specific acts of brutality committed by the deceased and known to the prisoner, for the same reason that evidence of the general reputation of the deceased would have been admissible, viz., for the purpose of throwing light on the mental operations of the prisoner at the time of the assault. Wharton on Homicide, ? 606. The new trial should have been granted, as the jury had been allowed to separate, and five of their number had listened to a sermon, the tendency of which was to exact from juries a greater degree of severity in capital cases. Wharton's Criminal Practice and Pleading, ? 821. The refusal of the Court below to grant a new trial is matter of review :— (1) Because the facts are undisputed, and the error assigned is purely one of law. Hilliard on New Trials, 28. Whelchell v. The State, 23 Indiana, 89. Jack v. The State, 26 Texas, I. (2) Because the questions raised are not assignable as error. They were not so at common law, and the only exceptions provided for by the Act of May 19, 1874, are exceptions taken on the trial. March 3, 1884. THE COURT. The defendant pleaded in abatement that he was baptized by the name of Sabato D'Allessandro, and by that name always since has been called or known. It was unnecessary to make the averment of his baptism but, having made it, the burden was on him to sustain it by proper evidence. He was permitted to give evidence that he had borne and used the name as if he had not alleged that it was his baptismal name. The jury were instructed that it was incumbent upon the Commonwealth to satisfy them beyond a reasonable doubt that the real name of the defendant is that stated in the indictment; otherwise to render a verdict in his favor. The ques (2) Because of the Act of May 19, 1874 (P. tion was submitted, whether in this country the L. 219), which provides that "On the trial of all cases of felonious homicide, and in all such other criminal cases as are exclusively triable and punishable in the Courts of Oyer and Terminer and General Jail Delivery, exceptions to any decision of the Court may be made by the defendant, and a bill thereof shall be sealed in the same manner as is provided and practised in civil cases; and the accused, after conviction and sentence, may remove the indictment, record, and all proceedings to the Supreme Court." H. J. Steele and R. E. James, for the Commonwealth. The rule as to the seclusion of jury applies only to the trial of the general issue. The prisoner was not in jeopardy when the drawing de novo was directed. At that time eight jurors only had been sworn, and it requires twelve to constitute a jury. Jeopardy does not begin until a jury has been charged with the prisoner. Specific acts of brutality and violence are not admissible, such evidence would lead to collateral inquiries into which the Court cannot enter. Commonwealth v. Richmond, 6 WEEKLY NOTES, 431. When illegal homicide has been established, the burden then falls upon the prisoner, and not on the Commonwealth, to show that it was ex'cusable as an act of self-defence. Commonwealth v. Drum, 8 Smith, 9. Murray v. Commonwealth, 29 Smith, 311. Commonwealth v. York, 9 Metcalf, 93. The Court's action in refusing a new trial cannot be reviewed here: (1) Because it appears by the record that the exceptions to such action were not taken until after the writ of error had issued, when, the record having been removed to the Supreme Court, there was nothing on which the Court below could act. defendant had assumed and assented to the name Sabato Alexander, and there was ample testimony in the affirmative. One witness directly asked him if that was his name and he answered that it was. Complaint is made that the Court remarked in the charge, "It appears in evidence that the Italian for the name Alexander is Allessandro or D'Allessandro;" and that there is no such testimony. But although objection was made when the Court asked the interpreter, "What is the Italian for Alexander?" subsequently the interpreter was called and sworn, and without objection to the form of the oath or his testimony, he said that the Italian word D'Allessandro is the same as the English word Alexander. The second and third assignments of error are not sustained—the first was not pressed. A motion was made in arrest of judgment upon the verdict in the issue on the plea in abatement, upon the alleged ground that the jury were permitted to separate during the adjournment of the Court. This does not appear of record the affidavit of Mr. Walter is not a part of the record—and the refusal of the motion is not subject to review. But we remark in passing, that in the trial of that issue neither the life nor liberty of the defendant was in peril, the trial was to determine whether his true name was set forth in the indictment or in his plea, and we think it was entirely discretionary with the Court below whether under the circumstances of the case there was good cause for keeping the jury secluded. After the names of forty-nine jurors had