well proved, it is sufficient to entitle the com- The CHIEF JUSTICE delivered the opinion of the M'KEAN, Chief Justice. There are three species of treason in Pennsylvania: First, To take a commission or commissions from the: king of Great Britain, or any under his authority; secondly, To levy war against the state or government thereof; and thirdly, Knowingly and willingly to aid and assist any enemies at open war against this state, or the United States of America. With respect to this third species of treason, the legislature has further explained the meaning of the words, aiding and assisting, to be, "by joining the armies of the enemy, or "by enlisting, or procuring, or persuading others "to enlist for that purpose; or by furnishing "such enemies with arms or ammunition, pro"vision, or any other article, or articles, for "their aid or comfort, or by carrying on a "traitorous correspondence with them."-All these several species of treason are laid in this indictment. 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 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 that the indictment is vague and uncertain, there 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 sufficient 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. Under the act of 1777, there must be an actual enlistment of the person persuaded to constitute the offence of treason. two witnesses is not alone sufficient to convict him, Although the Defendant's confession proved by yet where an overt act is proved, the confession may be given in evidence to substantiate it, although of another species of treason. 38*] *It is here particularly stated, that the *RESPUBLICA . JOHN ROBERTS. [*39 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 1.-An act of Assembly passed the 3d December, 1782, has increased the number of treasons, by dec'aring, that "erecting, or endeavoring to erect a "new and independent government within this "commonwealth "-and also "setting up any no"tice, written or printed, calling the people to"gether for that purpose," are acts of high treason. See 3 St. Law, 122. INDICTMENT for High Treason. A witness was called to prove, that the Defendant had attempted to prevail upon him to enlist with the British army; but that he did not succeed. This gave rise to a question on these words of the act of Assembly:-"That if any person or "persons knowingly and willingly shall aid or assist any enemies at open war with this state, "&c. by persuading others to enlist for that pur"pose, &c. he shall be adjudged guilty of high "treason." 2 State Laws, p. 18. 19. In support of the prosecution, it was urged, that the attempt to prevail constituted the crime; and that it was like the case of a man's sending | cludes a conviction by confession. See Prin. intelligence to the enemy, which was an act equally criminal in the sender, whether the intelligence was received, or not. For the Defendant, it was argued, that persuading implies success;-suadeo signifying to advise, and persuadeo to advise through, or successfully: And, therefore, it cannot properly be said of any person, that he was persuaded, unless he has done some act in consequence of his persuasion. BY THE COURT:-There is proof of an overt act, that the prisoner did enlist, and evidence is now offered to shew, that he also endeavored to persuade others to enlist, in the armies of the enemy. But we are of opinion, that the word persuading, used by the legislature, means to succeed; and that there must be an actual enlistment of the person persuaded, in order to bring the Defendant within the intention of the clause. 2 Lord Ray. 889. The evidence offered, however, is proper to shew quo animo, the prisoner himself joined the British forces. The Council for the Commonwealth then offered to give in evidence, the confession of the Defendant, that he was going to the Head of Elk, in order to communicate some information to Mr. Galloway, who had at that time, gone over to the enemy. But it was opposed by the adverse Counsel, who contended, that a confession, unless in open Court, had never been evidence to convict. That, though under the 1 Edward 6. it is said a man might be convicted of treason, by the testimony of two witnesses, or his voluntary confession; 2 Hauck. 256. yet, that statute does not extend to Pennsylvania, and by the 7 W. 3. c. 3. it is expressly declared, that no man can be indicted, arraigned, or tried, in a case of treason, but by the testimony of two witnesses, or the confession of the party made, without violence, in open Court. Fost. 10. 241. 2. 3. But the act of Assembly of Pennsylvania totally ex28 Pen. Law, 149. A confession may, indeed, be given in evidence to corroborate a treason that has already been established by two witnesses; but not to prove the treason itself. *BY THE COURT:-To prove the De- [*40 fendant's confession by two witnesses, is certainly not sufficient, under the statute, to convict him. But a confession after the fact, is poof of the fact itself; and though not competent alone to supply the want of two witnesses, yet it is good by way of corroboration: And, therefore, if an overt act has been proved in the county of Chester by two witnesses, the evidence now offered will be proper, in confirmation of their testimony. One of the overt acts, then, laid in the indictment, is aiding and assisting the enemy by joining their armies, and this has been legally and satisfactorily proved. Notwithstanding, therefore, the other overt act of giving intelligence to the enemy, is not supported by any evidence, but the Defendant's own confession now offered, and which is in that respect insufficient; yet, it may be produced to substantiate another species of treason; and on that ground we now admit it to be proved. See Fost. 10. 