attention of the court is not called and request made is not error. "The law of Pennsylvania as to the weight of good character is more favorable to the accused than the common law, or the law of most other states, but it has not gone so far as to give it any special prominence or superiority to the other facts in evidence in the case." Commonwealth v. Beingo, 217 Pa. 60, 66 Atl. 153. In the present case the good character of the prisoner was a very subordinate fact, and the learned judge below in refusing a new trial was justified in saying, "The evidence was so meager that the mention of it would have but emphasized its meagerness."

Judgment affirmed, and record remitted for purpose of execution.

1. CRIMINAL LAW (§ 773*)—INSANITY AS A DEFENSE-INSTRUCTIONS.

An instruction, in a trial for murder, that if the prisoner, though he labored under partial insanity or delusion, understood the nature of his act, and knew it was wrong, and had mental power sufficient to apply that knowledge to his own case, and knew that if he did the act, he would do wrong and receive punishment, and that, if the act was contrary to the dictates of justice and right and injurious to others, he would be responsible, and that the law is that, whether insanity be general or partial, the degree must be so great as to have taken from accused the freedom of moral action, was proper.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 1825; Dec. Dig. § 773.*] 2. CRIMINAL LAW (§ 834*)—INSTRUCTIONS.

A judge is not bound to adopt the language of points, but may choose his own form of expression, and if it expresses the law fully and accurately, nothing further is necessary.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 2014; Dec. Dig. § 834.*]

Appeal from Court of Oyer and Terminer, Chester County.'

Irwin A. Lewis was convicted of murder in the first degree, and appeals. Affirmed. Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.'

Wm. S. Windle and Thomas W. Pierce, for appellant. Robert S. Gawthrop, for the Commonwealth.

PER CURIAM. The defense being insanity, the learned judge below charged the jury that: "If the prisoner, although he labors under partial insanity, hallucination, or delusion, did understand the nature and character of his act, had a knowledge that it was wrong and criminal, and mental power sufficient to apply that knowledge to his own case, and he knew if he did the act he would do wrong and would receive punishment, and if, further, he had sufficient power of memory to recall the relation in which

he stood to others, and others stood to him, and that the act in question was contrary to the plain dictates of justice and right, injurious to others, and in violation of the dictates of duty, he would be responsible; or, putting it in briefer shape, the law is that whether the insanity be general or partial the degree of it must be so great as to have controlled the will of its subject, and to have taken from him the freedom of moral action. These are the guides as to the insanity that will excuse the commission of the crime, if you find that such a crime has been committed." This is the language of Ludlow, P. J., in Sayres v. Commonwealth, affirmed in 88 Pa. 291, 299, and repeatedly cited by this court as a correct and adequate definition of the law of insanity in trials for murder. Com. v. Wireback, 190 Pa. 138, 42 Atl. 542, 70 Am. St. Rep. 625; Com. v. Barner, 199 Pa. 335, 49 Atl. 60. Counsel for the prisoner presented five points for charge on the subject of insanity, dealing with more detailed reference to the prisoner's actions and the rule of responsibility in regard to them. All of them were declined by the judge, on the ground that they were sufficiently covered by the general charge above quoted. Notwithstanding the earnest argument of counsel, and our careful examination of these points, we have not found, in any or all of them, any substantial element or principle of law not exactly covered and answered in the passage quoted. They are only variations and expansions of phraseology.

It has been repeatedly held that the judge is not bound to adopt the language of points, but may choose his own form of expression; and, if it expresses the law fully, and with substantial accuracy, nothing further is necessary.

The judge's charge is not made to a technical and critical audience, scanning closely every phrase capable of a construction which would be error, but is addressed to a jury of plain men of various ages, education, intelligence, and experience, and is intended to inform them as to the law, and to guide them in its application to the facts as they may find them from the evidence. Having given them one plain, full, and adequate statement of the law, it need not do more. Judgment affirmed, and record remitted for purpose of execution.

(222 Pa. 307)

In re HENDERSON. (Supreme Court of Pennsylvania. Oct. 12, 1908.) ELECTIONS (§ 126*) - PRIMARIES - BALLOTNOMINATIONS.

Under Primary Election Law, Feb. 17, 1906 (P. L. 37, §. 4), prescribing the form of a ballot and providing for the making of a cross in the square to the right of each candidate for whom the voter wishes to vote, where no name of a candidate of one party is printed on the

primary ballot, and a number of electors write in the blank space on the ballot the name of the candidate of the other party, and no other person is voted for, such candidate is entitled to have his name printed on the ballot as the candidate of such party.

