State v. Flannigan , 6 Md. 167 ( 1854 )

Tuck, J.,

delivered the opinion of this court.

In the case of the State vs. Sutton, 4 Gill, 494, the Court of Appeals, quoting from 1 Chit. Crim. Law, 641, said; “With respect to the form in which a verdict should be given which thus partially convicts and acquits, it has been holden that it ought to find specifically not guilty of the higher, and guilty of the inferior charge, and that if it merely find the defendant guilty of the inferior offence, it will be of no avail.” Chitiy refers for this principle to 1 Anderson, 103, 104, and Hawkins cites the same authority. We have examined the case in Anderson and find that the court expressly held, that a verdict of manslaughter would be erroneous if there was no finding on the charge of murder. There are cases which state, in general, that the accused may be convicted of manslaughter on an indictment for murder, without saying any thing as to the necessity of giving an express veidict as to the murder, but Chitty shows the practice in England was for the juries to say, “not guilty of murder, but guilty of manslaughter.” Hawkins’ Pleas, 620, (Ed. 1824.) 1 Chit. Crim. Law, 641, 642. A different practice, we understand, has prevailed in some of the judicial districts of this State, and this would seem to be consistent with the reason of the case, because, where an issue is joined on a single count in an indictment 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. Though this was not the precise point in State vs. Sutton, where the indictment contained two counts, and the jury gave their verdict only on one, yet wdren the Court of Appeals, with the authorities before them, have so clearly recognized the special mode observed in England as the proper practice, we should respect their opinion, especially where, as in this case, the judgment appealed from was rendered in accordance with ■such exposition of the law, leaving the legislature, if the change be deemed important, to prescribe another form for taking the verdict.

It is .not clear that this ruling of the court is before us on this writ of error, there having been no final disposition of the case below. The party was not discharged, as in State vs. Sutton, but held for a new trial. Under the circumstances, however, we have deemed it proper to express our views on the point presented by the record, without finally deciding whether a writ of error will lie in such cases. To, prevent this case being relied on hereafter in affirmance of the right the present writ will be quashed, the .effect in the particular case being the same as if the judgment were affirmed.

Writ of error quashed,