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Pittsburgh Legal Journal.

Supreme Court, Pemu'a.

hight as Leslie, weighed about 16.5 pounds, and

up to the time of the fatal encounter had been ESTABLISHED 1853.

on terms of intimacy and friendship with the E. Y. BRECK, : : : : Editor. deceased, living and working with him. At V.S., Vol. XIII. I

9 A. M. of the day of the shooting, Leslie left his

No. 19. 0. S., Vol. XXX.

home in Allegheny City and with several comPITTSBURGH, PA., DECEMBER 20, 1882.

panions 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. I bout 5:15 P. M. John

Abernethy came into the back room of the saABERNETHY V. COMMONWEALTH. loon where Leslie and his friends were drink

ing. Abernethy had been drinking the whole Wherever death is caused by the use of a deadly weapon, of the previous night and all of that day. This it must be for the jury to say, under the evidence,

was the first time for months that the parties to whether there existed "a willful, deliberate and pre. meditated” intention to take the life of the deceased.

the fatal attray had met. Leslie was nicknamed Evidence of general threats by the prisoner to kill some “Curly," and Abernethy, walking to the corbody is admissible in a homicide case to show malice, ner of the room in which he was seated, said: but threats made against a particular person are not

"Curly, you a--- of a b--, I can lick you." admissi ble where the defendant has killed another person with whom he had no quarrel at the time of

Leslie replied in apparent good humor: “You making the threats and against whom he had made can't take your coat off and say it." The parno threats.

ties immediately shook hands, and talked and Stute r'. Smalley, 50 Vt., 736, and Oyletree c. Slate, 25 Ala.,

drank in a friendly manner for half an hour. 593, cited and approved.

Then Leslie left the room to buy some chewing An offer to prove that the prisoner and deceased were in the habit of using vulgar language in addressing each

tobacco, returning in about fifteen minutes. other was properly excluded, it appearing that before About this time Abernethy was ejected from the fatal affray the deceased had been so addressed the back room in which the parties were seated, and had not resented it.

and was pushed by one of the waiters into the A witness called on behalf of the prisoner to testify to his good character, was asked, on cross-examination,

front room or saloon proper, on account of a disis the prisoner had ever been committed to the Reform pute about some drinks. While being expelled School, and, without objection, answered that he had. from the back room, Abernethy tuned and said: An offer to show that he had been abandoned by his

"You can all k- my a--," Leslie taking of father, and that his mother had had him committed to the school for the piirpose of securing his maintenance

nance fense at this, asked if he meant him. Aberand education, she being unable to support him, was nethy replied he meant everybody, and then then made and excluded, on the ground that the ques.

walked to the front of the saloon, thirty feet or tion put to witness on cross-examination had not been

more from the deceased and his companions, objected to. Held, to have been error; that the crossexamination grew naturally out of the examination

separated from them by a door, and for fifteen in chief as to character, and could not have been ex or twenty minutes talked with Daniel Early, a cluded except as mere hearsay, and that as it had gone joint owner of the saloon. Leslie called Early to the jury, it was competent for the prisoner to brush

into the back room and asked him if he could away such a cloud on his character. As a general rule evidence of the quarrelsome disposi- not run his own house. Farly retired to the tion of deceased is inadmissible, but where it appears front room, and Leslie then said: “I will go that the prisoner and he were on terms of intimacy, 1 out; that fellow ought to be licked." Walking that the killing took place in a sudden scutlle, in which

to the end of the saloon, where Abernethy was the prisoner was assaulted, if not actually struck by deceased, it is admissible as evidence that the prisoner

talking with Early, he at once began an angry may have considered himself as in some danger, and altercation with Abernethy, after some minutes had resort to the weapon not to kill but disable his

striking at him, according to some witnesses, assailant.

and by the testimony of others, striking him Error to the Court of Oyer and Terminer of with closed fist in the face. After the stroke Allegheny county.

