
    Pennsylvania v. John Bell.
    
      JOHN BELL was indicted for the murder of James Chalfant, by striking him with a stake on the head.
    The prisoner and the deceased, with several others, were at a busking frolick, at the house of a neighbour, on the day laid in the indictment; and, as usual in such cases, drank freely, Chalfant, who was a joking, and, when he drank, a talkative man, frequently excited laughter at Bell, who was a man of weak mind, by alluding to some previous transaction, the pulling of the cape off Bell’s coat, in helping him on, or, as Bell thought, pulling him off a horse when he was drunk. As often as Chalfant metioned the cape of Bell’s coat, Bell became, as it were, mad with passion, wanted Chalfant to fight with him, provoked him to do so, “or clear him of the law.” Chalfant, who was a great deal stouter than Bell, seemed to have no disposition to fight, but only to make sport; and by his declining to fight, and by the interference of the company, Bell’s passion subsided, and his good humour was restored, till again provoked by Chalfant’s mentioning the cape of his coat.—After supper, while a woman of the company was singing a song, Chalfant said, that was just like Bell’s coat, Bell flew into a passion, came to Chalfant, took him by the hand, said, “Damn you, if you be a man, come out and fight me;” and seemed to draw him up from his seat. As Chalfant rose to go out with Bell, a woman who had been sitting on his knee, said, “You are not going to strike Bell surely.” “No,” said he, “I would not for fifty pounds.” As they came near the door, Bell stepped out hastily before Chalfant, and, as Chalfant bent his head going out of the door, his head and one foot being outside, and one foot yet within, Bell struck him with a stake on his head. Chalfant fell. Bell dropped the stake and run off. They called after him, to come back, he had killed the man , he answered, “No, damn him, he is not dead yet, and if he be, he cleared me of the law; and I will give as much to any man, who takes his part.” Bell was pursued, but he escaped and absconded. He was apprehended some time after. The stake had been taken from a small pen in the yard. Bell some time before he called out Chafante had gone out to make water, and was near the place, whence the stake was taken. But, before and after that, they seemed to be on good terms, and Bell did not become angry again, till Chalfant again mentioned the cape of his coat. The stake was produced at the trial, a stout elm stick, likely to kill. Chalfant's scull was broken, and he died soon after. There was evidence given, that, several months before, in consequence of a former provocation, Bell had said, that he would knock down Chalfant with the first thing he laid his hands upon. But there was also evidence of a reconciliation. At the time the blow was given, an axe and a hoe were lying in the yard.
    
      Bradford, for the Commonwealth,
    read the definitions of murder and of malice, and stated that the testimony amounted to murder.
    
      Brackenridge and Ross, argued for the defendant.
    This is not murder : but, we admit, it is manslaughter. The criterion is whether the killing has proceeded from a heart regardless of social duty, and fatally bent upon mischief. The boundaries between murder and manslaughter are scarce conceivable, and the distinction, according to circumstances, is nice; and judges differ in opinion on the same circumstances. Murder is a deliberate premeditated killing. Manslaughter is a sudden killing, on provocation. There are many cases, in which it has been solemnly determined, that killing on provocation, not greater than the provocation in this case, amounts only to manslaughter. In the case of Stedman, a soldier, who had given the first provocation, and killed a woman, as file fled from him, by slabbing her in the back with his sword, it was held clearly to be no more than manslaughter. In the case of Reason and 
      Franter, for killing a man, by both falling on him, and stabbing him in nine places, while he lay on the ground, begging for mercy and unable to resist them ; it was held and found to be but manslaughter, though the jury was disposed to hang them for the barbarity of the fact. In the case of Taylor, a soldier, for killing a man, by stabbing him with his sword ; though Taylor had previously used words, which signified a disregard of social duty, and a disposition to kill, yet, by reason of the provocation, it was held to be but manslaughter.—While several persons were playing at bowls, two of them fell out, and quarrelled the one with another; and a third man of them, who had not any quarrel, in revenge of his friend, struck the other with a bowl, of which blow he died. This was held but manslaughter, because it happened on a sudden motion, in revenge of his friend. Two boys fighting together, one of them was scratched in the face, and run three quarters of a mile to his father, who went three quarters of a mile to where the other boy was, and killed him with a blow on the head. Yet, though this blow was given with a cudgel, to a boy, by a man, after going three quarters of a mile, and the provocation was not to himself, nor in his presence; on account of the provocation, it was held but manslaughter. If one jostle another, or whip the horse of another, and the other, on this provocation, kill him, it is but manslaughter. If a man, using provoking words to another, receives a blow from this other, and returns it, and is then killed by the other, it is but manslaughter. So if a man, provoked by insulting words, does not attack the insulter, till he has put himself on his guard, and then, in fighting with him, kill him, it is but manslaughter. In the case of One by, there was express malice. Here there is none. You will not presume it, from any thing that happened before. If two men, who have formerly fought on malice, are afterwards reconciled and fight again, on a fresh quarrel, it will not be presumed, that they were moved by the old grudge, unless it appear by the whole circumstances of the fact.
    
      
      4 Comm 194 6 Foster 256.
    
      Foster 255-7.
    
      Foster 292.
    
    
      1Str. 499.
    
