Pa. 137, 34 Atl. 305; Brinton v. Walker, 15 | "We are all clearly of the opinion that the Pa. Super. Ct. 449. ingredients of murder in the first degree exist in this case. The fatal shot was fired from a deadly weapon and was directed against a mortal part. There was sufficient evidence, if believed by the jury, of deliberation and premeditation. The first shot did not kill but only disabled the officer. Between it and the time of firing the second and fatal shot ample time elapsed to enable the prisoner to form a conscious design to kill and to carry it into effect. As said by Judge Rush in Commonwealth v. Smith, 'No time is too short for a wicked man to form in his mind his scheme of murder and to contrive the means of accomplishing it.'" [2] The objection to the portions of the charge quoted is without merit as they merely placed the burden of proof on the defendant to reduce the grade of the murder with which he was charged from second degree to manslaughter. This was in accord with the rule recognized in the recent cases of Commonwealth v. Greene, 227 Pa. 86, 75 Atl. 1024, and Commonwealth v. Chapler, 228 Pa. 630, 77 Atl. 1013, that where the evidence has established a felonious homicide, committed by the use of a deadly weapon upon a vital part of the body of the deceased, there is a presumption of murder of the second degree, and the burden is on the defendant to reduce the grade of the crime. In Commonwealth v. Gibson, 211 Pa. 546, 60 Atl. 1086, it was said per curiam: "Legal malice as an ingredient of murder is presumed from the use of a deadly weapon against a vital part of the body." In Commonwealth v. Eckerd, 174 Pa. 137, 149, 34 Atl. 305, 306, Mr. Justice Mitchell said: "The intent to take life, fully form- In the fifth, sixth, seventh, eighth, and ed, is presumed from the use of the weap-ninth assignments of error complaint is on, and certainly where as in this case it made of portions of the charge as tending was fired three times." The third and fourth assignments allege error in portions of the charge containing instructions as to the deductions to be drawn from the evidence as to the use of a deadly weapon and as to the rules governing the proof of intent to kill. There was no error in these instructions, as they are justified under the authorities already cited. "to unduly affect and prejudice the jury against the defendant." These parts of the charge, however, are fair statements of the evidence and accurate presentations of the law. We do not find any basis for the tenth assignment of error which complains that the trial judge misstated to the jury the testimony of the defendant as to his recollection of the number of shots he fired. The language quoted seems to state correctly the testimony of the defendant in this respect. [3] The second assignment of error is to the following extract from the charge: "It is not necessary that you find that he went to the house with the intent to kill; if he formed the intent to kill with a mind capable of forming that intent an instant before he pulled that trigger, he is guilty of murder of the first degree." This instruction was proper under the authorities. In Keenan v. Commonwealth, 44 Pa. 55, 56 (84 Am. Dec. 414), Chief Justice Lowrie said: "Our reported jurisprudence is very uniform [4] In the eleventh and twelfth assignin holding that the true criterion of the first ments of error it is alleged that the trial degree is the intent to take life. The delib- judge quoted to the jury testimony as to eration and premeditation required by the threats made by the defendant prior to the statute are not upon the intent, but upon killing without telling them that the testithe killing. It is deliberation and premedita- mony was specifically denied by the defendtion enough to form the intent to kill, and ant. But an inspection of the charge shows not upon the intent after it has been form- that, immediately after repeating this tesed. An intent distinctly formed, even for a timony, the trial judge said: "I am not moment before it is carried into act, is saying that these things are so; what I am enough." In Green v. Commonwealth, 83 saying to you is that that is the testimony Pa. 75, Chief Justice Agnew referring to the of the commonwealth; consider if this tescase of Commonwealth v. Drum, 58 Pa. 9, timony is true, and, if it is true, does it repeated the language used by him in that show that he had a specific intent to take case as follows (83 Pa. 80): "If there be life? You will consider all of this evidence time to frame in the mind fully and con- and determine whether or not the testimony sciously the intention to kill, and to select of these witnesses is the truth." And after the weapon or means of death, and to think a few sentences he says further: "Rememand know beforehand (though the time be ber not only the testimony of the commonshort) the use to be made of it, there is time wealth, but remember especially the testito deliberate and premeditate." In Common- mony of the defendant himself, notwithwealth v. Krause, 193 Pa. 306, 308, 44 Atl.standing the circumstances under which he 454, 455, Mr. Justice Fell said: "The nature of the weapon (a revolver) and the manner of