(107 A.) Argued before BROWN, C. J., and STEWART, MOSCHZISKER, FRAZER, WALLING, SIMPSON, and KEPHART, JJ. Atl. 796; Di Meglio v. Phila. & R. Ry. Co., 249 Pa. 319-324, 94 Atl. 1095), and it was the further duty of the company and its employés when the train was moving or about to start. not to frighten or force the child to alight The brakeman could easily have signalled the could have been put off the car. The braketrain to stop, and, when stopped, the boy man knew the train was about to proceed. just how the accident took place. The boy However, it was for the jury to determine stated the train was in motion when he was frightened off the car and struck with the piece of coal. If the "bump" of the train was in part responsible for the boy's injury, Wm. Clarke Mason, of Philadelphia, for the inducing cause was the conduct of the brakeman. The court below in its charge appellant. said: Francis M. McAdams and William H. Wilson, both of Philadelphia, for appellee. KEPHART, J. This action is the outcome of an injury inflicted by the appellant upon John Minute, a boy nine years of age. The boy crossed the railroad track to see his father and, in returning, he climbed on top of a car in a train, with the intention of passing over it and continuing to his home. Just as he reached the end sill of the car, a man dressed as brakemen are usually dressed, with overalls, cap, carrying a brake stick and brakeman's lantern, appeared at the other end of the same car. The jury, from the evidence, could have found that the car started to move with the boy on it, holding fast, when a brakeman on the same car ordered him from the train. The brakeman threw a piece of coal at the lad, striking him on the back, calling him vile names. The scared boy was in the act of getting down when the coal struck him. About the same time, the car gave a bump, and he fell on the tracks, receiving the injuries complained of. [1-3] It is urged by appellant that there is a variance between the allegata and probata, the statement nowhere averring the boy had been bumped from the train; further that, if he was injured by being jolted from the car it was not occasioned by the act of the brakeman, but by the lawful movement of the train, and, under such circumstances, defendant would not be liable. The several acts narrated by the boy were so close together that it is impossible to determine how much each contributed to his injury. The boy was scared and frightened by the actions of the brakeman, but whether he was injured by reason of such conduct or the sudden bump of the car is not material. It was the duty of the appellant, when its employé observed a child in the position this lad occupied not to start the train until he had alighted therefrom (Petrowski v. Phila. & R. Ry. Co., 263 Pa. 531, 107 Atl. 381; Pollack v. Penna. Railroad Co., 210 Pa. 631633, 60 Atl. 311, 105 Am. St. Rep. 843; Tre vethan v. Phila. & R. Ry. Co., 244 Pa. 414, 90 "If you believe that John Minute was injured solely as a result of the motion of the cars of the train following the 'bump' of the coupling, and that he was not forced from the train by any employé of the railroad company, then such conclusion would require you to find a verdict for the defendant." This instruction was more favorable than the appellant was entitled to receive. Further, appellant cannot now complain of a variance. No objection was made to this evidence, no motion was made to strike it out, or for a nonsuit. No assignment of error raises the question of variance. It will not be considered on an assignment complaining of a refusal to sustain a point for binding direction or to grant judgment n. o. V. Indian v. Delaware, L. & W. R. R. Co., 262 Pa. 117, 104 Atl. 871; Shaffer v. Bahr, 57 Pa. Super. Ct. 48-53. [4] The evidence that the man who chased the boy from the train was an employé of the defendant engaged in the discharge of his duty was sufficient to sustain an affirmative finding by the jury on that question. He was doing an act ordinarily done by those forming part of the train crew, policing the train, and while so acting was doing what the rules of the company required him to do. His acts were within the scope of his employment. Petrowski v. P. & R. Ry. Co., supra. [5] The court below charged that before the plaintiff could recover the jury must be fairly and reasonably satisfied that the employé willfully and with gross negligence caused the boy's injury under circumstances of manifest and imminent danger to him; and, while it was not necessary for the plaintiff to show willfulness and gross negligence, the evidence warranted a favorable finding for the plaintiff on this instruction. The appellee, however, has good cause to complain of this portion of the charge. It placed on his client a burden not