Davis v. State

• Decision Date: 29 January 1874
• Citation: 39 Md. 355
• Parties: JOSEPH DAVIS v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

39 Md. 355

JOSEPH DAVIS v. THE STATE OF MARYLAND.

Court of Appeals of Maryland

January 29, 1874

The cause was argued before BARTOL, C.J., BOWIE, GRASON and ROBINSON, J.

Tryon Hughes Edwards and William P Maulsby, for the plaintiff in error.

Under the provisions of Article 30 of the Code of Public General Laws, no person can be guilty of murder in the first degree and adjudged to death, unless the murder be perpetrated in some one or other of the ways mentioned. In this case the traverser is not charged by the indictment with murder by means of poison, or lying in wait, or in the perpetration of or attempt to perpetrate arson, or in the burning, or attempt to burn a barn, tobacco-house, &c., &c., or in the perpetration of, or attempt to perpetrate rape, sodomy mayhem, robbery, or burglary, or in arresting and imprisoning, or attempting to arrest and imprison any free person, &c., &c.

Is he charged by the indictment with a wilful, deliberate and premeditated killing? 2 Bishop on Criminal Procedure, secs. 567, 568, 584; Archbold's Cr. Pl., (17 th Lond. Ed.,) 51, 52, 53, 60; 2 Hale's Pleas of the Crown, 170.

Where a statute divides a Common Law felony into grades or degrees, and affixes to each grade, or to the particular circumstances under which the offence may be committed, a higher and lower degree of punishment, the indictment must expressly charge the circumstances under which it alleges the crime to have been committed, and must state those circumstances with certainty and precision.

The greater or higher may include the lesser or lower. But not e converso. The lower grade cannot include the higher. Under an indictment charging the higher grade of the crime, a traverser may be convicted of a lower grade. But under an indictment charging the lower, he cannot be convicted of the higher grade. Vide 1 Chitty's Cr. Law, 227, 229; State vs. Buchanan, 5 H. & J., 341; State vs. Nutwell, 1 Gill, 56; Capritz vs. State, 1 Md., 569; Weighorst vs. The State, 7 Md., 451; Franklin vs. State, 12 Md., 236, 249.

The ingredient of murder in the first degree is that it shall be by some "kind of wilful, deliberate and premeditated killing." Such are the words of the statute. Code, Art. 30, sec. 137. In the indictment in this case, the words are that the traverser in and upon, &c., feloniously, wilfully and of his malice aforethought, &c. The indictment does not aver a deliberate and premeditated killing.

"The words 'malice aforethought,' used to designate the intent by which the killing becomes murder, have, as the reader knows, a technical meaning, and they do not signify that the person killing meant to kill. On the other hand, the words 'deliberately, premeditated malice aforethought,' do include in their meaning, as the Courts all construe them, the intent to take life." Bishop Cr. Pro., sec. 592.

This indictment, is in Common Law form, in the respect being considered. Our statute requires, in addition to malice prepense, express or implied, deliberation and premeditation in the killing.

The words of the Ohio statute are "that if any person shall purposely, and of deliberate and premeditated malice, * * * kill another, every such person shall be deemed guilty of murder in the first degree, and upon conviction thereof, shall suffer death."

It is held by the Supreme Court of Ohio that an indictment charging a killing, of deliberate and premeditated malice, is insufficient, but that in addition it must aver that the killing was " purposely" to be sufficient. Fouts vs. State, 8 Ohio St. Rep., 98; Robbins vs. State, 8 Ohio St. Rep., 131; Hagan vs. State, 10 Ohio St. R., 459; Loeffner vs. State, 10 Ohio St. Rep., 598.

