Abbott v. State

Henderson, J., delivered the opinion of the Court. This appeal is from a judgment of the Circuit Court for Dorchester County, in a case removed from Somerset County, wherein the appellant was found guilty of murder in the first degree and sentenced to be hanged, after he had pleaded guilty, generally, to an indictment for ³¹² murder. The appellant contends that the evidence produced before the court did not establish murder in the first degree beyond a reasonable doubt, and asks this Court to find that he was guilty of murder in the second degree. The State contends, on the other hand, that the finding was fully supported by the evidence, but that in any event this Court is not authorized to review the evidence to determine the degree of murder after a plea of guilty.

Section 475, Article 27 of the Code, chapter 138, Acts of 1809, provides that “all murder which shall be perpetrated by means of poison, or lying in wait, or by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.” Section 479 provides that “All other kinds of murder shall be deemed murder in the second degree.” These sections do not create new offenses, but merely divide the common law crime, and mitigate the punishment in cases of the second degree. Davis v. State, 39 Md. 355 . Section 480 provides that “the jury before whom any person indicted for murder shall be tried shall if they find such person guilty thereof ascertain in their verdict whether it be murder in the first or second degree; but if such person be convicted by confession, the court shall proceed, by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly * * *.” Such provisions are not uncommon, and have been held not to violate the requirements of due process. Hallinger v. Davis, 146 U. S. 314 , 13 S. Ct. 105 , 36 L. Ed. 986 .

There were no objections taken to any action of the trial court, no motions were made, and there are no rulings of the trial court before us for review. After the plea of guilty, the court heard evidence produced by counsel for the State and the accused as to the circumstances under which a young girl was shot three times by her rejected suitor on the beach at Deal’s Island. The appellant contends that the evidence was legally insufficient to show that the killing was deliberate and premeditated, and that the court’s determination of the degree of the crime, in the exercise of its statutory duty, ³¹³ is erroneous and reviewable, although he concedes that the legal sufficiency of evidence to convict and determine the degree of the crime would not have been reviewable if the trial had been before a jury, or by the court sitting as a jury, on a plea of not guilty. It is settled law in Maryland that this Court will not pass upon the legal sufficiency of evidence to convict in a criminal case, where the case is tried before a jury.

Brack v. State, 187 Md. 542 , 51 A. 2d 171 ; Simmons v. State, 165 Md. 155, 176 , 167 A. 60 ; Bloomer v. State, 48 Md. 521, 538 . The rule was formulated, in the absence of other provision by statute, as a corollary to the constitutional provision, Sec. 5, Art. 15, Constitution of 1867; Sec. 5, Art. 10, Constitution of 1851, declaring that in criminal cases the jury shall be the judges of the law as well as the fact. The appellate court in Indiana reached an opposite conclusion under an identical constitutional provision adopted in the same year (1851). Trainer v. State, 198 Ind. 502 , 154 N. E. 273 .

Our provision was said to have been merely declaratory of the pre-existing law. Franklin v. State, 1858, 12 Md. 236 ; compare State v. Buchanan, 1821, 5 Har. & J. 317 , 9 Am. Dec. 534 . For a summary of the authorities dealing with the doctrine, see