      
      5 Burr. 2793.
    
      12 Co. 87.
    
      12 Co. 87.
    1 Hale 455-6.
    
      1 Hale 456.
    
      1 Hawk. 124-5, Foster, 295.
    
    2 Str. 766.
    1 Hawk, 124. 1 Hale 452.
    We admit, that, if Bell had previously prepared this stake or cudgel, to beat Chalfant, as has been suggested, this case would have been murder. But this is not proved, and you will not presume it. When Bell went out, at the time when it is suggested that he took the stake from the fence, he was reconciled to Chalfant. He did not, as, if he had retained malice, and provided, the stake for an evil purpose, he would have done, quarrel with Chalfant, immediately after he came in ; but continued at peace with him, till Chalfant again provoked him. Where was the use of providing a stake, when an axe, a hoe, &c. were lying, at the door ? The stake was not prepared before hand, but suddenly offering itself to him, in the fury of his mind, he seized it, as a weapon, with which to combat against superior strength, and, in rage, not malice, with it killed Chalfant. Even in verdicts, courts will not supply a want of finding by the jury ; much less will juries, by presumption, supply a want of evidence. All your presumptions will be in favour of innocence. If, on special verdicts, when it has been doubted, whether the facts amounted to murder or to manslaughter, courts have given judgment only for manslaughter, much more will juries, when the case appears doubtful, acquit of murder, though, they should be fined for it by judges. In the case of Currie, in this county, the jury acquitted him, contrary to the express opinion of the two judges of the Supreme court who tried him. The reason is, juries judge from their hearts, courts from their heads ; juries from their feelings, the unassisted dictates of nature, courts from an artificial system.
    2 Str. 1015.
    
      Kel. 59-62.
    
    
      Kel. 50. 2 Hale 159.
    We say, then, this is but manslaughter. It is not a deliberate premeditated killing, but a sudden killing on provocation. Provocation by words excuses, unless there be a manifest intention to kill. Provocation by blows excuses, though there be an intention to kill. Words are sometimes a more severe provocation than blows. A man’s feelings are according to the sensibility of his nerves, as well as the impressing force; and if a furor is raised, immaterial from what cause, this furor excuses.
    It is evident, there was a furor, when this weak man so repeatedly offered to match himself in equal conduct against the strength of Chalfant. Yet Chalfant coolly and cruelly persisted in provoking him. When Bell lost all regard for his own life, and was ready, by combating with Chalfant, as it were, to run against a sword ; how can you suppose, that he should regard the life of Chalfant who provoked him. In the fury of his mind, the stake fell in his way, and under an apprehension of an attack from superior force, he seized it, to resist and repel the approaching danger. If (said Mr. Brackenridge)Chalfant himself, on the bed of death, could have looked back on the transaction, conscious of his being the cause he would have excused the prisoner and to have mercy himself with God, he would have called for mercy to Bell. If his spirit were in this jury-box, and I were pleading this cause to that spirit, it would say acquit him.
   President.

Society is instituted for mutual protection. It is true, that taking away the life of a murderer makes no compensation, but its example acts by way of terror, to preserve the lives of others. In all, or almost all nations, blood has been demanded for blood.

The laws must operate by certain rules, not the casual feelings of jurors, and jurors must judge of the facts, according to the certain rules of law. For miserable would be our situation, if our lives depended not on fixed rules, but on the feelings, which might happen to be excited in the jurors who were to try us. If, in the case of one man, compassion pervert the construction of the law, to acquit, in the case of another, resentment may pervert it, to condemn : and whenever guilt may thus escape from punishment; innocence may be no longer a shield. I therefore know no argument less proper or more dangerous, or to which juries ought to listen with greater suspicion and aversion, than that which must derive its force from confounding the authority of a court and a jury, instilling into the one a prejudice against the opinion of the other, and persuading jurors that they are at liberty to apply to facts a rule of their own, different from that which the law applies. The court is the mouth of the law. Whether the facts are so, or so, it lies with you to determine, according as you believe the testimony. Supposing them so or so; whether they amount to murder or manslaughter, is a question of law, for the court to determine. You may find, according as you believe or disbelieve the facts, and comparing the facts with the rules of law, that the prisoner is guilty, or not guilty, or guilty of manslaughter ; or you may find the facts specially, without drawing any conclusion of guilt or innocence ; leaving it to the court, to pronounce the construction which the law puts on the facts found; but you cannot, but at the peril of violation of duty, believing the facts, say that they are not what the law declares them to be: for this would be taking upon you, to make the law, which is, the province of the legislature ; or to construe the law, which is the province of the court.

1 Hawk. 121-2. Foster 256-7. 2 L. Ray 1487.

1 Hawk. 113. 130. 1 Hale 476. Foster 262-3.

2 Hale 60. 157-9. 1 Hawk. 124. Kel. 112. 2 L. Ray 1493-4.

All killing is not murder ; but if there be an unlawful killing, the law will presume it to be murder, unless the killer can shew, that it is not.

Murder is killing with malice. Any formed design of mischief may be called malice. Malice is a deliberate, wicked vindictive temper, regardless of social duty, and bent on mischief. This may be collected from previous circumstances, or circumstances attending the manner or fact of the killing, There may be malice, in its legal sense, when there is no actual intention of any mischief, but the killing is the natural consequence of a careless action, as riding a horse, or driving a Carriage, through a crowd. Manslaughter is a hidden unlawful killing, without the circumstances of malice, cruelty, revenge, &c. involved in the technical word malice.

Madness excuses from punishment of every kind, for any crime whatsoever. Anger, a short madness, when provoked by a reasonable cause, excuses from the punishment of murder.

You will not presume, that a killing existed, unless it be proved. But if a killing has been proved, you must presume, for the law presumes, malice, unless the killer shew, that he did it in a passion reasonably provoked. Whether passion or provocation, the prisoner must prove, they are never presumed, but malice, the Contrary of them is presumed ; and if he prove them not, you will presume malice, not any particular fact, or circumstance of malice, but malice in general. Nor is this presuming against innocence : for the killing being proved, a thing wicked in itself, it becomes necessary for the killer to shew a justification or excuse for it. Man is a free agent ; and if he do an act evil in itself, it will be presumed to arise from an evil intention, till the contrary appear: for a man must be presumed to intend what he accomplishes.

Cases of special verdicts are not applicable to this.— Courts cannot decide facts, and, if juries do not them, courts cannot presume them. But courts will presume malice from facts in the manner of killing: for that is a construction of law.

Halloway's case. Cro Car. 131. Kel. 127.

