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Dork Legal Record this court, it is incumbent on the objector to

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show that fact.

The sixth, seventh and eighth exceptions are refuted by the sworn facts which appear in the viewers' report, which, without legal refutation, must be assumed by this court, as true; In re Road in Strasburg Township, 15 D. R. 666.

of the viewers is hereby confirmed. Exceptions are dismissed and the report

"2. There is no occasion for a public Q. S. of road between the termini set forth in the petition and order of court."

Com. v. KoEune.

Lancaster Co.

Criminal Law-False Pretense--Signature to Written Instrument-New TrialQuestion for Jury.

If those conclusions were all of the report, it might be deemed proper to recommit the report for further explanation; but the viewers also describe their meeting, their advertisment, and the several adjournments Where on the trial of a defendant charged and a public meeting held in the Court with false pretense it is shown that the defendant House at York, at which public hearing ap- falsely represented himself as the insurance adpeared, among others, "the full board of juster for the company in which the prosecutor, road supervisors of Carroll Township, **who had sustained a fire loss, was insured, and thereupon the defendant obtained the signature of petitioners by their counsel, Logan and the prosecutor to a contract employing the defendLogan Esqrs., and objectors by S. B. Meis-ant to advise and assist in the insurance claim at enhelder, Esq., their counsel." Testimony a fee of ten per cent. of the amount of the adjustwas given by witnesses under oath, and the ment, the case is for the jury, notwithstanding conclusions are drawn from the personal for his compensation. that the defendant proposed to render service view of the Board of viewers and their hearing of the testimony. We have none of that testimony before us, but the draft of the portion of the road which was passed upon is annexed to the petition, and shows the surroundings together with the course and distance of another public road which touches the same termini given in the petition.

We think under the decisions, the report and petition, on which the viewers were appointed, are clear and intelligent enough to withstand the 1st, 2nd and 3rd exceptions; West Donegal Township Road, 21

Pa. Super. Ct. 621; Drumore Township
Road, 49 Pa. Super. Ct. 493; Bristol,
Township Road, 49 Pa. Super. Ct. 549.

The 4th exception is refuted by the draft which is attached to the report showing a public school house within close proximity to the premises of Lottie J. Nelson, who is the only exceptant to the report.

The 5th exception is without merit. The petition asking for the appointment of viewers describes the road to be vacated as a "public road," and the presumption is that it was a public road. If it is not such a road as is properly within the jurisdiction of

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"It was a question for the jury whether the false pretense in obtaining the signature was sufficient to deceive an ordinarily prudent man though the which would have shown the falsity of the deprosecutor signed without reading the instrument, fendant's representations.

Rule for new trial.

John A. Nauman and S. R. Zimmerman for rule.

John E. Malone and S. I'. Hosterman, Assistant District Attorney, contra.

July 7th, 1917. HASSLER, J.-The dewhich charged that he did "unlawfully and knowingly and designedly falsely pretend to the said E. W. Brown, whose personal property, located in the Imperial Hotel, Lancaster, Pennsylvania, had been destroyed by fire and was insured by various insurance companies, that he, the said P. Curtis KoEune, was the insurance adjuster sent up to adjust the said E. W. Brown's fire loss, by color and means of which said false pretense and pretenses, he, the said P. Curtis KoEune, did then and there unlawfully, knowingly and designedly obtain from the said E W.

fendant was convicted on an indictment

Brown his signature to the attached con- was present at that time. He told the tract, with intent to cheat and defraud, &c." prosecutor, not in the hearing of the defendThe contract to which the signature of the ant, that the defendant was not the Insursaid E. W. Brown was obtained, a copy of ance Company's adjuster, and the prosecutor which is attached to the indietment, is as thereupon refused to allow him to do anyfollows: thing further. The defendant then said, "To the Insurance Companies interested: "I have got your signature and you have to "This is to certify that P. Curtis KoEune pay me anyhow." On the same day S. R. Co., Inc,, or its representative, is hereby re-Zimmerman, Esq., acting as attorney for the tained to advise and assist in the adjustment defendant, sent notices to the Insurance of the Insurance Claim arising in conse- Company of the assignment, and also gave quence of Fire, Smoke and Water which it a copy of the same. Most of this testioccurred at 33-35 W. King Street, Lancas-mony is corroborated by several witnesses. ter, Pa., on 31st day of March, 1916, to The defendant denied this testimony as Stock-Fixtures - Building - Plant- Household to how he obtained the signature of the Furniture, and it is agreed to pay the said prosecutor to the contract, but as the jury P. Curtis KoEune Co., Inc., for such serv-evidently believed the Commonwealth's tesices, fee of ten per cent. (10%) of the timony, it only remains for us, in disposing amount of adjustment and expenses, hereby of this rule for a new trial, to ascertain assigning to the P. Curtis KoEune Co., whether it is sufficient to sustain a convicInc., all moneys due or to become due from tion, the Insurance Companies interested to the extent of said fee and advances. The fee of P. Curtis KoEune Co., Inc., shall be due after proofs of loss are sworn to and no fee to be less than twenty-five dollars.

