Page:United States Reports, Volume 1.djvu/50

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NDICTMENT for High Treaon.—A witnes was called to prove, that the Defendant had attempted to prevail upon him to enlit with the Britih army; but that he did not ucceed. This gave rie to a quetion on thee words of the act of Aembly:— "“That, if any peron or perons knowingly and willingly hall aid or alit any enemies at open war with this State &c. by peruading others to enlit for that purpoe &c. he hall be adjudged guilty of high treaon” 2 State Laws p. 18.19."

In upport of the proecution, it was urged, that the attempt to prevail, contituted the crime; and that it was like the cae of a man’s ending intelligence to the enemy, which was as act equally criminal in the ender, whether the intelligence was received, or not.

For the Defendant, it was argued, that peruading implies ucces:—' ignifying to advie, and ' to advie through, or uccesfully: And, therefore, it cannot properly be aid of any peron, that he was peruaded, unles he has done ome act in conequence of his peruaion.


 * —There is proof of an overt act, that the prioner did enlit, and evidence is now offered to hew, that he alo endeavoured to peruade others to enlit, in the armies of the enemy. But we are of opinion, that the word peruading, ued by the legilature, means to ucceed; and that there mut be an actual enlitment of the peron peruaded, in order to bring the Defendant within the intention of the claue. 2 Lord Ray. 889.

The evidence offered, however, is proper to hew , the prioner himelf joined the Britih forces.

The counel for the Commonwealth then offered to give in evidence, the confeion of the Defendant, that he was going to the Head of Elk, in order to communicate ome information to Mr. Galloway, who had at that time, gone over the enemy.

But it was oppoed by the advere counel, who contended, that a confeion, unles in open Court, had never been evidence to convict. That, though under the 1 Edward 6. it is aid a man might be convicted of treaon, by the tetimony of two witnees, or his voluntary confeion; 2 Hawk. 256. yet, that tatute does not extend to Pennylvania, and by the 7 W. 3. c. 3. it is expresly declared, that no man can be indicted, arraigned, or tried, in a cae of treaon, but by the tetimony of two witnees, or the confeion of the party made, without violence, in open Court. Fot. 10. 241. 2. 3. But the act of Aembly of Pennylvania totally excludes a conviction by confeion. See ''Prin. Pen. Law'' 149. A confeion may, indeed, be given in evidence to corroborate a treaon that has already been etablihed by two witnees; but not to prove the treaon itelf.