on the subject of this robbery. So as to the alleged interview at Maplewood pond. Admittedly, Hollister did step across the channel, and speak to Engle a few minutes. The defendant denies that he spoke about anything but the matter that naturally would suggest itself there, while Engle says that he referred to this robbery, the matter of the robbery, and told him that the parties whom they had expected to draw into itget into it-they had not been able to get. Again, as to the second time upon the train, Newton Ferris and Henry Perry give the position of Engle and Hollister just about as Engle and Hollister themselves do. Ferris says Engle and Hollister spoke together, but there was nothing said about the ice business, while, of course, we have the testimony of Engle that this matter of the robbery was referred to. The evidence of the defendant, and of these witnesses which he produces to sustain him, corroborate the testimony of Engle as to the parties being together at a time and times when Engle says the subject of the robbery was brought up or referred to, and to that extent there seems to be a corroboration; the story of one side fits into the other. But just at the point which is material to this consideration of this case there is a conflict; on the one side, the defendant swearing that nothing criminal was said, and the witnesses on the part of the defendant saying that nothing criminal was said, and, on the other, Engle testifying that right then and there this matter was brought up, the matter being originally brought to his attention, and afterwards referred to. Counsel argue upon this -this part of Engle's testimony-the unlikelihood of a robbery being brought up and discussed at such times and in such places as Engle testifies that it was; for instance, on the train or at the ice pond. But Engle says that he sat, as they all say, the first time in the front seat of the smoking car, no one in front of him; that Hollister came and sat down by him and talked. Of course, it was not like talking in a room where there would be opportunities to hear, but it was talking on the train, where there is more or less noise, and where, of course, according to our common experience, we have to talk quite loud to one another sometimes to be understood, although sitting right by each other. But it is for you to take into consideration this matter. The occasion when Engle says, was Hollister likely to bring these matters up, bring them forward, discuss them, plan them? And that bears upon the credibility of his testimony, the consistency of his story. Again, as to the time when Engle says that 'Squire Hollister came to him at Dunmore. The defendant explains these occasions to you, and the nature of the business which brought him there. He also brings several witnesses to confirm him in what he says. He speaks about going to

some of the justices' offices up there to search for evidence in regard to certain pension matters which were in his hands. And upon these occasions we have the same issue between the defendant and Engle, as to the purpose of the occasion; Engle testifying that there was a criminal purpose in the meetings, occurring on these errands or meetings with Hollister, and Hollister, on the other hand, denies it. So, we have the oath of the defendant against the oath of Engle, without a corroboration upon a material point. It is for you to judge of this testimony, and to say which of these witnesses you will believe, keeping always in mind with regard to the testimony here that Engle, an accomplice, stands uncorroborated upon material points, because it is upon Engle's testimony the complicity of E. B. Hollister is to be made out. I think we may consider, and that I may properly, in passing upon this part of the evidence, call to your minds and to your consideration, how far this part of Engle's story is essential to make out the case. Can you separate- Can you believe any part of the story without believing this? Isn't this a consistent part if it is consistent at all? If the story is consistent, at all to be believed, you may well consider whether this is not a consistent part of it, and whether it does not so fit into other parts of the evidence which stand corroborated by inde| pendent testimony as to convince you also of the truth of this. If you do not believe Engle's story to this extent, or if you believe the denial and explanation of Hollister, and the witnesses that he produces in his behalf, then, so far as E. B. Hollister is concerned, you could not convict him of this crime.

He

"Now, as to H. H. Hollister. He says that he first met Engle at Kinback's, and interested him in the model of a harrow which he had, and which he produces here. next says that he went to see Engle at his home in Dunmore, to get him to take an interest and operate a stone quarry, which belonged to a certain Mr. Mitchel, near Wimmer's Summit. Engle said, according to Hollister, that he would see about it, and would have a talk with George Watson, with whom he was associated in the stone flag business. Upon a later occasion H. H. Hollister says that he met Engle at Harris', and went in and took a glass of lager with him there. On a still later occasion Hollister says that he was inside Harris' saloon, sitting by a table reading, and that he met Engle there, and talked about the stone business and about the harrow, and, while they were there talking, Snow and Brown came in, and they asked Engle up-stairs, and himself. He hesitated about going up, but finally went, and they had some beer there to gether. He said he never saw Engle or Brown at any other time; that he did not meet Snow or Denny; never saw Engle or Brown at any other time; and he says that at these times when he admits that he met

