have been accomplished would not have been laid upon the roll-top desk, to be looked over and at some future time signed by the victim of the conspirators. In fine, the evidence surrounding the execution and making of this codicil presents no features of an unusual character. There is no evidence in the case that Andrew Chandler said one word with respect to the disposal of the property, and that Mr. True simply inquired of him if he desired to remember Madam Chandler. While Mr. True was guardian of Mr. Chandler, he was the recipient of no favors under this codicil. And he reiterates his statement of denial, in every possible form, that any one of the nephews, the Chandler boys, or the widow of the deceased brother, Mr. Neal, or any other person ever requested him in any way, directly or indirectly, to talk or confer with Mr. Chandler as to the disposition of his property.

The burden of proof rests upon the contestants to sustain the allegation of undue influence by a preponderance of the evidence. They have failed to do so.

The next proposition which the contestants assert as a reason why this codicil should not be sustained is that the three men above charged with the exercise of undue influence were also guilty of a fraud upon Mr. Chandler in inducing him to execute the codicil. We feel called upon to notice but one allegation, under this head, and that is that Mr. Neal read to Mr. Chandler the will and codicil of 1896, instead of the later will of 1897, as the will which the new codicil of 1902 was intended to republish.

We have already quoted in full item 3 of the will of 1896, and shown that the corre sponding item of the will of 1897 was identical, with the exception of the clerical omission of two unimportant words; that is, the two wills were in their substantial features precisely alike. Mr. Neal read the will of 1896 and the codicil, and at the request of Mr. Chandler read it again; and, as we have already held, under the question of testamentary capacity, he comprehended and understood it. With the exception of the provision in the will of 1897 directing a speedy settlement of the estate and a change or addition in the board of executors, there was no difference in the provisions of the two wills. It is apparent, therefore, that the codicil affecting the will of 1896, instead of that of 1897, perpetrated no fraud either upon Mr. Chandler or the residuary legatees under the will of 1897. The situation of the residuary legatees was not changed in any degree because the codicil was applied to the will of 1896, instead of that of 1897. If the testator was possessed of such mental capacity on August 9th as enabled him to comprehend the effect of the codicil which he executed, and we have decided that he was, we find in the evidence presented upon the question of fraud no adequate reason for setting it aside.

Our final determination upon all the contentions of fact is that the codicil republished the will of 1896 and the codicils thereto, which became a part thereof, and that said will and codicils are valid instruments representing the last will and testament of the testator, Solomon H. Chandler.

Appeal dismissed. Decree of probate court that the instrument purporting to be the last will and testament, dated March 10, A. D. 1896, of Solomon H. Chandler, late of New Gloucester, in the county of Cumberland, deceased, and codicils thereto, dated August 11, 1896, and August 9, 1902, be approved and allowed, and that letters testamentary issue to the executors, affirmed. Ordered, that the costs, stenographers' and counsel fees, and other expenses of the proponents and executors, in the probate court and supreme court of probate, be paid out of said estate by the executors, and charged in their account with said estate. Case remanded to the court below for further proceedings in accordance with this opinion. It is further ordered that the estate is not to be charged with the payment of any costs, stenographers' or counsel fees, or other expenses of the contestant.

While a prisoner accused of murder was in jail he sent for an acquaintance to become his bail, and the latter testified that, when the prisoner started to tell him about the killing, he was told that he was not obliged to say anything unless he wished to, and that what he said might be used against him. Held, that a confession then made was properly admitted in evidence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 14, Criminal Law, §§ 1157-1160.] 2. HOMICIDE EVIDENCE.

Where accused entered into a plot with another, by which the latter was to do the killing, while he was to wait at some little distance from the house to allow the murderer to escape, and then to set fire to the house, and the plot was carried out, accused could be convicted of murder in the first degree.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 26, Homicide, § 49.]

Appeal from Orphans' Court, Bradford County.

Charles Johnson was convicted of murder in the first degree, and appeals. Affirmed. See 63 Atl. 134.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

I. McPherson and Lilley & Wilson, for appellant. Charles E. Mills, Dist. Atty., David E. Kaufman, and Wm. Maxwell, for the Commonwealth.

The prisoner was indicted for the murder of Maggie B. Johnson, the wife of his brother, Bigler Johnson. The latter, having been indicted for her murder, was adjudged by the court below on his plea of guilty to have been guilty of murder of the first degree and sentenced to death. This judgment was affirmed in Commonwealth v. Johnson, 211 Pa. 640, 61 Atl. 246, and he was subsequently executed.

