BALDWIN,. Circuit Justice.
The counsel for the defendant has filed the following reasons in arrest of judgment. “1. That it does not appear in the indictment in what county the offence charged therein was committed. 2. That it does not appear with certainty in the indictment that, the weapons therein1 charged to have been used by the prisoner, were dangerous weapons, inasmuch as it does not appear that the weapons therein set forth, viz., pistols, were loaded. 3. That the of-fence charged against the prisoner is not so described in the indictment as to make it certain, by reference to the statute of the United States, that judgment of death should pass against him. 4. That it does not appear by the indictment that the intent of the prisoner was felonious in the putting of the driver’s life in jeopardy. 5. That the indictment is in many other respects defective and erroneous.”
Having laid down the law to the jury, that it was not necessary to prove that the pistols were loaded, and that their use in the manner testified brought the case of both prisoners within the act of congress, the court has already decided on the second and fourth assigned reasons in arrest of judgment; we have no doubts as to the entire correctness of the opinion, and deem it unnecessary to repeat the reasons there given or to assign any new ones, as the shape in which they are now presented does not vary their legal bearing. The third and fifth are fully answered, in our opinion on the first.
The remaining exception to the indictment is one on which the court have bestowed their most serious and deliberate attention. In a capital case we would not pass sentence on a prisoner, where we entertained any doubts of his case coming within the law which inflicted the punishment, or of the sufficiency of the indictment on which he had been tried: we must be satisfied that he is guilty not only in substance and form as he is indicted, bur that he is indicted according to the mode and in the manner prescribed by law. U. S. v. Gooding, 12 Wheat. [25 U. S.] 474. At the common law great nicety is necessary in the description of offences, and especially of capital ones. The rules which regulate this subject have, in former cases, been founded on considerations which no longer exist in our own, or English jurisprudence; but being once established, they still prevail, although if the ease was new, they might not be incorporated into the law. But before we could be justified in declaring a rule of the common law of England, whieh was founded in no reason, or in such as was no longer operative there and was never applicable here, to be a part of the common law of the United States binding on this court, we ought to be well convinced that it has been adopted in the states before the organization of the federal government, or by the courts which have been brought into action under it. We should be the more cautious in giving way to an objection to an indictment which is founded in mere form, in a case where the words of an act of congress, defining and punishing an offence had been pursued, when it appeared to have been committed within the jurisdiction of the court, and when any further particularity would be of no possible benefit to the prisoner, or the result of it in any possible manner deprive him of the means of information necessary for a full defence. There are certain principles by which we must be governed in judging of the sufficiency of all indictments. They must contain a legal description of an offence, laid with such locality as to enable the court to judge, on the face of it, that they have power to punish for its commission. It is our duty to see that these requisites are complied with, as constitutional and legal provisions which we must obey. When, however, we are called upon to prescribe additional ones, we must find them in some law which controls us, before we can refuse to render judgment on a verdict [716] which has been rendered on a fair trial, on clear undoubted testimony and when the record contains all the form and substance required by any statutory provisions or decisions of any court acting under our laws. The only clauses on this subject to be found in the constitution are in the second section of the third article, declaring that all trials for crimes shall be in the state where the offence shall have been committted, and in the 6th amendment which says, “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”
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BALDWIN,. Circuit Justice.
The counsel for the defendant has filed the following reasons in arrest of judgment. “1. That it does not appear in the indictment in what county the offence charged therein was committed. 2. That it does not appear with certainty in the indictment that, the weapons therein1 charged to have been used by the prisoner, were dangerous weapons, inasmuch as it does not appear that the weapons therein set forth, viz., pistols, were loaded. 3. That the of-fence charged against the prisoner is not so described in the indictment as to make it certain, by reference to the statute of the United States, that judgment of death should pass against him. 4. That it does not appear by the indictment that the intent of the prisoner was felonious in the putting of the driver’s life in jeopardy. 5. That the indictment is in many other respects defective and erroneous.”
Having laid down the law to the jury, that it was not necessary to prove that the pistols were loaded, and that their use in the manner testified brought the case of both prisoners within the act of congress, the court has already decided on the second and fourth assigned reasons in arrest of judgment; we have no doubts as to the entire correctness of the opinion, and deem it unnecessary to repeat the reasons there given or to assign any new ones, as the shape in which they are now presented does not vary their legal bearing. The third and fifth are fully answered, in our opinion on the first.
