
    WASHINGTON COUNTY.
    January Term, 1796.
    Pennsylvania v. Samuel Lewis, Cha. Hobbes, Isaac Hobbes, Nathan Lewis, and Isaac Braden.
    THIS was an indictment for the murder of John Weston.
    
    On the 5th November, 1795, there was a wedding at Weston’s house. The prisoners went there without invitation (except as to one of them). Weston, who seems to have entertained some suspicions of them, told them, they were welcome, if they behaved themselves well.—Nothing improper appeared till the evening, when the company were dancing in an out-house. Then the prisoners began to be troublesome; shoved the dancers off the floor; sought sham-battles among themselves; and broke up the company. They stood in a row against Weston, who was an old man of seventy-three years of age; and, pushing one against another, pushed him against the wall. He complained that he was hurt; and desired them to desist. They seem to have done so then, but to have repeated this conduct, or something like it several times; and the old man was several times thrown on the floor; and, at least once, they seem all to have fallen above him. Weston left the out-house, and came into the dwelling-house, and shut the door. They burst it open with violence against the side of his head; came in, and mocked Weston; pushed him and his wife off chairs;—and, after they went out of the house, threw stones, &c. in through the openings, and down the chimney. The old man again went out to remonstrate with them; and, when he returned into the house, said Isaac Braden and Isaac Hobbes had thrown him down off his porch, and kicked him. They seem to have continued there all night, and part of next day. In the morning of next day Weston walked about as usual, but occasionally lay down in his bed, and complained of being sore. In the evening he went to bed, and continued in it. That evening the second day, he complained “that his inside was battered to a jelly, by the kicks and bruises given him by those fellows,” meaning the prisoners; spit blood; was altogether unable to rise, ate nothing from the time of the beating, and drank nothing but water; and on the third day he died. The prisoners stuck together as a party by themselves, and seemed all equally to participate in the acts of violence. There were marks of bruises on one side and thigh of Weston.
    
    
      Campbell, Pentecost, and Brackenridge, for the prisoners,
    made two questions.
    1. Was the death occasioned by the acts of the prisoners?
    2. Were those acts done with the premeditated intention of causing the death of Weston.
    
    1. The cause of the death is altogether doubtful, whether intoxication, old age, or violence. If it be doubtful, you will acquit.
    2. These men did nothing more than an usual frolic, according to the custom and manners of this country. There was no intention of hurt, no design of mischief, in which the malice, which is a necessary ingredient of murder, consists.
    The act of assembly distinguishes murder into two degrees. It is not murder in the first degree; for there is no evidence of any previous intention of killing. It is not murder in the second degree; for there was no malice, no intention of injury, and the unlawful act was not a felony, but a trespass, and the killing therefore is no more than manslaughter.
    In either way, therefore, the prisoners must be acquitted of murder. If their acts did not occasion the death of Weston, they are clear of all crime. If it be doubtful whether their acts occasioned his death, the common presumption of innocence will lead you to acquit. If their acts did occasion his death, and though their acts were unlawful, yet, being no felony, but a trespass, and without malice or intention to hurt, it is not murder. So that, at most, it can be but manslaughter. But, I think, you will say, it was not even that; but that the death was the consequence of intoxication, and the infirmities of age. His wife died in a day or two after him. The prisoners might as well be indicted for murdering her.
    
      
      3 Bac. 665, 677.
    4 Comm. 192-3.
    
      Young, for the state,
    recapitulated and observed on the testimony accurately and minutely.
    It is clear, that the death of Weston was occasioned by the violence of the prisoners. You have heard, that Geoffry Lewis, brother of two of the defendants, saw the dead body with the bruises on it, and expressed his apprehensions, that these men would be hanged. Why did they not bring him forward.
    We have no custom in this country of killing old men at weddings. The Indians have a custom of killing one another when drunk; and if we indulge such practices, as have appeared in this case, we shall soon be as barbarous, as the savages of the wilderness.
    He who wantonly does an unlawful act, likely to occasion the death of another, is guilty of murder. Malice is a heart regardless of social duty, and fatally bent on mischief.
    The prisoners came to Weston’s house, and were hospitably received. But instead of having their hearts softened by such kindness, they continued their abuse of a poor old man, in his own house, against his repeated remonstrances, till by the violent and repeated injuries, they occasioned his death.
    If they were for fighting, why not attack young persons like themselves. It is equally felony, to kill a drunk man, as to kill a sober man. If age may be killed by small violence, lawfully, so may infancy. Both ought to be peculiarly protested.
   President

went over the testimony and stated the substance of the case.

