Raftsman's journal. [volume] (Clearfield, Pa.) 1854-1948, 1861-02-06
THE CATHCART CASE.

ton that the jury We're not properly sworn.
The record, however, recites that they were
call sworn or affirmed respectively to try,
&c. This OF course, raises the presumption
that they were properly sworn or affirmed
No exception taken to the mode of quail
hcatlon, and there is nothing before us lndl-
eating any irregularity. Our paper-book, in
deed, contains part of the opinion OF the
Court below upon the motion for new triai,
| in which it is stated that the jury were sworn
Jointly and severally, but such an opinion IS
no part of the record, and it has often been
held that the record cannot be corrected by It,
Even if it could, the same opinion shows that
no objection was made to the manner in which
the oath or affirmation administered.
1hls assignment, therefore, points to no error
of which take notice.
Another specification of error is that the re-
cord does not show that the prisoner had
counsel at the trial. 1t is based upon an al
ledged presumption against the regularity of
the proceedngs-a presumption directly OPP
poslte to that which we have shown to exist.
1t assumes that those rights of the prisoner
were denied to him which the record does
not show affrmatlvely were granted. AS well
might it be assumed that the Court charged
the jury enormously, and the Common wealth
be required to prove that the charge was in
all points correct even before tits attacked.
The right to be heard by himself and coun-
sci, is doubtless constitutional right, and If
1t had been denied. there would have been er
ror, but we are not to presume that 1t was de-
| MED because the record does not exhibit the
fact that it was recorded. There are many
rights of ~an accused person, some consttu-
tional and others not, of which the record
takes no notice, such as the right to compul-
| sorry process for witnesses, the right to call
| witness or to cross-examine those of the
| prosecution, and the right to be heard by
| himself or counsel is one of them. The safe
ft tIf,n =, tlalh hn 81
| lence of the record, for il any of these rights
| be denied, there is an easy method of bring
ing up on the record the fact of the denial.
Another assignment of error is to the refus-
al OF the Court to grant new trial. 1t has so
often been said that such a refusal is not as
signable for error that we dismiss it without
further notice.
An exception was also TAX en- from the Court
below to the rejection of an offer by the de-
fendant, to prove that he always had been
known and reputed among his neighbors as a
nd-hearted man. This offer the Court over
ruled in the terms in which it was made, but
accompanied its rejection by permission to
show the character OF defendant for peaceable-
ness and regularity of conduct. and OF good
feelings towards the deceased in any other
aspect which had proper relation TO the sub
Ject matter of the prosecution. We cannot
say that here was error. We do not discover
that any right of the defendant was denied.
The door opened for him TO show his rep
utation for peaceabeness, and for regularity
of conduct, and for anything that tended to
show the improbability of his having perpe-
trated the crime of which he accused
1t was his peaceabieness, his regularity of
conduct, his quiet habits, his freedom from
lawlessness that was assaled. All these he
had full permission to defend, by adducing
the opinion of his neighbors and his general
reputation.
Another assignment of error is ssthat the in
dictmeRt is insufficient in law to sustain con- |
viction of murder in the first degree, in that |
itfdis TO meet the constitutional requirement" |
the nature and cause of the accusation not be- |
ing fully set forth. The indictment is in !
strict conformity with the requirements OF the |
twentieth section OF the Act of March 81, |
1860 (Penal Code), the Criminal Procedure |
Act We do not think hat act in conflict with |
the Constitutional provision that in all Grimm |
ell prosecutions the accused shall have right |
to be Informed OF the s'nature and cause of
the accusation against him." An indictment |
must exhibit the ssnature and cause of the |
accusaton,'' that is, must set ont the crime |
laid to the charge of the accused but the |
mode in which the crime is committed, the in |
strumcnt with which fle murder effected, |
whether it was held in the right hand or the
left, whether the wound was inflicted upon the
head or the body, are entirely apart from the
nature and cause OF the accusation. There is |
merit in this assignment.
Another averment OF the plaintiff In error
is that the sentence was improperly pronounc-
ed, because the charge Of the Court eX-
cepted to, but was not filed until after judg-
ment was given. If there were anything in
the exception it could avail him but little, tor
then 1t would be our duty to pass sentence.
But there is nothing in it. Everything that
was necessary to giving judgment upon
the record when sentence was pronounced.
True, the charge was not there, but that was
needed for review. not for Sentpnce.
1t is due to the learned Judge of the Court
below, to say that there were no written points
presented to him at the trial, and he not
therefore under obligation to file his charge
on delivery, especially as the ex-
ceptions were in the usual form, and there
was no request that he should reduce his
whole opinion and charge as delivered to the
jury to writing, at the time of the delivery of
the same, and forthwith file it of record.
The only remaining assignment of error is
the eleventh 1t is that the sentence is in
definite, no time being fixed for it's bel ng car
ried into effect, and no other person having
legal authority to fix the time. This is GER
tainly a novel exception to be taken at this
late period in the history of the Common
wealth 1t would be out of place here to
spend time in showing how the power to des-
ignate the time of execution is vested in the
Governor. That it always has been exercised
by him is not denied and it would not be diff
cult to show that 1t has been rightfully cxer-
csed. But that question is not On record. (
The matter for onr consideration is whether a ,
of death which does not appoint
day for execution is proper sentence. ,
Our act of Assembly of the 31St of May, ,
l7lS, entitled can act for the advancement of ,
Justice and more certain ADMINISTRATION there
1f'' enacted that whenever convictions should ,
happen it should be lawful TO give judgment :
to the manner form and direction