in accordance with the law as determined by this court. It is not essential to recovery in a case of this character that there be present elements of recklessness or gross negligence-proof off to make sale of his real estate. In due time what under ordinary circumstances might be the widow filed her election to take under termed "mere negligence" is enough. Pe the will, and thereupon she presented her trowski v. Phila. & R. Ry. Co., and cases petition to the orphans' court, setting forth cited. that as widow of the said decedent she claimThe judgment of the court below is af- ed the benefit of the act of assembly of June firmed, at the cost of the appellant. (264 Pa. 140) In re CARRELL'S ESTATE. (Supreme Court of Pennsylvania. 1919.) EXECUTORS AND ADMINISTRATORS SHARE-INTESTACY. 7, 1917 (P. L. 429), which gives to the widow of an intestate $5,000 of real and personal property of decedent's estate in addition to her $300 exemption, and that she had designated certain real and personal estate which she demanded should be set apart to her of the value of $5,000. The petition prayed March 10, that the court appoint two appraisers to set apart the real and personal property she had elected to take to the value of $5,000 in accordance with the provisions of the act. The learned judge of the orphans' court dismissed the petition, holding that the facts as set forth did not bring the case within the class to which section 2 of the act of the 7th of June, 1917 (P. L. 429, 431) referred. appeal is from this order and decree. 193 WIDOW'S Where one dies after passage of Act July 11, 1917 (P. L. 755), amending Act June 7, 1917 (P. L. 429), leaving a widow and collateral kin, and by will directed distribution according to the intestate law, and conversion by widow as executrix, the petition of widow, electing to take under the will, for the appointment of appraisers to set apart designated realty and personalty of the value of $5,000, will be dismissed without prejudice to her right to enforce her claim by taking credit therefor in her account as executrix and urging it upon final distribution, as the case was not one of intestacy. The The act in question is entitled, "An act relating to the descent and distribution of the real and personal property of persons dying intestate; and to provide for the recording and registering of the decrees of the orphans' court in connection therewith, and the fees therefor." Section 2 of the act as amended by act of July 11, 1917 (P. L. 755), reads as follows: "When such intestate shall leave a spouse surviving and other kindred, but no issue, the surviving spouse shall be entitled to the real and personal estate, or both, to the aggregate value of five thousand dollars, in addition, in the case of a widow, to the widow's exemption as allowed by law; and if such estate shall exceed in value the sum of five thousand dollars, the surviving spouse shall be entitled to the sum of five thousand dollars absolutely, to be chosen by him or her from the real or personal estate, Thomas Ross and George Ross, both of or both, and in addition thereto shall be enPhiladelphia, for appellant. STEWART, J. Isaac Carrell, a resident of Bucks county, died July 1, 1918, testate, leaving to survive him a widow, this appellant, but no issue, his nearest of kin in the line of inheritance being nephews and nieces. By his will duly proved, after directing the payment of his just debts, he made the following disposition of his estate: "I give and bequeath to my beloved wife, Maria Carrell, the interest in my estate that the intestate laws of the state of Pennsylvania directs." This item then follows: "I give and bequeath to my nephews and nieces their interest in my estate, share and share alike." titled to one-half part of the remaining real and personal estate: Provided, that the provisions of this clause as to said five thousand dollars in value shall apply only to cases of actual intestacy of husband or wife, entire or partial, and not to cases where the surviving spouse shall elect to take against the will of the deceased spouse." It does not concern us to inquire into the purpose or effect of the amendment to the act of June 7, 1917, to the section above recited; it stands without relation to the facts before us. The argument in support of appellant's contention, stated brieny, is that inasmuch as the will makes the same distribution of the estate as would have followed by virtue of the statute had the husband died intestate, it results that there is an actual intestacy, and that the appellant is thus brought within the provisions of the act that He appointed the widow executrix of the awards to the widow of an intestate the sum will, giving to her full power and authority of $5,000. This proposition would call for