The first question for you to determine is whether any act of the prisoners, or any of them, to which the rest standing by gave their countenance and assistance, caused the death of John Weston. If it did not, there is an end to any further question; there is no homicide; and the defendants must be acquitted. If there be a reasonable ground of doubt, you will also acquit them.

The evidence was then applied to each of the prisoners.

Weight is due to the declarations of a dying person, after the mortal blow has been given. Relative to this, there is a fine representation by lord chief baron Eyre; “Now the general principle, on which this species of evidence is admitted, is, that they are declarations made in extremity, when the party is at the point of death, and when every hope of this world is gone; when every motive to falsehood is silenced; and the mind is induced by the most powerful considerations to speak the truth: a situation so solemn and so awful is considered by the law, as creating an obligation equal to that which is imposed by a positive oath administered in a court of justice."

Woodcock's case. Leach 440.

Foster 255.

Foster 256-7. 4 Comment. 199-2 Roll. 461.-2 L. Ray 1487.

3 St. L. 599.

But if it appear to you, that any act of violence, committed by the prisoners, caused the death of Weston, it will remain for you to consider, with our assistance in points of law, what name the law gives to this act or acts of violence causing the death.

The same consideration will remain, from whomsoever of the prisoners this act of violence came: for they appear all to have been of one party in this outrage; all present and either acting or aiding and abetting, therefore, all guilty as principals in the crime.

It makes no difference, though the violence was small, such as would not have killed a strong or healthy man. If it shorten life a day, it is the same as if it shortened it ninety years. It would be the same thing, if the person killed had had a mortal disease on him. All must die some time: and shortening life is taking it away. Weakness and old age ought to be particularly guarded from injury, and treated with tenderness.

By the law of England, all unlawful killing is presumed murder, until some extenuating circumstances are shewn by the prisoner, lessening the degree of the offence to something lower than murder. Malice is presumed, till want of malice is shewn. For the law holds the person of a man sacred.

Malice is express or implied.

Malice is implied from the outrageous circumstances of the act shewing a cruelty of disposition, a heart regardless of social duty, and fatally bent on mischief.—Malice is a technical expression, and means the absence of any excuse of homicide.

But I apprehend, by our act of assembly, an unlawful killing, though it may be presumed murder, will not be presumed murder in the first degree. It appears to have been the intention of the legislature to distinguish between malice express and implied; and to leave the punishment of death to the cases of express malice there mentioned; and, for that killing, which involves only implied malice, generally, the act provides the punishment of imprisonment and labour.

1 Hawk. 127-8.—Foster 258.—4 Com. 192-3—2 L. Ray. 1488.

1 Hale 472-3.

It is not necessary, in order to imply malice, that there should be an intention of killing. If the act of killing be unlawful, with the intention of hurting the deceased or any other person; if it have a natural tendency to bloodshed, or if killing be the probable or apparent consequence; malice is implied. If a man do an act which apparently must do harm, with an intent to do harm, and death ensues, it will be murder.

According to the law cited by the counsel for the prisoners, it might have been but manslaughter, if they had killed one of themselves sham-fighting by consent. But the violence to the old man was without his consent, and contrary to his remonstrance.

If appearance of sport will exclude the presumption of malice, sport will always be affected, to cover a crime.

If the death was occasioned by the violent acts of the prisoners, and if those acts were done, with a design to kill, it is murder in the first degree; and if done without a design to kill, if with a design to hurt, and tending to bloodshed or death; it is murder in the second degree; if without such intention, it is manslaughter.

The jury returned with a verdict finding them guilty of murder in the lowest degree; and being informed, that unless they meant manslaughter, this was a conviction of murder in the second degree. They said they had considered the distinction between murder and manslaughter, and thought this was murder: and if there was no degree lower than the second, they found them guilty of murder in the second degree.

They were sentenced to an imprisonment of five years.  