The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1859-11-25


that has ever hitherto come before the OF Virginia.
namely that the judgment rendered against your petit
TONER on oil the counts including the detective one
stand, then he put out Of tho reach Of exc ,utve
clemency; whereas, that clemency would be legally
capable OF being extended TO him Judgment had been
entered against him on only the other Of the
dicment and he would have stood no need of 1t had
the defective count not been associated with the rest but
been the whole indictment by itself And even il the
statute does reach this case STILL as your petitioner Is al
vsed, that has happened in the case appears the
transcript aforesaid OF the record, which nevertheless
enttes nm 10 have the said Judgment reversed for the
said statute contains 10 addition those formerly quoted
these words"But the trial. the Court on the motion
OF the accused may instruct tho jury disregard any
count that faulty" No argument citation anho
rites, though both abundant necessary 10 prove
that where statute says Court may do what Justice
right require, in the administration especially OF
criminal Jaw there is the duty Of the Court 80 TO
and that II do not, error Is thereby committed. Now
your petitioner applied himself to the Judge of the
Circuit Court on this subject in two WAYS either
OF which entitled him to have, and entities MIN
now 70 complain that he did not have tho benefit OF
instruction from the Court TO the jury disregard this
faulty count agrceaby to the decision in Rands Comm
Grat, 1888, 1ao 81. For irs appears in bill Of ex
ceptons signed and sealed by the judge and found
in the transcript aforesaid page ia your petitioner
at the trial moved the Court 10 compel the prosecution
elect one Of the counts in the Indictment upon which to
prosecute, and abandon the prosecution upon the other
counts; which motion entirely overrued, and the
prosecution allowed TO proceed upon all the counts
GLIDING even the faulty one instead OF being stopped
upon at least that one This was afterwards made thu
first OF the several grounds alleged of judgment
as appears in bill Of exceptions heretofore mentioned
and found In the aforesaid transcript 15 And second
y appears in another bill OF exceptions signed and
scaled by the Judge and to be found in the said tran
script, p a. petitioner moved the Court instruct
the jury, that they believed from the evidence that
the accused at the time OF the committing the several acts
by nm IN the said trst count charged was not citizen
OF Virginia, but citizen Of another State Of the United
States they could not convict him under that count;
which motion the Court overruled, and refused the in
struction, and there left the matter, with the result
eventually OF verdict and judgment against your petit
toner on that count instead OF the prosecution having
been as ought to have been then stopped the said
pfpcfty
brought forward in the said motion.
On these grounds your petitioner well hopes that the
said judgment against him will be by your honors review
ed and reversed for the auness Of the said first coun,
but his hopes here rest upon any faacy he advised
that the said verdict ought 70 be set aside and trial
awarded him. for the miscarriage of the Judge in refusing
10 give the instruction asked For judgment
properly be rendered against him on that count
be because, as framed, the question OF aileg
allegiance in the accused fundamental to
the treason imputed, might be inquired into under it:
And, SO, was wrong to withhold the instruction The
circumstances in proof were, that your petitioner ha.
never been resident Of Virginia. though he had some
times been in the Sate that he laerly commoran,
IN the State OF and that from his place of
there he came modo into Virginia the time
committing the hosities charged Of Now
your petitioner Is advised that ne might DO citizen OF
Maryland any other State but vrgnia of the United
States, without being citizen of Virginia. owing alegi
ance TO her at all SO long as he remained out of Virginia.
