Bowie, J.
delivered the opinion of the Court.
The errors assigned as grounds for the reversal of the judgment below, by the plaintiff in error in this case, may be classified as follows:
First. Omissions of material averments in the indictment, necessary to show that the crime with which he was charged was murder in the first degree under the Code of Pub. General Laws.
Secondly. Averments in the record showing the Court below bad no jurisdiction..
Thirdly. Assuming the indictment, verdict and judgment, are held to be good under Art. 30, secs. 137 to 145, [371]*371of the Code of Public General Laws, then those sections are unconstitutional and void.
There are five specific objections to the form of the indictment.
1st. The indictment does not, with legal sufficiency, allege any kind of wilful, deliberate and premeditated killing, which is murder in the first degree under the law of the State of Maryland.
2d. The indictment does not allege that the killing set forth therein, was wilful, deliberate and premeditated.
3d. The indictment does not allege, in the description of the offence therein contained, that the killing alleged was wilful, deliberate and premeditated.
4th. The indictment does not allege that the blow in said indictment set forth, whereby a mortal wound is alleged to have been inflicted, was struck wilfully, deliberately and premeditatedly.
5th. The indictment does not allege that said blow was struck wilfully, deliberately, and premeditatedly, with a design thereby to produce death.
These are all based on tit e same premises, and may he reduced to one, viz., that the indictment does not charge the plaintiff in error, with the crime of murder in the first degree, as defined by the Code of Pub. Gen. Laws, and therefore the jury could not convict him of such crime.
These objections are said to be founded on the first principles of the common law, which require, that in an indictment, all the facts and circumstances constituting the offence, must be specially set forth. If any fact or circumstance, which is a necessary ingredient of the offence be omitted, such omission vitiates the indictment; and not only must the facts and circumstances which constitute the offence be stated, but they must be stated with such certainty and precision, that the defendant may be enabled to judge whether they constitute an indictable [372]*372offence or not, in order that he may demur or plead to the indictment, and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.
These cardinal rules, the plaintiff in error contends have been violated in this case, because, since, the Code, Art. 30, sec. 137, declares “all murder which shall be perpetrated by means of poison, or lying 'in wait, or by any kind of wilful, deliberate and premeditated killing, shall be murder in the first degree,” and by sec. 142, declares “all other kinds of murder shall be deemed murder in the second degree:” — the principles of the common law and of natural reason and justice, which are inherent in the case, require the indictment for murder, where the statute divides it into two degrees, should, if murder in the first degree is meant to be proved against the prisoner, contain those allegations, which show the offence to be in this degree.
This proposition is not supported by any well considered authority that has been cited, but seems to us opposed to the axioms of criminal pleading announced by the most esteemed writers on English Criminal Law, and modern American authors, with one or two exceptions.
“An indictment grounded upon an offence made by Act of Parliament, must by express words bring the offence within the substantive description made in the Act of Parliament, and those circumstances mentioned in the statute to make up the offence, shall not be supplied by the general conclusion ‘ contra formara statuti. ’ ”
And so it is, if an Act of Parliament oust clergy in certain cases, as murder “ ex malitiaprecogitata,” etc., * * though the offences themselves were at common law within clergy, they shall not be onsted of clergy, though convicted, unless these circumstances “ex malitia precogiiata,” etc., be expressed in the indictment. 2 Hale’s Pleas of the Crown, 170. The reason of these rules is [373]*373apparent on their face; in the one case, the crime is created by statute, in the other, the punishment is increased.
If the circumstances which constituted the crime, or increased the punishment, were not set out in the indictment, the accused would not be informed of the offence with which he was charged, or of the penalty to which he was liable. These reasons do not apply to a statute, neither creating an offence nor enhancing its penalties, but dividing a common law offence into degrees and diminishing the punishment. The essential elements of all felonies at common law, such as murder, arson and robbery, have been ascertained and defined by innumerable decisions, and are expressed with legal certainty by certain technical terms, which have been engrafted upon our jurisprudence for centuries.
These terms are incorporated into our language as expressing “per se” the crime they designate, and when used in our statutes, have a legal meaning when not otherwise qualified. 1 Whar. Cr. L., 930. Thus, the Act of 1809, ch. 138, entitled, “An Act concerning crimes and punishments,” codified in Art. 30 of the Code of Public General Laws, adopts the nomenclature of the common law for the catalogue of crimes enumerated therein, without attempting to define what constitutes those crimes.
