delivered the opinion of this court. •
This case comes before us on a writ of error sued out by the plaintiff in error, to have reversed and set aside a judgment pronounced against him in the Criminal Court of Baltimore.
From the record transmitted to this court, it appears he was indicted for the murder of a person named Thomas H. Burn-ham; that he was arraigned, and to the charge pleaded not guilty; that a jury was empanneled to try the case, and they being polled, he was, by their verdict, found icguilty of the felony and murder above charged and imposed upon him, and that the said felony and murder is murder in the first degree.’1’’
If this be a correct record of what actually took place, then there is clearly no error to be corrected by the judgment of this court. But it is denied there ever was rendered such a verdict by the jury sworn to try the case, and it is this allegation, on the part of the prisoner, we are now called upon to consider and decide upon.
We know nothing of the testimony adduced to the jury as to the guilt or innocence of the prisoner, nor have we any thing to do with it; that was a consideration exclusively for the court and jury that tried the case below. Our duty and authority are confined to the legal questions arising out of the record. If the record shows the accused was convicted in due form of law, the judgment of the criminal court must be affirmed, and the sentence carried into execution, unless the
Homicide at the common law is distinguishable into several kinds; into murder, manslaughter, excusable homicide, and justifiable homicide. By our acts of Assembly of 1809, ch. 138, to these distinctions of the common law is added another, namely, murder in the first and murder in the second degree’, and it is to this latter sub-division the principle question for our decision owes its importance. The 3rd sectioii of that act is in the following words:
“And whereas the several offenses which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrocionsness, that it is unjust to involve them in the same punishment; therefore be it enacted, that all murder which shall be perpetrated by means of poison, or by lying in wait, or by any kind of willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempt to perpetrate, any arson, or to burn any barn, tobacco house, having therein any tobacco, grain, hay, horses, cattle or goods, wares and merchandise; rape, sodomy, mayhem, robbery or burglary, shall be deemed murder in the first degree; and all other kind of murder shall be deemed murder of the second degree; and the jury before whom any person indicted for murder shall be tried, shall, if they find such person guilty thereof, ascertain in their verdict whether it be murder in the first or second degree; but if such 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,” ¿pe-
lt is apparent, from the plain and unambiguous words of the statute, that where a party is tried before a jury on the charge of murder, it is the duty of the jury, if they find such person guilty of the murder, also to “ascertain in their verdict whether it be murder in the first or second degree.'1'1 This requirement, it was ingeniously urged on behalf of the State, could be fully gratified on an indictment like the one in the case before us, by a verdict of simply “guilty.” This view,
The case in which the distinguished chief justice dropped the dictum relied upon, did not involve the question, nor call for his opinion on the subject; and were it what, counsel suppose it to be, whatever may be our respect for his views on a legal proposition; (and it is certainly very great,) we would not feel ourselves bound to conform to it. Nor, indeed, had it been directly raised in the case, could we, with our understanding of. the language of the statute, unite in such construction. But the fact is, we do not concur with the counsel for the State, in the interpretation placed by them on the language of Chief Justice Tighhnan. His language is not susceptible of such construction. It alluded to an indictment under the statute, and not at common law. In most of the States of this Union the act of Pennsylvania has been adopted in its very words; and we are not aware of any decision, in any of their courts of last resort, where it has been held not ■to be incumbent on the jury to find, distinctly and unequivocally, the degree of the murder. So far from it, there has been an unbroken uniformity of decision to the contrary.
We do not deem it essential to recapitulate the numerous cases in which the act has come under review. It is palpable to us that the true intent and purpose of the act, in this particular, were to impose upon the consciences of the jury the finding in their verdict (not therefrom to be inferred or conjectured) the degree of the crime; and when that part of the act is considered which refers to the case of the accused making,
Having, to our own satisfaction, settled the character of the finding which the act of Assembly requires in the case of conviction for murder, we proceed to notice some facts contained in the transcript of the clerk of the criminal court.
The verdict in the case, whatever it was, was rendered on the 4th of October 1858. On the rough minutes of the court appears the following entry: “Oct. 4, 1858, verdict, guilty of murder. Jury polled — Guilty of murder in the 1st degree.” From affidavits filed in the case' in the court below, it is obvious the words “jury polled — guilty of murder in the first degree,” were not placed on the minutes until the 5th of October, out of the presence of tlie prisoner and of the jury. Some of the bystanders, at the time of the rendition of the verdict, and the deputy clerk, who received it, make affidavit as to the words of the verdict, and the manner in which it was delivered and recorded.
