Weighorst v. State

Tuck, J., delivered the opinion of this court. The plaintiff in error was indicted and tried for murder. The record, as originally transmitted to this court, shows, that the'jury found him “guilty of the felony and murder aforesaid, above charged and imposed upon him, and that the said felony and murder is murder of the second degree.” It appears, however, by an amendment of the record, that the verdict as rendered and entered on the docket was in these words: “Guilty of murder in the-second degree;” and it is contended that this docket entry must be considered as the verdict of the jury, and that the clerk had no- authority to amplify their finding, as set out in the record. It has always been the habit of clerks to take minutes and docket entries of the court’s proceedings, and, subsequently, to enter them at length in technical language, according to established forms.

This is necessary to the dispatch of business, and relieves these officers from the inconvenient, if not? impracticable, labor, of making correct full- records of proceedings as they transpire. In legal contemplation they are' made under the eye of the court, and by its authority, and, when not properly entered or extended, the error may be corrected. But, in the present case, we do not perceive that-there is any substantial difference between the docket entries,, and the verdict as set out in the record. One is but the technical extension of the other, according to the long established-practice of the courts, and, in. disposing of the chief question in the cause—the legal sufficiency of the finding of the jury—we shall not ascribe to the record, as originally transmitted to this court, a greater effect than, by legal intendment, belongs to the verdict as entered on the docket.

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 ⁴⁵¹ 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 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. 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 of 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 punishments, speak of the crime of murder in the second degree, as if creating an