In the Court of Oyer and Terminer of Allegheny County.

COMMONWEALTH v. KUHN.

(Vol. I., p. 5, 1853.)

1. Involuntary manslaughter is where a man, doing an unlawful act, not amounting to a felony, by accident kills another; or where one kills another while doing a lawful act in an unlawful manner.

2. In a clear case, character is of no account; in a doubtful one, character is of much moment and importance to the accused.

3. The defendant, an engineer, was indicted for involuntary manslaughter, in causing the death of Holton, by alleged carelessness in running his engine down Liberty Street, Pittsburgh: Held, that if his conduct was marked by due care and caution under the circumstances, he was not guilty, and what was due care and caution was left as a question of fact for the jury.

CHARGE by MCCLURE, P. J. :—

GENTLEMEN :-Michael Kuhn, an engineer in the employment of the Pennsylvania Railroad Company, is indicted for involuntary manslaughter, in causing the death of Ezekiel Holton, on the first day of April, 1853, by alleged carelessness in running the locomotive "Altoona," down Liberty Street, in the City of Pittsburgh.

This is a case of unusual interest, and of great public concernment, and it well merits the most patient and careful investigation by the Court and jury.

It is due to the Commonwealth that the conduct of defendant then and there, should be scanned and scrutinized—it is also due to himself.

Involuntary manslaughter is where a man doing an unlawful act, not amounting to felony, by accident kills another; or where one does a lawful act in an unlawful manner.

The act of coming down Liberty Street with the locomotive and cars, was a lawful act. Was it done in an unlawful manner? That is, was it done with due care and caution, or was it not? Was the defendant careful or careless? If his conduct was marked by due care and caution, under the circumstances, he is not guilty; if not, then he is guilty.

What is carelessness, and what is due care, are matters of fact

that can be determined by a jury in each particular case as it arises; and the degree of care demanded, depends on times, places, and circumstances, which are the elements of your verdict, and of all which you will judge.

Did the speed exceed four miles an hour? If it did, this was itself want of caution. If it did not, then were there other acts omitted or committed, proving want of due care, considering time, place, and circumstances?

As regards the time: it was before daybreak, it was night, dark, foggy; the gas lamps in the streets were not lighted; it had been raining; the rails were wet; the cars were descending a plane slightly inclined.

The engine was pushing, not pulling; of course the engineer, the defendant, was, amongst those responsible, farthest from the spot where the unfortunate deceased was standing. As regards caution under the circumstances, it is in evidence that men at a distance heard two or three loud cries of warning to the deceased, a square off; lamps were seen glancing in the dark down from the cars, in the hands of those who were on the lookout; so soon

as the cry of warning was given, on the instant the steam was cut off and the engine reversed. The deceased was some thirty yards ahead when discovered standing on the track; he stood still after warning given, when Boyer jumped off the car, ran in front of it, raised the deceased, struggled with him to force him off the track; deceased resisted his attempts, and exerted his physical force to remain on the track; during this struggle the cars came up, struck Boyer, knocking him off to a distance, passed over the limbs of the deceased, throwing him down and killing him instantly; then stopped, one pair of wheels having passed over hiin.

where he went of his

Of the antecedents of the unfortunate man, the Court and jury know but little. The night was spent in the watch-house, own accord for lodging, and left a short time before he was run over to seek his boarding house, as he said, against the solicitations of Mr. Cook, captain of the watch, who desired him to remain until morning.

Although those intrusted with the management of a locomotive through the streets of a city, should be men of the best

established character for skill, prudence, care and caution, considering the peril and responsibility annexed to their position, yet cases may occur where care will fail to avoid or avert an accident. A car can travel on a track, and nowhere else; and it cannot turn out of the way, it can only stop. A man or vehicle can turn out, and where this occurred, can travel on either side.

A man by standing on the railroad track puts himself in danger, or thrusts himself into the jaws of death, as the case may be; and a man may lose his life, and the fault may be all his own.

Whether such was or was not the case, your verdict will decide.

