The exercise of such discretionary powers, even | would not lie to compel them to award the conthough indiscreet, will not be reviewed by the Courts, where no actual fraud is proved. This case arose out of the same transactions, and involved the same legal questions as Com'th v. Mitchell, reported ante, 393. The bill, filed by Findley in the interests of the tax-payers of Pittsburgh, set forth substantially the same facts as the petition in that case, and prayed that for all work and materials required by the City the defendants should be enjoined to receive and accept the bids of the lowest responsible bidders, and to award the work to such; and should be restrained from awarding the contract for the forcing mains to J. M. Brush & Co. The City and J. M. Brush & Co. filed separate answers, alleging in defence the facts set forth in Com'th v. Mitchell. tract to N. Suyder & Co., who were the lowest bidders. That the city authorities having, perhaps indiscreetly, but not corruptly, proceeded to the performance of the duty with which they were charged by the statute, the matter was put beyond our reach. It is obvious, therefore, that it would be utterly incongruous for us to do, in this case, what we refused to do in the former one. For it is to be observed that the prayer in the petition for the mandamus, and that in the bill in this case, are substantially the same. Were we, under such conditions, to reverse the Court below, and issue the process prayed for, we would bring about the same result which we refused to permit by the writ of mandamus. Had there been fraud exhibited in the awarding the contract involved in this controversy, we might have come to a different conclusion, but under the circumstances, as they have been presented to us, we must decline to interfere with the action of the Common Pleas. The decree is affirmed at the costs of the appellants. Opinion by GORDON, J. WILLIAMS, J., ab sent. The case was referred to a master, J. G. McConnell, whose finding on the evidence as to the July, '75, No. 139. facts was similar to that of STOWE, P. J., in his opinion in Com'th v. Mitchell. To this report the plaintiff filed exceptions. The Court (EWING, P. J.) delivered an opinion, reversing the master's finding as to the "mud-drum" contract of N. Snyder & Co., and sustaining the charge of corruption and bribery brought against that firm; dismissing, with these modifications, the exceptions to the muster's report, refusing the injunction, and dismissing the bill. The plaintiff took this appeal, assigning for Seymour v. Hubert. Jan. 26, 1877. Affidavit of defence-Sufficiency of-Executors or administrators not required to file affidavit in actions for debts of decedent. In a suit against an executor or administrator for a cause of action arising in the lifetime of the decedent, an affidavit of defence cannot be required. A scire facias to revive a judgment, issued after the death of the defendant, was served upon his executors. They filed an affidavit of defence setting forth that they were informed, believed, and expected to prove that there was nothing due on the judgment, the whole amount having been paid by usurious interest to plaintiff. The Court below entered judgment for want of a sufficient affidavit of defence: Held, that the affidavit was sufficient, and that, even were it not, judgment should not have been entered against the executors. Leibert v. Hocker, 1 Miles, 263, approved. Error to the Common Pleas No. 1, of Philadelphia Co. Nov. 6. THE COURT. Whilst we are not prepared to take the same view of the facts in this case as did the learned Judge of the Court below, in that we think the allegations of fraud, charged against N. Snyder & Co. in a former contract with the city, are not sustained, yet we must adopt his final conclusion as the proper one. We have ruled in the case of The Commonwealth ex rel. N. Sayder & Co. v. Mitchell et al. and The City of Pittsburgh, argued at the same time with this case, that the Act of Assembly imposed The judgment had been entered Dec. 17, 1873, upon the city authorities duties, in awarding the on a judgment note given by Sarah Tingle and contract in controversy, which were not merely Sarah Lewis to the plaintiff. Sarah Tingle died ministerial, but deliberative and discretionary, in 1874. The sci. fa. issued Jan. 22, 1875, and and that, as a consequence, the writ of mandamus was returnable the first Monday of February. Scire facias to revive judgment, et quare executionem non, brought by Alice Hubert against Sarah Lewis and Seymour et al., executors of Sarah Tingle, deceased. On the 6th February the defendant obtained a alleged payment was made on the note before the rule, nisi, to set aside sci. fa., open judgment, original judgment was entered. Some facts may and let defendants into a defence. On the 10th have been developed in the previous proceedings May the Court granted the defendants five days in the Common Pleas to give foundation for the to file an affidavit of defence, proceedings to stay objection, but no implication of such a conclusion in the mean time. On May 12, Sarah Lewis filed is consistent