been drawn from the box which had contained sixty, and eight jurors had been separately sworn, it appeared that eleven of the paper pellets had been clandestinely removed; whereupon the Court directed the clerk to prepare eleven pellets in place of those which had been removed, and again put all the pellets in the box; and further ordered that the drawing of the jury be commenced de novo. The defendant complained that the tendency of that order was to put him twice in jeopardy, and that the Court had no power to make it. He was not in jeopardy at the time of making the order. The trial begins when the jury is charged with the defendant, and that is at the moment a full jury is empanelled and sworn; he is not in jeopardy before. Up to that point the Court may postpone the trial as lawfully at one stage of the proceedings as another. A man is not in peril from the verdict of a jury till the full number are qualified to hearken unto the evidence and make deliverance. Eleven jurors or eight can give no verdict. (McFadden v. Com., 23 Pa. St. 12.) The practice as to the time of administering the oath to the jurors is not uniform; in some districts each juror is separately sworn as called and unchallenged, and in others none are sworn until all are selected. In either case the tribunal is unorganized while there are less than twelve, and until it is organized, for good cause, the Court may direct the drawing of the jurors to begin anew. The Commonwealth gave evidence of the defendant's declarations made in the office of Justice Hewn. For the purpose of explaining these the defendant proposed to prove his declarations made more than an hour afterwards and a mile and a half distant from Hown's office. Instead of showing that his offer was part of a continuous conversation begun at the office of Justice Hown, the evidence shows the contrary. Its rejection was clearly right. 66 The nineteenth assignment of error is to the following portion of the charge: Where the defendant sets up the plea of self-defence to an indictment of murder he must satisfy you of the truth of the plea by the preponderance of testimony. If he failed to do so in this case, then he is guilty of murder in the first or of the second degree or of voluntary manslaughter, as you find the facts may warrant." ceased, and the killing was not in self-defence, he was guilty either of murder or voluntary manslaughter. The evidence admits of no other conclusion; or, really, there was no evidence that the killing was involuntary. This, if exceptionable by itself, with the context is free of error. In the instructions every point put by the defendant's counsel was affirmed, and the facts submitted with fairness to him. The jury were told, "If the facts as proven will support any reasonable theory consistent with the defendant's innocence, then the defendant must be acquitted." Also, "If the Commonwealth has satisfied you that the defendant inflicted the wounds on the body of the deceased, With some doubt as to the sufficiency of proof and that he died from said wounds, then your that the deceased had assaulted the defendant, next inquiry will be whether the Commonwealth the Court admitted evidence of the reputation has satisfied you beyond a reasonable doubt that of the deceased for brutality, vindictiveness, and the defendant is guilty of murder, and, if so, of violence. An offer was made to follow this with what degree, or of voluntary manslaughter." evidence that the deceased had committed divers Then, the jury understood from the remark obcrimes, involving a ferocious and cruel disposi-jected to, that if the defendant killed the detion on his part, and that before he was killed the defendant had knowledge of said offences. No precedent has been cited for the proof of such acts by the deceased in his lifetime, nor does there seem to be reason for their investigation where they are not in issue. Conceding that the defendant had proved that he was attacked by the deceased, then it was competent to prove his bloodthirsty character, his bodily strength, how he was armed, the manner of the assault, and all other circumstances tending to show that the attack was felonious, or that it was believed to be felonious by the defendant. But it is settled that specific criminal acts at other times, affecting other people than the slayer, which may have given the deceased his bad character, are incompetent. Were evidence of such acts competent, so would be repelling evidence, and the side issues would become as numerous as the offences charged against the deceased. The offer to prove "a series of five specific acts of violence known to the defendant," meant an investigation of each act as plainly as did the separate offers to prove each. Under the last assignment it was argued that there was not evidence of the existence of the ingredients necessary to constitute murder in the first degree. The evidence is too strong for doubt that the deceased at the moment of the assault was in his own bed, and