan, 62 Pa., 481, relied upon by the learned counsel for the defendant. There is no allegation in this case that the transfer of the assets of the partnership to the defendant corporation and the assumption of the payment of the Twenty-six Thousand Dollars by the corporation was a scheme to evade the laws against usury. ORDER And now, to-wit, January 12, 1920, after argument of counsel and due consideration thereof, the exceptions of the defendant to the findings of fact, conclusions of law and order of Court are overruled and it is now ordered that judgment be entered in favor of the plaintiff against the defendant for the sum of Twenty-six Thousand Eight Hundred Sixty-three Dollars and Forty-three Cents with interest from October 20th, 1919, and costs. COMMONWEALTH V. SANSONE. Murder-Definition-Indictment-Count Verdict. Murder is committed when any person of sound mind, memory and discretion unlawufully kills any reasonable creature in being and under the peace of the Commonwealth with malice aforethought either express or implied. Although the indictment contains only one count and that for murder in the first degree the jury may find one of five verdicts: Murder in the first degree, murder in the second degree, voluntary manslaughter, not guilty or not guilty by reason of insanity. Malice-Kinds. Express malice exists where a man with a sedate, deliberate mind and formed design unlawfully kills another. Implied malice is such, as reasonably arises from the circumstances surrounding the case. Crime of murder-Statutory-Jury's function-Murder in first degree-Murder in second degree-Voluntary manslaughterDifference. In Pennsylvania crime of murder is defined by Statute. When the jury finds that the crime of murder has been committed it shall specify whether it be of the first or second degree. Commonwealth v. Sansone. Malice and an intention to take life make the offence murder in the first degree. Where there is no intention to take life the offence is murder in the second degree. Voluntary manslaughter may be wilful taking of life, but it is never premeditated and is never deliberate. It is usually in hot blood during a quarrel. Unlawful homicide-Presumptions. Where an unlawful homicide is committed without justification or excuse it is presumed to be murder in the second degree. The burden is upon the Commonwealth to raise that degree to first degree and upon the defendant to lower it below the second degree. Deadly weapon-Use-Intent-Consequences-Time. When a man uses a deadly weapon upon a vital part of the body with manifest intent so to use it, he is presumed to know the consequences of his act and no time is fixed by law as being too short within which a wicke dman can form a design to kill. Sanity-Insanity-Presumptions-Murder-Preponderence of evi dence-Doubt. Sanity is always presumed but in a criminal case all the law regards is whether or not the accused knew right from wrong. In order to find a verdict of murder in the first degree it is necessary for the jury to find all the elements beyond a reasonable doubt, but in order to establish insanity it is only necessary that the weight of the evidence be found in favor of the fact. In a criminal case the defendant is entitled to the benefit of any reasonable doubt. A reasonable doubt is such a doubt as reasonably arises out of the evidence. It is such a doubt as would cause a man of ordinary prudence to pause and hesitate in a matter of importance to himself. Character-Witnesses-Previous record. A defendant is always entitled to show his previous good record and where a matter is equally or nearly equally balanced such evidence taken in connection with other evidence may lead the jury to a reasonable doubt. Charge of the Court, Oyer and Terminer, of Erie County. No. 37 May Term, 1919. Robert J. Firman, District Attorney, for Commonwealth. ROSSITER, P. J.-The defendant, Jennaro Sansone, stands charged before you in an indictment containing one count, and that count for murder in the first degree. However, notwithstanding the fact that the indictment contains but one count and that for murder in the first degree, you may find under this indictment any one of five verdicts that the evidence warrants. You may find the defendant guilty of murder in the first degree, if the evidence so warrants; you may find the defendant guilty of murder in the second degree, if the evidence so warrants; you may find him guilty of voluntary manslaughter, if the evidence so warrants; or you Commonwealth v. Sansone. may find him generally not guilty, if the evidence so warrants; or you may find the defendant not guilty by reason of insanity. And in order to assist you in assimilating the evidence in this case and apply it to the rules of law as they exist in the State of Pennsylvania, it now becomes my duty to state to you, so far as lies within my power, what those rules are, and how they ought to be applied in this case. Murder at the common law, gentlemen, was defined to be: where any person of sound mind, memory and understanding unlawfully killeth any reasonable creature in being and under the King's peace (which would be under the peace of the Commonwealth here) with malice aforethought, either expressed or implied. I will repeat the definition: Where any person of sound mind, memory and discretion unlawfully killeth any reasonable creature in being and under the peace of the Commonwealth, with malice aforethought, either expressed or implied. You will observe that the perpetrator must be of sound mind, memory and discretion; that he must unlawfully kill; and that he must kill with malice aforethought, either expressed or implied. Now malice is where a man with a sedate, deliberate mind and formed design unlawfully killeth another. That is express malice. And implied malice is such malice as reasonably arises from the circumstances surrounding the particular case, and comes from an implication. In our State, our law regarding that there were cases that did not fall within this definition that might be murder in the first degree, passed an Act of Assembly, which reads in part as follows: "All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, rape, robbery or burglary, shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder of the first or second degree." So that you will observe, gentlemen, that murder is not only of the first degree when it is perpetrated by means of poison, or by lying in wait, or when committed in the perpetration, or attempt to perpetrate, any arson, rape, robbery or burglary, but that it is also murder of the first degree when it is a wilful, deliberate and premeditated killing. All murder not of the first degree is, of necessity, murder of the second degree. Malice is required to Commonwealth v. Sansone. exist in both murder of the first degree and murder of the second degree. And the distinguishing criterion between murder of the first degree and murder of the second degree is the intention to take life. Where malice exists, and there is an intention to take life, then it is murder in the first degree. Where malice exists and there is an unlawful homicide with no intention to take life, it is then murder of the second degree. Voluntary manslaughter is a lower form of homicide, and arises usually upon a quarrel, or in hot blood where there is a quarrel; and it may be a wilful act, but it is never premeditated, and it is never deliberate. And in order to reduce murder in the second degree to manslaughter, there must be some cause or provocation that exists in fact, and is not fanciful, that would warrant the state of rage or the hot blood that appears in the case. Now all unlawful homicides perpetrated without justification or excuse are presumed to be murder. That is, the presumption of the law says that when there is an unlawful homicide committed, without justification or excuse, that that unlawful homicide is presumed to be murder. But while it is presumed to be murder, that presumption of the law does not rise higher than murder in the second degree. So where there is an unlawful homicide the presumption is that it is murder in the second degree; and the burden. is upon the Commonwealth to raise that degree to the first degree; and the burden is upon the defendant to lower it below the second dcgree. So you start out, gentlemen of the jury, with the proposition of the Commonwealth-and there does not seem to be any dispute here--that there has been an unlawful homicide committed here, without justification or excuse. However, all this is for you and for you alone. These facts are for you to determine, and not for the Court, but there is no evidence here that we recall that would point to the fact that it was a justifiable homicide, or that there was any excuse for it. However, I am speaking wholly and confining my thought wholly to the testimony of the Commonwealth, that there was no justification for this homicide, or excuse for it. You start out with the proposition that there has been, if you so find from all the circumstances in the case, an unlawful homicide committed, and that therefore the presumption is that that unlawful homicide is murder in the second degree. And you then examine into the evidence to ascertain whether the burden placed upon the Commonwealth has been met and the degree of that homicide has been raised from the second to the first degree; or whether the burden placed upon the defendant has been met and the homicide reduced to manslaughter or not guilty by reason of |