Smith v. State

Moylan, J., delivered the opinion of the Court. This appeal turns upon a close examination of a single word — the past participle “premeditated.” It is a term of art which once had (and may or may not still have) legal significance. We will ask three independent questions about that significance, a negative answer to any one of which will be fatal to the appellant’s present claim: (1) Is the character of a murderous intent as “premeditated” a necessary element of the crime itself or is it simply, for purposes of grading punishment, an aggravating factor of a crime otherwise defined?; (2) Does the participle “premeditated” carry any unique, non-redundant content not conveyed, by necessary implication, by either of its statutory adjectival companions “wilful” and “deliberate” or by the two of them combined?; (3) Does “premeditated,” standing alone, still convey any meaning at all or has it gone the way of its common law ancestor “aforethought” and been drained of all present content? The appellant, Homer James Smith, was convicted by a Cecil County jury, presided over by Judge H. Kenneth Mackey, of murder in the first degree.

He attacks both the sufficiency of the indictment and the sufficiency of the evidence. The latter contention will not long detain us. I. The Legal Sufficiency of the Evidence to Prove First-Degree Murder At approximately 11 p.m. on February 25, 1977, Thomas Cifaldo was fatally struck by shotgun pellets fired from the ²⁷⁹ gun then held by the appellant. Although there was conflicting testimony as to the circumstances leading up to the shooting, that version most favorable to the State was enough to support the theory that the appellant had been with the victim, theretofore his friend, in the Royal Bar; that the appellant was perturbed by a discussion about a divorce between him and his 'wife; that the victim had kidded the appellant about being so ugly that his wife could not be blamed for divorcing him; that the appellant had made obscene comments to the deceased; that the appellant left the bar and went to a nearby home where he procured the shotgun; and that the appellant shot the victim immediately upon his return to the bar.

It was within the jury’s prerogative to disbelieve the appellant’s story that the gun had gone off accidentally. From all of the above, the jury could legitimately have concluded that the appellant was insulted by the victim an hour or two before the ultimate killing, that the grievance festered over the course of that hour or two, that the appellant went and procured the murder weapon with the fully formed design to kill his tormentor and that he subsequently executed his murderous purpose “wilfully,” “deliberately” and with “premeditation.” Such an amplitude of evidence and of permitted inferences therefrom may have been necessary to persuade the jury beyond a reasonable doubt that the appellant was guilty of murder in the first degree. It was a “gilding of the lily,” however, when we apply the very different measurement called legal sufficiency. Here we are concerned with that rock-bottom minimum of evidence necessary to establish a mere prima facie case to enable the State to avoid the peril of a judgment of acquittal - - to permit the evidence to go to the jury for such weight as they, in their unfettered prerogative, may choose to give it.

We are concerned not with how much evidence will persuade the jury but with how much evidence, as a matter of law, could persuade the jury. We ask only whether there is some competent evidence which could establish each element that must be proved. Williams v. State, ²⁸⁰ 5 Md. App. 450, 459 , 247 A. 2d 731 ; Metz v. State, 9 Md. App. 15, 23 , 262 A. 2d 331 . To establish murder it is initially necessary to establish homicide — the killing of one human being by another.

The evidence was not disputed that Thomas Cifaldo died on February 25, 1977, as a direct result of being blasted with a shotgun. It was not disputed that the appellant was the homicidal agent who was holding the shotgun at the time it went off. To raise the homicide to the level of felonious homicide (murder or manslaughter) it is necessary to establish that the defendant intentionally did the act that resulted in the death and that he did so without justification or excuse. With respect to non-justification, the State in this case was entitled to rely upon the Thayer-Wigmore presumption that the homicide was not justified.

The risk is upon the defendant of not producing legally sufficient evidence of justification to dissipate this presumption and to generate a genuine jury issue in this regard (unless, of course, the State’s evidence itself accomplishes such “bubble-bursting” dissipation). Mullaney v. Wilbur, 421 U. S. 684, 701-704 , 95 S. Ct. 1881 , 44 L.Ed.2d 508, 521-522 (1975); State v. Evans, 278 Md. 197, 207-208 , 362 A. 2d 629, 635-636 (1976); Evans v. State, 28 Md. App. 640, 722-727, 730 , 349 A. 2d 300, 350-352, 354 (1975). In this case, this hazard of not producing some evidence proved fatal and non-justification was therefore established as a matter of law. This was also true with respect to all varieties of excusable homicide, save only that of accident (or as the older texts referred to it, misadventure).

