In the case of The Commonwealth v. Gross, in the Oyer and Terminer for the city and county of Philadelphia, in 1826, 1 Ash. 281, the president judge addressed a written request to Chief Justice Tilghman, whose answer was as follows:

"I communicated your note to my brethren, and we are unanimously of the opinion that the judges of the Court of Common Pleas may, agreeably with the Constitution, hold a Court of Oyer and Terminer and General Jail Delivery, unless the judges of the Supreme Court, or some of them, are at the same time sitting in a court of the same nature, in the same county. This was the contemporaneous construction, and it has been adhered to and acted upon from the formation of the Constitution, to the present time." This opinion is extra-judicial but it plainly says what the unanimous opinion of the Supreme Court would then have been had the question been judicially before it.

The reason now given, and that which is most satisfactory to myself, only sprung into existence within the last few days. This Court was trying homicides this term during three weeks; while the Supreme Court was sitting as a Court of Error under the same roof. It so happened that the next case after this one of Jacoby was one of homicide, which prisoner's counsel petitioned the Supreme Court to try. The Supreme Court refused the petition, and the trial proceeded before the judges of the Common Pleas of Allegheny county, that same hour that the petition was refused-the judges of the Supreme Court sitting at the time in and for Allegheny county as a Court of Error. Upon the slightest intimation of doubt existing in the mind of the Supreme Court, as to the jurisdiction of the judges of the Common Pleas of Allegheny county, the case would have been continued until December Term, when the Supreme Court having ceased to sit, the reason of the doubt would have ceased to exist. A judge of the Supreme Court, can, when he thinks proper, try a hornicide, and the judges of the Common Pleas retire; for the constitutional reason that a judge of the Supreme Court is sitting in the county, not as a Court of Error, but as a Court of Oyer and Terminer. And so, also, of all the judges thereof, sitting together as a Court of Oyer and Terminer.

The reason in arrest of judgment is overruled.

In this case no reasons are filed to the motion for a new trial. There is a general exception to the charge of the Court. This charge is written and covers thirty-two pages. This Court always, before and since the Act of 6th of November, 1856, has written out its charges in full in all homicide cases, and delivered them as written, without the variation of a word. The Act of 1856 does not render it imperative on the courts to write their charges. See Pamph. L. 1857, p. 796, sec. 7; Fife et al. v. The Commonwealth, 5 Casey 435.

This Court would have been pleased, had particular exceptions to the charge of the Court been pointed out and filed for our review. This would have been fairer for the prisoner; fairer towards this Court, and fairer towards the Supreme Court. Fairer towards the prisoner, for if error be shown we would give the prisoner a new trial, or perhaps prove to the satisfaction of counsel that there was no error. Fairer to this Court, which would appear before the Supreme Court with its eyes open and not blindfolded. Fairer to the Supreme Court, which is entitled to all the industry and elucidation and research which the Court below can give a case. Suffice it to say, the charge of the Court, on matters of law, is to

be found in Webster's Case, 4 Cushing; Com. v. Harman, 4 Barr 269, and in Greenleaf.

But does the Act of 1856 authorize an exception to the charge of the Court? I am of opinion it does not, and the charge of the Court, though filed, is no part of the record; but this latter proposition I shall not now undertake to establish by authorities, as it is no part of my present purpose. With regard to the first proposition: Is the charge of the Court the subject of exception?

The seventh and last section of the Act is in these words: "That any defendant, or defendants, who may have been convicted of any of the offences mentioned in the first section of this act, where sentence of the Court has not been executed, shall have the right to sue out a writ of error, in the manner presented by this act, and assign errors to the charge of the Court, as fully and with the same effect as if exceptions were taken to such charge when delivered to the jury; provided, the charge of the Court has been reduced to writing."

This is ex post facto legislation-not prospective. It applies

exclusively to those already convicted and under sentence, unex ecuted. It has no relation to the future, nor was it intended it should.

This seventh section was passed for the purpose of saving, if possible, the life of one Corrigan, who was under sentence of death for the murder of his wife in Westmoreland county. He anticipated his execution by committing suicide, by which act of his, this seventh section was to all intent and purposes repealed. At his death it became a dead letter, and has been a dead letter ever since.

