grees of homicide. The trial judge refused | Pa. 15, 63 Atl. 195; Miller v. James Smith these points as being "immaterial under the Woolen Machinery Co., 220 Pa. 181, 69 Atl. general charge." At the outset of the charge 598; Hufnagle v. Delaware & Hudson Co., the jury were instructed they were not con- 227 Pa. 476, 76 Atl. 205, 40 L. R. A. (N. S.) cerned with the fact that defendant entered 982, 19 Ann. Cas. 850. See, also, Commonthe building and was there for an unlawful wealth v. McManus, 143 Pa. 64, 84, 85, 21 purpose, nor did the commonwealth base its Atl. 1018, 22 Atl. 761, 14 L. R. A. 89. prosecution upon the theory that the homicide was committed while defendant was attempting to commit burglary. In discussing the degree of murder the court read to the jury the portion of the statute defining murder of the first and second degree, and stated further, that

[2, 3] The fifth and sixth assignments of error are to the refusal of the court to withdraw a juror and continue the case, for the reason the district attorney asked defendant, on cross-examination, whether he was not a deserter from the United States army. Defendant answered in the affirmative. No ob

jection was raised at the time. Subsequent

"In this case you have only to deal with the murder committed by 'any other kind of will-ly his desertion from the army was again

ful, deliberate, and premeditated killing'; as, for example, it is not contended that this killing occurred by means of poison, or by means of lying in wait so that the portion of the statute which you have to apply to the evidence here is what we have indicated to you, namely, murder committed by any kind of willful, deliberate, and premeditated killing."

After this instruction the court further charged as to the elements necessary to constitute willful, deliberate, and premeditated murder within the meaning of the law. This instruction was followed by the affirmance of defendant's fifth point, to the effect that there could be no finding of murder of the first degree, unless the jury was convinced the killing was willful, deliberate, and premeditated, and, finally, at the close of the charge, in answer to an oral request that the jury be further instructed that the case did not come within the provisions of the statute relating to murder committed in the course of rape, robbery, arson, or burglary, the court stated:

"We do not think it necessary to repeat what we have said, namely, that the jury only has to deal with one kind of murder of the first degree, and do not see any necessity for repeating what we have already said."

All questions of murder committed during the perpetration of burglary were eliminated; consequently the court was not in error in stating the points were immaterial under the general charge. The trial judge in using the illustration referred to clearly showed it was not contended the killing occurred by means of poison or lying in wait, and did not intend to convey the impression that an inference might be drawn that the killing occurred during an attempt to commit burglary, nor could the jury have received such impression, as there was no attempt to refer to the latter clause of the statute relating not only to burglary, but also to arson, rape, and robbery. While the trial judge might have affirmed the point, his failure to do so, in view of the circumstances above referred to, did no harm, and is not reversible error.

referred to by defendant under examination by his counsel, and the fact brought out that a third person who had knowledge of the matter had been blackmailing defendant, and on the evening of the crime demanded $10 on threat of exposure if the demand was not complied with; the purpose of this being to disprove malice in committing the crime charged. On being asked by his counsel why he deserted the army, an objection that his action in so doing was immaterial was sustained by the court, and a motion to withdraw a juror based on the admission of the answer to the question the day before refused. The act of March 15, 1911 (P. L. 20) provides that:

"Hereafter any person charged with any crime, and called as a witness in his own behalf, shall not be asked, and, if asked, shall not be required to answer, any question tending to show that he has committed, or been charged with, or been convicted of any offense other than the one wherewith he shall then be charged, or tending to show that he has been of bad character or reputation."

The wording of this act is mandatory, and expressly forbids the asking of a question relating to the commission of another offense, the Legislature apparently having in mind that the mere asking of such question has a tendency to create in the minds of the jury an unfavorable impression of defendant, whether it be entirely without foundation in fact and asked from improper motives, or whether it be based upon fact and defendant is obliged to take advantage of his right to refuse to incriminate himself. To hold the clause "if asked shall not be required to answer," was intended to operate as an implied recognition of the right to ask the question, as argued by the district attorney, is to ignore entirely the express mandate of the earlier clause and render it ineffective, inasmuch as, if such had been the intention, it would have been sufficient to insert only the provision that a defendant in a criminal case shall not be required to answer any question tending to show the commission of another offense. Common

(107 A.)

can amount to an admission it must appear the conversation took place in his presence and hearing, the testimony shows defendant was within hearing, and, in fact he admitted this. It was for the jury, therefore, to determine from the circumstances whether defendant actually heard this particular part of the conversation. Commonwealth v. Detweiler, 229 Pa. 304, 78 Atl. 271.

