, 1858-01-08

good and lawful men, duly elected, tried,
cmpahneled and sworn,' to wit:
The form Of oath Of jurors is usually
prescribed by statute. There is nothing in
our act requiring the oath administered to
be spread upon the record. IL it appear
adirmatively that the jury were lawfully
sworn, it viii be sufficient In this case the
record afirms that the jury were daiV sioOrn,
that is, legally, lawfully sworn. We think
this sufficiently appears from the record, aud
can work no prejudice to the prisoner.
II is claimed that the verdict in this case
should be arrested as being contrary to
law:
Ist-That the jury do not find the de.
gree Of the offence, but find as it appears
BY the record, in the words following, viz
-0n their oaths do say-we, the jury, find
the defendant Leschi, guilty, as charged
in the indictment, and that he suffer death.
It Is claimed that the offence being Of diff
ferent degrees, the jury should have found
specifically that the defendant was guilty
Of murder in the FIRST degree, IN order to
warrant Judgment Of death. The indct-
ment in this case we have seen is drawn in
the common law form-contains but one
count, and that for murder in the first de-
gree.
The practice both in England and this
country has always been, where there has
been general verdict Of guilty on an in
dictment containing several counts, some
bad and some good, to pass Judgment on
the counts that are good, on the presump-
tion that It was to them the verdict Of the
jury attached; and on the same reasoning,
where one Of two counts is had and the de-
fsndent is found guilty and sentenced, gen
orally the presumption OF law Is that the
court awarded sentence on the good count,
and the sentence is not erroneous il it is
warranted BY the law applicable to the Of
fence charged in that count.
Wharton, O. L., Sd edition, page 976,
Ia the case ofthe State vs. Montague, I'd Nc
Cord, 257, Il is said that where there are
several counts prescribing offences to which
there are several punishments, a general
verdict Of guilty Is bad.
Where an indictment charges in one
count the breaking and entering Of build
ing with intent to steal, and In another
count q stealing in the same building, Oh
the same day, and the defendant is found
guilty, generally, the sentence whether that
which is proper for burglary only, or for
burglary and larceny also, cannot be re-
versed on error, because the record does not
show whether ono offence only or two,
were proved on'the trial and as this must
be known by the Judge who tried the case,
the sentence will be presumed to have been
according to the law that was applicable
to the facts proved. kite VS.. Com. 2 Met
calf, 5sl.
In Pennsylvania Il has been held that
where the indictment charged the prisoner
with perpeirating the crime BY means Of
poison, and the jury found the prisoner
guilty In manner and form as stated in the
indictment" without specifying the degree
Of the offence, there being different punish
ments provided by statute, the court will
adiudge the offence to be murder Of the
first degree, and will pronounce sentence Of
death. ICON. vs.. Earls, Lewis Pres. Ly-
comy Oyer and Ter. 1886; ! Whar., 525.
In later case, decided by the same
Judge In the same court, in 1888, U. S. G.
L. page 8ee, Il was ruled that when the
indictment charged the prisoner with per-
petrating the murder by Lying in wait" on
and near a certain highway, and the jury
6nd him guilty without stating the degree,
the court will adjudge II murder Of the first
degree and pass sentence Of death.
The Indictment in this case as we have
seen, sets forth all the facts necessary to
constitute the offence Of murder 10 the first
degree. The statute makes Il incumbent
on the jury when they find the defendant
guilty, to state the punishment to be in6ic-
ted The jury return verdict Of guilty
as charged in the indictment, and that he
suffer death.
have not been able to find single au-
thority which would 60 TO show that this
verdict under this indictment Is wanting 10
any Of the specific qualities required by
law. Had the jury returned q general ver-
dict and found different punishment from
that prescribed for the offence as charged
in the Indictment, it would have furnished
sufficient cause for the arrest Of judgment
The jury, however, end the prisoner guilty
as charged in the indictment that charge
is for murder in the FIRST degree, and they
have found the punishment corresponding
to the facts charged as provided by our
statute.
The indictment itself is framed in ,accor-
dance with the precedents furnished the
profession in United States @. L.
We think there is no Sufficient error here
which would warrant rs in disturbing the