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Oliver S. Schaeffer, for plaintiff. John M. Groff, for defendant. January 9, 1915. Opinion by LER, J.

prior to the execution upon which the land was sold, and that the same was claimed by said attaching creditors. The wheat has since been harvested and is claimed by the defendant as part of the real estate purchased by him at the sheriff's sale.

ion that the wheat was personal property, It is agreed that if we are of the opinand was bound by the domestic attachment we shall enter judgment for the plaintiff for $160. But, if, on the other hand, we are of the opinion that it passed to the purchaser of the real estate at sheriff's sale, that is, the defendant, then judgment is to be entered for the defend

ant.

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Grain growing on the ground is perHASS-sonal property, and is liable to be seized and sold as the personal property of the person in possession of it: Long v. Seavers, 103 Pa., 517; Bear v. Bitzer, 16 Pa., 175; Hershey v. Metzgar, 90 Pa., 217; Gordon v. Gordon, 45 Sup., 95. In Loose v. Scharff, 6 Sup., 153, Judge Endlich, upon whose opinion in the court below the case was affirmed, says, Where a man has himself sown his own land with his own grain, he owns the latter both as grain, which is personalty, and as part of the land into which he has put it, which is realty. While he remains in absolute control, i. e., in possession of the land with the grain in it, he is, of course, competent to treat the grain as part of the land or as something separate from it, i. e., either in connection with the land, as realty or apart from it, as personalty. Consequently his creditors have the same right. An execution and levy upon the grain as personalty, being, therefore, lawful, will effect a legal severance of the grain from the soil, and a sale of the former under such execution will invest the purchaser with the title to the grain.'

The facts necessary for a proper disposition of this case have been agreed upon in the form of a case stated, and are as follows: On April 18, 1914, a writ of domestic attachment was issued, out of this Court, against Hugh C. Brackbill, by virtue of which on the same day the sheriff levied upon his real estate, and at the same time, at the written request of B. Franklin Futer, the plaintiff in the domestic attachment, upon 45 acres of wheat, as personal property which was growing upon the real estate, then in said Brackbill's possession. In this written request the attaching creditor says that, acting for himself and on behalf of all the other creditors of H. C. Brackbill, he hereby elects to treat about 45 acres of growing wheat on the premises of the defendant as personal property, or apart and separate from the land of said farm. This wheat was subsequently appraised at $405, but it is agreed that it is now worth $160.

On May 5, 1914, a fi. fa. was issued by Abram L. Eshbach, to the use of the In Gordon v. Gordon, 45 Sup., 95, it is Union Trust Company, against Hugh C. decided that where growing grain has Brackbill on a bond accompanying a been levied upon by virtue of an execumortgage on said real estate for $6,000. tion such execution will maintain its The said real estate was bought at sher-priority of lien over one who obtained iff's sale by Abram L. Echbach, the de- possession of the land in an action of fendant in this case, for $5,000. Written ejectment. notice was given at the sale that the wheat, growing upon the premises, was levied upon in the domestic attachment proceedings against Hugh C. Brackbill,

It was within the power of Hugh C. Brackbill to treat the growing grain on his farm as personal property, and his creditors had the same right. In direct

ing the sheriff to levy upon the grain as personalty the attaching creditor for himself and others exercised that right. It amounted to a severance of the grain from the land. The levy by the sheriff bound it just as a levy by virtue of an execution would have done. This lien upon the grain was prior to that of the fi. fa. issued by the Union Trust Company, so that a purchaser at the sale on that execution could not acquire title to it even though sold as personalty. Much less could he acquire title to it as part of the real estate, when there was a constructive severance of it from the real estate by the levy on the domestic attachment at the direction of the creditors of the owner.

The cases cited by the defendant do not apply because they are cases where growing crops were not in the possession of the landlord as whose they were sold, but were in the possession of the tenant. In such cases growing crops are not personalty.

We are of the opinion that the plaintiffs are entitled to the grain in question, and enter judgment for them for the sum of $160.

Belmont Stamping & Enameling Co.
v. Edelson.

