(113 A.)

quiescence therein. South. Carolina R. R. | corporation which had been involved in fiCo. v. Carolina Ry. Co., 93 Fed. 543, 35 C. C. | nancial difficulties, and it was therefore jus A. 423. When the agreement has not been tified in refusing to proceed further. When previously approved, the court is left free to the contract was canceled, no such objection deal with the situation so that justice and was made or reason given; but it is not necequity may be accomplished. 23 R. C. L. 77. essary to discuss the legal effect of this In the present case, the court was evidently failure. The order discharging the receiver aware of what had been done by the receiv-directed the return of the property in his er; it is the same tribunal which entered judgment for want of a sufficient affidavit of defense, based on a suit upon this contract, which defendant avers was neither authorized nor ratified.

[5-7] A receiver who takes charge of property is bound by the contracts existing when he takes possession. The assets in his hands are also subject to payment when he enters into valid agreements thereafter. Farmers' Loan & Tr. Co. v. Eaton, 114 Fed. 14, 51 C. C. A. 610. So, also, is a vendor held to the obligation assumed, if the contract is a valid one. Here, it was at most voidable, and not void; both parties acted thereunder, and the defendant could not repudiate its engagement, at least during the receivership. Crawford v. Seattle Ry. Co., 88 Wash. 553, 153 Pac. 363, L. R. A. 1916C, 516. But it is insisted that the discharge terminated the relationship, and that the agreement was not of a character which could be assigned to the corporation when its assets were redelivered by order of court. In answering a like objection, where the parties were similarly situ ared, the federal court said (American Bonding Co. v. B. & O. S. W. R. R. Co., 124 Fed. 866, 60 C. C. A. 52):

hands subject to the payment of all claims
against the assets which had arisen by rea-
son of the receiver's conduct of the business.
Where such an order is made, the transfer
is provisional until all obligations contracted
by the receiver are protected. 23 R. C. L
101. Claims for damages for breach of his
the corporate property.
contracts follow
Texas & Pac. Ry. Co. v. Johnson, 151 U. S.
81, 14 Sup. Ct. 250, 38 L. Ed. 81; Texas &
Pac. Ry. Co. v. Bloom, 164 U. S. 636, 17 Sup.
Ct. 216, 41 L. Ed. 580; Farmers' Loan &
Trust Co. v. Eaton, supra. The vendor's
rights were protected by the reservation

made.

[9] One other matter remains to be considered. Judgment was entered for the claim, May 1, except the damages sustained from the date of the discharge of the receiver, to May 12, when the vendor repudiated the contract. This was because of the limitation of liability provided in the contract in case shipments were prevented by strikes, and the affidavit of defense set up the existence of The defendant. this condition at that time. contends allowance should at least have been made until May 15, when the labor difficulty "A contract by which one party became obli- ceased; and further insists that the order gated to the other is assignable by the latter for shipment sent on May 18 was applicable under the contract, if it was valid, to the unless there is something in the terms and nature of the contract which evidences an inten-week following the strike, beginning May 21, tion of the parties that it should not be assign- and credit should be given until that time. able. For such a right to be assignable, absence of evidence of an intention that it But this argument loses sight of the fact that it had repudiated and canceled its agreement should not be is sufficient." on May 12. The ruling of the learned court below was therefore correct. All of the assignments of error are overruled. The judgment is affirmed.

*

*

[8] It is, however, urged that the defendant might be willing to extend credit to a receiver acting for the court, but not to the

(Supreme Court of Pennsylvania. April 18, fact to be found being subject to the control of

/ (113 A.)

and the details need not be repeated. Com- court fell into error when it failed to apply plaint is now made of alleged errors in the the same rule in passing upon the question second trial, which terminated in a verdict whether Shrope was incompetent when his of murder of the second degree. former testimony was offered in 1920. Its conclusion was based apparently on the adjudication of lunacy in 1919, and the admit| ted fact of insanity at the time of the second Loomis hearing.

