Gladden v. State

O’Donnell, J., delivered the opinion of the Court. In early March 1973 the petitioner, John Michael (“Box”) Gladden, sold to his erstwhile friend Walter Edward (“Rabbi”) Siegel 1 two ten dollar bags of heroin — at a discount — for $19. Disenchanted with the chemical quality of the contraband, Siegel, three or four days later, confronted his vendor in the privacy of a bathroom in a nearby tavern, and with a .22 caliber revolver as a persuader, recouped ten dollars and five bags of what he trusted might be better grade heroin. Needless to say, the petitioner, chagrined by such a forcible commercial transaction, vowed revenge and sought out Siegel on Saturday, March 10th, at yet another bar, there inquiring of Siegel’s residence.

About 2:30 p.m. on March 12, 1973 the petitioner spotted Siegel then sitting on the front steps of a residence in the 2300 block Barclay Street, and approached him holding a “big black cowboy gun.” A girl friend of Siegel, Patsy Quickly, was standing nearby; she shouted a warning and interposed herself between the antagonists, exhorting the petitioner not to kill Siegel and offering, herself to pay him back one-half the money for the narcotics taken from him. 2 ³⁸⁵ This brief interval permitted Siegel to take flight from the steps and, running south on Barclay Street, to seek cover behind a parked truck. The petitioner, in fresh pursuit, followed, and as they circled the truck Gladden, at intervals, wildly got off four or five shots from his .45 caliber gun without hitting his intended target. One of the projectiles struck the window sill of the premises at 2327 Barclay Street, two others struck nearby homes, and one, transiting the window at 2325 Barclay Street, pierced the chest of William Jeffrey Nixon, 12 years of age, a resident there, who was seated on the living room couch. In his trial -in the Criminal Court of Baltimore, upon an indictment charging him with the murder of young Nixon, the trial judge (Levin, J.) instructed the jury, inter alia, as follows: “What is the situation where a person intends to kill one person but instead kills another person?

To put it a different way, what is the situation when the deceased is not the intended victim? The law is that such a homicide partakes of the quality of the original act so that the guilt of an accused is exactly what it would have been had the shots been fired at the intended victim instead of the person actually killed. The fact that the person actually killed was killed instead of the intended victim is immaterial and the only question is what would have been the degree of guilt if the result intended had actually been accomplished. The intent is transferred to the person whose death has been caused.

If you find from the evidence and beyond a reasonable doubt that the defendant would be otherwise guilty of murder in the first degree of Mr. Siegel, and I have defined murder in the first degree, if you find from the evidence and beyond a reasonable doubt that the defendant would be otherwise guilty of murder in the first degree of Mr. Siegel, and if you find further beyond a reasonable doubt that the Nixon child died as a ³⁸⁶ result of a bullet or bullets striking him fired by this defendant, then you should find the defendant guilty of murder in the first degree.” Counsel for the petitioner filed a timely exception to the instruction, contending that “the doctrine of transferred intent is not the law of Maryland,” and thus preserved the point for appellate review. See Maryland Rule 756 f and g. The petitioner’s conviction of murder in the first degree was affirmed by the Court of Special Appeals in Gladden v. State, 20 Md. App. 492 , 316 A. 2d 319 (1974). Judge Moylan, who wrote the opinion for that court, stated: “We have no difficulty in deciding that ‘transferred intent’ is, and should be, a part of the common law of this State,” and after pointing out that our courts had never ruled on the point, concluded: “We now hold that the doctrine of ‘transferred intent’ is the law of Maryland and that whatever mens rea a defendant entertains as to his intended target will carry over to any unintended victim, when the attack goes wide of its mark.” Because the application of the doctrine of “transferred intent” was one of first impression in this Court we granted certiorari.

The petitioner contends that in the absence of a specific intention to kill young Nixon the doctrine of transferred intent was improperly applied and cannot be used as a substitute for the willfulness,. deliberation and premeditation required to constitute murder in the first degree under Maryland Code (1957, 1971 Repl. Vol.) Art. 27, § 407. The statute reads as follows: “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.” 3 ³⁸⁷ For a homicide to be “wilful” there must be a specific purpose and design to kill; to be “deliberate” there must be a full and conscious knowledge of the purpose to kill; and to be “premeditated” the design to kill must have preceded the killing by an appreciable length of time, that is, time enough to be deliberate. Robinson v. State, 249 Md. 200 , 238 A. 2d 875 (1968); Howard v. State, 234 Md. 410 , 199 A. 2d 611 (1964); DeVaughn v. State, 232 Md. 447 , 194 A. 2d 109 (1963), cert. denied, 376 U. S. 927 (1964); Cummings v. State, 223 Md. 606 , 165 A. 2d 886 (1960), cert. denied 366 U. S. 922 (1961); Kier v. State, 216 Md. 513 , 140 A. 2d 896 (1958); Elliott v. State, 215 Md. 152 , 137 A. 2d 130 (1957); Faulcon v. State, 211 Md. 249 , 126 A. 2d 858 (1956); Chisley v. State, 202 Md. 87 , 95 A. 2d 577 (1953).

