1778.
It is here particularly ſtated, that the Defendant took a commiſſion, under the king of Great-Britain, to watch and guard the gates of the city of Philadelphia; and the offence is certain enough in this deſcription, though, without ſome overt act, it would not be ſufficient for a conviction. In order to prove an overt act, however, evidence has been offered to ſhew, that the priſoner had a power of granting paſſes into, and out of the city, which was at that time in the poſſeſſion of the enemy. In Foſt. 10. a witneſs depoſed, that one Berwick was confined in the room aſſigned for the rebel officers taken at Carliſle by the duke of Cumberland; and this was deemed a ſufficient proof of his holding a commiſſion. The Court, on the preſent occaſion, however, are of opinion, that the evidence which is offered, ought to be received, but not as concluſive proof of the Defendant’s having taken a commiſſion. Nor will the evidence of ſeizing the ſalt, or any act of diſarming the inhabitants whom the Defendant called Rebels apply to this ſpecies of treaſon; however they may ſupport the allegation, of his having joined the armies of the king of Great-Britain.
We think it is ſufficient, alſo, to lay in the indictment, that the Defendant ſent intelligence to the enemy, without ſetting forth the particular letter, or its contents: And, though the charge of levying war is not, of it itſelf, ſufficient; yet aſſembling, joining and arraying himſelf with the forces of the enemy, is a ſufficient overt act, of levying war.
By the Court:—Let the witneſs be ſworn.
The Attorney General and Reed, for the Commonwealth—Roſs and Wilſon for the Defendant.
The Defendant being convicted by the verdict of the Jury, his counſel filed the following reaſons in arreſt of judgment:
1ſt. For the indictment is vague and uncertain, their being no overt-act expreſsly or particularly aſcertained, as the priſoner is adviſed it ought to be.
2dly. For that the formal part of the indictment is not drawn with ſufficent preciſion.
3dly. For that the ſeveral facts are ſo uncertainly charged, that the priſoner could not be apprized of the particulars urged againſt him. And
4thly. That the whole wants form and ſubſtance.
Theſe reaſons were elaborately diſcuſſed on the 5th of October, 1778, by the ſame counſel on both ſides: But, upon mature conſideration, they were finally over-ruled by the Court, who gave judgment for the Commonwealth; and the Defendant, a ſhort time afterwards, was accordingly executed.