In the preamble of the Act it is recited, “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, 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, etc., 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, [374]*374if 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 witnesses to determine the degree of the crime, and to give sentence accordingly;”
“Murder” is here recognized as a general denomination, including offences differing from each other in their degrees of atrocity, but not in their nature or kind ; no attempt is made to explain or modify its meaning or abridge its range. Its common law sense is left unimpaired; the measure of punishment only is sought to be graduated according to the circumstances under which it was committed.
The mode of distinguishing its degrees is specially prescribed, by requiring the jury, if the person indicted for murder shall be tried, to “ascertain in their verdict whether it be murder in the first or second degree,” or if the “person be convicted by confession, the Court shall proceed by examination of witnesses to determine the degree of the crime and to give sentence accordingly.” This Act of Assembly, now codified, does not create a new crime; it neither adds to nor diminishes the class of cases which constituted murder at common law; nor does it increase the punishment.
When, therefore, a person is indicted for murder, in the technical language of the common law, he is charged with a crime, which in its proper sense, includes all circumstances of aggravation, and as all minor degrees are included in the major, he is liable to be convicted of the inferior, as well as of the higher grades of that offence, and vice versa.
■ The accused is -advertised by the indictment for murder, that he is to be tried for a capital offence, and no language can convey more certain and precise information of the nature of the offence, than that employed by the forms of the commou law, as uniformly interpreted.
[375]*375The description of the crime by its general designation does not render uncertain that which was before certain, so as to throw the prisoner off his guard, or deprive him of any defence. On the contrary it tends to his security, by preparing him for the worst, as “to be fore-warned is to be fore-armed.’''
The express object of the statute in dividing the crime into degrees, was the mitigation of the punishment in cases of the second degree.
The mode prescribed by the Code to ascertain the degree, shows beyond all doubt there was no design in the framers of the law to change tiie form of pleading.
If, as argued by the counsel for the plaintiff in error, the circumstances which determined the degree should be averred in the indictment, then a general verdict of guilty in the case of the trial, or a general plea of guilty, in case of confession, would have established the degree and determined the punishment; but the provisions of the Code, that the jury in the former case, “ shall, if they find such person guilty thereof, ascertain in their verdict, whether it be murder in the first or second degree,” or in the latter, that the Court shall proceed by examination of witnesses to determine the degree, shew the degree of murder depended on the proof, and not on the pleading. On any other hypothesis the provisions of the Code in that respect, are unmeaning and useless.
The construction of those sections of the Act of 1809, ch. 138, relating to the degrees of murder, by this Court, in the case of Weighorst vs. The State, 7 Md., 442, although not directly upon the point, confirms the view we have already expressed. The prisoner was indicted for the murder of his wife, and found guilty of murder in the second degree, without acquitting him of murder in the first degree, or manslaughter. A motion was made in arrest of judgment, on the ground that the jury had not passed on all the issues in the cause; in other [376]*376words, that the verdict did not cover all that was involved in the issue. The counsel for the plaintiff' in error contended that the Act of 1809, ch. 138, speaks of murder in the first degree, and of murder in the second degree, as separate and distinct offences; that manslaughter, murder in the second degree, and murder in the first degree, are all degrees of homicide. In every such indictment, therefore, homicide is the subject charged, and murder in the first degree, or murder in the second degree, or manslaughter, is the result. Every such indictment, therefore, presents to the jury, three separate issues.
On the other hand, the State contended that the Act of 1809, ch. 138, sec. 3, does not alter the crime of murder as it is known at the common law, referring to State vs. Dowd, 19 Conn., 391.
This Court taking up this point (by Tuck, J.) remarked : “The motion in arrest of judgment, is founded on the supposition, that the verdict should have acquitted the party of murder in the first degree, and of manslaughter ; but we do' not understand the latter feature of this motion to be relied on. Where there is but one count, the inferior grade of the offence need not be passed upon by the jury. It is sufficient if the finding cover the indictment, and we agree that the present case must be decided according to this rule. Weighorst was indicted for the crime of murder, not for having committed a homicide. Upon this charge he was convicted, and the jury, in obedience to the Act of 1809, ch. 138, ascertained the degree of that crime. This verdict, though not subjecting him to the severest penalty, found him guilty of murder, the crime alleged against him. The Act of Assembly does not create a new offence in distinguishing between murder, of the first and second degree. The design was to ' discriminate in awarding the punishment. The supposed aaialogy between a conviction of manslaughter and of [377]*377murder in the second degree does not exist. Manslaughter is a different crime from murder. Although both are within the general term homicide, yet, legally speaking, they are not different degrees of the same offence, because one is not murder at all, and hence, a verdict merely convicting the accused of that grade of homicide, would leave the crime charged in the indictment, wholly unnoticed, in disregard of the nature and end of pleading, and of the duty of the jury to pass upon the issues as framed. Besides, if the Act of Assembly created a new offence, it would be necessary, where a party is convicted of manslaughter, under a count for murder, to acquit of both degrees of murder, but this is never done.”
