Chisley v. State

Hammond, J., delivered the opinion of the Court. The appellant, John William Chisley, was indicted for murder of Richard Henry Contee. His pleas were: 1, that he was not guilty, and 2, that he was insane at the time of the commission of the offense. It is admitted that he was sane at the time of the trial.

He was tried before a jury on September 5, 1952, about a month after his indictment. After the Court had refused a motion for a directed verdict at the close of the State’s case, and at the conclusion of the whole case, the jury found the appellant sane at the time of the commission of the crime, sane then and guilty of murder in the first degree, without recommendation. The Court sentenced him to be hanged. It is undisputed that John William Chisley shot and killed Richard Henry Contee on May 9, 1952 with two shots from a revolver, one in the head and one in the abdomen.

The claim of Chisley is that there was no sufficient evidence of either first or second degree murder and the Court should have so ruled as a matter of law, leaving the jury to find a verdict of either manslaughter or not guilty. Also, it is claimed that there was prejudicial error in permitting cross examination of the accused which utilized questions and answers lifted verbatim from a confession which was refused admission in evidence because it was not complete. The State contends that the lower Court and this Court may not rule as a matter of law on the sufficiency ⁹² of the evidence as. to the degree of murder — on whether the evidence would sustain a conviction of first degree murder — saying that this must always be for the jury to determine. It urges the correctness of the rulings on the evidence and that there was evidence to sustain the verdict of the jury.

The motion of the appellant for a directed verdict is in two parts. “(1) That there is no evidence sufficient in law to justify his conviction of murder in the first degree, (2) That the evidence is insufficient in law to justify his conviction of murder in the second degree.” As is said in Yanch v. State, 201 Md. 296, 300-301 , 93 A. 2d 749 , “Since the adoption of the amendment to the Maryland Constitution, Article 15, Section 5, effective December 1, 1950, we have the right and duty, when the question is properly submitted, as in the instant case, to pass upon the legal sufficiency of the evidence in a criminal case.. . This Court will not in a jury case pass upon the weight of the evidence or decide whether the State has proven its case beyond a reasonable doubt. If there is any proper evidence before the jury on which to sustain a conviction, the motion for a directed verdict will not be granted.” Shelton v. State, 198 Md. 405 , 84 A. 2d 76 . The State agrees with this statement of the law and agrees that if there was no evidence whatever of murder, but only of a killing, which if it amounted to a crime, could be manslaughter only, the Court below and this Court could so rule.

It contends, however, that if there is any evidence of murder, there can be no determination by the Court below or this Court, as a matter of law, that the evidence is insufficient to show first degree murder. Its argument is that although Sections 494-498 of Article 27 of the Maryland Code (1951 Ed.) divide the crime of murder into two classifications: murder in the first degree and murder in the second degree, as has been long held by this Court, this statutory classification left the common law crime of murder undisturbed and did not create a new crime. The purpose of the statutes, it is said, was a mitigation of punishment in less atroci ⁹³ ous murders. The State says that the question before the jury can be only whether the appellant committed the crime of murder.

If it is found that he did, the jury under the statute, must determine the degree. On this premise, the State argues that the changes in criminal procedure which followed the amendment to Article XV, Section 5 of the Constitution, and which are controlled by the provisions of Section 700 of Article 27 of the Code (1951 Ed.) and Rule 5A of the Criminal Rules of Practice and Procedure do not apply to the determination of the degree of the crime. It quotes Davis v. State, 39 Md. 355 at page 374: “ ‘Murder’ is here recognized as a general denomination, including offenses differing from each other in their degrees of atrocity, but not in their nature or kind; no attempt is made to explain or modify its meaning or abridge its range. Its common law sense is left unimpaired ; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed. “The mode of distinguishing its degrees is specially prescribed, by requiring the jury, if the person indicted for murder shall be tried, to ‘ascertain in their verdict whether it be murder in the first or second degree,’ or if the ‘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.’ ” The State urges that in Abbott v. State, 188 Md. 310 , 52 A. 2d 489 , decided before the Court was given the power to pass on the sufficiency of the evidence, the Court recognized the validity of the holding in Davis v. State.