Abernethy fired, and Leslie fell to the floor About six o'clock, on the evening of Decem- dead. Abernethy, bareheader, ran from the ber 5, 1881, in the saloon of Henry Kraeger, saloon, and was at once arrested in the adjoinDiamond street, Pittsburgh, William Leslie was ing house, where he had attempted to hide. shot and killed by John Abernethy, the plain- About 2 P. M. of the day of the shooting, and tiff in error. The deceased worked in a rolling about three hours and a half before the defendmill, and was a tall, stout man about forty years ant and deceased met each other, in the sanie of age, weighing about 170 pounds. Jolin Aber- saloon in which the homicide occurred, John nethy was twenty-two years old, about the same | Abernethy had been struck by a nian named

“Cain," or his companion, "Eddie,” the evi- so far as to justify the defendant, but that is for
dence disclosing the fact that Abernethy was so the jury alone.
drunk that he did not know which of the two 6th. In refusing the eighth point submitted
hit him. Threats were made by Abernethy by defendant, viz: “That the jury must es-
that he was going to "fix" this man Cain; and clude, in the consideration of the case, any testi-
he asked John Godfrey to lend him a revolver | mony as to any threats alleged to have been
on two occasions-first, about 3 P. M. and again / made by defendant against Cain or any other
about 5 P. M. of the day of the shooting. The person except deceased."
deceased had no connection with the difficulty 7th. In overruling the following offer of testi-
with Cain, was not present when it occurred, | mony by the defendant: Robert McBratney,
and the evidence disclosed no interest of his a witness for defendant, being on the stand,
therein. Some of the threats against Cain were defendaut makes the following offer: “It hav-
made more than two hours before the deceased ing been given in evidence that the defendant,
and defendant met, and none of them were Abernethy, on the evening of this fatal shooting,
uttered in the presence of deceased or in conver- addressed Leslie as ' you s- of a b— , when
sation with him.

he first met him in Kraeger's saloon, defense Abernethy was tried and found guilty of mur | proposes to ask the witness on the stand whether der in the first degree, and a motion for a new that was not a common mode of expression trial having been overruled and sentence of among the men employed where Abernethy, death passed, this writ was taken, the following | Leslie and himself (witness) were also employed. beiug assigned as error:

This, taken in connection with the testimony 1st. Admitting evidence of threats by the de- that shortly after this address, the defendant fendant against a third party, and in overruling and the deceased were engaged in a peaceable the motion of defendant's counsel to strike out and friendly conversation, and for the purpose such evidence and withdraw the same from the of showing that the mere use of this term raises jury.

no presumption of malice in this case or ill-will 2d. In excluding evidence of the quarrelsome toward the deceased." disposition and desperate character of the de By the Court.--"As this offer does not proceased.

pose to show that the prisoner and the deceased 3d. In qualifying the fifth point of defendant, were accustomed to address each other by that as follows: “If the jury believes from the evi term, this offer is overruled. dence that the defendant had no premeditated 8th. Overruling the following offer of testiintention to take the life of the deceased, that mony by the defendant: David McKelvy, a he was provoked to passion by liquor and a blow, witness for defendant, being on the stand: “It and that he shot the deceased before this passion having been brought out on cross-examination nad cooled and reason interposed, the offense is of a witness for the good character of defendant manslaughter." Answer.—“If the defendant, for peace and good order, that he had been in upon sufficient provocation, to wit, a blow, and the house of reform some two or three years of in a rage or passion produced thereby, shot the | his life, defendant, by his counsel, proposes to deceased, it would be manslaughter."

prove by the witness on the stand that his (de4th. In qualifying the sixth point of defend fendant's) father had deserted him; that he had ant, as follows: “A killing in hot blood with no means of livelihood or education, and that out premeditation is manslaughter." Answer. the defendant, in company with his mother, "A killing in hot blood upon sufficient provoca- went to the office of C. D. Smith, an alderman tion is manslaughter."

in the city of Allegheny, in which office the 5th. The court erred in its answer to the sev- | witness on the stand was at that time employed, enth point of defendant, as follows: “That if and that they voluntarily sought from the althe jury believes that at the time of the shoot- derman admission for this boy to the Reformi ing, defendant had been assailed by deceased School; that he went there in accordance with and had reasonable ground to fear for his life, his own request and his mother's, and not beor to apprehend grievous bodily harm, whether cause of any alleged offense." he was really in danger or not, and by reason By the Court.—"The witness having testified of the suddenness of the attack, he had no to the general character for peace of the defendmeans of retreat, then the shooting would be ant, and the counsel for defendant not having justifiable, or at most, would only be man-objected to the cross-examination, this offer slaughter.” Answer.--"Affirmed, if you find overruled. the facts as stated in this point. I am unable 9th. Overruling the following offer: Mrs. to see the facts in evidence to justify this point, Abernethy, a witness for defendant, being on