4 Com Di, 15, 18. 2 L.Ray 1488-96. 2 Str. 766-74. Foster 296, 315. 1 Hale 455. 1 Hawk. 24-5.

Foster 296, 4 Com, Di 15. 1 Hawk, 123.

5 Burr 2796, Foster 96.

1 Hawk. 108.

1 Hale 456.

12 Co. 87.

To exclude the presumption of malice, and, of course, to reduce the killing below the degree of murder, on the ground of passion, there must be both passion and provocation. Passion without provocation, or provocation without passion, is not sufficient. There must not only be both passion and provocation, but the provocation must be sufficient. For it is not to be supposed, that a rational man will, without reasonable provocation, suffer himself to be so far transported by passion, as to take away life ; and it would be difficult to distinguish between a real passion, and a passion affected as a cloak for malice, if the law indulged passion without reasonable provocation,

Deliberate killing, without passion, whatever may have been the provocation, is murder. For, if the killer was cool, and master of his passion, and had the full exercise of his judgment, the principle of responsibility thus remaining, he must suffer the full effect of his conduct.

What is reasonable or sufficient provocation is a fixed question of law, not variable, according to the degree of judgment or irritability of the killer. This, being of a nature not easily, if at all, to, be ascertained, would be too precarious a standard to appeal to. And the law proceeds on the surer ground of established rules.

An attack, though flight, on the person, or a violation of the bed of another, from the high value, which the law sets on these objects, is a sufficient provocation, to extenuate a sudden killing in the heat of passion, and make it no more than manslaughter. It would be so, also, I think, if the personal attack were only menaced, but immediately approaching, and if under the terror, and in defence of that, an homicide were committed: for it has even been said, though this seems laying it down much too loosely, that words of menace of bodily harm would come within the reason of such provocation, as would make the offence but manslaughter. An attack on the person and safety of a friend is a provocation sufficient to extenuate to manslaughter a sudden killing, in the peril and defence of this friend. If a master, provoked by negligence or improper conduct of a servant; or if one man, provoked by contumelious or reproachful words or gestures of another; proceed to chastise the offender, with a weapon, and in a manner proper for chastisement, and not likely to kill; and an accidental killing of the offender ensues; the provocation is sufficient to make this killing but manslaughter. So, if, in such moderate and reasonable chastising, blows are exchanged, or if, on such affront, the parties proceed to combat, on equal terms, and he who gives the first blow kills the other in the encounter, there being no original malice in the killer, it is but manslaughter, But, farther than this, the law does not excuse, for if, on any flight provocation of words or gestures of contumely or insult, the passion of the insulted person shew itself in circumstances of unusual cruelty, transport beyond the just measure of correction, and revenge itself with a weapon, or in a manner, likely to kill, and do kill the person provoking him, it is murder. For it is settled, that no words or gestures, however contumelious, are a sufficient provocation, to extenuate such a killing, and make it only manslaughter. The law has never set to low a value on the life of man, as to say, that words are such a provocation, as, if the offended person strike with a weapon, or in a manner, likely to kill, and do kill, it will be but manslaughter. Such killing has always been held murder. For the law will not suffer, with impunity, a man to become so angry, for mere words or gestures of contumely, as, in his rage, to kill a man.

Foster 295. Kel. 64-5. 1 L. Ray. 144. 1 Haw 124-5 1 Hale 454 6. Kel. 129-30 1

Foster 295. Cro. El. 778. L. Ray. 144. 1 Hale 455. 1 Hawk. 124

4 Com. Di. 15 Com. Rep. 15 Kel. 131. 55. 60, 65.

5 Burr. 2796.

1 Hale 455.

It is a fixed principle, that, if from the weapon, or the manner of striking, an intention to kill may or must be collected, provocation by words only is not sufficient to make the killing but manslaughter: malice, a design of mischief, will be presumed, and the killing will be murder. I consider/this as an established boundary, which the law sets to human passion; and 1 hold it dangerous to remove it. There would be no freedom of censure or irony, if you must, at the peril of your life, first: measure the degree of another’s patience. The law then says, while you touch not the person of another, death shall avenge the taking away of your life. When you assault the person of. another, you shall risk your own. Abstain from violence; and the law guards you.

Kel. 131. —132.

12 Co. 87.

Cro. Ja.296.

Foster 292.

1 Str. 499.

Foster 292-4.

5 Burr. 2795.

If you employ violence, you must hazard its being, employed against you, I consider this as proper to preserve peace; and safety, and to put the weak in a state of defence and equality, with the strong.

Such is the law and consistent with these principles are all the cases.

There is a case, which, at first fight, might seem to contradict this. Williams, a Welchman, on St. David’s day, having a leek in his hat, a certain person pointed to a Jack of Lent, that hung up hard by; and said to him, look on, your countryman; at which Williams was much enraged, and took a hammer, that lay on a stall hard by, and flung at him, but missing him, it hit another, and killed him. It was held, that he was guilty of manslaughter. But lord Holt observes, when he cites this case in Mawgridge’s case, that the indictment being only for manslaughter, he could not, on it, be found guilty of murder: “ but,” adds he, “ if the indictment; had been for murder, I do think, that the Welchman ought, to have been convicted thereof; for the provocation did not amount to that degree, to excite him designedly to destroy the person who gave it to him.”

In the case of the killing at the bowls, it was while the deceased was fighting with the friend of the killer : his friend was attacked and in danger. In Rowley’s case, the killing is expressly said, by Crake, to have been occasioned by a small cudgel ; and thus, though death accidentally ensued, the chastisement may not have exceeded the natural measure, from the angry father of a bleeding son. In Stedman’s case, the woman had struck the soldier, in the face, with a patten, and drew a good deal of blood. This was held to be sufficient provocation. In Reason and Franter’s case, there was ground to believe, that there was an attempt to rescue. The deceased had brought down his pistols, and gave the first blow, accompanied with menaces to the officers. A pistol was heard to go off; both his pistols were discharged in the affray ; and his sword was found drawn and broken. Reason and Franter were both wounded, and one of them with a pistol (hot. In the case of Taylor, he was provoked by opprobrious words. The first blow which he gave, on this provocation, was with a small rattan cane, not bigger than a man’s little finger. And it was not, till after he had been collared, thrown down against a settle, shoved out of the room, and violently pushed out of the door, that he gave the wound with the sword. In Mawgridge's case, and in Oneby's case, the words of provocation came first from the persons killing, the first blows were given by them, and that being done in a manner that shewed malice, the killing, though after they had received wounds from the persons whom they attacked, was held to be murder.

