The oldest law monthly in the United States, the well known Green Bag, of Boston, has been acquired by the Central Law Journal Company, from and after the beginning of the year 1915. By arrangements, now fully completed, the Central Law Journal secures the benefit of the good will and the subscription list of the Green Bag and will fulfill its subscription contracts from this date.

The Green Bag is the elder brother of all the monthly law magazines in this country, having been established twenty-seven years ago. The Central Law Journal is older than this, enjoying the distinction of being the oldest law weekly of general circulation in the United States. The joining of hands of these two well known periodicals will give added strength to the Central Law Journal, and should place it clearly in the forefront of the independent legal press.

Our subscription list is now larger than it has been for years, and the future is bright for 1915. We purpose adding many of the entertaining fea

tures to the Central Law Journal

which have been enjoyer for enjoyed for so long a time by the readers of. the Green Bag. This, however, will not involve any sacrifice of the valuable practical features which have made the Central Law Journal so popular with active practitioners at the bar.

Our profession demands, we think, a law weekly rather than a monthly or a quarterly. Such is the experience both in England and in this country. The news of important decisions and of important professional movements must be fresh and crisp each week. This has always been our policy and it will be continued during the coming years.

We are gratified to be able to announce that the former editor of the Green Bag, Mr. Arthur W. Spencer, of Brookline, Mass., has been added to our staff of editors. Its readers, therefore, will not be wholly deprived of Mr. Spencer's very interesting and scholarly contributions to current legal literature.

We extend a very hearty and sincere welcome to the new subscribers this day added to our mail list, and express the hope that we may be able to interest and instruct them at least fully as well as did the Green Bag, our erstwhile and much esteemed contempor

rary.

FLIGHT BY A THIRD PERSON PRESENT AT A HOMICIDE AS EVIDENCE IN BEHALF OF AN ACCUSED.

The principle declared by a majority of the Federal Supreme Court in Donnelly v.

S, 228 U. S. 243, treated in 76 Cent. L. J. 369, that a confession by a third person, that he had committed the murder charged against an accused on trial, was inadmissible under the hearsay rule, has been applied by Iowa Supreme Court to a case of flight of a third person from the scene of crime. State v. Pierrot, 149 N. W. 446.

The Iowa court, in making this ruling, says: "It is said that the court should have instructed on the theory that the flight of Louie Tomsic should be considered as substantive testimony bearing upon the defendant's guilt. It is now very well settled that confessions of a stranger, admitting the commission of a crime, are not substantive testimony which may be used by another who is charged with the offense. Donnelly v. U. S., 228 U. S. 243, Am. Cas. 1913E, 710, and the many cases therein cited. *** Flight, if proved, is nothing more than a confession by another, and the defendant was not entitled to the use of this testimony in his own defense."

Our former discussion was largely an agreement with the views expressed in the dissenting opinion by Mr. Justice Holmes, and even if the law as expressed by the majority in the Donnelly case be, as the Iowa case says, "well-settled," it seems to us it should not be extended to such a case as was before the Iowa court, though generally, it may be true that "flight, if proved, is nothing more than confession by another."

First, it appears from this case that the evidence showed a fight which resulted in an altercation with the fugitive. This fight took place about daybreak and deceased was first struck on the head by rocks thrown by the fugitive and a few moments afterwards he was struck a heavy blow by

defendant, which the state claims fractured the skull. At all events, before this blow was given, deceased's head and face were bloody and he fell on being struck by a board or stick in the hands of defendant. This board or stick was not produced on the trial, having been lost or burned. Defendant's witnesses say it was a thin, pine stick. Tomsic, who struck deceased with rocks, fled the country at once.

Under these circumstances it seems to us that this flight was important evidence as aiding in interpretation of the res gestae of the difficulty, its importance to be determined by the jury. It rather resembled an admission made dum fervet opus by an actor in an affray than as a confession of guilt.