The appellant himself testified that the shotgun went off accidentally. This dissipated the presumption of non-excuse of this particular variety and imposed upon the State the burden of proving non-accident beyond- a reasonable doubt. The jury, however, was entitled to disbelieve such defense testimony. From the killing itself and from the disbelief of the evidence of accident, the jury was permitted to infer that the killing was non-accidental and, thereby, non-excusable.

Gilbert v. State, 36 Md. App. 196 , 373 A. 2d 311 (1977). When it comes to the intentional quality of the homicidal ²⁸¹ act, we are dealing with an affirmative element and not a negative one. The State here does not enjoy the benefit of a Thayer-Wigmore presumption but must prove the intent as it must prove all other elements of the crime. There are four varieties of intent which may establish felonious homicide — 1) the specific intent to kill, 2) the specific intent to inflict grievous bodily harm, 3) the general intent to do the death-producing act in the course of the commission, or attempted commission, of a felony, (This intent applies to murder alone.

Its mitigated, manslaughter-establishing equivalent is the general intent to do the death-producing act in the course of the commission, or attempted commission, of a misdemeanor or other unlawful act.) and 4) the general intent to do a life-endangering act with reckless and wanton disregard of the consequences. (This latter intent applies to murder alone. Its mitigated, manslaughter-establishing equivalent is the general intent to do the death-producing act in a grossly, criminally negligent manner.) In this particular case, the variety of intent we are dealing with is the specific intent to kill. In this regard, we have evidence that the appellant fired a sawed-off shotgun at point-blank range into the chest of the victim.

This represents, quite clearly, the directing of a dangerous and deadly weapon at a vital part of the human anatomy. It is well established that this gives rise to a permitted inference of the intent to kill. As we said in Evans v. State, at 28 Md. App. 640, 704 , 349 A. 2d 339 -340: “The only inference of any significance in our homicide law is the permitted inference of an intent to kill or of an intent to do grievous bodily harm from the directing of a deadly weapon at a vital part of the human anatomy or from some similar use of deadly force. The earlier case law sometimes spoke of the use of a deadly weapon as giving rise to a ‘presumption of malice.’ In Lindsay v. State, supra, however, Chief Judge Orth stole a march on Mullaney v. Wilbur and strove mightily to refine the appellate vocabulary of Maryland and to bring it into the 20th century.

He meticulously explained that we ²⁸² do not ‘presume’ anything from the use of deadly force; we are only permitted (but not required) to draw inferences from such use of deadly force. He further pointed out that this permitted inference of fact passes full constitutional muster under Leary v. United States, supra. We reaffirm and add that it thereby also passes constitutional muster according to Mullaney v. Wilbur and Winship.” See also Lindsay v. State, 8 Md. App. 100, 104, 105-109 , 258 A. 2d 760 (1969); Thompson v. State, 38 Md. App. 499, 504 , 381 A. 2d 704, 706-707 (1978). Thus, from 1) the evidence of homicide, 2) the evidence of the appellant’s homicidal agency, 3) the presumption of non-justification, 4) the presumption of non-excuse other than accident, 5) the permitted inference of non-accident and 6) the permitted inference of the intent to kill, the evidence was legally sufficient to establish felonious homicide.

To pin such felonious homicide at the murder level rather than the manslaughter level, it was necessary to establish that the felonious homicide was not mitigated. Bartram v. State, 33 Md. App. 115 , 176-177 n. 7, 364 A. 2d 1119 , 1154 n. 7 (1976); Whitehead v. State, 9 Md. App. 7, 10-11 , 262 A. 2d 316 (1970). In this regard, the State again had the benefit of a Thayer-Wigmore presumption. “Absent some legally sufficient indication to the contrary, the homicide will be presumed to be ... not mitigated.” Gilbert v. State, supra, at 36 Md. App. 200 . There was no legally sufficient evidence in this case to dissipate the presumption of non-mitigation and the evidence was, therefore, legally sufficient to establish murder.

Maryland statutes spell out a number of aggravating circumstances which can raise murder generally into murder in the first degree. They are 1) the perpetration, or attempted perpetration, of a number of specific felonies (Art. 27, §§ 408, 409 and 410), 2) the use of poison (§ 407), 3) the circumstance of ambush or “lying in wait” (§ 407), and 4) any kind of wilful, deliberate and premeditated killing (§ 407). In this case, we are concerned only with the latter form of aggravation. ²⁸³ Maryland has defined “wilful” as “[possessing] a specific purpose and design to kill.” Chisley v. State, 202 Md. 87, 106 , 95 A. 2d 577 . This is, ipso facto, the specific intent to kill and, therefore, when we are dealing with this particular murderous intent rather than the other three murderous intents, a prima facie case of the specific intent to kill is a prima facie case of wilfulness.