Kel. 119. L. Ray. 1485. Str. 766.

1 Hawk. 124.

1 Hale 452. Cro. Ja. 295.

In the case before us, two things are well conceded ; —1. That the killing of Chalfant by Bells, at the least, manslaughter; — 2. That, if the cudgel or stake was previously prepared, it is murder. It is not doubted the killing was by the prisoner, and with the cudgel or stake, which has been produced before you. Nor is it denied, that if it were possible to presume, that the killing was on the old grudge, it would be murder.— But it is said this cannot be presumed.

Though the court will not presume this, unless the jury find it ; yet, if the circumstances of the case, lead strongly enough to this presumption, the jury may find so. The circumstances of this case do not seem to lead strongly to this presumption. I also think the proof of previously preparing the stake is very light. You will however weigh those things, taking into view also the facility with which he could have seized the other weapons, the axe, &c. and the manner and purpose of applying either.

But I put it on this point. No provocation, but words, has been proved. And the law does not consider words as such a provocation, as can excite a passion, in which, if a man strike another, with a weapon likely to kill, and thereby kill, the offence will be extenuated ; to manslaughter. When the provocation is only by words, such killing, notwithstanding the passion, is murder. This appears to have been such a killing. The stroke was given with a weapon likely to kill, insidiously, before the deceased was on his guard; and the killing is murder.

The jury found him guilty of murder.

Art. v. § 5.

Foster 1, 7.

2 Hawk. 359.

On Saturday, 28th December, 1793, Brackenridge and Ross, moved in arrest of judgment, on the following grounds :—

The present constitution, of this state, for the first time, gave authority in capital offences, to the judges of the county courts, the president being one. The constitution is in the nature of a commission, and rendering the presence of the president necessary, it ought to be shewn, that he was present. The caption of this indictment does not set forth this. Its caption is only, “ at a court of Oyer and Terminer and Gaol Delivery, for the county of Washington,” does not say before whom, nor that the president was one. It does not say, that the town of Washington is in the county of Washington. The court is not to go on their own knowledge. The record itself must shew to all posterity, and when memory is gone, that this proceeding was regular. In the case of the special commission, for the trial of the persons concerned in the rebellion of 1745, the proceedings were very minutely attended to, and the defects pointed out in this, did not exist in the indictments before that court.

The caption of an indictment must set out the court, the jurors, &c. that the authority may appear.

This indictment concludes “against the act of Assembly.” There is no act of assembly against murder.

The offence is not laid with sufficient certainty and consistency. It is stated, that of this mortal wound Chalfant, from the said 14th day of November did languish, and languishing did live, and on which said 14th day of November, of the said mortal wound, died.

These objections may be thought nice, and they touch not the merits. But the prisoner’s life is at stake. And, in such case, the nicest objections will have weight.

Bradford, for the state. Suppose the president and other judges had been named, still strangers and posterity could not know, that these were commissioned, or that the governor, who commissioned them, was governor. The absurdity is glaring. Could I know, beforehand, what associate judges would attend? The constitution declares, that there cannot be a court of Oyer and Terminer without the president. The caption of this indictment is, at a court of Oyer and Terminer. Therefore the president must have been present.

Foster 1-7,

The indictment concludes also “ against the peace and dignity of the commonwealth of Pennsylvania.—

The words against the form of the act of assembly may be rejected as surplusage.

The court adjourned to 6th January, 1794, when their opinion was delivered.

President. John Bell having been committed to the gaol of this county, on a charge of killing James Chalfant, a precept was issued on 21st November, 1793, by me, as president of the court of Common Pleas this county, and James Edgar, and Matthew Ritchie, judges of the said court, and justices, the president being one, of Oyer and Terminer and Gaol Delivery, within this county, directing the sheriff, to have the prisoners in the said gaol, and a competent grand jury, and traverse jury, of the said county, for their trial before us; or any two of us, the president being one, at the court house in the town of Washington on the 23d day of December then next following.

On the 23d December, the above named president and judges, and the two other Judges, met at the court house, and a court of Oyer and Terminer and Gaol Delivery for the county of Washington was held. The sheriff returned the above precept, with a pannel of twenty-four grand jurors, as he had been directed. Of these seventeen appeared, and (Isaac Leet being foreman) were sworn as the grand jury for those courts.

To this grand jury a bill was sent up in the following words :

"Washington County, ss.} At a court of Oyer and Terminer and general Goal Delivery for the county of Washington, held, in the town oft Washington, on the twenty-third day of December, in the year of our Lord, one thousand seven hundred and ninety-three. The grand inquest now is for the body of the county of Washington, upon their solemn oath and affirmation, respectively, To present, that John Bell late of the county of Washington, yeoman, not having the fear of God before his eyes, but being moved and seduced by the instigation of the Devil, on the fourteenth day of November, in the year of our Lord, one thousand seven hundred and ninety-three, with force and arms, at the county of Washington aforesaid, in and upon one James Chalfant, in the peace of God, and the commonwealth of Pennsylvania, then and there being, feloniously, wilfully, and of his malice aforethought, did make an assault; and that the said John Bell with a wooden stake, in length four feet, and in thickness three inches in diameter, which he the said John Bell in both hands then and there had and held, the said James Chalfant then and there feloniously, wilfully, and of his malice aforethought, did strike, giving to the said James Chalfant then and there, with the stake aforesaid, in and upon the left side of the head of the said James Chalfant, one mortal would of the breadth of three inches, and the depth, of two inches, of which mortal wound aforesaid the said James Chalfant from the said fourteenth day of November, in the year aforesaid, at the county aforesaid, did languish, and languishing did live, on which said. fourteenth day of November, in the year aforesaid, the said James Chalfant, at the county of Washington aforesaid, of the said mortal wound died. And so the jurors aforesaid, upon their oath aforesaid, do say, that the said John Bell, in the manner and form aforesaid, feloniously, wilfully, and of his malice aforethought, did kill and murder the said James Chalfant against the act of assembly in such case made and provided, and against the peace and dignity of the commonwealth of Pennsylvania, &c. — Jared Ingersoll, attorney general.”

