McAllister vs. Miller. parently designedly failed to fill up the blanks in the agreement as to the continuation of the lease and there is, therefore, no agreement as to the effect of the defendant's continuing in possession except that which would be implied by law. If the defendant was allowed to pay his rent at the end of the month instead of at the first of it for a number of months withcut notice that he would be required to live up to the contract, as alleged by him, this would seem to estop the plaintiff from entering a judgment against him for the whole amount of the rent without a demand for payment. We are, therefore, of opinion that the judgment should be opened to allow the defendant to make these defenses, as well as to show what payments he has made on account, but not to allow the defendant to set up as against the judgment the damages which he claims as above stated. The rule to open the judgment is, therefore, made absolute to allow defendant to make all the defenses set up by him except those in which he claims damages from the plaintiff for the entry of judgment and issue of execution. Klein et ux. vs. Pittsburgh Railways Co. Negligence- -No Testimony by Defendant- -Motion for Judgment N. O. V.— In an action for damages, for personal injuries where defendant, on refusal of a point for binding instructions, goes to the jury without offering any testimony, and a verdict is returned in favor of the plaintiff, on motion for judgment non obstante veredicto, evidence tending to establish a fact will be taken and construed, so far as the evidence permits, in favor of plaintiff and against defendant. Where plaintiff testimony is conflicting and does not establish a clear case of negligence, a new trial should be granted. Sur Motions by Defendant for a New Trial and Judgment N. O. V. No. 2082 October Term, 1914. C. P. Allegheny County. Lawrence B. Cook and John R. Frankel, for plaintiff. HAYMAKER, J., July 24, 1916.-This is an action of trespass to recover damages for injuries to the wife. When plaintiffs closed their case defendant offered no testimony, but put a point for binding instructions, which was denied. The plaintiffs recovered a verdict and the motions for a new trial and judgment for defendant n. o. v. followed. We will first consider the motion for judgment, which we cannot now enter for defendant unless we would have been justified in directing a verdict in its favor. In passing on this motion we should consider as established every fact favorable to the plaintiffs which is supported by any evidence produced on the trial, without regard to our opinion of the truth of that evidence or the probability of the story. The wife was struck by defendant's car as she was attempting to cross Penn Avenue from the north to the south side thereof, at Eighteenth Street, at about five o'clock on the evening of June 9, 1913. At the place involved Penn Avenue runs practically East and West, upon which are double tracks. Eighteenth Street comes to Penn Avenue from the North but does not intersect the latter. Klein et ux. vs. Pittsburgh Railways Co. It was spoken of in the testimony as though it crossed Penn Avenue and ended at the South side thereof, and is mentioned as the Eighteenth Street crossing. The inbound and outbound cars regularly stop before crossing Eighteenth Street to take on or discharge passengers. There is no evidence as to the width of Penn Avenue at that point, except that of Mrs. Klein who said it was very narrow. From the evidence it also appears that at the time of the accident Penn Avenue was considerably congested by the wagons of commission merchants and that such merchants occupy the sidewalks and buildings at that point and transact much business upon both streets. The injured plaintiff was then about twenty-seven years of age and married. She was in the act of crossing from the North to the South side of Penn Avenue, on the East side of Eighteenth Street. Before starting to cross she stopped at the curb and waited there until an inbound or westbound car stopped and started and several wagons had passed in the same direction, and before starting over she looked in both directions for approaching cars, saw none, and when she got on the eastbound track she saw a car 140 or 150 feet away coming, variously estimated as "very fast," "two or three times as fast as they usually run," "twenty or more miles an hour," "going too fast and fairly flew." By another witness as going at "eighteen or twenty miles an hour," in a district where the "normal speed is eight or ten miles an hour;" and struck her just as she was stepping off the track. She testified that when she saw the car coming and realized her danger she could not turn back on account of a wagon and other cars behind her and going in the opposite direction to that of the approaching car. She also said that before she left the curb there were several persons standing on the West side of Eighteenth Street who she believed were waiting for an eastbound car. Another witness testified likewise, and further that there were six or eight persons waiting at that point and attempted to stop this particular car, but that it neither stopped nor slowed down until after it struck her, and it then ran fifty or fifty-five feet before coming to a stop. As we have said, it is not the duty of the Court to draw the proper inferences from the evidence, or attempt to reconcile the conflict in the testimony, and determine what the fact really is. This