with the plain terms of the paper an affidavit alleging her coverture and minority; itself. and on May 19, an affidavit of Eddy, one of the executors of Sarah Tingle, deceased, was filed, alleging, inter alia, that deponent was informed and believed that there was nothing due on the judgment, the whole of the amount claimed having been paid by illegal and usurious interest to the said plaintiff, all of which deponent expected to be able to prove on a trial of the case. A still more important question is contained in this record. Two of the defendants were sued as executors of Sarah Tingle, deceased. In Leibert v. Hocker (1 Miles, 263) it was decidedthat an executor or administrator was not required to file an affidavit of defence in an action on a decedent's contract. The same rule was applied to a suit against the committee of a The Court entered judgment for the plaintiff lunatic in Alexander v. Ticknor (1 Phila. R. 120). for want of a sufficient affidavit of defence. The Those decisions expressed what is believed to executors of Sarah Tingle took this writ, assign- have been the pervading professional impression ing for error the entry of said judgment. in this State. In many, perhaps in all the judicial districts where rules of Court, in the absence of statutory provision, have required specific defences to be set out, actions against executors and administrators have been expressly exempted from their operation. Where the practice has been regulated by statute, such actions have uniWere it necessary the affidavits set up a good formly been held not to have been within the defence, for any defence subsequent to the judg-legislative intention. Such a construction is inment could be pleaded under the statute of 4th Anne (Robert's Digest, 46). J. A. Burton, for plaintiff in error. It is not necessary for executors to file affidavits of defence, in actions upon debts of decedents. Edwards v. Ewing, 4 Yeates, 235. Savage v. Everman, 20 Sm. 319. A. Thompson and Bispham, contra. The case of Leibert v. Îlocker, supra, was one where the action was brought on a contract made by the decedent, and was decided on the ground that the executor could not be expected to be cognizant of all the matters of defence. Here the amount due was ascertained by the judgment, and the reason of the law in the other case dispensable to protect interests that would be Judgment reversed, and procedendo awarded. Opinion by WOODWARD, J. WILLIAMS, J., absent. [See Vandusen v. Graham, executor, etc., 1 WEEKLY NOTES, 103; Hogg v. Braddock, Id. 147; Garrison v. Bunting, 2 Id. 14.] Feb. 12. THE COURT. For a variety of reasons this judgment cannot be sustained. On the 6th February, 1875, a rule was granted to set the scire facias aside, and open the original judgment. This rule was pending and undetermined when judgment for want of an affidavit of defence was entered. But apart from this irregularity, it is difficult to discover any essential defect in the affidavit made by Joshua P. B. Oct. & Nov. '76, 209. Eddy, one of the defendants. He swore that he had been informed and believed that there was nothing due on the judgment, but that the whole amount of it had been paid by illegal and usurious interest to the plaintiff; and he averred that he expected to be able on the trial to prove the truth of his statement. It was objected on the argument, that the language of the affidavit did not exclude the possible conclusion that the Nov. 10, 1876. Green v. The Commonwealth. Criminal law—Murder in the first degree—Elements necessary to constitute-Rashness and impetuous temper no excuse for-What provocation insufficient to excuse. Where all the ingredients necessary to constitute murder in the first degree have been proved, the mere fact that the murderous act was committed under verbal provocation and threats from the deceased, will not reduce the grade of the offence. Where the law and the facts have been fully and fairly presented to the jury in the general charge and answers to points, a partial qualification of one of the points, which, standing alone, might perhaps be doubtful, but which, in view of the immediate context and a reference to the general charge, was not calculated to mislead the jury, is no ground for reversal. Error to the Oyer and Terminer of Allegheny County. William Green, a colored man, was tried at December Sessions, 1875, in the Oyer and Terminer of Allegheny County under an indictment for the murder of his half-brother, Samuel Marshall, at Mansfield, near Pittsburgh, on Sept. 2d, 1875. The material facts disclosed on the trial were as follows: Green, the prisoner, and Marshall, the deceased, had lived with their mother, but had quarrelled, and had been involved in litigation, and Green had left the house. Green, on the morning after the settlement of the lawsuit before a Justice, threatened the life of Marshall. On the evening of the killing, Green stopped before the door of the house where the deceased was sitting at supper, and asked the latter "what he was going to do about the potatoes"-referring to some potatoes, claimed by Green, which Marshall had dug and appropriated. This