
    *Levi Gibson v. The Commonwealth. Second Case.
    Harder — Indictment—Allegations—“Did Strike,” — In an Indictment for murder, the word “did strike,” (percnssit) is not technical, but when the blow is made with a dirk, the words stab, stick, and thrust, are eauivalent thereto.
    Same— Same — Same-flode of Killing. — Where there is a positive averment of the stab. &c. with a dirk, it sufficiently appears that the mortal wound was given thereby, under the words, “giving one mortal wound, &c.”
    Criminal Law — Defective Verdict — Discharge of Jury— New Indictment. — A discharge of a j ury, after they have rendered a verdict against a prisoner, but which verdict is adjudged to be a nullity because it was not duly. perfected, and therefore set aside as insufficient, is no bar to a prosecution under the same, or a new Indictment.
    Evidence — Copy of Judgment of General Court — Attestation. — A copy of a judgment of the General Court (upon an adjourned question) attested by the Clerk, his attestation being proved, is sufficient and competent evidence before the Circuit Court to prove what it purports to be.
    Errors of Clerk — Right of Court to Correct — The court has an undoubted right to correct any error made by the Clerk in the orders of the preceding day.
    Juries — Formation of. — If a jury cannot be formed from the original panel, nor from the bystanders, in consequence of the prisoner’s challenges, the Court may award a venire facias commanding the Sheriff to summon a specified number to attend the Court then in session; and upon the return of the process the prisoner may be compelled to elect a jury, saving his right of challenge. Such process may be awarded on the report of the Sheriff that there are no other by-standers, nor will the Court at a subsequent time hear proof that there were other qualified by-standers who had not been called.
    Murder — Evidence—Dying Declarations. — In a case of murder, declarations of the deceased when made in extremis, (he being conscious of his situation,) are admissible evidence, although the witness who deposed to the declarations was rather of opinion that the deceased thought he would recover, other witnesses having deposed that he was conscious he could not
    Judicial Day — How Far It. Extends. — Quaere, how far does the Judicial day extend? To twelve o’clock at night, or to the dawn of the next morning?
    
      
      Murder — Indictment — Allegations. — See mono-graphic note on “Homicide” appended to Souther v. Com., 7 Gratt. 673; monographic note on “Indictments, Informations and Presentments” appended to Boyle v. Com., 14 Gratt. 674.
    
    
      
      Criminal Law — Defective Verdict — Discharge of Jury —New Indictment. — The proposition of the principal case, that the discharge of a jury after they have rendered a verdict against a prisoner, but which verdict is adjudged to be a nullity, because it-was not duly perfected, and therefore set aside as insufficient, is no bar to a prosecution under the same or a new indictment, was reaffirmed in Stuart v. Com., 28 Gratt. 967. See principal case also cited in Randall v. Com., 24 Gratt. 647.
      See further, ,monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
      Bvldence — Record of Proceedings of Another Court in State — Authentication.—See Wynn v. Harman, 5 Gratt. 165, citing principal case.
    
    
      
       Juries — Formation of. — See principal case approved in Clawson v. U. S., 5 Sup. Ct. Rep. 954. See monographic note on “Juries” appended to Chahoon v. Com., 20 Gratt. 733.
    
    
      
       Evidence — Dying Declarations. — See monographic note on “Dying Declarations” appended to Jackson v. Com., 19 Gratt. 656.
      The principal case was also cited in Com. v. Adcock, 8 Gratt. 692; Jones v. Com., 20 Gratt. 855; Battrell v. Ohio River R. Co., 34 W. Va. 235, 12 S. E. Rep. 700.
    