But here the widow has no right of se lection; she takes in money or not at all, and in such case an appraisement is not necessary. Larrison's Appeal, 36 Pa. 130; Bal case of Hollinger's Estate (No. 1) 259 Pa. 72, 102 Atl. 409, the question arose on exceptions to an adjudication allowing the surviving husband, who had elected to take against the will of the deceased wife, the $5,000, in the distribution of the wife's estate, notwithstanding there had been no appraisement. That case differs from the one in hand, in that there was in that case an election to take against the will, which resulted in a clear intestacy so far as concerned the husband, and the procedure therein was necessarily under the act which bestowed the $5,000 on the surviving spouse. But even in that case, falling strictly within the provisions of the act, the earlier cases we have cited are referred to as governing authorities to the effect that when the election is to take the amount of the exemption in cash or its equivalent, an appraisement is not necessary, and it is there said that "this doctrine has been consistently adhered to ever since." The act of 11th July, 1917, couples in the same provisions the $300 widow's exemption under the earlier act, and the $5,000 additional allowance it gives to the widow of intestates, and evidently contemplates one appraisement to include both. What effect this act has upon the provisions of the earlier act of April 14, 1851 (P. L. 613), with respect to procedure in the matter of a widow's claim for $300 is not in the line of our present inquiry, and we decide nothing with respect thereto. We only refer to the practice under the exemption act as illustrating the futility of an appraisement where money alone can be taken by the widow. Whether we call the $300 provision an exemption or inheritance, by parity of reason it would seem that an appraisement of money could be no more required in case of a widow's claim for the $5,000 than in her claim for the $300 exemption; more especially should this be so when the right to claim the $5,000 is derived from the will and is a devise or legacy as the case may be. The will in this case contains this provision: (107 A.) consideration if a proper determination of { the case in hand in any way depended on its correct determination, but it does not so depend. This is not a case of intestacy, and since the act of 1917 relates solely to the de-dy's Appeal, 40 Pa. 328. In the very recent scent and distribution of the real and personal property of persons dying intestate, it can have no place in the discussion, except as by the will it measures the bounty given by the testator to the several beneficiaries thereunder. Here we have a will duly proved, unequivocal and unambiguous in its terms, so plain and intelligible in its several parts as to leave no room for controversy as to the testator's intention expressed therein, followed by the widow's election to take thereunder. It gives to the widow such interest in the estate as the intestate laws of the state direct; in other words, such interest as she would be entitled to receive in case he were to die intestate. Where a will is so free from uncertainty or ambiguity as this, it calls for no interpretation; it could not have been more direct had the provisions been followed by a recital or specification of the preferences given by law to the widow in cases of intestacy. The mere fact that it adopts the fixed measure of distribution which the law had adopted in cases of intestacy is without significance affecting in any way its exclusively controlling guidance. The act of 1917 provides the method to be followed in setting apart to the widow of an intestate the $5,000 in value of the property, but makes no provision for an ascertainment of value in cases where the claim is made under the will. It is only a reasonable and fair intendment that when testator gave to his widow such interest in his estate as the intestate laws of the state direct, he had in contemplation the method provided by the intestate laws for the admeasurement of the interests, but that is not a satisfactory because not a necessary deduction in view of the fact that the whole purpose of the act, as clearly expressed in its terms, is to regulate the distribution of property of persons dying intestate. The case in hand, as we have said, is not a case of intestacy, and the act therefore has no relation to it, and we can find no sufficient warrant for applying any of its provisions here. How then can the widow's share be set apart? This question suggests another. Why does it need to be set apart? The exceptional circumstances make such proceeding wholly unnecessary. In ordinary cases arising under a widow's claim for exemption, the widow may enforce her claim out of