Raftsman's journal. [volume] (Clearfield, Pa.) 1854-1948, 1867-08-21
The Murder Case.
coMMoNwEAIrH VS.. LENA MILLER.

The case of Lena Miller, now under SEN
tence of death in this county. for the MUIR
der of her husband, Xavier Miller, by means
of poison, is at end so far as the courts are
concerned. The opinion of Judge Thomp
son, of the Supreme Court, which we sub
Join, disposes of the case, and the record
now goes to the Governor for final action.
Plior to 1860, criminal cases could not be
removed by Writ of Error to the Supreme
Court for revision, but the Act of Assembly
of the 3lst of March, 1860, authorized the
Supreme Court, or Judge thereof, on
cause shown to allow Writ of Error. Ac-
cordingly the counsel of Lena Miller applied
to Justice Thompson, at Philadelphia, for
an AUocatur, or in other words, to allow the
writ to issue for the removal of the case to
the Supreme Court. The motion was ar
gued by Messrs. Wallace and NJ Cullough,
two of the counsel, and was refused by
Judge Thompson, who filed the following
opinion:
The application for writ of error in this
case made under the provisions of the Grim
inal procedure act of 1860, is founded and
rests mainly on an exception taken to one
point in the charge of the learned President
of the Court. 1t is true, there are one or
two other reasons assigned of less apparent
const quence For instance, that the docket
entries in the case do not show that the bill
of indictment was returned to the court by
grand jury If, according to the utmost
strictness, this was Objectionable, it is mere
ly formal and technical, and was waived by
pleading and going to trial without objection.
Sec. 53, of act of 1860 1t was not obiec-
| tionable, however, for the Indictment and
the return of true bill, signed by the
foreman, is part of the record in the case,
and proves the finding and return by the
grand jury.
That the Court heard objections to the
testimony of the witness, who proposed to
| swear to confessions by the prisoner in the
presence ofsthe jury, and also counter tes-
| timony to exclude it, was not made the sub
ject of an exception, and we do not know
whether it was likely to affect the prisoner
injuriously or not, for we do not know what
was said or done on the occasion. We can
not, therefore. say or presume there was
error. Indeed, | see not how Court could
do otherwise than was done in this case, viz:
to hear and determine objections as they
rose in the presence of the jury. The dis
cretion of Court is to be presumed sufi-
cient protection to the prisoner in matters
pertaining to the mode of conducting the
trial. We have no reason or ground to fear
that it was not so in this case, or to appre-
hend wrong done to the prisoner.
We see no inadequacy in the charge to
the requirements of the case. 1t was full,
cautious. and well considered, and not a
word appears in it Of which the prisoner,
in view Of the testimony, could justly com
plain. That portion of it embraced in the
exception is as follows, and is to be found
near the end of the charge, thus 'sIf, then,
after a careful examination and comparison
of all the evidence in the case, you are con-
vinced, and believe, first that the deceased
came to his death by poison, and secondly,
that the poison was voluntarily and 'crimi
nally administered by the prisoner, it is your
duty to render a verdict of murder in the
first degree" The statute expressly de-
clares that the voluntary killing 10y such
means shall be deemed murder in the first
degree. Was it not, therefore, the duty of
the jury so to find if the facts established
wiltul and criminal administration of the
poison, and that it produced death? No
one will doubt this, nor consistently doubt
the right Of the Court to advise them SO to
find.
The objection, however, is not to the ac-
curacy of the instruction, but to its charac-
ter, because it was thought to be binding
instruction on matter solely within the
province of the jury to find, to wit : the de-
gree. BY reference to the charge, it ap-
pears that the learned Judge, almost in the
outset, distinctly told the jury that they were
constitutionally the judges. both of the law
and the facts, and that his duty consisted
solely in advising them as to what the law
in such case was, and he proceeded to state
the degrees of murder as defined in the
statute, and what constituted murder in the
first and murder in the second degree The
instruction was, in my opinion, only advisory,
its form being considered, and most certain
ly so, by reference to this surrender of the
law to the judgment of the jury as well as
the facts. My brother Agnew, to whom |
submitted the point, agrees with me fully
herein. The case Of Rhodes VS.. the Com
monwealth, 12 W., 1896, is not in point in
this case. There the indictment was not in
form at common law 1t was under the
statute, and did not allege the means by
which the murder was perpetrated. The
Court, seeming to be of opinion that the
killing, if done by the prisoner, must have
been in the perpetration of the crime of
robbery, charged the jury, that if they be-
lieved the prisoner guilty of the murder,
they must find him guilty of murder in the
first degree. This was clearly binding in
struction, and we reversed the Judgment.
1t was a very different instruction from that
given in this case. Indeed, in this case, the
Judge has scrupulously followed what we
said, in that, to be the duty of judge in
such trials, viz ''to advise the jury of the
distinction between the degrees of murder:
to apply the evidence. and to instruct them
to which of the degrees it pointed" The
entire propriefv of the charge in the n.,+;n