The appellant was, upon trial by jury in the Criminal Court of Baltimore City, found guilty of murder in the first degree; and after a review of the proceedings by the judges of the Supreme Bench of Baltimore City as a whole, on a motion for a new trial, and after the overruling of that motion, was sentenced to death. He has now brought before this court for its consideration two groups of exceptions, one of exceptions taken during the examination of talesmen for service on the jury, and one of exceptions taken during the trial. The charge was, more specifically, that on January 2d 1930, Price had killed one Reuben Heyman by shooting, after he had stopped Heyman's automobile on a road in the suburbs of Baltimore.
The talesmen, as they were questioned by the court as to their qualifications for service, were asked whether they had conscientious scruples against the infliction of capital punishment; and those who answered that they had, were asked, further, whether their scruples were such as could not be overcome by evidence. And those whose scruples could not be overcome by evidence were, on challenge by the State, excused for cause. Counsel for the defendant objected to these questions, and the overruling of his objections is the subject of the first group, of thirty-eight exceptions. In support of the objections, it is urged that since, by the Act of 1916, chapter 214, Code, art. 27, sec. 403, juries may, upon rendering verdicts of murder in the first degree, limit the punishment to life imprisonment by adding the words, "without capital punishment," conscientious scruples against capital punishment would not interfere with a juror's uniting in such verdicts, but would only necessitate the limitation of punishment *Page 494 in order to make it possible for him to unite. And such a limitation enforced by the vote of one or more jurors having conscientious scruples against capital punishment is, on the appellant's construction, within the intention and purpose of the Act of 1916. But in this the court disagrees. In our opinion, it was the purpose of the act to empower juries to unite in a choice of punishments; that is, a choice between limiting punishment to life imprisonment and leaving the court unrestricted in fixing the punishment; and it was intended that all jurors should exercise a discretion in making that choice. A juror who should be prevented by conscientious scruples from joining in the exercise of the discretion would in our opinion be disqualified for performance of one of the functions devolved upon the jury, and should on challenge be excused for cause, as the talesmen were in this instance. The argument now made may have support in the decisions of courts in a few other states, but the great weight of authority seems to be in accord with the view we take. See Commonwealth v. Bentley, 287 Pa. 539; State v. Juliano,103 N.J.L. 663.
We are unable to find any error in the action which is the subject of the first group of exceptions.
On the trial, it was contended in defense that the accused was insane at the time of the killing, so that he could not be held guilty of murder, or, at least, not of murder in the first degree. And Cena Price, his wife, testified that, six months after his marriage in 1920, her husband, who had been wounded in the war, "began acting so funny," and complained that his leg bothered him; and at her suggestion, she said, he went to the Government Hospital at Fort McHenry for treatment. She added that his leg had been treated at the hospital, but that "they have not done anything to his mind." And upon objection the court struck out her statement that they had not done anything to his mind. That action constitutes the subject of the thirty-ninth exception. The objection to its admissibility is that it constitutes hearsay testimony. It is not apparent that the admission or exclusion of the particular *Page 495 item of testimony would have any importance in the case, but, if its exclusion had been erroneous, the error would seem to have been corrected by the exhibition at the trial of the hospital records of treatment, and the lack of any record in them of treatment for mental condition. We find no reversible error, therefore, in the ruling covered by the thirty-ninth exception.
The same witness testified, further, to actions of the defendant between 1920 and 1929, relevant to the question of his sanity, and said that in January, 1929, a year before the killing of Heyman, she herself went to talk to a Mr. Stevenson of the Veterans Bureau; but, on objection by the State, she was not permitted to testify that her purpose in going was to have her husband's mental condition investigated. And the exclusion of that testimony forms the subject of the fortieth exception. The testimony, according to counsel's statement to the trial court, was sought as evidence of the wife's view of the seriousness of her husband's mental condition, and it was urged that as such it was admissible even though nothing was done at the Veterans Bureau in response to her application. The trial court considered the testimony irrelevent, and we concur in that ruling. The witness was permitted to narrate every incident in her husband's behavior upon which an inference of abnormality might be based. And the question objected to called for an impression or a question which was in her mind when she went to the Veterans Bureau, and not for any facts which might assist the jury to ascertain the defendant's mental condition. We find no error in the ruling thus excepted to.