But, if we take it as a confession of guilt, it is made so immediately in connection with the occurrence of the killing that exclusion makes a more virile application of the hearsay rule than was applied in the Donnelly case. And it had about it a spontaneity, which should have let it in though it might not strictly be regarded as res gestae. It was a character of evidence not barred out as a studied self-serving act.

Secondly, the rule applied to flight, is that, while it is admissible as presumptive evidence of guilt, requiring explanation by an accused, yet it presupposes the presence of the accused at or near the scene of the crime before he flees. It is a part of the state's case to prove this. This is not so as to a confession, though its falsity might be shown by the state proving an alibi, if desired to rebut it. Therefore, a confession by a third person alleging not only his commission of an offense, but the identical one charged and his presence there, seems very different from a showing that another who might have committed the offense fled from the scene of the crime.

If the testimony showed him present but his movements are all accounted for as not being connected with the commission of an offense, the presumption arising out of

flight would be minimized or wholly dissipated. If the flight were immediate or after it was shown that evidence was discovered which tended to connect the fugi, tive with the crime, flight tends to weaken, at least, the motive ascribed to another in the commission.

Suppose, again, there were a question of identifying the slayer, would not this illustrate the issue? Or, as in the instant case, of attributing to one of two blows, a mortal effect, would not the flight of the deliverer of one of the blows, help the jury to say whether the instrument used by him was calculated to inflict a mortal wound?

We might go on speculating as to this in various ways, and finally we would get back to the question whether flight may have any bearing on the circumstances in the commission of a crime independently of its being in the nature of a confession by a third person.

To make a confession of crime imparts thorough deliberation; to resort to flight may be different. One is to invoke consequences upon remorse; the other is to escape such consequences. One is to say something in the interest of another; the other is to do something in one's own interest. There are many imaginable and different standpoints from which the two things may be regarded, but principally one is a mental, and the other a physical, fact. At all events, however, the hearsay rule, which excludes the confession of a stranger so as to exonerate an accused, has various exceptions, and one more ought to be, where there is difficulty in explanation of the res gestae in proof of a crime.

Finally it is to be said that the rule in the Donnelly case applies to extra judicial confessions, and it is rather difficult to think of an extrajudicial flight. There is flight which relates to a fleeing from the scene of a crime that is charged or it is no flight that is in any way to be regarded. When we say that an extrajudicial confession is to be rejected, this implies that an

admission testified to in a case is competent. But flight as a fact may be testified to by any witness.

NOTES OF IMPORTANT DECISIONS

CONTRACT PAROL EVIDENCE ΤΟ SHOW CONDITIONAL DELIVERY OF WRITTEN ORDER.-We are familiar with the rule be that a note, bond, or deed may shown by parol evidence to have been delivered upon condition that it shall not go into effect until the performance or occurrence of some act or event. To apply this principle to an unconditional written order for goods to be presently delivered, or in due course, dependent on obtaining the approval of another member of a partnership, no time being specified for consent to be manifested, appears to us to be straining the principle. This, however, was held by Mississippi Supreme Court in Ohio Pottery & Glass Co. v. Pickle & Son, 66 So. 321.

The facts of this case show that a traveling salesman applied to the junior member of a firm for an order for goods and obtained it "upon the understanding and agreement that if his father was not willing for him to make the purchase then the order could be countermanded."

The statement by the court further shows: "That his father would not approve the order and notice thereof was given to the appellant, None of the goods were accepted by the appellees."

Nowhere in the opinion of the court does it appear when the notice spoken of was given, whether before shipment or arrival of the goods or afterwards.

In this case it certainly was obligatory on the firm promptly to renounce the order. It had no right to await the incurring by the seller of expense of shipment, and there seemed nothing in the understanding that the seller should delay shipment. The principle announced was sound, but whether its application was cut out by the facts is not shown.