In order to sustain a conviction of murder in the first degree, as thus defined, the jury must find “ ‘the actual intent, the fully formed purpose to kill, with so much time for deliberation and premeditation as to convince them, that this purpose is not the immediate off spring of rashness and impetuous temper and that the mind has become fully conscious of its own design.’ It is not necessary that deliberation and premeditation shall have been conceived or have existed for any particular length of time before the killing. Their existence must be judged from the facts of the case. . . .” Chisley v. State, 202 Md. at 106 , 95 A. 2d at 586 . See also Hyde v. State, 228 Md. 209, 215-16 , 179 A. 2d 421, 424 (1962); Cummings v. State, 223 Md. at 611 , 165 A. 2d at 888-89 ; Faulcon v. State, 211 Md. at 257-58 , 126 A. 2d at 862-63 . “If the killing stems from a ‘choice made as a result of thought, however short the struggle between the intention and the act, it is sufficient to characterize the crime as deliberate and premeditated murder.’ ” Wilson v. State, 261 Md. 551, 565 , 276 A. 2d 214, 221 (1971). See also Robinson v. State, supra; Tull v. State, 230 Md. 596 , 188 A. 2d 150 (1963); Hyde v. State, supra; Dunn v. State, 226 Md. 463 , 174 A. 2d 185 (1961); Cummings v. State, supra; Kier v. State, supra; Faulcon v. State, supra; Chisley v. State, supra.

This Court has held in Wilson, Cummings and Chisley that the firing of shots from a weapon interspersed by an interval of time was sufficient evidence of deliberation and premeditation. ³⁸⁸ Malice is an indispensable ingredient of murder — whether it be murder in the first or second degree; such malice may be express or implied. Stansbury v. State, 218 Md. 255, 260 , 146 A. 2d 17, 20 (1958). As relating to murder it has been defined “as the intentional doing of a wrongful act to another without legal excuse or justification” and as including “any wrongful act done wilfully or purposely.” See Chisley v. State, 202 Md. at 105 , 95 A. 2d at 585 . See also Lindsay v. State, 8 Md. App. 100, 104 , 258 A. 2d 760, 763 (1969), cert, denied, 257 Md. 734 (1970). “In the absence [of evidence] of justification, excuse, or some circumstance of mitigation, malice may be inferred when there is an intent to inflict great bodily harm or when one wilfully does an act, the natural tendency of which is to cause death or great bodily harm.” Faulcon v. State, 211 Md. at 257 , 126 A. 2d at 862 .

Our predecessors have held “[a]n actual intent to take life is not necessary for a conviction of murder if the intent is to commit grievous bodily harm and death occurred in consequence of the attack.” Davis v. State, 237 Md. 97, 104 , 205 A. 2d 254, 258 (1964), cert. denied, 382 U. S. 945 (1965); Webb v. State, 201 Md. 158 , 93 A. 2d 80 (1952). Thus, under our decisions, since the malice required for murder may be either express or implied, there is no requirement that a specific intent to kill, and thus express malice, exist; a person may commit murder without an actual intent to kill (express malice) for the law will infer or imply malice from the attendant circumstances in some unintentional killings. See Cook v. State, 9 Md. App. 214, 218 , 263 A. 2d 33, 35 , cert, denied, 258 Md. 726 (1970); Lindsay v. State, supra. In our opinion-there was ample evidence from which the jury could find the presence of malice, in that Gladden, without legal justification or excuse, was engaged in the “intentional doing of a wrongful act to another wilfully and purposely”; indeed, there was evidence from which the jury could have found on his part an actual intent to kill Siegel and thus express malice.

