In re Trust Companies Acting as Real Estate Brokers. brokers, "whether persons, firms, limited partnerships or corpoations," shall pay the tax as provided by it, and the full effect of the decision in the case of Commonwealth vs. Samuel Black Co., 223 Pa., 74, applies to the Act of 1907. As stated by Cunningham, Assistant Deputy Attorney General, in an opinion rendered to your Department July 9, 1907, the Act of May 7, 1907, P. L. 175, merely enlarges the classification of brokers subject to a tax and changes the method of assessing it. As it appears in Section 11 of this Act, it is intended to supersede all license taxes theretofore required to be paid by those defined in the act. I might well summarize by quoting Eastman on Corporations, Vol. 1, page 700, in which is correctly stated the answer to your inquiry: "Numerous other license taxes for state and local purposes exist in Pennsylvania, and corporations are subject to the payment of those equally with individuals if they engage in the businesses to which such licensed taxes relate respectively." I, therefore, have to advise you that a trust company which handles or deals in real estate for a commission or other compensation, is subject to the license tax imposed on real estate brokers under the Act of May 7, 1907. Very truly yours, HORACE W. DAVIS, Griscom vs. Griscom. Divorce Testimony-Hearing Before a Master. In an ex parte proceeding in divorce before a master it is the duty of the master to exclude incompetent evidence that is not admissible under the rules. In divorce. No. 1207 April Term, 1915. C. P. Allegheny County. Robert M. Ewing, for libellant. Paul J. Friday, Master. MACFARLANE, J., September 14, 1915.-It is the duty of a Master in divorce to exclude testimony that is not admissible under the rules, even though the proceeding is ex parte. In this case, as in many others which have come to our attention, this duty has been overlooked. The reputation of the libellant is not in issue. Armstrong should not have been permitted to testify against his wife. There is other competent evidence sufficient to warrant the decree. In re Opening of Ballot Boxes in Allegheny County. Elections-Opening Ballot Boxes Primaries-Petitions—Allegations as to Fraud-Act of July 12, 1913, P. L. 735. Five electors petitioned that certain ballot boxes be opened, alleging fraud on information which they believed to be reliable. The petitioners were not residents of the precincts in which the alleged fraud was committed, but lived in other districts in the same county. The court made an order directing that the boxes be opened. The respondents moved that the order be vacated on the ground that the words "any precinct" in the 15th section of the Act of July 12th, 1913, meant that petitioners must be residents of the precinct in which the alleged fraud was committed. Held: That the word "any" ought to be interpreted to further the general purpose of the Act which is to preserve purity of the ballot, and the ballot boxes were ordered to be opened. Respondents further objected to the opening of the ballot boxes in that petitioners did not sufficiently aver any grounds for the action of the Court in that no specific acts of fraud or reasons for their belief were set out. Held: That an allegation upon information and which petitioners believed to be true that votes were cast for a candidate which in error were not counted for him was sufficient to bring petitioners within the provisions of the Act of 1913, and motion to vacate order to open boxes refused, and a recount should be made according to the provisions of the Act, and an order of court deemed proper under the circumstances. Motion to vacate orders to open ballot boxes. 1915. C. P. Allegheny County. No. 1795 October Term, Thomas Patterson, Walter Lyon, Clarence Burleigh, Richard W. Martin, Harry Diamond and Abraham C. Stein, for petitioner. George E. Alter, for respondent. BY THE COURT, September 29, 1915.—We are asked by the present motion to vacate orders heretofore made for the opening of a number of ballot boxes upon petitions of five electors of one precinct of the County. The proceeding is regulated by the 15th Section of the Act of July 12th, 1913, P. L. 735. This Act provides that upon the petition of five electors of any election precinct that any act of fraud or error which, upon information which they consider reliable, they believe, has been committed in any election precinct, the Court of Common Pleas shall order the ballot box of such precinct to be opened by the County Commissioners. In support of the motion to vacate, counsel contend that the Act does not authorize a petition by five electors of any precinct as to any precinct other than the one to which they belong; and the contention of those who oppose the motion is, that upon petition of five electors of any precinct that fraud has been committed in any precinct of the county, such an order may be made. It is argued on the one part that the legislature could not have meant to authorize the opening of a ballot box upon the petition of five electors of some other precinct, and that therefore the allegation of fraud in any precinct must be construed to mean an allegation of fraud in such precinct, or said precinct; and it is argued on the other hand, that as the legislature has used the term "any precinct" in this connection, their words must be taken in their ordinary sense. There is much force in each of these contentions, and the Act might bear either interpretation. We are of opinion that it ought to be interpreted to further its general purpose, which