Atl. 513. The word "offense," while some the shooting. Commonwealth v. Leskoski, 225 times used in various senses, generally im- Pa. 382, 74 Atl. 217; Commonwealth v. Balplies a crime or misdemeanor, infringing lon, 229 Pa. 323, 78 Atl. 831. While it must public as distinguished from mere private be conceded that before defendant's silence rights, and punishable under the criminal laws (Black's Law Dictionary, 847; 29 Cyc. 1351, 1353, and cases cited; Fetter v. Wilt et al., 46 Pa. 457, 460) though it may also include the violation of a penal statute for which the remedy is merely a civil suit to recover the penalty (Ott v. Jordan, 116 Pa. 218, 224, 9 Atl. 321). In construing the word in any specific instance regard must be had to the sense in which it was used. In the [8, 9] The eighth assignment is the refusal act of 1911, the purpose was to prevent the of the court to permit the jury, at the request practice, previously approved by this court of one of them, to have read a portion of the in Commonwealth v. Racco, 225 Pa. 113, 73 testimony of certain witnesses, and also to Atl. 1067, 133 Am. St. Rep. 872, of permit- view an exhibit (a photograph of the premting a defendant on trial for crime to be ises) used on the trial. The juror stated he asked whether he had not committed other had not heard certain testimony and had offenses. The purpose of the act was to not had an opportunity to examine the exavoid the reflection on defendant's character hibit when passed around at the trial, but which must necessarily result from the mere had been informed at the time by one of the asking of such questions; accordingly the ap- attorneys that the privilege of examining it parent intention of the Legislature was to later would be given him. The court declined use the word "offense" in the sense of a crim- to do as requested, but complied with an adinal act for which he would be liable to pros-ditional request to give further instructions ecution under the criminal law. Defendant on the question of reasonable doubt. was subject only to military rules and regulations, and, while the punishment for such act would, no doubt, depend to some extent upon whether a state of war existed at the time the desertion occurred, as well as the circumstances under which it took place, with this we are not concerned. In view of the fact that no objection was raised to the relevancy of defendant's desertion from the army at the time the question was asked, and for the further reason that defendant was afterwards interrogated by his counsel in regard to the matter, and not until the court refused to permit defendant to give his reason for deserting was there objection to the testimony, we are of opinion the objection came too late, and the court was right in its refusal to withdraw a juror as requested. Under these circumstances we deem it unnecessary to determine whether or not desertion from the army is an offense within the meaning of the act of 1911.

[4-7] The seventh assignment of error complains of the admission of testimony to the effect that the witness asked young Elford, at the time he was lying on the ground within a few feet of defendant, who shot him, to which Elford replied that defendant had shot him, the latter making no reply. The testimony thus offered was not competent as part of the res gestæ of the shooting, but a mere narrative of how it occurred, given in response to the question by the witness. The fact, however, that defendant was present and heard the conversation, and had an opportunity to reply, but made no denial of the charge, was evidence from which the jury might infer an admission that he did

The refusal to read the notes of testimony was proper under the rule stated in Commonwealth v. Ware, 137 Pa. 465, 20 Atl. 806, as to do so would give the testimony read undue prominence over other testimony, and thus work an injustice to one side or the other. In regard to the refusal to permit the jury to examine the exhibit, it does not appear why the exhibit had not been sent out with the jury or whether there had been a request made to that effect, or even that the exhibit had been formally offered in evidence. The matter was one within the discretion of the trial judge (Kittanning Insurance Co. v. O'Neill, 110 Pa. 548, 552, 1 Atl. 592; Cavanaugh v. Buehler, 120 Pa. 441, 458, 14 Atl. 391); and it does not appear that defendant was in any manner prejudiced by the absence of the exhibit from the jury room (Riddlesburg Iron & Coal Co. v. Rogers, 65 Pa. 416).

[10] Defendant also contends the verdicts in the two cases are inconsistent. The theory of the commonwealth was that the defendant fired two shots at the time he was inside the vestibule and just as the door was pushed open from the outside by the officers, and that immediately thereafter several shots were fired by the officers through the door. The contention of defendant is that only one shot was fired by him, and that without intention of injuring those on the outside of the door, and that the resulting injury was entirely accidental. However this may be, there were two fatal shots from a 38-caliber revolver, the size used by defendant. While it is difficult to discover a reasonable basis for distinction between the verdicts in the two cases, the degree of the crime in each

case was for the jury, and the fact that the conclusion differed is no reason for reversal. The judgment is affirmed and the record remitted for purpose of execution.

