
    ALLEGHENY COUNTY,
    June Term, 1792.
    Pennsylvania v. Robert M'Birnie.
    
      ROBERT M'BIRNIE was indicted, together with another man, at a court of Oyer and Terminer for that he “ intending to maim Adam Cotter, of malice aforethought, and by lying in wait, unlawfully and feloniously did make an assault on the said A. Cotter, and him did beat, wound, and ill treat, and of malice aforethought, and by lying in wait, did gouge and bruise his right eye, and bite off his nose, with intent to disfigure him, against the statute, &c.”
    
      Galbraith, for the state, read the act of assembly of 31st May, 1718, making the offence stated in this indictment a felony of death.
    1 St L. 136
    
      1 Hawk. 6. 44.
    
    4 Bac. abr. 647—9.
    
      Humes Eng. c 65. 4 Comm. 297. 6 St. Tr. 212.
    3 Ba. abr. 665 666.
    
    2 Ld. Ray, 1488.
    The case was as follows. M'Birnie, with the other person indicted, coming out of Pittsburgh drunk, overtook Cotter on the road. They were strangers to him. M'Birnie insulted Cotter, knocked him down; gouged his eye, and bit a piece out of one of his nostrils, at the point of his nose. At the time of the trial, the eye had become quite found, and the nose was healed up so as not to appear greatly disfigured.
    Brackenridge, for the prisoner.
    Your verdict must determine whether for the offence stated to you, this man shall suffer death. This is a most aggravated assault and battery, and I know no punishment short of death too great for it. But the offence proved is not that laid in the indictment. The intention of the makers of the statute is to be regarded; and that is to be collected from the occasion of making it. The Coventry act (as it is called in England) from which this part of our act is taken, was made on occasion of a gross outrage perpetrated on Sir John Coventry, in revenge of some words spoken by him in the House of Commons. That transaction, and Cook's case on the Coventry act, is a good description of the offence pointed out by our act. Malice aforethought is to be collected from the circumstances, deliberate violence, a weapon likely to kill or maim, &c. In the case in England, there was a deliberate compassing, and lying in wait, and the nose was slit with a weapon, which shewed design. Cotter’s eye is not “ put out,” nor his nose “cut off,” or “slit;” there is only a small piece bit off, which will happen in any scuffle, without a previous purpose. Though the offence be odious, the statute is highly penal.
    
      Galbraith, for the state,
    contended that there was malice aforethought, and that it may, on many occasions, be difficult to prove express malice.
   President.

In murder, malice is presumed from the circumstances, and the defendant must shew the want of it. If M'Birnie, therefore, instead of maiming, had killed Cotter, it would have been murder, or a killing, with malice aforethought. But the act of assembly, which makes this maiming a felony of death seems to take much pains to render a previous purpose an essential ingredient in the crime. The words of purpose, with malice aforethought, by lying in wait, and with intent to disfigure, seem to imply something more, than the malice presumed in murder, and to require express proof of the intent to disfigure previously conceived, and insidiously carried into effect. This case is evidently a hasty quarrel, a violent outrage, by a wild young russian, frantic with liquor; and I think there are not circumstances sufficiently strong, to make it felony.

4 Comm. 207.

1 Hawk. 176.

Enquiry, &c. p. 33.

3 St. L. 599.

Leach's Crown Law, 55, 59, 192, 194.

Note.—It would seem that few, if any, other indictments on this act, have existed in this state. For the late William Bradford, Esq. (who from his situation as attorney general, had good opportunity of knowing) while a judge of the Supreme Court, in a memorial written at the request of the governor, and presented to him 3d December, 1792, and afterwards published under the title of “ An Enquiry how far the punishment of death is necessary in Pennsylvania,” mentions, that “ this act has remained a dead letter in Pennsylvania. No person has been prosecuted under it.”

The act of 22d April, 1794, has changed the punishment of this offence into confinement at hard labour, and a fine, three fourths of which goes to the party grieved.

I find there have been many prosecutions on the Coventry act in England. See William Lee’e cafe, Barney Carrol’s case, Tickner’s case, and Mill’s case. In Tickner’s case, Justice Gould told the jury, that it was not necessary, that either the malice aforethought, or the lying in wait, should be expressly proved to be on purpose to maim and disfigure. In Mill’s case, C. Baron Eyre, said, a person who intends to do this mischief, and, by deliberately watching an opportunity, carries that intention into execution, may be said to lie in wait on purpose. A particular concealment or lurking place is not necessary ; if, having formed an intention to maim, he comes unawares behind, and takes a convenient opportunity of deliberately doing the injury, it is a lying in wait, though he takes no particular length of time, nor appears to use any extraordinary degree of preparation to perpetrate the mischief.

No case on the English statute has been cited, nor has any occurred to me, but that of Cook and Woodburn, for slitting the nose of Mr. Crispie, whose face was terribly hacked with a hedge bill. And, from the device of the court to get over the impudent defence of Cook, that he did it, with intent not to disfigure, but to kill, we may gather how strongly all the circumstances of this crime must be ascertained.

The jury found him guilty of the trespass in assaulting and beating Adam Cotter, except as to the contriving and intending to maim and disfigure him of purpose and of malice aforethought, and by lying in wait, and of that not guilty. Sentence imprisonment.

The other defendant was afterwards tried and acquitted generally.  