"E. W. BROWN (Seal)."

Witness: P. C. KoEune.

At the trial E. W. Brown, the prosecutor, testified that a fire injured some of his property, consisting of furniture, &c., located in the Imperial Hotel in this City, and that he was insured against any loss to it by fire, in two policies of insurance issued by the Glens Falls Fire Insurance Company.

Four reasons for a new trial have been filed. They raise but two questions, the first one of which is that there should have been no conviction because there is no evidence of any intention on the part of the defendant to defraud the prosecutor, as he proposed to give service for the amount which he was to obtain from the prosecutor by reason of the contract.

The intent to cheat and defraud is to be inferred from the circumstances of each case; 2 Wharton on Criminal Law, Sec. 1448. The acts of the prisoner after, as well as before obtaining the goods are evidence of his intention to cheat and defraud; Com. v.

The fire occurred on March 31, 1916, | about ten o'clock A. M. The defendant McCrossin, 2 Clark 6. The circumstances called upon him between two and three o'clock P. M., and again at five o'clock P. M., of the same day. On his first visit he said that "He was the adjuster for the Insurance Company, was sent there to adjust this loss by the insurance company that I had." On his second visit he testifies as follows: "He called to my wife and myself to come over, he wanted to get this thing fixed up, the sooner it was fixed up the sooner it was over. He told us then he was the adjuster for the Insurance Company I was insured in, and he said 'sign your name here, and I will go ahead and adjust this loss.' It is proven also that the defendant was not an adjuster for the Insurance Company, nor sent by it to adjust the loss.

The next morning, April 1, 1916, the defendant again called upon the prosecutor. The local agent of the Insurance Company

here are that the prosecutor sustained loss by fire, and had a claim for such loss againt an insurance company. He does not appear to have wanted nor needed the service of any one to adjust his loss. The defendant appears to have been of this opinion, else he would have offered his services and bargained for their payment without pretending to be what he was not. He evidently believed that he could not obtain the employment and thus be benefited by the compensation he would receive if he told the prosecutor what his business was, so he falsely represented that he was the representative of the insurance company, thus obtaining the prosecutor's signature to a contract for the payment of his services. It was certainly the intention of the defendant by his false representation to deceive the prosecutor into obligating himself to pay for

services that he did not want or need. He Justice Gibson, that we have been able to would, therefore, be cheating and defraud-find.

fact.

ing the prosecutor of whatever amount was It is true in this case that the prosecutor necessary to pay for such services. It was might have discovered that the representaclearly the intention of the defendant that tions made by the defendant were false if the prosecutor should do this or he would he had read the paper which he signed, as not have tied up the amount due to the that showed that he was not acting as repreprosecutor from the insurance companies by sentative of the Insurance Company but as giving notice of and a copy of the assign a representative of another company who ment to it. We are of the opinion from made it a business of adjusting fire losses. the circumstances that the defendant intend- We do not think it was necessary for him ed to cheat and defraud the prosecutor, and to have read the paper which he signed. that the jury were fully justified in find- The excitement in the place where the fire ing by their verdict that such was the had been was such, and the understanding of the average person as to matters relating The second reason urged why a new trial to fire insurance is such, that when a man should be granted is that the false repre represented himself to be the representative sentations were not such as would deceive of the company, a prudent man would have an ordinarily prudent man, and that there- accepted that and acted just as the prosefore there should have been no conviction. cutor acted in this case, viz: signed the Sec. 111 of the Act of 31 March, 1860, P. paper he was told to sign to enable the deL. 410, provides that "If any person shall fendant to proceed with his work of adby any pretense obtain the signature of any justing the loss. Under the circumstances person to any written instrument with in- in this case it was, in our opinion, a question. tent to cheat and defraud any person of the for the jury whether the false pretenses same, every such offender shall be guilty of were sufficient to deceive even an ordinarily a misdemeanor, &c." It will be observed prudent man; 2 Wharton on Crim. Law, that the act of assembly does not state that Sec. 1455, page 1654, and we submitted it the pretense must be such as would deceive to them. We think the jury were justified an ordinarily prudent man. It is sufficient in finding a verdict of guilty by the law and if a person by a false pretense does obtain the testimony. the signature with the intention to cheat and defraud. In Com. v. Burdick, 2 Pa. 164, Chief Justice Gibson takes this view of the Act of 1842 which is practically the same in this particular as the Act under which this indictment is drawn. He says, "But I think it, at least, doubtful whether a naked lie, by which credit has been gained, would not, in every case, be deemed within our statute, which declares it a cheat to obtain money or goods by any false pre ense whatsoever.'' This case is followed by the Supreme Court in Com. v. Henry, 22 Pa. 253, where the false pretense was that the defendant had a warrant for the arrest of the prosecutor's daughter. It was decided that this was a sufficient pretense under the Act, even though the prosecutor might have asked to see the warrant and thus have discovered that there was none. In Com. v. Moore, 99 Pa. 570, it is decided that the rule as laid down by Justice Gibson is too broad in that it could cover a false statement of something that was to be performed in the future. False pretense must be of an exiating fact. This is the only modification, by an Appellate Court, of the rule as stated by

