1778.
I
NDICTMENT for High Treafon.–A witnefs was called to prove, that the Defendant had attempted to prevail upon him to enlift with the Britiƒh army ; but that he did not fucceed. This gave wife to a queftion on thefe words of the act of Affembly:––" That, if any perfon or perfons knowingly and willingly fhall
"aid or afflift any evidence at open war with this State &c. by per-
"juading others to enlift for that purpofe &c. he fhall be adjudged
" guilty of high treafon " a State Laws p. 18.19.
In fupport of the profecution, it was urged, that the attempt to prevail, conftituted the crime ; and that it was like the cafe of a man's fending intelligence to the enemy, which wasas act equally criminal in the fender, whether the intelligence was received, or not.
For the Defendant, it was argued, that perfuading implies fuccefs :–ƒuadre fignifying to advife, and perfuades to advife through, or fuccefsfully : And, therefore, it cannot properly be faid of any perfon, that he was perfuaded, unlefs he has done fome act in confequence of his perfuafion.
by the court:––There is proof of an over act, that the prifoner did enlift and evidence is now offered to fhew, that he alfo endeavoured (illegible text) others to enlift, in the armies of the enemy. But we are of opinion, that the word perfuading, ufed by the legiflature, means to fuceed ; and that there : muft be an actual enliftment of the perfon perƒuaded, in order to bring the Defendant within the intention of the claufe. 2 Lord Ray. 889.
The evidence offered, however, if proper to fhew (illegible text) the prifoner himfelf joined the Britiƒh forces.
The counfel for the Commonwealth then offered to give in evidence, the confeffion of the Defendant, that he was going to the Heed of Elk, in order to communicate fome information to Mr. Gallaucy, who had at that time gone over the enemy.
But it was oppofed by the adverfe counfel, who contended, that a confeffion, unlefs in open Court, had never been evidence to convict Trial, though under the 1 Edward 6. it is faid a man might lurts a confeffion ; 2 Hawk. 256. yet, that ftatute does not extend to Pennƒlvania, and by the 7 W.3.c.3. it is exprefsly declared, that no man can be indicted, arraigned, or tried, in a cafe of treafon, but by the teftimony of two witneffes, or the coneffion of the party made, without violence, in open Court. Foƒt. 10. 241. 2. 3. But the act of Affembly of Pennƒlvania totally excludes a conviction by confeffion. See Prim. Pen. Law 149. A confeffion may, indeed, be given in evidence to corroborate a treafon that has already been eftablished by two witneffes ; but not to prove the treafon itfelf.
1778.
by the court :––To prove the Defendant's confeffion by two, witneffes is certainly not fufficient, under the ftature, to convict him. But a confeffion after the fact, if proof of the ƒact itʃelʃ ; and though not competent alone to fupply the want of two witneffes, yet it is good by way of corroboration : And, therefore, if an overt act has been proved in the county of Choƒler by two witneffes, the evidence now offered will be proper, in confirmation of their teftimony.
One of the overt act, then, laid in the indictment, is aiding and (illegible text) the enemy by joining their armies, and this had been legally and (illegible text) proved. Not withftanding, therefore, the other overt act of giving intelligence to the enemy, is not fupported by any evidence, but the Defendant's own confeffion now offered, and which is in that refpect infufficient ; yet, it may be produced to fubtantiate another fpecies of treafon ; and on that ground we now admit it ti be proved. See Foʃter 10. 244. 5. Bacon's Abr, 145. Gregg's Cafe. 2 Hawk. A42.
The Attorney General and Reed, for the Commonwealth–Roʃs and Wilʃon, for the Defendant.
The prifoner being convicted by the Jury, his counfel moved the Court to fet afide the verdict, and grant a new trial, because he was advifed, ‘‘that the evidence given refpecting his declarations, on confeffions, was altogether illegal, and ought not to have been allowed. ’’
After argument, by the fame counfel, on both fides, the motion was refufed BY THE COURT, who gave judgment for the Commonwealth ; and the Defendant, a fhort time afterwards, was, accordingly, executed.