“it is sufficient in such cases to say, not guilty of the murder, without negativing each degree of that crime. Again, the Act does not authorize the accused to plead guilty of murder in the second degree. If he confesses at all, he must plead to the indictment for murder, and it is then made the duty of the Court ‘by examination of witnesses, to determine the degree of the crime, and to give sentence accordingly.’ It is true the Act does, in awarding punishment, speak of the crime of murder in the second degree, as if creating an offence before unknown to our laws ; but we think this single expression, must yield to the object and design of the Act as indicated by its other sections.”
To this lucid exposition of the Act of 1809, ch. 138, and its effect upon the forms of pleading in criminal cases, may be added the opinion of the Supreme Court of Pennsylvania, delivered by Tilghman, C. J., in the case of White vs. The Commonwealth, brought upon a writ of error. Among the errors assigned, it was objected to the indictment that the offence was not charged with sufficient certainty, and that it did not conclude “ against the form of the Act of Assembly.”
The question presented was not directly in the form of the objections now before us, yet, the same principles of [378]*378construction were involved, and to arrive at the conclusion announced in that case, as in Weighorst’s it was necessary to determine the effect of the statute of Pennsylvania, which in respect to the crime of murder is almost identical with ours on the frame of the indictment. After stating the substance of the indictment, the learned Judge proceeds; “Where a statute creates an offence the indictment must charge it as being done against the form of the statute. But where the statute only inflicts a penalty upon that which was an offence before, it need not be laid to be against the form of the statute, because in truth, the offence does not violate the statute. That this is the rule, was decided in the case of the Commonwealth vs. Searle, 2 Binney, 339. The only question then will be, was murder of the first degree an offence created by Act of Assembly ? This depends on the second section of the Act “ for the better preventing of crimes” passed 22d April, 1794. * * * *
“Eow this Act does not define the crime of murder, but refers to it as a known offence ; nor so far as concerns murder in the first degree, does it alter the punishment, which was always death. All that it does, is to define the different kinds of murder, which shall be ranked in different degrees, and be subject to different punishments. It has not been the practice since the passing of this law, to alter the form of indictments for murder in any respect; and it plainly appears by the Act itself, that it was not supposed any alteration would be made. It seems taken for granted, that it would not always appear on the face of the indictment, of what degree the murder was, because the jury are to ascertain the degree by their verdict, or in case of confession, the Court are to ascertain it by examination of witnesses. But if the indictments were so drawn as plainly to show that the murder was of the first or second degree, all that the jury need do, would be to find the prisoner guilty in manner and form as he stands [379]*379indicted. In the case of the Commonwealth vs. Joyce & Mathias, (Oyer & Terminer, Phila., Feb’y, 1808, before C. J. Tilghman and Judge Smith), who were convicted of the murder of Sarah Cross, it was moved in arrest of judg - ment, because the indictment did not charge the murder to have been committed by a wilful, deliberate and premeditated killing, as expressed in the Act of Assembly. But the motion was overruled, and the murderers executed. I am therefore of opinion that the indictment is good.” 6 Binney, 182, 183.
The decision of the Supreme Court of Ohio, in the case of Dick vs. The State, 3 Ohio, 89, is supposed to be in conflict with 6 Binney, and the principles there maintained ; and it is argued that this Court, in its decision in the case of Ford vs. The State, 12 Md., 514, approved of the decision of the former, and dissented from, or disapproved of the decision of C. J. Tilghman.
There was no ground of collision in the cases referred to. The case in Binney, was that of an indictment, at common law, for murder, and the question in brief, was, whether the statute of Pennsylvania required a change in the form of the indictment.
The case in 3 Ohio, was an indictment for murder, containing three counts, each of which charged the crime of murder in the first degree in the language of the statute.
In the course of C. J. Tilghman’s opinion, to enforce his argument, that the law of Pennsylvania contemplated no averment of the degree of the crime, he said if so, the jury instead of finding the degree of the murder, might find guilty in manner and form as he stands charged, and the indictment would determine the degree, and the law thus be gratified. To this argument, and the cases cited ¿o sustain it, Judge Bartley replies ; they rest upon the ground that the statute of Pennsylvania does not define murder, but refers to it as a known offence existing at common law. “The ground upon which [380]*380these decisions were made does not exist in Ohio, and therefore they can have no application here.” He then adds, “Adoctrine contrary to that which appears to have prevailed in Pennsylvania, has been held in a number of the other States.”
