As I understand it, there is agreement among the members of the court who sat in this case that no reversible error is to be found in the adjudication of the question of guilt or innocence of the accused. So far as can be seen from the exceptions and the portions of the record of trial proceedings brought to this court, he was lawfully found guilty of murder in the first degree. And that finding necessarily negatived any defense on the ground of insanity. The defendant, in point of fact, urges only the existence at the time of the homicide of a temporary mental disturbance which left him without the premeditation or malice necessary to a finding of *Page 505 murder in the first degree. But the majority of the court have concluded that the adjudication of guilt should be reversed, and the whole case tried a second time, because of a failure of the jury to add to their verdict of guilty a special finding on the sanity or insanity of the accused at the time of the homicide and now; and I dissent from that conclusion. As it appears to me, this is suddenly placing a novel construction on a very old statute, and a construction which is not justified, overturning a long settled practice on the contrary construction, adding to criminal trials complications which could not have been intended by the Legislature, adding them with no advantage to be gained by it, and doing this of the judges' own initiative, without having had the point raised below or suggested in this court.
From a brief investigation made since the point had been raised, it appears that the statute cited for this, now Code, article 59, sec. 6, and originally the Act of 1826, chapter 197, was one of several statutes adopted in the United States early in the last century, following the example of the English Criminal Lunatics Act, 39 40 Geo. III, chapter 94. That English statute was passed after the acquittal and discharge on the ground of insanity of Hadfield, who in 1800 had attempted the life of the king; and it was designed to avoid for the future the necessity of turning loose upon the community a lunatic of dangerous tendencies, when the condition and danger were revealed on trial for a particular crime. Buswell, Insanity, 462. Carr, Trial ofLunatics, 9; 1 Russell, Crimes, 29. The American statutes, as a rule, at least, have likewise been concerned only with disposal of lunatics charged with crime. That is the need to be met. And in Maryland, too, it has been widely assumed up to this time that the statute with which the majority opinion deals was concerned only with the disposal of criminal lunatics. And it seems to me that there is no sufficient reason for saying now, at this late date, that it was concerned with anything else. Referring always to article 59 of the Code, section 6 is expressed in broad, and, in some degree, inappropriate words. *Page 506 When a person indicted for any crime "alleges" insanity in his defense, the trial jury is to find by their verdict whether he "was at the time of the commission of the alleged offense or still is insane." In our practice persons indicted for crimes never "allege" a defense of insanity, within the ordinary meaning of that word, or within the apparent meaning of it in the statute. And the word or, italicized above, should evidently read and, for the use of the words following, still is, implies a finding on previous insanity as well as that on present insanity. There would seem to be no likelihood of a purpose to give the jury a choice of times as of which mental condition should be found. I take the direction of the statute to be, then, to find whether the accused was and is insane. And it seems to me clear enough that all that is desired, and demanded by the statute, is that if a person tried for any crime is acquitted on the ground of insanity, that fact shall be specially stated, and it shall then be stated, also, whether the accused is still insane so that he may need to be confined. The one and only finding which is taken by the statute as the basis of any action by the court is just this finding of insanity at the time of the homicide and now. "If," says section 7, "the jury find by their verdict that such person was at the time of the commission of the offense and then is insane," he shall be confined. So Judge Miller, in Devilbiss v. Bennett, 70 Md. 554, 556, thus stated the effect of the statute when there has been an indictment: "The provisions are, first, that when any person indicted for a crime or misdemeanor shall allege insanity or lunacy as a defense, the jury impaneled to try him shall find by their verdict whether he was at the time of the commission of the offense, or still is, insane, lunatic or otherwise, and if they find that he was and still is insane or lunatic, the court shall cause him to be sent to the almshouse * * *" No possible finding other than this or insanity then and now would call for any action, subserve any purpose of the law, or render any action desirable. All other forms of verdict on the issue of guilt will, I think, be found to have their full, proper effect, with any mental conditions, without the aid of statutory additions. Added *Page 507 findings on mental condition would be findings of no consequence. On the face of the whole statute, therefore, it seems to me the construction now promulgated is not well founded.