The murder was a most atrocious one. Bigler Johnson was not living with his wife, but was paying her $6 per month for her support. That he might be freed from this burden, she was murdered in her home on the night of September 18, 1904, and with her a child, about 10 years of age, who was her companion. To conceal the crime, the house was burned. The charred remains were found in the ashes. The appellant was indicted for murder as one of the participants in the killing of his sister-in-law, and the only questions to be determined by us on this appeal are the sufficiency of the evidence to justify his conviction of murder of the first degree and the proper submission of the case to the jury by the trial judge.

Without the appellant's confession, made October 25, 1904, the circumstantial evidence of his guilt was weak, but not so weak that the court was bound to say to the jury that without it there could be no conviction. In no part of the charge were they distinctly told that the circumstantial evidence was sufficient to convict, though they might have inferred from the instructions that it was, if they believed it. The evidence upon which they manifestly did convict, and upon which they must have understood the court to say that the case of the commonwealth chiefly rested, was the confession. On October 25, 1904, the prisoner, then in jail, sent for G. C. Hollon, and asked him to become his bail. Hollon refused, telling him that the case look ed dark for him. The prisoner then stated that he had not done the killing, but had "done the burning, or burned the building." He was then told by Hollon that, if he was only guilty of that, he would be punished accordingly, and he shortly afterwards made the confession offered at the trial. Hollon testified that the prisoner was told he was not obliged to say anything unless he desired to do so that no inducement or hope had been held out to him; that he was told that whatever he said might be used against him, and, after this caution, the confession was made. In substance the prisoner admitted that on the night preceding the murder he heard his mother speaking to other members of the family in regard to killing her daughter-in-law, Maggie B. Johnson; that the next morning he called her attention to it and she gave him no particular reply; and that on Sunday, September 18th, he and Bigler Johnson were in Towanda, when Bigler talked to him about killing his wife. The following is from the confession of the prisoner taken

down as he made it: "He [Bigler], asked the hack driver if the train was gone, he told him 'Yes.' He said he would go down home and leave his satchel at Steve Sullivan's. He said he and ma was going to put Mag out of the way. Nancy was going to stand outside the house watching. He said, 'I will give you and Lanson $3 apiece if you will burn the house.' I told him I did not want to have anything to do with it. He said he would give me the $3 'just as soon as I earned it.' I said, 'Get found out anyway.' He said, 'It won't.' He said, 'If you don't do it, I will get you in it anyway.' I said, 'I don't want anything to do with it.' He said, 'What do you say?' He said, 'Lanson said he would go up with you to burn the house.' So he asked me what time I would be down. I told him about 8 o'clock or half past 8. He said they would be down there by the bridge, Powers' bridge, and I went down there from Will's. They were there by the bridge, Bigler and ma, Lanson and Nancy. He said, 'You got any matches?' I said, 'No.' He reached in his pocket and give me a handful of matches. Q. Who was this? A. Bigler; and I put them in my pocket and we went up. He said, 'Don't go too fast, so I can go down and change my clothes and go up town.' And then I walked along up the road, me and Lanson. We waited there to the four corners, and he came along and whistled. Q. Which four corners was that? A. Where you turn up towards Perry Pool's up that river road. He told us to wait about three-quarters of an hour and that would give him a chance to get to town. Q. Bigler told you? A. Yes; and we waited along the road there about three-quarters of an hour, and then went up and poured oil on the carpet and floors on the bedroom and on the outside of the house and set the fire, and went down the road, went back home. When we got down by Herb Lamb's, looked back and the house was all in flames. Lanson, he, went on down home and I went up to Will's."

"To exclude a voluntary confession of guilt, some inducement must be held out to prompt to falsehood, and on this the trial court must be the judge in the first instance, and their ruling will be set aside only for manifest error. Fife v. Commonwealth, 29 Pa. 429." Commonwealth v. Johnson, 162 Pa. 63, 29 Atl. 280. After having heard a recital of the cir cumstances under which this confession was made, there was no semblance of error in admitting it. But even after it was admitted the trial judge, with all due regard for the rights of the prisoner, instructed the jury: "While the question of the admission of this alleged confession was primarily for the court, and it was received in evidence, yet we say to you, carefully weigh the evidence in the light of the defendant's surroundings and environment, his apparent mental caliber, his age, the fact that he was in jail, that he was trying to secure bail, and what was said, and from all the evidence determine

whether or not the confession or statement read was freely and voluntarily made, as we have explained to you. If it was not, exclude it from your consideration. Direct your inquiries in the same manner to the other statements, and, if they were not voluntarily made, exclude them also from your consideration, treating them all the same as though they never had been offered in evidence, and base your verdict solely upon the remaining testimony in the case. If, however, you find the confession was freely, voluntarily made by the defendant after being properly warned, it is important evidence in the case for your consideration."

But it is contended that, even if the confession of the prisoner was voluntary and true, it did not connect him with the actual commission of the crime, and under it he was at most guilty only as accessory after the fact. The answer to this is that he was in the plot before the murder was committed and remained in it until it was consummated by the burning of the house. After Bigler had planned it he told him what he was about to do and assigned to him work to be done in carrying out the murderous scheme. The prisoner agreed to do what was asked of him. If he had not so agreed in advance of the commission of the crime to aid in its concealment and in the escape of the murderer, the murder might not have been committed. What he agreed to do was in the eye of the law an agreement to aid and abet, and he carried out his agreement. If, in pursuance of an agreement with Bigler, he had gone with him to the house and stood outside of it while the murderer went in to kill the woman, and, when he emerged, had fired it to conceal the crime and facilitate the escape of the guilty party or parties, that the degree of his guilt would have been no less than that of the actual murderer cannot be questioned. Instead of doing that, he did what must be regarded as the same thing in determining the degree of his guilt. He took his iniquitous post at some distance from the house, waiting for the murder that he knew was about to be committed, and, after the lapse of about three-quarters of an hour, the time agreed upon by Bigler and himself as sufficient to give the former a chance to get away, he went to the house and fired it in pursuance of his previous agreement to do so. At the time the murder was being committed he was assenting to it by agreement with the actual perpetrator of it, and, with the perpetrator's previous knowledge, had taken a place near the scene of the crime for the purpose of aiding and encouraging its commission, and this, in the judgment of the law, made him constructively present aiding in the commission of the murder. "When the law requireth the presence of the accomplice at the prepetration of the fact, in order to render him a principal, it doth not require a strict, actual, immediate presence, such a presence as would

make him an eye or ear witness of what passeth. Several persons set out together, or in small parties, upon one common design, be it murder or other felony, or for any other purpose unlawful in itself, and each taketh the part assigned him, some to commit the fact, others to watch at proper distances and stations to prevent a surprise, or to favor, if need be, the escape of those who are more immediately engaged. They are all, provided the fact be committed, in the eye of the law present at it; for it was made a common cause with them, each man operated in his station at one and the same instant towards the same common end, and the part each man took tended to give countenance, encouragement and protection to the whole gang, and to insure the success of their common enterprise." Foster's Crown Law, 349, 350, discourse 3, § 4.

No one of the assignments can be sustained. All are overruled, and the judgment is affirmed, with direction that the record be remitted for the due execution of the sentence.

(217 Pa. 106)

UNGER v. PHILADELPHIA, B. & W. R. CO. (Supreme Court of Pennsylvania. Feb. 25, 1907.). 1. RAILROADS-ACCIDENT AT CROSSING-NEG

LIGENCE.

In an action to recover for death of plaintiff's husband killed at a grade crossing, question of defendant's negligence held one for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1152–1165.]

2. SAME-PRESUMPTION OF DUE CARE.

Whether the presumption of due care on the part of a person killed at a railroad crossing has been rebutted is for the jury, unless the evidence to the contrary is so clear as to justify the court in holding that a verdict against defendant must be set aside as a matter of law.

Appeal from Court of Common Pleas, Philadelphia County.

Action by Freda Unger against the Philadelphia, Baltimore & Washington Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Sharswood Brinton and John Hampton Barnes, for appellant. Louis Bregy and H. Homer Dalbey, for appellee.

FELL, J. The plaintiff's husband was killed at a grade crossing of the defendant's road in the city of Chester. He was riding in a butcher's wagon which was struck by the rear end of a work train of six or seven cars which was moving backwards. None of the plaintiff's witnesses saw the accident. Her case rested on the presumption that the deceased exercised proper care before driving on the track, and upon proof that at the time it was dark, foggy, and raining, that no notice of the approach of the train was given

by bell or whistle, that the safety gate was up, that there was no light at the crossing, and that the only light on the rear of the train was a lantern on the platform of the last car. Her case was met by proof offered by the defendant that there were three points near the tracks but separated by intervening sheds or buildings from which a view of the track for a half a mile could be had; that although the night was dark and rainy, the train could be easily seen and distinguished as a moving train; and that the deceased had been warned by the watchman of the approach of the train and disregarded the warning.

The question raised by the assignments of error is whether the court should have tak

en the case from the jury. This could not properly have been done. A mere presumption of due care on the part of the person killed at a railroad crossing is met by a presumption of equal force of like care on the part of those in charge of the train (Haverstick v. Penna. R. R. Co., 171 Pa. 101, 32 Atl. 1128; Hanna v. P. & R. Ry. Co., 213 Pa. 157, 62 Atl. 643, 4 L. R. A. [N. S.] 344), or it may be entirely overcome if the facts and circumstances clearly established admit of no other conclusion than that if he had stopped, looked, and listened, he would have seen the train (Connerton v. D. & H. Canal Co., 169 Pa. 339, 32 Atl. 416; Seamans v. D., L. & W. R. R. Co., 174 Pa. 421, 34 Atl. 568). Whether the presumption has been rebutted is for the jury, "unless the evidence to the contrary was clear, positive, and credible, and either uncontradicted or so indisputable in weight and amount as to justify the court in holding that a verdict against it must be set aside as a matter of law." Patterson v. Pittsburg, etc., Ry. Co., 210 Pa. 47, 59 Atl. 318. Where there is any uncertainty as to facts or the inferences to be drawn from them, the case is necessarily for the jury. Cromley v. Penna. R. R. Co., 208 Pa. 445, 57 Atl. 832.

There was nothing in the circumstances connected with the accident that rebutted the presumption of due care on the part of the deceased. It cannot be said with certainty that if he looked he saw the train, nor that, if he saw it, he observed in the darkness and storm that it was backing to the crossing, since the natural inference from the position of the engine would be that it would move in the opposite direction. The testimony offered by the defendant to rebut the presumption was far from being clear and indisputable. It was wholly discredited by the jury for reasons satisfactory to the learned trial judge, as we learn from his opinion. The testimony on behalf of the plaintiff to show that no signal of the movement of the train was given was more than merely negative. One of her witnesses who was walking between the tracks in the direction the train was moving and observed it as it passed him and kept it under observa

tion until the accident testified positively that neither bell nor whistle was sounded. The plaintiff's case rested upon the presumption of care, unrebutted by proof that would have warranted the court in holding that it was overcome, and upon testimony tending to show negligence on the part of the defendant. It was clearly for the jury. The judgment is affirmed.

(217 Pa. 97)

CUNNINGHAM ▼. PENNSYLVANIA R. CO. (Supreme Court of Pennsylvania. Feb. 25, 1907.) MASTER AND SERVANT-INJURIES TO SERVANT -EVIDENCE.

In an action for injuries to a workman employed about a construction train, evidence held insufficient to show negligence on the part of defendant railroad.

Appeal from Court of Common Pleas, Philadelphia County.

Action by James J. Cunningham against the Pennsylvania Railroad Company. Judg. ment for plaintiff, and defendant appeals. Reversed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

Sellers & Rhoads, for appellant. Horace L. Henderson, for appellee.

STEWART, J. This appeal is from the order of the court refusing a motion for judgment for defendant non obstante veredicto. The facts as established by the finding of the jury are these: The plaintiff was one of some 25 workmen employed about a construction train in the work of loading and unloading gravel along the line of the defendant's roadbed. The train consisted of some six or eight open cars, and was in charge of a conductor. On the morning of the accident, the cars having been loaded and the train being about to proceed to the point for the distribution of the gravel, the workmen were directed by their foreman to get aboard the cars and begin the work of unloading when the train stopped. The plaintiff took his position on the car farthest from the engine. After proceeding about 500 yards on the main track, the train came to a stop on the signal of the foreman, and the plaintiff at once proceeded with his work. While in the act of sticking his shovel into the gravel, the train suddenly, without notice or warning and within a moment after it had come to a rest, again started with a severe jolt, which threw plaintiff overboard. In the fall and what resulted directly therefrom he sustained serious injury.

