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half past three o'clock, to take action relative to the death of William Hay, Esq.

Robert J. FISHER.”
YORK, May 14, 1883.

All of the members of the bar now in York—quite a number being at the Supreme

Court-able to attend, were present at the meeting

At the hour named in the call, on motion of Col. Maish, duly seconded, Hon. Robert J. Fisher was elected President, and on motion of James W. Latimer, Esq. George W. Heiges was elected Secretary of the meeting

The President, on stating the object of the meeting feelingly spoke of the great loss the bar has sustained by the death of Mr. Hay. On motion of James W. Latimer, Esq., a committee of five was appointed to prepare a minute expressive of the sense of the meeting on the event that had brought the court and bar together. Before resuming his seat, and in support of the motion Mr. Latimer paid a warm and just tribute to the abilities and virtues of the deceased. The committee on resolutions appointed in accordance with the above motion was composed of the following gentlemen : James W. Latimer, John Blackford, H. L. Fisher, Levi Maish, Geo. W. McElroy, Esqs.

In due time the committee reported the following resolutions which were adopted :

The Judges of the courts and members of the bar of York county, in bar meeting assembled, have heard with deep and unfeigned sorrow of the death of William Hay, Esq., which occurred yesterday morning, May 13th.

His cultivated mind, ripe scholarship, large professional attainments and unswerving integrity secured for him our respect, and his amiable disposition and unvarying kindness and courtesy commanded our warmest attachment.

Cut off by the hand of death in the meridian of life, in possession of his maturest powers of intellect and professional resource, and at a period when those

powers and resources were called into fullest exercise, we deplore in his death the loss of an able and useful co-laborer, and a friend.

To his bereaved widow and relatives we desire to tender our profound sympathy in their grevious affliction, and invoke for them the sustaining care and consolation of the Heavenly Father “who doth not willingly afflict his children."

Be it resolved that we will attend Mr. Hay's funeral in a body and that S. H. Forry, G. W. Heiges, John W. Bittinger and Horace Keesey be appointed pallbearers on the part on the bar.

Be it further resolved that the foregoing minute be presented to the court at its next meeting and that a copy

of the same be sent by the secretary to Mrs. Hay; and also that the proceedings of this meeting be published in the newspapers.


LEVI MAISH. Able and touching addresses upon the life, character and noble example of William Hay, their deceased brother of the ancient and honorable profession of the law, were then delivered by his Honor Judge Wickes, George W. McElroy, H. L. Fisher and John W. Bittinger, Esqrs.

On motion the meeting then adjourned to assemble at the late residence of the deceased, for the purpose of attending the funeral.

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brother from a life of usefulness to a life of peace and rest.

Resolved, That we tender our Christian love and sympathy to the bereaved family and commend them to look to that source of comfort which the deceased sought and exemplified in his life.

Resolved, That a copy of the above preamble and resolutions be presented by the committee to the family of the deceased, and also be recorded on the minutes of the association and published in the daily papers.


YORK, PA., May 14, 1883.

fort the stricken ones left behind; may He ever fill our hearts with kind remembrance of the fatherless and widow in their affliction," and keep us all, like those who have gone before, “unspotted from the world."

A. B. F.
YORK, Tuesday Evening, May 15.

Tuesday afternoon the last sad rites were performed over the earthly remains of the late William Hay. Long before the hour fixed for the funeral bereaved relatives and friends began to assemble, and by the time services commenced the spacious residence of the deceased was filled. A large number of persons from a distance were in attendance. The services were conducted by Rev. Arthur Powell, rector of St. John's P. E. Church, assisted by the venerable Rev Doctor A. H. Lochman and Rev. L. A. Gotwald, D. D.

The flower offerings were rich and elegant, consisting of a harp, lyre, crosses, star, sickle, mound and pillows, and filled the air with their fragrance.

The funeral was one of the largest that has taken place in York for years. The following gentlemen acted as pall bearers. The Hons. P.L. Wickes and John Gibson, Judges of the Court and Messrs. W. Latimer Small, G. E. Hersh, Horace Bonham and George H. Sprigg.

Abstract of Recent Decisions.

For the DAILY.

We have just laid to his last rest another of York's noblest citizens. Easter Sunday was saddened by the death of our dear Mr. Small; and on Whit-Sunday our beloved and gifted friend, William Hay, was cut down in the fullness of his beautiful manhood.