and that he might in that condition of his citizenship
into Virginia without contracting allegiance 10 the
State TO incur the penalties Of treason II he
the manner of enemy, not to ente himself to
the protection Of her laws allegiance protection being
reciprocal. q Blacklist. Com. 1885, BIZ In the same
manner citizens of Virginia will not contract allegiance
or incur treason to any other State, thsy shall
invade it. And il it be possible that citizen
of other State in the United States be in Virgi
mia by his own act, in any manner without being citizen
OF Virginia, then the Judge erred against your petitioner
withholding the instruction asked and refused
The second count of the indictment is framed under the
4h section of chapter 100 Of the Code, page TO- II
charges substantially that the parties charged
first count did each severay maciously and eloniously
conspre with each other and with certain John G. Cook
Otlarsf IN fha iuror r,ulo
to induce certain slaves named the property of certain
persons named and other slaves to the jurors unknown,
to rebel and make nsurrecton against their and
owners and against the government constitution and laws
of the commonwealth OF Virginia. and did rnaicionsiy
and feonousy advise said slaves named and other slaves
to the jurors unknown W rebel and make instruction
The finding OF the Grand Jury in reference to the charges
contained in the second count or there four charges
contained in it, to wit advising and consprng induce
slaves TO rebel and to make nsnrrection and advising
slaves to rebel and make insurrecon) is follows, to
wit For advising and consping with slaves and others
to rebel"
The finding the petit jury reference to this second
count is inferred (for the verdict does not by its
terms refer to ill., Is finding Of the accused guilty OF
advising and conspiring with slaves and others rebe'
On this second count remarked that the verdict
is entirely abstract does not show what slaves the
is found guilty Of advising and consprng with to rebel
whether the slaves named in the count other
does appear by the verdict whether by the term others
is meant the other four persons, TO w.t. Stevens Coppie
recharged in the Indictment and John c. Cook, &C. or
others to the jurors unknown and whether not the
term others in the verdict designed TO designate
does designate free persons, or slaves, or both
This ndng, IL is submitted is altogether too uncertain
to warrant judgment upon it, and judgment should have
been arrested upon the principle settled in Marshas
% Grattan, 663 and Cookies case l3 Graan, 75o See
also Peas case, Grattan, 500.
The third count charges the parties named in the
LIST and % counts with severaly, the 10TH 18th and
18th days OF OCTOBER 1859, feloniousy, wlfuy and Of
aud each Of, their malice aforethonght killing four white
named and one free negro named, giving each Of
the persons killed mortal wound by shooting them
with Sharp's rifes-describng the wound upon each Of
which wound each died-and thereupon i is alleged that
said parties charged fslonicusy &C., did kill and murder,
in manner and form aforesaid, the said parties.
The fourth count precisely the with the 3d. with
the exception that charges Brown, Stevens Coppe and
Green with committing the resulting in the hom-
cides, and Copeland with being present. aiding and abe
ting the others in their commission.
The finding of the petit jury (t is inerred) upon these
two counts is "a general finding without referring by it's
terms to the Indictment any part of it, follows to
wit"Guty of murder in the first degree" The verdict
does not state for the murder of whom the accused is found
guilty. whether Of one or more nor upon what day
days. docs contain any reference to the indictments
by which it might be rendered certain, if the indictment
would serve that end, which 1t is insisted it is too
tain to do the finding be interpreted TO refer to either
both Of the third and fourth counts then Brown
found guilty of innicting mortal wound with Sharps
rifle the body Of each Of the persons alleged have
been killed, three several days, thereby killing each
of themand that each of the others charged COM
mtted the acts upon the parties, at the same
time, with like weapon, and with the result.
1t is submitted, that the already cited from 3D.
9th and 18th Graan apply with conclusive force to this
finding, and justified indeed required the arrest Of judg
mcnt the finding for which the prisoner moved in the
court below.
But is insisted that these counts third and fourth)
upon the face of each uncertain that If the jury
had found specifically on each, guilty the count in
dcted - that the Court could NOT by of uncertain
y, inconsistency and contradictory allegations, have le
gally rendered judgment upon such verdict.
is submitted that the Court below erred refusing TO
grant the motion Of defendant 10 compel the prosecution
TO elect
1s Because the first count Of the Indictment was in
tended to charge treason and of that offence alleged
accused is and for that offence he is sought
be punished. This offence is not pardonabe by the Exc
cutive OF the Commonwealth, and should not and could
not lawfully have been united in the indictment with
offences pardonnbeand this, Notwithstanding the pun
shment Of all was the shall not, by such
oinder, be embarrassed obsruc,ed his application
for pardon See 1st Starkes Grim. plead, chap g. p CO.
3D. Because the punishment upon conviction upon each
count OF the Indictment was not necessarily the same.
The punishment upon conviction upon the first and second
counts, was necessarily capital, whilst conviction upon
the third and fourth counts either Of Them might
might not subject him to capital punishment. These
counts charged only common law murer-mnrer in the
second degree that is TO say only the facts stated
the indictment were proved, the jury must have found
murder in the second degree To authorize finding upon
which the accused could be punished captay the prose
cuon must satisfy the jury by evidence that there was
dol nd