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Schraudenbaugh and her husband, Julius Schraudenbaugh, the crime could not have been committed by the defendant.

"(8) If the evidence of Julius and Mrs. Schraudenbaugh, to the effect that on the night of April 8, 1833,-the night of the homicide,-the defendant did not leave their house until ten minutes after 10 o'clock, prior to which time the evidence of the commonwealth shows that Martin was shot, and at which time shows he was dead, raises in the mind of the jury a reasonable doubt as to whether the defendant was the slayer of Martin, they should acquit the defendant.' Answer: If there is a reasonable doubt that the prisoner shot Martin, he should not be convicted; and this point is affirmed, if you find the facts to be that Salyards did not leave the house of Schraudenbaugh until after Martin was shot. At what time he was shot, and at what time he left the dwelling of Schraudenbaugh, we leave for you to determine.

"(9) The prisoner is entitled to the benefit of any doubt, and unless the jury are satisfied of his guilt, beyond any reasonable doubt, they should acquit the defendant.' Answer: This point is affirmed.

"(10) It is the duty of jurors to doubt as jurors what they would doubt as men.' Answer: This point is affirmed.

"(11) There is not proven, in this case, any lying in wait. All the evidence tends to show that the person whom Martin was following, and who is alleged by the commonwealth to be Salyards, was making efforts to escape; and there being no evidence showing any previous preparation for the commission of the crime on part of the defend. ant, or that the defendant expected to meet Martin on that night, then, in the absence of all testimony as to the manner of the killing, the jury would be justified, if they find that the defendant is the person who shot Martin, in finding that the grade of crime does not rise higher than voluntary manslaugh ter, or murder in the second degree.' Answer: We cannot instruct you that it has not been proven, in this case, that there was any lying in wait, nor that all the evidence tends to show that the person whom Martin was following was making efforts to escape, or that there was no preparation on part of the defendant for the commission of the crime, or that he expected to meet him that night, or that there is an absence of all testimony as to the manner of killing; but we instruct you that, if you should so find the facts, then the point is affirmed. In our opinion, the facts would warant a conviction of murder in the first degree, and that you would be justified in finding that the evidence made out a case of willful, premeditated, deliberate killing.

him or not, can be applied only to his reliability as a witness, and not as otherwise bearing upon the question as to his guilt or innocence of the crimes charged in this indictment.' Answer: This point is affirmed.

"(2) That if the jury believe that the prisoner was violently attacked in a public highway with a club or a mace, in the nighttime, by a man whom he did not know, and in self-defense shot his assailant, he should not be convicted of any offense.' Answer: If you should find that the prisoner was attacked by Officer Martin as stated in this point, and he had reason to apprehend great bodily harm, and could not retreat, or that it did not appear he could safely do so, the point is affirmed. But we say to you, in our opinion, there has been no evidence offered in the case that would justify such a finding by you. You would have the power to do so. Yet, in the light of the testimony, as we apprehend it, you would not be justified in reaching such a conclusion.

"(3) That the testimony as to alleged stealing of the hat and clothing in Shippensburg, if not withdrawn by the court, which is prayed for, can go no further than to affect the credibility of the defendant, and does not affect anything else.' Answer: This point is affirmed.

"We say, generally, the bill of indictment in this case charges the defendant with the unlawful and felonious killing of George Hamilton Martin. It contains two counts,the first designating the homicide as murder of the first degree; and the other, as voluntary manslaughter. 'Murder,' as defined at common law, is where a person of sound memory and discretion unlawfully kills any human being in the peace of the sovereign, with malice prepense or aforethought, either express or implied. The Criminal Code of this commonwealth has divided the offenses of murder into two grades. Where the killing is done with a malicious, willful, deliberate, and premeditated intention to take human life, or where committed in the perpetration or attempted. perpetration of arson, rape, burglary, or robbery, it is murder in the first degree. If the killing, however, although malicious, is not done by reason of an intention, willfully, deliberately, and premeditatedly formed, to destroy life, and not in the perpetration or attempted perpetration of the felonies above named, it is murder of the second degree. This happens when death is the result of the violence of another, where there is no intent to take human life, but only a malicious intent to do great bodily harm. 'Manslaughter' is defined to be the unlawful and felonious killing of another without malice, expressed or implied, as where the act is done in hot blood. Thus are defined the different degrees of felonious

"We have been asked, further, to charge homicide recognized in this commonwealth. you as follows:

"(1) That all the testimony as to defendant's former offenses, whether confessed by

