Chisley v. State

• Decision Date: 20 March 1953
• Docket Number: No. 106,106
• Parties: CHISLEY v. STATE.
• Court: Maryland Court of Appeals

Page 87

202 Md. 87

95 A.2d 577

CHISLEY v. STATE.

No. 106.

Court of Appeals of Maryland.

March 20, 1953.

Louis M. Strauss, Annapolis (Clarence L. Johnson, Annapolis, on the brief), for appellant.

Ambrose T. Hartman, Asst. Atty. Gen. (Edward D. E. Rollins, Atty. Gen., and C. Osborne Duvall, State's Atty., A. A. County, Annapolis, on the brief), for appellee.

Before SOBELOFF, C. J., and DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

HAMMOND, Judge.

The appellant, John William Chisley, was indicted for murder of Richard Henry Contee. His pleas were: 1, that he was not guilty, and 2, that he was insane at the time of the commission of the offense. It is admitted that he was sane at the time of the trial. He was tried before a jury on September 5, 1952, about a month after his indictment. After the Court had refused a motion for a directed verdict at the close of the State's case, and at the conclusion of the whole case, the jury found the appellant sane at the time of the commission of the crime, sane then and guilty of murder in the first degree, without recommendation. The Court sentenced him to be hanged.

It is undisputed that John William Chisley shot and killed Richard Henry Contee on May 9, 1952 with two shots from a revolver, one in the head and one in the abdomen. The claim of Chisley is that there was no sufficient evidence of either first or second degree murder and the Court should have so ruled as a matter of law, leaving the jury to find a verdict of either manslaughter or not guilty. Also, it is claimed that there was prejudicial error in permitting cross examination of the accused which utilized questions and answers lifted verbatim from a confession which was refused admission in evidence because it was not complete.

The State contends that the lower Court and this Court may not rule as a matter of law on the sufficiency of the evidence as to the degree of murder--on whether the evidence would sustain a conviction of first degree murder--saying that this must always be for the jury to determine. It urges the correctness of the rulings on the evidence and that there was evidence to sustain the verdict of the jury.

The motion of the appellant for a directed verdict is in two parts. '(1) That there is no evidence sufficient in law to justify his conviction of murder in the first degree, (2) That the evidence is insufficient in law to justify his conviction of murder in the second degree.' As is said in Yanch v. State, Md., 93 A.2d 749, 751, 'Since the adoption of the amendment to the Maryland Constitution, Article 15, Section 5, effective December 1, 1950, we have the right and duty, when the question is properly submitted, as in the instant case, to pass upon the legal sufficiency of the evidence in a criminal case. * * * This Court will not in a jury case pass upon the weight of the evidence or decide whether the State has proven its case beyond a reasonable doubt. If there is any proper evidence before the jury on which to sustain a conviction, the motion for a directed verdict will not be granted.' Shelton v. State, Md., 84 A.2d 76. The State agrees with this statement of the law and agrees that if there was no evidence whatever of murder, but only of a killing, which if it amounted to a crime, could be manslaughter only, the Court below and this Court could so rule. It contends, however, that if there is any evidence of murder, there can be no determination by the Court below or this Court, as a matter of law, that the evidence is insufficient to show first degree murder. Its argument is that although Sections 494-498 of Article 27 of the Maryland Code, 1951 Ed., divide the crime of murder into two classifications: murder in the first degree and murder in the second degree, as has been long held by this Court, this statutory classification left the common law crime of murder undisturbed and did not create a new crime. The purpose of the statutes, it is said, was a mitigation of punishment in less atrocious murders. The State says that the question before the jury can be only whether the appellant committed the crime of murder. If it is found that he did, the jury under the statute, must determine the degree. On this premise, the State argues that the changes in criminal procedure which followed the amendment to Article XV, Section 5 of the Constitution, and which are controlled by the provisions of Section 700 of Article 27 of the Code 1951 Ed. and Rule 5A of the Criminal Rules of Practice and Procedure do not apply to the determination of the degree of the crime. It quotes Davis v. State, 39 Md. 355 at page 374:

'Murder' is here 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.

