Commonwealth vs. Filler.

or his counsel, the jury went to the Arch at Brushton Avenue, and there remained from fifteen to twenty minutes, viewed, inspected and examined the abutments of said Arch, and also the location of a clock in the tower of the Pennsylvania Station; that the jury was then brought to the Court House, and immediately after the opening of Court, at 9 o'clock A. M., his Honor, A. D. McConnell, charged the jury in the aforesaid case."

The place visited was not the place of the homicide, or near it. The only thing that could make the abutments of the arch or the railroad clock things of interest was some casual remarks of the defendant while on the witness stand. Whether the abutments or the clock existed were not, in themselves, things material to a showing of either his guilt or his innocence. That the defendant was in that particular locality, on the afternoon of the same day the homicide was committed both the Commonwealth and the defendant agree, and have both furnished proof of that fact. Taking all that defendant said about the abutement, it is not clear just where he was with reference to it, when he said he had applied talcum powder to some portion of his body. While one part of his testimony conveys the idea that he had looked at the clock, when at the Arch, yet elsewhere in his testimony, he says he looked at it from another place on the street. That was but an incident, a casual remark in his testimony that was not deserving of any very serious consideration, nor did it receive any consideration in the Commonwealth's rebutting evidence, as we now recall that evidence. But because the jury was improperly allowed by the officers to see the locality while the jury were out exercising along the streets in that part of the town, we are now asked to set aside the verdict and grant a new trial. It is not alleged that they were taken there through the procurement of any one connected with the prosecution; it is not alleged that any one had had any communication with the jury while they were at the Arch; the officer in his affidavit deals only with the fact of their presence there at the request of some of them, the length of time they remained there, and the fact of their looking at the locality. His testimony bears entirely on their acts, and not at all with their words. He does not say that he, or anyone else, had any communication with them, or they with him, or with anyone else. He does not pretend that he overheard any of their deliberations.

Conceding that there was misconduct in both the jury and the officers in going to that locality, when it was avoidable by seeking exercise on some other street, the question now presented is whether there is such evidence presented as would enable the Court to say that the defendant has been prejudiced by the irregularity, and has been thereby deprived of the fair trial which he is entitled to. The unsworn motion and reasons, of course, are not, in themselves, evidence, and the affidavit of Caldwell falls far short of supporting the broad allegations of the motion and reasons.

"As a general rule, a verdict will not be set aside on account of the in:sconduct or irregularity of a jury, unless it be such as might affect their impartiality, or disqualify them from the proper exercise of their functions." Com. vs. Thompson, 4 Phila., 215: Allison, J.

"A motion for a new trial is an appeal to the discretion of the Court; it will not be granted unless injustice has been done." Com. vs. Eberle, 3 S. & R., 9.

It is not the bare fact of misconduct in a jury that entitles a defendant to a new trial; but it is misconduct that has deprived him of a fair trial, and thereby has worked an injury to him.

We do not think that the only misconduct of the jury that the evidence establishes has deprived the defendant of any legal right, and a new trial is accordingly refused.

City of McKeesport vs. McKeesport Passenger Railway Company, et al. Municipalities-Street railway companies--Occupation of Streets-Consent to use- Compensation for use-Collection of.

In 1886 a borough authorized a passenger railway company to occupy certain of their streets under an ordinance which provided that no license for borough purposes should be levied upon the company until the expiration of five years after the company began to operate its railroad and "after the expiration of such period of five years said company shall pay into the borough treasury such sum as license as council may hereafter provide for." In 1890 another borough ordinance was adopted granting additional privileges to the railway company and providing that "the company shall for the period of fifteen years from and after the completion of the lines aforesaid be exempted from the payment of any license to the borough for the franchises granted by its corporate ordinance." The ordinances were accepted by the railway company and its lines constructed in the borough. Before the expiration of the time fixed in the last mentioned ordinance the borough became a city and in 1905 the city, by ordinance, provided that the "company shall hereafter pay for the license to the City of McKeesport, successor to the Borough of McKeesport, for city purposes for the franchises granted by said ordinance, the sum of $8,000. per year.

In an action by the city to recover the arrearage of annual charges which had accrued under the last mentioned ordinance It Was Held that the city. being the successor of the borough, succeeded to all the rights of the borough and stood in the place of the borough with the right to collect the charge fixed by the ordinance of 1905. The amount sued for was the consideration charged by the municipality for granting consent to the railway company to Occupy and use its streets in accordance with the original contract of the company.

Sur motion ex parte defendant for judgment for defendant non obstante veredicto. No. 315 Fourth Term, 1911. C. P. Allegheny County.

W. E. Newlin, for plaintiff.

Reed, Smith, Shaw & Beal, for defendant.