any part of the estate she may desire to take, and where she elects to take certain articles of personal property or specific real estate, an appraisement is necessary to determine the value of the article selected, and upon the confirmation of the appraisement the specific property she had elected to take is set apart as hers from out of the estate and vests in her absolutely. to sell and convert into money all my estate, "I direct my executrix hereinafter named real, personal, and mixed, and for that purpose I do hereby give and grant to my said executrix full power and authority to make sale of all my real estate wherever situate at either public or private sale." Since the widow has elected to take under the will the provision for a conversion of the estate into money has all its original force as to her, and therefore we are dealing with an estate to be distributed under the will exclusively as money. As legatee the widow is entitled out of this estate to retain and receive $5,300, and no appraisement is required to establish or confirm her right thereto. She has sufficiently asserted her demand in the present proceeding; and, inasmuch as there is no statutory requirement of an appraisement in such cases, we cannot say that error was committed in the refusal of the appellant's petition for the appointment of appraisers. We therefore affirm the action of the court below in dismissing the petition, but we do so without prejudice to the right of appellant to enforce her claim by taking credit therefor in the settlement of her account as executrix and urging it upon final distribution. The decree is affirmed; the costs of the appeal to be paid out of the estate. (264 Pa. 124) COMMONWEALTH v. BEDNORCIKI. (Supreme Court of Pennsylvania. March 10, 1919.) and circumstances as will raise the offense to murder in the first degree, was correct. 6. CRIMINAL LAW 655(1)-REMARKS BY JUDGE REFERENCE TO GUILT. Where victim of a homicide was shot both through the head and body, his ears severed, one eye gouged out, his head and face frightfully mangled, his body dragged 40 yards down a bank, leaving a trail of blood, and there abandoned in the night, court's remark as to importance of case to commonwealth, and to dethat some one was guilty of a most heinous fendant, and that it would certainly appear crime, was not improper. In a trial for murder, defendant's denial of his guilt and his testimony that he and deceased 1. CRIMINAL LAW 404(3)-DEMONSTRATIVE came home together, and that he went to bed EVIDENCE-ADMISSIBILITY. In a trial for murder, where it was shown that a revolver of a caliber similar to that used in the commission of the crime was found in defendant's room with one part removed, it was proper to permit the use of a like weapon to demonstrate to the jury how the missing part could be removed. 2. HOMICIDE ~203(1)—Dying DeclabATIONS -ADMISSIBILITY. Declarations of deceased, made to his wife shortly before his death and while he was in a hospital, were inadmissible, without evidence that he realized that he was about to die and was without hope of recovery; the rule being the same as to whether such declarations were offered for or against the accused. 3. CRIMINAL LAW ~415(6)-EVIDENCE-DECLARATIONS EXCULPATING ACCUSED. Declarations of the person injured which tend to exculpate the accused, such as declarations expressing forgiveness or reluctance to prosecute, are not admissible, where not part of the res gestæ or dying declarations. 4. HOMICIDE 178 (3)—COMMISSION OF FENSE BY ANOTHER-EVIDENCE. Defendant's offer to prove that some four and remained until morning, corroborated by wife of deceased, who said that her husband left the house that night shortly after they came home, did not constitute an alibi, as crime might have been committed before defendant reached home, or after he left home in morning. 9. CRIMINAL LAW TION FOR JURY. 739 (2)—ALIBI-QUES A charge in a trial for murder that if unOF-der all the evidence, including evidence of good character, the jury was satisfied of defendant's guilt beyond a reasonable doubt they should convict, and that evidence of character was simply substantive evidence to be considered by the jury as such, was correct. 12. CRIMINAL LAW JURY-CHARGE. months before the homicide another man had threatened to fix the deceased and was seen in a place near defendant's farm on the Friday before the homicide was inadmissible, where there was nothing to connect him with the offense. 790 PROVINCE OF In a trial for murder, a charge that it was court's duty to declare the law to the jury was not error, as the best evidence the jurors have of the law is the instructions of the court. 