You have well spoken of him as the able lawyer and good citizen. Others have followed with memorials of respect and condolence. It is fitting that I speak of him as the man, the friend and companion,-for a thousand memories of the past crowd around me, all so filled with recollection of him that it is in vain to try to resume my work. I have known William Hay intimately for over twenty-five years, and during all that time never heard him speak an unkind word. He was altogether one of the purest and loveliest characters that ever lived. I have never known him to use an expression his loved mother would have blushed to hear; and his mind was bright as his character.

Three dear friends—Henry Schmidt, D. E. Small and William Hay—three of the most beautiful characters that ever enriched and ennobled any community, have passed from among us, and the sense of loss and loneliness is almost overwhelming. They have forged strong links in the chain which should bind us all to the Better Land. May the Kind Father, whom they all so loved and trusted, com

(Cases not otherwise designated are Supreme Court Cases.)

Criminal law-Delay in prosecuting: If a prosecution is not withdrawn, it is the duty of the magistrate to send up the recognizance on or before the next meeting of the grand jury. If such recognizance is not sent up for several terms after it is entered into, and no explanation is made for the delay, the prosecution on that information is at an end, and an indictment not based on a fresh information and hearing will be quashed, unless it appears that the course of procedure taken was required by some pressing necessity. Commonwealth v. Kohle, (Luzurne Q. S.) 12 Luzurne Legal Register 22.

Where the order to the viewers does not conform to

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great doubt, the order issued from the

clerk's office to the viewers must be conQ. S. of

Lancaster County.

sidered as fatal to this proceeding. The Adamstown Borough Road.

order of the court is the authority for the Roads—-Orders to Viewers-- When de- action of the viewers, and in this case it fective.

fails to order them to do what the petition

ers prays for; it is in law mandatory, but the petition praying to view, change and straighten a it in no part of it orders them to view, road, it is a fatal defect and an exception on that ground will be sustained.

change and straightensaid road. The Where an old road is asked to be changed and straightened the petition should also pray that the parts of the order directs the viewers “to view the old road not required be vacated, in order that the statute forbidding the width of a road to be more than fifty feet ground proposed for the said road, and if be complied with.

they view the same, and a majority of the Exceptions to report of viewers.

viewers agree that there is occasion for April 14, 1883. PATTERSON, A. L.J.

such road, they shall proceed to lay out The exceptions to this report of viewers

the same, &c.” The report of viewers is, are thirteen in number. We will not re

of course, in conformity with the order, cite them. Some of them, in the opinion

it mentions nothing whatever about change of the Court are well taken and must be

and straightening; hence both the order sustained.

and the report is foreign to the petition of The 12th exception cannot besustained. he inhabitants. But there is a defect exThe Court of Quarter Sessions has juris- isting of a still more damaging character diction in this case. The road in question to these proceedings. The report and the is an old public road, laid out many years depositions, taken and read at the argusince and long before the borough of ment, show that the road laid out is partly “Adamstown" was incorporated, and the laid out on the bed of the old road the Supreme Court, have held, and as late as

whole length of the new road reported; 1870, in 16 Smith, p. 61, in the Summer

further, that the new road is run and reset and Stoystown road, that “the borough commended to be the width of forty feet law as to streets does not apply to public and the old road was sixty-six feet, as reroads through a borough of which only presented by the original town draft.part is within the borough. Nor is the That would, without the vacation of part report invalid because of the viewers not

of the old road, leave the new road more stating who was to pay the damages as- than the width of fifty feet, which is forsessed to 'Squire Billingfelt. (See 6 Nor- bidden by the statute, and it has been ris 336, Road in O'Hara Twp.) Nor be- ruled by the Supreme Court, in the Bridgecause of carrying the road partly over the

water Road, 4 W. & S 39, that “a public bed of a road already laid out. (See 2 road cannot be located alongside of and Rawle 421, West Chester Road, and 9 adjoining another public road so as to inHarris 217, Hess' Mill Road.)

crease the width of both exceeding fifty The petition for this road is peculiar.- feet." That ruling would strongly imply After stating that the petitioners “labor that where an old road is asked to be under great inconvenience for want of a changed and straightened, the petition change in that part of the public road / should also ask the vacation of the parts leading from Lancaster to Reading,” it of the old road not required. asks that proper persons be appointed to The proceedings in this case are, "view. change and straighten said road ;" opinion, defective ab initio, and must, for omitting the petition to vacate any part or that reason, be set aside. The ist, 2nd, portion of the same if found necessary, &c. | 4th, 5th and 11th exceptions are sustained

If, however, such a petition is in itself and the report is now set aside and proadmissible in this case, of which we have ceedings quashed.

in our


No. 12

0. T. of

Adams Co.