The remaining exception to the indictment is one on which the court have bestowed their most serious and deliberate attention. In a capital case we would not pass sentence on a prisoner, where we entertained any doubts of his case coming within the law which inflicted the punishment, or of the sufficiency of the indictment on which he had been tried: we must be satisfied that he is guilty not only in substance and form as he is indicted, bur that he is indicted according to the mode and in the manner prescribed by law. U. S. v. Gooding, 12 Wheat. [25 U. S.] 474. At the common law great nicety is necessary in the description of offences, and especially of capital ones. The rules which regulate this subject have, in former cases, been founded on considerations which no longer exist in our own, or English jurisprudence; but being once established, they still prevail, although if the ease was new, they might not be incorporated into the law. But before we could be justified in declaring a rule of the common law of England, whieh was founded in no reason, or in such as was no longer operative there and was never applicable here, to be a part of the common law of the United States binding on this court, we ought to be well convinced that it has been adopted in the states before the organization of the federal government, or by the courts which have been brought into action under it. We should be the more cautious in giving way to an objection to an indictment which is founded in mere form, in a case where the words of an act of congress, defining and punishing an offence had been pursued, when it appeared to have been committed within the jurisdiction of the court, and when any further particularity would be of no possible benefit to the prisoner, or the result of it in any possible manner deprive him of the means of information necessary for a full defence. There are certain principles by which we must be governed in judging of the sufficiency of all indictments. They must contain a legal description of an offence, laid with such locality as to enable the court to judge, on the face of it, that they have power to punish for its commission. It is our duty to see that these requisites are complied with, as constitutional and legal provisions which we must obey. When, however, we are called upon to prescribe additional ones, we must find them in some law which controls us, before we can refuse to render judgment on a verdict [716] which has been rendered on a fair trial, on clear undoubted testimony and when the record contains all the form and substance required by any statutory provisions or decisions of any court acting under our laws. The only clauses on this subject to be found in the constitution are in the second section of the third article, declaring that all trials for crimes shall be in the state where the offence shall have been committted, and in the 6th amendment which says, “in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law.”
The only act of congress which can be relied on is the 29th section of the judiciary act, which provides: “That in cases punishable with death, the trial shall be had in the county where the offence was committed; or where that cannot be' done without great inconvenience, twelve petit jurors at least shall be summoned from thence.”' All these requisites have been complied with. The trial has been in the state, in a district previously ascertained by law, in the county where the of-fence was committed, from which twelve at least of the petit jurors have been summoned. The indictment alleges the offence in the words of the act of congress—charges on the prisoners the robbery of the carrier of the mail, proceeding from Philadelphia to Reading—to have .been committed within the Eastern district of Pennsylvania, and within the jurisdiction of this court. These facts being found true by the jury, give judicial knowledge that an offence has been committed, which is punishable by law, as well as at the place over which we have jurisdiction and power to try consistently with the constitution and amendment. We are bound to try all crimes committed within the district which are duly presented before us, but not to try them in the county where committed; that is a matter of which the court must judge in the exercise of their discretion,—U. S. v. Cornell [Case No. 14,868],—which does not require to be guided by the averments in the indictment. If the law was imperative that the trial must be in the county, the reasons might be very strong, and even conclusive, for requiring the county to be named; but being discretionary in the court, there would seem to be no necessity for the averment, as they had other means of knowing the place of the offence, which need be noticed only to direct their discretion, but not to give them power to try. When that is apparent from the record, and every legal requisition is met, we must inquire if there have been any. super-added by judicial authority. In the reports of cases in federal courts we find no decision that an indictment for capital crimes against the laws of the United States must lay the county in which it is committed.’ In the Case of Wood, for mail robbery, the objection was mentioned, but Judge Washington did not arrest the judgment on that ground, or give any opinion whether it was a fatal one or not. He contented himself with observing that there was a propriety in naming the county, in which we fully concur with him. But although there is always a propriety in avoiding any questions which the ingenuity of counsel may raise, it by no means follows that the averment was necessary in his opinion. This appears to be the only case in which the question raised before us has been distinctly proposed before any court of the United States, but there are others in which principles very strongly analogous have arisen and been settled. The third section of the act of the 30th of April, 1790, affixes the punishment of death to any crime of murder committed in any fort or place under the exclusive jurisdiction of the United States. One Connell was indicted for the murder of William Kane in Port Adams, in Newport harbour, which was alleged to be a place within the sole and exclusive jurisdiction of the United States. He was convicted, and sentenced to be executed. The principal question was as to the jurisdiction of the court. In order to give it, the murder must have been committed within the exclusive jurisdiction of the United States. It was so considered by Judge Story both in his charge to the jury and in overruling the motion for a new trial. It does not appear that the act was charged to have been done in the county of Newport; indeed it could not have been so, for this learned judge declares, that “strictly speaking, it was not within the body of any county of Rhode Island, for the state had no jurisdiction there.” It could not then have been necessary to have so laid it; yet the trial seems to have proceeded according to the provisions of the twenty-ninth section of the judiciary act. Sixteen jurors were summoned from the county of Newport, and the various points growing out of that act were fully considered by the court. Though they gave no direct opinion on the question now under consideration, they gave a judgment in a case where the record must have directly presented it. It seemed sufficient that the case came within their jurisdiction by the commission of the crime within a fort, and so laid. This case is also an authority in answer to the arguments in favour of this objection drawn from the twenty-ninth section, that as twelve jurors must be summoned from the county, it must be alleged in the indictment, as a guide for the venire. In that case the prisoner’s counsel urged that the venire could not issue till the prisoner had pleaded. The court instantly overruled the objection as forming no part of the issue before the jury: as also the one taken on the ground that the trial ought to have been had in the county of Newport, and for the same reasons. If then the commission of the offence in the county formed no part of the issue, it clearly follows that it would not be a material averment in [717] the indictment, the court having jurisdiction without it.