The controversy was in fact, as to the mode of finding the verdict, not the sufficiency of the allegata.
In Ford’s case, where the insufficiency of the verdict as rendered, was the subject of discussion, the counsel of the State, commenting on 6th Binney, which was cited by the counsel for the plaintiff in error to sustain the verdict, spoke of Tilghman’s argument as “ obiter dictum,” to which this Court replied, “The case in which the distinguished Chief Justice dropped the dictum relied upon, did not involve the question, nor call for his opinion on the subject; and were it what counsel suppose it to be etc., we would not feel ourselves bound to conform to it. Nor, indeed, had it been directly raised in the case, could we, with our understanding of the language of the statute unite in such construction. But the fact is, we do not concur with the counsel for the State, in the interpretation placed by them on the language of C. J. Tilghman. His language is not susceptible of such construction. He alluded to an indictment under the statute, and not at common law.
The general doctrine of 6th Binney, was not in our opinion at all impeached by this Court in Ford’s case.
The States of Maine, New Hampshire, New York, New Jersey, Virginia and Pennsylvania and others, have enacted laws, distinguishing murder at common law, by degrees.
“In Ohio, there are no crimes or misdemeanors at common law, they have a statute which defines murder with great precision and certainty, which is cited by Wharton in his treatise on Common Law, (page 510, 3d Ed.,) as an illustration of the essential difference [381]*381between statutory murder, and murder at common law.” Fouts vs. The State, 8 Ohio, 111.
Upon a review of these statutes in the States first mentioned, and the decisions thereon, Wharton announces, that “ it is not necessary, nor is it the practice to designate the grade of the homicide in the indictment, nor that the killing should be charged to be wilful, deliberate and premeditated,” etc. Wharton’s Crim. Law, sec. 1115, (5th Ed.)
The case of Johnson vs. The Commonwealth, 24 Pa. State Reps., 387, has been pressed upon our attention by the counsel for the plaintiff in error, as in conflict with the decisions of this State, on the construction of similar or identical language used in the several States, in connection with the form of tbe verdict. As we understand the ruling in this case, it decides where the indictment does not specifically charge murder in the first degree, but facts which constitute murder at common law, and the jury fail to find in the verdict, the degree of the crime, but find the prisoner “guilty in manner and form as he stands indicted,” the indictment being broad enough to cover both degrees, the Court in deference to the principle of construction “ in mitiori sensu,” and the language of the statute, describing murder in the first degree, will hold the finding to be murder in the second degree.
Whether this ruling, is consistent or not in all respects, with what has fallen from this Court in Ford’s case, it is unnecessary to decide; the case itself is wholly unlike that now before us, in which the jury have not failed to ascertain the degree of the crime, of which the plaintiff in error was found guilty.
The province of the Court is, “ non dare sed dicere legem.” Whatever our opinion might be of the correctness of the construction adopted by the Courts, as to the effect of these statutes, upon the forms of pleading [382]*382and procedure in criminal cases, if the question were “res integra,” regarding certainty and uniformity in the interpretation of the law, as one of the chief securities of life, liberty and property, we feel bound to bow to the weight of authority and precedent.
The objection to the record, preliminary to the indictment is, that it sets forth that the persons named as grand jurors, were of “Baltimore County”
The transcript of the record, transmitted from the Circuit Court for Carroll County to Washington County, at the instance of the plaintiff in error for trial, after the usual caption prefixed to such record showing, the State, County, style of the Court, Judges and officers, recites:
“ Among other were the following proceedings, to wit:
THE STATE OF MARYLAND vs. JOSEPH DAVIS.
Be it remembered, that Charles W. Hood, etc., good and lawful men of Baltimore
County, who being then and there empannelled, sworn and charged to inquire for the State of Maryland, for the body of Carroll County, having withdrawn from the bar of the Court here, afterwards return and present to the Court here, a presentment in form following.”
The presentment, entitled, as of Carroll County, by the Grand Jurors of the State of Maryland, for the body of Carroll County, of Joseph Davis, for the murder of Abraham L. Lynn, at Carroll County, aforesaid, follows; whereupon at the same term, the prisoner was arrested upon bench warrant, indicted, arraigned, pleaded not guilty, etc. This description of the County, in the preamble of the proceedings of the Court, whether regarded as matter of recital or averment, must be taken in connection with all other parts of the record and construed accordingly.
Although nothing can be averred contrary to the record, yet the record must be taken as a whole, to ascer[383]*383tain what is averred. The Courts are bound to notice judicially the qualifications of Grand Jurors and- what averments are consistent with law, and what are legally impossible.
