
    [April, 1836.]
    THE COMMONWEALTH v. EARLE.
    
    1. It is not a sufficient reason for allowing a writ of error, after conviction upon an in. dictment for murder by poison, that the indictment did not aver that the prisoner knew the substance employed to be a deadly poison; nor that the indictment did not aver that the poison was given to the deceased by the prisoner or any one one else.
    3. On an indictment far murder, perpetrated by means of poison, a verdict finding the prisoner “ Guilty in manner and form as stated in the indictment,” is a conviction of murder in the first degree, and sufficient to authorise the judgment of death.
    ■ At a Court of Oyer and Terminer held at Williamsport for the County of Lycoming, at November Term, 1835, John Earle was arraigned upon the following indictment:
    “ Lycoming County, ss.
    The Grand fnquest of the Commonwealth of Pennsylvania, inquiring for the body of the county of Lycoming aforesaid, upon their oaths and affirmations respectively do present, that John Earle late of Lycoming County aforesaid, labourer, not having the fear of God before his eyes, but being moved and seduced by the instigations of the devil, and of his malice aforethought, wickedly contriving and intending a certain Catherine Earle, with poison, wilfully, feloniously and of his malice aforethought to kill and murder, on the fourteenth day of October, in the year of our Lord one thousand eight hundred and thirty-five, and on divers other days and times between the said fourteenth day of October in the year last aforesaid, and the seventeenth day of October in the year last aforesaid, with force and arms at Lycoming County aforesaid, did knowingly, wilfully and feloniously, and of his malice aforethought, put, mix and mingle certain deadly poison, to wit, white arsenic, in certain chocolate which had been at divers days and times during the time aforesaid, prepared for the use of the said Catherine Earle, to be drunk by her the said Catherine Earle; he the said John Earle then and there well knowing that the said chocolate with which he the said John Earle did so mix and mingle the deadly poison as aforesaid, was then and there prepared for the use of the said Catherine Earle, with intent to be then and there administered to her for her drinking the same; and the said chocolate with which the said poison was so mixed as aforesaid, afterwards to wit, on the said fourteenth day of October in the year last aforesaid, and on the said other days and times, at Lycoming county aforesaid,was delivered to the said Catherine Earle to be then and there drunk by her; and the said Catherine Earle not knowing the said poison to have been mixed with the said chocolate, did afterwards, to wit, on the said fourteenth day of Ootober in the year last aforesaid, and on the said divers other days and times there, drink and swallow down into her body, several quantities of the said'poison so mixed as aforesaid with the said chocolate; and the said Catherine Earle, of the poison aforesaid, and by the operation thereof, on the said fourteenth day of October in the year last aforesaid, at Lycoming County aforesaid, beeame sick and greatly distempered in her body; of which said sickness and distemper of body, occasioned by the drinking, taking and swallowing down into the body of the said Catherine Earle of the poison aforesaid, so mixed and mingled in the said chocolate as aforesaid, she the said Catherine Earle, from the said several days and times on which she had so drunk and swallowed down the same as aforesaid, until the sixteenth day of October in the year last aforesaid, at Lycoming County aforesaid, did languish, and languishing did live: on which said sixteenth day of October, in the year last aforesaid, at Lycoming county aforesaid, she, the said Catherine Earle, of the poison aforesaid, so taken, drunk and swallowed down as aforesaid, and of the said sickness and distemper thereby occasioned did die. And so the inquest aforesaid, upon their oaths and affirmations respectively as aforesaid, do say, that the said John Earle, her the said Catherine Earle, in the manner and by the means aforesaid, then and there feloniously, wilfully, and of his malice aforethought did kill and murder, contrary to the form of the Act of General Assembly of this Commonwealth in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.
    And-the Jurors aforesaid, upon their oaths and affirmations respectively as aforesaid, do further present, that the said John Earle on the .said fourteenth day of October, in the year of our Lord one thousand eight hundred and thirty-five as aforesaid, and on divers other days and times between the said .fourteenth day of October in the year last aforesaid, and the sixteenth day of October, in the year last aforesaid, at Lycoming County aforesaid, with force and arms, did knowingly, wilfully, feloniously, and of his malice aforethought, place, mix, and mingle certain deadly poison, to wit, white arsenic, in certain tea which nad been at divers days and times during the time aforesaid, prepared for the use of the said Catherine Earle, to be drunk by her the said Catherine Earle; he, the said John Earle, then and there well knowing that the said tea with which the said poison was mixed as aforesaid, was then and there prepared for the use of the said Catherine Earle, with intent to be then and there administered to her for her drinking the same. And the said tea with which the said poison was so mixed as aforesaid, after-wards, to wit, on the said fourteenth day of October, in the year last aforesaid, and on the said other days and times, at Lycoming County aforesaid, was delivered to the said Catherine Earle to be then and there drunk by her; and the said Catherine Earle, not knowing the said poison to have been mixed with the said tea, did afterwards, to wit, on the said fourteenth day of October, in the year last aforesaid, and on the said divers other days and times, there did drink and swallow down into her body several quantities of the said poison so mixed as aforesaid with the said tea; and the said Catherine Earle of the poison aforesaid, and by the operation thereof, on the said fourteenth day of October in the year last aforesaid, at Lycoming County aforesaid, became sick and greatly distempered in her body; of which said sickness and distemper occasioned by the drinking, taking, and swallowing down into the body of the said Catherine Earle of the poison aforesaid, so mixed and mingled in the said tea as aforesaid, she the said Catherine Earle, from the said several days and times on which she had so drunk and swallowed down the same as aforesaid, until the said sixteenth day"of October in the year last aforesaid,'at Lycoming County aforesaid, did languish, and languishing did live : on which said sixteenth day of October, in the year last aforesaid, at Lycoming county aforesaid, she, the said Catherine Earle of the poison aforesaid, so taken, drunk, and swallowed down as aforesaid, and of the sickness and distemper thereby ocasioned, did die. And so the inquest aforesaid, upon their oaths, and affirmations respectively as aforesaid, do say, that the said John Earle, her, the said Catherine Earle, in the manner and by the means last aforesaid, then and there feloniously, wilfully, and of his malice aforethought, did kill and murder, contrary to the form of the act of General Assembly of this Commonwealth in such case made and provided, and against the peace and dignity of the Commonwealth of Pennsylvania.”
    The trial of the prisoner commenced on the 2d of February, 1836; and the jury returned a verdict of “ Guilty in manner and form as stated in the-Indictment.”
    The counsel for the prisoner moved in arrest of judgment, and assigned the following reasons:
    