FRAZER, P. J., December 31, 1914.-The City of McKeesport is a city of the third class, and the successor of the Borough of McKeesport. By an ordinance of the Borough, approved September 22, 1886, the McKeesport Passenger Railway Company was granted the right to construct and operate a street railway over and upon certain streets in that municipality. Among the provisions of the ordinance was one to the effect that no license for "borough purposes" should be levied upon the Company until the expiration of five years after the Company begins to operate its railway, "and after the expiration of said period of five years said company shall pay into the borough treasury such sums as license as Council may hereafter provide for." Subsequently, on March 4, 1890, a second ordinance was adopted by the Borough, granting additional privileges to the McKeesDort Passenger Railway Company, and providing 'said company shall for a period of fifteen years from and after the completion of the lines aforesaid be exempt from the payment of any license to the borough for the franchises granted by its several ordinances." These ordinances were accepted by the Railway Company, its railway constructed and it has been operated thereunder since 1891. By an ordinance approved October 11, 1905. it is provided, inter alia, as follows: Sec. 1, That the McKeesport Passenger Railway Company shall hereafter pay for license to the City of McKeesport, successor to the Borough of McKeesport, for city purposes, for the franchises granted by said ordinance, the sum of $8.000.00 per annum." By various mergers, consolidation and leases the property and franchises of the McKeesport Passenger Railway Company became vested in the United Traction Company, which company is now and has been since December 30, 1901, operated by the Pittsburgh Railways Company. This action is to recover the amount of the license provided fo

City of McKeesport vs. McKeesport Passenger Railway Company, et al.

in the ordinance of October 11, 1905, for the years 1907, 1908, 1909, 1910 and 1911, with interest on each amount, and ten per cent. penalty for failure to pay as provided in the ordinance referred to. Defendant companies, at the trial, denied liability under the ordinances above referred to, claiming that the provisions in the ordinance of September 22, 1886, referred to any general license that might be imposed by the Borough upon railway companies, and not a license specifically imposed upon the McKeesport Passenger Railway Company; and further, that under the laws of this Commonwealth the City of McKeesport, which is a City of the third class, has no power or authority to levy such license upon a railway company as is imposed by the ordinance of October 11, 1905; also that the license sued for is unreasonable, unjust and unconstitutional. At the trial a verdict was

rendered in favor of plaintiff, and this motion followed.

The reasons urged in support of the motion are the same as those set up to prevent a recovery at the time of the trial. At that time we were of opinion that the defence was not sufficient, and have not been convinced that we were in error in reaching that conclusion. The Constitution secures to all municipal corporations the exclusive right to either refuse or consent to the construction of street railways within their limits. If consent is given. it is settled beyond doubt that the municipality may attach to its consent such terms and conditions as it may deem proper. If the railway company accepts those conditions it is bound by them and must discharge all duties and obligations imposed upon it by the ordinance granting such consent. One of the leading and early cases touching this question is Allegheny City vs. Millvale, Etna & Sharpsburg Street Railway Co., 159 Pa., 411. That case holds that the Constitution vests absolute discretion in the municipality, and that the local body in granting its consent to the construction of a street railway within its limits may impose conditions under which the right may be enjoyed by the railway company. The question involved here is not the right of the City to collect either a license fee from the defendant, as such fee is generally understood to be, or a tax upon its property. The amount sued for is the consideration charged by the municipality for granting consent to the railway company to occupy and use its streets in accordance with its contract with the company. The fact that the ordinance calls the consideration a license fee does not change its character. The charge still remains the price to be paid for the privilege of using the streets of plaintiff city. That the city, being the successor of the borough, succeeded to all the rights of the borough, and therefore, so far as this case is concerned, stands in the place of the borough with the right to collect the license or charge fixed by the ordinance of October 11, 1905, there can be no doubt. Defendants' counsel cited as supporting their contention, McKeesport vs. McKeesport Pass. Ry. Co., 2 Supr., 242. As we understand that case it does not rule the question raised here. That case relates solely to the right of the municipality to collect a license fee on the company's trolley poles, by virtue of an ordinance enacted under its police power. In that case the ordinance applied to all telephone, telegraph, electric light and street car companies using the streets of the city, the purpose being to provide for the payment of the expense incurred by the City in the inspection of electric wires and other dangerous agencies used as part of the equipment of public service corporations, and does not touch upon the power of the City to contract with Street Railway Companies for the occupancy and use of streets. While the affidavit of defense sets up that the charge is excessive and unreasonable, no testimony was offered in support of that allegation. We must. therefore, assume that the amount fixed in the ordinance is reasonable. Being of opinion that the case is within the rule laid down in Allegheny

City of McKeesport vs. McKeesport Passenger Railway Company, et al. vs. Railway Co., Supra, and other cases of that class, the motion for judgment non obstante veredicto must be refused.

And now, to wit: December 31, 1914, the motion ex parte defendant for judgment for defendant non obstante veredicto is refused, and it is ordered that judgment be entered on the verdict on payment of the verdict fee. To which order defendant excepts, and at its instance bill sealed.

Criminal law

Commonwealth ex rel. Trainor vs. Francies.

-Commutation of sentence-Conviction during commutationAct of May 11, 1901.

