prisoner considered his marriage with Susan necessary to obtain her money. Marriage with Susan must then have been a preëxisting intent, inducing him to frame in his mind the plan of taking the lives of both Sharlock and Nancy, to enable him to marry Susan, and thus to obtain her money. But here the evidence fails to furnish the wanting link. There was no evidence, as we have seen, of any design to marry Susan; while it also appears that the prisoner had no cause to doubt his power to obtain possession of Susan's money, in order to make marriage a ruling motive. On the contrary, the evidence shows that instantly, on Sharlock's death, the prisoner took the steps to obtain the policy money, and soon accomplished the purpose. The agent of the insurance company states that, when the money was paid to Susan, she handed it to the prisoner, who put it into his pocket; and we find that afterwards he spoke of still having it, and offered to pay a debt for Susan. It might be, if the prisoner found that Susan would not part with her money after she got it, he then formed the design of marrying her to get it; and, as the means of doing so, then resolved to kill his wife. But this comes too late; for, unless this purpose was present to his mind before he took Sharlock's life, it could not constitute a motive and part of his plan to take his wife's life also, so as to link the two deaths together. But, in order to be present to his mind. before Sharlock's life was taken, he must have previously known or believed, or must have plainly foreseen he could not avail himself of Susan's money without marrying her, and concluded to marry her, a fact unsupported by any evidence. The previous purpose to marry Susan is the broken link in the chain to complete the connection, without which the deaths of both are not so probably connected, or to make Sharlock's death evidence on the trial for the death of Nancy. It was therefore unjust to the prisoner to compel him, on his trial for the murder of his wife, to defend himself against the charge of murdering Sharlock. The offer should have been rejected.

The other errors assigned to the charge are not sustained. It is contended, and earnestly pressed upon us, that the judge had no right to say to the jury that if the prisoner was guilty of murder, it was murder in the first degree, and it was their duty to say so regardless of consequences. The indictment charged a murder by poison, and such was the tendency of the evidence. It was not only the right but the duty of the judge to inform the jury of the degree which the law attaches to murder by poison, and to instruct them in their duty under the law. It is only when the charge becomes imperative, and takes from the jury the right of deciding and pronouncing the degree of the murder, that we have held it to be error. When left free, as in this case they were, to decide the degree for themselves, we have not held it to be error to impress upon their minds the legal inference from the facts, and their duty to obey the law. But when, as in Rhodes v. Commonwealth (12 Wright, 396), and Lane v. Commonwealth (9 P. F. Smith, 371), a court addresses a jury authoritatively, and requires of them a verdict of murder in the first degree, it is error. Jurors uninstructed in their rights in

a capital case may feel themselves constrained by the peremptory direction of the judge. Both the cases referred to stood upon the same ground, and in both the error was the binding instruction of the court. The language in this case approaches closely the boundary line of peremptoriness, but we cannot say it overstepped it, in view of those parts of the charge which left them free to act for themselves. Jurors are so apt to lean away from a verdict of murder in the first degree, we must not scan too critically the language of the judge, if he has left them free to find the degree of the murder on the evidence. None of the other assignments of error require notice. The sentence of the Court of Oyer and Terminer is reversed, and a venire facias de novo is awarded, and the record is ordered to be remitted for a new trial.

BROWN V. THE COMMONWEALTH.

(73 Pennsylvania State R. 321. Supreme Court, 1873.)

Testimony of Deceased Witness.

Dying Declarations.
Drawing Jurors.

Mode

of

The Criminal Court of Dauphin, Lebanon, and Schuylkill Counties, created by the Act of April 18, 1867, is constitutional, and it has, under Act of April 21, 1870, concurrent jurisdiction with Courts of Oyer and Terminer, &c., of Schuylkill County. On the hearing before a justice of the peace of a prisoner charged with murder, the testimony of a witness for the commonwealth was taken in writing. The witness having died, the notes of his testimony were admissible on the trial.

A man was found dead in a road about three hundred yards from his house with marks of violence. His wife was found in the house the same day with wounds of which she afterwards died, and there were marks about the house showing that it had been robbed. Held, that the dying declarations of the wife were not evidence for the commonwealth on the trial for the murder of the husband.

The sheriff and jury commissioners, after selecting names for jurors, placed them in the wheel, which was sealed with but one seal. Held, that the array of jurors drawn from the wheel should have been set aside and the indictment found by the grand jury quashed.

