Clarke v. Clarke.

And now, March 18, 1925, the first meeting before the master is declared void and of no effect or validity, the report of the master is set aside and the case referred back to him. When he again fixes the time of the first meeting before him, he will send notice of the said meeting, together with a copy of the interrogatories of the libellant, by registered letter addressed to the respondent, "at least fifteen days prior to said meeting."

From Aaron S. Swartz, Jr., Norristown, Pa.

Commonwealth v. Petrusky et al.

Criminal law-Evidence-Best evidence-Way-bill.

1. On a trial of an indictment for stealing goods from a car in transit from a point in another state to a point in Pennsylvania, a way-bill serving to identify the goods is admissible in evidence as the best evidence, where it appears that the shipper of the goods and the clerk who made out the way-bill are beyond the jurisdiction, so that process would not compel their attendance in court, and their depositions would not be available in a criminal proceeding in Pennsylvania.

Criminal law-New trial-Notice to Commonwealth-Rules of court.

2. A motion for a new trial in a criminal case will not be considered, where notice of the motion was not served upon the Commonwealth within ten days after filing, as required by a rule of court.

Motion in arrest of judgment and for new trial. O. & T. Schuylkill Co., March T., 1923, No. 295.

Cyrus M. Palmer, District Attorney (with him John F. Whalen), for Commonwealth.

R. A. Freiler, for defendants.

KOCH, J., April 6, 1925. — The five men named above [Joseph Petrusky, Harry Downey, Joseph McAndrew, John Galina and James Buscavage] were indicted together on May 7, 1923, upon the three counts, namely: (1) Larceny, (2) entering with intent to steal, and (3) receiving stolen goods. Joseph Petrusky and Joseph McAndrew were tried at the September Term, 1924, and convicted on the counts charging larceny and entering with intent to steal. Harry Downey was tried at the March Term, 1925, and found guilty of receiving stolen goods. Galina and Buscavage are fugitives from justice. Petrusky and McAndrew filed a motion and reasons for a new trial, but they failed to serve the same on the Commonwealth within ten days after filing, as required by section 4 of our rule of court No. 34 relative to new trials. That motion may, therefore, be considered as dismissed.

But we deferred sentence of Petrusky and McAndrew for the time being so that we might hear counsel on a similar motion, if made, after the conviction of any or all of the other defendants, because we are not disposed to hold Petrusky and McAndrew if the same evidence upon which they were convicted is not sufficient to hold any of the other defendants after their conviction by a jury. Harry Downey has now been convicted and his motion for a new trial is before us.

The reasons in support of the motion in arrest of judgment and for a new trial for Harry Downey may be resolved into this: That the evidence is not sufficient to hold Harry Downey, it being substantially the same evidence upon which Petrusky and McAndrew were convicted.

We must assume that, under the evidence, the jury found, and were warranted in finding, the facts hereinafter stated. On Jan. 22, 1923, at about 2 P. M., there was delivered by the New York Central Railroad Company to

Commonwealth v. Petrusky et al.