its use (firing five shots, two of which were fatal) indicated an intention to kill." In Commonwealth v. West, 204 Pa. 68, 70, 53 Atl. 542, 543, it was said per curiam: testifies. Weigh all the evidence on both sides. Give each its due weight." [5] In the thirteenth, fourteenth, fifteenth, and sixteenth assignments of error the charge is criticised in general terms, but no part of it is quoted ipsissimis verbis in the specifications as required by rule 27. These assignments will therefore be disregarded. In the seventeenth assignment it is averred that the court erred in not instructing the jury that they must be convinced of the defendant's guilt beyond a reasonable doubt. It appears, however, that in the sixth and seventh points submitted by defendant for charge the court was asked to give the jury instructions on the subject of reasonable doubt. These requests were both affirmed without qualification. In the seventh point the jury were told that the mind of each juror "must be convinced beyond a reasonable doubt of the defendant's guilt before he can consent to a verdict of guilty." On the motion and rule the following opinions were filed: "Sulzberger, P. J. Judgment for defendant n. o. v., entered by this court, was 1 versed by the Supreme Court, with direc tion that judgment be entered for the plaintiff. The defendant thereupon prayed the Supreme Court to modify its judgment, and the following order was made: 'And now, June 13, 1911, so much of the judgment heretofore entered as renders judgment on the verdict for plaintiff is now reconsidered and rescinded, and the record is remitted, with directions to the court below to enter such judgment as law and right require.' "On the interpretation of this order a conflict arises. The plaintiff moves for judg ment on the verdict; the defendant moves for a new trial. The dispute hinges on the construction of the direction 'to enter such judgment as law and right require.' If the word 'judgment' is to be understood in its proper legal sense, it means here a judgment on the verdict. The entry of such a judg ment would comply with the direction of the Supreme Court, in so far as it would be In the eighteenth assignment it is alleged that the court erred in failing to call the attention of the jury to the defendant's specific denial of any intent to kill. There was no specific request for such an instruction, but it does appear that the trial judge twice said to the jury in charging on the subject of intent that "the prisoner says that he shot to scare her." And that as noted above he charged the jury to "remember especially the testimony of the defend- in accordance with 'law.' The order, howant himself." ever, is 'to enter such judgment as law and The judgment is affirmed, and it is order-right require.' We are all of opinion that ed that the record be remitted to the court of oyer and terminer of Franklin county, that the judgment may be executed according to law. (235 Pa. 155) SLOAN v. PHILADELPHIA & R. RY. CO. (Supreme Court of Pennsylvania. Feb. 19, 1912.) 1. APPEAL AND ERROR (8 1197*)-DISPOSITION OF CAUSE-REMAND TO TRIAL COURT. Where a judgment non obstante veredicto is reversed on appeal and the record remitted with directions to enter such judgment as law and right may require, the case stands as though no proceedings had been taken in the trial court after the rendition of verdict, and the trial court may take such action as in its judgment law and right require. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4666, 4667, 4669-4671; Dec. Dig. 1197.*] 2. APPEAL AND ERROR (8 1099*)-REVIEWSUBSEQUENT APPEAL-PRESUMPTIONS. Where the trial court ordered a new trial unconditionally after reversal of a judgment non obstante veredicto, the Supreme Court on another appeal will assume that this was done in the exercise of a sound discretion with a view to accomplish the ends of justice, and I will not review such action. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. 8 1099.*] the verdict is unjust, and 'right' would require us to set it aside. Where law and right (equity) are thus in conflict, a judgment in accordance with both is impossible, and it is therefore reasonable to assume that the word 'right' is used here as a mere synonym for 'law,' and that judgment should be entered on the verdict for the plaintiff. "This I take to be the meaning of Hughes v. Miller, 192 Pa. 365, 43 Atl. 976. The worst that can be said against this construction is that the system of trial by jury, like all other human institutions, is imperfect. There have been three trials of this case. Presumably, at the last trial, the defendant presented all the evidence at command, and a new trial would not add to it. If we now enter judgment on the verdict, the defendant has his appeal, wherein he may take advantage of any reversible error committed. The disadvantage suffered by him in consequence of our erroneous judgment n. o. v. is entirely eliminated, and he stands just where he stood. His present position is, therefore, in effect, that we fell into error in discharging the rule for new trial, and that we should now cure it by rescinding that order, reinstating the rule, and making it absolute. "There