As to whether or not the conduct of the petitioner was “wilful” and thus with a specific purpose and design to kill, and “deliberate” with a full and conscious knowledge of the purpose to kill, the evidence was equally abundant in that it was shown that the ³⁸⁹ petitioner possessed an enmity toward Siegel, arising from the antecedent episode between them when Siegel “held him up,” that he had sought out Siegel, with drawn gun, and threatened to shoot Patsy Quickly, the bodily shield between him and Siegel, “if she did not get out of the way.” Similarly, there was ample evidence from the pursuit of Siegel by the petitioner and the firing at him of four or five shots from his .45 caliber gun, interspersed by intervals of time, to persuade the jury that his conduct was premeditated. In short, if the petitioner’s bullets had made their mark upon Siegel, there was sufficient evidence to support a verdict of murder in the first degree. Concededly young Nixon was unknown to the petitioner and as to him the petitioner possessed neither a motivation nor an express intention either to kill him or do him bodily harm. We must thus resolve the question as to whether or not the homicide of young Nixon — an unintended victim — partakes of the quality of the conduct and acts of the petitioner toward his intended victim, Siegel.

In 1776 the framers of the Constitution of Maryland adopted the common law as part of the law of this State. The provision in Art. 5 of the Declaration of Rights “[t]hat the inhabitants of Maryland are entitled to the Common Law of England” referred to the mass of the common law as it existed in England on the “Fourth day of July, Seventeen Hundred Seventy-Six” and as it prevailed in Maryland either practically or potentially, except such portions thereof as were inconsistent with the spirit of the Constitution and the nature of our new political institutions. McGraw v. State, 234 Md. 273, 275-76 , 199 A. 2d 229, 230-31 , cert. denied, 379 U. S. 862 (1964); Lickle v. Boone, 187 Md. 579, 582 , 51 A. 2d 162, 163 (1947); State v. Buchanan, 5 Har. & J. 317, 358 (1821). Although the common law as it so existed is subject to revision, amendment or repeal by the Legislature, as is expressly provided in Art. 5, the ingredients and elements of murder are as they were at common law.

When by Ch. 138 of the Acts of 1809 the Legislature divided the crime of murder as it was known at common law into first and second degrees and attached penalties ³⁹⁰ therefor, no new statutory offense was created. See Stansbury v. State, supra; Webb v. State, supra; Wood v. State, 191 Md. 658 , 62 A. 2d 576 (1948); Abbott v. State, 188 Md. 310 , 52 A. 2d 489 (1947); Hanon v. State, 63 Md. 123,126 (1885); Davis v. State, 39 Md. 355 (1874); Weighorst v. State, 7 Md. 442 (1855). In Stansbury v. State, supra, Judge Henderson, who delivered the opinion of the Court, stated: “We have held that the quoted sections [§§ 407 and 410] do not create any new crime, but merely classify murder, as it was known at common law, into degrees. Wood v. State, 191 Md. 658, 666 ; Abbott v. State, 188 Md. 310, 312 ; Davis v. State, 39 Md. 355, 374 . ...

As used in the statute, the ‘common law sense [of murder] is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.’ Davis v. State, supra. ” 218 Md. at 260 , 146 A. 2d at 20 . The so-called doctrine of “transferred intent” had its earliest roots firmly embedded in the English Common Law. As early as 1576, in Reg. v. Saunders, 2 Plowd. 473, 75 Eng. Rep. 706 (1576), it was stated: “And therefore it is every man’s business to foresee what wrong or mischief may happen from that which he does with an ill-intention, and it shall be no excuse for him to say that he intended to kill another, and not the person killed, (c) For if a man of malice prepense shoots an arrow at another with an intent to kill him, and a person to whom he bore no malice is killed by it, this shall be murder in him, for when he shot the arrow he intended to kill, and inasmuch as he directed his instrument of death at one, and thereby has killed another, it shall be the same offense in him as if he had killed the person he aimed at, for the end of the act shall be construed by the beginning of it, and the last ³⁹¹ part shall taste of the first, and as the beginning of the act had malice prepense in it, and consequently imported murder, so the end of the act, viz. the killing of another shall be in the same degree, and therefore it shall be murder, and not homicide only.” 2 Plowd. at 474a, 75 Eng.

Rep. at 708. See also Rex v. Brown, 1 Leach C.C. 148 (1776); Reg. v. Mawgridge, Kelyng C.C. at 180 (3d ed. 1873) (case decided circa 1710); Rex v. Plummer, 1 Kelyng 109, 84 Eng. Rep. 1103, 88 Eng. Rep. 1565 (1701); Williams’ Case, 82 Eng.

