alleged whether Mrs. Wiley survived or pre- to the orphans' courts to supervise and pass deceased her husband, or whether she died administration accounts presented by execubefore or after her daughter. A reading of tors and administrators, that power has been the petition by one not acquainted with the held to include in it the power of determin. facts would produce an entirely different im- ing who are the next of kin (Blackburn v. pression from the events as admitted by Craufurd, 22 Md. 447; Redwood v. Howison, counsel to have taken place. Although for- 129 Md. 592, 99 Atl. 863); and if the ultimal pleadings are not required in proceed-mate distribution of this property is also ings in the orphans' court, the practice in controlled by section 326 of article 93, it is them bears a close analogy to that in courts clear that the disposition of it was within of equity. No principle is more firmly estab- the jurisdiction of the orphans' court. lished there than that if a matter is set out in vague, indefinite, and ambiguous terms, the bill or petition is subject to demurrer. Miller's Equity, § 92, and cases there cited. The petition makes reference to real estate, chattels, and proceeds of insurance, and different rules may obtain with regard to the final disposition of each of these three species of property.

[2] It is not stated with regard to the insurance whether the assured was Mr. Wiley himself, or his wife. In the one case he would have the power of disposition of it by will, or it would have passed to the distributees of his estate; in the other, if it was a regular policy, there would have been a vested interest in the assured which could not be divested, so that it formed no part of his estate, and which would pass, in the event that the assured was not living, to the next of kin of such assured; or, in case the insurance was of the character known as membership in a beneficial organization, which provided for a change of beneficiary, there was no vested interest until such time as the life of the insured was terminated, when the right would become vested. The petition was therefore vague and defective in this allegation also.

It is an interesting fact that there have been but few cases in this state arising out of conditions similar to those which obtain in the present appeal. The case most nearly approaching it is the case of Cowman v. Rogers, 73 Md. 403, 21 Atl. 64, 10 L. R. A. 550. There have been many cases in the English and American courts of a similar nature, and a full collection of them will be found in the note to In re Maria H. Willbor, 51 L. R. A. 863. Courts have been most frequently called upon in such cases to deal with a question of survivorship upon a claim presented by representatives of one or another of the members of the family which had so perished. The cases have then turned largely upon the question of the burden of proof.

The prayer of the petition, in the present case, is that the orphans' court shall fix a day certain when possession of the farm shall be delivered to the petitioners. It thus sets up, inferentially at least, the question of title, and there is nothing now presented by the record in such definite form as to justify this court in making any positive ruling, either with regard to the title or possession of the premises.

(260 Pa. 587)

March 18,

COMMONWEALTH v. PRINCIPATTI. (Supreme Court of Pennsylvania. 1918.)

It follows that the order appealed from [3] As regards the real estate, the situa- will therefore be affirmed, but without prejtion is briefly this: The demurrer, which udice to the parties, or any of them, to eswas sworn to, sets out specifically a lack of tablish a valid claim to the whole or any necessary parties, and who the additional part of the estate of Mr. Wiley in an approparties needed are. If Mr. Wiley had exe-priate proceeding; the costs to be paid out cuted a will prior to his death, in the terms of the estate. alleged in the petition, to which the provisions contained in section 326 of article 93 were applicable; then under the allegations of the petition the real estate would have passed to his devisee and her heirs at law; on the other hand, if the will could not so operate, then the real estate upon his death would pass to and vest directly in his heirs at law. Under these circumstances it is plain that all parties who could be entitled to the property, in either event, were necessary and proper parties to the proceedings. In this condition, so far at least as the real estate is concerned, a question of title was involved in the proceeding, and was beyond the jurisdiction of the orphans' court to hear and determine.

1. HOMICIDE

BY DECEASED.

190(1)-EVIDENCE-THREATS

In a trial for murder, where defendant pleads self-defense, he has a right to present evidence of alleged threats made by deceased and as to their effect upon defendant's state of mind. 2. HOMICIDE 190(1)-EVIDENCE-THREATS DEFENDANT'S STATE OF

BY DECEASED
MIND.

In a trial for murder, defended on the ground of self-defense, the exclusion of defendant's evidence that deceased had conversed with him about nine days before the killing and had told defendant that he was a member of the

[4] As to the personal property, while in "Black Hand gang," and had been sent to murder defendant because defendant had preone sense a question of title might be involv-viously killed a member of the gang, and that, ed, nevertheless, under the authority given if defendant did not pay over $200, deceased

It is not necessary that witnesses should know one personally in order to have sufficient acquaintance with his reputation to testify that 3. HOMICIDE 187-EVIDENCE-THREATS BY his reputation was that of a dangerous man. DECEASED-OPPORTUNITY TO DO HARM. 9. HOMICIDE

The fact that defendant when he came out of the kitchen of the house where they both lived saw deceased draw a revolver from his overcoat pocket would not be sufficient to show a "provocation" justifying the killing in self-defense, or even such a passion of fear as to reduce the alleged crime to manslaughter; yet in view of prior threats by deceased to kill defendant and the decedent's bad character and his connection with the "Black Hand gang," it might justify | In a trial for murder, the trial court should defendant in acting on a hostile demonstration not overlook the relevant rules of law and dis

tinctions to be kept in mind when considering the case from the aspects of self-defense and manslaughter.