The argument that it may have been the purpose of the statute to require a special finding to establish jurisdiction in the court to proceed with the trial seems to me to lack plausibility. Would the right of a court to try a case be made dependent upon a finding reached at the end of the trial and by means of the trial? The law is not dealing with a court of special jurisdiction, the foundation of which might need to be shown affirmatively. And if it were, jurisdiction is not shown by any special finding on mental condition, for jurisdiction is not made dependent upon such a finding. On the contrary, this very section 6 takes the trial on the issue of guilt or innocence as a means of determining, along with the verdict on that issue, the facts desired on mental condition. Assuming the crime to have been committed within the geographical limits, the court has full power and jurisdiction to try a man who may in the end prove to be, in the opinion of the jury, insane now. The jury's finding of insanity now, so reached as a result of trial, would be a perfectly well-founded, valid one, and the trial would not be nullified by it. On the contrary, the finding would merely give the court an additional duty, as under the English and other statutes, to order the man confined. Section 7. It might be said that not only does jurisdiction not depend upon the additional finding one way or the other, but it produces the finding.
And in what could a jurisdictional question be found? It would be agreed, I take it, that if the accused should be conceded to be sane at the time of trial, there would be no question of jurisdiction of the court to try him, though he makes a defense on insanity at the time of the crime. And the only question which might possibly need to be decided to determine the rightfulness of going through with any trial would be the question whether the man is in a mental condition to go on. But that question would seem to be no more jurisdictional than a question whether a man is physically fit to go on, or whether he is too sick. Whether the particular defendant *Page 508 is fit, or whether because he is unfit the trial should be deferred until he becomes fit (sections 6 and 8), is, so far as the court has anything to do with its determination, a question of administration such as a busy court decides every few days in the exercise of its jurisdiction over defendants indicted and brought before it. It is to be borne in mind, however, that when, before or during trial, any question arises of mental capacity of a particular defendant to proceed, the prescribed method for determining that capacity is not the trial itself. Under section 8, when any question arises of the capacity of the accused to conduct his defense or advise on its conduct, the question is referred to the Board of Mental Hygiene and settled by it. I am under the impression that it was stated in the oral argument in this case that such action had been taken with respect to Price, but the point did not appear important at the argument, and this impression may be wrong. It remains that the action may, for all the court knows, have been taken with respect to Price, that he may have been examined, and his capacity to go on with trial ascertained in the manner prescribed by law before the court proceeded. And if that has been done, what question of jurisdiction in the court to proceed could possibly remain? The record brought up does not contain any facts on this.
It is in every jurisdiction under the common law, so far as I can find, and apparently has been in Maryland generally until the present decision, passed as unquestioned that a court of law has full jurisdiction to try a criminal case in which a defense of insanity is interposed, whatever may be the verdict in the end, whether it does or does not find the defendant to be insane now. It is a jurisdiction the assertion of which has been made familiar, and even notorious. And it is notorious, popularly as well as professionally, that verdicts of guilty involve defeats and rejections by juries of defenses of insanity. That may surely be regarded as the common acceptation of verdicts of guilty. And no findings on insanity have been considered as necessary to be added to make that effect manifest. And it seems to me too unlikely to be accepted as true that the Maryland statute has required *Page 509 special verdicts on sanity or insanity to be added, and especially unlikely that this has been required without its having been perceived by judges and attorneys of preceding times.
In trials in the criminal courts of Baltimore City, which for some time has meant in more than two-thirds of the criminal cases in the State of Maryland, and trials in which some able and careful judges have presided, it has been the practice for a long period of years to have no verdicts refer specially to sanity or insanity except verdicts of not guilty by reason of insanity, with insanity now. "Not guilty by reason of insanity. Insane at the time of the commission of the offense and insane now." And, as we know, in a court in which cases of a given kind arise with any frequency, such a settled form is likely to have been followed continuously since the form was studied out. Never, I suspect, has it been thought that the statute cited now required a verdict of guilty to have added to it any special finding on sanity, as the present decision requires. And the previous practice has proved to be a simple one, has worked satisfactorily, and met all needs in cases during the experience of one generation, at least, and probably during a much longer experience. Information available seems to indicate a similar practice in trials in the counties, with the exception of those in the Fifth Circuit in recent years. In Spencer v. State,69 Md. 28, from Allegany County, in Watts v. State, 99 Md. 30, from Harford County, and in Deems v. State, 127 Md. 624, from Baltimore County, all cases in which defenses on the ground of insanity were attempted, no fault was found with verdicts of guilty of murder in the first degree without more. In theSpencer case the attempt was not supported by legally sufficient evidence, but we are not interpreting the statutory "allegation" of insanity as existing only when it is proved. TheDeems case is regarded as giving support to the present majority view, but it decided only that a defendant was, upon his request, entitled to have a form of special verdict for a finding of not guilty by reason of insanity submitted along with other possible forms supplied by the court. The form of verdict of guilty, without any reference to insanity, appears to have *Page 510 been accepted without comment as unobjectionable. Judge Urner, who wrote the opinion in the Deems Case, concurs in the conclusion that it did not hold that the verdict needed special findings on insanity to be added to it. These three cases were all cases of murder, and the only reported relevant cases found. Cases of lesser crimes, I have not investigated. Certainly in the murder cases cited, the verdicts of guilty without reference to insanity did not appear unusual and objectionable to the eighteen of our predecessors who sat in the cases in this court, or to the five judges who sat in them below There should be something more than hesitation, I think, to reject this conception of an old statute and practice under it which our predecessors held. The entertainment of a contrary view by a majority of judges holding court at one later term, seems hardly sufficient ground for change. Moreover, a practice which has been tested by a long and varied experience and proved sufficient for the needs has a better foundation than is possible for a contrivance of men at any one time, and for that reason should not be discarded except under the command of a new legislative enactment. Baltimore v.State, 15 Md. 376, 457.