In all cases of homicide,-that is, of the killing of a human being,-malice is presumed on part of the slayer, unless the killing was

excusable or justifiable. In other words, it is presumed, when there has been an unlawful taking of human life, that a murder has been committed. Although a murder is properly presumed, the presumption, as already stated, rises no higher than murder of the second degree. If the commonwealth contend, in any case, that murder is of a higher degree than that of the second,-that is, if it insists that it is murder of the first degree, then upon the commonwealth rests the burden of showing that there was a deliberate and premeditated intention to take human life, while upon the prisoner rests the onus of excusing, justifying, or reducing the offense to a lower grade. Murder of the second degree being presumed, if the commonwealth desire to establish murder of the first degree, it must show that there was a willful, deliberate, and premeditated intent to kill. On the other hand, if the slayer seeks to justify or to excuse or to reduce the grade of the offense, upon him is the burden of showing that it was less than murder of the first degree. A verdict of guilty of murder in the first degree would not be justified unless the jury are satisfied, beyond a reasonable doubt, from the facts presented to them on the trial, that there was an intention to kill, deliberately and premeditatedly. In determining whether there was an intention to kill, it is proper to take into consideration the character of the weapon used,-whether deadly or not,-and the portion of the body where the wound was inflicted,-whether vital or not. If the weapon is capable of inflicting a deadly wound, and the part of the body to which it was directed vital, this would be strong evidence of an intent to destroy life. It is also proper, in passing upon the question of intent to take life, to consider the previous acts and declarations of the person charged,-the conduct on his part, and threats by him, if any, indicative of a disposition or determination to do harm to the person of the deceased. The time required for deliberation and premeditation to form the intent to kill is not fixed by statute law. The time must be sufficient to fully form the purpose and the design to kill, select the instrument, or devise the plan to carry the design into execution, and to realize the act about to be done; but it is left for the jury to find, in each case, whether, from the evidence, it appears that a sufficient period had elapsed for this purpose. Manslaughter is where human life is taken upon a sudden impulse of heat or passion, under circumstances which might naturally lead him into a passion and uncontrollable rage, and he kill a fellow man before time elapses for cooling, and before there is time to form a definite purpose to kill; but if he got into this rage without reasonable provocation, or,

being in such rage and passion, had time to reflect before killing, the offense would be murder. A man has no right to kill an assailant, if he has an avenue by which he may escape. The law regards human life as so sacred that its taking can only be excused under circumstances of dire necessity."

W. J. Shearer and Stuart & Stuart, for appellant. J. E. Barnitz, Dist. Atty., and M. C. Herman, for appellee.

STERRETT, C. J. In view of the gravity of the crime of which the prisoner was convicted, we have carefully examined the rec ord, in connection with the stenographer's notes of testimony, and are fully satisfied that no substantial error was committed in the trial. The testimony was quite sufficient to show that the death of George H. Martin was caused by a pistol-shot wound inflicted by some one with the intent to kill; and it also tended strongly to prove that the prisoner was the guilty agent. All the facts and circumstances connected with the shooting, including the presence of the prisoner at or about the time it occurred, his previous . threats, immediate flight, arrest in a neighboring state, etc., point to him as the person who intentionally and feloniously fired the fatal shot. All these facts and circumstances, if true, are consistent with his guilt, and at the same time irreconcilable with any other reasonable theory arising out of the testimony. Without undertaking to summarize the testimony, or to refer specially to any part of it, we have no doubt it was proper for the consideration and determination of the jury; and to them it was submitted by the learned president of the oyer and terminer in a clear and comprehensive charge, which appears to be free from any error of which the prisoner has any just reason to complain. Guided by his explicit instructions as to what was necessary to justify a verdict of guilty, the jury must have found that the fatal shot was fired by the prisoner without any justification or excuse, and with specific intent to take the life of deceased. As already intimated, the evidence was quite sufficient to justify the jury in finding all the facts necessary to constitute murder of the first degree. It would serve no useful purpose to notice the specifications of error in detail. We have given to each and all of them that consideration which their importance to the prisoner demands, and have failed to discover therein, or in any part of the record, any error that would justify us in reversing the judgment. The judgment of the court of oyer and terminer of Cumberland county is therefore affirmed; and, to the end that said judgment may be executed, it is ordered that the record be forthwith remitted to said court.

(158 Pa. St. 359)

WHEELOCK v. FUELLHART et al. (Supreme Court of Pennsylvania. Nov. 13, 1893.)

TRESPASS-REMOVAL OF CHATTELS-INSTRUCTIONS.