244. 5 Bacon's Abr. 145. Gregg's Case. 2 Hawk. 442.1 The Attorney General and Reed, for the Commonwealth-Ross and Wilson, for the Defendant. RESPUBLICA v. CORNELIUS SWEERS. The United States became a body corporate from the period of their association. An indictment may be maintained for a cheat of such a nature as may prejudice, although it does not charge that any person was actually defrauded. AT a Court of Oyer and Terminer, &c. held 66 66 66 66 "I do certify that the above was purchased and delivered to me for the use of the Laboratory at Carlisle. ISAAC CORAN, Captain of the Artillery. "and on the back side of which said writing is indorsed and written the words following; that is to say: Received the within contents "in full Margaret Duncan: He the said Cornelius Sweers, afterwards, to wit, on the same day and year aforesaid, at Philadelphia aforesaid, in the county aforesaid, with force and arms, the said bill of parcels or writing, falsely, fraudulently, and deceitfully, did alter, and cause to be altered, by falsely making, forging and adding the figure 4 to and before the figure 9, in the second item of "the said bill of parcels or writing, which at Philadelphia in November, 1778, the Defendant was indicted for Forgery upon two bills. The proceedings were removed by certiorari returnable into this Court, on the 5th day of December following; and the issues, on not guilty pleaded, were tried before a special jury on the 14th April, 1779, when the Defendant was convicted upon both indictments. Afterwards he filed reasons in arrest of judg-figures and letters did, before such last men ment, of which a recapitulation will be found in the sentence of the Court; and these reasons were argued, and over-ruled, on the 19th day of the same month. The first indictment was for altering a bill of parcels and receipt given by Margaret Duncan, for goods bought from her, with intent to defraud the United States; and the charge was set forth in the following words: "Philadelphia county, ss. "The Jurors for the Commonwealth of "Pennsylvania, upon their oaths and affirma*tions, do present, that Cornelius Sweers, late "of the county aforesaid, yeoman, on the 4th day of February, in the year of our Lord "1778, and long before, and since, was a Deputy Commissary General of military "stores, in the armies of the United States of "America, and entrusted and employed by "Colonel Benjamin Flowers, the Commissary "General of military stores in the armies afore"said, and by the honorable Continental Congress, to make purchases of military stores, "and of divers other articles, necessary and "fitting in the preparation of military stores, for the use of the armies aforesaid, and to make payments, and take receipts, bills of "parcels, and other vouchers therefor. And 64 64 the Jurors aforesaid, upon their oaths and 'affirmations aforesaid, do say, and further 42*] present, that the said Cornelius Sweers, "on the same 4th day of February, in the year 'aforesaid, at the city of Philadelphia, in the county aforesaid, having in his custody and possession a certain bill of parcels or account, with a certificate and receipt, all in writing, for a parcel or quantity of flannel cloth, by him "purchased of one Margaret Duncan, for the use of the Laboratory of the same armies, and "which said writing was in the words, figures, "ciphers and letters following; that is to say: United States of America, tioned forgery, import and signify nine yards, but by reason and means of such last menimport, and signify forty-nine yards; and also tioned forgery and addition, did become, by forging and altering the figure 1, in the sum of the said second item in the bill of parcels or writing aforesaid, to the figure 8; which figures did, before such last mentioned alteration and forgery, import and signify fifteen pounds, and fifteen shillings, but, by "reason and means of such last mentioned alteration and forgery, did become, import and signify eighty-five pounds and fifteen 'shillings; and also by falsely forging and 'altering the figure 3 to the figure 4, and the 'figure 8 to the figure 5, in the sum total or "amount of the said bill of parcels or writing; which figures did, before such last mentioned forgery and alteration, import and signify three hundred and eighty-one pounds, seventeen shillings and five pence, but, by reason and means of such last mentioned forgery and alteration, did become, import and signify four hundred and fifty-one pounds, seventeen 'shillings and five pence, with intention to 'defraud the United States of America afore'said, of seventy pounds, of lawful money of Pennsylvania, to the evil example of all 'others, in like case offending, to the great damage of the said United States, and against 'the peace and dignity of the Commonwealth of Pennsylvania.' The Jurors for the Commonwealth of Pennslyvania, upon