The Maryland law goes on, represented by Chisley v. State, supra, at 202 Md. 106 , to point out that “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.” From the specific intent to kill, there is at least a permissible inference that there was a full and conscious knowledge of the purpose to kill (if, indeed, this represents anything more than saying the same thing in two different ways). Furthermore, from the legally sufficient evidence of deliberation, it follows, by permissible inference if not ineluctably, that there was “time enough to be deliberate” — to wit, “premeditation.” When, therefore, there is legally sufficient evidence to establish the specific intent to kill, there is legally sufficient evidence to establish that such specifically entertained and executed intent was wilful, deliberate and premeditated. Ergo, the evidence in this case was legally sufficient to permit the case to go to the jury on the issue of murder in the first degree.

II

The Legal Sufficiency of the Indictment to Charge First-Degree Murder The indictment in this case charged that the appellant at a certain place on a certain day: “... feloniously, and wilfully and of deliberate malice aforethought, did kill and murder Thomas Edward Cifaldo....” The appellant claims that the indictment failed to charge murder in the first degree because it failed to allege that the ²⁸⁴ killing was “premeditated.” It is agreed by all parties that the State’s theory of first-degree murder in this case is based upon that part of § 407 which provides that “[a]ll murder which shall be perpetrated ... by any kind of wilful, deliberate and premeditated killing shall be murder in the first degree.” A. THE STATUTORY FORM OF A MURDER INDICTMENT The appellant seeks initial solace in § 616 (a) which provides: “(a) Where death penalty not sought. — Except as provided in subsection (b), in any indictment for murder or manslaughter, or for being an accessory thereto, it shall not be necessary to set forth the manner or means of death. It shall be sufficient to use a formula substantially to the following effect: ‘That A. B., on the........day of.......... nineteen hundred and........, at the county aforesaid, feloniously (wilfully and of deliberately premeditated malice aforethought) did kill (and murder) C. D. Against the peace, government and dignity of the State.” Even were we confined to § 616 (a), which we are not, we would perceive no fatal shortcoming in the charging document. When Chapter 138 of the Acts of 1809 first divided murder into degrees in Maryland, four already venerable varieties of capital murder at the common law became, simultaneously, charter members of the Maryland Statutory First-Degree Murder Club. They were: 1.

Murder by ambush or “lying in wait” (the oldest of the dread forms of murder at the common law); 2. Murder by means of poisoning; 3. Murder consisting of wilful, deliberate and premeditated murder; and ²⁸⁵ 4. Murders committed in the perpetration, or attempted perpetration, of certain of the more significant felonies.

There is no “pecking order” within the class of first-degree murder. Each member of the class is autonomous and each is distinct. To prove one of the statutory felony murders, for instance, “there is no need to prove wilfulness, deliberation and premeditation as would be required by § 407.” Newton v. State, 280 Md. 260, 269 , 373 A. 2d 262 . Nor is wilfulness, deliberation and premeditation a necessary element of murder by poisoning.

Even murder by “lying in wait” presumably would not require the wilful and deliberate design to kill but could attend a specific intent to inflict grievous bodily harm or the perpetration of any felony (even those not spelled out in §§ 408, 409 and 410) or the doing of a wantonly reckless, life-endangering act. It is no more necessary to plead “wilfulness, deliberation and premeditation” in order to prove a non-premeditated murder by poisoning than it is necessary to plead “murder by poisoning” in order to prove a premeditated but non-poisonous killing. When it is appropriate to prove aggravating circumstances A, B, C or D, aggravating circumstance A does not enjoy any special status or favored treatment for pleading purposes. The decision of the Court of Appeals in Wood v. State, 191 Md. 658 , 62 A. 2d 576 (1948), construing this section, does not give the appellant the sustenance he seeks to extract from it.

This failure to give aid and comfort by requiring a rigidly precise and technical pleading is made manifest by the case in two different regards, the first of which we shall now consider. Wood was convicted of the first-degree murder of a policeman under circumstances that permitted either the theory of premeditation or the theory of robbery-murder to serve as the aggravating circumstance raising the murder to the first degree. The indictment in the Wood case, however, charged only premeditated murder. Wood sought to foreclose the felony-murder theory “because the indictment charges only premeditated murder, as distinguished from murder committed in the perpetration of a robbery.” 191 Md. at 665 . ²⁸⁶ In holding that the indictment as worded could serve as an adequate pleading for a felony-murder conviction, Judge Henderson restated the defense thesis and rejected it at 191 Md. 666 : “The appellant contends that since the indictment charged premeditated murder under section 665 of Art. 27, the charge would not include or permit proof of murder in the perpetration of a robbery under section 478.