2 Hard. 359, &c. Foster, 1, &c. Const. v. 5.

This bill the grand jury indorsed, “ A true bill,” with the name of the foreman subscribed to the indorsement; and to returned it.

Being arraigned on this indictment, John Bell, pleaded, that he was not guilty. The attorney for the states joined issue. The issue was tried, in the same court by a traverse jury duly returned by the sheriff, on the above precept: and this traverse jury found, that John Bell is guilty, in manner and form, as he was indicted.

Being demanded, at the same court, what he had to say, why judgment should not be passed on the finding of the jury, his counsel urged, in arrest of judgment, the following objections to the indictment.

That the caption of this indictment is defective and erroneous, not stating the judges before whom it was taken, for that the president was one, nor that the town of Washington, in which the court was held, is within the county of Washington for which the court was held, and the jury summoned.

That the body of this indictment is uncertain, repugnant, and void, alledging the assault and the stroke, on the 14th day of November, and stating, that, from the said 14th day of November, Chalfant languished and lived, and that on the said 14th day of November he died. If he languished and lived from the 4th day of November, he just have been alive after that day, and yet the indictment states him to have died on it. This is considered as a repugnancy which makes if erroneous.

That the conclusion of this indictment is also erroneous, stating the murder to be against the act of assembly in such case made and provided, when there is no act of assembly against murder.

For these reasons, the counsel for John Bell have moved, that judgment on this indictment and verdict be arrested ; and this, it is said, will occasion no failure of justice, as he may again be tried on another and sufficient indictment.

In discussing these reasons, I shall invert the order of them, and beginning with the last, proceed backwards to the first, on which the chief stress seemed to be laid.

But let me premise, that, although courts have usually, in all capital cases, given way to very nice objections, it appears to me, that this inclination ought rather to be restrained than extended. I cannot but believe, that yielding to frivolous or formal objections, no way affecting the innocence or defence of an accused person, seems better calculated to reduce the law to a game of address, than to promote justice. And I am led to wish, that all exceptions to the form of the previous proceedings should be made before a trial of the merits, and that a defence on the merits should be considered as an admission of previous regularity, against which no objections should be afterwards received.

Two great men, at the difference of a century from each other, seem to have felt the same impressions ; and if they were not led to the same conclusion, which I have stated, they have, at least, expressed themselves in stronger terms.

2 Hale P. C. 193.

4 Burr. 2082.

Lord Hale, whose disposition of tempering justice with mercy will not be disputed, thus delivers his opinion. "In favour of life, great strictnesses have been, in all times, required, in points of indictments ; and the truth is, that it is grown to be a blemish and inconvenience in the law, and the administration thereof. More offenders escape, by the over-easy ear given to exceptions in indictments, than by their own innocence; and, many times, gross murders, burglaries, robberies, and other heinous and crying offences, escape by these unseemly niceties, to the reproach of the law, to the shame of government, and to the dishonour of God. And it were very fit, that, by some law, this overgrown curiosity and nicety were reformed, which is now become the disease of the law, and will, I fear, in time grow mortal, without some timely remedy.”

Lord Mansfield, from whose notice few corruptions escaped, expresses, more obliquely, similar sentiments, and points out their true limits. "Tenderness ought always to prevail, in criminal cases, so far at least, as to take care, that a man may not suffer otherwise than by due course of law, nor have any hardship done him, or severity exercised upon him, where the construction may admit of a reasonable doubt or difficulty. But tenderness does not require such a construction of words (perhaps not absolutely clear and express) as would tend to render the law nugatory and ineffectual, and destroy or evade the very end and intention of it: nor does it require of us, that we should give into such nice and strained critical objections, as are contrary to the true meaning and spirit of it.”

These sentiments appear rational and solid, and seem to lead strongly to the conclusion, which I have stated. But whatever my opinion or inclination may be, as to the state to which the law ought to be brought, if there be in it any fixed principle, which will render all, or any of these objections fatal to this indictment, it must fall: for, surely, a man’s life ought not to depend on unpublished, or unwarranted opinions, but on settled and acknowledged rules.

With these impressions, I proceed to examine the preceding reasons in arrest of judgment.

1. It is urged, that the conclusion of this indictment, alledging the offence to be against the act of assembly in such case made and provided, when there is no act of assembly prohibiting it, is erroneous, and vitiates the whole.

Co.Lit.303 b.

2 Hawk.356. 2 L. Ray. 1104, 1163. Salk 376. Doug. 441-5. 1 T.Rep.121. 1 Ventr. 103, Salk 212.

2 Hawk. 325. Cro. El. 196.

2 Hawk.263.

How these words came to be introduced into this indictment, I do not know: I fee no use for them, But what harm they can do, more than any other superfluous words, I am equally at a lots to explain. Strike them out, and the conclusion of this indictment is good. If it be good without them, they are within the rule, that surplusage words do not vitiate,

So would I say, on principle, were there no precedents to warrant me. But, however it may have been doubted, or doubtfully spoken of, I think it settled, that an indictment for an offence at common law is not vitiated by a conclusion against the form of the statute; for, if an offence at common law is prohibited by statute, this takes not away the indicment at common law. The statute is cumulative; and if an indictment for such offence conclude against the statute, though the offence be not made out against the statute, judgment may be given at common law. Is there any reason, why the rule should not be the same, when there is no statute against the offence, as when there is no offence against the statute? Murder is an offence at common law, and rejecting the words "against the form of the act of assembly, in such case made and provided," the conclusion of this indictment, as an indictment at common law, is right.

