Weighorst v. State

Tuck, J.,

delivered the opinion of this court.

The plaintiff in error was indicted and tried for murder. The record, as originally transmitted to this court, shows, that the'jury found him “guilty of the felony and murder aforesaid, above charged and imposed upon him, and that the said felony and murder is murder of the second degree.” It appears, however, by an amendment of the record, that the verdict as rendered and entered on the docket was in these words: “Guilty of murder in the-second degree;” and it is contended that this docket entry must be considered as the verdict of the jury, and that the clerk had no- authority to amplify their finding, as set out in the record.

It has always been the habit of clerks to take minutes and docket entries of the court’s proceedings, and, subsequently, to enter them at length in technical language, according to established forms. This is necessary to the dispatch of business, and relieves these officers from the inconvenient, if not? impracticable, labor, of making correct full- records of proceedings as they transpire. In legal contemplation they are' made under the eye of the court, and by its authority, and, when not properly entered or extended, the error may be corrected. But, in the present case, we do not perceive that-there is any substantial difference between the docket entries,, and the verdict as set out in the record. One is but the technical extension of the other, according to the long established-practice of the courts, and, in. disposing of the chief question in the cause—the legal sufficiency of the finding of the jury—we shall not ascribe to the record, as originally transmitted to this court, a greater effect than, by legal intendment, belongs to the verdict as entered on the docket.

The motion in arrest of judgment is founded on the supposition, that the verdict should have acquitted the party of murder in the first degree, and of manslaughter; but we do not understand the latter feature of this motion to be relied-on. Where there is but one count the inferior grade of the offence need not. be passed upon by the jury. It is sufficient? if the finding cover the indictment, and we agree that the *451 present case must be decided according to this rule. Weighorst was indicted for the crime of murder, not for having committed a homicide. Upon this charge he was convicted, and the jury, in obedience to the act of 1809, ch. 138, ascertained the degree of that crime. This verdict, though not subjecting him to the severest penalty, found him guilty of murder, the crime alleged against him. The act of Assembly does not create a new offence in distinguishing between murder of the first and second degrees. The design was to discriminate in awarding the punishment. The supposed analogy between a conviction of manslaughter and of murder in the second degree does not exist. Manslaughter is a different crime from murder. Although both are within the general term homicide, yet, legally speaking, they are not different degrees of the same offence, because one is not murder at all, and, hence, a verdict merely convicting the accused •of that grade of homicide would leave the crime charged in the indictment wholly unnoticed, in disregard of the nature and end of pleading, and of the duty of the jury to pass upon the issues as framed. Besides, if the act of Assembly created a new offence, it would be necessary, where a party is convicted of manslaughter under a count for murder, to acquit of both degrees of murder, but this is never done. It is sufficient in such cases to say not guilty of the murder, without negativing each degree of that crime. Again, the act does not authorize the accused to plead guilty of murder of the second degree. If he confesses at all he must plead to the indictment for murder, and it is then made the duty of the court, “by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly.” It is true the act does, in awarding punishments, speak of the crime of murder in the second degree, as if creating an offence before unknown to our laws; but we think this single expression must yield to the object and design of the act as indicated by its other sections.

It is supposed that the present question was settled by this court, in 6 Md. Rep., 167 . We certainly did not intend to *452 carry the principle recognized by the Court of Appeals in 4 Gill, 494 , beyond the case then before us for judgment. It is manifest that we yielded to the force of authority in the particular case, not recognizing the soundness of the reason on which the rule was said to have been adopted in England and followed here. We then said, that “where an issue is joined on a single count, involving different grades of homicide, a conviction of manslaughter, or of murder in the second degree, necessarily implies a finding of not guilty of the higher offence,” and so we think now. In that case, where the indictment charged one crime, and the party was convicted of another, we held that the practice of taking verdicts in such cases, because sanctioned in Sutton vs. The State, should be observed. But where the reason fails the rule is not applicable. The difference between the cases is this. Here the party was convicted of the crime for which he was indicted, though of an inferior degree, and the charge was fully covered’ by the verdict, whereas Flannigan was indicted for one crime and convicted of another, without any finding as to the offence charged.

But, apart from this view, and conceding that the cases are the same in principle, we think this question is settled by the act of Assembly. A verdict we take to be correctly found when rendered as required by the act. The statute speaks of two degrees of murder, distinguished by the circumstances attending the commission of the crime, according to which the party is to be punished. It first declares what shall be deemed murder of the first degree; and then says: “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, (that is of murder,) ascertain, in their verdict, whether it be murder in the first or second degree.” The party was convicted of the crime charged against him, and its degree was ascertained for the guidance of the court in awarding the punishment. The act makes no such requirement as to com victions of manslaughter under indictments for murder. These *453 are left to be rendered as at common law, it having been deemed important, as we may suppose, only in cases of murder to prescribe the form of the verdict.

In conformity with this view of the subject we find, after a careful examination of the criminal records of nearly all the counties, and of the city of Baltimore, made since the argument of this cause, that, with the exception of a few instances, the practice has been to receive, and pass judgment upon, verdicts, after the manner observed in the trial of this party. We recognize the value of precedents and practice, when applicable, not as making the law, but as evidence of what it has been supposed to be since the earliest times. 4 Taunt., 611, (Ram. on Legal Judgments, 62.) And, indeed, in Sutton’s and Flannigan’s cases, the point was ruled on no higher authority than the practice in the courts of England, as stated by Chitty and others. When, for all the time elapsed since the passage of the act under which this party was tried— nearly half a century—we know, that, in trials presided over and conducted by eminent jurists, the same form has obtained, regardless of any supposed similarity between such cases and convictions for manslaughter, why may we not respect their construction of the law as safely as, in other cases, we adhere to the common law practice? If we doubted as to the propriety of the ruling of the court below, according to the principles of law' applicable to the point, we should feel great reluctance to disturb or call in question a form of proceeding sanctioned by the practice of our courts for so many years, Judgment affirmed,