We think the contention is unsound.” An even more recent indication that a rigidly technical pleading is not required came in State v. Williamson, 282 Md. 100 , 382 A. 2d 588 (1978), wherein the Court of Appeals held that a defendant may be convicted as an accessory before the fact to murder even where the technical wording of the indictment seems to charge guilt literally as a principal. And see State v. Ward, 284 Md. 189 , 396 A. 2d 1041 (1978). All of this underlines the considered use by § 616 (a) of the adverb “substantially.” Before setting out its suggested formula, it points out not that it shall be sufficient to use a formula precisely to the following effect but rather that “[i]t shall be sufficient to use a formula substantially to the following effect: ...” (Emphasis supplied) The indictment now in issue certainly represents a formula substantially to the effect of that suggested by § 616 (a). If, using Wood v. State as the bench mark, there is substantial compliance for pleading purposes when 1) the State alleges premeditated murder with no mention of an underlying felony and 2) then proves felony-murder which need not be premeditated but which does require an underlying felony, the indictment now before us is preeminently far closer to and in more substantial agreement with the statutory, shorthand formula.

Albeit the word “premeditated” is not explicitly set forth, the indictment does allege that the appellant “did kill and murder” and that he did so “feloniously” and that he did so “wilfully” and that he acted “of ... malice” and that the malice was “deliberate.” If all of these allegations were not enough to demonstrate substantial compliance with the formula, the clincher is the ²⁸⁷ further allegation that the malice was “malice aforethoughtr Over its course, the common law has used three past participles — 1) the French “prepense,” 2) the Saxon “aforethought,” and 8) the Latin derivative “premeditated” — to allege precisely the same thing. 1 The prefixes “pre,” “afore” and “pre” all refer to the time sequence of something happening “beforehand.” The root verb forms “pense,” “thought” and “meditated” all denote the act of thinking. As was pointed out in Moreland, Law of Homicide (1952), at 200: “The most striking thing about this statute [the Pennsylvania Act of 1794 from which the Maryland Act of 1809 was taken] is the substitution of the word ‘premeditated’ for the common law word ‘aforethought.’ In all other respects the statute is the equivalent of a codification of the common law. And yet, in a dictionary sense the word ‘premeditated’ is no more than the equivalent of ‘aforethought,’ so far as the factor of pre-design is concerned, — which is the gist of the first degree of murder. This substitution of a new word was made necessary by the fact that ‘aforethought’ has been drained of its natural meaning when used in common law murder and has become an empty word.

So the law makers substituted another word which in its natural sense has exactly the same connotation of pre-design. They, in effect, resurrected the original meaning of ‘aforethought’.” In the strict dictionary sense, “aforethought” and “premeditated” convey precisely the same meaning. To the charge that the word “aforethought” has been drained of its original meaning over the centuries, the response can be made that so has “premeditated.” Both, as will be more fully examined hereinafter, have been reduced to ritualistic incantations for pleading purposes. As an incantation, the Saxon version is just as talismanic as the Latin. ²⁸⁸ Wood v. State is fatal to the appellant’s claim in yet a second respect.

It points out that a murder indictment need not be drawn with § 616 in mind. Judge Henderson points out, at 191 Md. 667 , that § 616 “does not create any new crime, but merely furnishes a shortened statutory form which may, but need not, be used in lieu of the common law forms.” (Emphasis supplied) In pointing out that particularization of the murder theory was not required by a murder indictment at the common law and that no such particularization is now required since we have broken murder into degrees, he went on, at 191 Md. 667 , “Since the common law forms are still permissible the statutory form could hardly be construed to impose additional requirements in this respect.” Wood v. State is further instructive as to what is required for a murder indictment to be adequate according to “the common law forms.” He pointed out, at 191 Md. 666 : “At common law, as Blackstone states, (4 Commentaries, p. 197), the word murder had the well-defined meaning of a killing with ‘malice aforethought’. Malice could be express or implied from conduct as where ‘one intends to do another felony, and undesignedly kills a man, this is also murder.’ He also states (4 Commentaries, p. 307) that the words ‘murder’ and ‘feloniously’ must be used in an indictment.” The indictment now under review complied with the common law requirements by using, inter alia, the adverb “feloniously” 2 and the verb “murder.” It was sufficient to charge murder at the common law. Is it still sufficient to charge murder in the first degree in Maryland?

This brings us to the first of the three questions we will ask about the significance of the word “premeditated.” ²⁸⁹ B. IS THE CHARACTER OF A MURDEROUS INTENT AS “PREMEDITATED” A NECESSARY ELEMENT OF THE CRIME ITSELF OR IS IT SIMPLY, FOR PURPOSES OF GRADING PUNISHMENT, AN AGGRAVATING FACTOR OF A CRIME OTHERWISE DEFINED? Murder at the common law was a capital offense and, as such, it came into Maryland with the first settlement. Over the course of the common law, efforts were made periodically to ameliorate the harshness of the death penalty. The ameliorating device was to allow certain less atrocious murders to be “clergyable.” If a convicted felon received the benefit of clergy, he received a sanction less severe than the death penalty.

