delivered the opinion of the Court.
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 *92 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,
“ ‘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,
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,
*95 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, swpra, 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, Article 27, or Section 480 of Article 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 and most of the States have modelled their
*96
law upon- that of Pennsylvania. See
History of the Pennsylvania Murder Statute,
97 Pa. Law Review 759; and
Hochheimer,
work cited, See. 347. The Pennsylvania decisions, relied on by the State, do not offer support for its -position. The Pennsylvania Courts have long held that where there is any evidence to be submitted to the jury, the Court cannot direct the jury as to the degree, or exclude manslaughter from its consideration and cannot direct acquittal. The jury must be the judge where there are facts upon which it can base a decision. Nevertheless, where there are no facts which will permit or sustain a decision by the jury, the Pennsylvania Court may direct a verdict of acquittal.
Commonwealth v. Bardolph,
The law in many jurisdictions seems to be in accord. In
23 C. J.. S., Criminal Law, Sec. 1156, page 695,
it is said that the Court must not impinge on the right of the jury to determine the degree of crime of which accused is guilty, and goes on to say, “the Court may, where the evidence warrants it, charge that the evidence shows that a crime of one of the specified grades or degrees has or has not been committed, and direct the jury, if they believe the evidence, to find accordingly”. In
H C. J. S., Homicide, Sec. 352,
page 118, it is said: “Whether there is legal sufficiency of evidence in support of a degree of the crime of which accused may be convicted which will warrant its submission to the jury is a question of law for the Court, and, where there is no evidence to support a particular degree of homicide, the Court should not submit that issue to the jury”. See
Commonwealth v. Yeager, supra; Commonwealth v. Green,
In
State v. Linville,
We think that the criminal procedure in Maryland, established by the Constitution and the statutes and rules which have followed it, contemplates the power of the Court to direct a verdict where the evidence is entirely insufficient to go to the jury on the question of first degree murder. The Circuit Court of Appeals for the Seventh Circuit, in
Ex Parte United States,
Since we must decide whether the jury should have passed on the issue of first degree murder, a recital of the essential testimony is necessary. On May 9, 1952, the night of the murder the father of the accused and two other men met him by chance in Bowie and drove him home in the car with them. The appellant had been drinking but did not seem to be drunk. He walked to the car in Bowie in his usual manner, although he seemed to sleep on the back seat during the drive back home. When the car arrived at the Chisley home, it was driven to within four or five feet of the back steps. The father got out of the car first, followed by his brother-in-law, William Shorter, who told him that he had dropped some cigarettes. The accused said they were his and Richard Contee, the victim, said they were not. The father testified: “That’s all there was to it. He gets out the gun and shot him; there wasn’t any argument to it.” Both the father and William Shorter agree that more than one shot was fired. The father, after the first shot, had gone through the house and a considerable distance up a road when he heard a second, and, perhaps, a third shot. Shorter had gone around the corner of the house and some thirty or forty yards across a field, when he heard the gun go off again. He said “I don’t *100 know how many [times]”. The father, when asked whether his son drank, testified that he did and that when he drank heavily, “He don’t act any too good. . . He is kinda disagreeable and cross.”
There was testimony by Leon Thomas, a neighbor of the Chisleys, that he learned of the shooting from the appellant’s mother. He walked over to the victim’s car and found the accused sitting in it, attempting to start it, as it kept stalling. Thomas then discovered that Contee was dead, and he urged the accused not to drive off but to get out of the car to help him. Chisley made no reply, so Thomas reached in and turned off the ignition key. At that point, Chisley reached back in his hip pocket, pulled out his gun and said “Goddam it, don’t tell me what to do.” Thomas’ appraisal of whether Chisley was drunk or sober was that he had “been drinking, * * * but that he didn’t appear to be drunk.” He also said that the appellant, when drinking, “used to act up terrible; he would cuss his mother and father out; his father was scared to death of him.” Thomas added that he was scared to leave his house, adjoining that of the accused, on Sunday mornings, because Chisley would sit in the kitchen door and shoot his revolver.