   This was an application for a Writ of Error to a judgment against the petitioner, rendered by the Superior Court of Buckingham. After the decision of the General Court, (see ante, p. 70,) the prisoner was again indicted of the murder of his brother, Francis Gibson. The Indictment avoided the error pointed out by the General Court. The prisoner, in addition to the plea of Not Guilty, pleaded three several special pleas. 1. The first special plea set forth the proceedings heretofore had against him by the Examining Court, his being remanded for the trial of the said murder to the Superior Court, the Indictment (in hasc verba) then found against him, his arraignment, plea, and the impanelling of the jury, who were sworn to try the issue, and then avers that, “three days before the adjournment of the Court, the said jury was by the said Court discharged from rendering any verdict on the said issue, all of which *the said Levi is ready to prove by the Record it also avers that the said discharge was not by consent of the prisoner, and that the prisoner had not done or procured any thing to be done, so as to make it lawful to discharge the jury, and that the prisoner was not of unsound mind, nor was there any cause to make it lawful to discharge them. It then avers the identity of the accused, of the deceased, of the murder and felony, and concludes that, “ wherefore, since the said Levi hath heretofore already been lawfully tried, and put in jeopardy for the said murder and felony now charged on him the said Levi in the said Indictment, he prays the judgment of the said Court here, if the said Levi should be again charged and tried with the said murder and felony, of which he hath once already at another time been put in jeopardy aforesaid.”

The replication to this first plea denied that the prisoner had been already heretofore lawfully tried and put in jeopardy for the said murder and felony now charged, because the General Court had decided that the verdict rendered in Court on the former trial, was a nullity, in consequence of one of the jurors having retired before it was written and received, and that no judgment could be rendered thereon, and because the said General Court had set aside the said verdict: and for further replication denied that the said jury was discharged by the Court from rendering any verdict.

To the first part of the said replication, the prisoner rejoined that there is no Record of the General Court, whereby the said pretended verdict is set aside: and the Attorney for the Commonwealth filed his sur-rejoinder, by which he 'affirmed there was such Record, and set it forth in hasc verba. To the second part of the said replication, the prisoner demurred, and the Attorney joined in the demurrer. 2. The second plea is precisely the same with the first, except in the averment of the identity of the of-fences, in which it is said that, “ the said murder and felony charged upon him the said Levi Gibson, in the said Indictment on which the said jury was sworn as aforesaid, and discharged, and the man-slaughter which the said Levi is now required to answer on the said Indictment, are one and the same, and not different acts ; wherefore, since the said Levi Gibson hath already been heretofore tried and put in jeopardy for said manslaughter now charged upon him, he prays the judgment, &c.”

*The replication to this second plea averred, that the said prisoner had not been heretofore lawfully tried and putin jeopardy for the same man-slaughter and felony now charged upon him; and for further replication, denied that the said jury had been discharged by the Court from rendering any verdict.

The prisoner’s Counsel then tendered a rejoinder to this replication, by which he affirmed he had been tried and put in jeopardy, &c. and concluded to the country : and for further rejoinder, averred that the jury was discharged by the Court, which he is ready to verify by the Record. The Court rejected so much of the above rejoinder as tendered an issue to the country, and to that rejection the prisoner excepted, and a Bill of Exceptions was signed and sealed by the Court. 3. The third plea also set forth the former proceedings as in the first plea, down to the impanelling and swearing of the jury, whose names are put down, and then avers that only eleven of the jurors (naming them,) returned a pretended verdict in these words, [reciting the verdict as amended in Court,] and that the said Court then discharged the said jury from rendering any other verdict: it then proceeds to state his motion to set aside the said verdict ; the evidence introduced by him in support of that motion, the adjournment of the questions arising therefrom by the Superior Court of the General Court, (in h;.ec verba :) it affirms the identity of the accused, of the deceased, and of crime, and thus concludes, “and the said Tevi further saith that the said General Court hath not determined the said matters of Raw which have been as aforesaid adjourned for the determination of the said General Court, and this the said Revi is ready to verify, wherefore, since the said Levi has already been tried and put in jeopardy as aforesaid, for the said felony charged on him, &c. and since the said questions referred as aforesaid to the said General Court have not been determined by the said General Court, he prays the judgment,” &c.

