Wherever death is caused by the use of a deadly weapon, it must be for the jury to say, under the evidence, whether there existed "a willful, deliberate and premeditated" intention to take the life of the deceased. Evidence of general threats by the prisoner to kill somebody is admissible in a homicide case to show malice, but threats made against a particular person are not admissible where the defendant has killed another person with whom he had no quarrel at the time of making the threats and against whom he had made

A witness called on behalf of the prisoner to testify to his good character, was asked, on cross-examination, if the prisoner had ever been committed to the Reform School, and, without objection, answered that he had. An offer to show that he had been abandoned by his father, and that his mother had had him committed to the school for the purpose of securing his maintenance and education, she being unable to support him, was then made and excluded, on the ground that the question put to witness on cross-examination had not been objected to. Held, to have been error; that the crossexamination grew naturally out of the examination

in chief as to character, and could not have been ex

cluded except as mere hearsay, and that as it had gone to the jury, it was competent for the prisoner to brush away such a cloud on his character.

As a general rule evidence of the quarrelsome disposition of deceased is inadmissible, but where it appears that the prisoner and he were on terms of intimacy, that the killing took place in a sudden scuffle, in which the prisoner was assaulted, if not actually struck by

deceased, it is admissible as evidence that the prisoner may have considered himself as in some danger, and had resort to the weapon not to kill but disable his

assailant.

66

hight as Leslie, weighed about 165 pounds, and up to the time of the fatal encounter had been on terms of intimacy and friendship with the deceased, living and working with him. At 9 A. M. of the day of the shooting, Leslie left his home in Allegheny City and with several companions passed the day in drinking saloons. About 5 P. M. the party came to the saloon of Kraeger. It was opening day" of the saloon, and liquor flowed freely. About 5:15 P. M. John Abernethy came into the back room of the saloon where Leslie and his friends were drinking. Abernethy had been drinking the whole of the previous night and all of that day. This was the first time for months that the parties to the fatal affray had met. Leslie was nicknamed "Curly," and Abernethy, walking to the corner of the room in which he was seated, said: "Curly, you s▬▬ of a b-, I can lick you." Leslie replied in apparent good humor: "You can't take your coat off and say it." The parties immediately shook hands, and talked and drank in a friendly manner for half an hour. Then Leslie left the room to buy some chewing tobacco, returning in about fifteen minutes. About this time Abernethy was ejected from the back room in which the parties were seated, and was pushed by one of the waiters into the front room or saloon proper, on account of a dispute about some drinks. While being expelled from the back room, Abernethy turned and said: "You can all k- my a-." Leslie taking of fense at this, asked if he meant him. Abernethy replied he meant everybody, and then walked to the front of the saloon, thirty feet or more from the deceased and his companions, separated from them by a door, and for fifteen or twenty minutes talked with Daniel Early, a joint owner of the saloon. Leslie called Early into the back room and asked him if he could not run his own house. Early returned to the front room, and Leslie then said: "I will go out; that fellow ought to be licked." Walking to the end of the saloon, where Abernethy was talking with Early, he at once began an angry altercation with Abernethy, after some minutes striking at him, according to some witnesses, and by the testimony of others, striking him

About six o'clock, on the evening of December 5, 1881, in the saloon of Henry Kraeger, Diamond street, Pittsburgh, William Leslie was shot and killed by John Abernethy, the plaintiff in error. The deceased worked in a rolling mill, and was a tall, stout man about forty years of age, weighing about 170 pounds. John Abernethy was twenty-two years old, about the same

Abernethy fired, and Leslie fell to the floor dead. Abernethy, bareheaded, ran from the saloon, and was at once arrested in the adjoining house, where he had attempted to hide.