A series of Tudor statutes between 1496 and 1547 provided that all murders carried out with “malice prepense” or “malice aforethought” would be non-clergyable (to wit, capital) and that other murders would be clergyable (to wit, non-capital). As part of the general common law tradition, murder was treated in this fashion in the proprietary colony of Maryland and later in the free state of Maryland. By the middle of the 17th Century, however, the notion of “prepense” or “aforethought” had been so eroded that, in effect, all murder was non-clergyable and, therefore, capital. 3 In the last decades of the 18th Century, the reforming influence of the French Enlightenment, as manifested particularly in the writings of Montesquieu, Voltaire and Beccaria, made itself felt in this country. Under the leadership of the Whig Society in Philadelphia, the first American reform statute, cutting back on capital punishment in many cases of murder, was the Pennsylvania Act of 1794.

This was the first American statute to divide murder into degrees, leaving capital punishment intact as the appropriate sentence for murder in the first degree but providing for a ²⁹⁰ lesser sentence for murder in the second degree. 4 As of 1953, 37 states and the District of Columbia had followed the lead of Pennsylvania and had divided murder into degrees, most of them following the Pennsylvania statute of 1794 verbatim. 5 Hochheimer, Crimes and Criminal Procedure (2d Ed. 1904), § 347; Perkins, Criminal Law (2d Ed. 1969), pp. 88-89; Chisley v. State, 202 Md. 87, 95-96 , 95 A. 2d 577 (1953); Moreland, The Law of Homicide (1952), p. 200. Maryland was one of the early states to follow Pennsylvania’s lead. We did so with § III of Chapter 138 of the Acts of 1809. 6 The reliance of Maryland upon Pennsylvania is apparent when the two acts are placed side by side. But for the fact that Maryland was more sanguinary in dealing with barn burners, tobacco-house burners, sodomites and maimers, there is no substantial difference between the two statutes. ²⁹¹ PENNSYLVANIA ACT OF 1794 “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 further enacted by the Authority aforesaid, That all murder, which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing, or which shall be committed in the perpetration or attempt to perpetrate any arson, ²⁹² rape, robbery, or burglary, shall be deemed murder of the first degree; and all other kinds of murder shall be deemed murder in the second degree____” ²⁹¹ MARYLAND ACT OF 1809 “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, therefore, BE IT ENACTED, That all murder which shall be perpetrated, by means of poison, or by lying in wait, or by any [7] kind of wilful, 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, stable, warehouse, or other out-house, not parcel of any dwelling-house, having therein any tobacco, grain, hay, horses, cattle, or goods, wares and merchandize, ²⁹² rape, sodomy, mayhem, robbery or burglary, shall be deemed murder of the first degree; and all other kind of murder shall be deemed murder of the second degree....” The Court of Appeals was first called upon to interpret Chapter 138 of the Acts of 1809 in Weighorst v. State, 7 Md. 442 , in 1855.

It held, at 7 Md. 451 , “The Act of Assembly does not create a new offence in distinguishing between murder of the first and second degrees. The design was to discriminate in awarding the punishment. The supposed analogy between a conviction of manslaughter and of murder in the second degree does not exist.” Thirty years later in Hanon v. State, 63 Md. 123 (1885), the Court of Appeals again pointed out that a statute simply altering a common law penalty or specifying circumstances of aggravation or mitigation, for penalty purposes, does not alter the fundamental nature of the common law offense. It said, at 63 Md. 126 : “The mere affixing by statute of a penalty different from that at common law, or adjusting it to specified circumstances of aggravation or mitigation, where the crime or misdemeanor is in its nature susceptible of such variations, without losing its essential character, is not the creation of a distinct offense.