The replication to this third plea affirms, that the questions adjourned by the said Superior Court to the General Court have been acted upon, decided and determined, and then sets forth the decision in hsec verba : and for further replication to the said third plea, it denies that only eleven jurors found the verdict as set forth, or that the Court discharged the jury from rendering any other verdict ; it then sets forth the impanelling the jury by name, their being *sworn, their retiring and bringing in their verdict [as first found] in hasc verba, their consenting to a change in point of form, the withdrawal of one of the jurors, the verdict as amended in haec verba, the said withdrawal being unknown to the Court until the verdict was received and the jury discharged ; and concludes with saying, that he ought not to be precluded from having and maintaining his prosecution in behalf of the Commonwealth, &c., because he says that the said Levi Gibson was not legally tried and put in jeopardy by the verdict and proceedings, &c. as in the said plea is alleged, &c. and of this prays judgment of the Court, &c.” To this replication the prisoner demurred, and for causes of demurrer, shews that the said replication is double and multifarious in this, that the said replication alleges a pretended determination of certain matters in the General Court, denies that the jury were discharged as in the third plea is alleged, and sets forth repugnant matter, and is in other respects uncertain, informal and insufficient, &c. The Attorney joined in the demurrer.

On the sur-rejoinder, arising from the first plea, the Attorney for the Commonwealth, in support thereof, offered in evidence to the Court, the copy of the judgment of the General Court; (see ante, p. 73,) attested thus, “ A copy — Teste, Peyton Drew, c. G. c.” and proved by a witness, that the said paper and attestation were in the hand writing of said Drew, and that he was Clerk of the General Court.' The prisoner objected to the same being read in evidence; but the objection was over-ruled, and the said paper received as the judgment of the General Court, in the respects it purports to be ; he excepted to the opinion, and his exceptions were signed and sealed.

Besides these pleas, the prisoner also demurred to the Indictment. The Superior Court having inspected the records referred to in the pleadings, and the certificate of the judgment of the General Court, and the proceedings thereon in this Court, decided, that the matters and things set forth and alleged as the several replications of the Attorney, and in the sur-rejoinder are true ; and, that the law arising upon' the several demurrers joined in this case, is also for the Commonwealth, and over-ruled the said demurrers : the prisoner was thereupon put to trial upon his plea of Not Guilty.

Thereupon nine jurors were sworn, and then the whole panel of the venire summoned in the case, having been *called over without forming a jury, and all the by-standers legally qualified being in like manner summoned, as appeared to the Court by the information of the Sheriff, and challenged for cause, or peremptorily by the prisoner, so that a jury for the trial of the prisoner could not be obtained on that day, which was then far spent; the jurors who had been elected and sworn, were adjourned in the attendance of the Sheriff, till the next day, and charged not to separate or hold conversations with any person not of their body, and the Sheriff was also sworn to attend them and keep them from communication with others, and not to communicate with them himself.

On the next day, the Court directed a correction to be made in the orders drawn up by the Clerk, before they were signed by the Judge, in this : that in that part of the record which immediately follows the prisoner’s rejoinder to the replication of the Commonwealth to the second plea of the prisoner, the Clerk had inserted, “ and the Court refused to allow the prisoner to allege the said matters set forth as aforesaid in his rejoinder,” which was corrected by inserting, “ and the Court rejected so much of the same as tenders an issue to the country,” to which correction the prisoner objected, and a bill of exceptions was signed and sealed by the Judge.

Several persons were then called as jurors, who were asked whether they were not summoned by the Sheriff at a distance from the Court-house, and thereupon it appeared that on the day before, as the Court was about to adjourn, it ordered that process should be issued by the Clerk, to the Sheriff directed, commanding him to summon forty-eight good and lawful freeholders of his county, out of whom a jury might be formed for the trial of Levi Gibson, &c. by virtue of which process the Sheriff had summoned the said freeholders some miles from the Court-house; the prisoner objected that he ought not to be put to challenge the said jurors peremptorily, because they were brought there specially by the said summons, but the Court over-ruled the prisoner’s objection, and put him to his challenge, and not being able to challenge them for cause, they . were peremptorily challenged, and the prisoner again excepted to the opinion of the Court..

