White v. Commonwealth

• Decision Date: 09 October 1813
• Parties: WHITE v. The Commonwealth.
• Court: Pennsylvania Supreme Court

6 Binn. 179

6 Am.Dec. 443

WHITE v. The Commonwealth.

Supreme Court of Pennsylvania.

October 9, 1813

IN ERROR.

An indictment charging that the defendant with a certain stone which he held, in and upon the right side of the head of the deceased, feloniously, & c. did cast and throw, and that the defendant with the stone aforesaid, the deceased in and upon the right side of the head feloniously & c. did strike, sufficiently charges that the defendant threw the stone and struck the deceased.

In an indictment for murder, it is not necessary so to describe the offence, as to shew whether it be murder of the first or second degree. Nor is it necessary that the indictment should conclude against the form of the act of assembly.

Process must go in the name of " the Commonwealth of Pennsylvania; " but it is immaterial in what part of the precept the Commonwealth is introduced, so that the command is given in its name.

Precepts for Courts of Oyer and Terminer may issue under the private seals of the judges appointing such Courts: No seals are required for the Courts themselves.

In a precept to the sheriff to summon the grand and petit jury, it is sufficient to command him to cause to come before the judges 24 good and lawful men, without commanding him in what manner they are to be drawn or selected.

A precept to the sheriff, commanding him to cause to come &amp c. " 24 good and lawful men of the body of the county of C. aforesaid, 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 &amp c.," contains no command to convene the petit jurors from the body of the county of C. And therefore if it does not appear by the return or the panel, that the petit jurors in fact came from the body of the county, the error is fatal.

ERROR to th?? Oyer and Terminer of Cumberland county, to bring up the record of an indictment and judgment for murder.

The indictment charged, that Edward White, " not having the fear of God before his eyes & c., on the 23d of July 1812, with force and arms, at & c., in and upon one Samuel Sampson, in the peace of God & c. then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said Edward White, with a certain stone of no value which he the said Edward White in his right hand then and there had and held, in and upon the right side of the head, near the right temple of him the said Samuel Sampson, then and there feloniously, wilfully, and of his malice aforethought did cast and throw; and that he 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, then and there feloniously, wilfully and of his malice aforethought, did strike, penetrate and would giving to the said Samuel Sampson, by the casting and throwing of the stone aforesaid, in and upon the right side of the head, & c. one mortal wound of the length of two inches, and of the depth of one inch, of which said mortal wound, the said Samuel Sampson then and there instantly died; and so the jurors aforesaid, upon their oaths & c. say that the said Samuel White, him the said Samuel Sampson, in manner and form aforesaid, feloniously wilfully and of his malice aforethought, did kill and murder, against the peace and dignity of the Commonwealth of Pennsylvania. "

The precept to the sheriff began, " Cumberland county ss. I James Hamilton, President of the several Courts of Common Pleas in the ninth district, consisting of & c. and by virtue of my office, of the Court of Oyer and Terminer and general gaol delivery for the trial of capital and other offenders therein, and John Creigh and James Armstrong, esquires, associate judges of the same Court, in the said county of Cumberland, to the sheriff of Cumberland county, greeting: In the name and by the authority of the Commonwealth of Pennsylvania, you are hereby commanded, that you cause to come before the president and associate judges of the same Court in the county of Cumberland, or any two of them, the president being one, on the & c. at & c. in & c. 24 good and lawful men of the body of the county of Cumberland aforesaid, 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, at a Court of Oyer and Terminer and general goal delivery, which number shall not be less than 48, nor more than 60: And also that you make known to all justices & c. of the said county, that they be then and there with their records & c. & c., and that you yourself and your ministers, be then and there in your and their proper persons, to do those things & c., and have you then and there this writ, together with a panel thereunto annexed, containing the christian and surnames and places of abode of those jurors. Given under our hands and seals, at Carlisle, the 7th of December 1812."

The sheriff at the day returned his writ with a panel annexed, containing the names & c. of the jurors, and the townships where they lived, but in no place mentioning the county.

The defendant being found guilty of murder in the first degree, various objections were taken to the indictment and process, by his counsel, which being overruled by the Court below, and sentence of death having been passed, this writ of error was with the consent of the attorney general issued.

Watts and Duncan for the plaintiff in error, took the following exceptions to the record.

1. That the process to summon the grand and petit jurors, was unconstitutional, because it was in the name of the judges, and not of the Commonwealth.

2. That the process was under the private seals of the judges, whereas it should have been under the seal of the Court.

3. That the sheriff was not commanded to have the jury drawn according to law.

4. That the sheriff was not commanded to cause good and lawful men of his bailiwick to be summoned as petit jurors, but merely sober and judicious persons; and it did not appear by the record that they were taken from his bailiwick.

5. That the indictment was absurd, as it charged the offence to consist in throwing with a stone, & c. and did not lay the charge of striking, positively and certainly: and that it was defective, in not concluding against the form of the act of assembly.

Carothers for the Commonwealth.

TILGHMAN C. J.

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 & c. 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 Sampson with the stone, so as aforesaid cast and thrown, does not amount to a positive assertion, because it refers to the casting and throwing as aforesaid, when in fact it had not been said before that he did cast and throw it. The action of White is not as well described as it might have been; but upon the whole it is sufficiently alleged, that he threw the stone and struck Sampson with it. Casting and throwing with a stone, cannot be understood as using a stone for the instrument of throwing; it was the object thrown, and the cast or throw was made upon the right side of the head of Sampson. This to be sure is an awkward kind of expression, and not very good grammar; but in the words which follow it is positively asserted, that White struck the deceased with the stone cast as aforesaid. Taking it altogether then, it sufficiently appears that White threw a stone, with which he struck Sampson, and thus killed him.

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...