6 Binn. 179 | Pa. | 1813
Edward White has been convicted of murder in the first degree, and judgment of death passed against him by the Court of Oyer and Terminer for the county of Cumberland. By permission of the attorney general, the record has been removed to this Court, and several errors have been assigned, on which we are now to deliver our opinion. The exceptions which have been taken, go both to the indictment and the process. To the indictment it is objected, first that the offence-is not charged with sufficient certainty, and next that it 'does not conclude against the form of the act of assembly..
1. It is said in the indictment, that Edward White, with a certain stone which he held in his right hand, in and upon .the right side of the head, near the right temple of Samuel Sampson, feloniously, &c. did cast and throw; and that the said Edward White, with the'stone aforesaid, so as aforesaid cast and thrown, the aforesaid Samuel Sampson in and ' upon the right side of the head near the right temple of him the said Samuel Sampson, feloniously &c. did strike fkc. The objection is, that it is not said in the first instance, that White threw the stone at all, but only, that he threw with the stone; and that the subsequent averment that he struck
2. Where a statute creates an offence, the indictment must charge it as being done against the form of the statute. But where the statute only inflicts a penalty upon that which was an offence before, it need not be laid to be against the form of the statute, because in truth the offence does not violate the statute. That this is the rule, was decided in the case of the Commonwealth v. Searle, 2 Binney 339. The only question then will be, was murder of the first degree an offence created by act of assembly. This depends on the second section of the act “ for the better preventing of “crimes &c.” passed 22d of April 1794. After reciting that the several offences which are included in the general denomination of murder, differ so greatly in degree of atrociousness, that it is unjust to involve them in the same ' punishment, it is enacted, that all murder which shall be perpetrated by means of poison, &c. &c. shall be deemed murder of the first degree, and all other kinds of murder shall be deemed murder of the second degree, and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty, ascertain in their verdict whether it be murder in the first or second degree; but' if such person shall be convicted by co?ifession,'the Court shall proceed by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly.
Now this act does not define the crime of murder, but
The exceptions to the process remain to be considered. The precept to the sheriff is in the names of the president of the district, and two of the associate judges of the Court of Common Pleas, under their‘hands and seals. The style “ the judges to the sheriff greeting: In the name and by is, “ the authority of the Commonwealth of Pennsylvania, you “are hereby commanded &c.” It is objected 1. That’the style should have been “ the Commonwealth to the sheriff “ greeting.” 2. That the precept should have been issued under the seal of the Court of Oyer and Terminer. 3. That the sheriff should have been commanded to have the jurors selected and drawn in-the manner directed by law. 4. That the pheriff is not commanded to return petit jurors of the" county of Cumberland, nor does it appear on the record that they were *>f that county. These objections shall be considered in their order.
2. Much of what has been said will apply to the second exception. The usual form has been under the seals of the-judges. Precepts that issue or are supposed to issue from a Court of record during its session, are under the seal of the Court. But this is not the case with precepts for a Court of Oyer and Terminer. Emergencies may arise, requiring such
3. The command to the sheriff is, that on a certain day he. cause to come before the judges twenty-four good and lawful men &c. This is the accustomed and the best form. 'Enteringinto details is dangerous, because something may be omitted, and it is unnecessary, because the sheriff must , be supposed to know his duty, and is bound to perform it. If he neglects any part of it, those whom it concerns may set the process aside.
; 4. The fourth and last exception is that it does not appear that the petit jury came from the body of the county, and if well founded it is fatal. The command to the sheriff is that he cause to come &c. “twenty-four good and lawful ■“men of the body of the county of Cumberland afore- “ said, then and there to enquire, present, do and perform “ such things as on behalf of the Commonwealth shall be “ enjoined them, and also a competent number of sober and “judicious persons, and none other, as jurors for the trial of “ all issues &?c.” Why the words good and lawful men, applied, to the grand jurors, are dropped, and sober and judicious persons put in their place as to petit jurors, I know not. The act of 29th of March 1805, does indeed direct that jurors' shall be sober and judicious persons; but the words good and laxvful men comprehend that and every other requisite. I do not think however that this1 change of phrase is material; but are the words “ of the county of Cumberland”, which follow “ good and lawful men”, connected by the copulative's and also, with the words next succeeding “ a com- “ petent number of sober and judicious persons &c.P” The descriptions of the two sets of jurors, are each complete and independent of the other; and the use of the copulative expressions is only to shew that the sheriff is commanded to cause to come &c. both one ju'ry- and the other. How this ‘
I feel myself under the painful necessity of dissenting from the opinion delivered, in one point.