PARKE, J., delivered the opinion of the Court with respect to the jurisdiction of the trial court to enter a judgment on the verdict.
During the course of the trial the traverser offered evidence of his mental state. The record discloses that the question of capacity was argued before the jury and that the attorney for the prisoner requested that the court give to the *Page 496 jury for its guidance typewritten forms of the alternative verdicts which might be rendered. The court then exhibited to the counsel a paper containing the following six verdicts: Guilty of murder in the first degree; (2) Guilty of murder in the first degree without capital punishment; (3) Guilty of murder in the second degree; (4) Not guilty of murder, guilty of manslaughter; (5) Not guilty; and (6) Not guilty by reason of insanity, insane at the time of the commission of the offense and insane now. The attorney for the accused objected to the sixth form of verdict, and the judge advised him that the written forms would not be handed to the jury if he had any objection. The clerk then stated that the verdicts were those which had been used ever since he had been in the criminal court; and thereupon the attorney for the prisoner withdrew all objections to the paper, which was then delivered to the jury. The jury retired and returned in a few minutes with a verdict of guilty of murder in the first degree. As the action of the court was upon the express assent of the prisoner's attorney, there was neither objection made nor exception taken. No question is attempted to be presented by a writ of error, and, if there be any reviewable question on this appeal, it must be presented by the appeal from the judgment on the verdict.
It is a general principle and a statutory provision that any ruling of the court which is not presented by a demurrer, an exception, a motion to quash, or in arrest of judgment or to strike out the judgment for fraud or irregularity, cannot be considered on appeal. Neither the gravity of the offence nor the nature of the penalty can justify a departure from the precedent and statute upon which this rule firmly rests. Code, art. 5, secs. 4, 10; Moore v. State, 149 Md. 298, 300; Munshower v.State, 56 Md. 514; Dunn v. State, 140 Md. 163; Mitchell v.State, 82 Md. 527, 553; Davis v. State, 39 Md. 355, 386;Simonson v. State, 143 Md. 413, 417; Brill v. State,144 Md. 68, 74; Novak v. State, 139 Md. 538, 542; Kenny v. State,121 Md. 120, 123.
The application of the rule stated is, however, subject to the implicit condition that the court have jurisdiction to *Page 497 render the judgment from which the appeal is taken. This limitation upon its operation is as well established as the rule. In Horner v. O'Laughlin, 29 Md. 465, 470, the rule and the condition of its applicability were stated when it was held that a judgment of a court of record proceeding according to the course of the common law could not be reversed "unless it affirmatively appears on the face of the record the court had no jurisdiction over the cause of the parties, or that the judgment was such as the law does not authorize to be pronounced upon the verdict, as was the case in Watkins v. State, 14 Md. 424. Any error or irregularity in the proceedings which does not reach the jurisdiction of the court or affect, in the sense indicated, the legal validity of the judgment, cannot be reviewed by this court either upon appeal or writ of error, because the appellate court in this state is, and has long been, expressly inhibited by law from deciding any point or question which does not appear to have been tried and decided by the court below. Act of 1825, ch. 117; Code, art. 5, sec. 12; and Act of 1861-2, ch. 154."
In the case quoted there was neither demurrer, bill of exception, motion in arrest of judgment, nor one to strike out the judgment for fraud or irregularity, but the court did not dismiss the appeal, and heard and decided whether there was any jurisdictional defect in the judgment rendered. Armstrong v.Hagerstown, 32 Md. 55; Schiff v. Solomon, 57 Md. 572, 581;Fairfax Forrest Co. v. Chambers, 75 Md. 604, 614; Close v.Southern Md. Agric. Assn., 134 Md. 629, 633. It is true that the case from which the quotation is taken, and those cited, are civil cases, but the court makes no distinction when it is a criminal appeal. Gaither v. Wilmer, 71 Md. 361, 367. So, in a criminal case, if the court had no jurisdiction to impose the sentence inflicted, an appeal therefrom will lie. Hendrick v.State, 115 Md. 552, 558; Queen v. State, 116 Md. 678, 680;Rayner v. State, 52 Md. 368, 376.