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the stand: “Defendant, by his counsel, pro- by the use of a deadly weapon, it must be for poses to show by the witness on the stand, his the jury to say, under the evidence, whether mother, that she (witness), in company with there existed “a willful, deliberate and preher son, went to the office of C. D. Smith, an meditated" intention to take the life of the alderman in the city of Allegheny, and procured deceased. the admission of her son to the Reform School | The first two assignments are not according for the purpose of securing his maintenance and to rule, but the same questions are well raised education in the absence of support by his father by subsequent specifications. There was no or any means of her own by which to support error in the answers of the court to the fifth, him. And this for the purpose of rebutting any sixth and seventh points of the defendants. presumption of ill-conduct on the part of the Indeed they have not been insisted on here. boy, arising out of the fact brought out on cross- The eighth point of the defendant was "that examination that he had been an inmate of a the jury must exclude, in the consideration of Reform School for some two or three years the case, any testimony as to any threats alleged

By the Court.-Is overruled, for the reason to have been made by the defendant against given in overruling a similar preceding offer. Cain or any other person except deceased."

10th. Excluding the evidence of W. D. Bois, | This was refused by the learned court and forms a witness for defendant, as to the reputation of the subject of the sixth assignment. The fatal deceased for peace and good order, and in sus. shot seems to have been fired about half-past taining the objection of the Commonwealth's five or six o'clock of the evening of December counsel to the adinission of the same as follows: 5, 1881, in the bar-room of a saloon in Diamond W. D. Bois, a witness for the defense, being on street. The accused had been in and out sevthe stand: “Defendant, by his counsel, pro- eral times during the day. It would seem that poses to prove by the witness on the stand, taken about two o'clock of the same day he had met in connection with the already proved intimacy there a man named Cain, who had a person and acquaintance between the deceased and the with him whose name was unknown. A quardefendant, that the deceased was a man of quar- rel arose, and this person struck Abernethy relsome disposition."

| a blow. He became much excited in conse11th. Overruling the objection of defendant quence; and being to some extent under the to the admission of the testimony of John influence of liquor, if not actually drunk, he Dwyer, a witness called in rebuttal by the Com-made several threats that he would fix or kill monwealth as follows: Question by District | Cain; sometimes adding Cain or somebody; Altorney.--"Mr. Dwyer, after Abernethy was and, according to the testimony of one witness, taken out of the room by Early, how near were that he would kill somebody. All this, howyou to Leslie all the time until Leslie went out ever, was before any quarrel had taken place of the room?" Answer.--Next chair to him, between Abernethy and the deceased. When I was sitting on this chair right beside him. he applied to the witness, Thomas Godfrey, for

12th. Sustaining the objection of counsel for the loan of a revolver, which was about three the Commonwealth to the admission of the tes- o'clock, he told him "he was struck next door, timony of Joseph Mitchell, a witness called in and wanted to go down to Cain's to find out sur-rebuttal by the defendant. Question by Mr. who struck him." There were four other witMoore.-"Did you or did you not lend John nesses who testified to these threats; one of Abernethy a handkerchief to wipe the blood them said that he heard no name mentioned. from bis lips or mouth?”

We think the defendant's eighth point should For plaintiff in error, Geo. Elphinstone. Esq. / have been affirmed. It is true that general

Contra, John S. Robb, District Attorney, and threats to kill somebody would be evidence of H. A. Collier, Esq.

malice, and as such to be weighed by the jury.

Had Dwyer's testimony stood alone, and the Opinion by SHARSWOOD, C.J. Filed Novem- jury should believe that it was not intended as ber 20, 1882.

against Cain or his companion, it might propAs this case goes back for another trial it erly have been submitted to the jury as evidence would not be proper for this court to express of an intention to pick a quarrel and kill someany opinion on the merits. Although no as- | body. Such was the case in Hopkins v. The sigunient of error has been filed, that the case Commonwealth, 14 Wright, 9. It is not easy did not present the elements for a verdict of to see how threats against a particular person, murder in the first degree, we think it right with whom the accused had a quarrel, ought to to say that upon that point we entertain no have any weight with a jury as to the malice or doubt. Indeed, wherever the death is caused l intention to kill another person with whom, at

