THE COMMONWEALTH v. EARLE, 1 Whart. 525

The Court felt itself bound to refuse an allocatur: 1st, Because it is not entirely clear, though the weight of authority from precedent is the other way, that the indictment is insufficient for want of an averment, that the prisoner knew the substance employed to be a deadly poison. In Mary Blandy's case, (1 Hargr. St. Tr. 1,) the prisoner was executed, though'-the indictment contained no such averment.

Yet it is undoubtedly the safer course to insert it, ex majori cautela: 2d, Because, such a defect could not by any possibility affect the question of innocence or guilt before the jury ; and it is not the duty of the Court, for such a cause, to grant a writ of error; which, being, in criminal cases of grace and not of right, was refused on the same suggestion, in the Commonwealth v. Immel, (6 Binney, 403;) The Commonwealth v. Pennock, (3 Serg. & R. 199,) and The Commonwealth v.

Cox, at the present term. 3d, Because the want of an allegation, that the prisoner gave the poison to the deceased to drink, is clearly immaterial. If delivered by any one else, or taken by the deceased without delivery, the felonious purpose would be equally accomplished, and the guilt the same.' 4th, And because, “all murder perpetrated by'meansof poison,” being equally of the first degree, there is neither necessity nor room for discrimination by the verdict, where the degree of the offence charged, is fixed in the indictment.

It would be of decisive weight, were an authority wanting, that this principle, though not decided, was asserted in White v. The Commonwealth, (6 Binney, 183.) The provision for ascertainment of the degree by verdict, was intended for cases in which the jury might be at liberty to find the prisoner guilty in the second degree; but, as in cases of murder by poisoning, the prisoner is guilty', if at all, in the-first degree, and as a verdict of guilt in another degree would not be received, the law will not require, though it might endure, the performance of

an act so nugatory as an attempt at classification, where there is no difference, or the marking by verdict, of a measure of guilt pre-established by the law itself. Allocatur refuse^