The express assent of prisoner's counsel to the form submitted cannot confer jurisdiction; and, consequently, if the *Page 498 court had no power to pronounce sentence on the verdict rendered, the court, sua sponte, must reverse the judgment. Supra;Danner v. State, 89 Md. 220, 228; Price v. Hobbs, 47 Md. 379.
When insanity is a defense in a criminal prosecution the judgment of the court is dependent upon a complete verdict of the jury. This dependency is illustrated by an analogous statutory requirement that if the accused be convicted of murder the jury must not only find the party guilty of the crime of murder but must specify the degree of murder of which the party is guilty. Should the verdict be guilty of murder, without specifying the degree, the verdict, by reason of the statutory provision, would be so defective that a court would be without jurisdiction to proceed to a judgment on the verdict. Weighorst v. State,7 Md. 442, 451; Ford v. State, 12 Md. 514; Williams v. State,60 Md. 402; Hechter v. State, 94 Md. 442; Code, art. 27, secs. 402-404. Similarly, in the case at bar, where the statute in operation explicitly and in mandatory terms exacts that, "when any person indicted for a crime, offense or misdemeanor shall allege insanity or lunacy in his or her defense, the jury impaneled to try such person shall find by their verdict whether such person was at the time of the commission of the alleged offense or still is insane, lunatic or otherwise." Code, art. 59, sec. 6. By these express provisions, the jury must find on two separate issues of guilt and of insanity. The first is double in that it involves primarily the legal capacity to commit the crime and if so, secondarily, the question of the traverser's guilt. The second issue, apart from the question of the traverser's sanity vel non at the time of the crime charged and the prisoner's guilty participation in it, is simply whether or not the accused is sane at the time of the trial. The importance of a verdict in accordance with the statute is evident.
A party is guiltless of crime committed by him if at its commission he was incapacitated by reason of insanity, because his condition makes him unable to entertain a criminal *Page 499 intention, and hence he is not responsible for his acts, although he may have recovered his reason and be sane at the time of the trial. So, if the accused be found to have committed the crime while incapacitated by his insanity, but be sane at the time of the trial, he must be set free, because he is not guilty in law of the crime committed, nor, because of his recovered sanity, is there any cause for his being committed to custody and his property, if sufficient, placed in charge of a trustee. It is, therefore, only when the verdict of the jury is that the prisoner indicted was, at the time of committing the offense and of the verdict, insane, that the court may adjudge him not guilty but commit him to an institution to be discharged on the recovery of his sanity. Code, art. 59, sec. 7. If, however, the party be found insane at the time of the trial so as to incapacitate him, the law, out of a just and compassionate consideration for his condition, will not try him of the crime charged by suffering a conviction to be received, but will stay the charge and await such time when his reason shall be sufficiently restored, so as not to prevent him from properly conducting or advising as to the conduct of his defence, although he may have been of sound mind at the time the alleged crime was committed. The reason for this rests upon weighty considerations, for who knows better than the party charged the facts and the witnesses that may establish his innocence, and these may be his solitary and incommunicable possession by force of his mental condition. It is indisputable that an insane person can not make a rational defence. Again, if a party commit a crime and thereafter and before trial become insane, the law, out of humanity, would not suffer a sentence to be imposed. So, whether he be sane or insane when the crime was committed, if found by the jury to be insane at the time of the trial, the court would ignore all but this verdict and, staying the trial until such time as the party has recovered his reason, commit him to such place as is best suited to his condition. Code, art. 59, secs. 7, 8. Archbold's Crim. Pl. Pr. (8th Ed.), vol. 2, p. 18. 1 Wharton Stille's Medical *Page 500 Jurisprudence (5th Ed.), secs. 204, 205, 207, 209; 1 Chitty,Crim. Law, 761 (star).