As an illustration of this, it has been decided that our Act of Assembly of 1809, ch. 138 (November Session), in dividing the common law crime of murder into first and second degrees, so distinguished from the circumstances accompanying the homicide, and attaching corresponding penalties, did not create a new offense.” ²⁹³ See also Gladden v. State, 273 Md. 383 , 330 A. 2d 176 (1974); Stansbury v. State, 218 Md. 255 , 146 A. 2d 17 (1958); Chisley v. State, 202 Md. 87, 96 , 95 A. 2d 577 (1953); Abbott v. State, 188 Md. 310, 312 , 52 A. 2d 489 (1947); Parker v. State, 7 Md. App. 167 , 254 A. 2d 381 (1969). In 1874, the Court of Appeals dealt with a situation virtually on all fours with that now before us and we find its decision in Davis v. State, 39 Md. 355 (1874), fully dispositive. On April 5,1872, Joseph Davis breached the peace of Carroll County by picking up a three-foot long iron crowbar and smashing it down upon the head of Abraham L. Lynn who by virtue of the mortal wound inflicted “did languish, and languishing, did die.” Davis was convicted of murder in the first degree under an indictment charging that he did the deed described “feloniously, wilfully, and of his malice aforethought.” He attacked the sufficiency of that indictment, challenging particularly the absence of any averment that his act was “deliberate” or “premeditated.” It will be noted that there was there lacking not one of the statutory adjectives but two. The Court of Appeals held flatly that the circumstances constituting murder in the first degree according to the Act of 1809 are not necessary elements of the crime of murder and do not, therefore, have to be included in the indictment.

The Court said, at 39 Md. 373 : “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 offense 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 offense nor enhancing its penalties, but dividing a common law offense 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. ²⁹⁴ 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. I Wharton Cr.

L. 30. Thus, the Act of 1809, ch. 138, entitled, ‘An Act concerning crimes and punishments,' Code, Art. 30, adopts the nomenclature of the common law for the catalogue of crimes enumerated therein, without attempting to define what constitutes those crimes.” The Davis decision asserted flatly that the term “murder” as used in the Maryland statute was one “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.” 39 Md. at 374 . It would not defeat the appellant’s present claim that “premeditation” was not a necessary element of the crime of murder if “premeditation” were nonetheless a factor which increased the punishment.

Davis v. State, at 39 Md. 373 . As the Davis decision points out most clearly, however, and as history itself attests, the dividing of murder into degrees by statute in Maryland did not raise the punishment for murder in the first degree; it only lowered the punishment for murder in the second degree. Prior to the grading of murder, the punishment for all murder was capital. 8 The benign purpose behind the Pennsylvania Act of 1794 and the Maryland Act of 1809, and their counterparts in 36 other states, was simply to lower the punishment for murder in the second degree. As Davis again points out, at 39 Md. 374 -375: “This Act of Assembly, now codified, does not create a new crime; it neither adds to nor diminishes the ²⁹⁵ 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---- The express object of the statute in dividing the crime into degrees, was the mitigation of the punishment in cases of the second degree.” With respect to punishment, let it not be forgot that historically first-degree murder is the norm and second-degree murder is the departure from that norm — not vice versa. What emerges quite clearly is that if there was no need to allege in an indictment the fact of “premeditation” before 1809, there was no need to do so thereafter. As Davis made clear at 89 Md. 375 , “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 the form of pleading.” The appellant makes one last valiant effort to ward off the impact of Davis v. State by pointing out that everything said therein in this regard was dicta. In a technical sense, he is correct but the dicta was strong and well considered.

The Court of Appeals pointed out in the last half page of its 16-page opinion that the entire point had not been preserved for appellate review and gave as its ultimate holding the fact “that the writ of error does not properly lie in this case.” 39 Md. at 385 . It felt “constrained” to do this so that its consideration of the merits “may not hereinafter be considered as a precedent” for those who might seek to avoid the foreclosing effect of non-preservation. The well-considered dicta, however, consumed some 15% pages of the 16-page decision and the deliberate nature of its ²⁹⁶ consideration is not only implicit in the decision itself but was made explicit at 39 Md. 385 : “In consideration of the unusually grave and solemn position of the plaintiff in error, and the earnest zeal, devotion and learning of his counsel, we have thus far entered into the merits of the questions as if the record was properly before us; and after the most careful examination, and reflection, conclude that the plaintiff in error, has enjoyed every right and privilege guaranteed by our law and Constitution, to persons accused of crime, and that there is no error in the proceedings brought before us for review.” Whether we are technically bound by Davis v. State is, moreover, beside the point, just so long as we are persuaded by it; we are so persuaded. Lest there be future doubt, this is the holding upon which, primarily, we rest the present decision.