Rep. 227 (1639); Gore’s case, 9 Coke 81 (1611); Mansell’s case, 2 Dyer 128b (circa 1555). In Rex v. Plummer, supra, Holt, C. J., in setting forth the reasons for the judgment, is reported as stating: “. . . As if a man out of malice to A. shoots at him to kill him, but misses him and kills B. it is no less a murder than if he had killed the person intended. Dyer 128.

(1) Cromp. 101. (2) Plowden’s Com. 474. Saunder’s case, 9 Rep. 81. Agnes Gore’s case.” 84 Eng.

Rep. at 1104-05. Sir Matthew Hale, in 1 History of the Pleas of the Crown, 4 in reviewing the application of the law of murder, commented at 466: “To these may be added the cases abovementioned, viz. if A. by malice forethought strikes at B. and missing him strikes C. whereof he dies, tho he never bore any malice to C. yet it is murder, and the law transfers the malice to the party slain; the like of poisoning, sed de his supra cap. ” Sir William Blackstone, in 4 Commentaries on the Laws of England (Cooley, 3d ed., 1884), at 201 stated the common law rule to be: “Thus if one shoots at A and misses him,, but kills B, this is murder; because of the previous felonious intent, which the law transfers from one to the other. The same is the case where one lays poison for A; and B, against whom the prisoner had no ³⁹² malicious intent, takes it, and it kills him; this is likewise murder.” In Clark and Marshall, A Treatise on the Law of Crimes § 10.06 (6th ed., 1958), at 578, the rule is stated as follows: “Whenever an accountable man kills another intentionally, he is guilty of murder with express malice unless the killing is justifiable or excusable, or unless there are such circumstances of provocation as will reduce the homicide to manslaughter. This principle is applied when a man kills one person when he intended to kill another.

For example, if a man shoots at one person with intent to kill him, and unintentionally kills another, or sets poison for one person and another drinks it and dies, it is murder with express malice of the person killed, though he is a friend.” Although admittedly the doctrine is of “ancient vintage,” we do not agree with the petitioner’s contention that under modern statutory classifications it is a “curious survival of the antique law” 5 requiring its rejection. It has lost none of its patina by its application over the centuries down unto modern times; its viability is recognized by its current acceptance and application. With the exception of those few courts which, under their statutes (requiring the existence of express malice), hold that the malice necessary to constitute murder in the first degree does not exist when a homicide is actually committed upon one person by a blow aimed at another, there is a singular unanimity among the decisions in the overwhelming majority of the states that such a homicide “partakes of the quality of the original act, so that the guilt of the perpetrator of the crime is exactly what it would have been had the blow fallen upon the intended victim instead of the bystander. Under this rule the fact that the bystander was killed instead of the victim becomes immaterial, and the ³⁹³ only question at issue is what would have been the degree of guilt if the result intended had been accomplished.” See 40 Am.Jur.2d Homicide § 11, at 302-03 (1968); 40 C.J.S. Homicide § 18, at 864-65 (1944); Annot., Homicide by Unlawful Act Aimed at Another, 18 A.L.R. 917 (1922).

See also 1 F. Wharton, Criminal Law and Procedure §§ 193, 246 (Anderson ed. 1957); R. Perkins, Criminal Law, Ch. 7 § 8, at 822-25 (2d ed. 1969); 1 O. Warren, Homicide §§ 73, 78 (1938); 2 O. Warren, supra, § 182; 1 J. Bishop, Criminal Law § 328 (9th ed. 1923); 2 W. Burdick, Law of Crime § 450 (1946); W. LaFave and A. Scott, Criminal Law, Ch. 3 § 35, at 252 (1972); Foster’s Crown Law 261 (1809); 9 Encyclopedia of Laws of England 494 (2d ed. 1908); L. Hochheimer, Crimes and Criminal Procedure § 340 (2d ed. 1904). The ‘‘transferred intent” doctrine has been consistently applied in Arkansas, 6 California, 7 Delaware, 8 Idaho, 9 Indiana, 10 Iowa, 11 Michigan, 12 Missouri, 13 New Jersey, 14 ³⁹⁴ North Carolina, 15 Ohio, 16 Pennsylvania, 17 and Washington 18 under statutes substantially indentical with the provisions of our Art. 27, §§ 407 and 411. Georgia, 19 Illinois 20 and South Carolina 21 have applied the doctrine under statutes which did not classify murder into degrees but which maintained the common law elements of the crime. In Alabama, 22 Colorado, 23 Illinois (after statutory revision in 1962), 24 Mississippi, 25 New Mexico, 26 New York, 27 and Tennessee 28 the defendant’s guilt has been adjudged to be of the same grade and degree of homicide by virtue of statutory provisions which include within their terms the commission of such a homicide designed to “cause or effect the death of the person killed or a third person,” or “another,” or “any human being.” ³⁹⁵ Instructions submitting the same principle of law as was here submitted to the jury by the trial judge have been approved in People v. Suesser, 142 Cal. 354 , 75 P. 1093 (1904); People v. Walker, 76 Cal.App.2d 10 , 172 P. 2d 380 (1946); People v. Buenaflore, 40 Cal.App.2d 713 , 105 P. 2d 621 (1940); State v. Clokey, 83 Idaho 322 , 364 P. 2d 159 (1961); People v. Harrison, 395 Ill. 463 , 70 N.E.2d 596 (1947), cert. denied, 334 U. S. 812 (1948); Taylor v. State, Ind., 295 N.E.2d 600 . cert. denied, 414 U. S. 1012 (1973); State v. Batson, 339 Mo. 298 , 96 S.W.2d 384 (1936); State v. Pollard, 139 Mo. 220 , 40 S. W. 949 (1897); State v. Renfrow, 111 Mo. 589 , 20 S. W. 299 (1892); State v. Gilmore, 95 Mo. 554 , 8 S. W. 359 (1888); State v. Bectsa, 71 N.J.L. 322 , 58 A. 933 (1904); State v. Carpio, 27 N. M. 265, 199 P. 1012 (1921); Wareham v. State, 25 Ohio St. 601 (1874).