these parties nothing but what was natural and innocent was spoken of. He denies that the robbery, or any robbery or crime, was ever spoken of or discussed. He does say, and admits, that he met Snow and Denny upon the occasion when they testify that he did meet them; but he says the meeting was by chance, and that he sat down, and they sat down on the settee, and talked about some matters. I don't know as he gives the subject of the conversation, but he denies that there was any criminal talk. When he went to Snow's house on one occasion he said it was because Snow, while he was busy at some work with regard to the exhibition at the fair grounds, asked him whether he (Snow) could not get something to do, and he went to Snow's house intending to try and get him interested in a steel guide board which he (Hollister) was trying to introduce, and, when Snow came to his house on Sunday, they talked over this matter, and nothing else. Now, we have here a peculiar thing. We have the evidence as given by Hollister in regard to certain meetings with Engle, Brown, and Denny, fitting into what they say,-that is, Hollister does not deny meeting these parties on some of those occasions, at least, but admits it; but he denies that there was any evil in the meetings, any criminal purpose; that the meetings were innocent and natural. It is for you to say whether you believe him in this statement, or, on the other hand, whether you believe the other parties, who say that there was the purpose in it which they have testified to. If these meetings were innocent, or if they be explained upon any reasonable basis from the evidence in that way, or if the testimony with regard to them raises a reasonable doubt in your minds of their being intended for anything but an innocent purpose, he could not be convicted of this crime; but, on the other hand, if these admissions with regard to these meetings corroborate what the commonwealth's witnesses swear to, and with the further evidence of the commonwealth's witnesses that these meetings were for a criminal purpose, and you believe the evidence of the commonwealth's witnesses, implicating the defendant in this crime, then you may pronounce him guilty as he stands here charged.

"I should not pass from the testimony of H. H. Hollister without referring to that part of his testimony which goes to trace his conduct at the time of the actual commission of this crime. If the evidence of the commonwealth was that H. H. Hollister was present, had participated in the commission of the offense, then the evidence as to where he was at the time would be important, because it would go to establish what we know in the law and commonly speak of as an alibi. But this is not the character of the offense against him. The commonwealth does not pretend to say that he was right

there where the crime was committed. This evidence, therefore, only has a legal bearing upon the case, so perhaps furnishes a basis for the argument that at the time when this offense was going on, when he, if he was near, must have known that it was, that he was about his ordinary and natural business, and that would not be likely of a man who was really interested, with his mind intent upon that which was happening at a distance. It is said, on the other side, that this would be just what a guilty man would do, if his purpose was to shield himself, and make out an alibi, and they point to the testimony of Brown and Snow, who swear that Hollister suggested that he would go to Blatter's saloon, and would not be present, but would go to Blatter's saloon for the purpose of making out an alibi. We also find, as a mere circumstance, scintilla, that Chief Simpson went to Blatter's to see if Hollister was there, which would be quite natural if he had received this information from Brown with regard to Hollister's purpose. On the other hand, it may be said on the part of Hollister that a complete alibi could have been made out, perhaps the best of all, by his keeping steady at his work, rather than by his leaving it.

"Now, gentlemen, in this way I have endeavored to somewhat array this great mass of facts; the great mass of facts which exist in this case. I must bring my comments upon them and my charge to you to a close. It is for you to say how far the evidence in the case convinces you. I do not mean in anything that I have said to try and influence you or suggest your verdict. It is cast upon you to pronounce upon the defendants' guilt or innocence. I do not pretend to say whether they are guilty or innocent, but you must; and you must say it under your oaths, according to the instructions which you receive here, and according to the evidence. You are carefully to consider all the evidence in the case, and you are to follow where it leads, regardless of conse quences. You pronounce simply upon the question whether the defendants are guilty, or not, of this crime. If they are guilty, they are the ones who are responsible for it, not you. If they are innocent, then your verdict will be their shield to them at this time. The defendants are to have the benefit of any reasonable doubt in the evidence. If a reasonable doubt exists with regard to any point in the evidence necessary to convict the defendants, or either of them, then upon that reasonable doubt you may pronounce them not guilty; but if the evidence convinces you of the guilt of either of them, or both of them, beyond a reasonable doubt, it is just as much your duty to pronounce them guilty as it is to pronounce them innocent. Your verdict will be not guilty on the first and second counts. As to the third count you will say whether the defendants are guilty or not guilty of an attempt to

commit a robbery, and, on the fourth, whether they are guilty or not guilty of a larceny. The case is now in your hands."