      “ 1. That it is not alleged in either count in the indictment, that the defendant knew' the white arsenic to be a deadly poison, as by law the Commonwealth were bound to allege.
    
      2. That it is not alleged in the indictment that the chocolate in which it is averred that the white arsenic was mixed and mingled, was given to the said Catherine Earle to drink, either by the said John Earle, or any other person.
    3. That the second count docs not allege that the defendant intended to commit the crime, of his malice aforethought., as is therein alleged he did commit it.” .
    A motion for a new trial was also made; but after argument the Court overruled both motions, and passed sentence of death on the prisoner.
    An application was then made to the chief justice, for a special allocatur to a writ of error; and the following reasons were assigned in writing, by Mr. Parsons, counsel for the prisoner.
    “1st. That that the Court erred in not arresting the judgment on the first reason assigned upon the record.
    2d. That the Court erred in not arresting the judgment on the second reason assigned upon the record.
    3d. That the jury did not ascertain in their verdict the degree of murder of which the prisoner was guilty: whether of murder in the first or second degree; as they were bound to do according to the provisions of the 2d section of the act of the 22d of April, 1794.
    4th. That the Court erred in pronouncing sentence of death upon the prisoner, as the verdict of the jury is now rendered.”
    “ The first reason assigned in arrest of judgment is, “ That it is not alleged in the indictment, that the defendant knew the white arsenic to be a deadly poison, as by law the commonwealth are bound to allege.” In indictments, precedents may be' said to be law; and on a careful examination of the books of forms in criminal cases, but one precedent is found where it is not averred that the defendant knew that the substance was a deadly poison. In Archbold Criminal Pleadings, page 233, the form is so. In 3d Chitty Crim. Law, page 530, the form is thus drawn. In the next page the form is so — in the following pages the form is in the same manner; and it appears to be a very necessary averment — for one might innocently administer poison as a medicine, ignorant that it would kill: or it might be given to a sick person through mistake. And the knowledge and intention with which the poison is given, seem to constitute the very essence of the offence in such a case. In Pennsylvania, where there are two degrees of murder, it seems indispensably necessary. The only precedent believed to be at variance with the above view, will be found in Sd Chitty, 528; and it is believed, that in this case, which was the indictment against Mary Blandy, for the murder of her father, the indictment was drawn to meet the facts of the case. And by. a reference to the facts in her case, it will be seen that her confession was the principal evidence relied upon. It appeared that she had formed an attachment, in which she was opposed strongly, by her father, and that the person to whom she was attached, conveyed to her in a letter some white powders, which he informed her if given to her father, would cause him to change his views upon the subject of her marriage. She gave the powders to him, and in her confession denied unequivocally, that she knew they contained a poisonous substance. Now, if it had been averred that she knew that it was a deadly poison, the prosecution would be bound to satisfy the jury of the fact, and probably they might not have been able to do it. In England, such an indictment might be good, but in Pennsylvania, it is submitted, that the law is otherwise; for in another part of my argument,an effort will be made to show, that one may be convicted of murder in the second degree, where the killing is by poisoning.
    The second reason assigned in arrest of judgment, and now alleged for error, is that “ it is not stated in the indictment, that the chocolate, in which it is averred that the white arsenic wa& mixed and mingled, was given to the said Catharine Earle to drink, either by the said John Earle, or any other person.”
    This is believed to be necessary; for in all cases where a murder' is committed by a blow, it should be explicitly stated that the same was given by the prisoner. See 2d Hawkins’ P. C. If the poison was mixed and mingled by the prisoner, and it was taken by the deceased through mistake, or without his knowledge or procuring, he could not be convicted of murder in the first degree.