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the time he had no quarrel and whom after- The defendant's objection to the Commonwards, in a scuffle, he killed: State v. Smalley, wealth's evidence, as stated in the eleventh as50 Vt., 736, 750; Ogletree v. State, 25 Ala., 593, 700. signment, was rightly overruled. It was strictly

There was no error in the rejection of the evi- in rebuttal. And the evidence, the rejection of dence offered by the defendant as complained which is complained of in the twelfth assignof in the seventh assignment. It is clear that ment, was merely in effect a declaration by the deceased took no offense at the epithet ap- | Abernethy after the killing. plied to him by the accused, as imimmediately / Judgment reversed and venire facias de novo afterwards they shook hands and seemed on awarded. friendly terms. What did seem to have excited the anger of the deceased was Abernethy's

OLIVER'S APPEAL. words when he left the back room, and which The object of the Act of 24th February, 1834, P. L., 77, he said that he meant to apply to all who were providing that debts of a decedent, other than mortthere.

gage or judgment, shall not be a lien on his land for

more than five years is to quiet the title of heirs and The eighth and ninth assignments may be

devisees, and purchasers from them, to the lands de considered together. William P. Bedell, a wit rived from the decedent, and the exceptions expressed ness called by defendant to prove his good in it necessarily exclude all others. No admission of character for peace and order, said, on cross

the debt will bar the running of the statute, and the

character of the debt or demand makes no distinction. examination. I know the Tact OT nis me de- | In the case of a technical or express trust, no period of fendant's) being sent to the Reform School." time less than will raise the presumption of payment "Q.-You have heard, of course, why he was will toll the running of the statute. sent to the Reform School? A.-I did not; I Appeal from the decree of the Orphans' Court heard rumors on the street that he went there of Allegheny county. of his own accord." The defendant afterwards | William Oliver died on the 23d day of June, offered to show, by the testimony of his mother | 1875, seized of a farm in Allegheny county. and another witness, “that he had been aban- Letters of administration were issued to his son, doned by his father, that she had procured his George Oliver, who proceeded with the settleadmission to the Reform School for the purpose ment of his father's estate. The decedent left of securing his maintenance and education in surving a widow, Mary Oliver, and eight chilthe absence of support by his father or any dren, two of whom, Flora and Grace, were means of his own by which to support him." minors, and one, Jennie Irwin, was a married The learned judge rejected this evidence, be- woman. On April 23, 1881, E. P. Jones, Esq., cause the counsel for defendant did not object to presented his petition to the Orphans' Court, the cross-examination. We think that it ought in which he averred that on March 18, 1881, a to have been admitted. The cross-examination citation was issued to compel George Oliver, grew naturally out of the examination in chief administrator of William Oliver, deceased, to as to character, and could not have been ex- file his account as such administrator. That cluded except as mere hearsay. It had come such account was filed, and there were no perout and would go to the jury, and surely it was sonal assets in his hands sufficient to pay the competent for the defendant to brush away such decedent's debts. a cloud upon his character.

At the date of William Oliver's death he was The tenth assignment is to the rejection by guardian of Harry Neel and William Neel, and the court below of evidence that the deceased at that time was indebted to them in a sum of was a man of quarrelsome disposition. As a money exceeding ten thousand dollars. After general rule undoubtedly such evidence is in- his death frequent payments were made on acadmissible. But where it appears that the de- count of said indebtedness by the administrator, fendant and the deceased were on terms of in- George Oliver, amounting in the aggregate to timacy, and the killing took place in a sudden $9,859.38. On the 4th day of November, 1880, he scuffle, in which there was evidence that the filed an account in the register's office, showing deceased made an assault on the defendant, if a balance due from the guardian, William Olihe did not actually strike him, we think it is ver, deceased, to each of his wards of $1,456.87. admissible as evidence that the defendant may | Immediately after William Oliver's deatb, Dr. have considered himself as in some danger, and Joseph A. Stone was appointed guardian of said had resort to the weapon not to kill but disable two minors, and most of the payments were bis assailant: Rippey v. Slate, 2 Head., 217; made to him. The petition of E. P. Jones, Esq., Franklin v. State, 29 Ala. 14; People v. Lamb, filed April 23, 1831, before referred to, asked for 54 Barb., 312; S. C., 2 Keyes, 369; Raybold v. an order of the Orphans' Court to compel the adPeople, 17 Abb., 350; 54 Barb., 350.