16. CRIMINAL LAW 673(5)—INSTRUCTIONS

-RELEVANCY OF EVIDENCE.

In a trial for murder, if the fact that defendant had been accused of killing another man is brought out by the district attorney, the jury should be instructed as to the relevancy of the testimony thereon, and that the inquiry is limited to ascertaining the opportunities and extent of the knowledge of the respective witnesses as to the defendant's general reputation, and not to show that he was probably guilty of that of

fense.

17. HOMICIDE 164 EVIDENCE RELE

VANCY.

In a trial for murder, where it appeared that defendant's face was bady scarred on both sides, and that such blemishes were plainly visible, the refusal of the offer of his counsel to show that the blemishes came about through no fault of defendant was not error.

18. HOMICIDE 190(5) — EVIDENCE-BLACK

HAND LETTER.

In trial for murder wherein defendant claimed that deceased was a member of a "Black Hand gang," and had threatened to kill him unless he paid over a certain amount, the exclusion of an anonymous letter received by defendant about a year before the killing which he claimed was a "Black Hand" communication, considering its remoteness and the lack of any evidence to connect deceased therewith, was not

error.

EVIDENCE

19. CRIMINAL LAW ~413(1) -
SELF-SERVING DECLARATIONS.
Where the fact that defendant had surren-
dered himself and given up his pistol to an officer
of the law within an hour after the shooting was
in evidence, the trial court did not err in refus-
ing to allow defendant to be interrogated or in
declining to admit other evidence as to his self-
serving declarations at that time.
20. HOMICIDE 334-HARMLESS ERROR-RE-

VERSAL.

In a trial for murder, where certain matters, standing alone, do not show reversible error, but several matters do and together present a clear case of mistrial, the court will reverse. 21. CRIMINAL LAW 1144(13)-DEMONSTRATIVE EVIDENCE-REVIEW.

Where witnesses by the action of their hands or otherwise undertook to indicate time, space, distance, etc., counsel eliciting such evidence should have an intelligible explanation placed on the record so that such testimony may be understood on review; otherwise the court must give them the interpretation supporting the verdict.

sentencing him to be electrocuted for committing murder of the first degree. The eviPrincipatti and the deceased, one Tony Amodence presents, inter alia, the following facts: deo had for about eight months lived in the same boarding house. On Sunday evening, February 18, 1917, the defendant and several others were assembled in the dining room of this abode, when, a little after 7 o'clock, Amodeo walked in and remarked to one Joe Spitaro, "I want to say something to you," at the same time beckoning him to follow. The two walked out into the yard and stopped eight feet from the kitchen door. They had been standing thus about two minutes, the noise from a passing train rendering conversation impossible, when Principatti appeared, and, without uttering a word, shot Amodeo. Then, bullets entering the head of the victim, who in quick order, a second shot was fired, both died at once. Shortly after this, when the body of the deceased was examined, a stiletto was found fastened to a belt hook under his

clothes, three loaded cartridges were discovered in his trouser pockets, a razor in an inside coat pocket, and a pistol was handed to the man who was engaged in making the examination by an unknown onlooker who apparently picked it up near the spot where the dead body lay. Immediately following the shooting, Principatti returned to the house and said to his sister, who was the landlady, "I killed him, I am going to surrender to the officers and the court, because he wanted to kill me;" and on the same evening defendant gave himself up to a constable, to whom he handed over his gun. There is no conflict of testimony on the above facts.

crime, said that before the shooting took Spitaro, the only eyewitness to the alleged place Amodeo had his hands in his overcoat pockets; but, when asked the question, "Did you see anything in his hands?" he replied, "No, sir; it was too dark." When Principatti took the stand in his own defense, he stated that, four or five minutes after Amodeo had departed with Spitaro he, the defendant, left the room for the purpose of going to the toilet in the back yard; that as soon as the kitchen

Appeal from Court of Oyer and Terminer, door closed behind him he saw Spitaro and Beaver County.

Dominic Principatti was convicted of murder in the first degree, and sentenced to be electrocuted, and he appeals. Reversed, with a venire facias de novo.

Argued before BROWN, C. J., and POTTER, MOSCHZISKER, FRAZER, and WALLING, JJ.

John B. McClure, Charles R. May, and Harold F. Reed, all of Beaver, for appellant. Louis E. Graham, Dist. Atty., and Frank H. Laird, both of Beaver, for the Commonwealth.

Amodeo standing together, the latter with both hands in his overcoat pockets; that, "when he [Amodeo] seen me, he pulled his hand up this way [indicating], and I seen his revolver." Then the witness immediately added, “When I seen that [Amodeo's revolver], I pulled my revolver out and shot." In answer to the next question accused said he was "so scared" when he fired the first shot that "a minute or two minutes afterwards" he fired a second.