C. DOES THE PARTICIPLE “PREMEDITATED” CARRY ANY UNIQUE, NON-REDUNDANT CONTENT NOT CONVEYED, BY NECESSARY IMPLICATION, BY EITHER OF ITS STATUTORY ADJECTIVAL COMPANIONS “WILFUL” AND “DELIBERATE” OR BY THE TWO OF THEM COMBINED? Even if it were necessary to allege the essential elements of aggravation, however, we do not believe that the absence of “premeditated” in the indictment now before us would be fatal. Although “any kind of wilful, deliberate and premeditated killing” became one of the four alternative criteria for first-degree murder in Maryland as of 1809, strangely, 144 years were to go by before Maryland was called upon to give even passing attention to what meanings were contained within the words “wilful,” “deliberate” and “premeditated.” Maryland first did so in Chisley v. State, 202 Md. 87, 106-107 , 95 A. 2d 577 , in 1953. In the intervening 26 years, both the ²⁹⁷ Court of Appeals and this Court have given at least glancing attention to the words on 17 other occasions: 1) Faulcon v. State, 211 Md. 249, 257-258 , 126 A. 2d 858 (1956); 2) Elliott v. State, 215 Md. 152, 160 , 137 A. 2d 130 (1957); 3) Kier v. State, 216 Md. 513, 522-523 , 140 A. 2d 896 (1958); 4) Brown v. State, 220 Md. 29, 38 , 150 A. 2d 895 (1959); 5) Cummings v. State, 223 Md. 606, 611 , 165 A. 2d 886 (1960); 6) Dunn v. State, 226 Md. 463, 476-477 , 174 A. 2d 185 (1961); 7) Hyde v. State, 228 Md. 209, 215-216 , 179 A. 2d 421 (1962); 8) Tull v. State, 230 Md. 596, 604 , 188 A. 2d 150 (1963); 9) DeVaughn v. State, 232 Md. 447, 457 , 194 A. 2d 109 (1963); 10) Howard v. State, 234 Md. 410, 415 , 199 A. 2d 611 (1964); 11) Robinson v. State, 249 Md. 200, 210-211 , 238 A. 2d 875 (1968); 12) Wilson v. State, 261 Md. 551, 564-565 , 276 A. 2d 214 (1971); 13) Gladden v. State, 273 Md. 383, 387 , 330 A. 2d 176 (1974); 14) Leyva v. State, 2 Md. App. 120, 123 , 233 A. 2d 498 (1967); 15) Brooks v. State, 3 Md. App. 485, 511-512 , 240 A. 2d 114 (1968); 16) Evans v. State, 28 Md. App. 640, 658-660 , 349 A. 2d 300, 314-315 (1975), and 17) James v. State, 31 Md. App. 666, 671-673 , 358 A. 2d 595 (1976). 9 Upon closer inspection, however, the eighteen linguistic examinations evaporate into a single one — the archetypal examination in Chisley itself.

The seventeen that followed Chisley simply intoned and reintoned with ritualistic fidelity the words of Chisley , seldom altering so much as a comma. There was no discussion, no analysis, no reaching for further meaning. This observation is made not as a criticism but in order to make clear the point of departure — that the sum total of our case law on the meaning of “wilful,” “deliberate” and “premeditated” is Chisley — it is the Alpha and the Omega, the beginning and the end; it is all we have. Regretfully, the Chisley discussion itself is limited in this regard.

It runs for slightly less than a page and consists exclusively of direct quotations from two sources. The first ²⁹⁸ — forming the heart of our definitional law — is taken verbatim from Hochheimer (1904 Ed.), § 347: “Hochheimer, work cited, Sec. 347, p. 380, defines ‘wilful’ as follows: ‘there must be a specific purpose and design to kill;’ ‘deliberate’ is defined: ‘there must be full and conscious knowledge of the purpose to do so;’ and, ‘premeditated’ as: ‘the design must have preceded the killing by an appreciable length of time, time enough to be deliberate. In order to justify 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 offspring of rashness and impetuous temper and that the mind has become fully conscious of its own design’.” 202 Md. at 106 . Then, by way of amplification, several passages were offered from the Court of Appeals of New York in Leighton v. People, 88 N. Y. 117, 120 , and People v. Majone, 91 N. Y. 211, 212 (1883), the latter of which, in turn, was one of the sources for the above passage from Hochheimer: “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. Webb v. State, supra. The Court of Appeals of New York, in Leighton v. People, 88 N. Y. 117, 120 , put it in this wise: ‘If, therefore, the killing is not the instant effect of impulse, if there is hesitation, or doubt to be overcome, a choice made as the 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.’ The same ruling is made in People v. Majone, 91 N. Y. 211 , 212: ‘Such design must precede the killing by some appreciable space of time. But the time need not be long.

It must be ²⁹⁹ sufficient for some reflection and consideration upon the matter, for choice to kill or not to kill, and for the formation of a definite purpose to kill. And when the time is sufficient for this, it matters not how brief it is.’ ” 202 Md. at 106-107 . Hochheimer took the phrase “time enough to deliberate” from State v. Rutten, 13 Wash. 203 (1895). He took the clause defining premeditation — “the design must have preceded the killing by an appreciable length of time” — from People v. Majone, supra. 10 For everything else, Hochheimer looked to the single source of Commonwealth v. Drum, 58 Pa. 9 (1868).