the Philadelphia & Reading Railway Company, at Newberry Junction in this State, a refrigerating car of the former company bearing No. 152530. The car had come to Newberry Junction over said New York Central Railroad from Chicago. The seal clerk of the Philadelphia & Reading Railway Company at Newberry Junction inspected the car upon its arrival there and found the doors closed and the seals intact. The car was destined for Philadelphia and it was taken from Newberry Junction in a fast freight train of the Philadelphia & Reading Railway Company in the early afternoon of the following day. When the freight train arrived at Tamaqua, in this county, between 8 and 9 o'clock P. M., on its way to Philadelphia on Jan. 23, 1923, one of the inspectors at Tamaqua found that the seal on the eastern side of the car was missing and that the door was open. The inspector closed the door and resealed the car, and in due course the car arrived in Philadelphia. Upon being opened in Philadelphia, it was found that three cases of a shipment of 161 cases of eggs in said car to Nice Schreiber Company at Philadelphia were missing. On each end of each crate or case of eggs in said car was plainly stenciled "2254, Nice Schreiber Company, Philadelphia." The waybill covering the shipment in said car from Chicago to Philadelphia was offered in evidence and received over the objection of the defendant's counsel, the objection being that the way-bill was without oral testimony for its support by those who loaded the car and made up the way-bill in Chicago. The way-bill described the shipment as being 161 cases of fresh eggs, whereas only 158 cases were found in the car when it arrived at its destination in Philadelphia. The way-bill showed that the shippers in this case were Schermerhorn and Shotwell, and the consignees were Nice Schreiber Company, Philadelphia. A. P. Stofko, a police officer of the Philadelphia & Reading Railway Company at Tamaqua, having been informed of the shortage in the egg shipment, and acting upon other information which created suspicion, on Jan. 26, 1923, went with several other police officers to search a house or shack in the village of Pattersonville, located in this county on the line of the Philadelphia & Reading Railway Company and lying between Newberry Junction and Tamaqua. The said shack was then unoccupied, as the occupants had been arrested and taken into custody two days previously upon charges unrelated to those in this case. The parties so arrested were Petrusky, McAndrew and Galina, three of the defendants named in this indictment, and Mary Verchomsky, a female child fourteen years old. At the shack, Stufko and the policemen who were with him found a fifty-pound lard can filled with eggs, also some eggs in a bowl and many egg-shells on the cellar floor, two ends of an egg case stenciled "2254, Nice Schreiber, Philadelphia," also some other parts of an egg case and a rope ladder with eight iron rungs and two large iron hooks at one end of the ladder, which was enclosed in a burlap bag.

Mary Verchomsky was the most important witness for the Commonwealth at the two trials. From her testimony the jury were warranted in finding that on Dec. 23, 1922, Mary had been taken to said shack by Petrusky and McAndrew and had been detained there until about 7 o'clock P. M. on Jan. 24, 1923, when she, McAndrew, Petrusky and Galina were arrested and taken to Shenandoah; that on the day prior to said arrest, McAndrew and Downey came to the shack with a motor-car and said to Petrusky they were going to go to Ringtown for eggs; that they used to bring coffee, sugar and canned goods in boxes to the shack; that Petrusky, Downey and McAndrew left the shack with the latter's motor-truck on the evening of Jan. 23, 1923, and that when they returned that evening Petrusky brought a case of eggs into the shack; that McAndrew and Downey lived in Shenandoah at the time and left

Commonwealth v. Petrusky et al.

the shack after they had brought eggs there; that when the three left for the eggs that evening they took with them the bag with the rope ladder, and when Mary Verchomsky asked what was in the bag they told her it was none of her business; that when they returned with the eggs they told Mary they got the eggs at Ringtown.

Were we in error in receiving the way-bill in evidence? We think not. The parties in Chicago who put the eggs into the refrigerator car there and the clerk who made up the way-bill are beyond our jurisdiction and our process would not compel their attendance at court. Nor would their depositions be available on the part of the Commonwealth in a criminal court in this State. The way-bill itself was, therefore, under the circumstances, the best evidence of what it purports to show, and it was at least prima facie evidence of the truth of the data upon its face. We think the jury was clearly warranted in believing that three cases of eggs were taken from that car and that one case was taken to Petrusky's shack and that the other two cases were taken to Shenandoah or elsewhere by Downey and McAndrew in the latter's motortruck in the night-time of Jan. 23, 1923. Thereby the corpus delicti is proven and the guilt of Harry Downey is established. It was exclusively within the jury's province to find of which count the defendant is guilty and we feel that their verdict should not be set aside.

And now, April 6, 1925, the motion in arrest of judgment and for a new trial is refused and the defendant is directed to appear before the court for sentence.

From M. M. Burke, Shenandoah, Pa.