The foregoing references to the testimony and brief review of the material facts are sufficient to enable one to understand clearly the several matters before us for determina

MOSCHZISKER, J. The defendant, Domiale Principatti, appeals from a judgment tion,

[1] As to the right to present evidence concerning the alleged threats by the deceased and their effect upon defendant, see Wharton on Homicide (2d Ed.) §§ 610-611; Henry on Pennsylvania Trial Evidence, p. 33; 21 Cyc. 893, par. "e"; Underhill on Criminal Evidence, § 326; Com. v. Garanchoskie, 251 Pa. 247, 253, 96 Atl. 513; Com. v. Curcio, 216 Pa. 380, 65 Atl. 792; and Com. v. Keller, 191 Pa. 122, 132, 43 Atl. 198. On the defendant's right to prove his state of mind, either by his own or other competent testimony, see Com. v. Wooley, 259 Pa. 249, 251, 102 Atl. 947; 21 Cyc. 889, par. "b"; and opinion by Rice, P. J., in Com. v. Hazlett, 14 Pa. Super. Ct. 352, 369.

We gather from offers of proof, requests | being made “for the purpose of showing that for charge, and other such matter upon the defendant attempted to pursue his legal remrecord that the defense the accused endeavor-edy in reference to the threats, likewise for ed to stand upon, but which, owing to a series the further purpose of showing that he fearof adverse rulings, was not fully developed, ed the deceased and was afraid he would is as follows: That Amodeo had conversed carry out his threat to kill him." The acwith defendant on Friday, February 9, 1917, cused should have been given a fair oppornine days prior to the killing, and on that tunity to substantiate all of these offers by occasion the deceased said "he was a member evidence. of the 'Black Hand gang' sent over to New Galilee to murder the defendant," for the reason that the latter previously had killed a member of that organization; that he (Amodeo), however, "could fix the matter up, and prevent the defendant from being killed, if he would pay him the sum of $200, and that if he did not pay the deceased the sum of $200, he would kill the defendant"; that, thereupon defendant became frightened, and promised to give Amodeo the $200 on the next pay day, which occurred six days before the date of the killing; that defendant "had knowledge, at the time of the shooting and prior thereto, deceased was a member of the 'Black Hand gang,' and that defendant knew and believed the 'Black Hand gang' was a society of men who extort money from people under threat of killing"; further, that defendant believed if he did not give Amodeo the $200 which he demanded the latter would kill him; that four days prior to the shooting defendant, being in fear, went to see a constable in the neighborhood, and told the latter of the threat to kill, for the purpose of obtaining lawful protection. In short, the defense was that, while at the moment of the shooting Principatti intended to kill Amodeo, yet such intention was instantaneously impelled by the former's belief that he was in imminent danger of death, or it was the result of a passion of fear, influenced by Amodeo's previous threats, but immediately caused by the sight of the pistol in the hands of the deceased.

[2-5] So far as defendant's offers relating to the "Black Hand society" and Amodeo's connection therewith are concerned, in Com. v. Varano, 258 Pa. 442, 446, 102 Atl. 131, we recently said that, when sufficient reason exists therefor, an inquiry such as here attempted is permissible; and in Commonwealth v. Curcio, 216 Pa. 380, 65 Atl. 792, a case somewhat like the one at bar, we granted a new trial because a defense of the same general character as the one now before us was not given due or proper judicial contideration at the trial there under review.

Since the district attorney, apparently in the hearing of the jury, repeatedly objected to defendant's offers to prove that he was afraid of the deceased, placing his objections upon the express ground that the two men were sleeping and eating in the same house from the time of the alleged threat to the date of the killing, the accused was entitled to an opportunity to show that, notwithstanding he had a common abode with Amodeo, the night the shooting took place was, in fact, the first chance the latter had to do him harm. See 21 Cyc. 954, par. “d."

When we come to consider defendant's endeavor, whether honest or otherwise, to secure the protection of the law, it appears that during the course of the trial the district attorney more than once stated, ap

Fragments of this defense were permitted in evidence; but, in the main, accused was not given an opportunity properly to present his side of the case. His counsel repeatedly endeavored, by formal offers and specific questioning, to introduce the fact that Principatti was “afraid" of Amodeo, "frightened" and "scared" because of the latter's threat to kill him, together with the detailed circumstances attending this threat. He also offered to prove Amodeo's connection with the so-called "Black Hand society" and what that body was thought by the accused to be, its wicked objects, etc. Furthermore, he ten-parently in the hearing of the jury, that, if dered evidence that the night of the killing was the first and only opportunity that "deceased had to do defendant harm," proposing to give details as to the latter's whereabouts from the time of the threat to the date of the alleged crime, in order to corroborate this last offer. Finally, counsel for defendant proffered testimony concerning the action of his client three or four days prior to the date Finally, in connection with the several of the alleged crime in going to a local con- matters under immediate consideration, alstable to ask for protection, this latter offer | beit the alleged threats by Amodeo against

threats were made against the accused, instead of undertaking to secure his own safety, he should have gone to a proper officer of the law for protection; therefore the prison. er had the right to show that he had endeavored to do that very thing, and this even though, by mistake, he applied to the wrong official.