are, it is true, dicta which says that, when the court is dissatisfied with the Appeal from Court of Common Pleas, verdict, it shall set it aside over and over Philadelphia County. Action by John J. Sloan against the Philadelphia & Reading Railway Company. From an order making absolute rule for new trial, plaintiff appeals. Affirmed. See, also, 80 Atl. 366. again, until a jury can be found which shall adopt the court's standard for judging facts. This, however, cannot be considered a principle of law. The jury is the constitutional tribunal for finding facts, and, though the court's supervision of it goes far, it can scarcely be held to override it completely. [ its substance and effect, and also with regard When therefore a reasonable number of trials has been held, regard must be paid to the propriety and necessity of ending litigation, in justice as well to the parties in the cause as to other parties who, having an equal right to have their cases tried, are not to be barred by the perpetual intrusion of one case as an obstacle. "The entry of judgment for the plaintiff would not hurt the defendant.. It has had its fair opportunity here, and would have another chance on appeal, and, though none of us is satisfied with the verdict, I think that there ought not to be a right to an unlimited number of new trials. to the credibility of the witnesses. This is declared to be still the unanimous opinion of the court. I submit that it would not be according to law and right that we should violate precedent and now sustain the claim of the plaintiff, to subject the defendant to a pecuniary charge which the proofs did not warrant. "As I understand the contention of the plaintiff, this view is not arguable, because we are under the peremptory mandate of the Supreme Court to enter judgment for the plaintiff pursuant to the discharge of the rule for a new trial. It is contended that we have no discretion, but that it is our "I would therefore enter judgment for duty to affirm, without modification, our preplaintiff on the verdict. My Brethren, how-vious order, and to enter judgment accordever, in an opinion filed this day, have re-ingly. solved that the order of the Supreme Court "But the order relied upon embodies no leaves us free to grant a new trial. In ac- prohibition of other action should we deem cordance with the majority opinion, it is now directed that the order discharging the rule for new trial is vacated, and the rule for new trial is made absolute." such to be according to law and right. In "This view does not bear unduly upon the plaintiff. It does not determine the merit of his case, nor deprive him of a remedy. He may still go to the country on the issue raised by the pleadings. The proceeding will not be affected one way or the other by what has heretofore passed in the cause; and it is of essential right that the defendant should have an appeal to another jury. The cases cited are to this effect. Hughes v. Miller, 192 Pa. 365, 43 Atl. 976; Hardoncourt v. Iron Co., 225 Pa. 379, 74 Atl. 243. In "The rule for a new trial is reinstated, and the same is hereby made absolute. this our Brother Barratt concurs." "Wiltbank, J. I am of the opinion that the order heretofore made discharging the rule for a new trial should be vacated, the rule reinstated, and thereupon made absolute. It is my conclusion that the record of the Supreme Court, and of this court, discloses our duty thus to act. The judgment entered by us for the defendant non obstante veredicto was erroneous, and we are directed to review the proceedings upon the last trial, and thereupon to enter such judgment as law and right require. Our refusal of a new trial to the defendant was not because the plaintiff was entitled to recover, but it was because we deemed it according to law to afford the defendant the readier and more complete relief of a final judgment in his favor. In this we exceeded our power; but, had we not gone so far, it cannot be disputed that we should and would have granted a new trial. Such, obviously, would have been imperatively our duty. The discharge of the rule was therefore matter of form. Our adhering to that action at this stage would not eliminate the disadvantage suffered by the defendant under our error, nor would he stand just where he stood when we condemned the verdict against him. His prospect of the new trial is greater here than it would be PER CURIAM. [1] Where on an appeal were we to send him to the Supreme Court, from a judgment non obstante veredicto, the which tribunal, as I understand the authori-judgment is reversed, and the record remitties, exercises its power only in cases of the ted with directions to the court below to enclearest error on the trial. Our entry, being ter such judgment as law and right require, merely formal, concluded nothing as matter of substance. It was a step necessary to the orderly framing of the record for the proper dismissal of the action in this court, or for the due presentation of the record to the appellate tribunal. This view of the case is, I think, beyond dispute. We had unanimously determined that two verdicts had been contrary to the evidence, viewed with regard to Argued before