Ford v. State

Le Grand, C. J., delivered the opinion of this court. • This case comes before us on a writ of error sued out by the plaintiff in error, to have reversed and set aside a judgment pronounced against him in the Criminal Court of Baltimore. From the record transmitted to this court, it appears he was indicted for the murder of a person named Thomas H. Burn-ham; that he was arraigned, and to the charge pleaded not guilty; that a jury was empanneled to try the case, and they being polled, he was, by their verdict, found icguilty of the felony and murder above charged and imposed upon him, and that the said felony and murder is murder in the first degree.’1’’ If this be a correct record of what actually took place, then there is clearly no error to be corrected by the judgment of this court. But it is denied there ever was rendered such a verdict by the jury sworn to try the case, and it is this allegation, on the part of the prisoner, we are now called upon to consider and decide upon. We know nothing of the testimony adduced to the jury as to the guilt or innocence of the prisoner, nor have we any thing to do with it; that was a consideration exclusively for the court and jury that tried the case below.

Our duty and authority are confined to the legal questions arising out of the record. If the record shows the accused was convicted in due form of law, the judgment of the criminal court must be affirmed, and the sentence carried into execution, unless the ⁵⁴³ executive interpose. This being the status of the case, We proceed to the examination of the questions presented in argument, and by the record. Homicide at the common law is distinguishable into several kinds; into murder, manslaughter, excusable homicide, and justifiable homicide.

By our acts of Assembly of 1809, ch. 138, to these distinctions of the common law is added another, namely, murder in the first and murder in the second degree’, and it is to this latter sub-division the principle question for our decision owes its importance. The 3rd sectioii of that act is in the following words: “And whereas the several offenses which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrocionsness, that it is unjust to involve them in the same punishment; therefore be it enacted, that all murder which shall be perpetrated by means of poison, or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, or to burn any barn, tobacco house, having therein any tobacco, grain, hay, horses, cattle or goods, wares and merchandise; rape, sodomy, mayhem, robbery or burglary, shall be deemed murder in 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, 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,” ¿pe- lt is apparent, from the plain and unambiguous words of the statute, that where a party is tried before a jury on the charge of murder, it is the duty of the jury, if they find such person guilty of the murder, also to “ascertain in their verdict whether it be murder in the first or second degree.'1'1 This requirement, it was ingeniously urged on behalf of the State, could be fully gratified on an indictment like the one in the case before us, by a verdict of simply “guilty.” This view, ⁵⁴⁴ as appears from the opinion of the judge below, was addressed to him as it has been to us. We concur with him in the opinion that the finding of the jury of only “guilty,” is insufficient. The argument in its support is deduced mainly from the fact that the charge, as laid in the indictment, is the same as it would be at common law, where there are no degrees of murder, and, therefore, the response by the jury of “guilty,” is a full answer, and covers murder in the first degree; and this is sought to be sustained by an obiter of Chief J usticeTighlman, in the. case of White vs. The Commonwealth, reported in 6 Binney, 183, and because our act of 1809 is borrowed from that of Pennsylvania of 1794.

The case in which the distinguished chief justice dropped the dictum relied upon, did not involve the question, nor call for his opinion on the subject; and were it what, counsel suppose it to be, whatever may be our respect for his views on a legal proposition; (and it is certainly very great,) we would not feel ourselves bound to conform to it. Nor, indeed, had it been directly raised in the case, could we, with our understanding of. the language of the statute, unite in such construction. But the fact is, we do not concur with the counsel for the State, in the interpretation placed by them on the language of Chief Justice Tighhnan. His language is not susceptible of such construction.

It alluded to an indictment under the statute, and not at common law. In most of the States of this Union the act of Pennsylvania has been adopted in its very words; and we are not aware of any decision, in any of their courts of last resort, where it has been held not ■to be incumbent on the jury to find, distinctly and unequivocally, the degree of the murder. So far from it, there has been an unbroken uniformity of decision to the contrary. We do not deem it essential to recapitulate the numerous cases in which the act has come under review.

It is palpable to us that the true intent and purpose of the act, in this particular, were to impose upon the consciences of the jury the finding in their verdict (not therefrom to be inferred or conjectured) the degree of the crime; and when that part of the act is considered which refers to the case of the accused making, ⁵⁴⁵ in open court, a confession of guilt, it seems to us next to impossible that, on reflection, there should be any doubt on the mind of any one as to the proper interpretation of it. In the case of the confession by the prisoner, it is the duty of the judge to examine witnesses, with the view of determining the degree of the crime, the commission of which is confessed. Why this, if the view of the counsel of the State be tenable ? Most certainly the accused’s own confession of “guilty” ought to be equally as strong against him as the fipding of the jury of “guilty. ” And yet it does not dispense with the examination of witnesses to fix the degree.

Tp state the point, is, in our judgment, to resolve the question involved in it. We, however, refer to the opinion of Judge Bartley, in the case of Dick vs. The State of Ohio, reported in 3 Ohio, 89, N. S., for a very clear and satisfactory determination of it. Having, to our own satisfaction, settled the character of the finding which the act of Assembly requires in the case of conviction for murder, we proceed to notice some facts contained in the transcript of the clerk of the criminal court. The verdict in the case, whatever it was, was rendered on the 4th of October 1858.

On the rough minutes of the court appears the following entry: “Oct. 4, 1858, verdict, guilty of murder. Jury polled — Guilty of murder in the 1st degree.” From affidavits filed in the case' in the court below, it is obvious the words “jury polled — guilty of murder in the first degree,” were not placed on the minutes until the 5th of October, out of the presence of tlie prisoner and of the jury. Some of the bystanders, at the time of the rendition of the verdict, and the deputy clerk, who received it, make affidavit as to the words of the verdict, and the manner in which it was delivered and recorded. The jury who tried the case also filed a certificate, stating their recollection of the words used, and their understanding of their meaning.

To all this the judge certifies, in his opin' ion, his knowledge of what occurred. Without quoting the precise words used by the different persons who bear evidence in regard to the matter, we content ourselves by saying, that ¿here is not a single affiant or witness who states, nor does the ⁵⁴⁶ judge state, that each and all of the jury, when polled, found a verdict of guilty of murder