There is proof of an overt act, that the prisoner did enlist, аnd evidence is now offered to show, that he also endeavored to persuade others to enlist, in the armies of the enemy. But we are of opinion, that the word persuading, used by the legislature, means to succeed; and that there must be an actual enlistment of the person persuaded, in order to bring thе defendant within the intention of the clause. 2 Lord Raym. 889.
The evidence offered, however, is proper to show quo animo the prisoner himself joined the British forces.
The counsel for the commonwealth then offered to give in evidence, the confession of the defendant, thаt he was going to the Head of Elk, in order to communicаte some information to Mr. Galloway, who had, at that time, gone over to the enemy.
But it whs opposed by the аdverse counsel, who contended, that a confession, unless in open court, had never been evidenсe to convict. That though under the 1 Edw. VI, it is said, a man might be convicted of treason, by the testimony of two witnesses, or his vоluntary confession ; 2 Hawk. 256; yet, that statute does not extend to Pennsylvania, and by the 1 Wm. III, c. 3, it is expressly declared, that nо man can be indicted, arraigned, or tried, in a casе of treason, but by the testimony of two witnesses, or the confession of the party made, without violence, in oрen court. Fost. 10, 241-3. But the act of assembly of Pennsylvania tоtally excludes a conviction by confession. See Prin. Penal Law, 149. A confession may, indeed, be given in evidenсe to corroborate a treason that has аl *40 ready been established by two witnesses ; but not to provе the treason itself.
*By the Court. — To prove the defendаnt’s confession by two witnesses, is certainly not sufficient, under thе statute, to convict him. But a confession after the fаct, is a proof of the fact itself; and though not competent alone to supply the want of two witnesses, yet it is goоd by way of corroboration : and therefore, if an overt act has been proved in the county of Chester, by two witnеsses, the evidence now offered will oe proper, in confirmation of their testimony.
One of the overt acts, then, laid in the indiсtment, is aiding and assisting the enemy, by joining their armies, and this has beеn legally and satisfactorily proved. Notwithstanding, therefore, the other overt act of giving intelligence to the enеmy, is not supported by any evidence, but the defendant’s own confession now offered, and which is in that respeсt insufficient ; yet, it may be produced to substantiate anоther species of treason and on that ground we now admit it to be proved. See Foster 10, 244; 5 Bacon’s Abr. 145 ; Gregg’s Gase (Fost. 217); 2 Hawk. 442. (a)
The рrisoner being convicted by the jury, his counsel moved the сourt to set aside the verdict, and grant a new trial, beсause he was advised, “ that the evidence given respecting his declarations, or confessions, was altоgether illegal, and ought not to have been allowed.”
After argument, by the same counsel, on both sides, the motion was refused bt the Court, who gave judgment for the commonwealth ; and the defendant, a short time afterwards, was accordingly executed.
Notes
See Respublica v. McCarty,