Koch's Estate.

Taxation -Inheritance tax mistakenly paid-Reimbursement-Acts of March 30, 1811, 5 Sm. Laws, 228, April 8, 1869, P. L. 19, June 12, 1878, P. L. 206, June 9, 1911, P. L. 738, June 20, 1919, P. L. 521, and June 7, 1923, P. L. 498.

1. Prior to the passage of the Act of June 7, 1923, P. L. 498, a refund of inheritance taxes mistakenly paid could not, under any act of assembly, be granted upon application made more than two years after date of payment of the tax, except in those special cases provided for in section 40 of the Act of June 20, 1919, P. L. 521.

2. Where an inheritance tax has been paid on real estate mistakenly included in the estate of a decedent, and no demand for reimbursement has been made until over three years after discovery of the mistake, no reimbursement can be allowed under the Act of June 7, 1923, P. L. 498.

3. The power of the Board of Finance and Revenue, under paragraph (b) of the Act of 1923, to "revise any settlement made... by the Auditor General or any other agency of the State government charged with the settlement of State taxes," does not apply to the collection of an inheritance tax by a register of wills appraised by appraisers duly appointed.

4. The word "settlement," in its technical sense, cannot be considered as synonymous with the word "appraisement," as used in the Act of June 20, 1919, P. L. 521.

5. The word "settlement," as construed by the courts and understood in prevailing practice, means an adjustment or determination of an amount.

Department of Justice. Opinion to Hon. Clyde L. King, Secretary, Board of Finance and Revenue.

WOODRUFF, Att'y-Gen., March 5, 1925.-Replying to your inquiry concerning whether or not the Board of Finance and Revenue has the authority to grant a refund for certain transfer inheritance taxes alleged to have been

Koch's Estate.

erroneously assessed and paid in re Estate of Horatio B. Koch, deceased, permit me to advise you as follows:

It appears that Horatio B. Koch died Sept. 29, 1920; that the State transfer inheritance tax was paid to the Register of Wills of Lehigh County, Dec. 23, 1920, in which was included tax on certain real estate then supposed to have been owned by the decedent, but which it is now alleged was in fact owned by another.

The discovery of this alleged error was not made until, possibly, May 1, 1924, three years and four months after the date of payment.

More than two years having elapsed since the date of the payment of the tax, and there being no question of an overvaluation by reason of the estate having consisted in whole or in part of a partnership or other interest of uncertain value or having been involved in litigation, no question arises which calls for a consideration of the provisions of section 40 of the Act of June 20, 1919, P. L. 521. The scope of this section has been considered in an opinion rendered to the State Treasurer by Deputy Attorney-General John Robert Jones, under date of July 28, 1924, in the Estate of John B. Steele, deceased [5 D. & C. 540].

The only question is whether or not the Board of Finance and Revenue created by section 1102 of article XI of the Act of June 7, 1923, P. L. 498, 551, known as the "Administrative Code," has authority to consider the claim, and, if valid, direct a refund of the amount of tax from the State Treasury. Paragraphs (a) and (b) of said section state that said board shall have the power, and it shall be its duty:

"(a) To continue to exercise the powers by law vested in and imposed upon the Board created by the Act, approved the eighth day of April, one thousand eight hundred and sixty-nine, entitled 'An Act relating to the settlement of public accounts,' its amendments and supplements, the Board of Public Accounts, the Board of Revenue Commissioners, and the Sinking Fund Commission.

"Resettlements.

"(b) To revise any settlement made with any person or body politic by the Auditor General or with any other agency of the State government charged with the settlement of State taxes, when it may appear from the accounts or from other information that the same has been erroneously or illegally made, and to resettle the same according to law and to credit or charge, as the case may be, the account of such person or body politic."

The Act of April 8, 1869, P. L. 19, creating the said Board of Public Accounts, reads as follows: "An act relating to the settlement of public accounts.