[Ed. Note. For other cases, see Elections, Cent. Dig. § 118; Dec. Dig. § 126.*]

Appeal from Court of Common Pleas, Armstrong County.

From an order dismissing objections to nomination of Harry B. Henderson, Harry C. Golden appeals. Affirmed.

The following is the opinion of Patton, P. J., of the court below:

"The act of Assembly, approved February 17, 1906 (P. L. 36), providing a uniform method of electing party officers, made a radical change in the manner of conducting primary elections. Section 4 of said act prescribes the form of said ballot, and directs, inter alia, 'make a cross (X) in the square to the right of each candidate for whom you wish to vote. If you desire to vote for a person whose name is not on the ballot, write or paste his name on the blank space provided for that purpose.' At the spring primary held in Armstrong county on April 11, 1908, one person was to be chosen by the electors of said county for the office of register and recorder. If the provisions of this act were carried out (and in the absence of allegations to the contrary we must presume that they were), the chairman of the county committee would give notice to the county commissioners of the names of the party officers to be filled, and the commissioners in turn would advertise this fact in at least two newspapers of general circulation. If any person desired to become a candidate for the nomination for register and recorder in any party, it became his duty, if he desired to have his name printed upon the official ballot, to prepare and circulate a petition for that purpose, have it signed by 50 qualified electors, and file it with the county commissioners at least three weeks prior to the primary. Harry B. Henderson, as the Republican candidate for the office of register and recorder, strictly complied with this act of Assembly, and was duly nominated for said office by that party. No person desired to become a candidate for the office of register and recorder on the Democratic ticket. At least no person expressed any such desire by circulating and filing a petition, as required by the act of Assembly. It then became the duty of the county commissioners to prepare the official ballot for the primary election, and in doing so the law requires that they should provide a blank space, in which any elector, who desires to vote for a person whose name was not on the ballot, might write or paste his name. If the commissioners complied with the law (and we are bound to presume that they did) in preparing the Democratic

ballot, they would leave a blank space as above provided. In this space the law expressly authorized any Democratic elector to vote for any person whose name was not on the ballot. As Harry B. Henderson's name was not on the ballot, 20 electors, being a plurality of the votes cast for the office of register and recorder, following the letter of the law, voted for him. The vote so cast was counted by the election board, returned by them to the county commissioners, and computed by them, and a certificate granted to said Harry B. Henderson that he was the legal nominee for register and recorder on the Democratic ticket. It is apparent that the letter of the law was strictly complied with, and that on the face of the proceedings he is entitled to the certificate given him.

"The petitioner assigns seven reasons why said nomination should be declared illegal and void. The first, second, fifth, and seventh reasons are in effect that it was not intended or allowed by the 'Uniform Primary Act' that the Democratic party should be allowed to place on nomination a recognized Republican as its candidate for the said office. We remark that there is no such provision in the act of Assembly. If the Legislature had intended any such limitations of the right of franchise, it would have been very easy to have written in the act after the word 'person,' the words, 'of the same political affiliation.' In the absence of any such qualification we must presume that the Legislature meant just what it said. It is argued that by so construing the law it will permit one political party to interfere with the nominations of the other. Not so. No Republican interfered in any manner with the Democratic electors. But a plurality of the latter, not having an avowed candidate of their own, thinking that Mr. Henderson was the man best qualified to fill the office, expressed their desire to have him fill it, by the way pointed out by the law, viz., by writing his name in the blank space provided for that purpose. We see nothing in the letter or spirit of the law to prevent them from indicating by their votes whom they desired to have placed on their ballot as their candidate. It is argued that the nomination of Mr. Henderson is against the spirit of the act. But no authority has been cited, nor can any be found, to sustain this contention. On the contrary, in Magee's Nomination, 18 Pa. Co. Ct. R. 225, it is said by Judge McPherson: 'At least in the absence of a rule to the contrary, a nominating convention of one party is certainly at liberty to choose a candidate of a different political faith. This power has been exercised repeatedly without challenge, and indeed its existence is not denied.' We all know that it is of frequent occurrence for one party to indorse the candidate of another. In our own county last year Thos. W. Williams, the Republican candidate for county

surveyor, was placed upon the Democratic ticket, just in the same manner as Mr. Henderson is now placed, and his name was printed on the official Democratic ticket in the fall without challenge.