(264 Pa. 162)

PITTSBURGH & L. E. R. CO. v. SOUTH
SHORE R. CO.

(Supreme Court of Pennsylvania.

1919.)

work plaintiff might perform with its own equipment, or employ defendant railroad to do it. 6. CARRIERS 192-SWITCHING CHARGESSPECIAL CONTRACT-RECOVERY-ACTION OF PUBLIC SERVICE COMMISSION.

If a railroad, operating only as a switching facility at a plant, applies to state Public Service Commission to annul cancellation of an agreement by plaintiff, a line carrier, as to compensation and for the allowance of a fair compensation for services in intrastate comMarch 17, merce, after Public Service Act Pa. became effective, which application was pending at trial of plaintiff's action against switching company involving the charges, defendant could not recover as to claims disallowed by the Commission.

1. CARRIERS 30 INTERSTATE RATES
SCHEDULES.
Under the Interstate Commerce Act, as
amended June 29, 1906, § 2 (Comp. St. § 8569),
an interstate carrier can neither recover freight
charges nor pay the owner any allowance for
services in connection with transportation, ex-
cept as provided in schedules previously filed.
2. CARRIERS 30-INTERSTATE COMMERCE-
COMPENSATION FOR SWITCHING CARS
SCHEDULES.

A railroad company owning a short line operated as a facility to a large steel plant, and engaged in switching and placing cars received from plaintiff, an interstate carrier, could not recover compensation from plaintiff, where no schedule of rates had been filed by plaintiff, as provided by Interstate Commerce Act, as amended by Act of June 29, 1906, § 2 (Comp. St. § 8569).

-

3. COMMERCE 85 SWITCHING CARS AGREEMENT JURISDICTION OF INTERSTATE COMMERCE COMMISSION.

Where plaintiff railroad, engaged in interstate commerce, agreed with defendant, operating a plant facility, to pay for switching cars according to a schedule filed by plaintiff until adjustment by Interstate Commerce Commission and plaintiff canceled agreement before schedule was brought to Commission's attention, and schedule was for rates less than value of services, its cancellation did not oust jurisdic tion of Commission to determine validity of cancellation and allowances for past transactions. 4. CARRIERS 196-INTERSTATE COMMERCE COMMISSION RECOVERY OF SWITCHING CHARGES-SPECIAL CONTRACT.

Plaintiff's agreement with defendant railroad, as to compensation for switching of cars engaged in state traffic, that a dispute in rates should be adjusted by Interstate Commerce Commission, did not oust the jurisdiction of the state courts, and recovery might be had against plaintiff on a quantum meruit, as to such cars, where it had made payments at scheduled rates, which were less than actual cost of service. 5. CARRIERS 192-SWITCHING CHARGESSPECIAL AGREEMENT.

Where the exchange point was the terminus of a route, it was competent for plaintiff railroad and defendant, a plant facility, except as restrained by statute, to contract that line freight rate should include service of moving cars in and about the plant, as required, which

7. CARRIERS 196 - SWITCHING CARS - AcTION FOR CHARGES-SET-OFF.

In assumpsit by plaintiff railroad, defendant railroad, a plant facility, switching cars for plaintiff, might set off the difference, if any, between the actual cost of service rendered in state traffic, and amount received on account prior to Jan. 1, 1914, when Public Service Act Pa. became effective, but the allowance of a setoff for services thereafter rendered, and for services in interstate traffic would require a new trial.

WALLING, J. This appeal by plaintiff is from judgment entered for defendant on a balance of $65,000 certified by the jury in an action of assumpsit. Plaintiff's railroad extends from Pittsburgh to Youngstown, Ohio, and at the former city connects with various manufacturing establishments, including the Clinton Iron & Steel Company, of which defendant is a plant facility, ala railroad company. though chartered as Pittsburgh & L. E. R. R. Co. v. Clinton I. & S. Co., 258 Pa. 338, 101 Atl. 1048. Defendant had two engines and six freight cars, also divers sidings and switches located on the land of the steel company and extending to its different departments. Plaintiff's tracks connected with those of defendant at what is known as interchange track in Point Bridge yard, where defendant took the cars

(107 A.)

as [ June 29, 1906, c. 3591, 34 Stat. 584 [Comp. St. § 8569]) the interstate carrier must file with the commission and also publish schedules of all rates and tariffs including terminal charges, and the act also provides that

"No carrier

shall engage or participate in the transportation of passengers or property, * * unless the rates, fares, and charges upon which the same are transported by said carrier have been filed and published in accordance with the provisions of this act;

nor shall any carrier refund or remit in any manner or by any device any portion of extend to any shipper or person any privileges the rates, fares, and charges so specified, nor or facilities in the transportation of passengers or property, except such as are specified in such tariffs." U. S. Statutes at Large, 1905–07, p. 586.