It is a necessary conclusion from the language and the object of the statute that, where the defence of insanity is set up by a party on trial under an indictment for a crime, the statute exacts a specific finding by a jury of the sanity of the accused at two specific points in time, and that if their verdict does not specially find him sane or insane with reference to both when the crime was committed and when the verdict is rendered, the verdict is fatally defective. The inquiry as to insanity is primary, and is not answered by the verdict of guilty or not guilty, since the statute demands a finding on the question of insanity, and because a verdict of guilty or not guilty can only have reference to the time of the crime, and therefore leaves undetermined the issue of the prisoner's sanity at the time of the verdict. As in the crime of murder it is indispensable for the jury to find the degree in order for the court to know what sentence or judgment may be given, so where, after indictment, the defence is taken on insanity, it is similarly made requisite by statute that the party's sanity both at the time of the alleged offence and of trial must be found by verdict before a sentence or judgment may be passed.
This construction is supported by authority. Gans' Digest ofCriminal Law, 88; Hochheimer's Criminal Law (1889), sec. 118, p. 114; Devilbiss v. Bennett, 70 Md. 554, infra. The statute now in force originated in the Act of 1826, ch. 197. In EvansHarris' Entries (1832), at pages 298 (31), 292 (11), will be found the verdict and judgment in a "prosecution in which insanity or lunacy is alleged by prisoner and found by the jury." The verdict runs "that the said A.B. did commit the offence charged against him in the said indictment, but that at the time of the commission thereof, the said A.B. was, and now is, insane (or lunatic), etc. This is the only form given, but it is the model by which a verdict according to the facts may be framed in compliance with the provisions of the statute. So, in Haddawayv. Smith, *Page 501 71 Md. 319, an examination of the record shows the special verdict mentioned in the decision to have been that the traverser at the time of the commission of the offence for which he is indicted was insane, and that he still is insane. And in Wagner v.Baltimore, 134 Md. 307, the docket entries in the record reads: "Not guilty by reason of insanity. Insane then and insane now." In Deems v. State, 127 Md. 627, the defence of insanity was interposed. During the argument of counsel for the traverser to the jury, he asserted that, in addition to the four forms of guilty or not guilty which were possible to be rendered under an indictment for murder where the defence of insanity is not made, the jury could find a verdict of not guilty by reason of insanity. The trial judge here interrupted, and stated that there could be only one of four verdicts rendered in the case and that he would instruct the jury as to their form. The case then proceeded, and went to the jury with the instruction from the court that the jury could bring in any one of these four verdicts: Guilty of murder in the first degree; second, not guilty of murder in the first degree, but guilty of murder in the second degree; third, not guilty of murder, but guilty of manslaughter; fourth, not guilty. The jury retired, and when it came out and took its place in the box, and before the verdict was taken, the counsel for the accused asked and obtained leave to except to the court's instruction as of the time it had been given. Thereupon the jury returned a verdict of guilty of murder in the first degree, and the prisoner was sentenced to be hung. On appeal it was argued by the State, and adopted by the two dissenting judges, that the defence of insanity was not withdrawn from the jury, as it was necessarily involved in the issue raised by the plea of not guilty, and that there was nothing in the record to show that the defence of insanity had not been fully presented, argued, and submitted to the jury. The three judges who concurred in Judge Urner's opinion held that the "natural and inevitable interpretation to be placed upon the court's interruption and objection when the prisoner's counsel was suggesting a verdict of `not guilty by reason of insanity' as a possible finding in the case and *Page 502 the subsequent exclusion of that form of verdict from those to which the jury was confined by the court's instruction," without anything in the record to qualify the significance of its action or to enable the court to say that it was not understood by the jury according to its apparent purpose, was that the court had instructed the jury that the defence of insanity was not to be considered. Pages 628, 629.
The decision in Deems v. State, supra, is clear authority that, where the defence of insanity is raised and competent evidence is introduced tending to support it, the issue of insanity vel non must be passed upon by the jury, and that a verdict of guilty of the crime charged does not so involve a finding of sanity as to make it a necessary implication that in declaring the accused guilty the jury had, also, found him sane. The present case would seem to come within the reasoning ofDeems v. State, supra, although the question here is not precisely the same, nor raised in the same manner. In the case at bar, the forms of verdict submitted differ from those in the Deems case only by permitting the jury to find whether the traverser was insane both at the time of the offence and at the time of the trial. It excluded a finding that the party was insane when the offence was committed but sane at the time of the trial; or that the party was sane at the time of the offence but insane at the verdict; or that the accused was sane on both occasions. Hence, in rendering a verdict of guilty of murder in the first degree in the case at bar, the jury found no verdict, as contemplated by the statute, on the issue of insanity; and, by ignoring this issue, its verdict was defective, and the court lacked jurisdiction to pronounce judgment. Supra. Without a specific verdict on the issue of insanity, there could be no valid sentence. To have avoided a mistrial the jury should have been sent back to return a verdict as to the insanity of the prisoner both at the time of the commission of the crime and of the verdict. After the jury was dispersed, it was too late for this to have been done or the verdict to have been amended.
