(Commonwealth v. Earle.) 2. That it is not alleged in the indictment that the chocolate in which it is averred that the white arsenic was mixed and mingled, was given to the said Catherine Earle to drink, either by the said John Earle, or any other person. 3. That the second count does not allege that the defendant intended to commit the crime, of his malice aforethought, as is therein alleged he did commit it." A motion for a new trial was also made; but after argument the Court overruled both motions, and passed sentence of death on the prisoner. An application was then made to the chief justice, for a special allocatur to a writ of error; and the following reasons were assigned in writing, by Mr. Parsons, counsel for the prisoner. "1st. That that the Court erred in not arresting the judgment on the first reason assigned upon the record. 2d. That the Court erred in not arresting the judgment on the second reason assigned upon the record. 3d. That the jury did not ascertain in their verdict the degree of murder of which the prisoner was guilty: whether of murder in the first or second degree; as they were bound to do according to the provisions of the 2d section of the act of the 22d of April, 1794. 4th. That the Court erred in pronouncing sentence of death upon the prisoner, as the verdict of the jury is now rendered." "The first reason assigned in arrest of judgment is, "That it is not alleged in the indictment, that the defendant knew the white arsenic to be a deadly poison, as by law the commonwealth are bound to allege." In indictments, precedents may be said to be law; and on a careful examination of the books of forms in criminal cases, but one precedent is found where it is not averred that the defendant knew that the substance was a deadly poison. In Archbold Criminal Pleadings, page 233, the form is so. In 3d Chitty Crim. Law, page 530, the form is thus drawn. In the next page the form is so-in the following pages the form is in the same manner; and it appears to be a very necessary averment-for one might innocently administer poison as a medicine, ignorant that it would kill: or it might be given to a sick person through mistake. And the knowledge and intention with which the poison is given, seem to constitute the very essence of the offence in such a case. In Pennsylvania, where there are two degrees of murder, it seems indispensably necessary. The only precedent believed to be at variance with the above view, will be found in 8d Chitty, 528; and it is believed, that in this case, which was the indictment against Mary Blandy, for the murder of her father, the indictment was drawn to meet the facts of the case. And by a reference to the facts in her (Commonwealth v. Earle.) case, it will be seen that her confession was the principal evidence relied upon. It appeared that she had formed an attachment, in which she was opposed strongly by her father, and that the person to whom she was attached, conveyed to her in a letter some white powders, which he informed her if given to her father, would cause him to change his views upon the subject of her marriage. She gave the powders to him, and in her confession denied unequivocally, that she knew they contained a poisonous substance. Now, if it had been averred that she knew that it was a deadly poison, the prosecution would be bound to satisfy the jury of the fact, and probably they might not have been able to do it. In England, such an indictment might be good, but in Pennsylvania, it is submitted, that the law is otherwise; for in another part of my argument, an effort will be made to show, that one may be convicted of murder in the second degree, where the killing is by poisoning. The second reason assigned in arrest of judgment, and now alleged for error, is that "it is not stated in the indictment, that the chocolate, in which it is averred that the white arsenic was mixed and mingled, was given to the said Catharine Earle to drink, either by the said John Earle, or any other person." This is believed to be necessary; for in all cases where a murder is committed by a blow, it should be explicitly stated that the same was given by the prisoner. See 2d Hawkins' P. C. If the poison was mixed and mingled by the prisoner, and it was taken by the deceased through mistake, or without his knowledge or procuring, he could not be convicted of murder in the first degree. But what is conceived to be strong ground why a writ of error should be allowed, and why the judgment should be reversed, is, that the jury have not found the degree of murder of which the defendant was guilty. This I believed to be indispensably necessary under the act of the 22d of April, 1794. That act places all murder, "perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, and premeditated killing, or which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, or burglary," upon the same footing. And the act expressly provides, that the jury before whom, any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree. Here is a positive and absolute direction to the jury, as to the form and manner of their finding, and one which cannot be disregarded without violating the act of assembly; the law is imperative, and it is the duty of the court, to see that a jury find their verdict in accordance with the law. And what adds great force to the view taken of this requisition, is the clause which follows, and which declares, that if such person shall be convicted by confession, the court shall proceed by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly. No matter (Commonwealth v. Earle.) in what form the indictment is drawn, nor how the killing is alleged to be done. No distinction is made by the act, in the finding of the jury, let the charge be made as it may in the indictment. And it is submitted, that the legislature could hardly have found language to have pointed out the duty of the jury in more emphatic terms. But it is alleged, that there is a dictum in the case of the Commonwealth v. White, (6th Binney, 179,) that militates against this construction. It is, however, a mere dictum, and not the point decided in the cause; and it is inconsistent with a principle advanced by the learned judge in the preceding sentence. The chief justice, who delivered the opinion of the court, there remarks, "if the indictment were so drawn as plainly to show that the murder was of the first or second degree, all that the jury need do, would be to find the prisoner guilty in manner and form as he stands indicted." Without stopping to inquire, whether an indictment might be so drawn, as to supersede the necessity of the jury finding the degree, it will be sufficient to show, that the indictment against Earle is not of that character. For there can be no doubt, but that one guilty