The Court said in the Abbott case: “We find nothing in the language of Section 480 of Article 27 (now Section 499) Chapter 138, Acts of 1809, quoted above, to indicate an intention on the part of the Legis ⁹⁴ lature to make reviewable by this Court a finding of the trial court as to the degree of a crime”. The State finds further support for its position in Pennsylvania decisions. Pennsylvania has a statute almost identical with Sections 494-499 of Article 27, providing that the jury shall ascertain the degree of murder. It cites Commonwealth v. Foster, 364 Pa. 288 , 72 A. 2d 279 , and Commonwealth v. Gibbs, 366 Pa. 182 , 76 A. 2d 608 .

We are persuaded that to accept the holding urged by the State would, in a most important particular defeat the intention of the Legislature and the people in amending the Constitution so that the Court may decide in criminal cases sufficiency of evidence as a matter of law, leaving other matters of law and all matters of fact to the jury. Under the established and unquestioned practice, the jury may return a verdict of manslaughter under a murder indictment. Article 27, Section 710 of the Code (1951 Ed.) ; Bozman v. State, 193 Md. 196 , 66 A. 2d 401 . The State concedes, as we think it must, that the Court may instruct an acquittal on the charge of murder, leaving the jury to find whether or not the accused is guilty of manslaughter or not guilty.

It is true that technically manslaughter and murder are distinct crimes, yet, in substance, they are degrees of felonious homicide. Hochheimer, On Crimes and Criminal Procedure, Second Edition, Sec. 346. In substance, also, the difference between murder in the first degree and murder in the second degree is as great and as definitive as the difference between murder and manslaughter. It would produce a most unreasonable and unfortunate result to hold that the Court may instruct that there is no evidence of murder and yet cannot instruct that there is no evidence which would sustain a conviction of murder in the first degree.

The difference in punishment between murder in the second degree and manslaughter is but a few years. The difference in punishment between murder in the first degree and murder in the second degree may often be the difference between death and life. ⁹⁵ The language of the Constitutional Amendment, of the statute, (Section 700, Article 27 of the Code, 1951 Ed.) and of Rule 5A of the Rules of Criminal Procedure, in each case permits review by the Court as to whether the evidence is insufficient to sustain “conviction”. The Code (1951 Ed.) in Section 500 of Article 27 sets forth the punishment for “every person convicted of murder in the first degree.” In the following section, it establishes the punishment for “every person convicted of the crime of murder in the second degree”. Section 502 says: “An offender, on conviction, may be sentenced to suffer death”.

In Abbott v. State, swpra, the Court relied strongly on the settled law of Maryland “that this Court will not pass upon the legal sufficiency of evidence to convict in a criminal case”. In speaking of the determination of the Court below as to the degree of murder, it then held this: “To the extent that the finding is one that would have been conclusive in the event of a jury trial, we think it should be equally conclusive where the determination rests with the trial court under the provisions of Section 636, Article 27, or Section 480 of Article 27 of the Code. These statutes were adopted in the same year, 1809, and have remained without substantial change. Insofar as they deal with different aspects of the same subject-matter, they are in pari materia and should be construed together”.

As we have noted, the premise of the Abbott case was that the Court cannot pass on the legal sufficiency of the evidence. Now that the Court may do so, the force of the Abbott case as a precedent that the Court may not determine the legal sufficiency of the evidence to sustain a conviction of first degree murder is unimpressive. The Pennsylvania statute, which coincides with Sections 494-499 of Article 27 of the Code (1951 Ed.) contains provisions which are identical, as to the definition of the two degrees of murder and as to the duty of the Court and the jury in ascertaining which has been committed. This statute was the first to be passed in this country and most of the States have modelled their ⁹⁶ law upon- that of Pennsylvania.