About 2 P. M. of the day of the shooting, and about three hours and a half before the defendant and deceased met each other, in the same saloon in which the homicide occurred, John Abernethy had been struck by a man named

"Cain," or his companion, "Eddie," the evidence disclosing the fact that Abernethy was so drunk that he did not know which of the two hit him. Threats were made by Abernethy that he was going to "fix" this man Cain; and he asked John Godfrey to lend him a revolver on two occasions-first, about 3 P. M. and again about 5 P. M. of the day of the shooting. The deceased had no connection with the difficulty with Cain, was not present when it occurred, and the evidence disclosed no interest of his therein. Some of the threats against Cain were made more than two hours before the deceased and defendant met, and none of them were uttered in the presence of deceased or in conversation with him.

Abernethy was tried and found guilty of murder in the first degree, and a motion for a new trial having been overruled and sentence of death passed, this writ was taken, the following being assigned as error:

1st. Admitting evidence of threats by the defendant against a third party, and in overruling the motion of defendant's counsel to strike out such evidence and withdraw the same from the jury.

2d. In excluding evidence of the quarrelsome disposition and desperate character of the deceased.

3d. In qualifying the fifth point of defendant, as follows: "If the jury believes from the evidence that the defendant had no premeditated intention to take the life of the deceased, that he was provoked to passion by liquor and a blow, and that he shot the deceased before this passion had cooled and reason interposed, the offense is manslaughter." Answer.-"If the defendant, upon sufficient provocation, to wit, a blow, and in a rage or passion produced thereby, shot the deceased, it would be manslaughter."

4th. In qualifying the sixth point of defendant, as follows: "A killing in hot blood without premeditation is manslaughter." Answer. "A killing in hot blood upon sufficient provocation is manslaughter."

5th. The court erred in its answer to the seventh point of defendant, as follows: "That if the jury believes that at the time of the shooting, defendant had been assailed by deceased and had reasonable ground to fear for his life, or to apprehend grievous bodily harm, whether he was really in danger or not, and by reason of the suddenness of the attack, he had no means of retreat, then the shooting would be justifiable, or at most, would only be manslaughter." Answer.—“Affirmed, if you find the facts as stated in this point. I am unable to see the facts in evidence to justify this point,

so far as to justify the defendant, but that is for the jury alone.

6th. In refusing the eighth point submitted by defendant, viz: "That the jury must exclude, in the consideration of the case, any testimony as to any threats alleged to have been made by defendant against Cain or any other person except deceased.”

7th. In overruling the following offer of testimony by the defendant: Robert McBratney, a witness for defendant, being on the stand, defendant makes the following offer: "It having been given in evidence that the defendant, Abernethy, on the evening of this fatal shooting, addressed Leslie as 'you s— of a b―,' when he first met him in Kraeger's saloon, defense proposes to ask the witness on the stand whether that was not a common mode of expression among the men employed where Abernethy, Leslie and himself (witness) were also employed. This, taken in connection with the testimony that shortly after this address, the defendant and the deceased were engaged in a peaceable and friendly conversation, and for the purpose of showing that the mere use of this term raises no presumption of malice in this case or ill-will toward the deceased."

By the Court.-"As this offer does not propose to show that the prisoner and the deceased were accustomed to address each other by that term, this offer is overruled.

8th. Overruling the following offer of testimony by the defendant: David McKelvy, a witness for defendant, being on the stand: "It having been brought out on cross-examination of a witness for the good character of defendant for peace and good order, that he had been in the house of reform some two or three years of his life, defendant, by his counsel, proposes to prove by the witness on the stand that his (defendant's) father had deserted him; that he had no means of livelihood or education, and that the defendant, in company with his mother, went to the office of C. D. Smith, an alderman in the city of Allegheny, in which office the witness on the stand was at that time employed, and that they voluntarily sought from the alderman admission for this boy to the Reform School; that he went there in accordance with his own request and his mother's, and not because of any alleged offense."

By the Court.-"The witness having testified to the general character for peace of the defendant, and the counsel for defendant not having objected to the cross-examination, this offer overruled.

