Respublica v. Malin

By the Court. No,evidence of words, relative to the mistake of the American troops, can be admitted ; for any adherence to them, though contrary to the design of the party, cannot possibly come within the idea of treason. But, as it appears that the prisoner was actually with the enemy, at another time, words indicating his intention to join them are proper testimony, to explain the motives upon which that intention was afterwards carried into effect. The Attorney- General then called a witness to prove that the defendant was seen parading with the enemy’s light horse in the city of Philadelphia. But to this, also, his counsel objected ; for, they urged, that every criminal *35 act must be tried in the county in which it is committed. Cro. Car. 247; 4 Bl. Com. 301; 3 Inst. 48, 49, 80. And that the circumstance of merely joining the enemy’s army, being neither treason, nor misprision of treason, unless done with a traitorous intention, no overt act had been proved in Chester, which was a pre-requisite to any evidence being heard of an overt act committed in any other county. To' evince that this was, likewise, the sense of the legislature, the defendant’s counsel read the act of assembly giving the supreme court a special power to try offenders in Lancaster, for crimes committed in the counties of Chester and Philadelphia. The Attorney- General and Reed, for the commonwealth. Wilson and Ross, for the defendant. The Attorney- General answered, that when an overt act is proved in the county where the trial is held, corroborative evidence may be given of overt acts committed in any other county. Fost. 9; 2 Hawk. 436. And that having established the prisoner’s presence with the British army, nothing, but the proof of actual force, and its continuance, could excuse him from the charge of adhering to the enemies of the commonwealth. Fost. 11. For, joining the army of an enemy, has always been held prima facie evidence of an overt act. And— *By the Court, it was accordingly ruled, that evidence might be given of an overt act, committed in another county, after an [*35 overt act was proved to have been committed in the county where the indictment was laid and tried, (a) The defendant was acquitted. Footnotes [(a)] See the next case and Respublica v. Roberts, post, p. 39.