Lorenzo Price was indicted, tried, and convicted in the Criminal Court of Baltimore City of the crime of murder in the first degree and upon his conviction sentenced to be executed.
At the conclusion of the trial, just before the case was given to the jury, counsel for the defendant requested the court to "state to the jury the forms of verdict." In response to that request the court permitted the jury to have a typewritten paper containing the forms of several verdicts, one of which they might return. The last form was "Not guilty by reason of insanity. Insane at the time of the commission of the offence and insane now." Counsel for the defendant criticised that form, but although told by the court that if he objected it would not be given to the jury, finally said, "Let the jury have it."
Except for such inferences as may be drawn from the fact that that form was included in the list of possible verdicts which the jury were told they might return, there is nothing in the record before us tending to prove that insanity was ever alleged as a defence in the case. *Page 513
Counsel for Price in his argument in this court did assert (Brief, p. 15) that there was before the jury evidence sufficient to justify "the jury in finding the mind of the appellant so far impaired at the time of the commission of the offense that he could not form the wilful, deliberate and premeditated purpose to take life as to constitute the offense murder in the first degree; and that so finding, the verdict of murder in the second degree would have been proper." But not only is there no evidence in the record before us to justify that assertion, but even if there were, it would not amount to an allegation of insanity. For insanity to constitute a defence to a charge of crime must be such a derangement of the mental faculties or want of mental power as will make it impossible for the accused to understand the nature or quality of his act, to resist his criminal impulses, or to know that his act is wrong.
If therefore one is sane enough to be responsible for one crime, he is necessarily sane enough to be responsible for another, and one who is sane enough to commit murder in the second degree must at the same time, by force of the same rule, be sane enough to commit murder in the first degree. And an allegation that the accused as a result of passion, fear, jealousy, love, hatred, or even mental weakness, was incapable of the deliberate and premeditated malice which is an essential ingredient of murder in the first degree, does not amount to an allegation of the kind and degree of insanity which can be accepted as a defence to a charge of crime, unless it also imputes a mental condition which prevented the accused from knowing the nature and quality of his act, or if he did know that, from knowing whether it was right or wrong. 1 Wharton Stille, Med. Jur., secs. 163, 177.
But while it does not appear from the pleadings or so much of the evidence as appears in the record that insanity was alleged as a defence to the indictment, yet it may possibly be inferred from the court's action in instructing the jury as to the form of verdict on that issue, that it was so raised.
Assuming, therefore, for the argument, that it was in the case, then section 6, article 59 of the Code, that "When any *Page 514 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," applied.
If it was an issue, then the court's instruction to the jury as to the several forms of verdicts which they might return was manifestly incomplete and erroneous, as in effect it told them that insanity was not a defence unless it existed both at the trial and at the time of the offence. In other words, under the instruction, even though the jury believed the accused to have been insane at the time of the offence, they could not, on the only form dealing with that issue, acquit him on the ground of insanity, unless they found that his insanity continued to and existed at the trial. The statute, of course, did not mean that, nor did it say that, and the jury should have been told that, if they found that the accused was insane at the time of the offence, they were empowered to return a verdict of "not guilty by reason of insanity at the time of the offence." Whether he was sane or insane at the time of the trial was a collateral and an independent fact, having no necessary connection with his guilt or innocence, but which the jury were authorized to decide, not as bearing upon that issue but for the guidance of the court in disposing of the accused.
But while the instruction was erroneous, this court has no power to set aside the judgment and sentence on that ground for the following reasons: (1) Because the accused by his counsel assented to the instruction. (2) Because the court was not asked to rule and did not rule on the question as to whether the jury should be so instructed. (3) There was therefore no exception to any action of the court in respect to it, and (4) Under the procedure established by its rules, its decisions, and the statute, this court can not consider any question not raised in the trial court. Rule No. 4; Hamilton v. State, 127 Md. 313; Code, art. 5, sec. 10. But conceding so much, it is nevertheless contended that the verdict was so faulty and incomplete that the trial court had no power or *Page 515 jurisdiction to enter a judgment on it, because it failed to find specifically whether the accused was at the time of the offense, or was at the time of the trial, "insane, lunatic or otherwise." And that view is accepted in the able and brilliant opinion of Judge Parke, speaking for the majority of this court.
That conclusion necessarily rests upon two propositions which I am unable to accept: (1) That the purpose and effect of the statute is to deprive the jury in criminal cases, where insanity is alleged as a defence, of the power to return a general verdict, and (2) that the Legislature itself had the authority thus to limit the power of a common law jury.
So much of the present law as deals with the functions of a jury in cases where insanity is alleged as a defence to crime is in substance identical with that part of section 1, chapter 197, Acts 1826, which deals with the same question.