DAMAGES-NON-ANTICIPATION OF INJURY TO LICENSEE SHOWN BY NEGATIVE TESTIMONY.-The case of Louisville & N. R. Co. v. Lawson, 170 S. W. 198, decided by Kentucky Court of Appeals, shows a reversal of a judgment where a licensee standing near a rail

road track was drawn, by motion of a passing train, under the train and the toe on the left foot and his right foot and ankle crushed.

The court said the question presented was: "Does a railroad company owe to a licensee walking near its tracks and who knows of the approach of the train, the duty of slacking the speed of its trains in order to prevent him from being sucked under the train?"

By way of showing that the suction could not be reasonably anticipated, the court said:

Not

"While it may be true that evidence of witnesses that they had never heard of a particular accident does not show that such an accident had never happened, or that it should not have been anticipated (Trinity & B. V. Ry. v. McDonald, Tex. Civ. App., 160 S. W., 984), yet this rule, we take it, is not without qualification. Every day hundreds of trains are run at the rate of 25 or 30 miles an hour. These trains pass hundreds and, perhaps, thousands of persons standing within five or six feet of the track. If the suction from trains were great enough to draw persons under the trains there would have been innumerable accidents of the kind under consideration. withstanding this fact, several railroad men, who certainly had an opportunity to speak from long experience, say that they never heard of a live object, capable of resisting, being sucked under a train. Not only so, but the only two cases that have ever come before the court, so far as we know, are the case under consideration, and the case of Graney et ux. v. St. Louis, I. M. & S. Ry. (167 Mo., 666, 57 S. W., 276, 50 L. R. A., 153), where a recovery was denied on the ground that the accident, even if it took place as claimed by plaintiff, was not one that might have been reasonably anticipated. Where in a case like this it is contended that the accident was the result of the negligence of the railroad company, combined with the operation of a natural law, and where not only the character of the accident, but the conditions attending the everyday operation of trains, are such that the accident would have frequently happened if the natural laws were such as to make it possible, we conclude that evidence to the effect that no such accident had ever happened has a strong and important bearing on the question whether or not it should have been reasonably anticipated."

It has been decided quite often by courts that testimony opposed to physical facts, of which the court may take judicial notice, may, though uncontradicted otherwise, be disregarded by courts or juries. In this case, however, merely negative testimony, so far as anticipa

tion of a natural law producing its consequences is concerned, is to have effect.

The court may be right in its conclusion, but we greatly doubt whether the negative testiJudicial mony ought to have been received. cognizance attaching to the subject at all should have been sufficient for its complete determination. A better ground to have rested the conclusion on would have been that it was not apparent that suction would operate to the extent necessary to draw a human being situated as plaintiff was under the train, nor was it apparent to the engineer what resistance or the strength thereof would be made by the licensee. There were more factors in the proposition than the natural law of suction itself.

APPEAL AND ERROR-REVERSAL FROM THE AGGREGATE OF ERROR IN DIFFERENT PROPOSITIONS.-In 79 Cent. L. J. 3, we treated the question of "Disposition of a cause without any specific ruling" by a majority of the court, therein contending that if a majority of the court agreed on no one ruling for reversal, a cause ought to be affirmed, the other rule confusing all precedent about what a case decides and appellee even sustaining the court below as to each and every assignment of error.

In Price v. State, 170 S. W. 241, decided by Arkansas Supreme Court, the opinion for reversal is written by the chief justice, who thought the case should be affirmed.