And in effect (page 590) that only reasonable charges shall be allowed the owner of transported property for services rendered in connection therewith, which allowance in case of complaint shall be determined by the commission. In our opinion under that statute the carrier can neither recover

and distributed them about the plant needed; also gathered up cars for the outward shipment and delivered them to plaintiff at the same point; in other words, did a general switching business about the plant, including the transfer of cars coming in and going out. This embraced cars engaged in both interstate and state (intrastate) traffic. For many years, ending in 1907, plaintiff paid defendant a satisfactory price for such service; then a controversy arose with reference thereto, and, after much discussion and correspondence, it was agreed that defendant should be paid according to a certain schedule fixed by plaintiff until the matter was adjusted by the Interstate Commerce Commission, when the balance, if any, for the intervening time would be paid in full. That schedule fixed $2.25 per car for iron ore, $1.75 for coke, $1.60 for limestone, and a flat rate of $2 for each car handled for a subsidiary plant. In 1911 plaintiff, without notice to defendant, filed this schedule of rates with the commission; but the matter was never brought before that body for adjustment, and in May, 1914, plaintiff canceled the agreement and refused further payment for the terminal service, while per- freight charges, nor pay the owner any alforming it for other like plants. Shortly lowance for services in connection with such thereafter plaintiff brought this suit on an transportation, except as provided in schedadmitted claim of $3,392.94, and interest, for ules previously filed as above stated. Plainrepair work, to which defendant interposed tiff should have filed the tariff of rates, and a set-off of $93,542.30, claimed as the differ- would have been ordered to do so had apence between the cost of the terminal service plication been made to the commission; but, were filed, plaintiff and the amount received therefor since 1907. until such schedules This was based on a charge of $2.75 for could not lawfully pay for the switching each car handled. However, at the trial services in question, and, of course, could the evidence tended to prove that the actual not be compelled to do an unlawful act. See cost of such service was $2.46 per car, and Swing v. Munson, 191 Pa. 583, 43 Atl. 342, defendant reduced the claim to that amount. 58 L. R. A. 223, 71 Am. St. Rep. 772; JohnIts case depended in part on parol evidence, son v. Hulings, 103 Pa. 498, 49 Am. Rep. and the trial judge submitted to the jury. 131; Medoff v. Fisher et al., 257 Pa. 126, 101 inter alia, the question of the fair and Atl. 471; Interstate Commerce Commission reasonable cost of such service. v. Reichmann (C. C.) 145 Fed. 235. If the The jury found for the defendant a certified balance property owner can recover from the carrier of $65,000, on which judgment was entered. for yard service in switching or placing cars, without a schedule of rates therefor being promulgated, then discrimination is possible under the guise of claims for terminal services, and that is what the statute seeks to prevent.

That was a considerable reduction from the full amount of the set-off computed on the basis of $2.46 per car. A part of defendant's

claim as itemized was for the movement of cars engaged in interstate, and the balance for those engaged in state, commerce, but, as the case was tried and submitted to the jury, they were blended as one claim, and, so far as can be judged, the same amount was allowed for each car regardless of the kind of commerce in which it was engaged.

[1, 2] As to the interstate shipments the matter is controlled by federal statutes, which seek to protect the public by securing uniformity of rates and privileges. See Texas & Pac. Ry. v. Abilene Cotton Oil Co., 204 U. S. 426, 27 Sup. Ct. 350, 51 L. Ed. 553, 9 Ann. Cas. 1075. Under the Act of Congress to Regulate Commerce (Act Feb. 4, 1887, c. 104, 24 Stat. 379, as amended

[3] Then, again, by the agreement defendant was to be paid according to plaintiff's unfiled schedule until adjusted by the commission, and neither party asked for such adjustment. It was a matter within the jurisdiction of the commission and by the agreement made a condition precedent to any claim of defendant for additional compensation. Plaintiff's act in canceling the contract did not oust the jurisdiction of the commission, who might still determine the validity of such cancellation and also the question of allowances for past transactions. See Pennsylvania R. R. Co. v. Stineman Coal Min. Co., 242 U. S. 298, 37 Sup. Ct. 118, 61 L. Ed. 316. The rule under the

[6] Soon after plaintiff's cancellation of the contract as above stated, the defendant Plaintiff, in trespass for injury from fallapplied to the Penna. Public Service Com- ing into cellar stairway in a building sublet by mission, praying that such cancellation be defendant to others, who had ample opportunity,