MARCH 7, 1873. Before Read, C. J., Agnew, Sharswood, and Mercur, JJ. Williams, J., at nisi prius.

Error to the Criminal Court of Schuylkill County: No. 78, to January Term, 1873.

At April Term, 1872, of the court below, the grand jury found a true bill against Joseph Brown for the murder of Daniel S. Kraemer.

On the 27th of May, 1872, he challenged the array of jurors, "for the reason that the sheriff and jury commissioners of Schuylkill County, at the time of the selecting and placing in the wheel the names of jurors, did not secure the jury-wheel in the manner required by law, they having failed to secure the said wheel by sealing the same with their respective seals, the said wheel being sealed with only one seal, if any."

On the same day the prisoner moved to quash the indictment, for the same reason as that given for challenging the array.

The court (Green, P. J.) heard the testimony of the jury commissioners and the sheriff on the challenge and the motion to quash. The evidence was that after the wheel was filled it was locked and placed in a box, which was also locked with a padlock, tape drawn across the lid of the box, tied and sealed; there was but one seal put on the box, that was the private seal of one of the jury commissioners; both jury commissioners were present when the box was locked and sealed; the sheriff was not present; the key was obtained from him and returned to him; the box had always been kept in that way, and had always been found by the jury commissioners intact and where they left it.

On the 28th of May the court sustained the challenge and ordered the sheriff and jury commissioners to take all the names of jurors from the wheel, and deposit new names, &c.

On the 29th of May the court revoked the foregoing order, "no action having been taken as yet by the said sheriff and jury commissioners in the premises."

On the 27th of August the court overruled the motion to quash the indictment.

At the request of the prisoner, the court sealed bills of exception. The prisoner was indicted at the same time for the murder of Annetta Kraemer, the wife of Daniel S. Kraemer.

The prisoner pleaded to the jurisdiction of the court, alleging that the Act of April 18, 1867, establishing the Criminal Courts of Dauphin, Lebanon, and Schuylkill, and its supplement of April 21, 1870, were unconstitutional. The court overruled the plea.

The indictment was tried August 27, 1872.

The evidence was that the deceased was found on the 25th of February, 1872, in a lane about three hundred yards from his house, and that the wife shortly before, on the same day, was found on her bed in the house, with her head beaten badly; she died from the injuries on the 4th of March. The husband was about sixty years old, and the wife about fifty.

Daniel M. Kraemer, a son of the deceased, not living at home, testified that his father was alive on Sunday, the 25th of February. He went to the house on Monday morning before 7 o'clock, and in a back room found his mother lying on her bed insensible; he found blood around the front room; she was covered with blood so that her face could not be seen; she had her day clothes on; he then went out and found his father lying on his back in the road; there was blood on his face and in the road; he, with some neighbors, then returned to the house, they found a chest and desk in the front room broken open.

Other witnesses testified to similar circumstances, and also to the bruised and wounded condition of Mrs. Kraemer; also, that they found coin in a secret drawer, which was unopened, of the chest, and also in the bottom of an old-fashioned clock.

There was a large amount of evidence tending to connect the prisoner with the murders.

Sophia Fehr, a sister of Mrs. Kraemer, testified that she came to the house on Monday morning and found Mrs. Kraemer lying on

the bed, bloody and bruised; she was then conscious. The witness testified much in detail as to the condition of her sister and also as to there having been money in the house.

The commonwealth having examined a great number of witnesses, and having shown that one Isaac Hummel had been arrested with the prisoner upon suspicion of being connected with the murder, called B. B. McCool, Esq., a member of the Schuylkill County bar, who testified:

"I was present at the examination of Charles Ewing before 'Squire Reed in this court-house. 'Squire Reed is a justice of the peace in the borough of Pottsville. Charles Ewing is dead. He was killed on the 14th day of April last on Market Street, in the borough of Pottsville. Joseph Brown was present at that hearing and represented by counsel. There were two members of the bar, Messrs. Farquhar and Strouse, there. They represented Brown and Hummel. It was on a preliminary hearing before the committing magistrate. I took notes of the testimony as given by Charles Ewing (notes shown witness); these are the notes. These notes are correct of Charles Ewing's testimony. Mr. Ewing was very much excited and embarrassed, and not very coherent. I took down nearly every word he said, and the order in which he said it, and I think in his language. I will say that I think the notes contain the exact words of the witness. In taking the notes I made the question and answer to conform to the exact words of the attorney and witness. I had not time to write down the questions, but took questions and answers together. I was not acting as counsel, but as clerk for the district attorney, at his request. I am now counsel in the case, retained for the commonwealth. I think my notes contain the exact words of the witness."