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YORK LEGAL RECORD. fact of Mr. Fisher's hoarseness, which

would have made it uncomfortable for THURSDAY, MAY 24. 1883.

him to proceed with the argument at that

time. He suggesting the last of this week, OYER AND TERMINER.

at the time for further argument, this day, Friday, the nth day of May, at eleven

A. M., was fixed for the purpose. A letter Com. vs. Coyle.

was written by Mr. Fisher to me, dated Criminal Law-New Trial-Insanity.

York, May 8, in which he refers to the

sickness of his colleague, Mr. Chapman; A. was convicted of murder in one county.

the cases of Mr. Chapman for the Supreme reversed judgment, and granted a venire. The venue was then changed to another county. On the trial preme Court; a Court of Conimon Pleas there the prisoner asked leave to withdraw his plea of

on the 21st, at which both of them had "Not Guilty," and plead to the jurisdiction of the Court. This the Court refused. Held, not to be sufficient important cases, concluding “all things ground for a new trial.

considered, it seems impossible for us to, Witness testified that he had known John Coyle, Jr., 17 or 18 years; that he had plowed for John Coyle, Sr.: plow be present and argue the motion before ed in the Spring; got groiind ready for potatoes and tobacco; that he saw John Coyle, Jr., on these different occa

say the 30th inst. I exceedingly regret sions; saw him always about when the witness was there this, but see no help for it.” "Sometimes he cut wood in the wood shed; one time white-washing, making fence; he and the old man follow

After inquiring of the District Attored me when I plowed, and gathered up stones; sometimes ferried river men, sumetimes country people, across the

ney his disposition as to a further continuriver, he spoke to me, of course; someiimės he'd ask me ance, I immediately replied to Mr. Fisher if I had my corn planted; if I had all my grain in, (I often went back and forward,) asked me it I was done husking

that all other professional engagements of corn. * * * I have seen him riding horseback alone up himself and Mr. Chapman I must deem the road sometimes. This Spring 3 years Johnny came and said the old man sent up to see if you would plow for subordinate to what remains to be done in us.'' Held, to show sufficient acquaintance with ihe prisoner to be permitted to express his opinion as to his

this case, and informing him that I thought soundness of mind.

that he, Mr. Fisher, should be present toIt was not error to permit the District Attorney to ask the medical witnesses as to each separate item or alleged day, and that I could not agree to delay. evidence of insanity and then group the whole into one

I received a second letter from Mr. question.

Fisher, dated York, May 9th, in which he It was not error to permit the District Attorney in his argument to the jury, to read portions of the Pentateuch

states : “If the commonwealth's officer relating to murder.

will persist in his refusal, we shall of Motion for a new trial.

course be compelled to let the matter go

by default and take our writ of error.' The charge of the Court below (WICKES, A LJ.) and his opinion on

I considered it the duty of Mr. Fisher to the motion for a new trial are given in if he had any good cause to show for a

be in court to-day and argue his motion, Com. v. Coyle, 2 YORK LEGAL RECORD

new trial, and the sickness of Mr. Chap199.

no sufficient reason for Mr. The opinion of the Supreme Court, re- Fisher's failing to appear. versing the judgment, will be found in Coyle v. Commonwealth, 3 YORK LEGAL considered by the Court:

The reasons filed have been carefully RECORD 133.

A motion was then made for a change of venue, which was granted learned Court erred in refusing to allow

I. It is respectfully submitted that the by WICKES, P. J. (see Com. v. Coyle, 3 YORK LEGAL RECORD 171.

the prisoner to withdraw the plea of Not The case was tried in Adams County, jurisdiction of the Court, before being

Guilty, so as to enable him to plead to the and resulted in a verdict of guilty. This called upon to plead to the indictment. motion was then made for a new trial.