"The third reason is that there is no petition filed by at least 50 electors to have Mr. Henderson's name placed upon the ballot, and the sixth reason is that there is no certificate of nomination filed. The respondent does not claim to have his name on the ballot by petition or certificate, but under that provision of the act which allows an elector to write his name in the blank space provided for that purpose. The fourth reason is that the 'Uniform Primary Act' does not authorize the elector to vote for any person whose name is not printed on the ballot. This reason is contradictory of the form of the ballot above quoted, and also the provision in the act that declares, "The voter may designate his choice, as indicated by the instructions shown on the form of ballot above set forth.' We are also of the opinion that the complainant as an elector has entirely mistaken his remedy in objecting to 'the nomination certificate or paper under Act April 21, 1903 (P. L. 224) § 1.' This act was passed prior to the 'Uniform Primary Act,' and its cumbersome methods are not applicable to the present law. The objections before us are not so much to the nomination papers as to the counting of the votes. Section 11, Act Feb. 17, 1906, provides: 'Any person aggrieved by any decision of the county commissioners relative to the counting of votes, may appeal therefrom to the court of common pleas of the proper county, whose duty it shall be to hear such appeal, and to make such order as right and justice shall require.' Uriah H. Cook is the party aggrieved, and could have taken an appeal as above provided. Or Cook might have proceeded by writ of mandamus against the county commissioners to compel them to have his name printed on the ballot, and thus raised the legal questions involved. However, we place our decision upon the broad ground that, no Democratic elector having sought to have his name placed upon the official ballot as his party's candidate for register and recorder, any member of his party had the right to write the name of any elector, be he Democrat, Prohibitionist, Socialist, or Republican, in the blank space provided for that purpose, and that it was the duty of the election officers to count said votes, and the commissioners to compute and canvass the returns, and that, Harry B. Henderson having received the plurality of votes cast by the Democratic party at the primary election, he is the legal candidate of that party for the office of register and recorder, and it is the duty of the proper officers to print his name on the official ballot as such candidate.

"And now, August 22, 1908, the objections

are dismissed at the cost of the petitioner." Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

R. L. Ralston and C. E. Harrington, for appellant. H. N. Snyder, for appellee.

PER CURIAM. The judgment is affirmed on the opinion of the court below.

(222 Pa. 304) COMMONWEALTH v. GARRITO. (Supreme Court of Pennsylvania. Oct. 12, 1908.)

1. CRIMINAL LAW (§ 1160*)-NEW TRIAL-AP

PEAL.

The whole subject of new trial, including misconduct of jurors, is within the discretion of the trial court, and its judgment will not be disturbed except for manifest error.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 3084; Dec. Dig. § 1160.*] 2. HOMICIDE (§ 332*)-APPEAL-REVIEW.

The review in the Supreme Court, under Act Feb. 15, 1870 (P. L. 15), providing for the determination of whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist, is limited to the inquiry whether competent evidence had been given which, if believed, will sustain the conviction.

[Ed. Note. For other cases, see Homicide, Cent. Dig. §§ 699, 700; Dec. Dig. § 332.*]

Appeal from Court of Oyer and Terminer, Berks County.

Salvatore Garrito was convicted of murder in the first degree, and appeals. Affirmed.

One of the jurors had, before the case was called for trial, formed and expressed an opinion that the defendant was guilty and should be hung, and stated that he hoped he would get on the jury, and that if he would, he would hang him. This was not known to the prisoners or their counsel until after the verdict was rendered.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

George D. Humbert, for appellant.

PER CURIAM. The first assignment of error is to the overruling of the appellant's reason for new trial that a juror had before the trial expressed the opinion that defendant was guilty and should be hanged. It appears that the juror on his voir dire, when first called, admitted that he had formed an opinion, but testified that he could disregard such opinion and render a verdict on the evidence. This made him a competent juror under all the cases. On the motion for a new trial, however, an affidavit was presented, averring not only the expression by the juror of an opinion of the prisoner's guilt, but an intention to hang him if he could get on the jury. The learned judge investigated this charge, and found it not sustained. It is sufficient to

say that the whole subject of new trial including alleged misconduct of jurors is largely within the discretion of the trial judge, and his conclusions upon disputed facts will not be disturbed except for serious and manifest error.

The second assignment is that the evidence does not warrant a conviction of murder of the first degree. This assignment seems to be founded on the provision of Act Feb. 15, 1870 (P. L. 15), requiring the Supreme Court to review the law and the evidence, and "to determine whether the ingredients necessary to constitute murder in the first degree shall have been proved to exist." But this review is limited to the inquiry whether competent evidence has been given which, if believed, will sustain the conviction. Whether it shall be believed or not is exclusively for the jury. Com. v. Morrison, 193 Pa. 613, 44 Atl. 913. The objection on which the assignment is based in the present case is that the witness furnishing the testimony which established the degree of the crime was not worthy of belief. But the credibility was for the jury, and is not within our province.