their oaths and affirmations, do present, that Cornelius Steers, late of the county aforesaid, yeoman, on the first day of July, in the year of our Lord one thousand seven hundred and seventy-seven, and long 'before, and since, was a clerk to the department of the Commissary General of military "stores, in the armies of the United States of America, and entrusted and employed by Colonel Benjamin Flowers, the Commissary 'General of military stores in the armies afore 'said, and by the honorable Continental Con'gress, to make payments, and take receipts, "bills of parcels, and other vouchers, for 'military stores, and for divers articles, neces'sary and fitting in the preparation of military stores, purchased for the use of the armies 'aforesaid, and to keep the accounts thereof: "And the Jurors aforesaid, upon their oaths "and affirmations aforesaid, do further present, "that the same Cornelius Sweers, on the same "day and year aforesaid, at the city of Phila"delphia, in the county aforesaid, contriving "and intending, falsely and fraudulently, to "deceive and defraud the United States aforeIsaid, with force and arms, falsely, wickedly "and unlawfully, did make, forge and counterfeit, and cause to be made, forged and "counterfeited, a certain writing, purporting to be a receipt for one thousand and twenty "pounds and fifteen shillings, and purporting "to be signed in the name of one Adam Foulk, "in the words and figures following, to wit, "3 Rec'd, 1st July, 1777, of Col. B. Flower, C. G. M. S. one thousand and twenty pounds 158. for 820 bayonet belts, and 920 cartouch "boxes for the use of the army. 66 "to the evil example of all others in like case "offending, to the great damage of the United "States, and against the peace and dignity of "the Commonwealth of Pennsylvania. And "the Jurors aforesaid, upon their oaths and "affirmations aforesaid, do further present, that "the said Cornelius Sweers, contriving and "intending the said United States, falsely and "fraudulently, to deceive and defraud, then "and there, with force and arms, the said "writing, so as aforesaid falsely made and "counterfeited, purporting to be a receipt for the sum of one thousand and twenty pounds "and fifteen shillings, and purporting to be signed in the name of the said Adam Foulk, wickedly, unlawfully and fraudulently, did publish, and cause to be published, as and for a true writing and receipt of the said Adam Foulk; which said falsely forged and coun44*] terfeited writing, is in the *words and figures following, to wit: "3 Rec'd 1st July, "1777, of Col. B. Flower, C. G. M. S. one thousand and twenty pounds 158. for 820 bayonet belts and 920 cartouch boxes for the use of the army. 66 66 £. 1020-15 ADAM FOULK. (he the said Cornelius Sweers, at the time of publishing the said false counterfeit writing "there by him in form aforesaid, well knowing the said writing to have been falsely forged "and counterfeited as aforesaid,) to the evil "example of all others in like case offending, to "the great damage of the said United States, "and against the peace and dignity of the Commonwealth of Pennsylvania.” 46 The prisoner being brought before the Court to receive sentence, M'KEAN, Chief Justice, addressed him to the following effect: Cornelius Sweers:-After a fair and full trial, you have been convicted of the crime of forgery, upon two indictments, by a special jury of your country. The offense stated in the first indictment, is that of altering a receipt given by Margaret Duncan, and the charge contained in the second indictment, is that of forging a receipt, purporting to be the receipt of Adam Foulk. Your Counsel have taken several exceptions to the form and substance of these indictments, upon a motion in arrest of judg ment. 66 The first exception was, "that, at the time of the offense charged, the United States were "not a body corporate known in law." But the Court are of a different opinion. From the moment of their association, the United States necessarily became a body corporate; for, there was no superior from whom that character could otherwise be derived. In England, the king, lords, and commons, are certainly a body corporate; and yet there never was any charter or statute, by which they were expressly so created. An indictment, however, may be sufficiently maintained upon an intent "to deceive my liege subjects;" and to that purpose there is a positive authority, not referred to by the Counsel, where a person was indicted, for having in his custody a piece of base metal, in the similitude of a six-pence, knowing it to be base, with intent to defraud the liege subjects, &c. 66 The second exception was, "that the charges in the indictments, were not direct and posi"tive, but only argumentative." On this point we cannot hesitate to declare, that the charges appear to us to be as direct and positive, as it was possible to express them. 66 The third exception was, "that the indict"ments do not charge that any person was actually defrauded." But in the King v. Webb, 2 Ld. Ray. 1461, all the Judges declared, that if the cheat be prejudicial, that is, of such a nature as may prejudice, an *indictment [*45 would well lie. In the case of forgery, properly so called, which includes only records, deeds, Wills, or public instruments, it may, perhaps, be necessary that some person should be actually prejudiced. This rule, however, does not extend to cheats of the present description; in which it is sufficient, that the act be of a prej udicial nature. Upon the whole, we are of opinion, that your conviction has been legal, as well as just; and, therefore, it only remains to pronounce the sentence of the Court. · Sentence, on the first indictment:-A fine of £. 