led to an angry altercation, deceased using bad language, and threatening to give the prisoner a good pounding. The prisoner, having started up the road toward home, saying he would bring suit next day, deceased ran back to the fireplace, picked up a poker, and, running out of the house, called to the prisoner to come back, saying, if he came he would not go away alive. The prisoner, then being some yards up the road, said, “I will come," started towards the deceased, and, before reaching him, levelled at him a gun which he (the prisoner) had been carrying in his hand, and which, the evidence showed, he was accustomed to carry constantly with him, to shoot groundhogs and game. The deceased said, "Shoot if you want to." The prisoner was heard to say, "G-d d-n your wicked heart, I have been waiting for that!" At the same time the report and flash of the gun were heard and seen, and the deceased fell near the spot where he stood, before the house. The sound of a heavy blow was then heard, but no one saw the blow struck, and very soon the prisoner started off towards home. The deceased was found, still grasping the poker in his hand, with a bullet wound, necessarily fatal, in his side, and also a large gash in his head. A piece of the gun-barrel, about a foot long, was, shortly afterwards, found near by. The broken gun, carried off by the prisoner, was found at his house the same evening. At the trial, counsel for the prisoner requested the Court, inter alia, to charge: "That to constitute murder in the first degree, there must be a design and intention to kill at the time the homicidal act is committed, and this intention must be a fully formed purpose to kill, with so much time for deliberation and premeditation as. to convince the jury that this purpose is not the immediate result of rashness and impetuous temper." The Court (STERRETT, P. J.) declined to affirm this point as a whole, saying: "It is correct with the exception of the qualifying clause with which it closes. To constitute murder of the first degree, there must be a design and intention to kill at the time of the homicidal act, and this intention must be a fully formed purpose to kill with sufficient time for deliberation and premeditation, as already explained in the general charge, but the purpose to kill, necessary to constitute murder in the first degree, may, sometimes, be the immediate result of rashness and impetuous temper.' A rash and impetuous temper is no excuse, unless it has been aroused by adequate, legal provocation as explained in the general charge, and the intention to kill has been formed in the heat of passion thus generated." The learned Judge charged, inter alia, as follows: "All murder, not of the first degree, is necessarily murder of the second degree, and includes all unlawful killing under circumstances indicating depravity of heart, and a disposition of mind, regardless of social duty, where no intention to kill exists or can reasonably be inferred. Therefore in all cases of murder, if no intention to kill can be inferred or collected from the circumstances, the verdict must be murder of the second degree. "Manslaughter may be defined to be the unlawful killing of another without malice, express or implied, which may be voluntarily done in a sudden heat of passion, or involuntarily, in the commission of an unlawful act. Voluntary manslaughter often so nearly approaches murder that it is necessary to distinguish it clearly. The difference is this: manslaughter is never attended by legal malice or depravity of heart, that condition or frame of mind before spoken of, exhibiting wickedness of disposition, recklessness of consequences, or cruelty. But being sometimes a wilful act, as the term voluntary denotes, it is necessary that the circumstances should take away every evidence of cool depravity of heart or wanton cruelty. Therefore to reduce an intentional blow, stroke, or wounding, resulting in death, to voluntary manslaughter, there must be sufficient cause of provocation, and a state of rage or passion, without time to cool, placing the accused beyond the control of his reason and suddenly impelling him to the commission of the deed. If any of these be wanting-if there be provocation without passion, or passion without legal provocation, or if there be time to cool and reason has resumed its sway, the killing will be murder. But it is not every cause of provocation that is regarded as sufficient or legal. Insulting or scandalous words are not sufficient cause of provocation; nor are actual indignities to the person of a slight and trivial nature. Whenever the act evidences a deadly revenge, and not the mere heat of blood, whenever it is the result of a devilish disposition, and not merely the frenzy of rage, it is not manslaughter, but murder. Passion arising from adequate legal provocation is evidence of the absence of malice." The jury found the prisoner guilty of murder in the first degree, and sentence of death was accordingly pronounced. The defendant took this writ, assigning for error, inter alia, that "the record and evidence failed to show that the