of killing another by poison, may be guilty of murder in the second degree; and a jury under the laws of this state, would have a right so to find. It is the deliberation, or premeditation with which the act is done, that constitutes the crime of murder in the first degree. Suppose, in the case of Mary Blandy, the jury had been fully satisfied that she was ignorant that the powders contained a poisonous substance, but supposed them to be really what she asserted they were represented to her to be," Love powders," and that their effect would be to reconcile the father to her choice: might not a jury with propriety find such defendant guilty of murder in the second degree? Other similar cases might be put, yet in all, the indictment would be for murder by means of poison, as in the case under consideration. Hence, it is submitted, that the indictment in the case of Earle is not so drawn, as to dispense with the necessity of the degree of murder being fixed by the jury, before sentence of death could be given. There is no doubt, but that a penal statute like this, ought to be construed strictly in favour of life; and there is as little doubt but that a jury, in a case of killing by poison, should designate the degree of the murder by their verdict, as in any other case; for supposing the indictment had alleged that the killing was premeditated, would not the jury be bound to find the degree? In the case of Pennsylvania v. M'Falls, (Addison's Rep. 255,) tried in 1794, and also in the case of Pennsylvania v. Lewis, (Addis. Rep. 279,) tried in 1796, it will be found, that the jury ascertained the degree of murder by their verdict. And it is believed, that it will be found on examination of the criminal records, from the passage of the act of 1794 to this time, that the jury had always found (Commonwealth v. Earle.) the degree of murder where judgment has been rendered on the verdict." The case was considered by the Court, then sitting in Bank in Philadelphia; and the following note of their opinion, was furnished by the Chief Justice to the Reporter. THE COURT felt itself bound to refuse an allocatur: 1st, Because it is not entirely clear, though the weight of authority from precedent is the other way, that the indictment is insufficient for want of an averment, that the prisoner knew the substance employed to be a deadly poison. In Mary Blandy's case, (1 Hargr. St. Tr. 1,) the prisoner was executed, though the indictment contained no such averment. Yet it is undoubtedly the safer course to insert it, ex majori cautela: 2d, Because, such a defect could not by any possi bility affect the question of innocence or guilt before the jury; and it is not the duty of the Court, for such a cause, to grant a writ of error; which, being, in criminal cases of grace and not of right, was refused on the same suggestion, in the Commonwealth v. Immel, (6 Binney, 403;) The Commonwealth v. Pennock, (3 Serg. & R. 199,) and The Commonwealth v. Cox, at the present term. 3d, Because the want of an allegation, that the prisoner gave the poison to the deceased to drink, is clearly immaterial. If delivered by any one else, or taken by the deceased without delivery, the felonious purpose would be equally accomplished, and the guilt the same. 4th, And because, "all murder perpetrated by means of poison," being equally of the first degree, there is neither necessity nor room for discrimination by the verdict, where the degree of the offence charged, is fixed in the indictment. It would be of decisive weight, were an authority wanting, that this principle, though not decided, was asserted in White v. The Commonwealth, (6 Binney, 183.) The provision for ascertainment of the degree by verdict, was intended for cases in which the jury might be at liberty to find the prisoner guilty in the second degree; but, as in cases of murder by poisoning, the prisoner is guilty, if at all, in the first degree, and as a verdict of guilt in another degree would not be received, the law will not require, though it might endure, the performance of an act so nugatory as an attempt at classification, where there is no difference, or the marking by verdict, of a measure of guilt pre-established by the law itself. Allocatur refused, [PHILADELPHIA, MARCH 27th, 1826.] M'LEOD against LATIMER and Another. IN ERROR. A. being indebted to B. indorsed certain notes for his accommodation, which were discounted by the bank of P. Shortly afterwards A. made an assignment for the benefit of creditors, stipulating for a release, which was executed by B. but not by the bank. Then B. also made an assignment, stipulating for a release which was executed by the bank. The assignee of A. made a dividend of 50 per cent. which was paid to the bank among others, as a creditor upon the notes. The assignees of B. made a dividend of 75 per cent. and paid the bank 50 per cent. on the notes; and at the request of his creditors, his assignees re-assigned the remaining property to him. In an action by B. against the assignees of A., it was held, that he was entitled to recover 50 per cent. of the debt due him by A., deducting the difference between the 75 per cent., the dividend payable upon the notes by the assignees of B., and the 50 per cent. actually paid by them to the bank. THIS was a writ of error to the District Court for the City and County of Philadelphia, to remove the record of an action on the case for money had and received, brought by John M'Leod against George Latimer and Joseph Clark. The defendants were assignees of Jehu Hollingsworth under an assignment made on the 28th of June, 1817, for the benefit of creditors; and the action was instituted to recover the sum of $1266 14, being a dividend of 50 per cent. on the estate of Hollingsworth, alleged to be due to the plaintiff. A case was stated by the parties in nature of a special verdict; the material facts of which are set forth in the opinion of the Court; which was delivered by TILGHMAN, C. J.-On the 17th May, 1817, Hollingsworth was indebted to the plaintiff on a running account; the amount of which was in dispute, but afterwards was settled by arbitrators, who awarded $2502 in favour of the plaintiff. The plaintiff drew three promissory notes of $900 each, payable to Hollingsworth, which were indorsed by him for the accommodation of the plaintiff, who had them discounted in the Bank of Pennsylvania, and received the full amount for his own use. The notes were dated 17th May, 17th June and 21st June, 1817, and all payable 60 days after date. On the 28th June 1817, Hollingsworth made an assignment of all his estate to the defendant, for the benefit of such of his creditors living within the United States, as should execute a release to him of all demands, within four months from the date of the assign |