all the other occupants of the room were in theirs, except the defendant; that none heard the defendant come into the room, and it was dark; that with his own hatchet he inflicted the numerous wounds upon the head and upper part of the body of the deceased; that the defendant was not heard to make outcry and received no injury, unless a slight cut on the hand which healed within a few days; and that the deceased cried, "Stoppa, Jimmie! Stoppa, Jimmie! What is the matter with you?" and he was unarmed. The legitimate inference, we think, is not weakened, but strengthened by other facts in evidence. When a man quietly approaches another's bed in the struck in self-defence was submitted with fair innight and makes a furious assault with a deadly structions, although the evidence thereof was weapon, it is presumed that he intends the natu-slight, if any at all. The learned Judge recogral consequences of his act. If the jury believed nized that, "It is undoubtedly the law of this the testimony they rightly found that the killing was wilful, deliberate, and premeditated. The assignment that the Court erred in refusing to arrest judgment was not pressed, for the obvious reason that no ground for the arrest appears of record. But it was urged that the Court erred in denying the motion for a new trial because the jury were allowed to separate and part of them, attending church, heard a sermon on the text, "Thou shalt not kill." State that on trials for homicide jurors ought not to be permitted to separate while the prisoner is in their charge;" and he believed that this rule had been complied with, at least in its spirit. Upon careful consideration he concluded that the sermon (not a fragment of it) neither had nor tended to have the effect of biasing the minds of the jurors or of disqualifying them for the proper exercise of their functions; and in this view he was likely correct. There is a growing laxity in the observance of the rule which, if unchecked by the Courts of Oyer and Terminer, may induce legislation either abrogating the rule itself, or providing a remedy when it shall not have been enforced. It seems to us that compliance with the rule ought to be so strict that no plausible charge could be made that the jury were not kept free from every improper communication or intrusion. Increasing the number of subjects for review in homicide cases is detrimental to the public, and departure from old and familiar rules strongly tends to promote such increase. There was much appearance of departure in this case from an undoubted rule, and it is not strange that the learned and able counsel for the defendant have sought, for that cause, to obtain another trial. The judgment of the Court of Oyer and Terminer of Northampton County is affirmed, and it is ordered that the record be remitted to said Court that the sentence may be executed. Opinion by TRUNKEY, J. At common law the refusal to grant a motion for a new trial, being a matter of discretion, is no ground for a writ of error. The Act of May 19, 1874, provides that on the trial of all cases exclusively triable in the Courts of Oyer and Terminer, "exceptions to any decision of the Court may be made by the defendant, and a bill thereof shall be sealed in the same manner as is provided and practised in civil cases, and the accused, after conviction and sentence, may remove the indictment, record, and all proceedings to the Supreme Court." It is contended that as any decision of the Court may be excepted to and all proceedings may be removed, the refusal to grant a new trial may be reviewed. Previously it had been enacted that in all cases of murder in the first degree removed to the Supreme Court, the Judges shall review both the law and the evidence, and determine whether the ingredients necessary to constitute murder in the first degree were proved to exist; the Act of 1874 enables this to be done by providing for the removal of all proceedings. But it was not the intendment that decisions which have always rested in the sole discretion of the Court where the cause was tried, should be made subject to Oct. '83, 143. exception and review. If this were so the accused could except to the refusal of his motion to postpone the trial, or to the granting of a Contract-Will-Contract concerning realtymotion by the Commonwealth for continuance, or to the refusal of his application for attachment for an absent witness, and the like, as well as to the refusal of his motion for new trial. The decisions subject to exception within the purview of the statute are similar to such as were so subject on the trial of a civil cause, as the admission or rejection of testimony and instructions to the jury. This is plainly expressed in the statute, and like plainness is requisite to overcome the rule at common law that decisions of matters within the discretion of the Court are not subject to writ of error. In this case we think that there is little reason for regret that the refusal of a new trial is