Ford v. State

• Decision Date: 24 January 1859
• Citation: 12 Md. 514
• Parties: WILLIAM G. FORD v. THE STATE OF MARYLAND.
• Court: Maryland Court of Appeals

12 Md. 514

WILLIAM G. FORD v. THE STATE OF MARYLAND.

Court of Appeals of Maryland.

January 24, 1859

In a trial on an indictment for murder, a verdict simply of " guilty, " is insufficient, because, by the act of 1809, ch. 138, sec. 3, the jury must ascertain in their verdict the degree of the crime whether it be murder in the first or second degree. "

Jurors cannot testify in relation to the motives upon which they joined in the verdict; if, through mistake or partiality they deliver an improper verdict, the court may, before it is recorded, desire them to reconsider it, but the jury cannot be allowed to make any alteration after the verdict is recorded.

After the foreman, speaking for the whole panel, finds a proper verdict, which is recorded, and the whole panel is called on to hearken to it as the court hath recorded it, and they have so hearkened to it, no objection being made by any juror, or the counsel for the State or prisoner, such verdict is the verdict of the whole panel, and it is then too late for any of the jury to alter or amend it, and also too late to poll the panel.

The object of a poll is to call on each juror to answer for himself, and in his own language, and where, in a trial for murder, the verdict was simply " guilty, " and on being polled, the foreman alone answered " guilty of murder in the first degree," and each of the others answered " guilty," without specifying the degree in words, such verdict is insufficient, because at no time did all the jury find the prisoner " guilty of murder in the first degree. "

By the Bill of Rights of this State, every man has the right to " a speedy trial by an impartial jury without whose unanimous consent he ought not to be found guilty; " unanimity is indispensable to the sufficiency of a verdict.

Whatever assumes the solemnity of a judgment of a court of record, is part and parcel of the record, and examinable in the appellate tribunal on a writ of error.

Whilst the appellate court cannot find the facts, yet the judgment of the inferior court on those facts is a matter of law, and where the facts are found by the court or jury below, it is the proper and legitimate province of the appellate court to see that the inferior court has pronounced correctly the law as applicable to the facts.

Where the judge of an inferior court, in his decision, embodied in the transcript of the record sent to the appellate court, sets forth the facts occurring upon the rendition of a verdict in a trial for murder, and these facts show that all the jury did not at any time find the prisoner " guilty of murder in the first degree," the judgment of the court, upon such verdict, sentencing the prisoner to be hanged, may be reviewed by the appellate court on writ of error, notwithstanding the docket entries of the court below, both original and as extended in the transcript, show a verdict in due form, of " guilty of murder in the first degree."

In such a case, the appellate court may look to the misprision of the clerk, who is but the hand of the court, and whose duty it is, in contemplation of law, to record nothing but the proceedings of the court.

Where there has been, in the eye of the law, no valid and sufficient verdict, there must be a new trial; in such a case there is a mistrial, and the indictment being good, the prisoner may be tried anew on the same indictment.

ERROR to the Criminal Court of Baltimore.

The plaintiff in error was indicted for murder. The indictment contains but one count, charging the prisoner with the wilful murder of Thomas H. Burnham, by shooting him with a pistol. The prisoner was arraigned, and pleaded not guilty.

The transcript of the record sent to the Court of Appeals sets out the presentment, indictment, arraignment, plea, the empannelling of a jury to try the case, and then states that the jury, " upon their oath aforesaid, do say, to wit on the fourth day of October, in the year aforesaid, that the said William G. Ford is guilty of the felony and murder above charged and imposed upon him; and thereupon, on the prayer of the counsel of the said William G. Ford, the said jury, that is to say, the said" (naming the individual jurors) " so elected, tried and sworn, as aforesaid, to say the truth of and upon the premises aforesaid, being polled and severally named, upon their oath aforesaid, do say that the said William G. Ford is guilty of the felony and murder above charged and imposed upon him, and that said felony and murder is murder in the first degree."

The docket entries of the court below, which it was agreed by the State's Attorney and the counsel for the prisoner, should be incorporated into the record of the case in the Court of Appeals, as if brought up under a writ of diminution, show the following entry or entries: " Oct. 4th, 1858, Verdict, Guilty of murder. Jury polled, Guilty of murder in the 1st degree."

