Davis v. State

Bowie, J. delivered the opinion of the Court. The errors assigned as grounds for the reversal of the judgment below, by the plaintiff in error in this case, may be classified as follows: First. Omissions of material averments in the indictment, necessary to show that the crime with which he was charged was murder in the first degree under the Code of Pub. General Laws.

Secondly. Averments in the record showing the Court below bad no jurisdiction.. Thirdly. Assuming the indictment, verdict and judgment, are held to be good under Art. 30, secs. 137 to 145, ³⁷¹ of the Code of Public General Laws, then those sections are unconstitutional and void.

There are five specific objections to the form of the indictment. 1st. The indictment does not, with legal sufficiency, allege any kind of wilful, deliberate and premeditated killing, which is murder in the first degree under the law of the State of Maryland. 2d. The indictment does not allege that the killing set forth therein, was wilful, deliberate and premeditated. 3d. The indictment does not allege, in the description of the offence therein contained, that the killing alleged was wilful, deliberate and premeditated. 4th.

The indictment does not allege that the blow in said indictment set forth, whereby a mortal wound is alleged to have been inflicted, was struck wilfully, deliberately and premeditatedly. 5th. The indictment does not allege that said blow was struck wilfully, deliberately, and premeditatedly, with a design thereby to produce death. These are all based on tit e same premises, and may he reduced to one, viz., that the indictment does not charge the plaintiff in error, with the crime of murder in the first degree, as defined by the Code of Pub. Gen.

Laws, and therefore the jury could not convict him of such crime. These objections are said to be founded on the first principles of the common law, which require, that in an indictment, all the facts and circumstances constituting the offence, must be specially set forth. If any fact or circumstance, which is a necessary ingredient of the offence be omitted, such omission vitiates the indictment; and not only must the facts and circumstances which constitute the offence be stated, but they must be stated with such certainty and precision, that the defendant may be enabled to judge whether they constitute an indictable ³⁷² offence or not, in order that he may demur or plead to the indictment, and that there may be no doubt as to the judgment which should be given, if the defendant be convicted. These cardinal rules, the plaintiff in error contends have been violated in this case, because, since, the Code, Art. 30, sec. 137, declares “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,” and by sec. 142, declares “all other kinds of murder shall be deemed murder in the second degree:” — the principles of the common law and of natural reason and justice, which are inherent in the case, require the indictment for murder, where the statute divides it into two degrees, should, if murder in the first degree is meant to be proved against the prisoner, contain those allegations, which show the offence to be in this degree.

This proposition is not supported by any well considered authority that has been cited, but seems to us opposed to the axioms of criminal pleading announced by the most esteemed writers on English Criminal Law, and modern American authors, with one or two exceptions. “An indictment grounded upon an offence made by Act of Parliament, must by express words bring the offence within the substantive description made in the Act of Parliament, and those circumstances mentioned in the statute to make up the offence, shall not be supplied by the general conclusion ‘ contra formara statuti. ’ ” And so it is, if an Act of Parliament oust clergy in certain cases, as murder “ ex malitiaprecogitata,” etc., * * though the offences themselves were at common law within clergy, they shall not be onsted of clergy, though convicted, unless these circumstances “ex malitia precogiiata,” etc., be expressed in the indictment. 2 Hale’s Pleas of the Crown, 170. The reason of these rules is ³⁷³ apparent on their face; in the one case, the crime is created by statute, in the other, the punishment is increased. If the circumstances which constituted the crime, or increased the punishment, were not set out in the indictment, the accused would not be informed of the offence with which he was charged, or of the penalty to which he was liable. These reasons do not apply to a statute, neither creating an offence nor enhancing its penalties, but dividing a common law offence into degrees and diminishing the punishment.

The essential elements of all felonies at common law, such as murder, arson and robbery, have been ascertained and defined by innumerable decisions, and are expressed with legal certainty by certain technical terms, which have been engrafted upon our jurisprudence for centuries. These terms are incorporated into our language as expressing “per se” the crime they designate, and when used in our statutes, have a legal meaning when not otherwise qualified. 1 Whar. Cr. L., 930.

Thus, the Act of 1809, ch. 138, entitled, “An Act concerning crimes and punishments,” codified in Art. 30 of the Code of Public General Laws, adopts the nomenclature of the common law for the catalogue of crimes enumerated therein, without attempting to define what constitutes those crimes. In the preamble of the Act it is recited, “and whereas the several offences which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, that it is unjust to involve them in the same punishment, Be it enacted, that all murder which shall be perpetrated by means of poison or by lying in wait, or by any kind of wilful, deliberate and premeditated killing, etc., shall be deemed murder of the first degree; and all other kind of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, ³⁷⁴ 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;” “Murder” is here recognized as a general denomination, including offences 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.” This Act of Assembly, now codified, does not create a new crime; it neither adds to nor diminishes the class of cases which constituted murder at common law; nor does it increase the punishment.