The venue being Carroll County; the Court, the Circuit Court for Carroll County, it was legally impossible that good and lawful men of Baltimore County could be then and there impannelled, sworn and charged to en-quire as grand jurors for the State of Maryland, for the body of Carroll County.
All the proceedings, prior and subsequent, being recorded as of Carroll County, it is obvious the word “Baltimore’ ’ was a clerical misprision, which did not mislead or prejudice'the prisoner, and could not affect the validity of the proceedings or the verity of the record: — there being no pretence that the grand 'jurors were not citizens of Carroll County.
If the fact had been otherwise, the prisoner should have pleaded in abatement. Clare vs. The State, 30 Md., 177; 1 Chitty Pl., 309.
It is also objected that the record shows neither arraignment nor plea on the part of the plaintiff in error, in Washington County. The record consists of the transcript of the proceedings in the Circuit Court for Carroll County, where the prosecution commenced, and the transcript of the proceedings in the Circuit Court for Washington County, where it was concluded.
The former shows the plaintiff in error was arraigned, pleaded not guilty, and put himself on his country; that a jury was impannelled and charged, and having failed to agree, were discharged by the Court. Whereupon, on motion and affidavit of the plaintiff in error, the cause was removed from Carroll to the Circuit Court for Washington County, for trial.
The plaintiff in error having been arraigned, and having pleaded in the Circuit Court for Carroll County, [384]*384and afterwards removed his case to another Circuit Court, he was placed in the latter in the same position as to procedure, that he occupied in the former ; he appeared on the record, pleading not guilty, and demanding atrial by jury.
At this stage the case was taken up by tbe Circuit Court for Washington County.
The ceremony of arraignment is to identify the prisoner, inform him of the charge, and demand whether he is guilty or not guilty. These being once performed and entered of record, it was unnecessary to repeat the form in the Court to which he was removed. The objection, that the docket entries do not show all the facts, which are extended at large on the record, does not, in our judgment, impair the validity of the latter. The Clerk is the amanuensis of the Court, and although the docket entries are the ordinary memoranda of what was transacted by the Court, made in brief, yet the more formal and solemn averment of the record, must be supposed to be made by the authority of the Court, and given full faith and credit as such.
The third ground of objection, as classified above, is, if the Maryland statute be so construed as that a party may be convicted of a deliberate and premeditated killing, and so, of murder in the first degree, on an indictment which does not aver a wilful, deliberate and premeditated killing, made by the statute necessary ingredients of murder in the first degree, then that statute is in violation of the 21st Article of the Declaration of Rights, and Article 6 of the Amendments to the Constitution of the United States.
The Articles referred to guarantee to every man the right to be informed of the accusation against him; <c to have a copy of the indictment, etc., and a speedy trial by an impartial jury.” If we have succeeded in showing that the objections to the indictment were not tenable, in view [385]*385of the authorities in this and other States, and that the construction of the statutes was established by a series of judicial decisions, in favor of that form of proceeding, we conceive we have virtually disposed of this objection.
It is substantially the same which was made and overruled by the Judges of Massachusetts in the case of the Commonwealth vs. Green. It assumes, that the indictment for murder at common law, does not inform the prisoner of the accusation against him, and hence concludes, that the law which warrants such a mode of accusation, is unconstitutional. By such a process of reasoning, all Acts of legislation might be avoided.
The sages of the law, contemporaries of those who framed our organic institutions, could not have overlooked such an objection if it existed, and having held otherwise we adhere to their construction.
In consideration of the unusually grave and solemn position of the plaintiff in error, and the earnest zeal, devotion and learning of his counsel, wo have thus far euterod into the merits of the questions as if the record was properly before us; and after the most careful examination, and reflection, conclude that the plaintiff in error, has' enjoyed every right and privilege guaranteed by our law and Constitution, to persons accused of crime, and that there is no error in the proceedings brought before us for review.
But that this case may not hereafter be considered as a precedent, we feel constrained to decide that the writ of error does not properly lie in this case. The errors assigned, if any, were subjects of demurrer, or in arrest of judgment, and in this case there was neither. The Code, Art. 30, sec. 82, prohibits reversal tfi‘or any matter or cause, which might have been a subject of demurrer to the indictment.” Kellenbeck & Brash vs. The State, 10 Md., 439.
[386]*386(Decided 29th January, 1874.)
The 4th rule of this Court, most emphatically prohibits it from deciding any point or question, which does not plainly appear by the record, to have been tried and decided by the Court below.
It is unnecessary to multiply authorities to a point, so clear.
The law, and the rule, are founded upon the most obvious principles of public policy, and cannot be violated without most pernicious consequences.
The writ of error must therefore be dismissed.
Writ of error dismissed.