W. G. Ward, Geo. S. Horn, and J. F. Scragg, for appellant. John P. Kelly, Dist. Atty., and H. M. Edwards, for the Commonwealth.

STERRETT, C. J. The indictment on which appellant and his brother were tried contains four counts, respectively charging the defendants therein named with (1) aggravated felonious assault and robbery; (2) aggravated felonious assault with intent to rob; (3) robbery; and (4) larceny. Two of the defendants-Engle and Snow-had pleaded “Guilty." Appellant and his brother, protesting their innocence, went to trial. The latter was acquitted. The former was found "guilty of larceny as charged in the fourth count of the indictment," and recommended to the mercy of the court. The circumstances attending the commission of the alleged crime, as shown by the testimony, are fully stated in the charge of the court. It is unnecessary for us to do more than refer to a few of them incidentally. If the learned president of the oyer and terminer was correct in his view of the law applicable to the undisputed facts, there cannot be any doubt that the crime of larceny, at least, was committed. It was not shown that appellant was present when the money was taken. On the contrary, the proof of an alibi appears to have been very clear and uncontradicted. If, however, the taking, in the circumstances disclosed by the commonwealth's testimony, amounted to larceny, and the evidence tending to prove that appellant was an accessory before the fact was believed, the jury was warranted in finding as they did. The substance of that evidence is that a robbery was adroitly planned by him, but the execution thereof was intrusted to Engle, Snow, and Brown. The latter informed the chief of police and Mr. Spencer, one of the intended victims, of the contemplated robbery, and they arranged with Brown that he should co-operate with the others in the commission thereof, and report to them. Part of that arrangement was that Spencer should put up $500 in several envelopes, and place them on the paymaster's desk in the pay office, and notify the paymaster that Snow and Brown would attempt to take the money, but without injuring him; that he should submit to being bound, blindfolded, and gagged, and not forcibly resist the taking of the money. Spencer explained this to the paymaster, and the latter acted his part accordingly. At the time set for commission of the robbery, Engle went to the pay office to see that the way was clear. Finding that the paymaster was there alone, Brown and Snow, following him, entered the office masked. Snow covered the pay

master with a revolver, and ordered him to hold up his hands. Then Brown and Snow seized, bound, blindfolded, and gagged him, and, taking the money from his table, put it in bags and carried it in the direction of Engle's stable, for the purpose of there disposing of it, as had been prearranged by the confederates. At that point the police, who meanwhile had been awaiting developments, closed in on and arrested Engle, Snow, and Brown with the money in their possession.

This mere outline of the more prominent facts which the commonwealth's testimony tends to prove will be sufficient for the purpose of disposing of the specifications of error, the first and second of which' complain of the following extracts from the learned judge's charge: (a) “You may convict the defendants on the third count of an attempt to rob, and on the fourth count of a larceny, according as you are satisfied and convinced by the evidence in the case." (b) "As to the third count, you will say whether the defendants are guilty or not guilty of an attempt to commit a robbery, and, on the fourth count, whether they are guilty or not guilty of a larceny." The remaining specification charges error generally "in submitting to the jury the question of defendant's guilt or innocence of the crime of larceny as charged upon him in the fourth count of the indictment, there not being sufficient evidence to warrant the submission of that question." The first and second counts of the indictment were practically eliminated from the case by instructing the jury that there could be no conviction on either of them, and the third was disposed of by the verdict. That left nothing of which appellant could possibly complain except the instruction as to the charge of larceny contained in the fourth count, on which, alone, he was convicted and sentenced. As to that his counsel, in their brief of argument, say: "The vice of all the specifications of error is in the learned court submitting to the jury the question of larceny, as set forth in the fourth count of the indictment." That alleged error is grounded on the unwarranted assumption that there was no evidence in the case to justify a conviction of larceny. If believed by the jury, as it evidently was, the testimony tending to show appellant's active participation in planning a felonious taking of the money, and what was done in pursuance thereof by some of his confederates, was quite sufficient to warrant his conviction under the fourth count. While, as stated by appellant's counsel, "the evidence, if believed, is full and clear to the effect that Brown had informed the chief of police of the purpose and plan of the alleged confederates, and of the time they had fixed for the consummation of the offense, and that Brown and the chief had fully informed Spencer of the whole matter," etc., and further, that Brown was co-operating with the police and the intended victims of the plot