We have read the case of Com. v. Getler," 19 C. C. 248, cited by the defendant, and while it does not agree with our conclusions we are not convinced that they are erroneous. We, therefore, discharge the rule for a new

trial.

Haas' Case.

Sheriff-Fees and Emoluments-Victualling
Prisoners-Petitions.

Duplicates of a petition, which had been septached to and filed with the original. Only one arately circulated to secure signatures, were atof these, having seven signatures thereto, was sworn to On a motion to dismiss the petition because it was not sworn to, HELD, that the motion must be dismissed.

tition, or regarded separately, is entirely immaWhether all the papers are treated as one peterial, because any one of them duly sworn to, would be sufficient to sustain this proceeding, so far as the provisions of the Act of August 9, 1915, P. L. 72, are concerned.

certain prisoners, without giving names of parties Allegations in the petition of ill treatment of or nature of injuries, and not signed or sworn to

by any of the sufferers, are not sufficient grounds extent of the physical ill treatment suffered upon which to base an unusual proceeding.

The court has no jurisdiction to inquire into or change the fees or emoluments of the sheriff fixed by Act of Assembly.

But the charges made against the sheriff in connection with victualling the prisoners are such as can be heard and determined by no one else except the court, because the amount of the sheriff's allowance is fixed by the court itself.

Petition of taxpayers and citizens for an inquiry into fees and emoluments of the sheriff's office.

Motion to dismiss the petition.
Geo. S. Love for motion.
A. C. Wiest, contra.

April 18th, 1918. WANNER and Ross, JJ.-The petition filed in this case charges the Sheriff of York County with ill treat ment of prisoners in the county jail, with furnishing them unfit and insufficient food, and with procuring an excessive allowance in payment of the same, through fraud and misrepresentation.

The respondent denies said charges, and moves the Court to dismiss the proceedings because the petition is not sworn to as required by the Act of August 9th, 1915, P. L. 72, which provides: "That a judge of any court of record shall not, in any matter, case, hearing, or proceeding before him, receive or consider any petition, or paper in the nature of a petition, alleging any matter of fact, unless the petition or paper is duly verified as to such allegations."

It appears that the duplicates of the original petition containing precisely the same contents, which had been separately circu lated for signatures, were all attached to and filed with the original in court. One of

these having seven signatures thereto, was duly sworn to before an alderman. Whether we treat all of them as one petition, therefore, or regard them as separate petitions, is entirely immaterial, because any one of them duly sworn to, would be sufficient to sustain this proceeding, so far as the provisions of the Act of 1915 are concerned.

by them. The affidavit to the petition is not made by a signer thereof, nor is it averred that the affiant has personal knowledge of the material facts set forth therein. There is no allegation that the injured parties have sought or have been refused redress in the ordinary legal channel. There does not, therefore, seem to be sufficient ground laid in this petition upon which to base an unusual proceeding like

this in court.

The District Attorney is the proper officer before whom to lay the facts, when no private prosecutor desires to assume the responsibility of bringing an information. If the facts are sufficient to warrant the prosecution, it will then be ordered and conducted by the District Attorney, officially. There does not, therefore, seem to be any necessity of the court intervening in these cases until ordinary methods of procedure fail.

But the charges made against the sheriff in connection with victualling the prisoners are such as can be heard and determined

by no one else except the court, because the amount of the sheriff's allowance is fixed by the court itself.