Appeal from magistrate-Time of filing. Where an appellant from the judgment of a magistrate allows the first day of the next term to pass without filing his appeal, and, claiming that he did not receive the transcript in time to so file it, takes out and enters a

second appeal within twenty days from judg

ment, his appeal will be stricken off.

If, by reason of the fault of the magistrate, he was prevented from entering the first appeal in proper time, he might have secured leave to enter it nunc pro tunc. Because he did not do this, the magistrate could not grant him a second appeal.

Rule to strike off appeal. C. P. of Lancaster County. March Term, 1914, No. 38.

W. F. Beyer, for rule.
B. F. Davis, contra.

January 9, 1915. Opinion by LANDIS, P. J.

On January 28, 1914, judgment was entered against the defendant before Alderman W. S. Doebler for the sum of $60.53. On February 12, 1914, he

appealed and obtained a transcript and appeal from the alderman. The Act of March 20, 1810, sec. 4, P. L. 208, provides that, to be effectual, the party appellant shall file the transcript of the justice in the prothonotary's office "on or before the first day of the next term of the Court of Common Pleas of the proper county." It appears that the first day of the next term, after the appeal was taken, was February 16, 1914. The defendant was, therefore, bound to file his appeal on or before that date. He. however, did not so file it. On February 17, 1914, apparently finding that he was too late to enter the same, he again went before the alderman and took out a second appeal. He then on the same day filed both appeals. The plaintiff, therefore, claims that the appeal was not filed in time, and now asks us to strike it off. The defendant, in his answer to the rule, alleged that he did not receive the transcript from the alderman until 9 p. m. of February 16, 1914, and that, when he brought it to his counsel, it was too late to file it. This claim we, however, cannot consider; for if, by reason of the misconduct or fault of the alderman, he was prevented from entering the appeal in proper time, he could have, on application to the Court, secured leave to enter it nunc pro tunc. Ought, then, the appeal, under the admitted facts, to be stricken off?

The defendant surely could not have two appeals. His first appeal took the case out of the hands of the alderman,

and, under the Act, to make it effectual, he was bound to enter it in the statutory time. Because he did not do this, the alderman could not grant him a second appeal, even though twenty days had not elapsed from the date of the rendition of the judgment when the second appeal rather anomalous course of filing both was taken. His counsel has pursued the appeals, apparently thinking that, if the one did not hit, the other might. In our judgment, he had no right to do this. Even the withdrawal of the first appeal at this time would not, we think, avail

him.

We are of the opinion that, as the appeal first taken was filed too late, this rule should be made absolute.

Rule absolute.

February I. 1915. Opinion by

LANCASTER LAW REVIEW. LANDIS, P. J.

Eighteen reasons have been filed with

VOL. XXXII.] FRIDAY, MAR. 12, 1915. [No. 19 in the time prescribed by the Rules of

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Where through error an indictment for murder alleges the crime to have been committed on a date not yet arrived and the defendant, without demurrer or motion to quash goes to trial the indictment may be amended after

verdict to conform to the facts.

In a murder trial the matter of how many new jurors to summon by special venire is for the determination of the trial judge.

Where a general affirmance of a point might be misconstrued by the jury it is proper for the court to refuse or modify it. The defendant's points may be answered in the general charge.

While the testimony of an accomplice should be received with caution, it is for the jury to decide what credit to give it, though the court should point out the danger of convicting on such evidence if uncorroborated.

It is not error to fail to answer a point

which assumed as true facts in dispute.

In a murder trial it is not error to overrule the defendant's challenge to certain jurors who had served on the jury which had convicted an accomplice of the defendant but who answered all questions correctly on voir dire, declaring that they had formed no opinion of the guilt or innocence of the defendant and could be impartial.

On such trial it is not error for the Court to refuse to permit an attorney for the defendant to read in his address to the jury notes taken by his stenographer at the preliminary hearing.