final. On its trial every doubtful question was solved in favor of the defendant. His claim that he Book v. Book. D. H. October 10, 1883. Construction of instruments. An instrument, in order to be a testamentary writing, must be ambulatory or revocable in its nature; if, upon its delivery, interests vest, it cannot be construed as a will. Turner v. Scott, 1 Smith, 126, distinguished. The paper in question in this case held not to be a will. Error to the Common Pleas of Lawrence Ejectment, by Nathan Book against Mary Articles of agreement made this twenty-second day of December, A.D. one thousand eight hundred and seventyfive, between Jacob Book, party of the first part, and Mi chael H. Book, party of the second part; both of She nango Township, Lawrence County, Pennsylvania. Witnesseth that the said Jacob Book, for the consideration of five dollars to him in hand paid by said M. H. Book, the receipt whereof is hereby acknowledged, and for the further consideration hereinafter mentioned, for himself, his heirs, executors, and administrators, doth covenant and agree to sell and assure unto said M. H. Book, his heirs and assigns, all that certain tract or piece of land situated in Shenango Township, in the county and State aforesaid, bounded and described as follows, to wit. [Then follows the description of the land.] The said Jacob Book to retain the possession and enjoyment of said land while he lives; he to use the premises in such reasonable manner so as not to deteriorate or depreciate their value, and he to pay all taxes thereon while he so lives, and upon his death the said M. H. Book to have full and entire possession and enjoyment thereof. In further consideration whereof the said M. H. Book hereby covenants and agrees during the next year (1876) to either build upon said land a comfortable farm dwellinghouse, or repair the present dwelling-house upon the land so as to make it reasonably comfortable, and from time to time during the lifetime of said Jacob Book to keep the buildings in such repair as to make them reasonably suitable and comfortable for use, and to have the use of such timber or other materials as may be found upon the land for that purpose, and upon or after the death of the said Jacob Book, he, the said M. H. Book, shall pay to the said Jacob's daughter, Jemima Book, during her natural life the sum of one hundred and fifty dollars annually, to be paid in semi-annual instalments of seventy-five dollars each, on the first days of April and October of each year, upon the first instalment to pay the proportion of said sum for the time intervening between Jacob's death and said payment, and thereafter to pay seventy five dollars each successive period of six months. Said M. H. Book further agrees that after the death of said Jacob, said Jemima, while she remains unmarried, shall have a room for her use and occupancy (but not to have the power to lease or let the same) in the dwelling upon said farm, or at his option he to provide her a room in another building upon said farm for such use and occupancy. The title to said farm, if not made to said M. H. Book in fee by said Jacob Book in his lifetime, shall be made so to him by said Jacob's legal representatives so as to assure to said M. H. Book, his heirs and assigns, the land and premises herein before described. In witness whereof said parties have hereunto set their hands and seals the day and year first above written. JACOB BOOK. [SEAL.] MICHAEL H. BOOK. [SEAL.] Afterwards Michael H. Book was adjudged a bankrupt, and at the assignee's sale of his assets, his interest in the land in dispute was sold to plaintiff. In 1881 Jacob Book died, having made a will wherein he revoked all former wills, and devised the land in dispute to another son, Aaron Book, who died intestate, leaving the defendants as his heirs at law. Counsel for defendants requested the Court to charge : 2. That said contract or agreement was testamentary in its character so far as Jacob Book was concerned, and was revocable by him. 3. That the will of Jacob Book in evidence revoked said former will in form of a contract, and gave the land in dispute to his son Aaron Book, and defendants are entitled to hold said land as heirs of said Aaron Book, and under the last will of Jacob Book. The Court reserved its answer to these points, and directed the jury to render a verdict pro forma for the plaintiff, with leave to the defendants to move for judgment non obstante veredicto. Afterwards the Court entered judgment on the verdict in favor of the plaintiff, and thereupon the defendants took this writ, assigning for error the entry of said judgment. Oscar L. Jackson (McMichael & McConnell with him), for plaintiff in error. The paper is testamentary in its character. A will is the legal declaration of a man's intentions which he wills to be performed after his death. 