The State Police testimony is that when Chisley was picked up on the night of the shooting, about midnight, he had been drinking and was staggering. They say: “He was incoherent; he couldn’t make a very definite statement.” This was several hours after the shooting. The State attempted to introduce a confession which had been given by the appellant on the' afternoon of the day following the shooting. It is conceded that the statement was voluntarily made and was not induced by threats or promises of reward. It was reduced to writing, in question and answer form, and signed by the appellant after he had read' it. In preliminary testimony as to the circumstances under which the confession had been given, it developed that there were some questions which had been omitted from the statement. The explanation was: “There may have been some that *101 would be irrelevant to it.” The testimony was that no questions had been left out because Chisley did not know the answers. All of the questions were in there except one or two and these were left out, according to the testimony, because “they were not that important”, either to the State or to the defendant. The Court sustained an objection to the admission of the confession on the ground that it was not a complete statement. After the rejection of the confession, Trooper Kuhns of the State Police, testified that Chisley had talked to him about ten o’clock on the morning following the shooting, and had said that he had had an argument with Contee and that he had shot him. He could not remember what the argument was about. Chisley then said that after the shooting, he had left and gone to Bowie to continue drinking. He had been drinking before the shooting in Bowie at the Railroad Inn and other places. He told Trooper Kuhns that he had come home from work with Contee, his father and some other man, and that he had shot Contee with a gun he had bought several months before in a hardware store in Bowie. Chisley also said, in this same conversation, that when he was leaving after the murder, someone tried to stop him and he pulled the gun out and pointed it at him and told him to go away and leave him alone. Chisley told the trooper that he had, together with some of his friends, drunk three pints of liquor before the shooting. He did not know the man he shot had died, until he was told by the police.
The appellant himself, on direct examination, testified that he got off from his work at Bowie race track about four o’clock on the day of May 9, 1952 and went to the Railroad Inn, where he bought a half pint and cold beer. He shared his whiskey with some of his pals and shared some of their whiskey. He did not remember getting home or who took him. He remembers nothing until after the shooting. Police told him the next morning that he had shot a man. He recalled seeing Leon Thomas as he was leaving the scene of the *102 shooting but he does not remember any more than what the Police said, “that the man was shot twice”. Under cross-examination, Chisley admitted that the State Policeman did not write down anything more than he said, that he was shown the statement and read it, and that he signed it. A series of questions and answers from the statement was read to him, and he was asked if he remembered the answer. Consistently, he replied “Yes”. The form of some of the questions made it difficult to tell whether in answering “yes”, the witness was saying he remembered being asked the question and answering it, or whether he was saying that the facts stated in the question were correct. Objection was made on the ground that the questions and answers were in the confession which had been ruled out. The Court permitted the line of questioning on the ground that the witness,’ in his direct testimony, had said he did not remember matters and facts as to which he had given answers in the statement, and therefore, the cross- examination was proper. After some twenty questions from the statement, Chisley was asked whether anyone had talked to him about the facts before he gave his statement, and he replied that no one had, that no one had coached him or said he had better say this or that, and that the answers set down were exactly what he remembered. He was asked, “You remembered when you answered these questions exactly what had occurred, didn’t you?”, and he replied “Yes, sir.” He was then asked if he knew what had happened the day before, and he replied he did. He was asked if he knew he had shot Contee and he replied that he did. When he was asked if he knew that he had argued about some cigarettes, he replied that he did not. He knew that he had had an argument of some sort but he did not know what it was about. He knew that he had shot Contee once but he did not know he had shot him any more than that. He knew that after he had shot Contee, he jumped into his car and he remembered Leon Thomas coming up to him, although he doesn’t remember what he said. *103 He knows that when he got in the car, he drove down to Bowie to get his cigarettes out of Monroe Johnson’s truck. He remembered running into a bank on the way and that the car worked nicely when he got it started. When he struck the bank, he started the car again and went on and got his cigarettes. When he got to Bowie, he remembered that he stopped at the store and bought another pint of liquor and went over to Railroad Inn and drank another bottle of beer. He was asked whether he had a dollar bill or two dollar bills when he paid for the whiskey, and he replied that he had three one dollar bills and he didn’t remember how much change the man gave him but he does remember he bought Bourbon DeLuxe. He left the pint in the car and walked over to get some beer, but he was arrested before he had an opportunity to get it. Before he bought the liquor, he bought a bottle of Gunther’s beer and remembered that he drank it out of a glass and that it was a warm glass rather than a chilled glass. He had planned to go back home later on. He had told one friend of his that he was going back home and that he wanted to give himself up, knowing that he had shot somebody. He was then asked if he told Monroe Johnson that he had shot Contee. He said he had but he doesn’t remember telling him that he almost shot Leon Thomas. He was then asked, “But you do remember telling him you shot Contee, didn’t you?” and his answer was “That’s right.” He was asked how far away he was when he shot Contee the first time. His answer was “I don’t know.” Asked again, he said, “he was about from me over to that bar there.”