In it he states the views of three of the five members, one of the other two agreeing with the writer of the opinion. In it he says, in conclusion, that:

"The views here expressed concerning the several propositions involved in this appeal are those of a majority of the judges, and if these statements of the law upon each of the assignments of error were shared by the same judges, constituting a majority on the separate questions involved, an affirmance of the judgment would necessarily result; but such is not the case, for some of the judges agree upon some of the conclusions here stated and disagree as to others, which brings about a result that while a majority of the judges agree upon the propositions of law which would affirm the case, a majority of them for different reasons vote to reverse it. Two of the judges (Wood and Hart, JJ.) are of the opinion that the court erred in giving instruction No. 10, and that the judgment should be reversed and the cause remanded for a new trial. Mr. Justice Hart is also of the opinion that the court erred in refusing to give instruction No. 16, requested by defendant. Two of the judges

(Wood and Smith, JJ.) think that the court erred in refusing to give the defendant's requested instruction on the subject of reasonable doubt and that this constituted error which calls for a reversal of the judgment for murder in the second degree and a reduction of the degree of the offense to manslaughter, as this instruction relates only to the degrees of homicide and not to the question of guilt or innocence. Mr. Justice Kirby and the writer are of the opinion that there is no error in the record and that the judgment should be affirmed. While the law of the case is settled by the concurring views of the judges, as expressed in this opinion, the only net result which can be extracted from the divergent votes of the judges upon the question of affirmance or reversal is that the judgment for murder in the second degree must be reversed, but that the cause should not be remanded for a new trial if the attorney-general elects to let the judgment stand as to the degree of manslaughter. This condition results from the fact that while three of the judges vote to reverse the judgment for murder in the second degree, only two of them vote to remand the cause for a new trial, and the vote of the other one, together with the two judges who think the whole judgment should be affirmed, prevents a remanding for a new trial if the state is willing to let the conviction for the crime of manslaughter stand (Pollock v. Hennicke Co., 64 Ark. 180, 46 S. W., 185; St. L., I. M. & S. Ry. v. Adams, 74 Ark., 326, 85 S. W., 768, 86 S. W., 287, 109 Am. St. Rep., 85; Carson v. Ft. Smith Light & Traction Co., 108 Ark., 452, 158 S. W., 129).

The judgment of the circuit court is therefore reversed and set aside in so far as it adjudges the defendant guilty of murder in the second degree, and the cause will be remanded for a new trial unless the attorney-general elects within fifteen days to stand upon a conviction of voluntary manslaughter, in which case the cause will be remanded, with directions to the circuit court to fix the punis ment and sentence the defendant for the crime of manslaughter."

It seem to us that here is almost an admission that this kind of reversal takes away a right without due process of law, that is to say, that though no error on any one proposition is adjudged by a majority, there is effect in taking the aggregate of error as to distinct propositions, but not as if a majority sustained any one assignment. The remarks above seem pertinent also to a judge who merely "concurs in the result."

THE JOKER IN THE FEDERAL EMPLOYERS' LIABILITY ACT.

"Can such things be,

And overcome us like a summer's cloud,
Without our special wonder?"

On April 22, 1908, President Roosevelt gave the executive approval to the act of Congress which is popularly known as the Federal Employers' Liability Act. This measure was generally hailed as the culmination of a national movement, the object of which was to take the edge off the sharper features of the common law, as its principles operate to restrict the liability of the railroad companies for injuries sustained by their employes in the course of the master's service.

The act, in its original form, became a law on June 11, 1906. The act of 1908, by which it was in effect amended, was the response of Congress to the case of Howard v. Illinois, etc. R. Co.1 The Supreme Court of the United States in this case declared the terms of the act too comprehensive, and the act unconstitutional in that according to the provisions of the bill in its original form, it affected railroad companies in respect to their relations as interstate and to their relations as intrastate carriers, as well. It was in this particular held too broad.

The act of April 22, 1908, therefore, was framed to meet this objection. In the case of Mondou v. N. Y. etc. R. Co.,2 the constitutionality of the latter act was affirmed.

On April 5, 1910, the act of April 22, 1908, was amended in certain particulars, which are unimportant for the purposes of this discussion.

The act of Congress is by reason of the supremacy of the Federal Congress within its constituted province paramount to state legislation upon the subject. Mon

(1) 207 U. S. 462, p. 498, 52 L. ed. 309. (2) 223 U. S. 1, 56 L. ed. 327.