One Shrope had been indicted for the same crime, and became a witness for the state at the first hearing of Loomis in 1918, at which time the former was examined. Subsequently he entered the plea of non The notes of testimony of a witness at a vult contendere, and the sentence imposed former trial may be offered subsequently, was, as a result, set aside upon appeal. where the same criminal issue is involved, Com. v. Shrope, 264 Pa. 246, 107 Atl. 729, 6 | “if he [has] become incompetent to testify A. L. R. 690. In 1919, he was again called for any legally sufficient reason properly for trial, but his case was not heard, a jury proven." Act May 23, 1887 (P. L. 158, § 3; finding that he was then insane and uuable Pa. St. 1920, §§ 21842, 21843). to conduct his defense. This adjudication, with the commitment to the insane asylum which followed, was based upon section 66 of the Criminal Procedure Act (Act March 31, 1860 [P. L. 427; Pa. St. 1920, § 14445]). He was still in confinement in 1920, when Loomis was brought to his second trial.

[1, 2] In the present case the commonwealth offered in evidence the testimony of Shrope, taken at the first Loomis hearing, to show guilt upon the part of the defendant. This was admitted, against the objection that Shrope was insane when he first testified, and on the further ground that the defendant was entitled to have the witness brought face to face with him in open court. It is not certain whether by this it was intended to insist that the act of 1887, permitting the use of the former testimony, was unconstitutional, or that the witness must be produced unless proper proof of his incompetency appeared. Ordinarily, the party complaining on appeal of the admission of testimony will be confined to the specific objections made below. Roebling & Sons Co. v. American A. & C. Co., 231 Pa. 261, 80 Atl. 647. When, however, the record is not clear as to the ground on which the complaint is based, this rule does not apply. Scott v. American Express Co., 257 Pa. 25, 101 Atl. 96; Kuhn v. Ligonier Valley R. R. Co., 255 Pa. 445, 100 Atl. 142. The court will not be assiduous to discover technical defects, where such grave issues are involved as in homicide cases. Com. v. Filer, 249 Pa. 171, 94 Atl. 822. The real controversy before us is sufficiently embraced within the fourteenth assignment of error.

Incompetency does not necessarily follow from insanity; "that is not enough per se to exclude him; but he must at the time of his examination be so under the influence of his malady as to be deprived of that 'share of understanding' which is necessary to enable him to retain in memory the events of which he has been witness, and give him a knowledge of right and wrong. If at the time of his examination he has this share of understanding, he is competent." Coleman's Case, 25 Grat. (Va.) 875, 18 Am. Rep. 711.

"The general rule, therefore, is that a lunatic or a person affected with insanity is admissible as a witness if he have sufficient understanding to apprehend the obligation of an oath, and matters which he has seen or heard in reference to be capable of giving a correct account of the to the questions at issue; and whether he have that understanding is a question to be determined by the court, upon examination of the party himself, and any competent witnesses who can speak to the nature and extent of his insanity." District of Columbia v. Armes, 107 U. S. 521, 2 Sup. Ct. 840, 27 L. Ed. 618; Kendall v. May, 92 Mass. (10 Allen) 59; Evans v. Hettich, 7 Wheat. 470, 5 L. Ed. 496; Worthington v. Mencer, 96 Ala. 310, 11 South. 72, 17 L. R. A. 407; Draper's Est., 20 Phila. 25.

[5] The commonwealth contends that the incompetency was here shown by the adjudication of Shrope's insanity, and his commitment to the insane asylum, but proof of these facts was not sufficient.

"The judgment of the court, finding one of unsound mind, is never conclusive that he remains so; much less is it conclusive that his condition continues so as to disqualify him as a witness in his own or another's behalf." Covington v. O'Meara, 133 Ky. 763, 119 S. W. 188; 958, 34 L. R. A. (N. S.) 159, 140 Am. St. Rep. Barker v. Washburn, 200 N. Y. 284, 93 N. E. 640; Breedlove v. Bundy, 96 Ind. 319; Reeves v. State. 186 Ala. 14, 65 South. 160; Hicks v. State, 165 Ind. 440, 75 N. E. 641.