    But what is conceived to be strong ground why a writ of error should be allowed, and why the judgment should be reversed, is, that the jury have not found the degree of murder of which the defendant was guilty. This I believed to be indispensably necessary under the act of the 22d of April, 1794. That act places all murder, “ perpetrated by'means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, or burglary,” upon the same footing. And the act expressly provides, that the jury before whom, any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree. Here is a positive and absolute direction to the jury, as to the form and manner of their finding, and one which cannot be disregarded without violating the act of assembly; the law is imperative, and it is the duty of the court, to see that a jury find their verdict in accordance with the law. And what adds great force to the view taken of this requisition, is the clause which follows, and which declares, that if such person shall be convicted by confession, the court shall proceed by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly. No matter in what form the indictment is drawn, nor how the killing is alleged to be done. No distinction is made by the act; in the finding of the jury, let the charge be made as it may in the indictment. And it is submitted, that the legislature could hardly have found language to have pointed out the duty of the jury in more emphatic terms.
    But it is alleged, that there is a dictum in the case of the Commonwealth v. White, {6th Binney, 179,) that militates against this construction. It is, however, a mere dictum,, and not the point decided in the cause; and it is inconsistent with a principle advanced by the learned judge in the preceding sentence. The chief justice, who delivered the opinion of the court, there remarks, “ if the indictment were so drawn as plainly to show that the murder was of the first Or second degree, — all that the jury need do, would be to find the prisoner guilty in manner and form as he stands indicted.” Without.stopping to inquire, whether an indictment might be so drawn, as to supersede the necessity of the jury finding the degree, it will be sufficient to show, that the indictment against Earle is not of that character. For there can be no doubt, but that one guilty of killing another by poison, may be guilty of murder in the second degree ; and.a jury under the laws of this state, would have aright so to find. It is the deliberation, or premeditation with which the act is done, that constitutes the crime of murder in the first degree.
    Suppose, in the case of Mary Blandy, the jury had been fully satisfied that she was ignorant that the powders contained a poisonous substance, but supposed them to be really what she asserted they were represented to her to be, “ Love powders,” and that their effect would be to reconcile the father to' her choice: might not a jury with propriety find such defendant guilty of murder in the second degree? > - .
    Other similar cases might be put, yet in all, the indictment would be for murder by means of poison, as in the case under consideration.
    Hence, it is submitted, that the indictment in the case of Earle is not so drawn, as to dispense with the necessity of the degree of murder being fixed by the jury, before sentence of death could be given. There is no doubt, but that a penal statute like this, ought to be construed strictly in favour of life; and there is as little doubt but that a jury, in a case of killing by poison, should designaté the degree of the murder by their verdict, as in any other case ; for supposing the indictment had alleged that the killing was premeditated, would not the jury be bound to find the degree ?
    In the case of Pennsylvania v. M‘Falls, {Addison’s Rep. 255,) tried in 1794, and also in the case of Pennsylvania v. Lewis, {Addis. Rep. 279,) tried in 1796, it will be found, that the jury ascertained the degree of murder by their verdict. And it is believed, that it will be found on examination of the criminal records, from the passage of the act of 1794 to this time, that the jury had always found the degree of murder where judgment has been rendered on the verdict.”
    The case was considered by the Court', then sitting in Bank in Philadelphia; and the following note of their opinion, was furnished by the Chief Justice to the Reporter.
    