for the purpose of detecting and punishing those engaged therein, etc., it does not follow that Engle and Snow, two of said confederates, were any the less guilty of feloniously taking and carrying away the packages of money. It does not appear that they had any suspicion that Brown was acting the part of detective and informer. The jury was properly cautioned as to the danger of convicting on the testimony of accomplices. But the case did not rest on the testimony of Engle and Snow alone. They were corroborated by other witnesses. Brown was a competent witness, and, if believed, his testimony alone was sufficient to warrant the jury in finding that a larceny was committed. In Campbell v. Com., 84 Pa. St. 187, we held that one who joins a criminal organization for the purpose of exposing it and bringing criminals to punishment, and honestly carries out that design, is not an accessory before the fact, although he may have encouraged and counseled parties who were about to commit crime, if in so doing he intended that they should be discovered and punished; and his testimony, therefore, is not to be treated as that of an infamous witness. See, also, Tayl. Ev. § 971; Whart. Crim. Ev. § 440. So far as Engle and Snow participated in taking the money, the testimony all tends to show that they did so animo furandi, in pursuance of the preconcerted scheme to rob, etc., and were therefore guilty, at least of larceny. Com. v. Eichelberger, 119 Pa. St. 254, 13 Atl. Rep. 422. The case against appellant turned upon questions of fact which were exclusively for the determination of the jury. To them it was fairly submitted, with very full and adequate instructions. If there was any error, it was on the part of the jury, and the only remedy for that was in the court below. Neither of the specifications is sustained. The sentence of the court of oyer and terminer is affirmed, and the record is remitted to the court for the purpose of fully executing said sentence; and to that end it is ordered that appellant do forthwith surrender himself into the custody of the sheriff of Lackawanna county.

(157 Pa. St. 579) COMMONWEALTH v. UNITED STATES EXP. CO.

(Supreme Court of Pennsylvania. Oct. 2, 1893.) TAXATION-GROSS RECEIPTS OF EXPRESS COMPANY -WHAT CONSTITUTE-DOUBLE TAXATION.

1. Under Acts June 7, 1879, (P. L. p. 117, § 7,) and June 1, 1889, (P. L. p. 431, § 23,) which provide that every express company doing business in the state shall pay a tax of eight mills on the dollar on its "gross receipts" from express business done wholly within the state, an express company must pay taxes on its total receipts without deduction of the amounts paid various railroad companies for transporting express matter, though such railroad companies have paid all the taxes accrued in respect to their gross earnings, in

cluding the amounts received from such express company.

2. The provisos of such sections, which declare that, where the works of one corporation "are leased to and operated by" another corporation, the taxes shall be apportioned between them in accordance with the terms of their leases, but the commonwealth will look to the company operating the works for the tax, and, on payment thereof, the lessor shall not be liable for any tax on the proportion of such receipts received by it as "rental" for the use of such works, do not apply to such express company, since no "works are leased" from it, and it'received no "rental."

3. Such taxation of the gross receipts is not illegal double taxation.

Appeal from court of common pleas, Dauphin county; J. W. Simonton, Judge.

Settlement by the auditor general and state treasurer of an account against the United States Express Company for a tax on its gross receipts. From a judgment sustaining the action of the auditor general and state treasurer in settling and entering an account against it for a tax on its total receipts from express business done wholly within the state, without deduction of amounts paid railroad companies for transporting its express matter, the company appeals. Affirmed.

The opinion of Simonton, P. J., filed in the court of common pleas, and referred to in the opinion of the supreme court, is as follows:

"Findings of Fact.

"1. The gross receipts of defendant from its express business transacted wholly within the state of Pennsylvania, during the period included in the settlement appealed from, amounted in the aggregate to $437,657.81. During the same period it paid to several railroad companies for 'express transportation' the sum of

"2. Some of the railroad companies were paid 'a fixed sum per annum for all express facilities' furnished to defendant by them; others were paid 'a fixed rate per hundred pounds of express matter carried; and others were paid an amount equal to an agreed percentage of the gross receipts of defendant from its express business done on the given road.

"3. All the railroad companies which carried express matter for defendant, and were paid therefor, as stated in the preceding finding, have paid all the taxes which accrued in respect of all their gross receipts, including the amounts received from defendant, as above stated.