70. and imprisonment until the 4th of July, the anniversary of American Independence. Sentence, on the second indictment:-A fine of £. 1020. imprisonment until the next annual election for Pennsylvania, and standing in the pillory for one hour.1 1.-See Post. Respublica v. Teischer, 2 Dall. Rep. 299. in note. 3 Dall. Rep. 54. Dall. 1. 46*] *The following appointments took place in the course of April and September Terms, 1780. The Honorable GEORGE BRYAN, Esquire, was appointed a JUDGE of the SUPREME COURT, on the 3rd day of April, 1780. Jonathan Dickinson Sergeant, Esquire, having resigned the office of Attorney General on the 20th day of November, 1780: William Bradford, junior, Esquire, was appointed Attorney General, on the 23d day of November, 1780. Supreme Court of Pennsylvania. It is an indictable offense in a public officer to impose false marks on stores provided for the army of the United states whereby the public is injured. THIS was an indictment against the Defendant, a baker employed by the army of the United States, for a cheat, in baking 219 barrels of bread, and marking them as weighing 88 lbs. each, whereas they only severally weighed 68 lbs. The indictment being originally found at the City Court, in October Sessions, 1779, was removed by certiorari into this Court. And now Lewis, for the Defendant, contended, that false tokens are only indictable by the st. of 33 Hen. 8. c. 1. which has no operation in Pennsylvania; and he cited 3 Burr. 1697. 1 Burn. 291. 2 Cess. Ca. 2. The Attorney General (Sergeant) insisted, that the Defendant's office was a public trust; and cited 2 Burr. 1125. 1 Hawk. 187. tion of an estate for life, which, he contended, was all that John Parrock was possessed of in the premises, and he never had any issue. *The question depended on the due con- [*48 struction of the following devise." I devise the "residue of my estate to John Parrock, during "the term of his natural life, and if he leaves "lawful issue, then I give my real estate unto "such issue: But, in case of his dying, without issue, or they dying under the age of twentyone years, then I devise all my real estate "unto Abel James, his heirs and assigns, on condition that he, or they, pay the Pennsylvania Hospital £. 300.' 66 66 66 After argument, the CHIEF JUSTICE delivered the opinion of the Court as follows: M'KEAN, Chief Justice: The remainder in fee of this estate is claimed by Abel James; who alleges, that, whether the estate given to Parrock was for life, or in tail, he is entitled to a vested remainder in fee, which is not barred by the attainder of Parrock. The Court, however, are of opinion, that the word issue in this case is a limitation, and that John Parrock took an estate tail under this devise. Probably, inTHE COURT said, that this was clearly an in- deed, no more than an estate for life was intendjury to the public; and the fraud the more easi-ed to have been given to him, but the law superly to be perpetrated, since it was the custom to venes that intention. There is a second intentake the barrels of bread at the marked weight, tion, manifest in the will, which is to be carried without weighing them again. The public, into execution; that is, that the issue should indeed, could not by common prudence prevent take in succession, which they could not do, the fraud, as the Defendant was himself the without a previous estate of inheritance in the officer of the public pro hac vice. They were father. therefore of opinion, that the offence was indictable. JAMES'S CLAIM. Devise to A. "during the term of his natural life, and if he leaves lawful issue, then to such issue, but in case of his dying without issue or they dying under twenty-one years," then to B in fee. A. was attainted of treason. Held, that he took an estate tail, which was forfeited by the attainder. THE case was this: John Parrock was attaint ed of High Treason, and his estate seized and advertised for sale. Abel James filed a claim, according to the act of Assembly, passed the 6th day of March, 1778, in order to obtain a decree establishing his right, to what, he alleged, was a vested remainder in him, after the expira The meaning of the testator appears clearly to have been, that the estate should not go over, while there was any issue, and it is expressly provided, that all must be extinct, and none have attained the age of twenty-one years, before it should pass to Abel James. This is not a new case; for, it has been long settled, that the words "natural life" make no difference. Sunday's Case, 9 Co. Rep. 127. Helin and Jenings, 1 Freem. Rep. 509-2 Eq. Abr. 312. Ca. 18 Comyns's Rep. 289. 1 Will, 600. 754. &c. Fortesc. Rep. 84. 2 Ld. Raym. 1437. 1 Barnard. Rep. in K. B. 6. 367. Such was the decision. As therefore, John Parrock took an estate tail, the land was forfeited by the attainder; and the claim of Abel James must be dismissed. The claim dismissed.1 1.-See Doug. 488. in note. |