2 Blackstone's Com., 500. Bouvier's Law Dic'y. I Redfield on Wills, 5. Any form of paper disposing of property will operate as a will if it is not to take effect until after the death of the person making it. Habergham v. Vincent, 2 Ves. Jr., 204. Green v. Proude, 1 Mod. 117. Hunt Hunt, 4 N. H. 434. Morrell v. Dickey, 1 Johns. Ch. 153. If M. H. Book had paid the whole or part of the consideration named in the agreement, it would still have to be construed as a testamentary paper. Rowan's Appeal, 1 Casey, 292. D. B. Kurtz (E. T. Kurtz and R. B. McComb with him), for defendant in error. The writing is in effect, as well as form, a contract. By it Jacob Book immediately acquired a right to the consideration money, to have a comfortable dwelling, thenceforth to have the buildings kept in repair, and for his daughter, thenceforward, an annuity of $150. Rights vested at once, which were irrevocable by either party, and it could not be annulled by the subsequent will. his son. If it is a contract, the verdict and judgment are clearly right. On the other hand, if it is a testamentary disposition of the property, it was revoked by the subsequent will of Jacob Book, and the judgment is erroneous. parties, securing rights, and creating obligations which are enforceable by the parties respectively, and not revocable at the pleasure of either without the assent of the other. It is not necessary that a contract for the sale of real estate should vest in the vendee a right of immediate and exclusive possession. It is enough if it creates, as the contract in this case did, a vested interest, to be enjoyed in possession in futuro. According to the intention of the parties, as expressed upon the face of the instrument under consideration, it can have effect and operation only as an agreement for the sale of the land. As was said by Mr. Justice SHARSWOOD in Bond v. Bunting (28 P. F. Smith, 210), "It is certainly the tendency of all the modern authorities to maintain the general doctrine, which may be stated as a formula, that whenever the party has the power to do a thing (statutory provisions being out of the way) and means to do it, the instrument he employs shall be so construed as to give effect to his intention." Tested by this It is claimed by plaintiffs in error that this case principle the question is of easy solution. In is within the principle recognized in Turner v. form, the instrument upon which the contention Scott (1 P. F. Smith, 126); but a cursory hinges has all the features of a contract. It is examination will show that the cases are widely impossible to read it without coming to the different. In that case, the instrument was in conclusion that both parties regarded it as an agreement for sale of the land on terms therein specified. It contains mutual covenants of the parties by which they respectively bound themselves to the performance of certain things. They each acquired rights and assumed reciprocal obligations which took effect, not upon the death of Jacob Book, but immediately upon the execution of the instrument. By the terms of the instrument, Jacob Book not only became entitled to the consideration money therein mentioned, but he acquired the right to the erection of a new dwelling house, or the repair of the old one, and thereafter, during his life, to have the buildings so kept in repair, at the expense of his son Michael, as to make them reasonably comfortable and suitable for use. He also secured for his daughter Jemima the right to receive $150 annually, during life, and a room in the mansion house for her own use while she remained single. On the other hand, Michael acquired the right to take timber and other materials from the land for the building and the repairs he agreed to make; also, the right to require his father to pay all taxes and to use the premises in such reasonable manner as not to deteriorate or depreciate their value," and at his father's death, if not before, to have the legal title to the land assured to him by an appropriate conveyance. It is very the form of a deed of conveyance, in which, Judgment affirmed. MERCUR, C. J., and PAXSON, J., absent. clear that for the breach of some of these cove- Jan. '84, 106, 107, 108. nants, at least, the parties respectively would have had a right of action against each other. If Michael, for example, had refused to build W. S. P. April 1, 1884. Rawle's Appeal. the new house or make the stipulated repairs, it Appeal of the Pennsylvania Company for cannot be doubted his father would have had a right of action against him for damages. These and other characteristics of the instrument clearly distinguish it from a will, which, being intended Insurance on Lives and Granting Annuities. In re Peace's Estate. to take effect upon the death of the testator and Will-Construction of Power of Appointment. not before, is ambulatory and revocable during his life; while, on the other hand, the paper under consideration is a contract between two A testator, in a will disposing of a considerable estate of his own and of a larger estate of his deceased wife which he enjoyed for life, and as to which he had an ab |