All the other fees and emoluments of the sheriff's office are fixed by Act of Assembly and the court has no jurisdiction to inquire into or to change them. The allegations of this petition as to the amount of the sheriff's official emoluments, and accumulations of money, and other similar financial matters, outside of the item of victualling the prisontinent or material to this inquiry. They ers are, therefore, matters which are not pershould, therefore, be omitted from such testimony as may be hereafter taken in these proceedings.

DECREE.

The respondent's motion to dismiss this petition is refused. The testimony to be taken in this proceeding shall be limited to the petitioner's charges that the food furnished to prisoners by the sheriff has been bad The complaint of violence and ill treat- in quality and insufficient in quantity, and ment of certain prisoners is not signed or that an excessive allowance for the same sworn to by any one who is alleged to have was procured by him by fraud and false suffered at the hands of the sheriff, or de- representation. The testimony to be taken sires to institute a prosecution on that ac- in the form of depositions under the rules of count. Neither does it give the names of this court and submitted to the court at any of the injured parties or the nature or the hearing of the case.

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Road in Hellam Township. Road Law-Notice to Supervisors-Borough Plan.

An exception was filed to the report of road viewers because "The supervisors of the township not given notice as provided by law." HELD, that the exception is fatal.

were

A further exception was filed on the ground

"that the road was not laid out with reference to
the plot of the Borough, or to the general arrange-
ments, convenience or advantage of the Borough."
HELD, to be fatal to the preceedings.

No. 2, January Sessions, 1917.
Exceptions to report of Viewers.
Jno. A. Hoober for exceptions.
C. W. A. Rochow, contra.

March 10th, 1918. Ross, J.-Seven exceptions were filed to the report of the viewers. The fifth and sixth exceptions are fatal to the report. They are as follows:

"5. The survivors of the Township were not given notice as provided by law."

"6 The road was not laid out with reference to the plot of Hallam borough, or to the general arrangements, convenience or advantage of the Borough.

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Act, as to such notice, shall be sufficient grounds for an application to set aside whatever proceedings may have been taken," &c., &c.

That a failure on the part of the petitioners to comply with the requirement of that act is fatal, has been settled by this Court, in the case of Road in Paradise Township, 19 York Legal Record, 121, and by other courts:

See Road in Clarion Borough and Clarion Township, 17 Dist. Dist. Rep. 431. Rep. 853; Franklin Township Road, 22

In regard to the 6th exception, the Act of May 14th, 1915, entitled "An Act providing a system of government for boroughs, and revising, amending and consolidating the law relating to Boroughs," Chapter VI, Artitle VI, Section 2, P. L. 347, provides, that "Every jury appointed to view, lay out any road, or part of a road in shall have

* * *

reference to the town plot and to the general any borough, arrangement, convenience, and advantage of fully in their report." This requirement the borough, and shall set forth the facts has been totally neglected in the report.

report gives no adequate description of the Even the plot or draft attached to the borough lines.

Those two unexplained and undenied deAn inspection of the petition for the ap- linquencies in the report and the proceedings pointment of viewers shows that it was pre-of the viewers, render the proceedings so sented to the Court and viewers were defective that we must sustain the fifth and appointed, March 26th, 1917. sixth exceptions filed to the report.

The report shows that the viewers met, were sworn and proceeded to the discharge of their duties on the 6th day of April, 1917, at the time and place which had been designated in notices which were served upon the road Supervisors of Hellam Township on the 28th day of March, 1917. Two of the Supervisors of Hellam Township have joined in the exceptions, and say that no notice was given by the parties who made application to the Court for the appointment of viewers to lay out the new road as is required by the Act of March 29, 1905, P. L. 70, Sec. 1.

The Act referred to requires not only that such a notice must be given, but that a copy of such written notice, properly attested, shall be filed among the records of the Court having cognizance of the matter, "and a failure to comply with the provisions of this

The exception alleged that the supervisors of the township were not notified of the application for the appointment of viewers.

in this case are set aside, at the costs of the The report and proceedings of the viewers petitioners.

Automobiles-Collision at Street Crossing-Right of Way-Negligence.-It has been laid down as a general rule that one reaching the intersection of a street first has the right of way, and in determining whether he can safely cross he need not anticipate a sudden violation of the law of the road by an approaching driver. This is in line with the doctrine repeatedly laid down by the Supreme Court, that a man is not required to guard against the unexpected negligence of another, but is at liberty to presume that the other party will act in conformity with the law and his duty,-especially where that party fails to give any signal capable of being understood as a warning that he intends to arrogate to himself the right of way.-Morgan v. Duchynski, (Berks C. P.) 10 Berks County Law Journal 123.

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