All this came in without objection. The Court then asked him: “Were you sitting in his car when the first shot was fired? A. No, sir, I was standing on the ground. (The Court). You were standing on the ground when the second shot was fired? A. Yes, sir.”
There was no prejudice to the appellant in the cross-examination based on the questions and answers taken from the confession. Everything that was embraced
*104
in or deducible from this cross-examination was revealed in the testimony of: Trooper Kuhns, as to the statements made to him by Chisley the.morning after the shooting. No objection was made to this testimony and the facts stated by the appellant were proper evidence as admissions, even if they did not amount to a confession.
Ford v. State,
The appellant himself, in his, testimony on cross-examination, unobjected to, and as to which there could be no sound objection, disclosed fully everything that was in the questions and answers complained of. It is not necessary then to decide whether the confession was properly excluded, although it may well be that it should have come in, with full right and opportunity to the defendant to supplement it if it was incomplete.
Newton v. State,
147 Md.
71,
127 A, 123;
Walters v. State,
On the evidence which the jury was entitled to consider, we find the Court below was not in error in submitting the issues of first and second decree murder. Felonious homicide is divided into two main classes— murder and manslaughter. Murder has been defined as the unlawful killing of a human being with malice aforethought; and manslaughter to be the unlawful killing of another without malice aforethought.
Hoch
*105
heimer,
work cited, Sec. 346;
Neusbaum v.
State,
The essential distinction between murder and manslaughter, therefore, is the presence or absence of malice. Malice has been defined, in this connection, as the intentional doing of a wrongful act to another without legal excuse or justification. It includes any wrongful act done wilfully or purposely.
Warren on Homicide,
Vol. 1, Sec. 66. This Court, in
Rosenberg v. State,
There remains only the effect of intoxication.
Warren on Homicide,
Yol. 1, Sec. 61, says this: “The general rule of criminal law that voluntary drunkenness is no excuse for crime applies to homicide. . . Where murder is divided into degrees, the fact of drunkenness at the time of the homicide may be considered by the jury in determining the degree of murder. . . It is held that the mere fact that the accused was intoxicated is not sufficient to reduce the killing from murder to manslaughter.” In
Hopt v. People,
There was evidence, in our opinion, which the jury could properly consider in determining whether there was intent to kill and deliberation and premeditation. The shooting was preceded by the discussion, brief as it was, about the ownership of the cigarettes. The jury could find that two or more shots were fired and that there was an appreciable interval between the first shot and the second, or more, and that the second was fired as Contee lay..on the ground; the firing of two or more shots in such circumstances has been held by the Courts to be evidence for the jury of deliberation and premeditation.
State v. McNamara,
116 N. J. L. 497,
We think that there was evidence which justified submission to the jury as to whether or not there was murder in the first or second degree, and that the jury was properly instructed as to the law, under the facts of the case.
Judgment affirmed.