
    *The Commonwealth v. Robert Mitchell.
    Criminal Law—Murder —Special Verdict.—Upon a special verdict, setting forth the facts attending-the shooting and killing of A by the prisoner, finding the prisoner guilty of murder—suin' ect to the opinion of the court upon the facts found; otherwise, fending him guilty oimanslauuhter'. Head, by the court that the facts did not constitute murder.
    
   The prisoner was indicted at the Winchester District Court, April 1796, for the murder of Frederick Beektoll. The jury found a special verdict as follows :

“We the jury find, that on the evening of the 21st of January, 1796, the said Robert Mitchell the prisoner at the bar, came to his own house in the county of Berkeley, and within the jurisdiction of this court, in a state of intoxication ; that he the said Robert Mitchell, then and there eat his supper, and then and there went to bed about six o’clock at night, and apparently went to sleep ; that about a quarter of an hour after six o’clock, he then and there awoke, and desired his the said Robert Mitchell’s wife to come 1o bed, which she not complying with, a quarrel immediately ensued, and he, the said Robert Mitchell, then and there pulled his said wife by the hair of her head. That the deceased, the said Frederick Beektoll, then and there interposed to part them ; that a scuffle ensued between the said Robert Mitchell and the said Frederick Beektoll, the said Frederick Beektoll then and there residing and boarding with the said Robert Mitchell, whereupon the said Robert Mitchell then and there 117 took down his gun, that *'the said Frederick Beektoll then and there took the said gun away from the said Robert Mitchell, and he the said Frederick Beektoll then and there put the said gun up again. That a second quarrel and scuffle again immediately then and there ensued between the said Robert Mitchell and his said wife, that the said Frederick Beektoll again interposed to part them, and a second scuffle again then and there immediately ensued between the said Robert Mitchell and the said Frederick Beektoll: that in the scuffle the said Robert Mitchell fell over a spinning wheel, which hurt his face so that it bled ; that the said Frederick Beektoll, then and there immediately ran out of the house. That the moment the said Robert Mitchell recovered from his fall, he then and there ran and got his said gun agrain, the same being then, and before the said Robert Mitchell came home in the evening, ready loaded -by the said Frederick Beektoll, to whom it had been lent some days before, but whether the said Robert Mitchell then and there knew the said gun to be loaded the jurors are wholly ignorant; and the said Robert Mitchell then and there instantly pursued the said Frederick Beektoll to the door of the house, and then and there standing at the door of the said house, he the said Robert Mitchell then and there instantly discharged the said gun towards the said Frederick Beektoll, the moon being then shining so that the said Frederick could be seen, 118 and *the ground covered with snow, he the said Frederick Beektoll then and there being at the distance of between twelve and fifteen yards from the said Robert Mitchell and going away from the house, and with a leaden bullet, as charged in the said indictment, from the said gun shot, did intentionally shoot and wound the said Frederick Beektoll then and there in the back, as in the said indictment is charged, oí which wound the said Frederick Beektoll then and there instantly died. That soon after the said Frederick Beektoll fell, he the said Frederick Beektoll was carried into the house of the said Robert Mitchell. That the said Robert Mitchell directed his son to take the gun and lay it where the said Frederick Beektoll had fallen, in order that the people might be induced to believe that the said Frederick Beektoll had shot himself. That from the time the said Robert Mitchell first got out of his bed to beat his said wife as is aforesaid, to the time of the shooting the aforesaid Frederick Beektoll, was near one quarter of an hour ; that during that whole period the said Robert Mitchell and his said wife, and the said Robert Mitchell and the said Frederick Beektoll were quarreling, or scuffling. We find that the said Frederick Beektoll was during the whole time, then and there unarmed, that there had not been any former quarrel or grudge between the said Robert Mitchell and the said Frederick Beektoll the deceased, so far as the 119 jurors are informed. *And if upon the whole matter, the court shall be of opinion that the said Robert Mitchell is guilty of murder, then we the jury find the said Robert Mitchell guilty of murder : otherwise we the jury find the said Robert Mitchell guilty of manslaughter only.”

The question arising on this special verdict was adjourned, and at a general court, November 16th, 1796, present judges Prentis, Tucker, Tyler, Jones, White, and Nelson, the following judgment was entered. “The question of law arising on the special verdict in the transcript of the record of the said case mentioned being argued, it is the opinion of the court that the said Milchell is not guilty of murder.”  