Clearfield Republican. [volume] (Clearfield, Pa.) 1851-1937, 1867-08-22
Iena .u,lfer,s Case.

The Counsel for the defence In the
case Of the Commonwealth Is, Mrs.
Miller, at June term, took an appeal
to the Supreme Court The case came
up before that body on the 9th inst,
when the following opinion was rem
dercd by Justice Thompson;
"The application for writ Of error in this case
made under the provisions of the criminal proceed
ure act Of 1869, & founded and rests mainly on an
exception taken TO one point In the charge Of the
learned President Of the Court. Ii Is true, there
are one or two other assigned Of less appa-
rent consequence. For instance, that the docket
entries in the case do not show that bill Of in
dictment was returned TO court by a grand jury.
IT, according to the utmost slrictness this was OBJ
jectionable, il is merely formal and technical, and
was waived by pleading and going to trial with
out objection. Sec. 50 Of act of 1860. II was not
Objectionable, however, for the indictment and the
return Of "true bill signed by the foreman, is
part Of the record in the ease, and proves tho nd-
ing and return by the grand jury.
"That the Court heard objections TO the tcstimo-
ny Of the witness, who proposed to swear to con
fessions by the prisoner in the presence Of the u-
ry, and also counter testimony to exclude II, was
not mauc the tui1tct OF an cAceptlous ana NC 10
not know whether il was likely TO effect the pris
oner injuriously or not. for We do not know what
was said OF done on the occasion. We cannot,
therefore, say OF presume there was error Indeed,
see not how q Court could do otherwise than was
done In this case, viz; 10 hear and determine OBJ
jectons as they rose in the presence of the jury.
The discretion Of Court is to be presumed suf-
cicnt protection to the prisoner in matters pertain
ing to the mode Of conducting the trial. We have
n sl..N a -.
this case, or 10 apprehend wrong done to the
prisoner.
eve see no inadequacy in the charge to the re-
quremcnts Of the case. II was full, cautious, and
well considered, and not a word appears in it Of
which the prisoner in view Of the testimony, could
justly complain. That portion Of it embraced in
the exception is as follows, and TO be found near
the end Of the charge thus II, then, after care
ful examination and comparison Of all the evidence
in the case, you are convinced and believe, first,
that the deceased came to his death by poison, and
secondly that the poison was voluntarily and Grim
inally administered by the prisoner, il is your du
ty 10 render verdict Of murder in the first de-
gree. The statute expressly declares that the vol
untary killing by such means shall be deemed
murder In the frst degree. Was il not, therefore,
the duty Of the jury to find II the facts esiab
hshed a wilful and criminal administration Of the
poison, and that Il produced death No one will
doubt this, nor consistently doubt the right Of the
Court 10 odrise them 50 to find.
"The objection, however, Is not TO the accuracy
Of the instruction. but to its character, because II
was thought TO be a binding instruction on a mat
ter solely within the province Of the jury TO find,
TO wit the degree. by reference 10 the charge, 1t
appears that the learned Judge, almost in the out
set, distinctly told the jury that they const
utionally the judges both Of the law and the facts,
and that his duty consisted solely in advising them
as 10 what the Law in such a case was, and he pro
oeeded to state the degrees Of murder defined in
the statute, and what constituted murder in the
6rst and second degree. The instruction was, 10
my opinion, only advisory, its form being consid-
cred, and most certainly so by reference to this
surrender OF the law to the judgment Of the jury
as well az the facts My brother Agnew, to whom
| submitted the point agrees with me fully herein.
The case of Rhodes rs the Commonwealth, II W,
800, Is not in point in this case. There the in
dictment was not in form at common law. II was
under the statute, and did not allege the means by
which the murder was perpetrated. The Court,
seeming 10 be Of opinion that the killing, II done
by the prisoner, must have been in the perpotra-
ton Of the crime Of robbery, charged the jury, that
If they believed the prisoner guilty Of the murder,
they aust find him guilty Of murder in the fret
degree This was clearly binding instruction,
and we reversed the judgment Itwas very diff
ferent instruction, from that given in this case.
Indeed, in this case the Judge has scrupulously
followed what we said in that, 10 be the duty Of
Judge In such trials. viz, TO advise the jury Of
tho distinction between the degrees Of MURDER to
apply the cyidence, and to instruct them to which
OF The degrees it pointed The entire proprcty
Of the charge in the particular referred to viii
strike the mind still more readily when Il Is re-
membered that the indictment charged n wiliul,
malicious and feonious murder by poison, and
there was not a syllable Of evidence TO show that
IL the prisoner administered the poison, It was not
designed TO result in the death Of her husband,
Il did. Not a word was Uttered by any witness 10
found a hypothesis for a verdict Of murder in the
second degree.
"Tho act Of the 5lst Of March, 1860, requires
cause 10 be shown before the Court or judge is
authorized 10 allow a writ Of error There must
be grounds Of possible error committed by the
Court in the trial or In the record shown. II any
thing had been shown in this ease TO raise doubt
of the accuracy Of the tral-of the correctness Of
Judicial actor in il, I would certainly allow the
writ Of error-but / cannot doubt even. Cause
not having been shown, am therefore obliged, In
obedience 10 the statute, TO refuse the duscoiur
prayed for Aliocatr refused.
This decision settles the case so far
as the Judiciary is concerned, and it
now becomes the duty Of the Execu-
tive to fix the day of execution. What
time the Governor will consume in
considering the case, or whether a
pardon will be applied for, we cannot
now tell.