"Section 1. Be it enacted, etc., that the Auditor General, State Treasurer and Attorney-General be authorized to revise any settlement made with any person or body politic by the Auditor General, when it may appear from the accounts in his office, or from other information in his possession, that the same has been erroneously or illegally made, and to resettle the same according to law, and to credit or charge, as the case may be, the amount resulting from such resettlement upon the current accounts of such person or body politic."

To this act the supplementary Act of June 9, 1911, P. L. 738, was subsequently passed, which, however, has no bearing upon the case in point.

The Act of June 12, 1878, P. L. 206, authorizing the State Treasurer to refund collateral inheritance taxes erroneously paid, upon application made within two years, was in all respects, so far as the question here involved is

Koch's Estate.

concerned, substantially the same as said section 40 of the Act of June 20, 1919, and in an opinion by Henry C. McCormick, Attorney-General, under date of Jan. 14, 1899, to the then State Treasurer, he advised in part as follows:

"... I advise you that the application for repayment of the collateral inheritance tax, paid erroneously into the State Treasury, cannot under any act of assembly be repaid to you. Repeating what I said to Hon. S. M. Jackson, State Treasurer, in letter from this department, dated June 6, 1895, and now before me: 'I regret to say that the only legal authority vested in the State Treasurer to repay tax erroneously paid to the Commonwealth is by the Act of June 12, 1878, and that, by a proviso contained in said act, all applications for repayment of tax erroneously paid into the treasury must be made within two years from the date of payment. I reach this conclusion because of the imperative words of the statute.' It has been made perfectly clear to me that this estate, as it was finally settled, paid several thousand dollars more tax than that to which the Commonwealth was entitled, but as the law now stands the only remedy is through an act of assembly passed appropriating the money."

See, also, the following opinions of Attorneys-General to the same effect: In re Mathias's Estate, 1895-96, page 78; McClune's Estate, 37 Pa. C. C. Reps. 529.

It is clear, therefore, that, prior to the passage of the Administrative Code in 1923, opinion was well settled to the effect that refund of such taxes erroneously paid could not “under any act of assembly" be granted upon application made more than two years after date of payment of the tax, except in those special cases provided for in said section 40 of the Act of June 20, 1919, which, as hereinbefore stated, have no application here.

The said Act of April 8, 1869, P. L. 19, creating the said Board of Public Accounts, authorized it to "revise any settlement made by the Auditor General." By paragraph (b) of the Act of June 7, 1923, the power of the Board of Finance and Revenue appears to be enlarged so that it may “revise any settlement made by the Auditor General or any other agency of the State government charged with the settlement of State taxes."

Webster's International Dictionary defines the word "settlement" as "the act or process of adjusting or determining; composure of doubts or differences; arrangement; adjustment; as, settlement of a controversy, of accounts, etc." The Act of March 30, 1811, 5 Sm. Laws, 228, is entitled "An act to amend and consolidate the several acts relating to the settlement of public accounts, etc." It consolidates the acts relating to the settlement of public accounts, and authorizes the Auditor General to examine and adjust the same according to law and equity, therein providing a procedure which is spoken of as a "settlement;" it seems to indicate that this term is used in the sense of adjustment or determination of an amount. In the case of Com. v. N. Y., Pa. & Ohio R. R. Co., 188 Pa. 169, 178, Judge Simonton, of the Dauphin County Court, whose decision was affirmed by the Supreme Court, says: "An 'account' or 'settlement' is a physical, tangible thing, a paper with figures and writing upon it, signed by the Auditor General and State Treasurer, endorsed, copied into a ledger and filed away in its appropriate place. Whether such a settlement has been made against a given corporation, for a tax of a given year, is, therefore, a question of fact to be ascertained by looking in the proper place for the settlement."

The power and authority conferred upon the Board of Finance and Revenue must be strictly construed. Prior to the enactment of the Administrative