BROWN, MESTREZAT, Wm. the case then stands as though no proceedings in the court below had been taken after the rendering of the verdict; and it is for the court below to take such action with respect to the verdict as in its judgment law and right require. It follows that it may either direct judgment on the verdict, order a new trial on refusal of plaintiff to accede to a reduction in amount of the verdict, or order a new trial irrespective of any such north side and the southern or east-bound condition. Within these limits the verdict is in the power of the court. [2] In this case a new trial was ordered unconditionally. We must assume that this was done in the exercise of a sound discretion by the court, with a view to accomplish the ends of justice, and the action is therefore not reviewable. railway track between Thirty-First and Thirty-Second streets, which resulted in the closing of that portion of the street to all traffic. Among the material thus deposited was a large quantity of grout or small stones used in concrete work, in piles 22 or 3 feet high along the north side of the east-bound track. On July 18, 1908, at about 5 o'clock in the The appeal is dismissed at the cost of ap-afternoon, the plaintiff, Frank N. MacDerpellant. (235 Pa. 62) MacDERMOTT et al. v. CITY OF PHILA- (Supreme Court of Pennsylvania. Feb. 19, 1912.) MUNICIPAL CORPORATIONS (§ 819*)-OBSTRUCTION OF STREETS. In an action for injuries to a boy by alleged defects in a street crossing, evidence that the city had provided a safe crossing a short distance away, and that a new crossing in process of building was obstructed, held insufficient to sustain a finding that a defined path had existed at the point in question for such length of time that the city should have guarded against the dangers thereof. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1739-1743; Dec. Dig. 819.*] mott, a boy about 13 years of age, attempted to cross Columbia avenue diagonally from Thirty-First street on the north to Patten street on the south (the latter being a small street between Thirty-First and Thirty-Second streets running south from and at right angles with Columbia avenue). After leaving the sidewalk on the north side of the street, he climbed up on one of the piles of stone, and, seeing a car approaching eastward, he stood there to allow it to pass. Immediately after the front part of the car had passed him, the stones gave way beneath his feet, he slid under the car, and the wheels passed over his legs, causing the injuries complained of. It was testified that both sidewalks on Columbia avenue were kept open for the use of pedestrians, and that persons desiring to cross that street at this Appeal from Court of Common Pleas, point had walked over these stones, their Philadelphia County. travel making a sort of path or footway across the same. Action by Frank N. MacDermott, by his father and next friend, and another, against the City of Philadelphia. From an order refusing to take off a nonsuit, plaintiffs appeal. Affirmed. Argued before FELL, C. J., and BROWN, MOSCHZISKER, J. This was an action of trespass brought by William J. MacDermott, as the father and next friend of Frank N. MacDermott and in his own behalf, against the city of Philadelphia, to recover damages for the injuries to the son alleged to have been due to the negligence of the defendant. The trial judge entered a nonsuit, which the court in banc refused to take off, and the plaintiff has appealed, assigning, first, that the court below erred in refusing to take off the judgment of nonsuit, and, next, that error was committed in refusing evidence offered to prove that certain changes had been made in the street after the ac cident. In entering the nonsuit the trial judge, inter alia, said: "The entire street on Columbia avenue from Thirty-First to ThirtySecond was shut off to traffic. Cars on one track, the east-bound track, were permitted to go through, but nothing else was permitted to pass there. No vehicles of any kind The north were permitted on the street. side of the street was blocked, probably from Thirty-First street to nearly Thirty-Second In the spring of 1908 the city of Phila- with piles of crushed stones extending from delphia entered upon the construction of a very near the curb all the way over the * ** So far as appears, new concrete bridge to replace an old one on first car rails, Columbia avenue between Thirtieth and the crossing at Patten street was obstructed Thirty-First streets. At this point Columbia-that is, the crossing at the end of Patten avenue runs east and west at right angles street for that street does not cross Columbia with Thirty-First and Thirty-Second streets, avenue if there was a crossing there, and and there is a double-track railway operated upon it; the east-bound track being upon the south side of the roadbed. In the course of the work it became necessary to place machinery, tools, and building materials for use in and about the construction of the bridge on the cartway or roadbed of Columbia avenue between the curb on the there is no testimony to show that there was, but the crossing at Thirty-Second street appears to have been open and perfectly safe. * The city