In general, it is sufficient if the indictment sets forth an offence in the words of the statute creating it, or as defined at common law, without the particulars of the manner or means, place or circumstance. “The ease of treason stands upon a peculiar ground; there the overt acts must by statute be specially laid, and must be proved as laid.” U. S. v. Gooding, 12 Wheat. [25 U. S.] 473, 475. It is evident that the law was so considered by the chief justice on the trial of Colonel Burr. He observes: “In considering this point the court is first led to inquire whether an indictment for levying war must specify one overt act, or would be sufficient if it merely charged the prisoner in general terms with having levied war, omitting the expression of place or circumstance. The place in which the crime was committed is essential to an indictment, were it only to show the jurisdiction of the court. It is also essential for the purpose of enabling the prisoner to make his defence.” It was held in that case to be necessary to lay the particular manner in which the war was levied; “that an overt act must be averred and proved at the place alleged in the indictment, no other overt act can be inquired into except for the purpose of proving the particular fact charged, it is as evidence of the crime consisting of this particular fact, not as establishing the great crime by a distinct fact. The overt act charged is the sole act of that treason which can produce conviction. It is the sole point in issue between the parties.” These are rules of the law of treason in levying war both in England by their statute, and in the United States by the act of the 30th of April. 1790, which has this expression in the section punishing treason: “and shall be thereof convicted by confession in open court, or on the testimony of two witnesses to the same overt act, of the treason whereof he or they shall stand indicted,” following mostly the words of the third section of the third article of the constitution. The requiring the overt act of levying war to be specially laid, is an exception to the general laws of treason in England, growing out of the statute of Edw. III., which directs it as to this species of treason; but as to that which consists in counterfeiting the coin, does not require it, and it need not be laid. The same rule must apply to the constitution and act of congress, as treason consists only in levying war, and is the only crime in our Code which must be proved by the commission of the specific act. in the manner, place and circumstances as charged in the indictment.
The act of congress on the subject of trial in the county, and the summoning of jurors, can have no bearing on the forms of this indictment, for the place of trial is discretionary with the court, and by the uniform practice in Pennsylvania, before the passage of the judiciary act, and of this court ever since, the venire issues before the indictment is found. The jury cannot take these matters into their consideration, as they form no part of the issue of guilty or not guilty; they cannot inquire into the sufficiency of the reasons which induced the court to refuse a trial in the county, or whence the jurors come; these are matters which the court will so regulate as to do justice to the prisoner on any objections made by him to the panel, but they cannot in any manner affect the indictment, which is presented after the jury are summoned, and cannot of course serve as a guide to the marshal in executing the venire. If he shall not have summoned the requisite number from the county, and the prisoner insists on his right, the court may continue the cause, or direct a return of the proper number from such county or part of the district as shall be most favourable to an impartial trial. This part of the twenty-ninth section of the judiciary act fully meets every exigency which may arise at the trial, and in our Opinion furnishes a very satisfactory answer to all the arguments which are founded on the preceding provisions contained in that section. The case of People v. Barrett, 1 Johns. 66, does not sustain the position assumed. It was decided in that case that the offence must be laid in the county, not that it must be laid in the township. The true reason for the judgment of the court was assigned by Justice Spencer, “it did not appear that the essence of the offence was committed in the county,” and leaves the present question untouched; for the county, in a state court, means no more than state or district in this; which is, that it must appear to be within their respective jurisdictions. The one from Massachusetts seems to us to be more in direct opposition to the principle asserted. It was decided in that case that an indictment for not repairing a road was good, although it did not lay the offence to be in the county; it was held to be sufficient to say the township, because, as judges, they knew from the several public statutes of the state that the township of Springfield lay wholly in the county of Hampshire. The eminent judge (Parsons) who delivered the opinion of the court, declared that “the objection by the common law of England might prevail, because the judges cannot presume that the whole of the township or parish lies in the same county. In England the limits of the several townships and parishes are not ascertained by public acts of parliament, the records of which are remaining, but are determined by ancient usage, of which the judges cannot judicially take notice. The case is different in Massachusetts: our county limits are prescribed by public statutes; of which we are bound judicially to take notice.” 