The older statute refers to a "crime or misdemeanor"; the present statute adds the word "offence"; the older statute applied where the accused "sets up or alleges" insanity as a defence, while the present law applies to cases where the accused "shall allege insanity * * * in his or her defence." Except for these trifling differences in phraseology, the old and the present statutes are in respect to this question the same. Both the original and the amended statutes provided that, if the jury found that the accused was insane at the time of the offence "and" insane at the time of the verdict, that the court might commit him to some appropriate place of detention. Its obvious and single purpose was to protect the public from the insane impulses of dangerous lunatics who might be acquitted of charges of crime committed while insane, by empowering the courts trying the cases to commit such persons until it should satisfactorily appear that their reason had been restored. Such an inquiry was wholly collateral to and independent of the guilt or innocence of the accused, which depended upon his mental condition at the time of the crime and not upon his mental condition at the time of the trial. And that seems to have been the construction placed upon the statutes not only by the courts of Baltimore *Page 516 County and Baltimore City from time immemorial, but by the Legislature itself, when by chapter 699 of the Acts of 1916, it authorized the court of its own motion to order at or prior to the trial an examination of the then mental condition of any person charged with a criminal offence cognizable by such court. The plain purpose of the statute was not to protect the accused, for he was already protected by the settled law that, if insane at the time of the offence, he could not legally be convicted thereof, but to protect the public from the menace created by permitting one, acquitted of a criminal offence on the ground of insanity and who still was at the time of his acquittal insane, to be at large. In my opinion, it was never intended that where the jury found a general verdict of guilty of the offence charged, they were required also to affirmatively find that the accused was sane at the time of the offence, for such a verdict necessarily also determined that question. Nor were they obliged to find in such a case that he was sane at the time of the trial, because the verdict of guilty itself placed the accused in the custody and under the control of the court, and the presumption arising from the verdict would be that, as the accused was sane at the time of the offence, he was also sane at the time of the trial.
Any different construction would not only mean that for more than a century the profession in a large part of the state has been mistaken in its interpretation of the statute, but that in many courts of the state through that period many persons have been illegally convicted of criminal offences, and without sufficient warrant of law have been subjected to penalties imposed in consequence of such convictions. And I personally am unwilling to accept the view that so many of the able and conscientious lawyers, who on the bench and at the bar have administered the law in this state since 1826, have been guilty of error so injurious and so tragic.
Moreover, I very seriously question the power of the Legislature to require juries in criminal cases to find special verdicts. *Page 517
Article 15, § 5, Const. of Md., provides that in all criminal cases the jury shall be "the judges of law, as well as of fact." That provision has been given a construction so narrow and literal as to deprive the courts of any power to supervise or control the interpretation of the law, statutory or common, by juries in criminal cases. Franklin v. State, 12 Md. 236;Wheeler v. State, 42 Md. 570; Broll v. State, 45 Md. 356;Bloomer v. State, 48 Md. 538; Bell v. State, 57 Md. 108;Balto. York Turnpike Co. v. State, 63 Md. 573; Beard v.State, 71 Md. 275; Goldman v. State, 75 Md. 612; Jules v.State, 85 Md. 312; Esterline v. State, 105 Md. 636; Rasin vState, 153 Md. 432; Diebert v. State, 150 Md. 695; Klein v.State, 151 Md. 489; Newton v. State, 147 Md. 87.
The result has been to establish a system of criminal procedure in this state which is unique (see general discussion, Sparf v.United States, 156 U.S. 64). Under the construction uniformly given this section of the Constitution, the courts have no inherent power, nor can the Legislature confer the power upon them, of finally deciding any question of law in a criminal case tried by a jury.
If that is so, it seems to follow that the Legislature can not deprive juries of the power to render general verdicts which answer every issue of law or fact involved in criminal cases tried by them. It may have the power to require such juries to decide, in cases where the accused is acquitted on the ground of insanity, whether at the time of the trial he still is insane, not as a part of the issues in the criminal case but as collateral thereto. But the failure of the jury to respond to such an issue can have no effect on the validity of a general verdict of guilty, because such a verdict necessarily assumes the sanity of the accused at the time of the offence.
That question was not involved in the Deems Case,127 Md. 627, because that case was reversed on the ground that the trial court not only exceeded its power in peremptorily instructing the jury at all, but because its instruction was erroneous. *Page 518
Nor is there any analogy apparent to me between such a case as this, and cases where the verdict of the jury failed to find what crime the accused had committed, as where the jury found him guilty of murder without stating whether in the first or second degree.
For as murder in the first degree and murder in the second degree are distinct offences, such a verdict was necessarily as meaningless as though it had found that the accused had committed "some crime, but what crime the jury cannot say."
For these reasons I have some doubt as to the power of the Legislature to enact a statute which would have the effect given this statute by the majority opinion.
Being of the opinion indicated by these expressions, I have felt constrained to dissent from the views of the majority. And while I fully concur in the very elaborate and careful opinion by Judge Bond, I have deemed it proper in a case of this character to add to what he has said this statement of the reasons for my dissent.