2. The second objection to this indictment is, that it alledges the offence uncertainly and repugnantly, and is therefore erroneous : for, in legal terms, it says, that James Chalfant was alive, after the 14th day of November, and says also, that he died on the same 14th day of November.

Both these allegations cannot be true. And it is laid down as a rule, that, where one material part of an indictment is repugnant to another, the whole is void; for the law will not admit such nonsense and absurdities in legal proceedings, which, is suffered, would soon introduce barbarism and confusion.

Now, in an indictment for murder, it is material to alledge both the day of the stroke, and the day of the death; that it may appear that the death was within the year and day after the stroke; for, beyond that time, the law presumes not the stroke to be the cause of the death. The allegation of both being therefore necessary, if either be alledged on an impossible day, as the 31st of June, or if the murder be alledged to have been on a day different from the day on which the death is alledged to have been, though on the day on which the stroke was given, as if the jury find the stroke given on the 1st, and the death on the 10th of June, and so conclude that he murdered him on the 1st of June, when it appears from the indictment, that he was alive : this is repugnant and void : for though the stroke in fact killed him, yet, till the death, it was but a trespass, and is not to be made a felony by relation.

1 Bolstr. 203. Hughes abr. 1084, 1094 Cro. El. 738, 739, 196. 4 Co. 41-2.

3 Burr. 1434. 2 T.Rep, 116-8.

Co. Lit. 46.b 1 Wils. 176. 2 Wils. 168. Cowp. 714.

Whether this indictment lays the death on a day, on and after which Chalfant is shewn by the same indictment, to have been alive, and whether, therefore, the indictment be repugnant and void, depends on the construction to be put on the words “from the said 14th day of November languishing did live,” and on their importance in this indictment. In fiction of law, there are no parts a day, yet in fact is otherwise, and, wherever it is material or proper, may be averred. Thus it might have been stated here, that the stroke was given at one of the clock, on the 14th day of November, and that of that stroke Chalfant languished, and languishing did live, till six of the clock on the same day, and, at six of the clock on the same day, he died of it.

Before it can be admitted, that this indictment shews, that Chalfant was alive after the 14th day of November, it must be established, that from the day of the stroke, is exclusive of the day of the stroke ; or, in other words, must mean sometime after it. If this be its necessary meaning, and the averment, that, after the stroke, he lived languishing, be a material part of the indictment, the principles already laid down must destroy it.

But, though from the day may be properly or usually, and was long considered as certainly equivalent to immediately after, it seems now, according to the subject, to admit of a different construction, and sometimes to include, sometimes to exclude the day mentioned.

These words express their meaning very awkwardly, but still not doubtfully. The whole taken together is, that Chalfant lived sometime after the stroke, but died on the day on which it was given.

1 Hawk. 119. 1 Hale 428. Rew's case. Kel. 26.

Cro. El. 108. 5 Co. 122.

But are they a material part of this indictment ? I think not; and I think them as useless as they are awkward. It is material to aver, that the stroke was given on a certain day; it is material to aver, that, on a certain day, the person stricken died of this stroke; but what passed between the stroke and the death, it is not material to aver: The averment of the stroke, of the death, and of the time of each, shewing the death to be within the year and day after the stroke, with the averment that the stroke occasioned the death, completely ascertains the homicide, and whether the death was instant, or the party lived, languishing or otherwise, after the stroke, is no material part of the indictment; a repugnancy in it will not vitiate an indictment otherwise good; and it may be struck out, without, in the least, altering the nature of the accusation.

If it be struck out, the indictment will state, "that John Bell, on the 14th day of November, 1793, with force and arms, at the county of Washington, in and upon James Chalfant, seloniously, wilfully, and of his malice aforethought, did make an assault, and with a wooden stake, which he then held in his hands, did, seloniously, wilfully, and of his malice aforethought, strike the said James Chalfant; giving to the said James Chalfant, then and there, with the stake aforesaid, in and upon the left side of the head of the said James Chalfant, one mortal wound of the breadth of three inches, and the depth of two inches, on which said 14th day of November, in the year aforesaid, the said James Chalfant, at the county of Washington aforesaid, of the said mortal wound died.”

This is a sufficient allegation of murder; and, though not so elegant, is as precise and intelligible, as any sentence of a Robertson, a Gibbon, or a Junius: and an indictment will no more be quashed, for inelegant English, than for false Latin.

On these grounds, therefore, I am not at liberty to say, that judgment on this verdict shall be arrested; and I proceed to examine the only remaining reason urged, and chiefly relied on; for this purpose.

3. It is objected to the caption of this indictment, that it states not the judges, before whom it was taken, and to it appears not, that they had authority; for, without the president, no court for the trial of murder could be held, by the other judges of the court of Common Pleas; and that it states not that the town of Washington is in the county of Washington, for which the court was held, and in which the offence was committed.

2 Hale 185-6. 3 Bac. 105-7.

To this it has been answered, that this is requiring too much; for it could not be previously known, what judges would attend, and it might be farther required, to prove that they were judges, and that the governor who commissioned them, was the governor. It has been farther and better answered, that the caption states the indictment to have been taken, at a court of Oyer and Terminer and Gaol Delivery, for the county of Washington, held in the town of Washington, and it must be presumed, from the provision of the constitution, to have been held before the president and a competent number of judges, of the court of Common Pleas of that county, or before some other judges, forming a competent court of that description, and to have been held within the county, for which it was held.