Indictment for murder. Rule for a new trial. O. and T. of Lancaster Co., April Term 1914, No. 54.

the Court, which the defendant urges are proper causes upon which to base a new trial in this case. I will pass upon them according to their orderly grouping, and some of them can be disposed of without much discussion. Thus, reasons I and 2 are general in character, that is, that the verdict was against the law and the evidence. Except in one respect only, which I will first consider, they require, I think, no comment. Reasons 9, 10, 11,

12 and 17 relate to alleged errors in amending the indictment during the progress of the trial. As this same question has been fully heard and decided by the Supreme Court in Commonwealth v. Rocco Tassone,, 246 Pa., 543 (Advance Reports), it is not necessary for me to dwell upon it here. The thirteenth reason required depositions to support it, and, as they were not taken, it necessarily falls. These reasons are, therefore, practically eliminated from further consideration, except in one respect, and I now overrule them.

Upon the argument for a new trial, it was suggested that, under the law, the special venires should have contained the names of at least thirty-six jurors. No filed; but, even if it was alleged, I do such specific reason is set forth in those not think the objection calls for an extended answer. In the first place, it is provided, by the Act of March 21, 1905, P. L. 47, that the several Courts of the Commonwealth "shall have power to determine from time to time the number of jurors to be summoned and returned

to

serve in such Courts respectively. Former Acts are not, therefore, now in force. But, in addition, it was decided, in Commonwealth . Payne, 205 Pa.. 101, that, in a murder trial, it is not error to call, one at a time, jurors summoned as tales de circumstantibus. Justice Mitchell, delivering the opinion

Mr.

B. F. Davis and John E. Malone, for of the Court, said: "The venire for talesrule.

men always implies that less than a full panel are required: Williams v. Com., John M. Groff. District Attorney, 91 Pa., 493; and how many it will prob

contra.

ably be necessary to summon in order

to complete the jury depends so entirely on the circumstances of each case, that the whole matter must be left to the determination of the judge at the time." See, also, Commonwealth v. Nye, 240 Pa., 359; Commonwealth v. Chiemilewski, 243 Pa., 171.

Rocco Tassone was indicted and convicted of having, on October 31, 1913, shot and killed one, Toney Collata. He was tried in this Court and convicted of murder in the first degree. The indictment in this case charged Augustine Vitale with the same offense as a principal, although it was proven, upon the trial, that he was an accessory before the fact, abetting, advising and counseling Tassone in the commission of the crime. Vitale was also convicted of murder in the first degree. The issue involved in the trial was, as the record shows, earnestly contested, and the defendant claims that the Court committed error prejudicial to his interests, and should, therefore, grant him another hearing.

Upon the trial, twenty points were submitted by the defendant for answer. Twelve of them were affirmed, two were refused, three were answered in the general charge, and three were modified and explained. At this time, complaint is made of the refusal or modification of the third, fourth, fifth, sixth, fourteenth and nineteenth points, covered respectively by reasons 3, 4, 5, 6, 7 and 8.

The third point was submitted in these words: "Deliberately using words or signs or doing anything which actually has the effect to encourage another in the commission of a felony, or to procure him to commit it, is not alone sufficient to charge one as accessory. The jury must be satisfied from the evidence that he intended his words or acts to have the effect, or be taken in the sense that would tend to bring about the commission ef the crime." I answered the point as follows: "We answer this point by saying that, where one deliberately uses words or signs, or does anything which actually has the effect to encourage another to commit a felony, it can be fairly found by the jury that he intended what his words, signs or acts purport, and the jury, if they so believe, can convict such

person as a party to the crime. Of course, if they find that such words, signs or acts were not so intended, they would not convict such person." In my judgment, a general affirmance of the point might have been misconstrued by the jury, and, if there was a likelihood of such misconception, the point was, under the circumstances, properly explained. Carefully considering the answer, I do not think that the defendant has any right to complain of it. The law upon this subject is declared in Commonwealth v. McManus, 143 Pa., 64. There the defense submitted the following point: "Before the jury in this case can convict of murder in the first degree, they must find that the prisoner acted upon as clear and premeditated a motive as he who kills by poison or by lying in wait." The point was denied by the Court below. without being read, and it was hell, in the Supreme Court, that there was no error committed, as the affirmance of the point might have misled the jury.