13. CRIMINAL LAW 636(6)-PRESENCE OF DEFENDANT DURING ARGUMENT. A conviction of murder in the first degree would not be reversed, because the sheriff did (107 A.) ler, 258 Pa. 226, 101 Atl. 1006; Commonwealth v. Fry, 198 Pa. 379, 48 Atl. 257. [2, 3] Neither was there any error in refusing to permit the wife of the deceased to testify to an alleged conversation with him at the hospital shortly before his death. If admissible it was as a dying declaration, and it could not be received as such without evidence that the declarant realized he was about to die and was without hope of recovery, and as to that there was neither proof Appeal from Court of Oyer and Terminer; nor offer of proof. See Sullivan v. CommonBeaver County. Broneslaw Bednorciki was convicted of murder in the first decree, on which judgment of sentence was passed, and he appeals. Affirmed, and ordered that record be remitted to court below for purpose of execution. Argued before BROWN, C. J., and STEWART, MOSCHZISKER, WALLING, SIMPSON, JJ. and wealth, 93 Pa. 284. The rule is the same whether such declaration is offered for or against the accused. Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917. "Decla rations of the person injured which tend to exculpate accused, such as declarations expressing forgiveness or a reluctance to prosecute, are not admissible, where they are not part of res gestæ, nor dying declarations." 16 Corpus Juris, p. 641. Among the numerous cases there cited State v. Brady, 71 N. J. Clyde Holt, of Beaver, and M. F. Mecklem, Law, 360, 59 Atl. 6, says: for appellant. "In the prosecution of criminal offenses the Louis E. Graham, Dist. Atty., and Frank state does not assert a private right, or mainH. Laird, both of Beaver, for the Common-tain an individual interest, in any such sense wealth. as to be affected or bound by hearsay statements of him who has been the victim or ob ject of the criminal act. There is no such legal identity or privity between the person so situated and the state as to render admissions made by him competent evidence in behalf of the party charged with the commission of the crime." WALLING, J. This appeal by defendant is from the judgment on conviction of murder of the first degree. Charles Reink, the deceased, resided with his wife and children on a farm three miles from Beaver Falls, and Broneslaw Bednorciki, the defendant, an unmarried man, lived with them. On the [4] The defendant offered to prove that evening of September 8, 1917, the two men some four months prior to the homicide a took a horse and buggy and drove to Beaver man who resided in Pittsburgh had threatenFalls, where they did some shopping and ed to fix the deceased, and that such man started home together about 10 o'clock. The was in Beaver Falls on the Friday preceding next morning the deceased was found about the homicide. As there was nothing tending one-half mile from his home down a bank to connect him with the offense, the offer some 40 yards from the highway, so injured was properly rejected. Commonwealth v. by gunshot wounds, cuts, and bruises that he Schmous, 162 Pa. 326, 29 Atl. 644. died two days later. A neighbor testified The charge was full and accurate, and that about midnight, while walking along the the errors assigned to excerpts therefrom are road, he heard moans coming from where the without merit. The trial judge did not say deceased was afterward found, and at the that we are here concerned only with that same time saw the defendant in the road by sort of murder known as willful, deliberate, the horse and buggy, and the next morning, and premeditated, but that we are here conwhen discovered coming up through the bush-cerned only with that sort of murder in the es whence the groans were still emanating, first degree so known, which is entirely dif defendant explained their cause by saying ferent and accords with the language of Jushis friend had too much drink. There were tice Agnew in Commonwealth v. Drum, 58 many other circumstances tending to connect Pa. 9, 16. him with the crime, with which the wife of the deceased was also charged as an accessory. [5, 6] It was right to instruct the jury in effect that the presumption is that one who commits an illegal homicide is guilty of mur[1] A revolver, with caliber similar to that der in the second degree and that the burden used in the commission of the crime, was is upon the commonwealth to show such facts found concealed in defendant's room with one and circumstances as will raise the offense part removed; and there was no error in to first degree murder, accompanied by full permitting the use of a like weapon to dem- and explicit instructions as to all the eleonstrate to the jury how the missing part ments necessary to constitute that degree of can be removed. See Commonwealth v. Mil- crime. As the victim was shot both through For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |