for the undivided one-eleventh of the premises May, '78, 43. June 15, 1878. large quantity of matches were found in the said room, one box of which had been ignited and was still warm, and the said room contained combustible materials; to be accompanied and followed by proof of suspicious conduct of said Kramer during said day and evening, and sundry contradictory and false statements by him, as to his conduct, purposes, possession of matches, and Kramer v. The Commonwealth. firing the same. This evidence is offered to show that the said Kramer attempted and intended the Criminal law - Evidence- Distinct offence-burning of the hotel on the 25th of May, as When evidence of a distinct offence is admissi- bearing upon the question of the identity of the ble, though subsequent in time to the offence person perpetrating the burning on the 23d, and charged. as proof of a continuous connected attempt and purpose to fire the said hotel by the said Kramer, and also in part as conduct by defendant evincing conscious guilt." Evidence of a subsequent distinct criminal act, but connected in character and purpose with the offence charged, is admissible at the trial of an indictment for the principal offence. A. was indicted for arson alleged to have been committed May 23, 1877. After slight evidence had been offered connecting the prisoner with the incendiary act, the Commonwealth offered to prove a subsequent attempt by the prisoner to burn the same property, on the 25th of the same month: Held, that the evidence was properly admitted as tending to show a guilty purpose, such as would make it probable that the same person had made the former attempt. Error to the Oyer and Terminer of Columbia County. Harmon A. Kramer was indicted for the crime of arson in burning the Exchange Hotel in Bloomsburg, Pa. The indictment contained three counts, charging substantially the same offence, viz., the setting fire to said building upon the 23d of May, 1877. Objected to, because the evidence is of an attempt to commit a felony on a different day and at a different place from that heretofore alleged. There being no evidence that connects Kramer with the burning on the 23d day of May, 1877, the evidence offered as to the incidents occurring on the 25th does not tend to connect him with, or prove him guilty of, the transaction of the 23d. Objection overruled and evidence admitted; exception. ELWELL, P. J., in overruling the objection, said: "I acknowledge the force of the argument that a party charged with one single offence shall not be required to answer to numerous offences, and that the giving of evidence of a different offence might have a tendency to prejudice the jury against the defendant. Nevertheless, in a case situated just as this is, while acknowledging that rule (and I feel disposed to enforce it upon the minds of the jury), there is some evidence here which we shall be obliged to submit to the jury. Whether it will be sufficient to convict, or whether we would allow a verdict to stand, is not the question-we should be obliged to submit it to the jury. And this evidence now offered may have some bearing upon the question of the first alleged firing. In that point of view, it would most certainly be evidence that is to say, the Commonwealth can show the conduct of the defendant both before the offence was committed and after-show his conduct of a nature bearing The Commonwealth then offered to prove upon the question of the act alleged; they can "that during the day and evening of the twenty-show his declarations before, his admissions afterfifth of May, 1877 (two days subsequent to the fire), the defendant, when requested and directed to leave the hotel by persons in charge, declined to do so, and made several excuses and unfounded would be competent." pretexts for remaining, and when peremptorily Upon the trial, before ELWELL, P. J., the Commonwealth produced testimony that about half past one A. M. on the 23d of May, 1877, separate fires were discovered, which apparently originated about the same time in the basements of both the east and west wings of the hotel, which fires were extinguished after doing considerable damage; that the prisoner, who was an attaché and inmate of the hotel, had been seen on the preceding afternoon in the basements above referred to, where he had no business to be; and that the bed, where he usually slept, had not been occupied that night. wards; and, if they can show, by any evidence either before or afterwards, a purpose in the mind of the defendant to destroy this building, that Verdict, Guilty in manner and form as inordered to go, in the evening of that day, went up dicted. A motion for a new trial having been stairs twice under false pretences of getting his discharged by the Court, sentence was proclothing and other property, and was in an up-nounced. The defendant took this writ, assignper room detected with a light, and upon his ing for error, inter alia, the admission of the evileaving the same in apparent confusion of mind, |dence above referred to. A. C. Smith, Hervey E. Smith, and John G. | a case having no connection with it, as in ShaffFreeze, for plaintiff in error. The alleged incendiary attempt on the 25th of May was a separate and distinct offence from that on the 23d, with which latter only he was charged in the indictment. No evidence showing the prisoner's guilt of the crime of the 23d had been given, certainly none on which a conviction could have been had, and the prisoner was undoubtedly convicted of the offence charged on the 23d, by the evidence of a distinct offence on the 25th. Evidence of one offence is inadmissible in order to prove the commission of another offence. The only exception is, after distinct evidence has been given of the offence charged, evidence of a prior offence may be received if it be shown that "a connection between them existed in the mind of the actor linking them together for some purpose he intended to accomplish." But evidence of a subsequent offence, not immediately connected in time and circumstances with the first, is never admissible. ner v. Commonwealth (22 P. F. S. 60), but it was to prove acts immediately after the first attempt to burn the hotel, which tended to show a guilty purpose in Kramer's mind such as would make it quite probable that he was the same person who had made the former attempt. It was a circumstance in the chain of proof. The fact that it indicated an attempt to fire the building again did not weaken the proof of purpose, because, if accomplished, it would be a distinct offence. The purpose of the first attempt failed because of the extinguishment of the fire, and though it had burned sufficiently to constitute the offence of arson as a complete crime, yet the purpose was not complete, for that was to consume the building entirely. Being saved, it was clearly the subject of a renewed purpose, and the evidence of this renewed purpose tended strongly to show that the person was the same who made both attempts. The language of the opinion in Shaffner v. The Commonwealth is directly in I Wharton's Criminal Law (7th ed.), ?? 631 a, 647. favor of this view. It is there said, "to make Shaffner v. Commonwealth, 22 Sm. 60. Cole v. State, 4 Law and Eq. Reporter, 677. Rex v. Long, 6 C. &. P. 179. People v. Clark (S. C. of Mich.), I Law and Equity There was no evidence whatever of motive on the part of the prisoner, and nothing, prior to the admission of the evidence relating to the subsequent offence, connecting the defendant with the burning on the 23d of May, other than that he was an inmate of and employed in the hotel, and had free access to all parts of it-facts which were equally true of many other persons, some of whom were the Commonwealth's witnesses. John M. Clark, C. R. Buckalew, W. J. Buckalew, and George E. Elwell, contra. There was ample evidence, prior to the offer of the testimony objected to, to be submitted to the jury, as to the prisoner's guilt. In such cases it is admissible to produce evidence of a distinct crime to prove scienter, or to make out the res gestæ, or to exhibit a chain of circumstantial evidence of guilt in respect to the act charged.' 66 Wharton's Criminal Law, 650. Much more will evidence be admissible to prove a renewed attempt to consummate the same offence the destruction of the hotel-and connected in time and circumstances with the former attempt. "Even offences technically subsequent can be admitted when they virtually form one transaction with that under trial." Wharton's Criminal Law, 647 a. June 17, 1878. THE COURT. We discover no error in this case. The assignment most relied on, the third, is not sustained. The offer was not to prove an independent offence on the trial of one criminal act evidence of another, a connection between them must have existed in the mind of the actor, linking them together for some purpose he intended to accomplish; or it must be necessary to identify the person of the actor, by a connection which shows that he who committed the one must have done the other." Sentence affirmed, and the record remitted for execution. Kelly v. Dodge Manufacturing Co. Practice-Costs, when verdict less than $100— Affidavit of claim, when insufficient to save costs-Act of March 20th, 1810, § 26. An affidavit that the plaintiff's "claim exceeds one