Ford v. State

In atrial 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 th e 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 ease, 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 hut 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 empannelliug of a jury to üy 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'\yas a,n 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 empannelied 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 there-* fore void. “3rd. Because it is the duly 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 oth 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.t 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 O. 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, ‘.Tes.’ 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 hand; he then addressed the jury, ‘Gentlemen of the jury, look upon the prisoner, how say you, is William G. Ford, the prisoner at the bar, guilty of the matter whereof he stands indicted, or not guilty?’ to this the foreman responded, ‘Guilty.’ Mr. Schley then said, ‘Gentlemen of the jury, hearken to your verdict as the court hath recorded it, your foreman saith that William G. Ford, the prisoner at the bar, is guilty, and so you say all?’ Just at this Time Mr. Hack appeared in court, and asked Mr. Schley what was the verdict? He replied, ‘Guilty,’ and added that it was ‘first degree'.’ Mr. Hack said, ‘What did the jury say?’ Mr. Schley responded, ‘They said guilty.’ Mr. Hack then said, ‘You must only record what the jury said;’ and then he demanded a poll of the jury. Mr. Schley then said to the jury, ‘Gentlemen, answer as your names are called,’ and, calling the foreman’s name, he asked this question, ‘How say you, guilty or not guilty?’ to which the response was, simply, ‘Guilty;’ and so did each juror answer as his name was called. And the said W. O. N. Carr further makes oath, that he had a conversation with Mr. Schley, on the same evening, in the clerk’s office, after the court had adjourned, in which he told Mr. Schley that the verdict was not properly taken and entered; that the jury ought to have ascertained the degree of the crime. Mr. Schley said, that it was all right; that it had been decided not to be necessary to designate the degree; a general verdict of guilty meaning, he said, guilty of the highest grade of offence. This deponent then asked Mr. Schley how, when he came to make up the full record in the case, he could insert the words, ‘that the said Wm. G. Ford is guilty of the murder aforesaid, above charged and imposed upon him, and that the said murder is of the first degree?’ &c.; to this Mr. Schley replied, that he was not bound by the form in Harris' Entries, and that he would have no trouble about making the record. Sworn before — Danl. E. Myers.” “On this 21st day of October 1858, in open court, in the criminal court of Baltimore city, appeared Archibald Stirling, Jr., and makes oath that he was present in court at the rendition of the verdict in the case of Win. G. Ford; that he has read the affidavit of W. O. N. Carr, hereto annexed, and that his recollections of the facts is the same as Mr. Carr’s, except that his recollection is, that when Mr. Hack came into court and asked Mr. Schley ‘What was the verdict?’ Mr. Schley answered, ‘Guilty generally,’ and added, ‘that means murder in the first degree.’ Mr. Hack replied, ‘What did the jury say?’ and then demanded the poll. His recollection as to the question asked by Mr. Schley to the jurors, on the poll, is the same as Mr. Carr’s. This deponent also says, that he knows nothing of the conversation between Mr. Carr and Mr. Schley, mentioned in the affidavit of Mr. Carr. Oct. 21st, 1858. Sworn to in open court. Taos. H. Gardner, Clerk.” “Oliver F. Hack, being duly sworn in open court here, deposeth and saith, that on the evening of the rendition of the verdict in this cause, after the same had been rendered, and whilst there was some discussing going on between the jury and the court, he entered the court room, and advancing to the desk of the then acting clerk, Mr. Schley, inquired of him, Mr. S., what the verdict was? to which he replied, ‘Guilty of murder.’ Some person standing near remarked, at the same time, that no such verdict had been rendered; that the jury, when asked to hearken to their verdict, stated merely that he, the prisoner, was guilty, and nothing was said of murder. Mr. Schley then observed, that the verdict of guilty meant guilty of murder in the first degree. Deponent then stated to Mr. Schley that the meaning of the verdict was a matter of legal construction, and that although the verdict was recorded as guilty of murder, when it should merely have been guilty, that he must not change or affect that verdict. The poll of the jury having been asked by deponent thereupon, nothing was said to them as to the degree of the murder found by them, but., when responding to their names, they were asked to say merely whether the prisoner was guilty or not guilty, to which they severally replied,‘Guilty.’ The verdict was recorded on the evening of its rendition, stood without any addition or any qualification, and upon the application of deponent, on the nest morning, that Mr. Schley should not make any change in the record, he stated that he would not. He afterwards did so, by inserting the poll as it appears. Oct. 21st, 1858. Sworn to in open court. Thomas H. Gardner,- Clerk.” “I was present in the criminal court on the night when the verdict in the case of the State vs. Ford was rendered. The jury were called, and, through their foreman, rendered a verdict of ‘Guilty.’ I am the more certain of this, as the sufficiency of such a verdict was, at the very moment, made a subject of discussion between a professional brother and myself. Immediately after the rendition of the verdict, Mr. Hack came within the bar, and demanded the polling of the jury, when the clerk, Mr. Schley, put to each of the jury, calling them by name, the same question that he had put when the foreman answered for the whole, viz: ‘How say you, is William G. Ford, the prisoner at the bar, guilty of the matter wherewith he stands charged, or not guilty?’ This statement is given at the request of the counsel for the prisoner. Robt. D. Morrison.” “On this 21st day of October 1858, before me, the subscriber j a justice of the peace of the State of Maryland, in and for the city of Baltimore, personally appeared Robt. D. Morrison, and made oath that the matters and facts hereinbefore staled are true, to the best of his knowledge and belief. Danl. E. Myers.” By order of the court, the following certificate, signed by all of the jury who tried the case, was filed: “We, the undersigned, jurors empannelled and sworn to try the issue between the State of Maryland and William G. Ford, indicted at the September term of the criminal court of Baltimore, for the murder of Thomas H. Burnham, do hereby certify, that on the night of the 4th of October 1858, the jury in said cause having agreed upon their verdict, were placed in the bar to render the same. That the clerk of the court turned to the jury and said: ‘Gentlemen of the jury, have you agreed upon your verdict?’ Our foreman answered, ‘Yes.’ Clerk, ‘Who shall say for you?’ The jury said, ‘Our foreman.’ The clerk said, ‘William G. Ford, stand up, and hold up your right hand; Gentlemen of the jury, look upon the prisoner at the bar, what say you, is Wm. G. Ford, the prisoner at the bar, guilty of the matters whereof he stands indicted, or not guilty?’ Our foreman answered, ‘Guilty as charged in the indictment.’ The clerk said, ‘Gentlemen of the jury, hearken unto your verdict as the court hath recorded it; your foreman saith that Wm. G. Ford, the prisoner at the bar, is guilty of the murder whereof he stands indicted, and so you say all?’ Mr. Hack, the prisoner’s counsel, then asked that the jury be polled; whereupon the clerk said to our foreman, in our hearing, ‘Daniel D. Hobbs, is William G. Ford, the prisoner at the bar, guilty of murder in the first degree, or not guilty?’ Our foreman said, ‘Guilty.’ The question was then put to each of us, by name, ‘What say you, guilty or not guilty?’ We each of us, in turn, answered, ‘Guilty;’ thereby meaning, intending, and most assuredly understanding our verdict as ‘Guilty of murder in the first degree.’ ” By order of the court, also, the following .affidavit of the clerk who received the verdict, was fried in court: “Be it known, that on this 8th day of October, A. D., 1858, before me, the subscriber, a justice of the peace of the State of Maryland, in and for the city of Baltimore, personally appeared Wm. Louis Schley, and made oath in due form of law, that he was the clerk who received the verdict from the jury empannelled to try Wm. G. Ford, indicted for murder, at September term of the criminal court of Baltimore, and that the said verdict was rendered before said court on the evening of October 4th, 1858, in manner following: When the jury were placed in the bar, the following questions were asked by him, the said Wm. Louis Schley: ‘Gentlemen of the jury, have you agreed upon your verdict?’ ‘Yes.’ ‘Who shall say for you?’ ‘The foreman.5 Clerk, to prisoner, ‘Wm. G. Ford, stand up, hold up your right hand’ — ‘Gentlemen of the jury, look upon the prisoner at the bar, what say you, is William G. Ford, the prisoner at the bar, guilty of the matter whereof he stands indicted, or not guilty?’ Answer by the foreman — ‘Guilty.’ ‘Gentlemen of the jury, hearkeu unto your verdict as the court hath recorded it, your foreman saith that Wm. G. Ford, the prisoner at the bar, is guilty of the murder whereof he stands indicted, and so you say all?’ Mr. Hack then asked that the jury be polled; whereupon the clerk, the said Wm. Louis Schley, said to the foreman, ‘Is Wm. G. Ford, the prisoner at the bar, guilty of murder in the first degree, or not guilty?’ — this question was put to the foreman alone — to which question the foreman, Danl. D. Hobbs, answered,‘Guilty.’ The question of ‘What say you, guilty or not guilty?’ omitting the words ‘first degree,’ was put in turn to each juror of the remaining eleven, who in turn answered, ‘Guilty.’ Charles Alexander.” The court (Stump, J.,) filed the following opinion: “Criminal Court of Baltimore, — State of Maryland vs. William G. Ford — Indicted Sept’r term 1858, for the murder of Thomas H. Burnham. “After a verdict was found, motions in arrest of judgment and for a new trial were made by Cowan and Hack, counsel for the prisoner, and assigned the following reasons, in substance, for arresting the judgment of the court: “1st. That the jury who were empannelled, and who did find a verdict therein, did not find what degree of murder the prisoner was guilty of. “2nd. Because the jury who found the verdict did not unanimously pronounce a verdict in said case of murder, nor find the degree of murder, as they were required by the act of Assembly to do. “3rd. Because it was the duty and sole right of the jury, who try a case of murder, to find the degree of which they convict the prisoner. “4th. The jury rendered their verdict on Monday evening the 4th inst., and the verdict then recorded by the clerk was simply in the words, guilty of murder, and no more; on the succeeding morning after the jury had been discharged and the'prisoner was absent, contrary to the request of his counsel, inserted on the docket of the court the words: ‘Jury polled— guilty of murder in the first degree;’ without the order of the court or authority of law, <fcc. “The prisoner’s counsel also move the court to strike out the words, ‘Jury polled — guilty of murder in the first degree;’ which were written on the court docket, the morning after the rendition of the verdict, by the clerk of the court, &e. “The reasons assigned for the motion for a new trial are in substance: “1st. Because the verdict is contrary to the evidence. “2nd. Because the verdict is contrary to the weight of evidence. “3rd. Because of irregularity in empannelling the jury. “4th. Because one of the jurors who was empannelled to try the said cause was not, of the legal age to act as a juror. “5th. Because a juror who tried the case was disqualified to try the case by having expressed an opinion previously. “The reasons filed for a new trial were not argued before the court, and no evidence offered to the court to prove any of the facts stated in them, wherefore the court had no grounds for considering them otherwise than as abandoned by the prisoner’s counsel. “The motion to arrest the judgment, and the preliminary one to strike out the entries of ‘Jury polled — guilty of murder in the first degree,’ (which seem to be inseparable,) were argued at length and relied upon by the counsel for the prisoner. “Mr. Cowan, in favor of the motion, argued, that the act of 1809, ch. 138, sec. 3, enacted, that murder in the State of Maryland shall consist of two kinds, viz., murder in the first degree and murder in the second degree, and if the jury find any one guilty of murder in the first or second degree, they must find the degree in their verdict, otherwise the court cannot pronounce judgment on the prisoner, according to the act, which punishes murder in the first degree with death, and murder in the second degree with confinement in the penitentiary. He contended that neither the clerk nor the court could add one word to the minutes of the verdict entered as taken in the presence of the jury and the prisoner, nor subtract a word from the verdict or minutes after the jury were discharged, nor could the jury themselves be allowed to correct any mistake in the minutes, taken by the clerk after they were discharged. In support of this doctrine, he read from lsí Chitty Crim. Law, and some other authorities. The act of 1809, and the affidavits of W. C. 1ST. Carr and others, relating to the manner and some of the facts connected with the taking of the verdict by the clerk, (Mr. Schley,) which do not correspond, in some essential particulars, with the recollection of this court, nor with the affidavit of the jurors who found the verdict, nor that of the clerk who recorded the verdict; which affidavits are filed