In a clear case, character is of no account; in a doubtful one, character is of much moment and importance to the accused. Testimony has been given as regards defendant's character for caution. If this is to your minds a clear case of want of care, then his previous character for caution avails him nothing; but, if it is not a clear case, then his former character for caution avails him much.

This rule of law, as all rules of law are, or ought to be, is based

on common sense.

If you were told some one you knew was honest had been guilty of larceny, you would be slow to believe; your belief would yield to proof, but with reluctance.

But if you were told a man you knew to be a thief was guilty of a like offence, your mind would yield a ready acquiescence. Because the probabilities all are that the first would not steal, and that the second would.

If the tree is known by its fruit, it is equally true that the fruit is known by the tree.

Where the scales of evidence hang even, the weight of probabilities will turn the scale.

Thus it often happens in criminal prosecutions, that a man's character is the pivot on which his fate will turn.

Each man's actions are the natural fruits and offspring of his own individual character. Men do not gather grapes of thorns, or figs of thistles; but men do gather grapes of vines, and figs of fig-trees.

From a careless man, we presume even in his conduct that we cannot see. In a careful man, we presume caution, until the contrary is proved.

If the case is at all a doubtful one in the minds of the jury, then the character of defendant for caution is directly in point, and is of immense importance to him at this moment.

It appears defendant was in the same employment on a railroad in the streets of Baltimore; that he acquitted himself to the perfect satisfaction of his employers there; that inquiry was made by the Pennsylvania Railroad Company for a skilful and prudent man, for the perilous place of engineer in the streets of Pittsburgh, and defendant was selected for this purpose; that those in whose employment he was were reluctant he should leave; that Mr. Cheny, master machinist, had defendant under his own immediate eye and supervision for two weeks here, before he was intrusted with the responsible position he now occupies. The defendant's character for caution has been established by proof.

1. Did the speed exceed four miles an hour when deceased was run over? If it did, this alone was want of caution.

2. If the speed then and there did not exceed four miles an hour, there was due and proper caution used under all the circumstances of the case.

If he be, in your estimation clearly innocent or clearly guilty, his former character is of no account in this case.

If the case be not a clear one, then you will give his proof of past character for caution, such weight as in your estimation it may merit.

I have adverted necessarily to some of the testimony. You are the judges of the testimony, and you will review the whole of it before you return your verdict, and find your verdict accordingly.

For a position so full of responsibility and risk to the citizen, as that held by the defendant, none but the most vigilant, skilful, careful and cautious engineer should be selected. The care demanded in a track passing through a thinly populated district, would be no criterion whatever by which to measure the unusual care and caution demanded in the streets of a populous city.

In the Court of Quarter Sessions of Allegheny County.

IN RE JOHN WOODS.

(Vol. I., p. 6, 1853.)

An applicant who is in prison for non-payment of a fine, is not entitled to a discharge until he shall have remained there for three months.

OPINION by M'CLURE, P. J. :

John Woods preferred a bill of indictment against the School Directors of Ross Township, for forcible entry and detainer. The verdict-not guilty, and that John Woods, the prosecutor, pay the costs.

He is in prison under sentence of the Court to pay the costs, having failed to pay them. The application now made is to discharge him from prison, on filing an insolvent bond, before the expiration of three months.

The counsel for the applicant relies on the 47th section of the Act of 16th June, 1836, and on that alone-refers to no authority and gives no reasons, but this section itself. It is in the following words:

"The Court of Common Pleas of any county, in which any person may be confined by sentence or order of any Court of this Commonwealth, until he restore any stolen goods or chattels, or pay the full value thereof, or in which any person may be confined for non-payment of any fine, or of the costs of prosecution, or upon conviction of fornication and bastardy, and for no other cause, shall have power to discharge such person from such confinement, on his making application and conforming to the provisions hereinbefore directed in the case of insolvent debtors. Provided, that where such persons shall have been sentenced to the payment of a fine, or after a conviction of fornication and bastardy, he shall not be entitled to make such application, until he shall have been in actual confinement, in pursuance of such sentence, for a period not less than three months."

It is alleged by petitioner's counsel, or at least the thing claimed is, that petitioner can file his petition without delay. If this be so, then a sentence for costs amounts to nothing, if the

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