hundred dollars," does not conform to the requirements of the Act of 20th March, 1810, 26; and if, in an action in the Common Pleas the subject matter of which is within the jurisdiction of a justice of the peace, there is a verdict for less than $100, the judgment will be without costs. Error to the Common Pleas of Wyoming County. Assumpsit, by the Dodge Manufacturing Company, against Kelly, to recover the price of a mowing machine sold and delivered by the plaintiff to the defendant. The plaintiff's statement of his cause of action, as filed, charged the defendant with "one No. 2 Ohio and Buckeye Mower, $110." The plain tiff also filed an affidavit, "that his claim ex- | due or damages sustained." Claim is often used ceeded one hundred dollars." Plea, non as- to signify the right or title to a debt or to damsumpsit. ages, and quite as often means, "a demand of a Upon the trial there was a verdict for the plain-right or supposed right, a calling on another for tiff for $48.08. The defendant then took a rule upon the plaintiff to show cause why judgment should not be entered upon the verdict without costs, upon the ground that the affidavit filed did not conform to the requirements of the Act of 20th March, 1810, § 26. This rule was discharged by the Court (INGHAM, P. J.), and judgment entered for the plaintiff for the amount of the verdict with costs. The defendant took this writ, assigning for error the entry of judgment upon the verdict with costs. Sittser, Harding, and Osterhout, for the plaintiff in error. The plaintiff did not swear that "the debt due or damages sustained" exceeded $100, but only that his claim exceeded $100. A party might claim any sum he saw fit, but would hesitate to swear that the debt due him exceeded $100. W. E. and C. A. Little, contra. something due or supposed to be due." So demand may signify the amount claimed to be due, or "the asking or seeking for what is due or claimed to be due." The affiant, if questioned after the verdict for less than fifty dollars, could well respond that he claimed in his statement more than one hundred. But if it be doubtful that he could fairly make such response, if his affidavit could be construed to mean the debt itself, or to mean the claim for the debt or supposed debt, the statute was not complied with. This evasive affidavit should have been treated as a nullity. The order and judgment that the plaintiff recover costs is reversed and set aside, and judgment upon the verdict affirmed without costs. Opinion of the Court by TRUNKEY, J. While it is true that the affidavit does not follow the exact words of the Act, it is sufficiently May, '78, 115. in accord with its spirit to entitle the plaintiff to his costs. Gallagher's Appeal. May 27, 1878. Decedents' estates-Marshalling of assets to exempt land devised from the interest of renouncing widow of testator, under intestate laws. A testator devised land specifically, leaving a residuary estate after providing for his widow, who elected to take her statutory interest instead. April 1, 1878. THE COURT. Section 26, Act of 1810, provides that if any person shall commence suit for a debt or demand, made cognizable by said Act by a justice of the peace, in any other manner than directed by said Act, and shall obtain a verdict or judgment, without costs, Held, that the devisee was entitled to have the assets for not more than one hundred dollars, not hav-marshalled, and a sufficient sum set apart to relieve the ing made and filed an affidavit that he "did truly land devised from its burden of the widow's interest. believe the debt due or damages sustained" exceeded one hundred dollars, he shall not recover costs in such suit. (Pur. Dig. pl. 31.) Without perjury no one can take the statutory oath, unless he believes the sum justly and legally due him exceeds one hundred dollars. If his suit be for damages for breach of contract, his statement or declaration may demand far more than the sum necessary to recompense him for the injury. If for debt, his statement may claim more than legally can be exacted. When the oath is made in the words of the statute, or in equivalent words, there is no uncertainty of meaning, and every one, learned or unlearned in the law, understands the affiant as intending the very sum due and owing. Here the plaintiff in his affidavit says, that his claim and demand "exceeds one hundred dollars." This positive assertion may be as strong as if he said he truly believed it exceeded that sum, or even stronger. Hence the departure from the statute is noticeable, and it is at once seen that the words "claim and demand" are not necessarily equivalent to the words, "debt Appeal