9th. Overruling the following offer: Mrs. Abernethy, a witness for defendant, being on

the stand: "Defendant, by his counsel, proposes to show by the witness on the stand, his mother, that she (witness), in company with her son, went to the office of C. D. Smith, an alderman in the city of Allegheny, and procured the admission of her son to the Reform School for the purpose of securing his maintenance and education in the absence of support by his father or any means of her own by which to support him. And this for the purpose of rebutting any presumption of ill-conduct on the part of the boy, arising out of the fact brought out on crossexamination that he had been an inmate of a Reform School for some two or three years.

By the Court.-Is overruled, for the reason given in overruling a similar preceding offer. 10th. Excluding the evidence of W. D. Bois, a witness for defendant, as to the reputation of deceased for peace and good order, and in sustaining the objection of the Commonwealth's counsel to the admission of the same as follows: W. D. Bois, a witness for the defense, being on the stand: "Defendant, by his counsel, proposes to prove by the witness on the stand, taken in connection with the already proved intimacy and acquaintance between the deceased and the defendant, that the deceased was a man of quarrelsome disposition."

by the use of a deadly weapon, it must be for the jury to say, under the evidence, whether there existed "a willful, deliberate and premeditated" intention to take the life of the deceased.

The first two assignments are not according to rule, but the same questions are well raised by subsequent specifications. There was no error in the answers of the court to the fifth, sixth and seventh points of the defendants. Indeed they have not been insisted on here.

The eighth point of the defendant was "that the jury must exclude, in the consideration of the case, any testimony as to any threats alleged to have been made by the defendant against Cain or any other person except deceased.” This was refused by the learned court and forms the subject of the sixth assignment. The fatal shot seems to have been fired about half-past five or six o'clock of the evening of December 5, 1881, in the bar-room of a saloon in Diamond street. The accused had been in and out several times during the day. It would seem that about two o'clock of the same day he had met there a man named Cain, who had a person with him whose name was unknown. A quarrel arose, and this person struck Abernethy a blow. He became much excited in consequence; and being to some extent under the influence of liquor, if not actually drunk, he

12th. Sustaining the objection of counsel for the Commonwealth to the admission of the testimony of Joseph Mitchell, a witness called in sur-rebuttal by the defendant. Question by Mr. Moore.—“ Did you or did you not lend John Abernethy a handkerchief to wipe the blood from his lips or mouth?"

For plaintiff in error, Geo. Elphinstone. Esq. Contra, John S. Robb, District Attorney, and H. A. Collier, Esq.

Cain; sometimes adding Cain or somebody; and, according to the testimony of one witness, that he would kill somebody. All this, however, was before any quarrel had taken place between Abernethy and the deceased. When he applied to the witness, Thomas Godfrey, for the loan of a revolver, which was about three o'clock, he told him "he was struck next door, and wanted to go down to Cain's to find out who struck him." There were four other witnesses who testified to these threats; one of them said that he heard no name mentioned. We think the defendant's eighth point should It is true that general have been affirmed. threats to kill somebody would be evidence of malice, and as such to be weighed by the jury. Had Dwyer's testimony stood alone, and the

As this case goes back for another trial it would not be proper for this court to express any opinion on the merits. Although no assignment of error has been filed, that the case did not present the elements for a verdict of murder in the first degree, we think it right to say that upon that point we entertain no doubt. Indeed, wherever the death is caused

against Cain or his companion, it might properly have been submitted to the jury as evidence of an intention to pick a quarrel and kill somebody. Such was the case in Hopkins v. The Commonwealth, 14 Wright, 9. It is not easy to see how threats against a particular person, with whom the accused had a quarrel, ought to have any weight with a jury as to the malice or intention to kill another person with whom, at

the time he had no quarrel and whom afterwards, in a scuffle, he killed: State v. Smalley, 50 Vt., 736, 750; Ogletree v. State, 25 Ala., 593, 700. There was no error in the rejection of the evidence offered by the defendant as complained of in the seventh assignment. It is clear that the deceased took no offense at the epithet applied to him by the accused, as immmediately afterwards they shook hands and seemed on friendly terms. What did seem to have excited the anger of the deceased was Abernethy's words when he left the back room, and which he said that he meant to apply to all who were there.

