It is here particularly ftated, that the Defendant took a commiffion, under the king of Great-Britain, to watch and guard the gates of the city of Philadelphia ; and the offence is certain enough in this defcription, though, without fom overt act, it would not be fufficient for a conviction. In order to prove an overt act, however, evidence has been offered to fhew, that the prifoner had a power of granting paffes into, and out of the city, which was at that time in the poffeffion of the enemy. In Foƒt. 10. a witnefs depofed, that one Berwick, was confined in the room affigned for the rebel officers taken at Carliƒle by the duke of Cumberland ; and this was deemed a fufficient proof of his holding a commiffion. The Court, on the prefent occafion, however, are of opinion, that the evidence which is offered, ought to be received, but not as conclufive proof of the Defendant's having taken a commiffion. Nor will the evidence of feizing the falt, or any act of difarming the inhabitants whom the Defendant called Rebels apply to this fpecies of treafon ; however they may fupport the allegation, of his having joined the armies of the king of Great-Britain.
We think it is fufficient, alfo, to lay in the indictment, that the Defendant fent intelligence to the enemy, without fetting forth the particular letter, or its contents: And, though the charge of levying war is not, of it itfelf, fufficient ; yet affembling, joining and arraying himfelt with the forces of the enemey, is a fufficient overt act, of levying war.
by the court:–Let the witnefs be fworn.
The Attorney General and Reed, for the Commonwealth–Rofs and Wilƒon for the Defendant.
The Defendant being convicted by the verdict of the Jury, his counfel filed the following reafons in arreft of judgment :
1ft. For the indictment is vague and uncertain, their being no overt-act expreƒsly or particularly afcertained, as the prifoner is advifed it ought to be.
2dly. For that the formal part of the indictment is not drawn with fufficent precifion.
3dly. For that the feveral facts are fo uncertainly charged, that the prifoner could not be apprized of the particulars urged againft him. And
4thly.That the whole wants form and fubftance.
Thefe reafons were elaborately difcuffed on the 5th of October, 1778, by the fame counfel on both fides: But, upon mature confideration, they were finally over-ruled by the court, who gave judgment for the Commonwealth ; and the Defendant, a fhort time afterwards was accordingly executed.