      
      
         I have been favoured by the Chief Justice with the materials for the report of this case, which it is believed will be interesting to the profession. — Rep.
    
   The Court

felt itself bound to refuse an allocatur: 1st, Because it is not entirely clear, though the weight of authority from precedent is the other way, that the indictment is insufficient for want of an averment, that the prisoner knew the substance employed to be a deadly poison. In Mary Blandy's case, (1 Hargr. St. Tr. 1,) the prisoner was executed, though'-the indictment contained no such averment. Yet it is undoubtedly the safer course to insert it, ex majori cautela: 2d, Because, such a defect could not by any possibility affect the question of innocence or guilt before the jury ; and it is not the duty of the Court, for such a cause, to grant a writ of error; which, being, in criminal cases of grace and not of right, was refused on the same suggestion, in the Commonwealth v. Immel, (6 Binney, 403;) The Commonwealth v. Pennock, (3 Serg. & R. 199,) and The Commonwealth v. Cox, at the present term. 3d, Because the want of an allegation, that the prisoner gave the poison to the deceased to drink, is clearly immaterial. If delivered by any one else, or taken by the deceased without delivery, the felonious purpose would be equally accomplished, and the guilt the same.' 4th, And because, “all murder perpetrated by'meansof poison,” being equally of the first degree, there is neither necessity nor room for discrimination by the verdict, where the degree of the offence charged, is fixed in the indictment. It would be of decisive weight, were an authority wanting, that this principle, though not decided, was asserted in White v. The Commonwealth, (6 Binney, 183.) The provision for ascertainment of the degree by verdict, was intended for cases in which the jury might be at liberty to find the prisoner guilty in the second degree; but, as in cases of murder by poisoning, the prisoner is guilty', if at all, in the-first degree, and as a verdict of guilt in another degree would not be received, the law will not require, though it might endure, the performance of an act so nugatory as an attempt at classification, where there is no difference, or the marking by verdict, of a measure of guilt pre-established by the law itself.

Allocatur refuse^  