The prisoner, by his counsel, moved in arrest of judgment for a new trial, and also made the following motion:

" The prisoner, by his counsel, comes into court here and moves the court to strike out all of the entries made on the docket of the court in this case on the fifth day of October, which entries are in the words and figures following, that is to say: ‘ Jury polled, Guilty of murder in the 1st degree; ’ which words here set out, were not found by the said jury, and were not on the docket of this court when the clerk ordered the jury to hearken to the record of their verdict as recorded in the said case by this court; the simple entry at that time being, ‘ Guilty of murder,’ as the verdict of the jury; and these words lastly herein set forth, that is to say, ‘ Guilty of murder,’ being the only words on the docket of the clerk on the day after the verdict was found, which was the evening of the 4th of October 1858, and the other words and figures hereinbefore set forth, that is to say, ‘ Guilty of murder in the 1st degree,’ were added by the clerk of this court on the day following that on which the jury found their verdict in the said case, and on the day after the said jury had been discharged, which was an excess of authority by the said clerk, and illegal."

The counsel for the prisoner then filed the following reasons in support of the motion in arrest of judgment:

" 1st. That the jury who were empannelled to try the said case, and who did find a verdict therein, did not find of what degree of murder they found the prisoner guilty, but their verdict, as announced in the court, and as recorded by the clerk, was in these words, ‘ Guilty of murder.’ And this finding of the jury is insufficient to enable the court to pass sentence, and therefore insufficient and void."

2nd. Because the jury who tried the said case, and who found a verdict therein, did not unanimously pronounce a verdict in the said case of murder, and at the finding of the said verdict say further, of what degree they found the said murder, of which they had convicted said prisoner, to be, which they were required to do by the act of Assembly of this State, in such case made and provided; and the said verdict is therefore void.

3rd. Because it is the duty and sole right of the jury who try a case of murder, to find the degree, if they convict the accused of the crime of murder, and to find the degree of which they do convict, as a part of their verdict, and to announce it as such, which was not done by the jury in this case, and therefore the verdict of the jury is void.

4th. The jury rendered their verdict in this case on Monday evening, the 4th instant, and the verdict recorded by the clerk on that evening, was simply and only in the words, ‘ Guilty of murder,’ and no more. These were the only words on the docket on the morning of the 5th instant, the day after the rendition and recording of the said verdict, and when the counsel for the prisoner examined the docket of this court, and saw the manner and form of the verdict, they desired the clerk to make no change of the said verdict as recorded, in any way, and he said that he would not; and they, the counsel for the prisoner, came into this court and made a motion in arrest of judgment, basing their motion on the said verdict. Since they made the said motion in arrest, they have discovered that the said clerk has added to the verdict aforesaid, ‘ Jury polled, Guilty of murder in the first degree,’ which is no part of the verdict, and the said clerk had no right to make such addition, and the defective verdict recorded by the said clerk is not and cannot be amended by the improper and unauthorised addition of the said clerk, made as aforesaid."

Reasons in support of the motion for a new trial were then filed, but need not be stated. The prisoner, by his counsel, then filed the following affidavits:

" State of Maryland, City of Baltimore, to wit: --On this 21st day of October, in the year eighteen hundred and fifty-eight, before the subscriber, a justice of the peace of the State of Maryland, in and for the city of Baltimore, personally appeared Wilson C. N. Carr, and made oath on the Holy Evangely of Almighty God, as follows, viz that he was in the criminal court on the evening when the jury rendered their verdict in the case of the State vs. William G. Ford; that he was standing within a few feet from the seat occupied by Mr. Schley, the deputy clerk, and that the following are the facts and circumstances attending the rendition of said verdict, viz: Mr. Schley asked the jury in the usual form, ‘ Gentlemen of the jury, have you agreed upon your verdict?’ to which they responded, ‘ Yes.’ Mr. Schley then said, ‘ Who shall say for you?’ to which they responded, ‘ The foreman.’ Mr. Schley then ordered the prisoner to stand up, and to hold up his right

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