Pennsylvania v. M'Birnie

1 Add. 28

• Court: Pennsylvania Court of Common Pleas, Alleghany County
• Decided: June 15, 1792
• Status: Published

Opinion

President.

In murder, malice is presumed from the circumstances, and the defendant must shew the want of it. If M'Birnie, therefore, instead of maiming, had killed Cotter, it would have been murder, or a killing, with malice aforethought. But the act of assembly, which makes this maiming a felony of death seems to take much pains to render a previous purpose an essential ingredient in the crime. The words of purpose, with malice aforethought, by lying in wait, and with intent to disfigure, seem to imply something more, than the malice presumed in murder, and to require express proof of the intent to disfigure previously conceived, and insidiously carried into effect. This case is evidently a hasty quarrel, a violent outrage, by a wild young russian, frantic with liquor; and I think there are not circumstances sufficiently strong, to make it felony.

4 Comm. 207. 1 Hawk. 176. Enquiry, &c. p. 33. 3 St. L. 599. Leach's Crown Law, 55, 59, 192, 194. Note.—It would seem that few, if any, other indictments on this act, have existed in this state. For the late William Bradford, Esq. (who from his situation as attorney general, had good opportunity of knowing) while a judge of the Supreme Court, in a memorial written at the request of the governor, and presented to him 3d December, 1792, and afterwards published under the title of “ An Enquiry how far the punishment of death is necessary in Pennsylvania,” mentions, that “ this act has remained a dead letter in Pennsylvania. No person has been prosecuted under it.” The act of 22d April, 1794, has changed the punishment of this offence into confinement at hard labour, and a fine, three fourths of which goes to the party grieved. I find there have been many prosecutions on the Coventry act in England. See William Lee’e cafe, Barney Carrol’s case, Tickner’s case, and Mill’s case. In Tickner’s case, Justice Gould told the jury, that it was not necessary, that either the malice aforethought, or the lying in wait, should be expressly proved to be on purpose to maim and disfigure. In Mill’s case, C. Baron Eyre, said, a person who intends to do this mischief, and, by deliberately watching an opportunity, carries that intention into execution, may be said to lie in wait on purpose. A particular concealment or lurking place is not necessary ; if, having formed an intention to maim, he comes unawares behind, and takes a convenient opportunity of deliberately doing the injury, it is a lying in wait, though he takes no particular length of time, nor appears to use any extraordinary degree of preparation to perpetrate the mischief.

No case on the English statute has been cited, nor has any occurred to me, but that of Cook and Woodburn, for slitting the nose of Mr. Crispie, whose face was terribly hacked with a hedge bill. And, from the device of the court to get over the impudent defence of Cook, that he did it, with intent not to disfigure, but to kill, we may gather how strongly all the circumstances of this crime must be ascertained.

The jury found him guilty of the trespass in assaulting and beating Adam Cotter, except as to the contriving and intending to maim and disfigure him of purpose and of malice aforethought, and by lying in wait, and of that not guilty. Sentence imprisonment.

The other defendant was afterwards tried and acquitted generally.