The prisoner then moved the Court to correct the orders of yesterday in this particular, so far as the order stated that it appeared to the Court by the report of the Sheriff, that *all the freeholders, being bystanders, had been called and challenged peremptorily, or for cause ; and' then he tendered proof that eight persons, naming them, were freeholders, arid were by-standers, though no.t called' by 'the Sheriff ; four of them, however, being Attornies, practising in the Court; but the Court refused to hear any proof that they were by-standers and freeholders, or to alter the order of yesterday in this respect; to which opinion of the Court, the prisoner excepted.

At length-a .jury b.eing formed, the trial proceeded,. during which an exception was taken .to the opinion of the Court, admitting certain evidence, as follows: “ David W. Eldridge,. being sworn, saith, that he- saw Francis Gibson the Friday morning after he was stabbed pthat he sat near him an hour ; that whilst1 he sat there Frank told him that Levi Gibsori and himself had a dispute, and he advanced towards Levi with a view to make friends ; that Levi did tell him-to stand off, or if • he came -up,. he, - Levi, would kill Frank ; .that as Levi was. Frank’s brother, Frank said he did not think Levi would hurt him; that he went up to Levi-, to make friends ; he put his hands on Levi in friendship,- and Levi stabbed .him. Witness said he did not think Frank would die when he saw Frank, and that if the witness must give an opinion, he did think that -Frank thought he would get. well, but that the said Frank did.not, in witness’s presence, express an opinion, whether- he expected to live or-die : But said.if LeV,i- would, go .off, - where he, Frank, could not 'hear of him again, or where Levi could not be heard of, (one of these expressions,) witness does not certainly know which, but thinks the first, that he, Frank, would forgive him, Levi. Witness also said, that Frank was engaged in prayer, as if complaining of pain-; which evidence of the said .David Eldridge, the prisoner-, by his Counsel, moved to exclude from the jury ; but, it having been proved by the Doctor who dressed the wounds, that the deceased was evidently so mortally stabbed that no possible chance existed, from the first, of his surviving, and thg.t the deceased appeared to be sensible of his situation, and said he was killed, and asked the Doctor to give him his opinion, which he did, after examining the mortal wound, by stating to the deceased that he thought he must die, though after dressing the wound, he flattered the deceased to encourage him to bear up against his pain ; but yet, that the symptoms of a fatal termination continued *constantly to increase, and the deceased to be sensible of his situation, and disposed to prayer, when not interrupted by pain, or other accidents ; and it being further proved by Wm. Wadmore, that some time after the examination and dressing of the wound by the Doctor, he, passing before the deceased, who appeared to be more at ease, was spoken to by him late in the said night, who said, you have been a father. to me; you have given me good advice : X am almost off, and appeared, in the latter part of the same night, to be more distressed with pain. The Court permitted the said evidence of said David Eldridge, which related to a conversation held in the morning after the wound, given, and about four or five hours after the wound had been dressed by the Doctor, to go.to the jury, notwithstanding it was also proved by Wm. Gibson that the deceased constantly-expressed his belief that he should die; though, when he was easier, he appeared to express hopes that he might recover; it-being stated by all the witnesses, as.well as others, that the .deceased was constantly engaged in prayer from the- night of the mortal wound till death, except when.- interrupted by pain, or other accidents ; to .which opinion of the Court the prisoner ex.cepts.”

The jury found the prisoner guilty of mur- . der in the second degree, and ascertained his punishment to be ten- years confinement in the Public Jail and Penitentiaryrhouse-

It then being-.demanded of him -w.hy thp Court should not then pronounce sentence against him, he said, “that the Court ought not- now to proceed to pronounce a judgment on the pretended ■ verdict, because the same was rendered on Sunday .morning, the 2-lst day of September, 1817, and after twelve of' -the . clock;, post meridian, of-the.20th September, 1817, which appeared to be-the fact by all the watches produced to the CourtNotwithstanding which allegation, however, the Court did pronounce-judgment on him. .

