Volume 81 — Pennsylvania Superior Court Reports

<p>Criminal law — Dentistry—Practicing without license — Construction of statutes — "Enter upon” — Acts of July 9,1897, P. L. 806, and May 8, 1915, P. L. 819.</p> <p>The defendant was indicted under the Act of May 3,1915, P. L. 219, for practicing dentistry without a license. He admitted that he had been engaged in such practice since 1895 and had no license. He claimed to be exempt from the necessity of obtaining a license under the Act of 1915 because of the provision that it shall not apply to those'who were engaged in actual lawful practice for five years prior to its passage.</p> <p>The defendant contended that his practicing without license under the Act of July 9, 1897, P. L. 206, for more than five years prior to 1915, was a lawful practice because the former act made it unlawful “to enter upon the practice of dentistry” without license and he had already actually begun practicing in 1895, before the act became effective.</p> <p>Held: While it is true that the words “enter upon” usually mean to begin, nevertheless, a general reading of the Act of 1897 indicates it was not the legislative intent to limit the application to those persons who should thereafter begin the practice of dentistry. The defendant was not engaged in the actual lawful practice of dentistry for five years prior to the passage of the Act of 1915 and was properly convicted upon the indictment for its violation.</p> <p>Practice, Q. S. — Charge of the court — Expression of opinion— Binding instructions.</p> <p>Upon the trial of an indictment charging a statutory offense, where the defendant comes into court and admits the facts upon which the charge is based and merely raises the question as to whether he has committed a crime, it is not error for the court to express an opinion that the jury should return a verdict of guilty. So long as the judge expresses his opinion fairly and does not give binding instructions he is acting in accordance with his duty.</p>

Appeal, No. 75, April T., 1923, by defendant, from judgment of Q. S. Lawrence Co., March sessions, 1922, No. 63, on verdict of guilty in the case of Commonwealth v. Jim Polise. Indictment for receiving stolen goods. Before Emery, P. J. The opinion of the Superior Court states the case. Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.

<p>Appeal, No. 188, Oct. T., 1922, by defendant, from judgment of O. & T. Blair Co., Jan. T., 1922, No. 11, on verdict of guilty in the case of Commonwealth of Pennsylvania v. J. T. O’Donnell.</p> <p>Indictment for robbery. Before Baldrige, P. J.</p> <p>The opinion of the Superior Court states the case.</p> <p>Verdict of guilty upon which judgment of sentence was passed. Defendant appealed.</p> <p>Error assigned was refusal to strike out evidence of the Commonwealth in contradiction and impeachment of its own witness.</p>

Appeals, Nos. 241, 242, 243, 244, 245, 246, 247, 248, 249, 250, 251, 252, 253, 254, 255, 256, 257 and 258, Oct. T., 1922, by defendants, frorh order of C. P. Carbon Co., April T., 1921, No. 36, making absolute rule for judgment for want of a sufficient affidavit of defense in the case of Palmerton Borough v. Emrick Lancz et al. Scire facias sur municipal lien. Buie for judgment for want of a sufficient affidavit of defense. Before Barber, P. J.

Appeal, No. 48, Oct. T., 1922, by defendant, from judgment of C. P. Schuylkill County, Jan. T., 1922, No. 192, on case stated in the case of Israel L. Rubinsky, Executor of the last will and testament of Harris Rubinsky, late of the City of Pottsville, deceased v. The City of Pottsville. Case stated.

Appeal, No. 138, Oct. T., 1922, by defendant, from order of C. P. No. 5, Phila. Co., Dec. T. 1921, No. 6079, discharging rule to strike'off judgment in the case of Charles J. Meyers and C. Harold Meyers, trading as Meyers and Joly v. Johanna Freiling, Rule to strike off judgment. The facts are stated in the opinion of the Superior Court. The court discharged the rule. Defendant appealed.

Appeal, No. 144, Oct. T., 1922, by defendant, from judgment of O. P. No. 3, Phila. Co. Sept. T., 1920, No. 6343, on verdict for plaintiff, in the case of Michael Hook v. The Bell Telephone Company of Pennsylvania. Trespass to recover damages for death of plaintiff’s son. Before McMichael, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $450 and judgment thereon. Defendant appealed.

Appeal, No. 185, Oct. T., 1922, by defendants, from judgment of C. P. Lycoming Co., Sept. T., 1921, No. 64, on verdict for plaintiff in the case of Jacob Snowiss v. Charles E. Lieb and Morris Levy, Copartners, trading under the firm name of Elias Loeb & Company. Assumpsit to recover balance alleged to be due on account. Before Whitehead, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $1,090.95 and judgment thereon.

