ERROR TO THE COURT OF OYER AND TERMINER OE PHILADELPHIA COUNTY.

No. 113 July Term 1888, Sup. Ct.; court below, No. 24-1 January Term 1888, O. and T.

On January 11, 1888, tbe grand jury returned as a true bill an indictment charging William Killer with the murder of David Lewis. The defendant, being arraigned, pleaded not guilty.

At the trial February 28, 1888, before Fineetter, P. J., the undisputed evidence showed that on Sunday morning, November 6, 1887, David Lewis was found dead, upon the upper floor of a stable at No. 447, North.Eighth street, Philadelphia. He lay upon a pile of robes, and one blanket covered all his person save his head. His hands, which were under a blanket when he was found, were stained on the inside with blood. There were several crushing wounds upon his head, and across his feet lay a blood stained stick of wood which had come off a bale of hay, and a heavy iron sash-weight, also stained with blood lay at his shoulder.

The deceased was employed about the stable as a wagon-washer. The prisoner had also been so employed there a month or so before the homicide, still slept in the stable at night, and the night of the homicide stayed in the same room where the deceased slept, a room perhaps sixty feet square. When he was arrested the morning after the homicide, the prisoner gave contradictory accounts of himself during the night, whether he had slept in the hay-mow, or in a furniture wagon in the large room. The valise and two vests of the deceased were found empty, with blood stains on them: he had been paid some money the day before, and both his money and his watch were missing. No ill-feeling was shown to have existed between the prisoner and the deceased, nor was the conduct of the prisoner, who remained about the stable, in any way suspicious, but upon his clothes were found fresh blood-stains identified by experts called as of human blood.

Upon evidence of the foregoing and other facts, the court, Finlettee, P. J., after explaining the principles of the law of murder in the statutory degrees, charged the jury:

The proof of the intention to kill, and the disposition of mind constituting murder of the first degree, lies upon the commonwealth. But this proof need not be expressed or positive. It may be inferred from the circumstances.

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