The first is not sufficient in law. The H. L. Fisher and W. C. Chapman, prisoner had been arranged in York; the for motion.

plea of not guilty was there entered, and S. McSwope and E. D. Ziegler, for there he was tried. The record was acfor Commonwealth.

cordingly made up and sent with the May 11, 1883. McCLEAN, P. J. Upon prisoner to this county upon a change of the filing of this motion and reasons

The action of the Court upon the therefor on Monday, May 7, 1883, by plea to the jurisdiction was simply in efMr. Fisher, counsel for the prisoner, a

fect to overrule it. continuance of the argument was asked II. The jurors impaneled and sworn in for and granted, the Court being influenced the case, and having the prisoner in largely in granting the continuance by the charge were allowed to separate repeated




ly between the time they were so sworn parently immaterial parts, the entire chain and impaneled and the rendition of the of strong, affirmative evidence given of verdict.

the prisoners unsoundness of mind, and III. Oliver F. Neely, who was sworn asking the medical witnesses for the Comand impaneled as one of the said jurors, monwealth (in rebuttal,) on each isolated was not a competent juror, his name hav- part of the prisoner's defence, the quesing been unlawfully in the jury wheel at tion, “would that show insanity?" instead the time he was drawn; all of which was of fairly embracing all the material facts, unknown to the prisoner or his counsel, or a group of them, in one question. or either of them, until after the rendition I can see no error in the District Attorof the verdict.

ney asking the medical witnesses as to The second and third reasons were of the separate cause of insanity, as alleged an inquisitive character, containing no

in behalf of the prisoner, and then subsespecifications in support of them, nor were quently grouping them in one questin, they accompanied with any offer of evi- as he did. dence to sustain them.

Indeed, Mr. Fisher frankly stated to The records show that the name of the Court that his principal reasons were Oliver F. Neely was not in the jury wheel the last four, namely: the VI, VII, VIII

and IX. for the year 1882, and that had not served previously in 1883 as a juror.

VI. The verdict is against the law and IV. It is respectfully submitted that and evidence. the learned Court erred in overruling the

The verdict was not against the law and prisoner's objection to the opinions of the evidence. Michael Beckel, and other witnesses VII. It is against the weight of the against the prisoner, on the question of evidence :—the affirmative evidence adhis soundness or unsoundness of mind. duced on behalf of the prisoner's insanity

An examination of the testimony of alone “fairly preponderated" over the Michael Beckel shows that he had known mere negative evidence by which it was John Coyle, Jr., 17 or 18 years; that he attempted to rebut it, and taken in conhad plowed for John Coyle, Sr.; plowed nection with that of several witnesses in the Spring; got ground ready for pota- called by the Commonwealth, to wit: toes and tobacco; that he saw John Coyle, Mary Ann Coyle, Dr. J. O. C. O'Neal, Jr., on these different occasions; saw him and others, it proved the prisoner's insanalways about when the witness was there ity at the time of the homicide beyond "Sometimes he cut wood in the wood reasonable doubt. shed ; one time white-washing, making

Nor was the verdict against the weight fence: he sometimes and the old man of the evidence. The evidence of the followed me when I plowed, and gather- prisoner's sanity was overbearing. ed up stones ; sonetimes ferried river

VIII. Mr. S. McSwope, District Atmen, sometimes country people, across torney of Adams county, during the sumthe river ; he spoke to me, of course ; ming up to the jury of the evidence in the sometimes he'd ask me if I had my corn cause, persisted, in the face of objections planted; if I had all my grain in, (I often made by the prisoner, by his counsel, in went back and forward,) asked me if I reading to the jury as "good law"' in the was done husking corn.

* * * I have case lengthy portions of the Scriptures seen him riding horseback alone up the from the xx and xxi chapters of Exodus, road sometimes. This Spring 3 years &c., such as : “He that smiteth a man so Johnny came and said the old man sent that he die shall be surely put to death ;" up to see if you would plow for us.” The “Eye for eye, tooth for tooth, hand for witness, although an illiterate man, testi- hand, foot for foot, burning for burning, fies to the actions and words of John wound for wound, stripe for stripe.”Coyle Jr., which indicate soundness, and “He that sheddeth man's blood, by man having testified to facts within his knowl- shall his blood be shed,” and much more edge, during a long acquaintance and of the same sort. whilst living near the party, he could be Contrary to the better practice, the permitted to express the opinion which prisoner's counsel were allowed the largest he did, that the party was of sound mind. license in reading scientific and legal

V. Also, in allowing the District Attor- books to the jury as part of their arguney to separate into many small, and ap- i ment, and there can certainly be no valid

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