See History of the Pennsylvania Murder Statute, 97 Pa. Law Review 759; and Hochheimer, work cited, See. 347. The Pennsylvania decisions, relied on by the State, do not offer support for its -position. The Pennsylvania Courts have long held that where there is any evidence to be submitted to the jury, the Court cannot direct the jury as to the degree, or exclude manslaughter from its consideration and cannot direct acquittal.

The jury must be the judge where there are facts upon which it can base a decision. Nevertheless, where there are no facts which will permit or sustain a decision by the jury, the Pennsylvania Court may direct a verdict of acquittal. Commonwealth v. Bardolph, 326 Pa. 513 , 192 A. 916 ; and Commonwealth v. Benz, 318 Pa. 465 , 178 A. 390 . The reiteration in the Pennsylvania cáses relied on by the State, and in other similar cases, that the jury must decided the degree of murder comes where there is evidence to go to the jury and the Court has instructed as to first degree but has either altogether omitted reference to the possibility of a finding of second degree or of' manslaughter, or has insufficiently stressed those possibilities; nevertheless, where there is a complete lack of evidence justifying the verdict of manslaughter, it has been held in Pennsylvania that it is not an error for the Court to fail to instruct on that point.

Commonwealth v. Yeager, 329 Pa. 81 , 196 A. 827 . Pennsylvania holds, as does Maryland, (and as is generally held, Warren on Homicide, Perm. Ed. Vol. 1, Sec. 77-78) that a division of murder into first and second degree does not change its common law status as one crime. Nevertheless, the Pennsylvania statutes require the Court on a motion in arrest of judgment, or on appeal, to pass on the sufficiency of evidence as to the degree of murder involved.

In Commonwealth v. Blanchard, 345 Pa. 289 , 26 A. 2d 303, 306 , 27 A. 2d 48 , the Court noted that there, in homicide cases, the appellate court reviews the law and the evidence “to determine whether the ingredients necessary to constitute murder in the first ⁹⁷ degree shall have been proved to exist” and if not, to reverse judgment and to send the case back for a new trial or enter proper judgment under the law and facts. In Commonwealth v. Dorazio, 365 Pa. 291 , 74 A. 2d 125, 127 , the Court held that, in reviewing a conviction of murder, “it is our duty to determine whether the degree or elements of murder in the specified degree are present; whether there is sufficient evidence from which the jury could find beyond a reasonable doubt that the degree of murder was committed by the accused”. This was also stressed in Commonwealth v. Carluccetti, 369 Pa. 190 , 85 A. 2d 391 . The law in many jurisdictions seems to be in accord.

In 23 C. J.. S., Criminal Law, Sec. 1156, page 695, it is said that the Court must not impinge on the right of the jury to determine the degree of crime of which accused is guilty, and goes on to say, “the Court may, where the evidence warrants it, charge that the evidence shows that a crime of one of the specified grades or degrees has or has not been committed, and direct the jury, if they believe the evidence, to find accordingly”. In H C. J. S., Homicide, Sec. 352, page 118, it is said: “Whether there is legal sufficiency of evidence in support of a degree of the crime of which accused may be convicted which will warrant its submission to the jury is a question of law for the Court, and, where there is no evidence to support a particular degree of homicide, the Court should not submit that issue to the jury”. See Commonwealth v. Yeager, supra; Commonwealth v. Green, 302 Mass. 547 , 20 N. E. 2d 417 ; and Kinard v. United States, 68 App. D. C. 250, 96 Fed. 2d 522.

In State v. Linville, 148 Kan. 142 , 79 P. 2d 869, 871 , the accused was convicted of manslaughter in the second degree. The Court instructed the jury as to manslaughter in the second degree, manslaughter in the fourth degree, and simple assault. The Court said that the essential elements necessary to constitute the crime of manslaughter in the second degree were neither established by direct evidence nor by legitimate in ⁹⁸ ference. The Court held that: “As the evidence failed to support the charge of manslaughter in the second degree, we think it was error to instruct the jury as to that crime and to submit such issue to the jury”.