Many averments are necessary or proper in an indictment for murder, which yet need not be proved with precision. The time of the stroke, and of the death, the weapon used, and how, and in what part of the body, the stroke was given, and the dimensions of the wound, are all necessary or proper to be averred; but if it come out in proof, that the time of the stroke, and of the death, was different, or that the stroke was with another weapon, or in another manner, or on another part of the body, or that the wound was of other dimensions; the nature of the offence is not thereby materially altered, a sufficient charge of murder is made in the indictment, and if sufficient, though in circumstances different, evidence of murder be given at the trial, the murderer will be convicted by the jury, and judgment, on this conviction, will be given by the court.

If the judges must be named in the caption of an indictment, and, in order to name them there, it were necessary to know them before the court, there are two plain rules, without any aid from divination, for naming them safely. Those may be named, who signed the precept, or all in commission may be named. And if the president and any one other who signed the precept attend, it is sufficient. It is not proof, but averment, that is looked for in an indictment. The proof comes afterwards. If indeed it appear, on examination, that he, who is stated as president, is not president, as having no commission, or a commission from one who was not governor. The whole proceeding is void.

2 Hale 167.

Rex v Brown L. Ray 592 Salk. 376.

2 Hawk. 358-61. Cro. El. 738. 1 Mod. 24. Yelv. 46.

2 Hawk 361. 2 Hale 167. Cro. El. 654. vid. Cro. Jan. 41.

2 Hawk 362. Cro. El. 137. 606. Cro. Ja. 276. 2 Hale 166.

Const. Penn. v. 4.

But to meet the objections directly. It cannot be denied, doubted, or dissembled, that indictments have been quashed in England, for reasons, at least, as light, as those urged against this indictment. An indictment was quashed, because the grand jury called it an indictment, before it was found a true bill.

It is laid down as a general rule, that every caption of an indictment is erroneous, which sets not forth, with proper certainty, the court, in which, the jurors, by whom, and the time and place, at which, the indictment was found. The caption of an indictment taken at the sessions must mention before what justices it was taken, and set forth the nature of their commission, or it is erroneous, and will be quashed; as not sufficiently shewing a competent jurisdiction.

Indictments have been quashed for not naming the jurors, who found them, or stating that they were twelve in number, or of the county, or precinct, or that they were honest and lawful men, or that they enquired upon oath.

Indictments have been quashed, because the caption set forth no place where taken, or shewed not with sufficient certainty, that the place set forth is within the jurisdiction of the court, as at a sessions of the peace holden for such a county at B. without shewing in what county B. is, otherwise than by putting the county in the margin.

If this indictment must be examined on these principles, it cannot stand.

But against these principles, it may be stated, that this indictment appears from the caption to be taken at a court of Oyer and Terminer, and general Gaol Delivery, and it may be asked whether this, by implication, does not sufficiently state, that it is taken at a court having authority to take and try indictments for murder. Where the caption of an indictment is at a general session of the peace, it is not necessary to stile any of the justices of the quorum, for that is sufficiently shewn, by shewing that the sessions was a general sessions, which could not be held without some of the quorum. A fortiori, shall this be presumed in a court of Oyer and Terminer, &c. a court of higher nature than the sessions of the peace, and scanned by rules less nice.

2 Hawk. 360 3 Mod. 152. 2 Hale 167.

Rex v. Boyce 4 Burr. 2073-84-6.

3 Com. Dig. 534.

4 Com. Dig. 59.

1 L.Ray. 710-1.

Yelv. 46. Cro. El. 489. Cro. Jan. 184. 2 Com. Dig. 610.

On an indictment tried at a court of Oyer and Terminer, &c. and removed into the King’s Bench, objections, not unlike the present, were there taken and over-ruled; and sentence of death was passed on the defendant. On the authority of this case, the editor of the new edition of Comyns' Digest, states, that it is not necessary, that the record should set forth the comission of gaol delivery, or mention the judges’ name, or say he was if the quorum. If it say the king’s justices, if is enough.

I shall not here enquire into the authority of justices of the peace in quarter sessions, to take indictments. This case is at a court of Oyer and Terminer, &c. and, besides, my opinion is formed upon other principles.

In all cases of indictments, quashed for reasons such as I have stated, and such as are urged against this indictment, they have, so far as I have been able to discover, been indictments removed out of an inferior court into the King’s Bench. The judges of the court of King’s Bench could know nothing more of the proceedings, than what they could discover on the face of the record sent up, and if, there, they cannot find, or necessarily presume competent jurisdiction and regularity, they have nothing else to which they may resort for further information; and, competent jurisdiction and regularity failing to appear, the indictment must be quashed. And, in the court of King’s Bench, it seems to be a principle, by which they are governed in their examination of the proceedings of inferior Courts, that, if such proceedings, in setting forth the stile of the inferior court, do not shew their authority, whether by charter, or prescription, and do not shew the names of the judges of such court, they are erroneous: for all jurisdiction rests in the crown, and, therefore, the king’s court ought to be informed how the authority is derived ; and, without all express statement of the names and authority of the judges in the inferior court, the king’s court cannot recognize them.

2 Hawk. 58-9. 359-60. 2 Hale 43-4, 166. Rex v. Carter. 1 Str. 442.

2 Hawk. 58-9.

There is another principle, which seems to have governed decisions in the court of King’s Bench, on indictments taken at sessions of the peace. They have considered the authority of justices of the peace as of two kinds; that, by one, they acted as mere conservators of the peace; by the other, they were empowered to hear and determine offences: the first made them guardians, the last made them judges; but their name justices did not imply both; and, therefore indictments taken before them as justices, without the addition of their authority of trying as judges, were holden to be bad. This will not be wondered at, when writs of certiorari, to remove indictments taken before them as justices, have been holden to be bad.

These principles seem to furnish an explanation of all doubts respecting this indictment. The indictments, which were quashed in the King’s Bench in England, were quashed, not because they were not properly taken, but because that court could not see, that they were properly taken. Their principles prevented them from looking beyond the paper sent up to them, and it did not shew all the truth.