1. F., the owner of land abutting on a highway, rented to plaintiff the privilege of placing on the half of the highway adjoining her land, and in which she had a fee title, a platform, from which to load lumber on a railroad adjacent thereto. Subsequently, the railroad company acquired the land up to the highway,-the title to the latter, however, remaining as before, and it did not appear that the company ever asserted any right in the ground covered by the platform. Held, in an action against servants of F. for removing plaintiff's lumber from the platform, that an instruction that, if "the property was taken from the land appropriated by the railroad company,

plaintiff would be entitled to something," was not supported by the evidence.

2. Neither F. nor defendants could be made liable for the value of the timber removed after the end of the lease, merely because defendants placed it on F.'s land, in the absence of a refusal to let plaintiff remove it therefrom. Appeal from court of common pleas, Warren county.

Action by Jesse J. Wheelock against Henry Fuellhart, Carl Horn, and Simeon Dunn. From a judgment for plaintiff, defendants appeal. Reversed.

Prior to March, 1881, Philopena C. Fuellhart, Andrew Gross, and Thomas L. Carpenter owned land in Deerfield township, Warren county, west of the Allegheny river, which river was the eastern boundary of their land. The public highway known as the "Old Warren and Franklin Pike," or "River Road," crossed this land a little distance west of the river bank. This land was bounded on the north by Perry McGee run. Between the highway and the river, the Western New York & Pennsylvania Railroad Company constructed their road over this land. The right of way of these two roads came together as they crossed said run, and diverged from each other leading southward, leaving a wedge-shaped piece of land between the rights of way of the two roads. In 1881 partition was made, the part between the highway and river and over which the said railroad was constructed being set apart to Mrs. Fuellhart. Near the public highway, the railroad company structed a switch, on Mrs. Fuellhart's land, and she built a platform in the highway, and rented the privilege of piling lumber and bark on it, for the purpose of being loaded into cars standing on the switch. The plaintiff manufactured lumber on the opposite side of the river, which was ferried across at this point to be loaded on the cars. On the 20th of June, 1888, he entered into a written contract with Mrs. Fuellhart, whereby she granted him the privilege of using said platform, and an extension to be built by him, for the purposes of unloading lumber and bark thereon, until June 1, 1890, at which time "the privileges herein will expire without further notice."

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For this privilege he paid her $125. 26, 1890, the railroad company filed a petition in court, and gave bond, and appropriated this wedge-shaped piece of land between their right of way and the public highway for railroad purposes. The land appropriated is described in their petition as follows: "Commencing at a point near said McGee's run, where the west line of the right of way of said railroad intersects the east line of the public highway; thence running southerly along the right of way of said railroad 1076 feet; thence westerly to the public highway; thence northerly along said public highway to the place of beginning,-containing about three-quarters of an acre, more or less." Upon this part of the highway, said platform was built, with the exception of a few feet at the southern end. On June 1, 1890,-at the time the plaintiff's rights expired under his contract, he had large quantities of lumber piled on this platform, where it was constructed in the public highway, and bark thrown partly on the platform, and projecting further into the highway. This bark and lumber interfered with the piling of lumber and loading it on the cars by other parties, to whom Mrs. Fuellhart had also granted privileges of using said platform; and, after plaintiff's rights ceased, she notified him to remove the bark and lumber, or enough of it to enable others to use the platform for loading their lumber on the cars. This he refused to do. After this,-June 26, 1890,-Carl Horn and Simeon Dunn, two of the defendants, by direction of Mrs. Fuellhart, removed enough bark and lumber from this platform in the highway to enable others to reach the cars from the platform. The lumber they piled up near a road leading up from the river to the public road, on Mrs. Fuellhart's land, about 25 rods away, and where Wheelock had other lumber piled, which he drew away afterwards. This lumber laid there until fall, when high water carried it away. The bark they drew south along the highway some rods, and piled it over the road fence on Mrs. Fuellhart's land, but within the highway, as at that point the fence stood in the roadway.

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MCCOLLUM, J. The appellee, under and by virtue of his agreement with Mrs. Philopena C. Fuellhart, acquired the privilege of piling his lumber and bark on the platform for the purpose of shipment on the railroad, which privilege, by the express terms of that agreement, expired, "without further notice," June 1, 1890. When the privilege expired, there was a quantity of his lumber and bark on the platform; and Mrs. Fuellhart was desirous of having it removed, in order that another party, to whom she had granted a like privilege, might pile his

lumber and bark there for a like purpose. Accordingly, the appellee was notified by her to remove his lumber and bark, and, as he paid no attention to the notice, the appellants, on the 16th of June, 1890, acting for and under orders from Mrs. Fuellhart, hauled the lumber and bark a short distance from the platform, and piled some of it by the roadside, and some of it on her land. The appellee then brought this action against them, to recover the damages he alleges he sustained by the removal of his property.