The jury who tried the case also filed a certificate, stating their recollection of the words used, and their understanding of their meaning. To all this the judge certifies, in his opin' ion, his knowledge of what occurred. Without quoting the precise words used by the different persons who bear evidence in regard to the matter, we content ourselves by saying, that ¿here is not a single affiant or witness who states, nor does the
Whatever doubt there may be in regard to the truth of the proposition, to the extent insisted upon, it is unquestionably 'correct to aver that jurors cannot be allowed to testify in relation to the motives upon which they joined in the verdict, and this is just what has been attempted here. (See 5 Bacon’s Abridgement, 393, (N,) and the numerous authorities there collected, and also the opinion of Judge Archer, in the case of Bosley vs. The Chesapeake Insurance Co., 3 G. & J., 473.) If a jury, through mistake or partiality, deliver an improper verdict, the court may, before it is recorded, desire them to reconsider it. They cannot, however, be allowed to make alteration after the verdict is recorded. (Dearsby’s Criminal Process, 68; 81 Law Lib.) And we here remark, that when the jury be asked if they have agreed on their verdict, and they respond that they have, and that their foreman shall say for them, and the foreman, speaking for the whole panel, find a proper verdict, and the same be recorded, the whole panel being called upon to hearken to it as the court hath recorded it, and no-objection being made, either by any of the jury, or the counsel for the State or prisoner, then such proper verdict, as given through the foreman, is the verdict of the whole panel, and it is too late, after the record of it, under such circumstances, for any of them to alter or amend it; it is then too late to poll the panel.
‘ It might be conceded, for the purposes of this appeal, that this court cannot take cognizance of the affidavits filed subse
In all cases in which a judgment is to be pronounced in the progress of the case, such judgment, when rendered, becomes the act. of the court, and is a matter of law, as well as were the premises on winch it was rendered, matters of fact,; and whilst the court of review cannot find tho facts, yet when the facts are found by the court or the jury below, as the case may be, it is but its proper and legitimate province to see that the inferior court has pronounced correctly the law as applicable to the facts.
Now what was the matter on which the court below decided ? It was alleged that the jury had not, in point of fact, found the verdict which the clerk had recorded, and whether they had, or had not, was the precise and only matter which the court was called upon, not argumeutively, but judicially, to adjudge. And what did it adjudge? We throw out of view entirely all that was said by the witnesses and the clerk, and confine outselves exclusively to the decision of the judge. It is in these words: “The court will finally proceed to consider the fact., whether the jury did, or did not, find the prisoner guilty of murder in the first degree, which (as Mr. Nelson says) settles the question. When the jury came into court, it was late in the evening, and Mr. Whitney, the prosecutor, was absent, on account of sudden indisposition, but the court supposed he was present to attend, as usual, to the rendition of
Thus, then, we see the judge below decides the facts to be, that at no time did all the jury find the prisoner “guilty of murder in the first degree.” At first their foreman simply said, “guilty,” for the whole panel; and when the latter was polled, so that each might answer for himself, eleven of them replied, severally, “guilty,” without specifying the degree in words. Here, then, we have the fact plainly set forth, that William G. Ford was not, by all the jury, found guilty of murder in the first degree; but, nevertheless, the verdict, as extended and amended by the clerk of the criminal court, says he was so found guilty. And we are asked to decide that, although no such verdict was given, the judgment is correct, and the sentence should be carried out, and that we cannot look to the misprision of the clerk. The clerk is but the hand of the court, its amanuensis. It is his duty, in contemplation of law, to record nothing but the proceedings of the court.
The 19th article of the Declaration of Rights of Maryland, among other things, declares, that every man hath a right to be informed of the accusation against him, “and to a speedy trial by an impartial jury, without whose unanimous consent he ought not to be found guilty." .And in 10 Bacon's Abridg. Title Verdict, 306, it is correctly said: “The verdict is the unanimous decision made by a jury and reported to the court, on the matters lawfully submitted to them in the course of the trial. ’ ’ Unanimity is indispensable to the sufficiency of the verdict, and this, we have seen, has not been in the case before us. It will hardly be contended, that had the jury found the prisoner “not guilty,” if the clerk had entered their verdict “guilty," instead of the true finding, that there is no mode of correcting; such error. Wherein does this supposed case differ in principle from the case now before us 9 In nothing. The law says, that when a person shall be found guilty of the crime of murder, by a jury; the jury shall, in their verdict, find the degree; and this has not been done.
In the eye of the law, there has been no valid and sufficient verdict; and, as a consequence, there must be a new trial. This case is not like that of Cochrane vs. The State, 6 Md. Rep., 400, where there was a necessity to find a new indictment, because of the defect in the one on which the accused was arraigned and'tried. In this case there is no defect in the indictment, and the party can be tried again on it, as in the case of The State vs. Sutton, 4 Gill, 494. This was a mistrial, and a venire de novo must be awarded.
Judgment reversed and procedendo awarded.