But do we stand in this situation ? I am called on to doubt whether I was present at a court, at which I know, that I was present. The other judges are called on to doubt, whether any of them were present at a court, at which each of them knows, that all were present; and both they and I are called on to doubt, whether this court house, where we now sit, be within the county of Washington. To the common understanding of mankind, such doubts must appear very chimerical and absurd.

But, to rest on the record only, and not look beyond it, but proceed technically; must we not take the whole of the record together? Or must or can we, when objections are made to a part, wink so hard, as not to see, or absolutely shut our eyes to the rest, which would clearly explain, and fully answer these objections? It is impossible, that we should be compelled to look only to see errors, and shut our eyes against the cure of those errors, when both error and cure appear on the whole of the proceedings. In examining this indictment, therefore, we must, together with the indictment, take into view, the precept issued for holding this court, the return of jurors made by the sheriff to this court, The minutes taken, by the clerk, of the sessions and proceedings of this court, the names of the grand jury sworn to present, and the traverse jury sworn to try, this bill of indictment. These general records are part of each particular record, and will be annexed to each, as occasion requires. Annexing them, therefore, to the record of this indictment, it will appear, that it was taken at a court of Oyer and Terminer and general Gaol Delivery, held by Alexander Addison, president, and his associates, justices, assigned to hear and determine all offences within this county, and deliver the gaol of this county of all prisoners; that it was found on the presentment of Isaac Leet foreman, and sixteen other grand jurors particularly named, duly returned and sworn for that purpose. The only thing wanting, to answer all the objections, is that it does not appear, on the mere records, that the court house in the town of Washington is within the county of Washington. I think this, from all circumstances, sufficiently implied, and I think the clerk sufficiently warranted, nay I think it his duty, in making out this record to a superior court, to insert, not only the names of the judges and jurors, but to annex to the name of the place, that it is in the county of Washington. His records are for this county only; and all the proceedings which he records are in this county. Here then are full materials for making out an unexceptionable record to a superior court. If, from these materials, a formal record were returned to a superior court, that court would confirm it. And if the superior court would confirm a formal return of the materials before us, we must confirm the proceedings, on sufficient materials, without form; and, as we yet fit in the same court, and the record is yet in our breast, we may even supply some materials, which may seem wanting. We may surely add, if we think it necessary, the name of any or each of the attending judges, and the name of the county, in which this court house and town is. Such a supplement, to the materials before us, would leave no objections to the proceed ings on this indictment, but to the formal disposition of them; and that, to us, is no objection. When we are required by a superior court, we will put them in form. The materials, without form, are sufficient for us.

Long's case, Cro El. 490. 5 Co. 120.

2 Hawk. 348. 2 Hale 165.

Thorney's case Cro. Ja. 276.

2 Hawks. 348. 2 Hale 168.

It only now remains to examine whether these opinions be consistent with established rules; for, if they be, they are decisive of the present question.

It is true, that the statutes of jeofails extend not to criminal proceedings; but it is also true, that, before those statutes, there were amendments at common law, and that the amendments at common law were applicable to criminal, as well as civil, proceedings.

It is true, that the court cannot amend the body of an indictment; for it is the finding of the grand jury — But it is also true, that the caption of an indictment is no part of the indictment, or finding of the jury, and no part of the description of the offence. What then is the caption of an indictment, as described in those books, on whose authority the exceptions are founded? It is left as a thing of course, to be drawn up by the clerk of the court, when occasion shall require. It is the style or preamble, or return that is made from an inferior court to a superior, from which a certiorari issues to remove, or when the whole record is made up in form: for whereas the record of the indictment, as it stands on the file, in the court wherein it is taken, is only thus,—“ The jurors of our Lord the King, upon their oaths, do present,” when this comes to be returned upon a certiorari, it is more full and explicit, viz.—“ Norfolk, at a general session of the peace, held at S, in the county aforesaid, &c. before A. B. &c. by the oath of E. F. G. &c. honest and lawful men, &c.”

An indictment taken before justices of the peace, and removed into the court of King’s Bench, was objected to, because it did not appear, that the place, where it was taken, was within the division for which the justices were appointed. The clerk of the peace was commanded, to bring in the record itself, to be viewed, and if, on a view of the record, a mistake appeared in the certificate of the caption, they would cause it to be amended. The caption of an indictment from any place, being left as a thing of course to be drawn up by the clerk of the court, when occasion shall require, may, on motion, be amended by him, so as to make it agree with the original record, at any time, during the term, in which it came in, but not in a subsequent term; but in a subsequent term, the clerk, who returned it, shall be fined, for his informal return. A presentment was quashed, because it did not state, before whom the sessions were holden; and justice Twisden said, the clerk of the peace ought to be fined, for returning such a presentment. An indictment for a riot was removed into the court of King’s Bench, and, on not guilty pleaded, was tried at the Assizes. On verdict for the king, among many exceptions taken and over-ruled, the one relied on was, that, in the caption of the indictment, it was not said of the jurors, that they were sworn and charged. To this the counsel replied, there is a great difference between a record made for Nisi Prius, which is always made briefly, and an indictment removed, With intent to be quashed. The words “ on oath, supply the omission of “ sworn and charged.”— The whole court held it good.

Rex v. Vaws 1 Mod. 24.

Rex v. Morgan, 1 L. Ray 710.

.From this statement I conclude, that the caption of an indictment is to be considered not so much as an original, as a formal transcript of other materials, in the records, or, during the term, in the breast of the court, and, when occasion requires, made up in form, by the clerk, from the materials necessarily before him. If, therefore, there be any defect in the caption of this indictment, we have sufficient materials to amend it; and, if so, we cannot yield to the objection, and cannot, for any of the reasons urged, arrest judgment on this indictment.

Sentence of death was passed on the prisoner. He afterwards broke jail, and escaped, but was retaken. However, the governor pardoned him. And, I believe, he left this country.  