Judgment affirmed, and record remitted for purpose of execution.

(75 N. H. 40)

STEARNS v. BOSTON & M. R. R. (Supreme Court of New Hampshire. Merrimack. Oct. 6, 1908.)

1. NEGLIGENCE (8 68*)-CONTRIBUTORY NEG

LIGENCE.

The conduct of the parties resulting in injury to one of them is to be judged, not by the fact that injury has resulted from the course pursued, but in the light of the circumstances known or discoverable by ordinary care when the course followed was decided upon.

[Ed. Note.-For other cases, see Negligence, Cent. Dig. 92; Dec. Dig. § 68.*]

2. RAILROADS (§ 350*)-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE.

That a person killed in a railroad crossing collision drove upon the track knowing the train was approaching does not conclusively establish his negligence.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 1171; Dec. Dig. § 350.*]

3. RAILROADS (§ 348*)-ACCIDENTS AT CROSSINGS CONTRIBUTORY NEGLIGENCE.

Though, in an action for the death of a person at a railroad crossing, there was no direct evidence that decedent was acquainted with the rule of the railroad company prohibiting the running of freight trains over 25 miles an hour, or that he had seen the particular freight train pass at about that hour, yet it did appear that he had been driving to the depot with milk for four years, and that occasionally a freight train would pass ahead of the milk train, it might reasonably be found, in the absence of evidence that the railroad company's employés were accustomed to run freight trains, or the particular train, at that place in violation of its rules, that decedent knew the time it took the train, as it should be and was customarily run, to reach the crossing, even if he was not led to believe by the absence of the station whistle that it would

slow down for a stop, and, being aware of the speed of his team, judged that there was time

to cross.

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 348.*]

4. RAILROADS (§ 333*)-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE.

That one of the horses of a person killed at a railroad crossing was somewhat afraid of the cars is to be considered with the other facts upon the question whether a man of ordinary prudence would have done as decedent did.

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 333.*]

5. RAILROADS (§ 350*)-ACCIDENTS AT CROSSINGS - CONTRIBUTORY NEGLIGENCE - QUESTION FOR JURY.

Whether a person of ordinary prudence, having reached the conclusion that his prudent course was to drive over the track ahead of a train, would then have given his whole attention to carrying out the course he had decided upon and not have again looked toward the train, or would have diverted his attention from his team and again looked, is a question of fact.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1169-1176; Dec. Dig. § 350.*] 6. RAILROADS (§ 350*)-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE.

An assumption by a traveler on the highway that railroad employés are not approaching the crossing with a reckless disregard of its dangers is not conclusive evidence of negligence in the traveler.

[Ed. Note. For other cases, see Railroads, Cent. Dig. § 1187; Dec. Dig. § 350.*]

7. RAILROADS (§ 338*)-ACCIDENTS AT CROSSING-INJURY AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

Where trainmen after they discover, or ought to discover, the danger of a traveler at a crossing, can, with the facilities at their command, prevent injury by due care and fail to do so, the railroad company is liable.

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1096, 1097; Dec. Dig. § 338.*] 8. RAILROADS (§ 337*)-ACCIDENTS AT CROSSINGS INJURY AVOIDABLE NOTWITHSTANDING CONTRIBUTORY NEGLIGENCE.

A failure to stop a train after the danger of a traveler on the highway became apparent cannot be held to be the cause of a collision with him where the only situation in which the train could have been stopped must have been one from which no injury woud have resulted.

[Ed. Note. For other cases, see Railroads, Dec. Dig. § 337.*]

9. RAILROADS (§ 337*)-ACCIDENTS AT CROSSINGS-INJURY AVOIDABLE NOTWITHSTAND

ING CONTRIBUTORY NEGLIGENCE.

Where, if trainmen ought to have recognized the danger of a traveler on the highway when they were at a certain point, they could not have stopped the train by applying the brakes, it is immaterial that they did not do so until the train was nearer the crossing.

[Ed. Note. For other cases, see Railroads, Dec. Dig. & 337.*]

10. TRIAL (§ 252*)-INSTRUCTIONS-EVIDENCE. The action of a train under application of brakes is not a matter of common knowledge, and, there being no evidence tending to show that the trainmen could have checked the speed of the train sufficiently to have permitted a person killed at a crossing to cross, that question was improperly submitted to the jury.

[Ed. Note. For other cases, see Trial, Cent. Dig. 88 596-612; Dec. Dig. § 252.*]