7 Mass. 9, 12. In referring to the law of Pennsylvania, as it was at the time of the passage of the judiciary act, we find [718] that robbery was a capital offence: the punishment was altered in 1790, but the laws as to the form of the indictment did not change with the change of punishment. The act of assembly of 1777 adopted so much of the common law of England as had heretofore been in force m the province. 1 Dali. St. Laws, 723. But that part of it which relates to this question does not appear to have been in force before the Revolution, but a different rule must have prevailed. From the early periods of our judicial history, the uniform practice in the criminal courts has been to lay the county, and not the township. Such are the forms yet in use in cases of murder. The only reported case to be found in which an objection was made that the township was not alleged, was in Duncan v. Com., on an indictment for adultery. It was said to be necessary, because the fine was to be divided between the commonwealth and the supervisors of the township in which the defendant, resided, according to the provisions of the law punishing the crime. The court held it “not necessary, because they could ascertain the place of the defendant’s residence otherwise than by the verdict of a jury.” 1 Serg. & R: 430. If there was any case in which there could be reason for laying the township, it was this; but it has never been decided in Pennsylvania that it was necessary in any. The practical construction of that part of the constitution requiring a trial of all of-fences by a jury of the vicinage, has been, that it is fully complied with by a trial by a jury of the county.
[NOTE. Subsequently the cause went to the supreme court upon a certificate of division of opinion upon a question as to the admissibility of a pardon by the president of the United States, which question arose upon the motion for sentence. See 7 Pet. (32 U. S.) 130.]
[NOTE, from 1 Baidw. 607.] In the case of Leland v. Wilkinson, reported in 6 Pet. [31 U. S.] 317, 322, the supreme court seem to have disaffirmed the principle on which the pardon was admitted in the case of United States v. Wilson and Porter. A paper purporting to contain copies of the proceedings of the legislature of Rhode Island in various cases from 1784 to 1S27. authorizing the sale of the real estate of decedents for the payment of debts, was offered to the court to be redd as evidence of the usage and law of the state. To the copy of each proceeding was annexed the following certificate: “True copy of the petition and vote (or order) thereon, and all the papers and documents on file. Witness, Henry Bowen, Secretary.” The copies were connected together with the certificates, to which was annexed the following certificate, with the seal of the state affixed. “By his excellency, Lemuel H. Arnold, governor, captain-general and commander-in-chief of the state of Rhode Island and Providence Plantations. Be it known that the name ‘Henry Bowen,’ to the aforewritten attestations subscribed, is the proper handwriting of Henry Bowen, Esq., who, at the time of subscribing the same, was secretary of the state aforesaid, duly elected and qualified according to law; wherefore unto his said attestation full faith and credit are to be rendered. In testimony whereof I have hereunto set my hand, and caused the seal of said state to be affixed, at Providence, this seventh day of January, in the year of our Lord one thousand eight hundred and thirty-two, and independence the fifty-sixth. Lemuel H. Arnold. By his excellency’s command, Henry Bowen, Secretary. (Seal.)” The paper was rejected by the court for the reasons stated by the. judges. The following dissenting opinion was delivered, which will fully explain the grounds of the decision in the circuit court, as to the effect of an authentication of a paper by the great seal of a state. [See dissenting opinion of Mr. Justice Baldwin in Leland v. Wilkinson, 6 Pet. (31 U. S.) 321.]
We have then, in this case, the authority of the supreme court of Pennsylvania added to all that has been referred to, and, on a deliberate consideration of the subject, are clearly of opinion that the objection taken to the indictment in these cases cannot be sustained. If we entertained a doubt, we would certify the case to the supreme court; but feeling none, it is our duty not to delay public justice. We have carefully reviewed all the proceedings on the trials, and can find nothing, in our opinion, in the least erroneous. Had we doubted in the least the correctness of our decision on any point which arose, we would have given the prisoners an opportunity of another trial; but we have had none. The evidence was clear, uncontradicted and conclusive. The guilt of the prisoners was apparent, and ascertained after a long, laborious and impartial trial, in which they were defended with all possible ability and exertion. The jury was satisfied on all questions of fact; we are equally so on thOLe of- law, arising on the trial or apparent on the record, and therefore overrule the motion in arrest of judgment.