[3, 4] The learned court below received testimony to show the mental condition of Shrope when a witness in 1918, but overruled the objection to the admission of his former evidence because he was then insane, since such proof was not sufficient to dis- It may be observed that section 3 of the qualify, unless it further appeared that the act of 1887 permits the use of notes of testidisease was of a character, and so far pro- mony in criminal cases when the party is gressed, as to render the witness incapable of proven to be incompetent, and not where he understanding the nature of an oath, and of has been "adjudged a lunatic," as is provid intelligently testifying as to facts he had obed in section 5, clause (e), regulating the ad served. The principle involved was correctly mission of testimony of surviving parties. stated, as will be hereafter noted; but the In the present case, there was no general

།

finding of insanity under the provisions of stated, he could give a "perfectly lucid statethe act of June 13, 1836 (P. L. 592). The ad- ment." It is further to be noted that there judication was based upon section 66 of the was admitted in evidence a statement conCriminal Procedure Act; the purpose of cerning the crime, made by Shrope while this which proceeding was merely to determine trial was in progress. Before receiving the whether the prisoner was mentally compe- same, in answer to a question of the court, tent to make a rational defense. Com. v. the alienist testified that, though Shrope was Simanowicz, 242 Pa. 403, 89 Atl. 562; 16 C. J. insane, he then had "ability to remember and 792. That statute did not contemplate a con- describe what he [had] heard." If this was clusive determination of insanity. Cf. Good- true, the witness could not be said to be inwin v. State, 96 Ind. 550; People v. Farrell, competent; and, if his evidence was desired 31 Cal. 576. In discussing the effect of a -and without it no conviction could have commitment of a proposed witness to an asy- been had-he should have been produced. lum, the court, in State v. Brown, 2 Marv. Error was committed in the admission of the (Del.) 380, 393, 36 Atl. 458, 461, said in part: | former testimony without the proof of "The claim that the certificate itself affords Shrope's present incompetency. The foura prima facie presumption of insanity to that teenth assignment must therefore be susextent is not warranted by either the purpose tained. of the statute or the tenor of the certificate. The design of both is merely to provide for the admission of proper cases for care and treatment in this public hospital and to exclude all others. In purpose or effect it never was the legislative design to pass upon either the competency of a witness or the responsibility of one charged with crime. * 'Insanity,' as used in the certificate, may mean any form or degree of mental derangement, greater or less, which may, in the statutory contemplation, be proper for care and treatment in the hospital. It follows that said certificate does not necessarily warrant the presumption that the patient named therein is mentally incompetent to testify in any case. Therefore additional evidence is necessary to establish such incompetency."

Another complaint appearing upon the record requires consideration. It was the the ory of the commonwealth that the deceased was murdered in the perpetration of a robbery. A description of the occurrence appeared in the testimony of Shrope, who told of the forcible opening of a tin box by Loomis, illustrating at the first trial how it was held by defendant. At this second hearing, the former evidence of Shrope was admitted. A witness was called who detailed how Shrope had held the box, when explaining to the jury on the former occasion the manner in which it was grasped by Loomis. Upon it were several marks, one a finger print at a point corresponding with the place designated as that at which it was held y Loomis. At the first trial, experts had identified the finger print as that of the defendant. When the case was called a second time, this position was abandoned, and the commonwealth offered no evidence in regard to it, admitting that the mark was not that of the present defendant.

The only effect of the adjudication in Shrope's Case was to prevent his immediate trial, and, in itself, was not sufficient to show him to have become incompetent, thus justifying the admission of the notes of the former trial without further proof as to the actual mental condition of the witness. The same conclusion would be reached though the finding were treated as prima facie evi- He was then permitted to show that the dence of insanity; for, as already noticed, finger print was not made by him, not as proof of that fact is not in itself sufficient. furnishing proof of any substantive fact If actual incompetency had been shown, then by which to prove or disprove the matter the former testimony could have been receiv-in issue, but solely to impeach the credibility ed, for an examination of the record shows of Shrope. This limitation was emphasized an ample opportunity to cross-examine on the former trial, and, under such circumstances, it could not be said that the defendant was deprived of any substantial right. Com. v. Cleary, 148 Pa. 26, 23 Atl. 1110; Com. v. Keck, 148 Pa. 639, 24 Atl. 161.

Great harm may have been done in submitting Shrope's story to the jury through the medium of his former testimony, rather than in person. Had a preliminary investigation been made to show the possibility of his appearance, notwithstanding his mental disturbance, it would have revealed, as appeared from the testimony of the superintendent of the hospital, that he was much better, and was at that time in a "state of

in the charge, and the correctness of the view taken by the learned court is now the subject of question, raised by the second and third assignments of error. The same proposition is suggested in the fourth, based on the answer to the ninth point of the defendant, but this request could not have been affirmed, as binding instructions were asked.