When, therefore, a person is indicted for murder, in the technical language of the common law, he is charged with a crime, which in its proper sense, includes all circumstances of aggravation, and as all minor degrees are included in the major, he is liable to be convicted of the inferior, as well as of the higher grades of that offence, and vice versa. ■ The accused is -advertised by the indictment for murder, that he is to be tried for a capital offence, and no language can convey more certain and precise information of the nature of the offence, than that employed by the forms of the commou law, as uniformly interpreted. ³⁷⁵ The description of the crime by its general designation does not render uncertain that which was before certain, so as to throw the prisoner off his guard, or deprive him of any defence. On the contrary it tends to his security, by preparing him for the worst, as “to be fore-warned is to be fore-armed.’'' The express object of the statute in dividing the crime into degrees, was the mitigation of the punishment in cases of the second degree. The mode prescribed by the Code to ascertain the degree, shows beyond all doubt there was no design in the framers of the law to change tiie form of pleading. If, as argued by the counsel for the plaintiff in error, the circumstances which determined the degree should be averred in the indictment, then a general verdict of guilty in the case of the trial, or a general plea of guilty, in case of confession, would have established the degree and determined the punishment; but the provisions of the Code, that the jury in the former case, “ shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder in the first or second degree,” or in the latter, that the Court shall proceed by examination of witnesses to determine the degree, shew the degree of murder depended on the proof, and not on the pleading.

On any other hypothesis the provisions of the Code in that respect, are unmeaning and useless. The construction of those sections of the Act of 1809, ch. 138, relating to the degrees of murder, by this Court, in the case of Weighorst vs. The State, 7 Md., 442 , although not directly upon the point, confirms the view we have already expressed. The prisoner was indicted for the murder of his wife, and found guilty of murder in the second degree, without acquitting him of murder in the first degree, or manslaughter. A motion was made in arrest of judgment, on the ground that the jury had not passed on all the issues in the cause; in other ³⁷⁶ words, that the verdict did not cover all that was involved in the issue.

The counsel for the plaintiff' in error contended that the Act of 1809, ch. 138, speaks of murder in the first degree, and of murder in the second degree, as separate and distinct offences; that manslaughter, murder in the second degree, and murder in the first degree, are all degrees of homicide. In every such indictment, therefore, homicide is the subject charged, and murder in the first degree, or murder in the second degree, or manslaughter, is the result. Every such indictment, therefore, presents to the jury, three separate issues. On the other hand, the State contended that the Act of 1809, ch. 138, sec. 3, does not alter the crime of murder as it is known at the common law, referring to State vs. Dowd, 19 Conn., 391 .

This Court taking up this point (by Tuck, J.) remarked : “The motion in arrest of judgment, is founded on the supposition, that the verdict should have acquitted the party of murder in the first degree, and of manslaughter ; but we do' not understand the latter feature of this motion to be relied on. Where there is but one count, the inferior grade of the offence need not be passed upon by the jury. It is sufficient if the finding cover the indictment, and we agree that the present case must be decided according to this rule. Weighorst was indicted for the crime of murder, not for having committed a homicide.

Upon this charge he was convicted, and the jury, in obedience to the Act of 1809, ch. 138, ascertained the degree of that crime. This verdict, though not subjecting him to the severest penalty, found him guilty of murder, the crime alleged against him. The Act of Assembly does not create a new offence in distinguishing between murder, of the first and second degree. The design was to ' discriminate in awarding the punishment.

The supposed aaialogy between a conviction of manslaughter and of ³⁷⁷ murder in the second degree does not exist. Manslaughter is a different crime from murder. Although both are within the general term homicide, yet, legally speaking, they are not different degrees of the same offence, because one is not murder at all, and hence, a verdict merely convicting the accused of that grade of homicide, would leave the crime charged in the indictment, wholly unnoticed, in disregard of the nature and end of pleading, and of the duty of the jury to pass upon the issues as framed. Besides, if the Act of Assembly created a new offence, it would be necessary, where a party is convicted of manslaughter, under a count for murder, to acquit of both degrees of murder, but this is never done.” “it is sufficient in such cases to say, not guilty of the murder, without negativing each degree of that crime.

Again, the Act does not authorize the accused to plead guilty of murder in the second degree. If he confesses at all, he must plead to the indictment for murder, and it is then made the duty of the Court ‘by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly.’ It is true the Act does, in awarding punishment, speak of the crime of murder in the second degree, as if creating an offence before unknown to our laws ; but we think this single expression, must yield to the object and design of the Act as indicated by its other sections.” To this lucid exposition of the Act of 1809, ch. 138, and its effect upon the forms of pleading in criminal cases, may be added the opinion of the Supreme Court of Pennsylvania, delivered by Tilghman, C. J., in the case of White vs. The Commonwealth, brought upon a writ of error. Among the errors assigned, it was objected to the indictment that the offence was not charged with sufficient certainty, and that it did not conclude “ against the form of the Act of Assembly.” The question presented was not directly in the form of the objections now before us, yet, the same principles of ³⁷⁸ construction were involved, and to arrive at the conclusion announced in that case, as in Weighorst’s it was necessary to determine the effect of the statute of Pennsylvania, which in respect to the crime of murder is almost identical with ours on the frame of the indictment. After stating the substance of the indictment, the learned Judge proceeds; “Where a statute creates an offence the indictment must charge it as being done against the form of the statute.

But where the statute only inflicts a penalty upon that which was an offence before, it need not be laid to be against the form of the statute, because in truth, the offence does not violate the statute. That this is the rule, was decided in the case of the Commonwealth vs. Searle, 2