ministrator to sell the real estate of the decedent

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for the payment of debts. By this original pe- or demand where the same is not payable withtition the heirs were not made parties, and in the said period of five years shall be filed George Oliver, administrator, filed his answer, within the said period of five years in the otfice setting up that more than five years had elapsed of the prothonotary of the county where the since the death of his father, and that the peti- | real estate to be charged is situate, and then to tioners were barred by the Act of February 24, be a lien only for the period of five years after 1834, 1 Purd. Dig., p. 422, Sec. 88. Thereupon a said bond, covenant debt or demand becomes supplemental petition of Mrs. Nancy Neel was due." The great object of this act was to quiet filed, and to this supplemental petition the an- the title of heirs and devisees, and purchasers swer of all the appellants was presented and from them, to the lands derived from decedents. filed. This answer also set up the bar of said It was only necessary for a purchaser or nortstatute, and that five years having elapsed since gagee to resort to a single office-the prothonothe death of decedent, the creditors had lost all tary of the county-to ascertain whether any claim against the real estate of which William action had been brought or copy or statement of Oliver died seized. The case went to a hearing, any demand filed within the period of five years and the court below held that because the indebt- / from the decedent's death. If there was no. edness of William Oliver at the time of his death mortgage or judgment at the time of his death, was that of a guardian to his ward, that there and the office of the prothonotary was clear of fore the statute had no application; and accord any action or statement of demand, he might ingly, on June 28, 1882, more than seven years rest perfectly secure that his title was unincumafter William Oliver's death entered a decree bered by any debts or demands against the real directing George Oliver, administrator, within estate of the decedent whatever the nature of twenty days from that date, to apply for leave to the demand might be. It was decided in Kersell the real estate of decedent. For the opinion per v. Hoch, 1 Watts, 9, under a similar proviof the court below, see 29 PITTSBURGH LEGAL sion in the Act of 1797, that it applied for the JOUNAL, 456. From that decree this appeal is protection not only of bona fide purchasers but taken.

beirs and devisees and those claiming under For appellant, D. T. Watson, Esq.

them. No distinction is made in the character · Contra, E. P. Jones, Esq.

of the debt or demand. By the death of the

guardian the guardianship ended, and the balOpinion by SHARSWOOD, C. J. Filed Octo

ance in his hands was without any doubt a debt ber 23, 1882.

of his estate, which, when ascertained by a deUndoubtedly in an action at law or a pro- cree of the Orphans' Court, could be collected ceeding in the Orphans' Court, or in a court of from his real estate by proceedings within five equity, neither the guardian nor his personal years, and from his personal estate at any period representatives could set up the bar of the stat. short of that which would lack the presumption ute of limitations to the demand of the ward for of payment. It was said by this court in Birdthe balance due him. That statute does not run ley's Appeal, 19 P. F. Smith, 299, on the Act of in any case of a technical trust cognizable in 1834, that no admission, however solemn, will equity, which that growing out of the relation dispense with an action. “The leaning of this of guardian and ward unquestionably is. This court, through the whole current of the numeris all that the cases cited and relied upon in the ous decisions upon this subject, has evidently opinion of the learned judge in the court below | been to favor the heir and to require of the creddecide. But they do not touch the question in itor the vigilant prosecution of his demand in this case, which is, whether the demand of the the mode pointed out." No exception has been ward continues a lien upon the land of a de- recognized to the operation of the Act of 1934 ceased guardian more than five years after his other than those expressly named in it. The death. The words of the 24th section of the exceptions expressed necessarily exclude all Act of February 24, 1834, P. L., 77, are: “No others. It is a mistake to suppose that the cases debts of a decedent, except they be secured by of Alexander v. Mc Jurry, 8 Watts, 504, and mortgage or judgment, shall remain a lien on | Baldy v. Brady, 3 Harris, 111, have any bearthe real estate of such decedent longer than five ing upon the subject. A testator may create a years after the decease of such debtor, unless trust of all or a part of his real estate, and ceraction for the recovery thereof be commenced tainly as to the lands comprised in such trust, and duly prosecuted against his heirs, executors the debts would not lose their right of payment and administrators within the period of five by the running of five years or any other period years after his decease; or a copy or particular other than such as would raise the presumption written statement of any bond, covenant debt of payment. This was all that was decided in

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