That the present construction adds complications to criminal trials will readily be seen. For, if that construction is given its full effect, whenever an effort is made to defend on the ground of insanity upon any criminal charge in the scale of possible charges, from murder down to disorderly conduct, the verdict, whatever it may be, must have added to it special findings on the mental condition of the accused. Once we deny that the requirement is limited to verdicts of not guilty by reason of insanity, there is no stopping short of a requirement that every possible form of verdict shall have the findings added. Juries, as well as judges who sit on the facts, must add these findings. If judges attempt to aid juries by supplying them with forms of possible verdicts, as they have commonly done in the past, then, having to anticipate findings each way on any possible verdict, they must give tables of forms which would seem likely to bewilder a jury. In a trial for murder, for instance, in which ordinarily any one *Page 511 of five forms of verdict on the issue of guilt or innocence is possible, the addition of special findings each way on mental condition at two points of time, at the time of the homicide and now, would require a table of twenty forms of verdict in all. And in trials on indictments of many counts on lesser charges, I believe a still greater number of forms might be required. Yet from all these, except the form needed for action under section 7 of the statute, not guilty by reason of insanity then and now, there would be no advantage, because none of them would be the foundation of any action by the court.
With all the chances of error which such a requirement must open up, with any omission in the combined verdict adopted now fatal to the trial on the question of guilt or innocence, a convicted defendant is permitted to bide his time, make no objection to a defect until after amendment is no longer possible, and then come before this court and have his conviction, however just and lawful it may be in itself, set aside and annulled. Never before, I believe, has this been permitted — at least not since the Act of 1825, now found in the Code, art. 5, sec. 10. All objections to verdicts have been required to be made in the court below, by motion in arrest of judgment or otherwise. Absurd verdicts, or verdicts so incomplete that the next step in the trial court cannot be taken, such as a verdict of guilty of murder which does not fix the degree, seem not to afford exceptions to this practice, because those verdicts could not be proceeded upon below, and could hardly come before this court. The statute, Code, art. 5, sec. 10, and the fourth rule of this court, which "most emphatically prohibit" this court from deciding any point or question which does not plainly appear by the record to have been tried and decided below, has been treated as a safeguard against such action. Davis v. State,39 Md. 355, 386; Mitchell v. State, 82 Md. 527, 532; Munshower v.State, 56 Md. 514, 518; Novak v. State, 139 Md. 538, 541;Moore v. State, 149 Md. 298. No question whatever of the validity of the verdict of guilty as it stands has been raised in this case during the trial below or during argument in this court. There *Page 512 has been no objection at all to the form of verdict. And the objections to the judgment are all objections to steps in the proceedings before verdict rendered, and have touched on the form of verdict only in that the form of not guilty by reason of insanity and insane now, supplied to the jury upon the application of counsel for the accused, and without objection by him, is thought to have obstructed in some way an argument for a verdict of no more than guilty in the second degree. Counsel have not argued that a verdict of guilty should have had any findings on mental condition added to it. The case on that point must be, I think, foreign to the conceptions of counsel for both sides and the court below, and must be one of which they will receive their first intimation upon the filing of these opinions.