Section 4 of the Act of May 11, 1901, provides that in case of commutation of a part of a sentence and the prisoner being convicted of a felony during the period of commutation, he shall serve in addition to the sentence on the new conviction, the balance of the term on the old sentence. Plaintiff in a Habeas Corpus proceeding was convicted in March, 1902, and sentenced to five years in prison. He received a commutation of one year and six months. In March, 1906, he was again convicted and sentenced to five years imprisonment, receiving a commutation of one year and five months, but was compelled to serve out the term of the previous commutation, and was discharged on April 1, 1911. He was again convicted on August 21, 1911, and sentenced to a term not exceeding three years. Held, that as the last conviction was after the end of the term of the second sentence, the Act of 1901 did not apply even though the second term was extended by reason of serving out the commutation in the first sentence, and plaintiff was entitled to his release at the expiration of the period of his third sentence.

Petition for writ of habeas corpus. No. 6 January Term, 1915. C. P. Allegheny County.

A. M. Fuller, for relator.

J. E. B. Cunningham, Deputy Attorney General, for respondent.

FORD, J., October 13, 1914.-The petition for a writ of habeas corpus filed by the relator, David W. Trainor, sets forth that on August 21, 1911, he was sentenced to undergo an imprisonment in the Western Penitentiary of Pennsylvania for a term of not less than one nor more than three years; that he has served the maximum term of said sentence, and that the warden of the penitentiary without authority continues unlawfully to restrain and imprison the relator in the said penitentiary and refuses to discharge him therefrom.

The return to the writ admits that the relator is confined in the penitentiary; that he has served the maximum term of said sentence and that his release was refused; but says that:

1. On March 6, 1902, the relator was convicted of a felony and sentenced to undergo an imprisonment in the penitentiary for a period of five years. The full term for which the relator was sentenced would have expired March 6, 1907, but under the provisions of the Commutation Act of 1901 the relator earned, and upon recommendation of the Pardon Board the Governor granted, a commutation or diminution of one year and six months upon the sentence of five years. The relator was discharged September 6, 1905.

2. On March 2, 1906, the relator was convicted of a felony and committed to the penitentiary to undergo an imprisonment of five years. On this sentence he was granted a commutation of one year, five months and one day, so that the relator would have been entitled to his discharge on October 1, 1909, had it not been for the fact that by reason of his conviction on March 2, 1906, he had forfeited his commutation of one year and six months granted upon the sentence of March 6, 1902, wherefore he was required to serve

Commonwealth ex rel. Trainor vs. Francies.

without commutation the forfeited period and accordingly was discharged on April 1, 1911.

It is contended by the respondent that by the conviction on August 21, 1911, the relator forfeited the commutation of one year, five months and one day earned and granted upon his sentence of March 2, 1906, and would therefore be compelled to serve said period of one year, five months and one day in addition to the indeterminate sentence of August 21, 1911, or until January 22, 1916, unless sooner recommended and granted a parole under the existing laws of the commonwealth.

Disposition of the question involves a consideration of the Act of May 11, 1901, P. L. 166, passed as indicated by the title, to regulate the control and discipline of persons convicted of crime with a view to their reformation. Section 4 of the act is as follows: "The Governor shall in commuting the sentence of convicts as provided for in this act, annex a condition to the effect that if any convict so commuted shall, during the period between the date of his or her discharge by reason of such commutation and the date of the expiration of the full term for which he or she was sentenced, be convicted of any felony, he or she shall, in addition to the penalty which may be imposed for such felony committed in the interval as aforesaid, be compelled to serve, in the prison, penitentiary or workhouse in which he or she may be confined for the felony for which he or she is convicted, the remainder of the term without commutation which he or she would have been compelled to serve but for the commutation of his or her sentence as provided for in this act."

The full term of the sentence of March 2, 1906, expired March 2, 1911. Had it not been for the forfeited commutation on the previous sentence, the relator would have been discharged on October 1, 1909. He was not convicted of a felony in the period between the date upon which he was entitled to discharge by reason of the commutation and the expiration of the full term for which he was sentenced. He was convicted on August 21, 1911, about five months after the expiration of the full term for which he was sentenced.

It is conceded that no provision seems to be made by the letter of the Act of 1901 for a situation such as has arisen in the case of this relator, but it is urged that the full benefits of the commutation act are extended only to such convicts as abstain from the commission of felonies during the interval of time they are at liberty by reason of the granting of commutation, hence it is contended that the relator is not entitled to any credit for having committed no felonies between October 1, 1909, and April 1, 1911, during which time he was in the penitentiary serving his forfeited commutation on the prior sentence. We realize the force of, but cannot assent to, this contention. When discharged on April 11, 1911, he had served the original term cf imprisonment and the term as commuted for the second offence. True, for the greater part of the term commuted on the sentence of March 2, 1906, the relator was not at liberty. Though imprisoned, he might have committed a felony and forfeited his commutation. However this may be, it is manifest that the relator did not violate the condition upon which the commutation was granted. He was not convicted of a felony during the commuted period, that is, between the date he was granted a commutation and the date of the expiration of the full term for which he was sentenced. He is therefore entitled to his discharge.

Now, October 13, 1914, it is ordered that John Francies, warden of the Western Penitentiary of Pennsylvania, discharge the relator, David W. Trainor, from further custody and imprisonment.