is doubtless a close case on the question of the wife's contributory negligence. The facts and inferences to be drawn from them are not so clear and free from doubt that we can pronounce upon them as a matter of law and say that she was undoubtedly guilty of negligence. While to be in doubt is sufficient reason to refuse a motion for judgment n. o. v. it may be sufficient reason for granting a new trial. After a careful review of all the testimony we cannot feel justified in permitting this verdict to stand. The motion for judgment n. o. v. is overruled, and the motion for a new trial is granted. Commonwealth vs. Horovitz. Criminal Law-False Pretense-Unsound Horse--Motion to Quash--Act of March 31, 1860, P. L. 408, Section 111. An indictment for obtaining money by false pretense will lie against one who, knowingly and designedly, and with intent to cheat and defraud, induces another to purchase a horse and pay the purchase price thereof, by falsely representing the horse to be sound. Motion in Arrest of Judgment. No. 221 September Sessions, 1916. Q. S. Fayette County. M. 4. Shapira, for motion. S. Ray Shelby and S. J. Morrow, District Attorney, for Commonwealth. VAN SWEARINGEN, P. J., October 18, 1916.-At the trial of this case a motion to quash the indictment was made, on the ground that no indictable offense was charged. We overruled the motion, and the defendant was convicted, whereupon a motion in arrest of judgment was filed, based upon the same ground urged in support of the motion to quash the indictment. The defendant was indicted for false pretense. The indictment alleges that the defendant, Abe Horovitz, on September 4, 1916, at the County of Fayette, and within the jurisdiction of this court, "unlawfully devising and intending to cheat and defraud Samuel Schwartz, of his goods, moneys, chattels and property, did then and there unlawfully, falsely and designedly, pretend to the said Samuel Schwartz that a certain gray horse was then and there sound, whereas in truth and in fact the said gray horse was not then and there sound, which said pretense and pretenses he, the said Abe Horovitz, well knew to be false when made as aforesaid by him; by color and means of which false pretense and pretenses he, the said Abe Horovitz, did then and there unlawfully and fraudulently obtain from the said Samuel Schwartz, one hundred and fifty dollars, lawful money of the United States of America, of the goods, moneys, chattels and property of the said Samuel Schwartz, with the intent then and there to cheat and defraud the said Samuel Schwartz of the same." Section 111 of the Act of March 31, 1860, P. L. 410, provides that if any person shall by any false pretense obtain from any other person any chattel, money or valuable security, with intent to cheat and defraud any person of the same, every such offender shall be guilty of a misdemeanor. The punishment of the offender is to be by indictment. In order to bring a case within the statute three things must co-exist: (1) a false pretense as to an existing fact, made with knowledge of its falsity, (2) an intent thereby to cheat and defraud, (3) an obtaining of property thereby. All of these matters are properly alleged in the indictment now under consideration, and all of them were sufficiently proved at the trial. In our charge we instructed the jury that before convicting the defendant they should find that the representation by the defendant that the horse was sound was false, that at the time the representation was made the defendant knew it was false, that it was made by the defendant with the intent thereby to cheat and defraud the prosecutor, and that the prosecutor acted on the faith of the representation and was induced thereby to part with his money. In Commonwealth vs. Hoover, 6 Lancaster Law Review, 129, a demurrer to an indictment such as this was sustained by the Court of Quarter Sessions of Lancaster County, and that decision was followed by one of the judges of this Court in Commonwealth vs. Chamberlain, at No. 159 Commonwealth vs. Horovitz. September Sessions, 1903. But in the later case of Commonwealth vs. Hinden, 37 Pa. C. C., 47, 19 Dist. R., 718, the Lancaster County Court, as then constituted, refused to quash a similar indictment, which action conforms to our judgment in the matter. To the same effect is Commonwealth vs. Sebring, 1 Dist. R., 163. And now, October 18, 1916, the motion in arrest of judgment is overruled and dismissed. Commonwealth vs. Mottern et al. Criminal Law-Murder- -Poverty Appointment of Counsel—Compensation-Affidavit-Act of March 22, 1907, P. L. 31. A defendant indicted for murder, who presents his affidavit, setting forth that he is wholly destitute of means to employ counsel and prepare for his defense, under the Act of March 22, 1907, P. L. 31, should not, in such affidavit, request the appointment of particular attorneys for his counsel. The court ought not to be embarrassed by a request for the appointment of any particular member of the bar and should be entirely free to determine whether one or two counsel should be assigned. Counsel, who may be appointed, should not expect full compensation, but to serve in part from a source of their duty to the court and to the public. Such a defendant should state what means or property he had at or immediately before the institution of proceedings, and, if he had means or property, what disposition he made of it. Affidavit by Each Defendant for Himself, Under the Act of March 22, 1907, P. L. 31, for Assignment of Counsel, With Request for Appointment of W. M. Fairman and W. L. McCracken, Esqs. No. 14 April Sessions, 1916. Q. S. Jefferson County. CORBET, P. J., June 5, 1916.—In the third section of the statute of May 31, 1718, Third Statutes at Large of Pennsylvania, page (199) 201, it was enacted: "That upon all trials of the said capital crimes, lawful challenges shall be allowed, and learned counsel assigned to the prisoners, and shall have process to compel witnesses to appear for them upon any of the said trials." It was said in the opinion in Wayne County vs. Waller, 90 Pa., 99: "They (counsel appointed by the court to defend one indicted for murder) were officers of the court, and, like others, took their offices cum onere. One of these burthens, which custom has recognized is the gratuitous service rendered to a poor prisoner, at the suggestion of the court. To hold that counsel, appointed to defend insolvent prisoners, may demand compensation from the county, would be a departure from a time-honored custom to the contrary, and it is not difficult to foresee the mischief to which it would lead. It is far better to let such cases rest on the foundation which has hitherto sustained them: human sympathy and a just sense of professional obligation. No poverty stricken prisoner is ever likely to suffer for want of necessary professional or pecuniary aid.” In Commonwealth vs. Darmska, 35 Pa. Superior Court, 580, it is said, referring to the Act of March 22, 1907, P. L. 31: "The specific object is compensation to counsel appointed by the court to defend impecunious prisoners tried for murder. Prior to this enactment such services were Commonwealth vs. Mottern et al. gratuitously rendered according to the duty which the members of the bar owed to the court and to the public. Human sympathy and a due sense of professional responsibility were considered to be the sufficient motive for action in such cases. The relation of the counsel so appointed was not one of contract with the accused, but it was a gratuitous responsibility arising from the official relation of such counsel to the court. The right to compensation was denied because neither at common law nor by any statute was it authorized. This Act (March 22, 1907) was passed for the purpose of enabling poverty stricken persons accused of murder to more fully prepare a defense. Under its provisions the attorneys appointed are not only allowed compensation, but may be reimbursed for their personal and incidental expenses connected with the discharge of the duty imposed. The provision for payment by the county is a reasonable if not a necessary incident. Indeed, it is not apparent how resort could be consistently made to any other fund than that provided by the county. The assignment of counsel is a judicial act as is well known. As applied to a murder case it has reference to the appointment of an attorney or attorneys for one who is financially unable to secure his own counsel. The only reason for the assignment of counsel is that the defendant is not able to employ them, himself, and what he is not able to do the law steps in and does for him. The effect of the enactment is to increase, with the approbation of the court, the necessary charges for which the county is liable in the particular case, and thus to place persons of a certain class tried for murder in a more advantageous position to secure a fair trial." The Act in question was, by the case last cited, determined to be constitution; and has the approval of the Supreme Court. Commonwealth vs. Polichinus, 229 Pa., 311. It is a part of the enactment "that whenever any person, being under indictment, charged with murder, shall make or file with the clerk of the Court of Quarter Sessions an affidavit, setting forth that he or she is wholly destitute of means to employ counsel and prepare for his or her defense, the judge sitting in the Court of Oyer and Terminer, to whom such affidavit is presented, shall assign to such person counsel, not exceeding two, to represent and defend such person at the trial of the case; and when services are rendered by counsel in pursuance of said assignment, the judge sitting at the trial of the case may allow such counsel ali personal and incidental expenses, upon a sworn statement thereof being filed with the clerk of the Court of Quarter Sessions, and also reasonable compensation for services rendered not exceeding two hundred dollars for each counsel." No doubt the spirit and reason which, before the passage of the Act, prompted and required the services of counsel for a defendant in such a case without compensation, is still measurably intended, and that counsel are not to expect such entirely full measure of compensation as their labors and services would ordinarily entitle them to from a client who personally employed them. The maximum compensation mentioned in the Act indicates this, and that such measure of compensation is only to be allowed in exceptional cases. In the case of Commonwealth vs. Smith, 24 D. R., 711, an Allegheny County case, it is stated to be the practice in that county, based upon the assent of the judges of the county, that when two counsel are appointed, the allowance to each shall not exceed one hundred dollars. The defendants in this case have severally requested the appointment of Attorneys W. M. Fairman and W. L. McCracken as their counsel. We do not think that any such request or designation should be made a part |