"On these facts defendant claims that it is liable only for the amount of its gross receipts, which accrued during the year included in the settlement, remaining after deducting from its total gross receipts the amount paid to the several railroad companies, as above stated, for the reasons set forth in the following specifications of objections to the settlement appealed from: (1) The said settlement for the said years, and each period thereof, is erroneous, for

the reason that the tax is assessed upon the total gross receipts within the state of Pennsylvania, without regard to the fact, contained in the reports of the company, of payment of a portion of said receipts to va rious railroad companies for transportation of the business upon which such gross receipts were collected, contrary to the provisions in section 7 of the act of June 7, 1879, and section 23 of the act of June 1, 1889, providing for the adjustment of tax in such cases between the corporations. (2) The said settlement is further erroneous, for the reason that double taxes are received by the commonwealth upon that portion of the said gross receipts paid out for transportation, as set out in the first ground of objection. A third specification was filed, which, however, does not apply to the facts of this case, or the period included in the settlement appealed from. The only questions, therefore, which can be considered in this case, are those raised by the two specifications above quoted. Delaware, L. & W. R. Co. v. Com., 66 Pa. St. 64. The provisos in section 7, Act June 7, 1879,, (P. L. 117,) and section 23, Act June 1, 1889, (P. L. 431,) which are made the ground of the first specification of appeal, are identical, and are as follows: Provided, that in any case where the works of one corporation, company, joint stock association, or limited partnership are leased to and operated by another corporation, company, association, or limited partnership, the taxes imposed by this section shall be apportioned between the said corporations, companies, associations, or limited partnerships, in accordance with the terms of their respective leases or agreements; but for the payment of said taxes the commonwealth shall first look to the corporation, company, association, or limited partnership operating the works; and upon payment by the said company, corporation, association, or limited partnership of a tax upon the receipts, as herein provided, derived from the operation thereof, the corporation, company, joint stock association, or limited partnership, from which the said works are leased, shall not be held liable under this section for any tax upon the proportion of said receipts received by it as rental for the use of said works.' The sections of these acts in which this proviso is found enact 'that * every express company * incorporated or unincorporated, doing business in this commonwealth * * shall pay to the state treasurer a tax of eight mills upon the dollar upon the gross receipts of said company received from express business done wholly within this state.' The provisos are expressly limited to 'any case where the works of one corporation, company, joint stock company, or limited partnership are leased to and operated by another corporation, company, association, or limited partnership,' and the exemption from taxation is

strictly limited to 'any tax upon the proportion of said receipts received by it as rental for the use of said works.' The defendant is not a corporation or company from which any works are leased, and none of its receipts taxed in the settlement appealed from have been received by it as rental for the use of its works; and it is therefore manifest that these provisos do not exempt any part of its gross receipts from taxation, and the first specification of objection cannot therefore be sustained.

"It is further claimed in the second speci. fication that the taxation of all defendant's gross receipts, not deducting an amount equal to the sum paid by it for express transportation, will result in illegal double taxation. The subject of double taxation has recently been considered by each of the members of this court in opinions which will be found in a note to Com. v. Westinghouse Air Brake Co., 151 Pa. St. 281, 24 Atl. Rep. 1111, 1113, and it is not necessary to repeat what is there said. It is shown by the authorities there cited that the double taxation forbidden by the constitution requiring equality or uniformity of taxation is such as would require the same person or the same subject of taxation to contribute twice to the same burden, while other subjects of taxation belonging to the same class are required to contribute but once; and it was held in Com. v. Tioga R. Co., 145 Pa. St. 38, 22 Atl. Rep. 212, adopting the opinion of this court, by Judge McPherson, that where a railroad company had paid tax on all its gross receipts, including the amount paid by it to the defendant in that case for the use of its railroad, all the gross receipts of defendant, not deducting the amount received by it from the former company, were taxable, and that this was not double taxation, because both taxes were not levied upon the same subject, nor to be paid by the same person. The receipts of one company were paid to it for transportation; the receipts of the other were paid to it for tolls and trackage. In this case the sums paid by defendant to the several railroad companies, and which formed part of the gross receipts of these con:panies, were paid for the services rendered by them in transporting express matter for defendant; all defendant's gross receipts were received for the services rendered by it to its customers in receiving express matter, and delivering it to the persons to whom it was consigned. In Express Co. v. Robinson, 72 Pa. St. 274, the court say that express companies receive a larger compensation, because they contract for a personal delivery of goods intrusted to them. It could not be seriously contended that if defendant had transported the express matter for which it paid freight to the railroad companies by its own servants, and in its own vehicles, it could have deducted the cost of so doing from its taxable gross receipts, or that it could have done