is, of course, bound to keep its streets and sidewalks in a reasonably safe condition. The sidewalks of the street were apparently perfectly safe. The city has the right to shut off the street when In such necessary to make repairs. not see. (235 Pa. 99) MALONE v. STEWART et al. (Supreme Court of Pennsylvania. Feb. 19, 1912.) PRINCIPAL AND SURETY (§ 194*)-CONTRIBU TION. varying amounts, for completion of a building, Where sureties on separate bonds and for are compelled to complete it, if one has paid more than his share, he may compel contribution from the others, though there are at the time pending certain contested claims out of the construction of the building. A reading of the testimony satisfies us that the position taken by the trial judge was justified, and that the court below committed no error in refusing to take off the nonsuit. The testimony was too vague and indefinite to sustain a finding that a defined path or way over the pile of stones had been created or existed for such a length of time that the city was bound to have taken no-defendants appeal. Affirmed. tice and guarded against its dangers. The breach averred and complained of in the statement of claim was that the city had failed in its duty to keep the street in proper and safe condition, and had permitted a continuous pile of "small stones, dirt, sand and other materials to be placed on and over the roadbed without any prohibition or warning, necessitating a crossing or passage of said material by persons crossing said Columbia avenue, and inviting its use and crossing over the same to children and persons of immature mind and judgment. [Ed. Note. For other cases, see Principal and Surety, Cent. Dig. §§ 605-623; Dec. Dig. § 194.*] Appeal from Court of Common Pleas, Philadelphia County. Action by Edwin B. Malone against Amelia Stewart and Patrick S. Smith. From a decree overruling demurrer to bill, ley car. when said plaintiff So that at by Sulzberger, P. J., filed the following opinion in overruling a demurrer to the bill upon favor of the plaintiff: which, after hearing, there was a decree in "The Stewart Contracting Company contracted with the city of Philadelphia to build a schoolhouse, and gave bonds for faithful performance with the Title Guaranty & Surety Company as surety. Before assuming the suretyship, the latter demanded counterbonds in the sum of $70,000. Ed win B. Malone, the plaintiff, executed one of these for $10,000, and the defendants, Amelia Stewart and Patrick S. Smith, each executed one of the said bonds for $30,000. The Stewart Contracting Company abandoned the work before completion, and the three countersureties, to save themselves from loss, jointly agreed to finish the work. At this point the controversy arises. "The plaintiff contends that the loss by the contractor's default should be finally adjusted by charging each of the countersureties his proportion thereof, as fixed by their bonds to the surety. The defendants, on the other hand, maintain, in support of their demurrer to the bill, that on the face of the bill itself it appears that no contract relation existed between the plaintiff and defendants establishing as between themselves any proportionate liability, that the averments of the bill show that the plaintiff and defendants jointly agreed to complete the work, and that the legal inference from this state of facts is that their interests were equal. They further contend that, as the plaintiff paid one-third of the tempted to pass over the same, reason of the negligent and improper manner in which said material was placed and piled, it suddenly gave way beneath him, precipitating him under a passing trolThe theory of the defined pathway seems to have been an afterthought, and, as we have already said, the evidence was not sufficient to sustain it. The city was not bound to anticipate the possibility that some one might leave the open sidewalk which it was maintaining and make a diagonal crossing of the street over the pile of stones, when it had left at least one safe crossing a short distance away at Thirty-Second street. The municipality was engaged in a public undertaking and the street, except the sidewalk, was closed to traffic. It provided a safe way to cross, with but little or no inconvenience to pedestrians, and its duty to the plaintiff was no higher in this respect than to others. The circumstances do not bring the present case within the line of authorities dealing with the responsibil-outlay hitherto made and each of the deity of defendants guilty of exposing an invitation to danger to the playful fancy of children. The first specification of error is overruled. It only remains to say that we see no error in the ruling complained of in the second specification, and that is likewise overruled. The judgment is affirmed. fendants also paid one-third thereof, such payment is in law a mutual ascertainment of their true relations at the time, and a waiver of any contract theretofore made or of any other relation subsisting between them. As additional grounds of demurrer it was urged that there are pending and undetermined certain contested claims arising For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |