St. Rep. 672; West Mahoney Tp. v. Watson, 116 Pa. St. 344; 2 Am. St. Rep. 604. See the extended note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 851.

NEGLIGENCE-PROXIMATE CAUSE-WHAT 18.-Proximate cause is that which is a natural and continuous sequence unbroken by any efficient intervening cause, producing the result complained of and without which the result would not have occurred: Western Railway v. Mutch, 97 Ala. 194; 36 Am. St. Rep. 179. This question is thoroughly discussed in the monographic note to Gilson v. Delaware etc. Canal Co., 36 Am. St. Rep. 807–861.

COMMONWEALTH V. BREYESSEE.

[160 PENNSYLVANIA STATE, 451.]

MURDER-SELF-DEFENSE. —Life may be lawfully taken in self-defense, but it must appear that he who takes it was in imminent danger of death or great bodily harm, and that no other way of escape from the danger was open to him. Murder-KillING OF PERSON NOT INTENDED.-When one person forms a deliberate purpose to kill another, and fires a pistol at him for that pur. pose, the fact that the ball misses its intended victim and kills another person does not relieve the murderer. MURDER-EVIDENCE-CREDibility of DEFENDANT.-On a trial for murder the extent to which the accused is contradicted by the witnesses, the character of the testimony given by them, the reasonableness of his own testimony, and its consistency with the established facts in the case, are all proper subjects for consideration by the jury in determining the credit to which his testimony is entitled.

VERDICT AS RECORDED is the verdict of the jury, and the form prepared in the jury-room, though handed to the clerk, is no part of the record, and has no significance whatever.

INDICTMENT for murder. On the trial it appeared that Noel Breyessee, alias Maison Noe, shot and killed Sophia Raes with a pistol on September 24, 1893. About ten o'clock in the evening of the day in question the accused, together with one Maison, alias Breyessee, left their home and went past the house of August Raes, husband of the deceased. Not finding him at home they concealed themselves and awaited his return. Thereafter Raes and his wife returned, when the accused and his companion attacked them with stones, knocking Raes down, and his wife ran to summon help. Upon her return the accused, at the instigation of his companion, shot twice with a pistol, killing the woman. The accused testified that Raes began the attack and was knocked down; that Mrs. Raes then ran away and soon returned with a neighbor, and that Raes then attacked the accused with a knife; that he then shot his pistol in the air to frighten Raes, and afterwards

shot a second time, the bullet passing over Raes' shoulder, killing his wife. The accused and his companion were jointly indicted, but, a severance being granted, the accused was put on trial first and convicted of murder in the first degree.

T. H. Davis and W. A. Blakeley, for the appellant.

C. Burleigh, district attorney, for the commonwealth.

455 WILLIAMS, J. This case appears to have been tried with great care in the court below. The distinctions between murder of the first and of the second degree were plainly pointed out, and the facts were submitted to the jury in a manner of which no just complaint can be made. The conviction of the defendant of the crime of murder of the first degree was the result of the overwhelming weight of the evidence against him.

The learned counsel for the defendant assigns error to the answers made by the learned judge to his first and second points. These points were answered in the affirmative, subject to a qualification, and it is of the qualification that coni. plaint is made. These points drew the attention of the court to the testimony given by the defendant, and asked, in effect, that if, at the time the fatal shot was fired by the defendant, he believed himself to be in danger of death or great bodily harm at the hands of the assailant, and that "acting on that belief he fired 456 a revolver which killed the wife of the assailant, this would not be murder in the first degree, even though at the time the shot was fired the defendant intended to kill; and this though, in point of fact, there was no foundation for the apprehension of danger to the defendant." The learned judge affirmed this point so far as it was directed to the degree of the murder committed, but added: “If it is intended to state the law of self-defense, it lacks one of the essential elements that he had no other means of escape." We think the defendant had no reason to complain of his answer. It gave him the benefit of an unqualified affirmance of his point, so far as it related to the degree of the offense committed, and it stated correctly the law of self-defense. Life may be lawfully taken in self-defense; but it must appear that he who takes it was in imminent danger of death or great bodily harm, and that no other way of escape from the danger was open to him. It is the duty of one who is assailed to flee, if flight is possible; and it is only when he is

persuaded that he must suffer death or grievous bodily harm at the hands of his assailant, or take the life of his assailant, that he may save his own, that he can justify his act as done in self-defense.

The qualification of the answer to the third point was also a proper one. Where a deliberate purpose is formed to kill A, and the defendant fires a pistol at him for that purpose, the fact that the ball misses its intended victim and takes effect on B and kills him does not relieve the murderer. He is equally guilty whether his effort to kill A results in the taking of his life or the life of B.

The fifth assignment of error is equally untenable. The learned judge instructed the jury in the tests they should employ in determining the credibility of the defendant. He told them that the extent to which he was contradicted by the witnesses, the character of the testimony given by them, the reasonableness of his own testimony, and its consistency with the established facts in the case, were all proper subjects for consideration in determining the credit to which his testimony was entitled. This was a proper instruction to give, and was not harmful to the defendant, unless his testimony was of such a character that the application of these tests led the jury to reject it.

457 The remaining assignment relates to the overruling of the motion in arrest of judgment. The reasons in support of this motion rested on the following circumstance: When the jury came into court to render their verdict it was delivered and recorded in the usual manner, after which the jurors were discharged and directed to the office of the county commissioners to receive their pay. After they had left the box the clerk discovered a form for a verdict in pencil on the back of the indictment, in which the defendant was named "August Maison, otherwise called August Breyessee." The clerk called the attention of the judge to this indorsement, and he ordered the jurors recalled to the box, drew their attention to their verdict as already entered, and to the indorsement on the indictment, and told them if the name as written on the indictment was a mistake, and their verdict as recorded was correct, they might say so. The jurors thereupon answered that the verdict as recorded was correct. The defendant's counsel took exception to this action, and moved in arrest of judgment, alleging that the verdict was uncertain, as it was against one person in the pencil indorse

ment, and against another as recorded. It is a sufficient answer to this motion to refer to the well-settled rule that the verdict as recorded is the verdict of the jury, and that the form prepared in the jury-room, though handed to the clerk, is no part of the record, and has no significance whatever: Dornick v. Reichenback, 10 Serg. & R. 84; Rees v. Stille, 38 Pa. St. 138; Scott v. Scott, 110 Pa. St. 387. It was wholly unnecessary to recall the jury. It was done out of abundant caution; but it did neither good nor harm. The verdict had been entered on the record in proper form against the defendant on trial, and the pencil memorandum was without the slightest legal significance. The reasons in support of the motion in arrest of judgment were properly overruled, and the judgment appealed from is now affirmed.

The record is remitted for purposes of execution.

HOMICIDE-SELF-DEFENSE.-To sustain the plea of self-defense in a case of homicide there must be shown a present pressing necessity, real or apparent, to protect the life of the defendant or his person from great bodily harm: Brown v. State, 83 Ala. 33; 3 Am. St. Rep. 685, and note; High v. State, 26 Tex. App. 545; 8 Am. St. Rep. 488; Springfield v. State, 96 Ala. 81; 38 Am. St. Rep. 85; Price v. People, 131 Ill. 223; People v. Donguli, 92 Cal. 608; Penple v. Macard, 73 Mich. 15; Shorter v. People, 2 N. Y. 193; 51 Am. Dec. 286, and note; State v. Chandler, 5 La. Ann. 489; 52 Am. Dec. 599. In order to justify homicide on the ground of self-defense it must clearly appear that it was a necessary act in order to avoid destruction or some severe calamity: State v. Wells, 1 N. J. L. 424; 1 Am. Dec. 211. It is well settled that a man may not kill another in self-defense if he have other probable means of escape: Commonwealth v. Ware, 137 Pa. St. 465; State v. Benham, 23 Iowa, 154; 92 Am. Dec. 417, and note. See, also, the notes to the following cases: Askew v. State, 33 Am. St. Rep. 88; State v. Shippey, 88 Am. Dec. 75; Grainger v. State, 26 Am. Dec. 279; and Patten v. People, 100 Am. Dec. 181.

HOMICIDE-KILLING PERSON NOT INTENDED.-One who, in the attempt to kill one person, by mistake kills another is guilty of murder or manslaughter: Butler v. People, 125 Ill. 641; 8 Am. St. Rep. 423, and note. It is murder to shoot at a man with the alleged design of doing him an injury only, and killing a third person: State v. Smith, 2 Strob. 77; 47 Am. Dec. 589. Where one voluntarily fires a gun into a crowd with the felonious purpose of killing another, the unintentional killing even of a friend would be murder: Golliher v. Commonwealth, 2 Duvall, 163; 87 Am. Dec. 493. Where a party resisting arrest attempts to kill the officer while the latter is making an arrest, but by accident kills a third person, the killing is murder: Angell v. State, 36 Tex. 542; 14 Am. St. Rep. 380. One who kills another in attempting to commit suicide is guilty of murder: State v. Levelle, 34 S. C. 120; 27 Am. St. Rep. 799; Commonwealth v. Bowen, 13 Mass. 356; 7 Am. Dec. 154; Commonwealth v. Mink, 123 Mass. 422; 25 Am. Rep. 109, and note.

VERDICT.-There is no legal verdict but a public verdict, delivered in open court, and until it is received and recorded the jurors may alter it: Root v. Sherwood, 6 Johus. 68; 5 Am. Dec. 191.

WETTENGEL v. GORMLEY.

[160 PENNSYLVANIA STATE, 559.]

WILLS-RIGHTS OF DEVISEES UNDER OIL AND GAS LEASE-ROYALTIES, When three contiguous tracts of land, subject to one oil and gas lease made by the owner in his lifetime, are devised by him respectively to his three children in equal parts, without mention of the lease, royalties accruing thereunder after his death should be divided among the three devisees in proportion to the acreage held by each, although the oil is produced from wells sunk on one of the tracts only.

OIL LEASE, because of the fugitive and wandering existence of the oil within the limits of the tract of land leased, partakes of the character of a lease for general tillage, rather than that of a lease for mining or quarrying solid minerals.

ACTION to determine the ownership of royalties under an oil lease. Judgment of the court below to the effect that the royalties should be equally divided among the three devisees of James Gormley, deceased. James T. Gormley, one of such devisees, appealed.

J. McF. Carpenter, for the appellant.

J. S. Ferguson and E. G. Ferguson, for the appellee.

565 WILLIAMS, J. The question raised by this appeal is both novel and interesting. It is presented upon the following facts: James Gormley was, in his lifetime, the owner of three contiguous farms, containing together about six hundred acres. In July, 1888, he made an oil lease to Tomlinson covering all the land. It was to run for fifteen years, and reserved a royalty upon all the oil produced of one-eighth. The lease gave the lessee the usual privileges upon the land, among which was the right to take water from any part of it, and to any extent needed in his operations; a right of way into, and over, the body of land; a right to lay pipe lines to conduct the oil from the wells. It concluded with the following stipulation: "It is understood between the parties to this agreement that all conditions between 566 the parties hereunto shall extend to their heirs, executors, and assigns." The lessor died in October, 1890. By his last will and testament he gave one of these farms to each of his three children in fee, making no mention of the lease which included them all. The devisees have entered into possession of their respective farms, under the will of their father, and each holds in severalty. The holder of the oil lease has meantime put down several oil-wells and is producing oil therefrom; these wells