Year: 1861

tion and impeachment OF witnesses, and did
not instruct them upon the legal effect of a
quarrel and affray We need only say that no
such instruction was asked, and that no evil
dence of quarrel or affray was given.


The fifth assignment is, ssthat the Court err
red in not distinctly instructng the jury that
the case made out by the Commonwealth was
insufficient in law to warrant conviction of
murder in the first degree.'' Had such in.
struction been given, it would have been griev-
GUS error. There was evidence that the pris-
oner had, before the fatal occurrence, treated
his wife harshly and brutally that he had Of
ten threatened to inflict serious injury upon
her; that only three or four days before the
homicide, on his way from home, he had with
"heavy oaths'' renewed his threats to abuse
her, because she had demonstrated with him
on account of his absence from home on the
Sabbath; that at his very next interview with
her, he shot her through the body, causing
her death in four hours and that the next
day he spoke of his having been instigated to
the deed by the devil. In face of this evil
dence it would have been quite too much tor
the Court to have charged the jury that the
case was insufficient in law to warrant con-
viction of murder in the first degree.


The next assignment of error is, s'that the
indictment is insufficient in law to sustain
conviction of murder in the first degree, IN
that it fails to meet the Constitutional require
ment," the nature and cause of the accusation
not being fully set forth. The Indictment is
in strict conformity with the requirements OF
the Goth section of the Act of March 81, 1S6 ;,
(Pena Code) the Criminal Procedure Act.
We do not think that act in conflict with the
constitutional provision that in all criminal
prosecutions the accused shall have the right
to be informed of the ssnature and cause of the
accusation against him." An indictment must
exhibit the ssnature and cause of the accusa-
tion,'' that is, must set out the crime laid to
the charge of the accused, but the mode in
which the crime is committed, the instrument
with which the murder was effected, whether
it was held in the right hand or 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 no merit in
this assignment.


Another averment of the plaintiff in error is
that the sentence was improperly pronounced,
because the charge of the Court was excepted
to, but was not filed until after the Judgment
was given. If there were anything in the ex-
ception, it could avail him but little, for then
it would be our duty to pass sentence. But
there is nothing in it.. Everything that was
necessary TO giving Judgment was upon the
record when sentence was pronounced. True,
the charge was not there, but that was needed
for review, not for sentence. 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 was not therefore under OBJ
legation to file his charge Immediately on de-
livery, especially as the exceptions were in the
usual form. and there no request that he
should reduce his whole opinion and charge as
delivered to the jnry to writing at the time of
the delivery of the same, and forthwith file 1t
of record.


The only remaining assignment of error is
the eleventh. 1t is that the sentence is indefi-
MI no ina hat tnp ra6 for hain iaI
into effect and no other person having legal
authority to fix the time. This is certainly
novel exception to be taken at this late period
in the history of the Commonwealth. Itwould
be out of place here to spend time in showing
how the power to designate the time of execu-
tion is vested in the Governor. That it always
has been exercised by him is not denied and
it would not be difficult to show that it has
been rghtfully exercised. But that question
is not on this record. The matter for our
consideration is whether sentence of death
which does not appoint day for execution is
proper sentence.


Our act of Assembly of the 3lst of May,
l41S, entitled san act for the advancement of
justice and more certain administration there
Off enacted that whenever convictions should
happen it should be lawful to give judgment
s'accordlng to the manner, form and direction
of the laws of that part of Great Britain, ,called
England, in the like cases.' This provision
was indeed hardly necessary, for without it
our Courts, being Common Law Courts, would
have mad that power unless restrained by stat
ute. The manner and form of giving judg-
ment in England in 17lS, in cases ofconvic-
tion for murder was precisely that which the
Court of Oyer and Terminer adopted in this
case. The convict was sentenced to death by
hanging, but the sentence did not fix the time
and place of execution. That such was the
mode and form of pronouncng Judgment in
fn1 IL
Hastall's Entries, Hales, Pleas of the Grown,
399; Coke's Entries 352, and Burr, 1872.
Nor was it changed by the statute of "a Geo.
2, C 81, which enacted that all persons found
guilty of murder should be executed on the
next day, but one after sentence passed.


See Burrows, 1872, Rex VS.. King. ct
al; decided in 1765. In that case it was said
not to be usual at the Assizes to fix the day and
place of execution. The judgment in this case
was then strictly in accordance with the forms
and requisites of the law. We have thus re-
viewed this entire record, and the conclusion
to which We have come is, that it exhibits no
reason for reversing the judgment of the Court
below. The judgment is affirmed.


Justice Woodward read his opinion dissent
ing from the views of the majority of the Court.


--~~~--


A Touching INCIDENT.-A Southern gentle
man. an ardent Union man, wrote to his friend
in New York that he lad lost child. He
couu not Dear Lnat IL Snould Ole under the L al
metto flag. 1t had been born under the stars
and stripes, and the patriot father wished it to
breathe its last under the same national en-
blem. He procured little flag, one of those
so often in the hands OF our children and in
use on festive occasions, and as his dying child
was sinking into the arms of death waved
above its head the mimic standard of yet
loved and powerful though assaulted Union.
Rest assured that man can be safely trusted
with his country's honor.


TILE ,,rf.