As the case was submitted to the jury on the theory that the facts would be found to be as testified by the plaintiff's witnesses, negligence in the matter of starting the train was assumed, and the only question was, whose was the negligence? One of the plaintiff's witnesses testified that the train started upon the signal of Hounslow, who was a foreman.

All the others testified that the signal was given by a Mr. Potter, who the evidence shows was supervisor of the work of repair, and Hounslow's superior. The learned trial judge made it very clear in his charge to the jury that no liability would result to the defendant from any negligence of Hounslow in this connection, inasmuch as, being a fellow employé with the plaintiff, the latter must be held to have assumed all such risks in the course of his employment. He held, however, and so instructed the jury, that if the train started on a signal given by Potter, the defendant company would be liable in this action, for the reason that Potter stood in the relation of vice principal, and that what he did must be regarded as the act of the company. The finding of the jury was that Potter gave the signal, not Hounslow. In our view of the case, it is immaterial whether Potter be regarded a fellow employé with plaintiff or a vice principal. The result must be the same in either case. If the former, of course no liability attached to the defendant for his act for the reason stated by the court. If the latter, the same result must follow, but for a different reason. How inconclusive, with respect to the main question in the case, the negligence of the defendant company, the finding of the jury that Potter gave the signal for the train to start was, is made apparent by an examination of the evidence. Potter is shown to have been at the time of the accident supervisor of this particular construction work, but there is not a particle of testimony that connects him, even indirectly, with the operation and movement of the train. He is not shown to have been on or about the train the morning of the accident, nor does it appear that his duty required him to accompany the train at any time. It was his business to indicate the places along the line of the road where the gravel was to be unloaded, where the train should stop for this purpose, and to what point it should proceed; but the actual movement of the train, the starting and stopping the machinery that produced the movement, these were matters of detail with which he is not shown to have had anything to do. In the absence of all evidence to the contrary, it is to be supposed that authority with respect to these was committed to the conductor in charge of the train. On this particular occasion the train, after running about 500 or 600 yards from where the gravel was loaded, had stopped short of the place where Potter wanted it discharged. He was at that time 175 yards away, and was seen by plaintiff's witnesses to signal for the train to advance further.

It was the sudden starting of the train, following the signal from Potter, that occasioned the accident; but where was there any negligence in what was done by Potter in this connection? If the train was not where it should be for purposes of unload

ing, he was strictly in line of duty in requiring it to proceed further. In communicating his order to this effect to those in charge of the train, it is not pretended that he adopted any unusual or unreasonable method. Whether the signal was given to the conductor of the train or to the engineer does not appear, nor does it appear whether or not any intermediate order was given. All that the evidence discloses is that the movement of the train followed immediately upon Potter's signal. The sudden and violent starting of the train without warning, under such circumstances as we have here, might well be regarded as a negligent act; but how is it possible to derive from the facts of the case any duty resting upon Potter to give such warning? How could he have done it except by proceeding to where the train was? If a vice principal, he had a perfect right to assume that those in charge of the train, whose duty it was to obey the signal given by him, would act with ordinary prudence in carrying it out. Hoover v. Railway Company, 191 Pa. 146, 43 Atl. 74. The customary way of giving warning in such cases, as we all know, is by bell or whistle, both of which were under the immediate control, in this case, of the engineer. If additional warning is required at any time, it is only natural to expect it to come from the conductor in charge of the train. It is so obviously the duty of these particular employés to see that accustomed signals are given when occasion calls for them that there is no escape from the conclusion that for the failure to give such warning here upon one or both must rest the responsibility for what resulted from the omission. Potter, as we have said, had a right to expect that such warning would be given. His duty did not require him to go to the train to see that it was given. The result of the verdict was to charge the responsibility upon Potter without a particle of evidence from which an inference could be drawn that what he did in the matter was negligently or improperly done, or that he omitted anything that was his duty to do. Had he been a mile away when he gave the signal, it could not have been pretended that it was incumbent upon him to see that warning was given before starting the train. The fact that he was only 175 yards from the train when he gave the signal affects only the practicability of his giving the warning, and not his duty in this regard. We are not to be understood as conceding that he was a vice principal. We have assumed it only to show that were this a fact in the case, the evidence would not warrant a recovery. It discloses no negligence for which the defendant was responsible.

The order discharging the rule for judgment non obstante veredicto is reversed, and record is ordered to be remitted for the court below to enter judgment in accordance herewith.