nor can it be otherwise whilst the constitution of the U- ADAMS, Pa. 1802. nited States retains its present form, nor even after that instrument is impaired or destroyed; for so careful have The Com'th we been upon this subject, that religious liberty has been carried into, and is made a fundamental principle of the constitutions of the respective states. "This first good and last hope of mankind" has been protected with great care by the common law, independent of any statute. Blasphemy against God or the Christian religion is indictable at common law. 1 East's P. C. 3. 2 Stra. 789. 2 Woodes, 512. And as to libels and verbal slanders upon the Trinity and the Christian religion, see 1 Stra. 416. and 2 Stra. 789. And see also the form of the indictment for those offences. 2 Chitty's C. L. 12. 3 Mod. Rep. 68. Cro. Jac. 421. Disturbing divine service, by interrupting the minister or molesting the hearers, is an offence at common law, and may be punished by fine and imprisonment. See the form of indictment for interrupting the curate whilst reading divine service, 2 Chitty, 13. See, also, 1 Crim. L. Cases, 135. John Degez was indicted at common law for disturbing the Rev. Mr. Vanvelser, the pastor of the Ebenezer Baptist Church, in the execution of his office as pastor. It appeared the defendant stood up and contradicted him in the doctrines laid down, and thereby disturbed the order of the service. It was held by his honour the Recorder that it was an offence at common law, and he was found guilty. Ante, p. 135. All blasphemies against God, as denying his being or providence, all profane scoffing at the holy scripture, or exposing any part to contempt or ridicule; all impostures in religion, or falsely pretending to extraordinary commissions from God, and terrifying and abusing the people with false denunciations of judgments, &c.; all V. Arndt and others. ADAMS, Pa 1802. The Com'th V. Arndt and others. open lewdness, and other scandalous offences of this nature, because they tend to subvert all religion and morality, which are the foundation of government, are punishable by the temporal judges with fine and imprisonment; and also such corporal infamous punishment as the court, in its discretion, shall seem meet, according to the heinousness of the crime. 1 Hawk. P. C. 5. Blackstone enumerates the following crimes against God and religion: Apostasy, heresy, reviling the ordinances of the church, non-conformity, popery, blasphemy, swearing, witchcraft, religious impositions, simony, drunkenness, and lewdness. 4 Bl. Com. 41. Apostasy, heresy, non-conformity, popery, and simony, are not applicable to, and therefore not crimes in, the United States. Present-Honourable Richard Riker, Recorder. Maxwell, District Attorney, Counsel for The People. Mr. Maxwell called a number of witnesses to prove the felony, and then offered to read the examination of the prisoner taken before the committing magistrate, and called Mr. Hatfield to prove the handwriting of the magistrate. Phoenix objected, and insisted that the magistrate himself must be called to prove examination was taken N'W YORK, according to law. Jan. 1824. V. Robinson. . Maxwell replied that proof of the handwriting of the The People magistrate who took the examination had always, in this court, been deemed sufficient, and that might be proved by any person acquainted with his handwriting. The court decided that where objections were made to the regularity of the examination, it was necessary to produce the magistrate who took it, or his clerk. NOTE. It is the practice in the New-York Sessions for the district attorney (whose humanity is as conspicu ous as his acknowledged talents) to withhold the examination of prisoners upon their trial, when he thinks the statement therein would operate in their favor, andthat upon the ground, that reading the examination in some cases would give the prisoner an opportunity to exculpate himself by his own evidence, and the court I believe has so decided in more than one instance. It appears to me to be a very hard case that a prisoner may be examined for the purpose of securing evidence to be used upon his trial, and that evidence withheld at the option of his prosecutor. Why is he examined? Is it for the exclusive benefit of the state? Certainly not. All the English authorities go upon the principle that the examination is taken for his benefit. It is said the examination has been considered rather as a privilege in favour of the party accused afforded by law for the benefit of an innocent man, who perhaps may on examination clear himself from suspicion, and then he will immediately regain his freedom, than as any additional peril. 1 Chitty's Cr. L. 68. And another fact, from which an argument might be drawn to show the examination should be read in evidence upon the trial when demanded by the prisoner is, that if the prisoner N'W YORK, The People V. Robinson. insist upon it the magistrate is compelled to take his examination. Fortes. 142. It therefore appears that it is for the prisoner's benefit, and it appears equally true, that if the examination is not read he loses the benefit of that privilege the humanity of the law has allowed him. Should not the examination, if requested, be read? and if it contains matter in favour of the prisoner, like every other species of evidence, its credibility may be judged of by the jury. fray is no ex olent and the The prisoner was indicted for the murder of his brothA sudden af- er, Joseph Tuhi, on the 3d of May, 1820. The facts, cuse where as they appeared in the testimony, were, that the father the force is vi- of the deceased and the prisoner were dead, and their moweapon an ax. ther had become the wife of Gideon Harry; John lived with his mother and step father, and Joseph had for some time previous to his death, lived with his grandmother. John is about seventeen years old; Joseph was a little more than a year older, and considerably stronger than John. The last day of the last election (first of May last) Joseph came home, and Gideon, the two brothers, and their mother concluded to go to Clinton, where the election was held that day. Before they sat out they drank some whiskey, on the way some more, and more after they arrived at Clinton village. Towards evening ONEIDA COUNTY, V. Tuhi. they sat out to return; the mother was then drunk; Gideon and the brothers partially intoxicated. When they June, 1820. arrived within about half a mile of their home, (the whole distance they went was about two miles and a half,) the The People brothers, who had been before, returned to Gideon and their mother, and John said that Joseph had dunned him for three cents which he owed him, and threatened to. whip him if he did not pay him. Gideon tried to pacify Joseph, and went with John into a house on the road to borrow the money to pay the debt, but did not succeed. Some hard words were used by Joseph, but nothing more occurred between the brothers on that subject. About half an hour after, they arrived at home; Gideon and his wife went out of the house, a little distance from the door, and left Joseph and John sitting near the fire. There was no other person in the house, and there was an ax not far from John; the distance between the brothers was six or eight feet. Directly after they had left the house, Gideon heard a noise like scuffling and the falling of chairs, but no voice. He went in, and found Joseph lying upon the floor near where John sat, and John in the act of striking his head with the ax. The four remained in the house until morning. The mother (too drunk to know or do any thing,) and John slept, Gideon sat up and took care of Joseph, and went early in the morning to procure medical assistance. The mother and John took care of Joseph while he was gone. The wounds were found to be mortal, and no surgical operation was attempted. Joseph died on the morning of the 3d of May. He had four deep wounds upon his head, one over one of his eyes, and the others on the top and back of his head. John did not attempt to escape; was taken into custody by the Indians, and delivered by them to the officer who went to arrest him. After Joseph was |