in this court and constitute a part of this record. Mr. Hambleton replied on the part of the State, and cited a number of authorities from text-books and reported cases, some of which the court has read, but has not time to digest them here. Mr. Whitney closed on the part of the State, and argued that it was not required of the jury to negative the minor offences charged in the indictment. That a general verdict on an indictment is sufficient to cover the highest offence in that indictment. If it was the intention of the jury to convict of the smaller offence, they would have so specified in their verdict, and if the jury, under the present indictment, which contained but one count embracing murder in the first degree, rendered a verdict of guilty, that satisfied the act of Assembly. To this conclusion of law this court cannot assent. The State’s Attorney referred to 6 Binney’s Rep., 179, White’s Case; upon examination of which it will appear that the jury found White guilty of murder in the first degree without any dispute. The only question in the case of Ford is, whether the jury did or did not find him guilty of murder in the first degree. Upon this fact in Ford’s case turns all the law and evidence. Mr. Whitney cited also 7 Md. Rep., 442, Weighorst’s Case, wherein the court say, if the jury find a person guilty of the smaller degree of murder they need not negative murder in the first degree; also case of Sutton in 4 Gill, and Manley’s Case, 7 Md. Rep., who was found guilty of an assault with intent to kill George Konig, without negativing the count for a simple assault. But no case has been cited, or can be found, to establish the doctrine, that where a jury find a person guilty on an indictment which covers murder in the first degree, murder in the second degree, and manslaughter, without specifying which offence he is guilty of, that the highest offence is found by such a general verdict, although finding him guilty of murder in the second degree or manslaughter will negative murder in the first degree. “Mr. J. Nelson dosed the argument for the prisoner, in most of which this court will concur, but. not to the supposed facts upon which it is predicated. He argued, that the indictment was drawn according to the forms of the common law used before the passage of the act of 1809, and covered both degrees of murder, and it would be an arbitrary exercise of power by the court to determine what degree of murder the jury intended to find. That the jury are to find it as a fact by their verdict, (and not otherwise,) whether the offence be of the first or second degree of murder. The jury are bound; by the act of Assembly, to make a specific finding. If the prisoner, in court, had pleaded guilty, it would be the duty of the court to examine the evidence and ascertain the degree, for he could not plead guilty to the first degree. The prisoner only pleads guilty or innocent of the whole indictment, and this being the case, the jury must find in their verdict the fact and particularise the degree of murder. The proper enquiry in this case is, whether the jury have found the degree in their verdict, and if not the act of Assembly has not been gratified; nor has the court a right to find the degree instead of the jury, because the prisoner did not plead guilty. On the other hand, if the jury have determined the degree of murder that is an end of the question. He cited Binney's Rep.; 6 Gill, Ohio and Missouri Reports. He also read from 3 Yol. British Crown Cases, about the place where the culprit should be buried, which is no part of our law. This court accedes to all the legal part of this argument and adopts it all so far as it goes, but it does not reach or settle the main question of fact, whether the jury found the prisoner guilty of murder in the first degree or guilty of murder generally. “In order to a clear conception of the law we are considering, it may be better to insert the whole of the 3rd sec. of our act of 1809, ch. 138, which is a copy of the act of Pennsylvania of 1794; it reads in these words: “ ‘And whereas the several offences, which are included under the general denomination of murder, differ so greatly from each other in the degree of their atrociousness, 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 wilful, 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, stable, warehouse, or other outhouse, not parcel of any dwelling house, having therein any tobacco, grain, hay, horses, cattle, or goods, wares and merchandize; rape, sodomy, mayhem, robbery or burglary; shall be deemed murder of 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 witness, to determine the degree of the crime, and to give sentence accordingly; and every person liable to be prosecuted for petit treason shall, in future, be indicted, proceeded against, and punished, as is directed in other kinds of murder, according to the degree.’ “Mr. Nelson also argued, (and cited some cases to shew,) that it was too late, upon polling the jury, to fix the degree of murder. That the jury must answer upon first being interrogated by the clerk, and then it is the prisoner’s privilege to poll each man individually, to ascertain what his judgment, was. The clerk had no right to put leading questions to the jury to bring out their verdict; that no man’s life would be safe under such proceedings, &c. “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, hut the court supposed he was present to attend, as usual, to the rendition of the verdict, according to the usual manner. The clerk asked the jury if they had agreed upon their verdict, and who should say for them, to which they responded they had agreed, and their foreman should say for them. Whereupon the clerk told the prisoner, calling by name, William G. Ford, to stand and hold up his right hand, and requested the jury to look upon him, and then asked the jury: ‘How say you gentlemen, is William G. Ford, the prisoner at the bar, guilty or not guilty?’ to which the jury answered guilty, and nothing more. Whereupon, and before any of the jury had left the bar, and whilst the prisoner was before them, Mr. Back, one of the counsel for the prisoner, demanded that the jury should be polled, whereupon the court directed Mr. Schley, the clerk, who was taking the verdict, to ask the jury, when he polled them, whether they found the prisoner guilty of murder in the first degree or murder in the second degree; to which question, when it was put to the jury, the foreman answered for the jury, in the words, ‘Guilty of murder in the first degree,’ in an audible voice, and each of the remaining eleven jurors, when polled, responded ‘Guilty,’ without specifying the degree of murder in words. “And thereupon, to wit, on the day and year last aforesaid, all and singular the premises, being, by the court here, seen and fully understood, it is adjudged and considered by the court here, that the said several above motions, that is to say, the said above motion in arrest of judgment, the said above motion for a new trial, and the said above motion to strike out the said above mentioned entry in the said case, on the said docket of the court here, be and the same are, each of them, overruled.” The transcript then proceeds to state, that the court passed sentence of death upon the prisoner, and sets out the judgment.. To correct this judgment the present writ of error was sued out by the prisoner from the Circuit court for Baltimore city, directed to the judge of the Criminal court of Baltimore. This writ states, that: “whereas at a session of the Criminal court of Baltimore, begun and held at the city of Baltimore, in and for said city, on the second Monday of September, in the year of our Lord, one thousand eight hundred and fifty-eight, a certain William G. Ford, was convicted and judgment and sentence passed thereon, ordering him to be hanged at such time and place as may please the chief executive of the State of Maryland to appoint. And because in the record and proceedings, as also in the judgment and sentence of the said court, a manifest error hath happened, to the great damage of the said William G. Ford, as of his complaint has been stated, and it is right that the error, if any hath been, should be duly corrected, and full and speedy justice done to the said William G. Ford in this behalf: Therefore you are hereby commanded, that if the judgment aforesaid be therein given, then the record and proceedings aforesaid, with all things thereunto relating, to the Court of Appeals to be holden for the State of Maryland, under your hand and seal distinctly and openly you send, together with this writ, and the record and proceedings aforesaid, being inspected, the said Court of Appeals may further cause to be done therein, for the correcting that error, what of right and according to the laws and customs of the State of Maryland may be done.” The transcript then states that: “In pursuance whereof, and according to the act of Assembly in such case made and provided, a record of the judgment aforesaid, with all things thereunto relating, together with the said writ of error annexed, is hereby transmitted to the Court of Appeals accordingly.” This is attested by the clerk of the Criminal court of Baltimore, and is accompanied with his certificate attested by the seal of the court, “that the aforegoing transcript is a full and true record of the proceedings in the said prosecution against the said William G. Ford,”