[6, 7] In a criminal case, a defendant cannot establish facts which awaken mere confectures; his admissible proof must be such as is calculated to fairly raise a doubt as to his connection with the transaction. On the other hand, nothing connected with the crime should be excluded from the consideration of the jury whether the tendency is to inculpate

(113 A.)

"It may be laid down that in no case is evi- [ fortify his own testimony by any and all cirdence to be excluded of any fact or circum- cumstances and facts fairly tending to supstance connected with the principal transaction port him. Chitwood v. United States, 153 from which an inference as to the truth of a Fed. 551, 82 C. C. A. 505, 11 Ann. Cas. 814. disputed fact can reasonably be made." 8 R. C. L. 180.

Special latitude is permitted in the admission of evidence, where the proof upon which the commonwealth depends is circumstantial. Ward v. State, 71 Tex. Cr. R. 310, 158 S. W. 1126; Alexander v. United States, 138 U. S. 353, 11 Sup. Ct. 350, 34 L. Ed. 954. Wigmore Evidence, volume 1, § 139), in discussing the principle involved, says:

"If the evidence is really of no appreciable value, no harm is done in admitting it; while if it is in truth calculated to cause the jury to doubt, the court should not attempt to decide for the jury that this doubt is purely speculative and fantastic, but should afford the accused every opportunity to create that doubt. A contrary rule is cruel to a really innocent

accused."

[10] In the present case, the commonwealth insisted that the killing was the result of a robbery. The tin box, which had been forcibly opened, was handled by some one, and around the rifling of it the case against the defendant was largely built. It was of fered as part of the res gestæ at the first trial, and the finger print found thereon was proven to be that of Loomis. At the second trial it was in evidence, but the commonwealth admitted that the mark was not that of the defendant. Loomis denied that he had handled the box or committed the robbery, and it was some corroboration of his story to prove that the finger print was not made by him. This might have had little effect upon the jury, in view of the presence of the other blurred marks upon the box, but the defendable doubt it might raise. If weight is to ant was entitled to the benefit of any reason42 Nev. 185, 175 Pac. 190; People v. Jenbe given finger print testimony (State v. Kuhl, nings, 252 Ill. 534, 96 N. E. 1077, 43 L. R. A.

[8, 9] A defendant should be allowed to prove a fact which would logically produce a doubt of his guilt in the mind of the jury. The remoteness of the testimony offered, or its significance in furnishing aid in deciding the fact to be found, must, of course, be sub-IN. S.] 1206; People v. Roach, 215 N. Y. 602, 109 N. E. 618, Ann. Cas. 1917A, 410), then the ject to the control of the court. Com. v. Ryan, 134 Mass. 223; Alexander v. United jury, in passing upon the guilt of Loomis, States, supra. Facts may be proven, not would have been justified in taking into cononly to show the commission of the crime by sideration the fact that some one else handled another, but to negative the presence of some the box, either at or about the time of the circumstance connected with the res gestæ murder. The testimony was not objectionwhich would probably be present were the able on the ground of remoteness, and, though defendant guilty. So it is proper for him to possibly not throwing much light upon the put in evidence his clothes worn at the guilt or innocence of the defendant, yet, on a time of a murder, which had been accom- trial for his life, he was entitled to the benpanied with the spilling of large amounts efit of any reasonable doubt which it might of blood, as some proof of the fact that raise in the mind of the jury. It should have he was not the assassin. People v. Jack-been permitted to consider this fact, with all son, 182 N. Y. 66, 74 N. E. 565. Such neg- the other evidence in the case, in passing ative evidence may raise a strong presump-upon the matter at issue. Assignments 2 and tion of innocence. 1 Wharton on Criminal 3 are therefore sustained. Evidence, 869, and cases cited. Likewise In view of the conclusions reached, the otha defendant is entitled to prove facts which er assignments of error need not be discussed. do not in themselves establish innocence, but The judgment of the court below is rewhich corroborate the denial of guilt ex- versed, and a venire facias de novo is pressed under oath. He has the right to awarded.