Appeal, No. 149, Oct. T., 1922, by defendant, from judgment of O. P. No. 5, Pbila. Co., Dec. T., 1919, No. 5506, on verdict' for plaintiff in the case of Felix Golden v. Richard J. Hill. Trespass to recover damages for personal injuries. Before Martin, P. J. The facts are stated in the opinion of the Superior Court. Verdict for plaintiff in the sum of $1,250, upon which judgment was entered. Defendant appealed.

Appeal, No. 93, Oct. T., 1922, by defendant, from judgment of O. P. No. 1, Phila. Co., Sept. T., 1918, No. 2323, on verdict for plaintiff in tbe case of Fidelity and Deposit Company, of Maryland, v. John A. Call. Assumpsit for reimbursement of surety on contract of indemnity. Before Patterson, J. The facts are stated in tbe opinion of tbe Superior Court.

Appeal, No. 164, Oct. T., 1922, by claimant, from order of C. P. No. 3, Philadelphia County, March T., 1921, No. 6675, discharging rule to show cause why order of sale should not be vacated in the case of American Chemical Laboratories v. Wayne Junction Trust Company. Interpleader. Rule to show cause why order of sale should not be vacated. The facts are stated in the opinion of the Superior Court.

Appeal, No. 294, Oct. T., 1922, by plaintiffs, from judgment of Municipal Court of Philadelphia, Oct. T., 1920, No. 741, on finding for defendants in the case of Jennie Jacobs and David Jacobs, partners trading as S. Jacobs and Son v. Victor Stein-berg and Caroline Steinberg, trading as North Kensington Storage Company. Trespass to recover damages for conversion. Before Cassidy, J., without a jury. The facts are stated in the opinion of the Superior Court.

<p>Criminal law — Jurors — Qualifications — Women as jurors<— Omission of women — Act of April 10, 1867, P. L. 62.</p> <p>Motions to quash an indictment, and the array of grand jurors, and the array of petit jurors, were properly overruled where the reason assigned in support of each motion was that women were not included among jurors selected for service in the several courts of the county for the year 1921.</p> <p>The Act of April 10,1861, P. L. 62, does not accord to a defendant to he tried by a jury of a particular class, nor has he a right to any particular person or persons on the.jury, nor to any particular set of men from whom his jury is to be chosen.</p> <p>As there was no prejudice alleged or shown in the action of the jury commissioners the appellant was not injured by the fact that no women were chosen to serve as jurors that year.</p> <p>Criminal law and procedure — Motion to quash array of jurors— Delay — Juror—Preliminary examination.</p> <p>A motion to quash the array of jurors should be made as soon as the facts which warrant it are known. As the defendant had an opportunity to learn as soon as he was indicted what names of jurors were in the jury wheel, it may well be doubted whether he could be heard to raise the question after waiting from the November to the January term.</p> <p>It was not error for the trial court to refuse permission to ask a juror whether any members of his family were stockholders in a certain bank where it does not appear to have been a material matter and where it does not appear that the defendant was prejudiced in any way.</p>

Appeal, No. 209, Oct. T., 1922, by plaintiff, from order of O. P. No. 1, Philadelphia County, Dec. T., 1921, No. 4053, making absolute rule to strike off alias fi. fa. and attachment execution, in the case of Progressive Commercial Company v. L. Friedman and J. Balasny. Rule to show cause why judgment should not be stricken off or opened, and why alias fi. fa. and attachment should not be set aside.

Appeal, No. 115, Oct. T., 1918, by Samuel Bell, from decree of O. C. Delaware County, No. 8740, dismissing exceptions to report of auditor in tbe estate of John Hanna, deceased. Exceptions to report of auditor. Before Broom all, J. Tbe facts are stated in tbe opinion of tbe Superior Court. Tbe court dismissed exceptions to tbe report and confirmed tbe finding of tbe. auditor that tbe claimant’s decedent bad already received ber distributive share. Samuel Bell appealed.

<p>Libel — Words not per se defamatory — Unequivocal words — Innuendo.</p> <p>Iu an action for libel the liability of the defendant does not depend upon his unexpressed intention, but on the meaning of the language used.</p> <p>An unequivocal denial of liability for an alleged debt, stating that payment had been made to the plaintiff as agent imputes no crime to him.</p> <p>The'mere statement that payment had been made in that manner did not necessarily imply that the money had been misappropriated by the plaintiff.</p> <p>An innuendo cannot be used to change the ordinary meaning of words pleaded and give them a construction which they do not bear.</p>