He now moved for a Writ of Error, and by his Counsel, Mr. W. Hay, assigned the following errors : I. That the proceedings had in a former trial, for the same homicide, set forth in the first and second pleas, constituted--a legal bar to any further prosecution. If (he alleged,) he had been acquitted by verdict of the jury on that trial, such acquittal would have been a bar; for, although the Indictment was defective as an Indictment; for- murder, it was * good, as an Indictment for man-slaughter; and an acquittal of man-slaughter would be an acquittal of murder, the fact being the same. The petitioner then, had already been once in jeopardy for the homicide with which he is charged, and the jury having been discharged without his consent or default, a venire de novo, or another trial on a different Indictment, for the same fact, ought not to have been had. If the matter of the first and second pleas be good, they are unanswered, as the replications thereto are multifarious, repugnant, and do not legally put in issue any legal answer. II. Because the certificate of the Clerk of the General Court, which appears in the record, was not legal evidence ; and the Case having been regularly adjourned, until the decision upon the adjourned points was regularly certified, there could be no further proceedings. III. Because the demurrer to the Indictment should have been sustained, the Indictment being defective, in not stating. 1. That the petitioner percussit (struck) the deceased, which word is technical, and cannot be supplied. 2. Because the Indictment, after stating the manner of the death, viz. by sticking, stabbing and thrusting with a dirk, does not state that thereby the mortal wound was given. In all cases, the death by the means stated, must be positively alleged, and cannot be taken by implication, which is the case in this indictment, which proceeds tostate “giving one mortal wound,” &c. IV. Because, if the petitioner ought to have been tried, he has not been properly tried. 1. Because the Petit Jury was not legally constituted for reasons stated in the Bill of Exceptions. .2. Because evidence of the declarations of the deceased was improperly admitted, they not having been made in the petitioner’s presence, and if made by the deceased when in extremis, it not appearing that he was sensible of his situation : the contrary is to be inferred from the circumstances stated by the witnesses. If, however, the evidence was proper to go to the jury, and it was their province to decide whether the deceased was in extremis, and sensible of his situation, the evidence should have been admitted with such an instruction from the Court, which does not appear to have been given. Eor these reasons, and others apparent on the record, which, though not here specially stated, are not waived, he prayed that the judgment might be reviewed, and reversed.

* [Note. — The words used in the Indictment, instead of “percussit,” &c. were “feloniously, wilfully, and of his malice aforethought, did make an assault, and that he, &c. with a certain instrument, &c. commonly called a dirk, with a blade, &c. which said dirk, he the said.Levi G. in his right hand had and held, the said E. G, in and upon, &c. a little below, &c. then and there felo-niously, wilfully, and of his malice aforethought, did stab, stick, and thrust, giving to the said Francis Gibson, then and there with the dirk aforesaid, in and upon the belly of him the said Francis Gibson, a little below the navel of him the said F. G. one mortal wound, of the depth of four inches, and of the breadth of three inches, of which said mortal wound, &c. &c. the said Francis Gibson died,”]

The Counsel for the petitioner referred to 2 Hawk. ch. 25, § 57, and ch. 23, § 82 ; also to 1 East’s C. L. 342, as to the Indictment. He also referred to Eyre’s Opinion, in Woodcock’s Case, in 1 Beach, p. 500, to shew that every hope of this world must be gone, before the declarations of a man who is wounded, should be admitted as evidence. He argued that in this Case, the declaration “ that if Levi would go off, where he could not hear of him, he would forgive him,” proved that he expected to live. And if it was doubtful whether the deceased was conscious of his approaching dissolution, the evidence ought to be excluded.