In People v. Sutic, 41 Cal. 2d 483 , 261 P. 2d 241 (1953), the Supreme Court of California, after stating that “[a] homicide is murder of the first degree when the accused, as the result of deliberation and premeditation, intended to take unlawfully the life of another. [Citations omitted],” reviewed the facts from which the jury could have concluded that the killing was “deliberate and premeditated” and stated: “The fact that not Mr. Borellano but rather his son was killed does not alter the situation. ‘Where a person purposely and of his deliberate and premeditated malice attempts to kill one person but by mistake or inadvertence kills another instead, the law transfers the felonious intent from the object of his assault and the homicide so committed is murder in the first degree.’ [Citations omitted.]” 41 Cal. 2d at 491-92 , 261 P. 2d at 245 . In Brooks v. State, 141 Ark. 57 , 216 S. W. 705 (1919), the Supreme Court of Arkansas, applying the principles of the common law under that State’s statute to the homicide of an unintended victim, stated: “At common law, if a person shot at another with malice and by accident or mistake killed a ³⁹⁶ third person, the offense was murder. Under our statute a person will be held guilty of murder or manslaughter according to the circumstances of the killing, who, in the attempt to kill one person, by mistake kills a third person, although there was no intent or design to kill such third person. Ringer v. State, 74 Ark. 262 ; 21 Cyc. 712, and cases cited; Wharton on Homicide (3 Ed.), par. 360, and Michie on Homicide, vol. 1, sec. 17.

The rule in such cases is comprehensively stated in volume 1, section 17, of Michie on Homicide, as follows: ‘If a man attempt to kill another without justification, without provocation and not under circumstances of mitigation, and in pursuance of that effort hits and kills a third person, his guilt is measured by the same standard as though he had killed the person originally intended. Whether defendant who shot at one person and killed another is guilty of homicide in any of its grades, or not, depends on the character of his act, and his intent, whether criminal or not, as applied to the person whom he intended to shoot. The thing done follows the nature of the thing intended to he done, and the guilt or innocence of the slayer depends upon the same considerations that would have governed had the blow killed the person against whom it was directed. In determining the criminality of the act of killing it is immaterial whether the intent was to kill the person killed or whether the death of such person was the accidental or otherwise unintentional result of the intent to kill some one else.

The purpose and malice with which the blow was struck is not changed in any degree by the circumstances that it did not take effect upon the person at whom it was aimed. The purpose and. malice remain, and if the person struck is killed, the crime is as complete as though the person against whom the blow was directed had been killed, the lives of all persons being equally ³⁹⁷ sacred in the eye of the law, and equally protected by its provisions. The general rule is that when one person is killed by mistake or accident, the character of the offense is the same that it would have been if the person intended had been killed.’ ” (Emphasis supplied.) 141 Ark. at 60-61 , 216 S. W. at 706 . In Wareham v. State, supra, the Supreme Court of Ohio used this rationale: “The statutory definition of murder in the first degree is: ‘That if any person shall purposely and of deliberate and