The commonwealth then offered to read the testimony of Ewing, from the notes of Mr. McCool. The offer was objected to by the defendant, admitted by the court, and a bill of exceptions sealed.

The commonwealth recalled Sophia Fehr, and proposed to ex amine her as to dying declarations of Mrs. Kraemer on Monday and Tuesday, upon the subject of the murder of her husband.

The defendant objected, amongst other things, that the dying declarations of Mrs. Kraemer, as a part of the res geste, or sur rounding circumstances, proposed to be offered, on Monday following, are inadmissible, because not accompanying the transactions, not concomitant with the murder of Daniel S. Kraemer, on Sunday evening preceding, but are mere hearsay evidence, not made in the presence of the prisoner; and they are irrelevant in this issue as to the murder of Daniel S. Kraemer.

The court admitted the offer and sealed a bill of exceptions. The commonwealth then gave in evidence the declarations of Mrs. Kraemer tending to connect the prisoner with the murder.

In the course of the trial a number of exceptions were taken to the rulings of the court on questions of evidence, and also to the charge of the court; none of which were considered by the Supreme Court.

The jury found the prisoner guilty of murder in the first degree.

A motion for a new trial was made; it was overruled; and on the 7th of October 1872, the prisoner was sentenced to be hanged. The prisoner sued out a writ of error.

He assigned for error that the court erred

1. In not quashing the indictment, because the grand jury was drawn from a wheel not secured according to law.

2. In revoking the order directing the sheriff and jury commissioners to make a new selection of jurors, &c.

3. In overruling the motion to quash the array of petit jurors. 4. In overruling defendant's plea to the jurisdiction of the court. 5. In admitting the notes of the testimony of Charles Ewing, a deceased witness, before the committing magistrate to be read in evidence.

14. In admitting evidence of the dying declarations of Annetta Kraemer, the wife of deceased.

G. R. Kaercher, F. G. Farquhar & B. W. Cummings, for plaintiff in error.

J. B. Reilly (District Attorney) & L. Bartholomew (with whom was B. B. McCool), for the commonwealth.

The opinion of the court was delivered, April 5, 1873, by

READ, C. J. This is a writ of error to the Criminal Court of Schuylkill County, sued out under the Act of the 15th February, 1870, upon the oath of the defendant, and brings up the whole record.

The constitutionality and jurisdiction of this court have been finally settled in Commonwealth v. Green (8 P. F. Smith, 226), and in Commonwealth v. Hipple (19 Ib. 9), and its concurrent jurisdiction with the Courts of Quarter Sessions of the Peace and Oyer and Terminer and General Jail Delivery of the county of Schuylkill, is fully recognized and established by the Act of 22d April, 1870 (Pamph. L. 1254), and the court below were therefore right in overruling the plea to the jurisdiction, entered by the defendant.

On the preliminary hearing before the committing magistrate, the defendant and his counsel being present, a witness was examined whose testimony was taken down by defendant's counsel, and the witness having died before the trial, the notes of his evidence proved by the counsel under oath were offered in evidence, objected to, and admitted. It was objected that by the Constitution of the state, the defendant was entitled to meet the witnesses face to face.

The doctrine on this subject is thus laid down in the 3d volume of Russell on Crimes, by Greaves, 4th edition, 1865, page 249: "If there has been a previous criminal prosecution between the same parties, and the point in issue was the same, the testimony of a deceased witness, given upon oath at the former trial, is admissible on the subsequent trial, and may be proved by any one who heard him give evidence," and the same is repeated at page 424, in the note. We find the same rule in 1 Phillips & Arnold's Evidence, pp. 306-7, and in 1 Pitt Taylor on Evidence, 4th edition, 1864, pp. 445, 447. Dr. Wharton, in his valuable Treatise on Criminal Law in the United States, vol. 1, p. 667, says: "The testimony of a deceased witness given at a former trial or examination may be proved at a