It is manifest, at the outset, that, if they did no more than Mrs. Fuellhart had a right to do, there can be no recovery against them. We look, therefore, to the agreement between the appellee and Mrs. Fuellhart, to discover what their respective rights were on the 1st of June, 1890, in reference to the occupancy and use of the platform, and the ground covered by it. It was plainly the duty of the appellee to surrender his possession of the property to Mrs. Fuellhart, from whom he received and under whom he held it, and to remove his lumber and bark therefrom. If he refused or neglected to discharge this duty, she had an undoubted right to take possession of the ground to which the privilege he acquired under their agreement extended, and, to enable her to do so, to remove from it his timber and bark. It was her duty to exercise this right without violence, or a breach of the peace, and without inflicting unnecessary injury upon his property. We cannot find, on this record, any evidence which would justify a finding that, in the removal of the property, there was any unnecessary waste of or injury to it. But the appellee contended in the court below, and contends here, that Mrs. Fuellhart had no right on the 1st of June, 1890, or thereafter, to the possession of the land to which his privilege applied, or to remove therefrom his lumber and bark, because, he says, the land was either in the public highway, or appropriated by the railroad company. The learned judge of the court below instructed the jury that if the lumber and bark in question "was piled within the lines of the public highway, and remained there after the rights which the plaintiff had acquired under the contract had expired, then it was wrongfully there, and Mrs. Fuellhart might cause it to be removed, doing no more damage in removing it than necessary to accomplish the purpose;" and, also, that, if "the property was taken from the land appropriated by the railroad company,

* the plaintiff would be entitled to recover something." The portion of the charge last quoted is the subject of the third specification of error. In support of this specification, the appellants contend that the evidence is insufficient to warrant a finding that the appellee's lumber and bark were on land appropriated by the railroad company, and in this contention they appear to be well sustained by the record. There is certainly

no evidence that the company appropriated any part of the public highway, or that it exercised any control over the platform, or the ground covered by it. The right of Mrs. Fuellhart to use the platform, and to grant privileges to others to use it, does not appear to have been questioned by the company at any time. No witness testified that any portion of the lumber and bark removed by the appellants was on land condemned by the company. But Henry Fuellhart, Charles Fuellhart, and Carl Horn testified, distinctly and positively, that the platform was "wholly within the public road," and the appellee testified that it was "almost entirely on the public highway." The jury ought not to have been permitted to find, on this evidence, that the appellee's lumber and bark were taken by the appellants from the railroad company's land. We have no doubt that the appellee could have taken his property from Mrs. Fuellhart's land without becoming liable to her as a trespasser. It was not appropriated by her, and there is nothing on the record to indicate that she claimed, or intended to claim, it. He knew where it was, and had an undisputed right to take it. He cannot, therefore, charge her or the appellants with any loss he may have sustained by his neglect to do so. The first, second, and third specifications are sustained, and the fourth is overruled. Judgment reversed.

(158 Pa. St. 476)

COMMONWEALTH ex rel. LANGDON v. PATTERSON.

(Supreme Court of Pennsylvania. Nov. 13, 1893.)

CORPORATIONS-MEETINGS -Seceders-Sale of STOCK-RIGHT TO VOTE.

1. At a meeting of the stockholders of a corporation, part withdrew on the pretext of escaping disorder, for which they were as much to blame at least as the others, but in reality to carry out a preconceived scheme to organize the meeting in their own interests, the call to withdraw being not to those desiring an orderly meeting, but to those of their party. Held, that the meeting of the seceders was illegal, and its defects of organization not cured by a subsequent invitation to the others to come over and vote; its acts were therefore nullities.

2. Under a contract of present sale of stock, in accordance with which it is delivered to a third person in escrow, the seller retaining a contingent right to resume title on failure of the purchaser to comply with terms of the sale, the right to vote the stock while the contract remains executory being expressly given to the purchaser, the seller has no right to vote, by reason of Act May 7, 1889, (P. L. 102,) making the certificates of stock and transfer books of corporations prima facie evidence of the right to vote the stock.

Appeal from court of common pleas, Blair county.

Application for quo warranto by Samuel P. Langdon, seeking to oust from office Frank G. Patterson, president of the Altoona, Clearfield & Northern Railroad Company. From a judgment of ouster, defendant appeals. Reversed.