is to preserve the purity of the ballot. If we were to hold that the boxes could not be opened and it should turn out that this interpretation was erroneous, we would do a wrong not only to the candidates involved, but to the public. If the other interpretation be adopted, and the boxes opened, no harm can result to anyone. It is also objected to the petitions in question that they do not sufficiently aver any ground for the action of the Court. The Act of 1900, in In re Opening of Ballot Boxes in Allegheny County. regard to such petitions, required the petitioners to state their reasons for averring the fraud. This Act was amended in 1911, stiking out the provision and directing that the petition should allege a specific act of fraud; and the Act of 1913, which now governs the matter, provides only that they shall, upon information which they consider reliable and which they believe, assert that some act of fraud or error has been committed. We are of opinion that the changes made by the legislature in this respect indicate an intention to authorize such petitions as those in the present case, in which the allegations is, substantially, that votes were cast for a candidate which by error were not counted for him. The Act provides that the recount by the County Commissioners shall be "conducted in such manner and under such conditions as the Court shall prescribe," and from any decision made by them an immediate appeal may be made to the Court, to which power is given by the Act to hear and determine all matters relating to any fraud or error and make such decree as right and justice may require. The motion is therefore refused. In re Opening of Ballot Boxes in Allegheny County. Elections——Primaries——Contests-Common Pleas Court-Act of July 12, 1913, P. L. 735. In a contest over the opening of ballot boxes under the provisions of the Act of July 12, 1913, P. L. 735, as the act does not prescribe a time within which petitions are to be presented, they must be presented in a reasonable time, and as the time for examining ballot boxes cannot in this case extend beyond about October 9, one week after the primary was held to be more than a reasonable time under the circumstances. On account of delay occasioned by the dispute as to who might petition for the opening of ballot boxes, the time for petitioning was extended in regard to contests already begun. Order governing primary election contest. No. 1795 October Term, 1915. C. P. Allegheny County. Thomas Patterson, Walter Lyon, Clarence Burleigh, Richard W. Martin, Harry Diamond and Abraham C. Stein, for petitioner. George E. Alter, for respondent. BY THE COURT, September 29, 1915.-The election for county and other offices will take place on November 2nd. The law requires the County Commissioners to print and distribute ballots for that election. While the law does not seem to fix any particular time when the printing shall be begun, it means that the County Commissioners shall have a reasonable time in which to print the ballots. The practice in this county has heretofore been, as we understand it, to advertise for bids for printing of ballots, the bids to be opened twelve days before the election, and the contract for such printing requires the printer to begin ten days before the election. This is no more than a reasonable time for the purpose. The Act of 1913 in regard to Primary elections provides that any person aggrieved by any decision of the County Commissioners in making a recount shall have ten days to appeal from their decision, to the Court of Common Pleas. The Court of Common Pleas ought to have a reasonable time to hear and determine any such appeal, in addition to the times above mentioned. It is therefore necessary that any recount made by the Commissioners shall be made by the 9th of October, or sometime near that date. The Act does not provide that peti In re Opening of Ballot Boxes in Allegheny County. It ons for opening ballot boxes shall be filed at any particular time. means, however, that such petitions must be presented in a reasonable time. In view of the shortness of the time between the Primary, which was on September 21st, and the time when a recount must be finished as above stated, we are of opinion that it is now too late to entertain such petitions, except in cases in which a contest has been begun. In view of the delay cccasioned by the discussion of questions relating to the proper persons to petition, we have thought it right to extend the time in cases where the contest has been already begun. And now, September 29, 1915, it is ordered that no petition for the opening of ballot boxes for a recount of the votes for any office, as to which there is no petition now on file, will be received after this time, but where petitions are now on file pertaining to any office, the time for filing further petitions is extended to October 2, 1915. Commonwealth vs. Webb. -Comment on the Evidence Murder- -Charge to the Jury -Maliciously. Premeditately In its charge to the jury in a murder trial, the Court committed no error when there was a conflict in the testimony, either direct or circumstantial, both claims were given together, rather than narrate the whole at one time. When the defendant was the only witness present and when the only defense offered was that the wife had struck defendant in the head with a poker and raised a "lump" immediately before he had slashed her with a razor inflicting the fatal wounds, it was proper for the court to comment in its charge as to where the poker was found, and that no "lump" was noticeable when defendant was arrested soon after the crime was committed. Flight, in connection with other circumstances, may be taken as an evidence of guilt. No injury was done defendant by the inadvertent omission of the word "premeditately" by the court in its summary of the case at the close of the charge, nor would the world "maliciously," as it appeared in the transcript of the testimony when the word "premeditately" was clearly indicated in the context, and the difference was not noticed until long after the trial. Motion for a new trial. No. 24 May Sessions, 1915. O. & T. Allegheny County. Homer N. Young, Assistant District Attorney, for Commonwealth. SWEARINGEN, J., September 2, 1915.