There was a similar ruling in State v. Nelson, 148 Minn. 285 , 181 N. W. 850 ; and see State v. McLeod, 196 N. C. 542 , 146 S. E. 409 . In Commonwealth v. Merrill, (Mass.) 14 Gray 415 , 77 Am. Dec., 336 , the accused was indicted for assault with intent to rape and was found guilty. The Court said: “ There was an entire absence of all. evidence of the use of force” and that the evidence would have supported only a finding of simple assault.

It was held that the case should not have gone to the jury on the question of assault with the intent to rape. In Devoy v. State, 122 Wisc. 148, 99 N. W. 455 , the appellate court said that the evidence ■ was insufficient to establish the crime of rape and that the Court should have granted the motions of the accused to dismiss the case on this charge and have submitted the case to the jury on the counts supported by the evidence. See also State v. Kelley, 36 Wash. 2d 772 , 220 P. 2d 342 ; State v. Banks, 48 Ind. 197 ; State v. Hammonds, 216 N. C. 67 , 3 S. E. 2d 439 ; and Commonwealth v. DiStasio, 297 Mass. 347 , 8 N. E. 2d 923 , 113 A. L. R. 1133. In the latter case, the defendant was indicted with his father on the charge of murder and also as an accessory before the fact.

The Court directed a verdict on the charge of murder, saying that if there was any guilt it was as an accessory before the fact. We think that the criminal procedure in Maryland, established by the Constitution and the statutes and rules which have followed it, contemplates the power of the Court to direct a verdict where the evidence is entirely insufficient to go to the jury on the question of first degree murder. The Circuit Court of Appeals for the Seventh Circuit, in Ex Parte United States, 101 F. 2d 870 -878, 131 A. L. R. 176, said: “The essence of legal power is to take the case away from the jury, where there is an insufficiency of evidence to sustain ⁹⁹ a conviction”. In Webb v. State, 201 Md. 158, 163 , 93 A. 2d 80, 83 , the Court decided that it need not consider whether, had death ensued, “the appellant could have been convicted of murder in the first degree for a ‘wilful, deliberate and premeditated killing’, or merely of another ‘kind of murder’ comprehended in the second degree”.

This assumption of the power of decision between the two kinds of murder is at least a hint of prophecy, although perhaps not made with full deliberation and premeditation, that if the occasion arose, the Court would hold it has the power and duty to review the evidence to see if it would sustain first degree murder. See also Knowles v. State, 192 Md. 664 , 65 A. 2d 179 ; Munshower v. State, 56 Md. 514 ; and 13 Maryland Law Review, 52, 62. Since we must decide whether the jury should have passed on the issue of first degree murder, a recital of the essential testimony is necessary. On May 9, 1952, the night of the murder the father of the accused and two other men met him by chance in Bowie and drove him home in the car with them.

The appellant had been drinking but did not seem to be drunk. He walked to the car in Bowie in his usual manner, although he seemed to sleep on the back seat during the drive back home. When the car arrived at the Chisley home, it was driven to within four or five feet of the back steps. The father got out of the car first, followed by his brother-in-law, William Shorter, who told him that he had dropped some cigarettes.

The accused said they were his and Richard Contee, the victim, said they were not. The father testified: “That’s all there was to it. He gets out the gun and shot him; there wasn’t any argument to it.” Both the father and William Shorter agree that more than one shot was fired. The father, after the first shot, had gone through the house and a considerable distance up a road when he heard a second, and, perhaps, a third shot.

Shorter had gone around the corner of the house and some thirty or forty yards across a field, when he heard the gun go off again. He said “I don’t ¹⁰⁰ know how many [times]”. The father, when asked whether his son drank, testified that he did and that when he drank heavily, “He don’t act any too good. . . He is kinda disagreeable and cross.” There was testimony by Leon Thomas, a neighbor of the Chisleys, that he learned of the shooting from the appellant’s mother.

He walked over to the victim’s car and found the accused sitting in it, attempting to start it, as it kept stalling. Thomas then discovered that Contee was dead, and he urged the accused not to drive off but to get out of the car to help him. Chisley made no reply, so Thomas reached in and