The fact that the statute gives specific direction to the court, in section 7 of article 59 of the Code, as to the custody *Page 503 of the prisoner only in the event that the jury should "find by their verdict that such person was at the time of committing the offense and then is insane or lunatic," neither limits nor is in conflict with the mandate of section 6 that the jury "shall find by their verdict whether such person was at the time of the commission of the alleged offense or still is insane, lunatic or otherwise." The statute is not in derogation of the common law, but in its aid and so to be beneficially construed. And at common law, mental incapacity, even if supervening between the commission of the crime and the day of trial, operates as a stay whenever found to exist, and the party is remitted to custody until his incapacity be removed. Blackstone thus states the law: "In criminal cases, therefore, idiots and lunatics are not chargeable for their own acts, if committed when under these incapacities; no, not even for treason itself. Also, if a man in his sound memory commits a capital offense, and before arraignment for it he becomes mad, he ought not to be arraigned for it, because he is not able to plead to it with that advice and caution that he ought. And if, after he pleaded, the prisoner becomes mad, he shall not be tried; for how can he make his defence?" Book IV, pp. 24, 25, 395, 396; 1 Hale, Pleas of theCrown, 34, 35; 1 Chitty on Crim. Law, 761; 1 Russell onCrimes, 29; 1 Hawkins, Pleas of the Crown, c. 1, s. 4, note (5). So, the common law practice would prevail, if sections 8 and 10 of article 59 of the Code are not broad enough to cover the case of a prisoner indicted and found by the jury to be unable to make a defence by reason of insanity supervening between the time of the offence and his trial. Bishop on Crim. Law (9th Ed.), sec. 396 (2).
On the fatally incomplete verdict given in the appeal at bar the trial court had no jurisdiction to proceed to a judgment, which, being a nullity, is no bar to a second trial, and the judgment entered should be reversed and the case should be remanded for a second trial under a writ of venire facias denovo. Wharton's Crim. Pl. Pr. (8th Ed.), secs. 751, 757; Fordv. State, 12 Md. 514; State v. Flanigan, 6 Md. 167; Williamsv. State, 60 Md. 402. Bishop's New Crim. *Page 504 Proc., sec. 666 (2); and because the act of 1826, ch. 197, is an adaptation of 39 and 40 George 3, ch. 94, compare Reg. v.Berry, L.R., 1 Q.B.D. 447; Queen v. Goode, 7 Ad. El. 536, 112 Eng. Rep. 572; Ex parte Emery, L.R. [1909], 2 K.B. 81;Felstead v. Rex, L.R. [1914], A.C. 534; Rex v. Lee Kun, L.R. [1916], 1 K.B. 337; Rex. v. Pritchard, 7 C. P. 303, 173 Eng. Rep. 134; Ley's Case, 1 Lewin, 239; Dyson's Case, 1 Lewin, 64, 168 Eng. Rep. 1026, 960.
The certificate of the trial court contains the statement that the forms of verdicts submitted by the court to the jury were the customary ones in the criminal courts of Baltimore City. But usage can not control when the words of the statute are not doubtful or ambiguous but plain. A mistaken general interpretation at nisi prius cannot alter the clear and definite meaning of statutory law. Sutherland on Statutory Law, secs. 307-309; Endlich on the Interpretation of Statutes, sec. 361; Smith v. State, 134 Md. 473, 380; Arnreich v. State,150 Md. 91, 105, 106.
For the reasons assigned, the judgment must be reversed, and the case remanded to the end that a venire de novo may issue.
Judgment reversed and a venire de novo awarded.