The act nowhere else gives the right or power to except to the charge of the Court, as a general charge, except as therein provided during trial. The seventh section gave an exception to the charge of the Court in Corrigan's Case, provided, the charge was written, and it gave it in no other case; nor, does any other section of the act give it in any other case, prospective or retrospective. This did not escape the scrutiny of the Supreme Court; for in the first case, which came before it under this act, Chief Justice Lewis, in delivering the opinion of the Court, uses the following language: "Hereafter questions of evidence and instruction to the jury, in the cases mentioned in the act, are to be reviewed here;" but to what extent and for what purpose? The extent is limited to the decision of the Court, during the trial on the points of law of evidence excepted to by defendants, and noted and filed of record by the Court. Beyond these we have no right to touch a single decision of the Court, in admitting or rejecting evidence, or in charging the jury: 5 Casey

435.

Section 7, which provides for those where sentence has been pronounced, allows errors to be assigned to the charge of the Court" as fully and with the same effect, as if exceptions were taken to such charge when delivered to the jury." This section. assumes that the law, in previous sections, allows exception to the charge of the Court. They contain no such provision. This section 7, gave those under sentence of death, or was intended to give, an exception to the charge of the Court-it was all he could except to; but in future cases all such exceptions could be

taken to evidence, &c., as the law allows, and to one already sentenced could not be available.

A bill of exception to the charge of the Court is not made the subject of consideration, on a writ of error, by the Act of November 6, 1856. This statute does not sanction what it does not enjoin. If a bill of exception to the Court is destitute of the sanction of this statute, then the charge of the Court cannot judicially go up before the Supreme Court, notwithstanding a bill of exception may have been sealed by the Court below: Middleton v. The Commonwealth, 2 Watts 285.

These remarks are submitted with deference, as we have not the benefit and advantage of a judicial exposition of the Act of 1856, by the Supreme Court-the act being scarcely two years old.

Nor is the evidence any part of the record. It does not go up, and it is our earnest request, that, now and hereafter, if the testimony is printed on a paper book, the Supreme Court may see it all as the jury had it, and that it be not fragmentary; for then, and only then, can the tribunal of the last resort know whether the multitudinous points presented to the Court to charge upon are the offspring of the evidence, or alien to the case; whether reasons for a new trial are fanciful or real; whether topics made the subject of review could or should, or likely would, or possibly might, have been instrumental in causing an improper verdict; whether the error complained of, though error it be, could by possibility have in any way influenced a verdict, or done injustice to the prisoner.

No reasons are filed for a new trial. This court, with due sense of its own responsibility, and the importance and solemnity of the case, is not aware that any reasons for a new trial can be assigned. The case is one of deliberate murder. The prisoner led his wife out into the country, under pretence of taking a walk, and then coolly shot her dead through the head. The testimony for the Commonwealth was clear and overwhelming, and perfectly harmonious. Defence there was none. The key that unlocks the motive of this murder, was forged in London; for there the deceased complained she was not "valued," and that Anna Maria Sutler, the servant girl, was preferred. She engaged the lustful

affections of the prisoner, and usurped the bed of the murdered wife. Since the death of the wife, he has passed off Anna Maria Sutler as his lawful wife; shared the same bed, giving her the care of his children and the keys of his treasure and chests. The motive that induced the murder was of easy inference, but without regard to motive, the premeditated act was proved to demonstration.

The jury that tried the case were men of high intelligence and character, comprising some of our best citizens. So clear and convincing was the proof of the prisoner's guilt, that they did not deliberate upon the verdict a quarter of an hour.

The motion for a new trial, to sustain which no reasons were filed, is overruled.

In the Quarter Sessions of Allegheny County.

COMMONWEALTH v. GEORGE Shaw.

(Vol. VI., p. 193, 1859.)

If it appear

that

1. When a juror withdraws from the trial, the fact must be noted of record. 2. The record must show that twelve jurors were sworn. less or more than twelve delivered the verdict, it is error. 3. Waiver by consent of a prisoner in a criminal case, is a nullity.

IN the month of October, 1858, George Shaw was indicted, tried and convicted, in the Quarter Sessions, of an attempt to abduct or kidnap George W. Ferris, an alleged negro, out of the state for the purpose of selling him into slavery. On the second day of the trial one of the jurors was taken sick, as was alleged. By consent of counsel, the Court allowed the trial to proceed with eleven jurors. A full report of the trial will be found in the Legal Journal of Oct. 23, 1858 (No. 15, vol. 6); but as the subject matter upon which the prosecution was based has no longer a place in our social system, the report of the trial is omitted.

A motion in arrest of judgment and for a new trial, was

made