It is an interesting and somewhat unorthodox source, for it is not an appellate opinion at all. A circuit judge in western Pennsylvania disqualified himself because of his relationship with the murder defendant. Judge Agnew, ³⁰⁰ an associate justice of the Supreme Court of Pennsylvania, was specially designated to preside at the murder trial. The report in this case consists largely of his charge to the jury. “[Blecause of the important legal principles declared in his charge, the case is, with his approbation, inserted” in the official Supreme Court Reports.

Thus, a charge to the jury in Westmoreland County in western Pennsylvania on November 14, 1868, is the fountainhead of all of our law on “wilful, deliberate and premeditated killing.” It came, to be sure, through the conduits of Hochheimer in 1904 and Chisley in 1953, but it came without the slightest change. 11 What we have by way of definitional law is not, upon its face, totally free of ambiguity. Do the three adjectives “wilful,” “deliberate” and “premeditated” describe three distinct aspects of the mental state we are searching for or are they, as a rhetorical device for purposes of emphasis, simply three synonyms for the same mental state? Do the second and third adjectives add anything whatsoever to the first? Can there be “a specific purpose and design to kill” without “a full and conscious knowledge of the purpose to kill”?

How does one have purpose without being conscious of that purpose? To wit, can an act be “wilful” and not “deliberate”? By the same token, does the third adjective add anything to the second? How can one be “deliberate” without having had “time enough to be deliberate”?

How can one do a thing (even a mental thing) without having had time to do it? Is the adjectival trinity aught but a literary flourish? Some of the possible ambiguity inherent in the passages picked up by Hochheimer from Commonwealth v. Drum is resolved when we examine the rest of Judge Agnew's now classic charge in fuller context. The exclusive purpose of the adjective “wilful” and, at the very least, the primary purpose of the adjectives “deliberate” and “premeditated” are to single out for first-degree aggravation of this variety, murder of the specific-intent-to-kill type.

This is murder with what has ³⁰¹ sometimes been called, confusingly, express malice. The first-degree murder statutes (the Pennsylvania Act of 1794 and its progeny, including the Maryland Act of 1809) thus distinguish, and treat as more blameworthy, murders where there has been a deliberate and intentional killing 12 from other murders involving the various forms of mens rea sometimes referred to by the term “implied malice” — 1) an unintended killing arising from a specifically intended infliction of grievous bodily harm; 2) an unintended killing arising out of the perpetration, or attempted perpetration, of any felony and 3) an unintended killing arising out of the wantonly reckless doing of a life-endangering act. 13 Immediately before stating the first sentence picked up by Hochheimer, the Commonwealth v. Drum charge makes clear that it is the specific intent to kill which is the aggravating factor being looked at by the Pennsylvania statute: “In this case we have to deal only with that kind of murder in the first degree described as ‘wilful, deliberate, and premeditated.’ Many cases have been decided under this clause, in all of which it has been held that the intention to kill is the essence of the offence. Therefore, if an intention to kill exists, it is wilful;...” (Emphasis in original.) 58 Pa. at 16 . Immediately following a portion then picked up by Hochheimer, the Commonwealth v. Drum charge goes on to define premeditation in terms of the “length of time ... necessary to form the intention to kill” (emphasis supplied): “[I]f sufficient time be afforded to enable the mind fully to frame the design to kill, and to select the instrument, or to frame the plan to carry this design ³⁰² into execution, it is premeditated.

The law fixes upon no length of time as necessary to form the intention to kill, but leaves the existence of a fully formed intent as a fact to be determined by the jury, from all the facts and circumstances in the evidence.” Id. at 16 . (Emphasis supplied) What is being distinguished is, upon the one hand, the murderous blow struck in an angry desire to do grievous harm or struck in the course of some felony or struck in wanton and reckless disregard of its dangerous consequences from, upon the other hand, the murderous blow struck with the specific intent to kill. Following immediately the second portion of its charge picked up by Hochheimer are the following words: “If there be time to frame in the mind, fully and consciously, the intention to kill, and to select the weapon or means of death, and to think and know beforehand, though the time be short, the use to be made of it, there is time to deliberate and to premeditate.” Id. at 16 . (Emphasis supplied) A paragraph later, the Commonwealth v. Drum charge makes it preeminently clear that it is express malice — the intended killings — that should constitute murder in the first degree and it is the various forms of implied malice — the unintended killings — that shall be only murder in the second degree: “All murder not of the first degree, is necessarily of the second degree, and includes all unlawful killing under circumstances of depravity of heart, and a disposition of mind regardless of social duty; but where no