-About six o'clock A. M., February 21, 1915, in the kitchen of the rooms occupied by the defendant and his wife, third floor, 628 Paulson Avenue, Pittsburgh, the defendant cut his wife with a razor-twice on her left chest, twice on her right cheek and once on the right side of her neck. The last named cut extended from the middle of the front of her neck around to the middle of the back of her neck, and was about three inches deep, going to the spinal column. The carotid artery, the jugular vein and all the nerves and muscles on that side were severed. It was a most frightful cut and was necessarily fatal. Mrs. Webb died from loss of blood within a few minutes. The defendant almost immediately fled. He took the razor, stained with blood, with him. He was observed going along the street with his hat drawn over his eyes. He changed his shirts, which were bespattered with blood, and his hat for a cap at the house of Mrs. Pryor, his cousin, went through the Allegheny Cemetery, where he threw away the razor, passed over to the north side of the Allegheny River, and was apprehended the same morning near Hoboken, some four or five miles from the scene of the Commonwealth vs. Webb. homicide. He told untruthful stories about his disposition of his shirts, but correctly stated where he had thrown the razor. The shirts and hat were found at Mrs. Pryor's. The killing of Mrs. Webb by the defendant, in the manner stated, was not denied. The Commonwealth therefore relied upon the facts and circumstances, either admitted or proved, to establish that the homicide was committed not only maliciously, but also wilfully, deliberately and with premeditation. These facts and circumstances were the number and character of the wounds, the weapon used, the vital parts of the body struck. the flight of the defendant, his concealment of his identity and of the evidences of the crime, and his untruthful testimony and statements as shown in the evidence. "The number and character of the wounds inflicted upon the person of the deceased is a sufficient answer to the allegation that the case does not contain the elements of murder in the first degree." Commonwealth vs. Straesser, 153 Pa., 451. "Flight is considered as evidence of guilt." Commonwealth vs. Bezek, 168 Pa., 603. The defendant's was the only direct testimony as to what occurred. His wife was dead. When he married her, she had a boy eight years old, by a former marriage, and she was rearing the little daughter of her deceased brother, about four years old. On the evening previous, she had sent these children to a neighbor's, as had been the custom when both she and the defendant were going out; so that these children were not present. The defendant testified substantially as follows: The evening previous, his wife had upbraided him for not giving her enough money and had threatened to get another man who would give her sufficient. He then left the house, met some friends, played a few games of pool, and drank some beer. She left later than he did. They both returned shortly before midnight, she a little sooner than he did. There was a renewal of the controversy, and she again threatened to get a man who would give her sufficient money. He remonstrated. They slept together, upon the couch in the kitchen. Next morning, while she was dressing, she renewed her complaints about money and reiterated her threats. He again remonstrated. She finally struck him with a poker, shoved him into a corner and hit him a blow on the head, which raised a lump. He said this made him 'real mean, passionate and vicious,' and that he 'must have' taken the razor from the shelf where it lay and cut. her, though he did not remember doing so. He denied that he had changed his hat for a cap. Consequently, the defendant's counsel did not ask the jury for a verdict of acquittal, but he suggested one of manslaughter. The burden of the argument for a new trial is that the defense was not adequately presented to the jury. We cannot agree that this is well taken. We think rather that the defendant has confused what he terms inadequacy with what, in reality, was weakness of his defense. An examination of the transcribed charge shows that the attention of the jury was called to every material portion of the foregoing defense. The method was to give both claims together, where there was a conflict in the evidence, either direct or circumstantial, rather than to narrate the whole at one time, so that the jury might intelligently find the actual facts. For example, the claims of both sides, relative to the alleged striking of the defendant with the poker, were set in contrast. Then the defendant's points, which were affirmed, stated his defense, and they with the answers thereto were intended to be the last instructions to the jury. We think this was the fair way of presenting the case and we do not doubt that it was the more advantageous to the defendant. |