There is no substantial difference between the Ohio statute and the Maryland statute, in the respect in question. Each adds to the Common Law ingredients of murder punishable with death, The one, purpose and deliberation and premeditation. The other, deliberation and premeditation. Whether, according to the words used by the Courts of one State to express the idea, the statute created the crime, or according to the words used by the Courts of the other for the same purpose, "the Act of Assembly does not create a new offence in distinguishing between murder of the first and second degree. The design was to discriminate in awarding the punishment," the result is the same. The idea is identical. In both forms of words is involved the legal ingredient in the act which is essential to authorize the punishment. That ingredient is prescribed by the statute affixing the punishment to the offence in which the ingredient is found. The Ohio Court says that unless that ingredient, as prescribed by the statute, be averred on the face of the indictment, the punishment affixed by the statute cannot be applied; that the record is deficient in not showing a case, compounded according to legal requirements, in which the sentence, as for the highest grade of punishment, can be adjudged. The record will be inharmonious. The indictment does not appenr to justify and support the judgment. Vide Fouts vs. The State, 8 Ohio St. Rep., 114.

At Common Law a killing, felonious, wilful, and of malice aforethought was murder, and punishable with death. By the law of Maryland, a killing felonious, wilful and of malice aforethought, is murder also, but not punishable with death. At Common Law there was no such crime, or grade of crime, (the idea is the same, whatever words are used to express it) as murder in the first degree, and none such as murder in the second degree. In Maryland there is. The crime, or the grade of crime, was created by statute. It is not the same crime, or grade of crime, which was Common Law murder. The statute declares that no killing shall be murder in the first degree in this State, and punishable with death, as all murder was at the Common Law, unless it be wilful, deliberate and premeditated, or be of some one of the other enumerated classes. All other kinds of murder shall be murder in the second degree, and punishable by imprisonment; under this head is embraced Common Law murder, or killing wilfully, feloniously and of malice aforethought.

All such is punishable by imprisonment, and may not be punished with death. An indictment, in Common Law form, and embracing the allegations of facts required by the Common Law, is a good indictment for murder in the second degree in Maryland, "all other kinds of murder" being in the second degree, by force of our statute. An indictment for murder in the first degree, as created by our statute, whether it be called crime or grade, must contain an averment of all the facts which the statute requires to constitute murder in the first degree. Those facts are, so far as this case is concerned, that the killing shall be wilful, deliberate and premeditated. Deliberation and premeditation are just as much facts as the giving the mortal wound, or any other fact in the case. Unless those facts are proved, the defendant cannot be adjudged to die. They cannot be proved, unless they are alleged. That would be in violation of every rule of pleading, and of evidence. By sec. 147 of Art. 30, the jury shall ascertain by their verdict whether the murder be in the first degree or the second degree The jury cannot be allowed, by the fixed rules and principles of pleading, to find that a killing was wilful deliberate and premeditated, unless those facts are averred in the indictment. The indictment in this case was not demurrable. It was a good indictment, under which it was competent to find the party guilty of murder in the second degree, and to punish him by imprisonment. But it was not competent, under this indictment, to find a party guilty of murder in the first degree, and punish him with death, because the indictment did not aver a deliberate and premeditated killing, which only is murder in the first degree under the statute and punishable with death. The true construction of the statute must be that on an indictment for murder in the first degree, that is, an indictment averring a wilful, deliberate and premeditated killing, the jury may find a verdict of guilty of murder in the second degree; and so to harmonize the statute with the Common Law rule, that the lesser is included in the greater charge.

It cannot be a true construction that on an indictment averring a killing, wilful, felonious, and of malice aforethought, a party can be convicted of a deliberate and premeditated killing, because it does not allege deliberation and premeditation, facts made necessary by the statute to constitute the crime or grade of murder in the first degree, and because such a construction would be in violation of every rule and principle of criminal pleading, and in violation af all established rules of construction. 2 Bishop's Crim. Procd., 3 d part of ch. 37, secs. 562-597.

The record must be perfect on its face--it must set forth the crime, with all its elements, to which the law affixes the judgment to be pronounced by the Court--matter extrinsic the record cannot aid in supporting the judgment--"the Courts are to judge upon the record itself, that their successors may know the grounds of their judgment." 2 Tidd's Prac., 918. If the record set forth a charge of murder in the second degree sentence of death cannot be adjudged unless the law affixes that judgment to murder in the second degree. A verdict fixing a higher grade than that charged, cannot aid the judgment or sentence, and enable a higher grade of punishment to be adjudged, because the record would be inharmonious, the indictment being for one crime or grade of crime, and the verdict being for another; and the result would be that, by construction of sections 143 and 137 together, to authorize a judgment of death, it must be...