'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."

The State urges that in Abbott v. State, 188 Md. 310, 52 A.2d 489, 491, decided before the Court was given the power to pass on the sufficiency of the evidence, the Court recognized the validity of the holding in Davis v. State. The Court said in the Abbott case: 'We find nothing in the language of § 480 of art. 27 [now Section 499], c. 138, Acts of 1809, quoted above, to indicate an intention on the part of the legislature to make reviewable by this court a finding of the trial court as to the degree of a crime'. The State finds further support for its position in Pennsylvania decisions. Pennsylvania has a statute, 18 P.S. § 4701, almost identical with Sections 494-499 of Article 27, providing that the jury shall ascertain the degree of murder. It cites Commonwealth v. Foster, 364 Pa. 288, 72 A.2d 279 and Commonwealth v. Gibbs, 366 Pa. 182, 76 A.2d 608.

We are persuaded that to accept the holding urged by the State would, in a most important particular defeat the intention of the Legislature and the people in amending the Constitution so that the Court may decide in criminal cases sufficiency of evidence as a matter of law, leaving other matters of law and all matters of fact to the jury. Under the established and unquestioned practice, the jury may return a verdict of manslaughter under a murder indictment. Article 27, Section 710 of the Code 1951 Ed.; Bozman v. State, 193 Md. 196, 66 A.2d 401. The State concedes, as we think it must, that the Court may instruct an acquittal on the charge of murder, leaving the jury to find whether or not the accused is guilty of manslaughter or not guilty. It is true that technically manslaughter and murder are distinct crimes, yet, in substance, they are degrees of felonious homicide. Hochheimer, On Crimes and Criminal Procedure, Second Edition, Sec. 346. In substance, also, the difference between murder in the first degree and murder in the second degree is as great and as definitive as the difference between murder and manslaughter. It would produce a most unreasonable and unfortunate result to hold that the Court may instruct that there is no evidence of murder and yet cannot instruct that there is no evidence which would sustain a conviction of murder in the first degree. The difference in punishment between murder in the second degree and manslaughter is but a few years. The difference in punishment between murder in the first degree and murder in the second degree may often be the difference between death and life.

The language of the Constitutional Amendment, of the statute, Section 700, Article 27 of the Code, 1951 Ed. and of Rule 5A of the Rules of Criminal Procedure, in each case permits review by the Court as to whether the evidence is insufficient to sustain 'conviction'. The Code 1951 Ed. in Section 500 of Article 27 sets forth the punishment for 'Every person convicted of murder in the first degree'. In the following section, it establishes the punishment for 'Every person convicted of the crime of murder in the second degree'. Section 502 says: 'an offender, on conviction, may be sentenced to suffer death'. In Abbott v. State, supra, the Court relied strongly on the settled law of Maryland 'that this Court will not pass upon the legal sufficiency of evidence to convict in a criminal case'. In speaking of the determination of the Court below as to the degree of murder, it then held this: 'To the extent that the finding is one that would have been conclusive in the event of a jury trial, we think it should be equally conclusive where the determination rests with the trial court under the provisions of section 636, art. 27, or section 480 of art. 27 of the Code. These statutes were adopted in the same year, 1809, and have remained without substantial change. Insofar as they deal with different aspects of the same subject matter, they are in pari materia and should be construed together'. As we have noted, the premise of the Abbott case was that the Court cannot pass on the legal sufficiency of the evidence. Now that the Court may do so, the force of the Abbott case as a precedent that the Court may not determine the legal sufficiency of the evidence to sustain a conviction of first degree murder is unimpressive.

The Pennsylvania statute, which coincides with Sections 494-499 of Article 27 of the Code 1951 Ed. contains provisions which are identical, as to the definition of the two degrees of murder and as to the duty of the Court and the jury in ascertaining which has been committed. This statute was the first to be passed in this country...