from the decree of the Orphans' Court of Juniata County. Robert C. Gallagher devised certain real estate to Sophia Oswald, his sister, and after other testamentary provisions for his widow, Jane Gallagher, devised and bequeathed all the residue of his estate, except some specific legacies, to his nephews and nieces, in stated proportions. The widow refused to accept the provisions of the will, and, there being no issue, claimed one half of the real estate for life, under the intestate law. By agreement of the parties, the value of the widow's interest in the land devised to Sophia Oswald was fixed at $1000, or $60 per annum, and in the distribution of the estate in the Orphans' Court she claimed that her devise should be exempted from the burden of the widow's interest. The Court decreed that the assets be marshalled to make her whole at the expense of the residuary legatees and devisees, JUNKIN, P. J., saying, inter alia, as follows: It is certain that testator intended that his sis .1 ter should enjoy in fee the real estate devised to her, and it is equally certain that she was among the first objects of the testator's bounty; and that she is restricted in the enjoyment of her devise is apparent. The case is novel, in this, that the encumbrance did not exist in the testator's lifetime, nor was it created by him. It springs out of a right which he could not control, is a mere encumbrance, leaving the fee simple in the devisee. It is not a debt created by the testator, nor a lien which his personal estate is bound to discharge. It is an estate in the land itself, and can such a charge be removed? In principle, how does a dower charge differ from a mortgage, or any other charge which defeats the enjoyment of the lands devised, or subjects the devisee to the expense of removing it? Such a charge (mortgage or judgment), where it is the debt of the testator, would be paid out of the residuary estate at the expense of the residuary legatees, unless the testator has directed otherwise. But this rule does not apply as between devisees (all devises are specific) and specific legatees. (O'Neal v. Mead, Peere Williams' Rep. 694; Tipping v. Tipping, 1 Id. 730; Long v. Short, 1 Id. 403; Hoff's Appeal, 12 Harris, 206 and 200.) This last case is authority for the proposition that a lien on devised land will be discharged out of the residuary fund; so is Long v. Short (1 Peere Williams, 403). intent of testator the devisee takes cum onere. Gallagher's Appeal, 26 Sm. 294. (There was no paper-book or argument for appellee.) June 3, 1878. THE COURT. We discover no substantial error in this case. The decree is therefore affirmed and appeal dismissed, and the costs ordered to be paid by the appellants. PER CURIAM. SHARSWOOD, J., absent. A writ of error in appeals from orders for removal of paupers under the Act of 16th of March, 1868, suspends the determination of the appeal, so that bills of costs and expenses may be allowed by the Court at any time up to the determination of such writ of error. Error and certiorari to the Court of Quarter Sessions of Lycoming County. The following were the facts: But should this principle fail in its application to this estate, there remains the general rule, as laid down in Sandoe's Appeal (15 Smith, 314), to wit: (1) Where a widow elects not to take under a will, her substituted devises and bequests are a trust in her, for the benefit of the disappointed claimants, to the amount of their interest therein: (2) A Court of Equity will sequester the benefit intended for the wife to secure compensation to those whom her election disappoints. Then add the general rule, that specific legatees Previous to this final decision no demand had and devisees shall be first satisfied, and any de- been made by the overseers of the poor of Elficiency or loss must fall upon the residuary lega-dred Township, for an allowance for the expense tees, and we think this question is decided. So- of supporting the pauper pending the proceedphia Oswald,' as a devisee of the half lot and ings. On the 29th of June, 1877, the remittihouse, is deprived of one-half the benefits of the tur from the Supreme Court was filed in the devise while the widow lives, and the rule re- Quarter Sessions, and on July 2, 1877, the overquires that she be made whole, at the expense of the residuary legatees, and we must marshall the assets to effect that result. In 1874, in pursuance of an order of two justices of the peace of Williamsport, one Sarah, a pauper, was removed from the poor district of that place to the poor district of Eldred township, Lycoming County. On appeal the Court of Quarter Sessions reversed the order, on