The same argument may be applied to the seventh reason, which involved the answer to defendant's fourteenth point. That point read: "No acts of the defendant committed nor declarations made after the injury which caused the decedent's death can render him liable to conviction." It must be borne in mind that there was testimony before the jury that the defendant, after the killing, had given Toney Mastercerne money to give to Rocco, and also instructed him to say to Rocco that he should get out of the state. In addition, Augustine Vitale left his family and the City of Lancaster on November 7 or 8, went to Philadelphia, Baltimore and New York, and sailed from the latter place on the 5th of December. He was arrested at Port Antonio, Jamaica, where he was traveling under the name of J. Speneo. An affirmance of this point would have naturally led the jury to believe that the Court had withdrawn from their consideration everything that happened subsequently to the killing. This would surely have misled the jury. I, therefore, answered the point as follows: "We answer this point by saying that acts and declarations committed or made by the defendant after the injury

see.

which caused the decedent's death are evidence as to the defendant's precedent guilt. Thus, if the jury believe that the defendant offered money to Mastercerne to give to Rocco to leave the state, and that the defendant fled on account of the crime, then they may consider these acts with all the other proven facts in the case, in order to solve the question of the defendant's guilt." That there was any error in these instructions, I cannot The case of Weston v. Commonwealth, III Pa., 251, where a similar point was submitted and affirmed in the Court below, is not authority for such a proposition. There, the answer of the Court was: "Affirmed, but you can use such acts and declarations, if they will assist you in determining any questions involved in your considerations." The words added seem to me to negative, instead of to affirm, the point, and I think properly so. The question involved in it was not discussed upon appeal. In Commonwealth v. Strail, 220 Pa., 483, it was held that, "where, in a murder trial, points are presented involving circumstantial reference to the particular case, the Court commits no error in affirming the points with qualifications in reference to matters improperly excluded, or to matters not specified, but which should have been included." In Commonwealth v. Calhoun, 238 Pa., 474, it was held that "a Trial Court is not obliged to charge a point which suggests theories not reasonably sustainable by the evidence." In Commonwealth v. McMurray, 198 Pa., 51, Mr. Justice Mitchell, in delivering the opinion of the Court, said: "A judge is not bound to charge the jury in the exact language of the point, but may choose his own words, and if the point affirmed without qualification would be likely to give the jury an erroneous impression, it is his duty to add such explanations or qualifications as will correct such tendency. 'Points, even though taken verbatim from the decisions of this Court, cannot always be properly answered by a simple affirmation. However accurately and carefully stated in their connection and applied to the case under discussion, they may, when taken as detached sentences and

applied to different circumstances, convey erroneous ideas, especially to learned jurors.' See, also, Commonwealth v. Danz, 211 Pa., 507. In the recent case of Commonwealth v. De Felippis, 245 Pa., 612, where it appeared that the deceased had been shot by the prisoner, and thereafter the prisoner fled and placed himself in hiding, it was held that the Trial Judge made no error in charging the jury that "flight or concealment . . . is only a circumstance for your consideration, together with all other circumstances, in determining the degree of guilt, if any."

The fourth, sixth and eighth reasons, which complain of the answers to the fourth, sixth and nineteenth points, all relate to the effect of the testimony of an accomplice. The accomplice. These points were as follows: "4. An accomplice occupies a position of disrepute, and from the very character of such a witness, the law and the Courts look with great caution upon their testimony; whilst their credibility. is for the jury, yet taking into account their disreputable character and position, it would be very dangerous and unsafe for the jury to convict the prisoner upon such testimony. 6. The corroborative evidence must, of itself, and without the aid of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the offense; and independent evidence merely consistent with the main story is not sufficient corroboration, if it requires any part of the accomplices' testimony to make it tend to connect it with the crime. 19. The degree of credit that should be given to an accomplice is a matter exclusively within the province of the jury. It is competent for them to convict on his uncorroborated testimony, but the source of such evidence is so corrupt that it is deemed unsafe to rely upon it alone; and hence it is the practice of Courts to admonish the jury of the 'anger and advise against a conviction on the testimony of an accomplice, unless he is corroborated to some extent, especially as to the person of the party he accuses." Instead of repeating the law each time, the jury were referred to the general charge and told that the

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