The eighth and ninth assignments may be considered together. William P. Bedell, a witness called by defendant to prove his good character for peace and order, said, on crossexamination: "I know the fact of his (the defendant's) being sent to the Reform School.” "Q.-You have heard, of course, why he was sent to the Reform School? 4.-I did not; I heard rumors on the street that he went there of his own accord." The defendant afterwards offered to show, by the testimony of his mother and another witness, "that he had been abandoned by his father, that she had procured his admission to the Reform School for the purpose of securing his maintenance and education in the absence of support by his father or any means of his own by which to support him." The learned judge rejected this evidence, because the counsel for defendant did not object to the cross-examination. We think that it ought to have been admitted. The cross-examination grew naturally out of the examination in chief as to character, and could not have been excluded except as mere hearsay. It had come out and would go to the jury, and surely it was competent for the defendant to brush away such a cloud upon his character.

The tenth assignment is to the rejection by the court below of evidence that the deceased was a man of quarrelsome disposition. As a general rule undoubtedly such evidence is inadmissible. But where it appears that the defendant and the deceased were on terms of intimacy, and the killing took place in a sudden scuffle, in which there was evidence that the deceased made an assault on the defendant, if he did not actually strike him, we think it is admissible as evidence that the defendant may have considered himself as in some danger, and had resort to the weapon not to kill but disable his assailant: Rippey v. State, 2 Head., 217; Franklin v. State, 29 Ala. 14; People v. Lamb, 54 Barb., 342; S. C., 2 Keyes, 369; Raybold v. People, 17 Abb., 350; 54 Barb., 350.

The defendant's objection to the Commonwealth's evidence, as stated in the eleventh assignment, was rightly overruled. It was strictly in rebuttal. And the evidence, the rejection of which is complained of in the twelfth assignment, was merely in effect a declaration by Abernethy after the killing.

Judgment reversed and venire facias de novo awarded.

OLIVER'S APPEAL.

The object of the Act of 24th February, 1834, P. L., 77, providing that debts of a decedent, other than mortgage or judgment, shall not be a lien on his land for more than five years is to quiet the title of heirs and devisees, and purchasers from them, to the lands derived from the decedent, and the exceptions expressed in it necessarily exclude all others. No admission of the debt will bar the running of the statute, and the character of the debt or demand makes no distinction.

In the case of a technical or express trust, no period of time less than will raise the presumption of payment will toll the running of the statute.

Appeal from the decree of the Orphans' Court of Allegheny county.

William Oliver died on the 23d day of June, 1875, seized of a farm in Allegheny county. Letters of administration were issued to his son, George Oliver, who proceeded with the settlement of his father's estate. The decedent left surving a widow, Mary Oliver, and eight children, two of whom, Flora and Grace, were minors, and one, Jennie Irwin, was a married woman. On April 23, 1881, E. P. Jones, Esq., presented his petition to the Orphans' Court, in which he averred that on March 18, 1881, a citation was issued to compel George Oliver, administrator of William Oliver, deceased, to file his account as such administrator. That such account was filed, and there were no personal assets in his hands sufficient to pay the decedent's debts.

At the date of William Oliver's death he was guardian of Harry Neel and William Neel, and at that time was indebted to them in a sum of money exceeding ten thousand dollars. After his death frequent payments were made on account of said indebtedness by the administrator, George Oliver, amounting in the aggregate to $9,859.38. On the 4th day of November, 1880, he filed an account in the register's office, showing a balance due from the guardian, William Oliver, deceased, to each of his wards of $1,456.87}. Immediately after William Oliver's death, Dr. Joseph A. Stone was appointed guardian of said two minors, and most of the payments were made to him. The petition of E. P. Jones, Esq., filed April 23, 1881, before referred to, asked for an order of the Orphans' Court to compel the administrator to sell the real estate of the decedent