ingredients, necessary to constitute murder in the first degree, were proven to exist;" and the refusal of the Court to affirm the latter part of the above point. J. C. Graham and J. H. Baldwin, for plaintiff in error. The evidence in this case is too contradictory to justify a verdict of murder in the first degree. There is no evidence to controvert the theory of a conflict, the true theory of the case. destroy all self-control, and is not the master of his own understanding, and if, in this condition of mind, he inflicts a blow from which death ensues with an instrument which happens to be near or in his possession, the offence will clearly be but manslaughter." Kilpatrick v. Commonwealth, 7 Casey, 202. The Court below therefore erred in declining to affirm defendant's point without qualification. T. M. Bayne (with him E. A. Montooth, Dist. Attorney), contra, presented no paper-book, but contended that the question was entirely one of sufficiency of evidence, and that the evidence sustained the verdict of the jury. Upon a care Nov. 20, 1876. THE COURT. ful examination of the evidence in this case, we find that all "the ingredients necessary to constitute murder in the first degree were proved to exist." The prisoner and the deceased had been upon bad terms, and involved in litigation immediately before the homicide. The former, on the next morning after the lawsuit, had threatened the life of the latter. In the evening of the killing he stopped before the door of the house where the deceased was sitting at supper, and asked the latter what he was going to do about the potatoes a subject of difficulty between them. This led to an angry altercation, the deceased using bad language, and threatening to give the prisoner a good pounding. The prisoner having started up the road towards home, saying Wilful" of set purpose, voluntary, showing he would bring suit next day, the deceased ran design; done or suffered by design." Deliberate back to the fireplace, picked up a poker, and —“ weighing facts and arguments, with a view running out of the house, called to the prisoner to a choice or decision; carefully considering the to come back, saying if he came he would not go probable consequences of a step; circumspect; away alive. The prisoner then being some yards. slow in determining; formed with deliberation; up the road said, "I will come," and started towell advised or considered; not sudden or rash, wards the deceased, and, before reaching him, nor hasty or sudden; slow." Premeditated-levelled at him a gun he had been carrying in his "to think on and revolve in the mind beforehand; hands. The latter said "Shoot if you want to." to contrive and design purposely." Under the Act of March 31, 1860, murder, to be of the first degree, must be "wilful, deliberate, and premeditated killing." Webster's Dictionary. If the purpose to kill is the immediate offspring of rashness and impetuous temper, there can be no wilful, deliberate, and premeditated killing. There must be time to frame in the mind, fully and consciously, the intention to kill. The evidence showing that the prisoner habitually carried his gun, this case is different from one where a man deliberately chooses a gun, and seeks an opportunity to slay his enemy. If, in the suddenness of the occasion and impetuousness of temper, a blow is given, with the intention to do great bodily harm, it would be murder in the second degree. Commonwealth v. Drum, 8 Sm. 9. 2 Wharton's Crim. Law, §§ 932, 935, 944, 978. Hopkins v. Commonwealth, 14 W. 9. "If the prisoner is lashed into ungovernable passion by recent provocation, so strong as to At the same instant the report and flash of the gun were heard and seen. The deceased fell near the spot where he stood before the house; the sound of a heavy blow was heard, and very soon the prisoner started off towards home. The deceased was found with a large gash in his head, a piece of the gun-barrel, about one foot long, was shortly afterwards found near by, and the broken gun carried off by the prisoner found at his house on the same evening. No one saw the blow struck, yet the sound of it, the broken piece near the spot, the fractured gun, and the cut in the head of the deceased, leave no doubt of the fact. Nor is it very material where and how precisely the blow was struck, as the evidence beyond question proves that the gun was fired before the prisoner reached the deceased, and the bullet wound was the undoubted cause of death. Still the fact of the blow is important in deter mining the state of the prisoner's mind, and his under provocation and passion, we are led to disposition towards the deceased. Had the con- believe that the qualification contained in the flict and the blow occurred before the shooting, a answer was intended to guard the jury against different case would have been presented, bearing a mistake by which they might reduce the offence on the prisoner's state of mind and intention. from murder to manslaughter in the absence of a But here one whose mind had before been inflamed legal provocation, there being a seeming provotoward the deceased, who had threatened