May 19, 1877, and this ruling was sustained by the Supreme Court on a writ of error. A decree was entered in accordance with the opinion, whereupon the residuary devisees and legatees took this appeal. Edmund S. Doty and Jeremiah Lyons, for appellants. A devisee cannot be relieved from the statutory interest of the widow. Such interest is not a lien, nor like dower at common law. It is an interest in the land. In the absence of express seers of Eldred filed, by leave of Court, a bill of expenses, and obtained a rule, on the overseers of Williamsport to show cause why it should not be paid. Subsequently the Court, MAYER, P. J., upon exceptions allowed the bill, and the overseers of Williamsport took this writ, assigning as error, the allowance by the Court of a bill of expenses not filed "at the same session" at which the appeal was determined. S. T. and H. C. Mc Cormick, for plaintiffs in (P. L. 545), provides that the Court of Quarter of an inferior quality, and selling them at a reSessions upon every appeal in a case of settle- duced price, and issuing hand-bills declaring ment, shall, at the same session, order the party those shirts to be made of "Wamyesta" muslin, in whose behalf such appeal shall be determined, whereas no such brand of muslin exists, but the such costs and charges as said Court shall consider name had been selected with intent to deceive reasonable. The jurisdiction of the Court is purchasers by its resemblance to "Wamsutta,' circumscribed by the Act of Assembly. and is and will be a cause of injury to the complainants. The bill prayed an injunction and account. Allen and Gamble, contra. 66 The Act allows costs and expenses until the determination of the appeal. The appeal was The defendants answered that the only prominot determined until finally adjudicated by the nence given in their hand-bills to the name Courts of the State. The Act of 16th of March, Wamyesta" was in connection with the shirts, 1868, gives a writ of error in such cases, and this whereas the plaintiffs in the notice set forth as a suspends the determination of the appeal. trade-mark expressly disclaimed to manufacture shirts; that the material used by defendants was easily distinguishable from "Wamsutta Mills," and there was no similarity in appearance between either plaintiffs' label (6 x 8 inches) containing a picture with the words "Wansutta Mills, New Bedford, Mass.," and their monogram and notice (4 x 6 inches) now placed upon shirtings and sheetings, and the single word "Wamyesta" printed 1 inches long on the defendants' shirts; and denied any intent to deceive or possibility of injuring plaintiffs by the use of the word. The defendants did not claim to make the muslin used for the "Wamyesta shirts." June 10, 1878. THE COURT. The 20th section of the Act of June 13, 1836, is remedial as to the recovery of the expenses of relief of a pauper and costs. It is made imperative upon the Court to award the same to the appellants at the same session when the hearing takes place, if "demand" be made. But it does not follow that, no demand being made, the right of recovery is gone. The act being remedial, we see no reason why, on a subsequent demand being made, the Court should not, on application, award the same at another time. The appellee, or township, removing the pauper, suffers no injury from the delay; while the appellant or township to which removal was made may not have been ready at the first session to establish the entire sum expended. Order affirmed. The Court, on motion, extended the five-days injunction, and defendants entered this motion. The affidavits of shirtmakers as to the possibility of purchasers being deceived by the name, were conflicting. M. J. Mitcheson, for the rule. The Court is not bound to decide disputed questions of fact, and should not issue an interlocutory injunction before the defendant has had an opportunity for a full hearing, unless to prevent irreparable mischief. Browne's Law of Trade-marks, 464. Injunctions have been dissolved where the plaintiffs' label was "Merrimack Prints, Fast Common Pleas Equity. Colours, Lowell, Mass.," and the defendants' Wamsutta Mills v. Allen et al. Motion to dissolve preliminary injunction. "English Free Trade Merrimack Style, War- Merrimack Manufacturing Co. v. Garner, 2 Abb. Pr. Snowden v. Noah, Hopkins Ch. R. 347. Stephens v. De Couto, 7 Robertson, 343. Muslins in the piece are a different class of goods from shirts. IXL" has been allowed on chopping-axes, and on scythes, after its appropriation by a maker of cutlery. Morgan and Lewis, contra. The plaintiffs' label or ticket containing the name "Wamsutta Mills" is a sufficient trade |
