Page:United States Reports, Volume 1.djvu/49

 38  It is here particularly tated, that the Defendant took a commiion, 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 decription, though, without ome overt act, it would not be ufficient for a conviction. In order to prove an overt act, however, evidence has been offered to hew, that the prioner had a power of granting paes into, and out of the city, which was at that time in the poeion of the enemy. In Fot. 10. a witnes depoed, that one Berwick was confined in the room aigned for the rebel officers taken at Carlile by the duke of Cumberland; and this was deemed a ufficient proof of his holding a commiion. The Court, on the preent occaion, however, are of opinion, that the evidence which is offered, ought to be received, but not as concluive proof of the Defendant’s having taken a commiion. Nor will the evidence of eizing the alt, or any act of diarming the inhabitants whom the Defendant called Rebels apply to this pecies of treaon; however they may upport the allegation, of his having joined the armies of the king of Great-Britain.

We think it is ufficient, alo, to lay in the indictment, that the Defendant ent intelligence to the enemy, without etting forth the particular letter, or its contents: And, though the charge of levying war is not, of it itelf, ufficient; yet aembling, joining and arraying himelf with the forces of the enemy, is a ufficient overt act, of levying war.


 * —Let the witnes be worn.

The Attorney General and Reed, for the Commonwealth—Ros and Wilon for the Defendant.

The Defendant being convicted by the verdict of the Jury, his counel filed the following reaons in arret of judgment:

1t. For the indictment is vague and uncertain, their being no overt-act expresly or particularly acertained, as the prioner is advied it ought to be.

2dly. For that the formal part of the indictment is not drawn with ufficent preciion.

3dly. For that the everal facts are o uncertainly charged, that the prioner could not be apprized of the particulars urged againt him. And

4thly. That the whole wants form and ubtance.

Thee reaons were elaborately dicued on the 5th of October, 1778, by the ame counel on both ides: But, upon mature conideration, they were finally over-ruled who gave judgment for the Commonwealth; and the Defendant, a hort time afterwards, was accordingly executed.