D. J. Neff, Thos. H. Greevy, and F. G. Patterson, for appellant. W. S. Hammond, H. M. Baldrige, Martin Bell, and John H. Orvis, for appellee.

MITCHELL, J. The evidence shows that the disorder at the meeting on February 23d was begun by the relator and his friends in the attempt to substitute a chairman of their own party for Mr. Patterson, who, having been chosen at the original meeting, was entitled to call the adjourned meeting to order, and to continue to preside unless superseded in some orderly and recognized parliamentary manner. The subsequent disor der was at least as much the fault of the relator's party as of the appellant, and, such as it was, was practically over before the former started to withdraw. In fact, the conclusion is irresistible from the evidence that the withdrawal was not in good faith to escape disorder, but a cover for carrying out a preconceived scheme to organize and run the meeting in their own interests. The call to withdraw was not to all stockholders, or even to all desiring an orderly and legal election, but to the party of the relator, and was so understood both by themselves and the others. It was without any justification in law, and there was no sufficient evidence to submit to the jury in that behalf. The subsequent invitation to the others to come over and vote in a meeting thus illegally convened and in possession of the seceders was ineffectual to cure the radical defects of organization. All its acts were illegal, and mere nullities as against the other stockholders. The jury should have been directed to find for the defendants.

Upon the computation of votes, it does not appear that appellant, Patterson, has made out his claim to the 600 shares of stock in such form as to entitle him to vote upon them. This number must therefore be de ducted from the sum total of appellant's vote, leaving him 348. But, on the other hand, there were cast for the relator a number of votes that were clearly not admissible. A few were cast by persons holding proxies from owners of stock who were present and voting in person at the other meeting. But the principal contention is over the effect of the agreement of January 5, 1893, between Langdon and certain stockholders for the sale of their stock. This was a contract of present sale, and the vendors parted with possession. It is true the stock was delivered to a third party to be held in escrow, and the vendors retained a contingent right to resume title on Langdon's failure to comply with the terms of the sale; but the whole present beneficial interest of the vendors was parted with, and no act of their own could restore it. They parted expressly with the right to vote in the interim while the contract was executory, by

agreeing that such right should be in Langdon. They were not present owners in any such sense as to entitle them to vote. Whether Langdon could have voted the stock thus acquired within 60 days of the election we need not consider, as he made no offer to do SO. The act of May 7, 1889, (P. L. 102,) does not bear materially on this case. That act, as was held in Com. v. Dalzell, 152 Pa. St. 217, 25 Atl. Rep. 535, so far as it is more than declaratory of the common law, is "a directory establishment of the prima facie in the cases enumerated therein for the guidance of the election officers, but not intended to interfere with the privileges of individual owners or the by-laws of corporations, and certainly not to take away or settle finally any legal rights." Prima facie the right to vote accompanies the legal title, but when the title is divided, and an equity exists, as between pledgor and pledgee, trustee and cestui que trust, or, as in the present case, between vendor and vendee, with a title inchoate until payment, the right to vote is subject to the agreement of the parties. This is the rule, not only of the common law, but also of the act of 1889. Our attention has not been called to any by-law of this corporation which in any way affects this result. The right to vote on the stock sold by the agreement of January 5, 1893, was, as already said, expressly vested in Langdon, and therefore, even if the vendors had offered to vote it at the regular and legal meeting, they could not have been permitted to do so. Throwing out these illegal votes, the appellee would have had no claim to a majority, even if the vote for him had been cast at the regular meeting. The judgment of ouster is reversed, and the appellant is reinstated in his office of president; costs to be paid by appellee.

(158 Pa. St. 476) COMMONWEALTH ex rel. LOUDEN et al. v. BELL et al.

(Supreme Court of Pennsylvania. Nov. 13, 1893.)

Appeal from court of common pleas, Blair county.

Application for quo warranto by William Louden and others, seeking to oust from office G. T. Bell and others, directors of the Altoona, Clearfield & Northern Railroad Company. From a judgment of ouster, defendants appeal. Reversed.

D. J. Neff, Thos. H. Greevy, and F. G. Patterson, for appellants. W. S. Hammond, H. M. Baldrige, Martin Bell, and John H. Orvis, for appellees.

MITCHELL, J. This case was argued with Com. v. Patterson, 27 Atl. Rep. 998, and is governed by the facts and law set forth in the opinion filed herewith in that case. Judgment of ouster reversed, and appellants reinstated in their office of director; costs to be paid by appellees.

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