¶1 [The reporter was favored with a note of the following case, by the judge who sat in the tnai of it. Its publication will be useful, as famishing a precedent for a regular course of proceeding in future and similar cases.]
¶2The defendant, being indicted at this term for a larceny, was put to the bar on the second day of the sittings here after the term which were holden by ParJcer, J., and, being called by his name, made no answer, but exhibited an appearance of great agitation his limbs shaking and his face being much distorted. The indict ment was read to him audibly and distinctly by the clerk, who then inquired of him whether he was guilty or not guilty. He made no answer, still appearing convulsed, and seemed not to have attended to the reading by the clerk. After a short interval, the judge addressed the prisoner, and informed him that the indictment would *357be again read to him, and that, unless he answered to it, he might lose his opportunity of a trial. The clerk then went near to the bar where the prisoner stood, and again read to him the indictment, and inquired of him whether he was guilty or not guilty. He made no answer, still continuing the appearance of being convulsed.
¶3*Twelve of the jurors, who had been returned to serve during this term of the Court, were immediately empanelled, and the following oath administered to them, viz.: —
¶4“ You shall diligently inquire, and a true verdict return, on behalf of the commonwealth of Massachusetts, whether Isaac Moore, the prisoner at the bar, being now here indicted for a larceny, standeth mute fraudulently, wilfully, and obstinately, or by the providence and act of God, according to your evidence and knowledge.”
¶5Witnesses were then examined, who testified that the prisoner had never been affected with insanity, or any inability of speech; that, when he was first arrested upon this charge, he limped very much, and appeared unable to walk; that several times, when the officer left him, he walked off briskly, without any appearance of lameness, and put the officer to some trouble in overtaking him ; that while in jail at Concord, where he remained several months, he was always able to talk, and appeared to understand his situation and affairs ; and that there appeared to have been no change in him, until he was taken out of jail, to be brought to his trial.
¶6After a short charge from the judge, the jury retired, and in about ten minutes returned into Court, and gave their verdict, that the prisoner stood mute fraudulently, wilfully, and obstinately ; which verdict being recorded, after some inquiry by the judge into the circumstances of the offence and of the offender, sentence was passed upon him as upon a conviction.