him, cation in the bad language of the deceased. In levelled a loaded gun and fired at him, at some this view we may reasonably conclude that the distance and before the latter had committed an jury were not misled by the seeming inaccuracy assault upon him, or could have reached him with of the first clause in the qualification of the answer. the poker held in his hand, and found still in it The general charge correctly set before the jury when carried into the house. It is evident, there- the distinctions in regard to homicide, and drew fore, that there was ample time for the prisoner their attention to the difference between murder to frame in his mind the deliberate purpose to and manslaughter. The point, however, was not shoot the deceased, and to carry this intent out, intended to bring this distinction into view, but by levelling his gun and discharging it, when told rather the frame of mind necessary to the comto shoot. It is no doubt true that he was also mission of murder in the first degree, that is, the irritated by the very bad language of the deceased, deliberation and premeditation which the Act of but this was no sufficient cause of provocation for Assembly makes essential to the crime of murder taking life, while the turning back of the prisoner in the first degree. So far as impetuous rage and when called to come back, his expression as he rashness followed by the immediate act, which turned “God damn your wicked heart, I have takes away life, tend to deprive the prisoner of been waiting for that"-walking back towards deliberation and premeditation, and to reduce the the deceased, levelling the gun at him, and shoot- homicide from murder in the first to murder in ing at the instant the deceased told him to shoot, the second degree, the point was pertinent; for all evidence a sufficient time to act deliberately, it was for the jury, judging upon the evidence, to and not under a sudden gust of passion, tearing up reason by the roots and urging him on to a rash and thoughtless deed. These facts, together with the previous state of the prisoner's feelings toward the deceased (his half brother) clearly presented a case where the ingredients of murder in the first degree were proved to exist, and therefore must be submitted to the jury for their judgment. Nor can we say that there was such a strong and reasonable doubt of their existence, as to require an acquittal. determine whether the act was a result of a deliberate and premeditated purpose to kill. The time may be short, yet a jury may find that the fully conscious purpose to kill existed. Yet if, on the other hand, by reason of the shortness of the time, and the presence of great rage produced on the instant, and in a moment of impetuous temper a blow is given, a jury may be convinced, that it was not the result of a fully formed purpose to kill, but of a rash and hasty impulse, with scarcely a consciousness of any purpose except to do bodily But one other assignment of error is worthy of harm to the object of wrath. Hence, though the notice. The prisoner's first point is that to con- absence of a legal provocation may prevent the stitute murder in the first degree there must be a reduction of the crime from murder to mandesign and intention to kill at the time the homi- slaughter, the want of the deliberation and precidal act is committed, and this intention must be meditation required by the law, may reduce the a fully formed purpose to kill with as much time grade of the murder from the first to the second for deliberation and premeditation as to convince degree. If therefore the learned Judge intended the jury that this purpose is not the immediate the qualification in his answer to the first point result of rashness and impetuous temper. The to apply to the point itself, it would be inacenanswer affirmed the point in its own language rate. But his reference to his general charge nearly, and the Judge added, "but the purpose conveys the impression that he intended only to to kill necessary to constitute murder in the first guard the jury against a misapprehension, reducdegree may sometimes be the immediate resulting the offence to manslaughter in the absence of of rashness and impetuous temper.' A rash and a legal provocation. This acquires strength impetuous temper is no excuse unless it has been aroused by adequate legal provocation, as explained in the general charge, and the intention to kill has been formed in the heat of passion thus generated." The first clause of the qualification is perhaps doubtful, yet in view of the whole sentence and of the reference to the explanation given in the general charge, relating to the crime of manslaughter, as an offence committed when we remember the facts of the homicide. The prisoner returned at the call of the deceased, and before reaching him, levelled his gun and fired, and this too after the expression, "God damn your wicked heart, I have been waiting for that," excited by the call. No doubt he was angry and provoked by the threats of the deceased; but his anger was the offspring of hate and revenge, and not of that hasty and impetuous |