Mr. Nicholas, Attorney General, contended, that the 1st and 2d pleas offered no sufficient bar to the prosecution : these pleas were in direct opposition to the record which the prisoner produced, and therefore on the authority of Myers’s Case, they ought to have been rejected by the Court, and the Attorney should not have been put to reply to them. The third plea was multifarious, and the prisoner having demurred to the replication to that plea, you must go back to the first error ; and that on both points attempted to be put in issue by that plea, the replication was supported by the record.

As to the constitution of the jury, he remarked that when it was impossible to form a jury of the venire, and of those standing around, it was necessary to award some process to compel the attendance of such other freeholders of the county as might form a jury, and such as had been previously summoned by the venire facias. When so summoned and convened, they might properly be denominated by-standers. The writ which was awarded • by the Court, *was in the nature of a Writ of Tales, which was authorised by the Common Law. 3 Bac. Ab. 743 ; 2 Hale’s H. P. C. p. 265-6 ; also see 1 Chitty’s Cr. Law, 517.

On the question of evidence, he admitted, that the deceased must not only be in ex-tremis, but must be conscious of his situation, to authorise his declarations to be given in evidence : but that he is so conscious, may be collected from circumstances, and from the evidence of other witnesses, besides that witness who testifies as to those declarations. On this subject he referred to 1 East’s C. L. 353, &c.; Macnally, 175 ; Peake, 16.

The Court, on due consideration of this Case, over-ruled the motion of the petitioner, thereby deciding that there was no error in the judgment. The following points were therefore resolved by the Court in this Case :

1. That the word percussit, (did strike,) is not technical in an Indictment for murder, but that when the blow is made with a dirk, the words, “stab, stick and thrust,” are equivalent thereto.

2. That where there is a positive averment of the stab, &c. with a dirk, it sufficiently appears that the mortal wound was given thereby, under the words, “giving one mortal wound,” &c.

3. That where there has been a trial for murder, and the jury bring- in a verdict of guilty, but before the verdict is amended and recorded, one of the jury retires from the rest, without the consent, or knowledge of the Court, or of the Attorney for the Commonwealth, in consequence of which, the final assent of that juror to the verdict as recorded, hath never been given ; but the Court, on the supposition that all had assented to it, discharges the jury ; upon setting aside that verdict, and the exhibition of a new Bill of Indictment against the prisoner, that discharge of the former jury under the circumstances recited, is no bar to a prosecution under the new Indictment.

4. A copy of a judgment of the General Court, upon a question adjourned to it by a Superior Court, attested by the Clerk of the General Court, his attestation, or handwriting being proved, is competent and sufiScient evidence before the same Superior Court, to prove what it purports to be.

5. The Court has an undoubted right to correct any error made by the Clerk in the oi'ders of the preceding day.

*6. If a jury cannot be formed from the original panel of the venire, nor from the by-standers, in consequence of the exercise of the right of challenge by the prisoner, the Court may award a venire facias, commanding the Sheriff to summon a specified number to attend the Court then in session, out of whom a jury may be formed for the trial of the prisoner, and upon the return of that process, and the attendance of the persons so summoned, the prisoner may be compelled to elect a jury, saving his right of challenge : Such process may be awarded on the report of the Sheriff that there are no other by-standers, nor will the Court at a subsequent time hear proof that there were other qualified by-standers who- were not called.

7. In a Case of murder, declarations of the deceased, when made in extremis, and when conscious of his situation, are admissible evidence against the accused, although the witness who deposed to his declarations, was rather of opinion that the deceased thought he would get well, other witnesses having deposed that he was conscious he could not recover.

8. On the question, whether the Court should have passed sentence after 12 o’clock on Saturday night, some of the Judges were inclined to think that the judicial day extended to the dawn of the next morning, but no opinion was given on it, because a majority of the Judges were of opinion that it did not sufficiently appear by the record that it was past midnight: that fact being merely alleged by the prisoner, and it not being admitted by the Court, nor proved to it by evidence. _  