1778.
Respublica verſus John Roberts.
Indictment for High Treaſon.—A witneſs was called to prove, that the Defendant had attempted to prevail upon him to enliſt with the Britiſh army; but that he did not ſucceed. This gave riſe to a queſtion on theſe words of the act of Aſſembly:—
“That, if any perſon or perſons knowingly and willingly ſhall aid or aſſliſt any enemies at open war with this State &c. by perſuading others to enliſt for that purpoſe &c. he ſhall be adjudged guilty of high treaſon” 2 State Laws p. 18.19.
In ſupport of the proſecution, it was urged, that the attempt to prevail, conſtituted the crime; and that it was like the caſe of a man’s ſending intelligence to the enemy, which was as act equally criminal in the ſender, whether the intelligence was received, or not.
For the Defendant, it was argued, that perſuading implies ſucceſs:—ſuadeo ſignifying to adviſe, and perſuadeo to adviſe through, or ſucceſsfully: And, therefore, it cannot properly be ſaid of any perſon, that he was perſuaded, unleſs he has done ſome act in conſequence of his perſuaſion.
By the Court:—There is proof of an overt act, that the priſoner did enliſt, and evidence is now offered to ſhew, that he alſo endeavoured to perſuade others to enliſt, in the armies of the enemy. But we are of opinion, that the word perſuading, uſed by the legiſlature, means to ſucceed; and that there muſt be an actual enliſtment of the perſon perſuaded, in order to bring the Defendant within the intention of the clauſe. 2 Lord Ray. 889.
The evidence offered, however, is proper to ſhew quo animo, the priſoner himſelf joined the Britiſh forces.
The counſel for the Commonwealth then offered to give in evidence, the confeſſion of the Defendant, that he was going to the Head of Elk, in order to communicate ſome information to Mr. Galloway, who had at that time, gone over the enemy.
But it was oppoſed by the adverſe counſel, who contended, that a confeſſion, unleſs in open Court, had never been evidence to convict. That, though under the 1 Edward 6. it is ſaid a man might be convicted of treaſon, by the teſtimony of two witneſſes, or his voluntary confeſſion; 2 Hawk. 256. yet, that ſtatute does not extend to Pennſylvania, and by the 7 W. 3. c. 3. it is expreſsly declared, that no man can be indicted, arraigned, or tried, in a caſe of treaſon, but by the teſtimony of two witneſſes, or the confeſſion of the party made, without violence, in open Court. Foſt. 10. 241. 2. 3. But the act of Aſſembly of Pennſylvania totally excludes a conviction by confeſſion. See Prin. Pen. Law 149. A confeſſion may, indeed, be given in evidence to corroborate a treaſon that has already been eſtabliſhed by two witneſſes; but not to prove the treaſon itſelf.
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