Amongst the errors assigned to reverse the judgment upon the conviction on this indictment, none of them strike my mind with difficulty, except that which arises from the form of the precept to summon the juries. I do not conceive it to be necessary that it should be under a public seal. I know of no law which provides for a seal of the Court of Oyer and Terminer. The Judges of this Court, by virtue of.their offices, are justices of Oyer and Terminer and general gaol delivery in the several counties; and yet previous to the American revolution, as well as under the former constitution of 1776, and the present one of 1790, such precepts have issued under the hands and seals of the individual justices of the Court, and many convictions have taken place under them.
But it is objected, that by section twelve of article Jive of the present constitution, it is provided, “ that the style of all “ process shall be, the Commonwealth of Pennsylvania; and “ all prosecutions shall be carried on in the name and by “ the authority of the Commonwealth, and conclude against “ the peace, and dignity of the same.”
’ The greater difficulty remains to be got over. The sheriff was commanded that “ he should cause to come &c.” The objection is that though the sheriff is directed to summon the grand jurors of the body of the county of Cumberland, yet that direction does not extend to the traverse jurors. I think the words “ good and lawful men of the body and “ county of Cumberland'1'1 by fair construction may refer to the persons who are to be summoned and retumed-as jurors for the trial of all issues. The directions as to the two sets of jurors are connected together by the conjunctions and also, which refer to the body of the county from whence the sheriff is to cause those jurors to come. The sheriff has summoned them accordingly, and has obeyed the injunction of the writ by annexing a panel thereto in his return, containing the -Christian and surnames, additions and places of abode of the jurors. I feel every tenderness for unfortunate prisoners, that; they should be subjected to no difficulties which the law does not permit; but I do not feel myself justified , in pronouncing that there is a fatal error in this venire facias, which renders the judgment illegal. The exact correspondence of the precept which issued in the present instance, to other precepts issued by the Courts of Oyer and Terminer and general gaol delivery of this district, operates strongly on my mind, that I should not declare this venire facias to be illegal, unless upon the most solid and substantial grounds. I am strongly inclined to think that this venire facias for the court of Oyer and Terminer, has pursued the form used ’ by the judges of this court sitting at Oyer and Terminer;
■ but having no access here to those records, I would not be ■understood to express a confident sentiment thereon.
I consider the indictment as'-inartificially drawn, but not
It has been further assigned for error, that the offence of murder of the first degree was created by the act “ for the “ better preventing of crimes, and for abolishing the punish- “ ment of death in certain cases,” passed on the 22d April 1794, (3 SmitRs Laws 187); and therefore the crime should have been laid in the words of the' act to have been done wilfully, deliberately andpremeditatedly, and the indictment is defective in not concluding against the form of the act of assembly. But it is clear that this law creates no new offence as to wilful and deliberate murder, nor annexes any new punishment thereto. Different degrees of guilt exist under the general crime of murder, which is therefore arranged under two classes of murder of the first and second degree. The uniform practice since the act was passed, has been to lay the offence as at common law; which has been decided by the judges, of this court sitting at Oyer and Terminer to be sufficient, in the case of the two negroes who were executed a few years ago for the murder of an ancient woman in the city of Philadelphia. The true distinction on this subject is drawn in Respublica v. Searle, 2 Binney 339.
Judgment reversed.
On my coming to Philadelphia, and searching the prolhonotary’s office of the-Supreme Court, I find X have been mistaken herein.